Secretary of State’s power to give safety directions: what directions can be given under Schedule 3A to the Merchant Shipping Act 1995?

read time: 7 mins

14.11.25

Tommy Fox

The UK has suffered numerous major oil pollution incidents, including the Torrey Canyon disaster in 1967, the Braer disaster in 1993 and the Sea Empress disaster in 1996. With each disaster, the Secretary of State’s powers to deal with similar emergencies have evolved with many powers now being consolidated under the Merchant Shipping Act 1995 (the 1995 Act).

Amongst the provisions of the 1995 Act are powers of the Secretary of State to issue ‘safety directions’ in response to maritime emergencies. These powers are exercisable by the Secretary of State’s Representative for Maritime Salvage and Intervention (SOSREP), in so far as they are delegated. The SOSREP is an employee of the Maritime and Coastguard Agency but acts as a non-Departmental Officer of the Crown when exercising the Secretary of State’s powers.

What safety directions can the Secretary of State give?

The safety directions which can be given are set out under the following paragraphs of Schedule 3A to the 1995 Act as follows.

Paragraph 1: directions following an accident to a person in control of ship

The Secretary of State may give a direction in respect of a ship if in their opinion:

(a) an accident has occurred to or in the ship,
(b) the accident has created a risk to safety or a risk of pollution by a hazardous substance, and
(c) the direction is necessary to remove or reduce the risk.

Directions under this paragraph may be given to numerous individuals, including (but not limited to) the owner, master or pilot of the ship and, where the ship is in, or has been directed to move into, waters which are regulated or managed by a harbour authority, the harbour authority or the harbour master. Directions may be given for specified purposes requiring those persons to take or refrain from taking actions relating to the ship or anything which is or was in the ship, which forms or formed part of the ship, which is or was being towed by the ship, or a person on the ship.

Paragraph 2: directions following an accident to a person in control of land

The Secretary of State may give a direction in respect of a ship if in their opinion:

The direction may be given to a person in charge of coastal land or premises for specified purposes. It may require the person to whom it is given to grant access or facilities to or in relation to the ship or any person or thing which is or was on the ship. A direction under this paragraph must be in writing or be confirmed in writing as soon as it is practicable to do so.

Paragraph 3: other directions

The Secretary of State may give a direction in respect of a ship if in their opinion it is necessary for the purpose of:

(a) securing the safety of the ship or of other ships;
(b) securing the safety of persons or property;
(c) preventing or reducing pollution.

A direction under this paragraph may be given to the owner or master of the ship, or a person in possession of the ship. A direction may require that person to ensure that the ship is moved or not moved to or from a specified place or area in UK waters, over a specified route in UK waters, or that the ship is removed from UK waters.

Paragraph 4: action in lieu of directions

This paragraph only applies where the Secretary of State thinks that circumstances exist which:

would entitle them to give a direction under this Schedule but that the giving of a direction would not be likely to achieve a sufficient result; or
where a direction has already been given, the direction has not achieved a sufficient result.

In either case, the Secretary of State may take such action as appears to them necessary or expedient for the purpose for which the direction could have been, or has been, given. This includes to authorise a person to enter land or make use of facilities, authorise a person to do anything which the Secretary of State could require a person to do by a direction, authorise a person to assume control of a ship, or make arrangements or authorise the making of arrangements for the sinking or destruction of a ship.

What if a safety direction is breached?

Under paragraphs 5 and 6, any person given a direction under Schedule 3A of the 1995 Act must comply with it and try to do so in a manner which avoids risk to human life. Failure to comply with a direction is an offence but is subject to available defences, including where the person charged is able to prove that they tried as hard as they could to comply with the relevant direction, or that they reasonably believed that compliance with the direction would involve a serious risk to human life.

Under paragraph 7, an offence is also committed by a person who obstructs any person who is acting on behalf of the Secretary of State in connection with the giving of a direction, complying with a direction, or acting by virtue of paragraph 4 (action in lieu of directions).

A person guilty of an offence is liable on summary conviction or indictment to a fine.

What compensation is there for losses incurred as a result of a safety direction? Can I recover expenses?

Paragraph 14 contains provisions dealing with the payment of compensation to persons who have suffered unreasonable loss or damage. In particular, it applies where those persons have taken action in accordance with a direction or by virtue of paragraph 4 (action in lieu of directions) which:

was not reasonably necessary for the purpose for which the direction was given, or
caused loss or damage which could not be justified by reference to that purpose.

The Secretary of State must pay compensation to any person, on application, who suffered loss or damage as a result (whether the action was taken by them or someone else). Account must be taken of the extent of the risk to safety or threat of pollution which the direction was intended to address, the likelihood of the remedial action being effective, and the extent of the loss or damage caused by that action.

Paragraph 15 contains provisions dealing with the recovery of expenses. Importantly, these provisions only apply in relation to:

a direction given to a person in respect of a ship under paragraph 2; or
where the Secretary of State relies on paragraph 4 to take or authorise action in respect of a ship in lieu of a direction under paragraph 2.

The following expenses may be recovered from the owner of the ship.

The person subject to the direction is entitled to recover their costs of compliance with the direction.
The person in charge of coastal land or premises is entitled to recover their costs of taking action by virtue of paragraph 4 in relation to that land or premises.
The Secretary of State is entitled to recover their costs incurred in connection with giving the direction, in relation to action taken under paragraph 4, and costs incurred in making payments to persons on account of the sums recoverable by them (set out immediately above).

The right to recover the costs set out above only applies in so far as those costs are not recoverable under any other enactment, by an agreement, or under law relating to salvage. Additionally, whether or not recovery of expenses will be available in practice could depend on whether the owner of the ship has it suitably insured to cover those costs.

Final thoughts

Whilst Schedule 3A to the 1995 Act is clear that directions can be given in respect of a ‘ship’ (defined in section 313 to include “every description of a vessel used in navigation”), there are some caveats. For example, paragraphs 17 to 21 of Schedule 3A set out conditions on which directions can be made in relation to different types of ‘ship’ and in what circumstances.

If you would like advice, please contact Lara Moore or Tommy Fox in the marine team who would be happy to assist.