The majority of operational ports and harbours in the UK are run by 'statutory' harbour authorities ("SHAs"). SHAs originally obtained their powers under statute and as such, must exercise their statutory harbour powers in accordance with their governing legislation. SHAs are governed by a mix of local legislation (applying only to their harbour) and national legislation.
One of the key pieces of national legislation governing SHAs, is the Harbours Act 1964. Under the Harbours Act 1964, SHAs have the power to impose 'harbour dues' on users of the harbour, unless there is a relevant prohibition contained within the local legislation applying to the SHA in question. The term 'Harbour Dues' encompasses, 'ship, passenger and goods dues'. Namely those charges associated with:
- Ships entering, using or leaving the harbour;
- Passengers embarking or disembarking at the harbour;
- Goods brought into, taken out of, or carried through the harbour by ship;
but not charges levied for use of ancillary facilities at the harbour or port in question provided for such passengers or goods.
The ability for an SHA to impose 'harbour dues' is of vital importance. The monies raised for levying such dues are primarily used to maintain the harbour and to provide for its long term viability. The importance such dues to the viability of ports and harbours is recognised in the severity of the enforcement measures available to SHAs following non-payment of such dues, including seizing and selling goods and vessels to recover unpaid dues. For harbour users, the levying of harbour dues, can have a significant impact on the profitability of their businesses.
Subject to any prohibition in local legislation, the Harbours Act 1964, allows SHAs to levy such ship, passenger and goods dues as 'it thinks fit'. As a safeguard to this wide discretionary power, section 31 Harbours Act 1964 provides a right of objection to the Secretary of State against the imposition of ship, passenger and goods dues on four grounds:
(i) That the charge ought not to be imposed at all;
(ii) That the charge ought to be imposed at a rate lower than that at which it is imposed;
(iii) That, according to the circumstances of the case, ships, passengers or goods of a class specified in the objection ought to be excluded from the scope of the charge either generally or in circumstances so specified;
(iv) That, according to the circumstances of the case, the charge ought to be imposed, either generally or in circumstances specified in the objection, on ships, passengers or goods of a class so specified at a rate lower than that at which it is imposed on others.
Following completion of the objection process (which is likely to include an inquiry) the Secretary of State must either approve the charge (for a period not exceeding 12 months) or, if the objection is upheld, direct the SHA to make such changes with respect to the charge as would meet objection made (on any of the grounds specified above).
Whether you are an SHA or a harbour user, when considering whether a harbour due has been or can be properly imposed, full consideration of the local legislation and national legislation applying at the relevant port or harbour will be required, along with a consideration of the process followed or to be followed in imposing such a due.