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The Port Marine Safety Code and the Impact of Health & Safety Legislation: do you need a Harbour Empowerment Order?

The Port Marine Safety Code (PMSC) sets a national safety standard for all harbour authorities and marine facilities in the UK, including but not limited to:

  • Statutory Harbour Authorities (including Trust, Municipal and Private Ports/ Harbours);
  • Competent Harbour Authorities (those with statutory pilotage duties); and
  • All other non-statutory marine facilities (such as marinas, berths, terminals and jetties).

The aim of the PMSC is to secure the safety of all those involved in the port environment, such as workers, ships/vessels, passengers, and the marine environment itself.

The guidance is divided into 10 measures:

  1. Appointing a duty holder accountable for compliance;
  2. Appointing a designated person to provide assurance;
  3. Reviewing powers and seeking additional powers where necessary;
  4. Complying with duties and powers;
  5. Undertaking a marine risk assessment;
  6. Operating an effective marine safety management system;
  7. Monitoring, reviewing and auditing the risk assessments and the marine safety management system;
  8. Employing competent people;
  9. Publishing a safety plan; and
  10. Complying with the direction of General Lighthouse Authorities.

Statutory Harbour Authorities are expected to take all 10 measures into account, whilst non-statutory marine facilities need only take into account those which are relevant to them. It is, however, recommended that (4) – (6) are fulfilled at a minimum.

STATUTORY vs. NON-STATUTORY

Statutory Harbour Authorities are governed by express duties under local legislation which allocate responsibility for the management of the harbour. Express powers can also be granted, including powers relating to navigational safety, the control of vessel movements, navigational aids etc. Together, these duties and powers can be used to comply with the PMSC.

Non-statutory marine facilities are not subject to local legislation and do not benefit from the same range of express duties or powers. In particular, they lack the express enforcement powers required to ensure compliance with the PMSC, such as the enforcement of directions given by the harbour master in relation to vessel movements, obstructions, speeding etc. Non-statutory marine facilities can however become statutory via a Harbour Empowerment Order (HEO), discussed below.

THE IMPACT OF HEALTH & SAFETY LEGISLATION

If proceedings were ever brought under health and safety legislation, compliance with the PMSC could be crucially important. For example, section 3 of the Health and Safety at Work etc. Act 1974 provides:

General duties of employers… to persons other than their employees 
(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety…”

Compliance with the PMSC would be a strong mitigating factor in the event of a claim, particularly if it could be shown that there was compliance with the PMSC “so far as reasonably practicable”.

Therefore, Statutory Harbour Authorities should consider whether they are suitably compliant with the PMSC; and non-statutory marine facilities should consider whether they can adequately manage the risks associated with their facilities. If not, they should consider obtaining a HEO to become statutory.

CASE STUDY: THE KEY BORA CHEMICAL TANKER ACCIDENT

In March 2020, Key Bora ran aground having collided with a large underwater boulder at the Kyleakin Pier, Isle of Skye (a non-statutory marine facility). It suffered a breach to the hull which flooded the ballast tanks before it was able to re-float and berth under its own power.

The Marine Accident Investigation Branch has since published the MAIB Report (December 2021) which found that the primary cause of the accident was two-fold:

  1. the bridge team relied on locally produced survey data instead of ECDIS data which would have revealed the boulder’s presence; and
  2. the PMSC was not fully implemented at the Kyleakin facility, including there being no marine safety management system in place.

The MAIB Report concludes with recommendations that the Kyleakin facility operators should take steps towards compliance with the PMSC and consider upgrading  to a Statutory Harbour Authority (via a HEO).

WHAT IS A HARBOUR EMPOWERMENT ORDER?

A HEO authorises the construction and/ or improvement, maintenance and management of harbours where no sufficient powers already exist. In the context of the PMSC, HEOs essentially make non-statutory harbour facilities statutory and provide the duties and powers required to ensure compliance.

The test for making a HEO is found in section 16 of the Harbours Act 1964, namely:

“that the making thereof is desirable in the interests of facilitating the efficient and economic transport of goods or passengers by sea or in the interests of the recreational use of sea-going ships”.

Non-statutory marine facilities open to shipping should seriously reflect on whether they can address the risks associated with their facilities. If not, they ought to consider obtaining a HEO to ensure compliance with the PMSC.

COMMENT/ CONCLUSION

The recent MAIB Report clarifies when non-statutory marine facilities ought to consider obtaining a HEO, and the Key Bora accident is a stark reminder of the catastrophic risks associated with failure to comply with the PMSC. Those to whom the PMSC applies therefore must consider how they are able to meet their health and safety obligations and take action now to mitigate their risk.

If you would like more information in relation to this or any regulatory risk topic, please contact Ashfords Business Risk and Regulation team for specialist legal advice.

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