Merchant Shipping (Miscellaneous Provisions) Bill [H.L.] (Hansard, 25 July 1983)

§ Lord Lucas of Chilworth
My Lords, I beg to move this Bill he now read a second time. It is in two parts. Part I makes provision for the service of improvement and prohibition notices to assist the enforcement of merchant shipping legislation. Broadly similar powers are included in the Health and Safety at Work etc. Act 1974. Part II is a technical and legal provision which amends the law dealing with the calculation of ships' tonnages for limitation of liability purposes. It is necessary to keep United Kingdom law in line with the relevant international conventions.
Your Lordships will not need me to remind you that ships have been growing larger. At the same time they are increasingly carrying dangerous goods, such as chemicals and noxious and explosive gases. These factors can give rise, particularly in port, to risks of danger to life and of serious pollution of navigable waters. Many of your Lordships will remember the tragedy in January 1978 of the "Betelgeuse" at an Irish 1375 port where 50 lives were lost, and other incidents in ports around the world. So far our ports have escaped the worst, but we need to be prepared. The risks often can no longer effectively be guarded against by use of the traditional enforcement power under Merchant Shipping Acts to detain a ship. Such action may be too late. Something of quicker effect and directed more positively at a specific risk is required.
These risks can arise during the loading and unloading operations, where both seafarers and dockers can be jointly involved. Accordingly the Department of Transport has been negotiating an arrangement with the Health and Safety Executive whereby marine surveyors and factory inspectors will in future co-operate, particularly during loading and unloading operations. This co-operation will be facilitated by common instruments of enforcement.
Part I of the Bill accordingly makes provision for the service of improvement and prohibition notices. These correspond to those which may be served under Sections 21 to 23 of the Health and Safety at Work etc. Act. The Health and Safety Executive and the seafarers' trade unions have been urging the necessity for this parity of enforcement powers under the two sets of legislation. It is also accepted as necessary by the General Council of British Shipping.
Clause 1 enables an inspector who is of the opinion that a person is contravening, or has contravened or might contravene a relevant statutory provision to serve on that person an improvement notice requiring the recipient to remedy the contravention. The relevant statutory provisions are listed in Schedule 1 to the Bill. They relate to: the safety of ships and hovercraft; safe working procedures aboard them; loading and unloading operations; and the prevention of pollution of navigable waters. Improvement notices will be particularly useful to ensure that a piece of equipment is repaired or replaced, or a safer working procedure is adopted, by a specified date. The notice provides a flexible instrument for remedying less serious infringements.
Clause 2 enables the service on a person in control of activities related to one of the relevant statutory provisions which are or are about to be performed on a ship or hovercraft, and which may involve the risk of serious personal injury or serious pollution of navigable waters, of a prohibition notice directing that the activities should cease. If the risk is imminent, the notice can be of immediate effect. In seeking to remove serious risks, it is the most important clause in this part of the Bill. A prohibition notice could, for example, be used to stop an unloading operation where faulty equipment or damaged goods were causing the emission of noxious or explosive substances posing an immediate threat to all in the vicinity.
Clause 3 contains supplementary provisions, including a right for an inspector to specify in either notices directions as to the measures, or choice of measures, to be taken to remedy any matter to which the notice relates. This will enable the inspector to give advice on the best ways to comply with the law or, indeed, to avoid the risk.
Throughout the long history of the Merchant Shipping Acts it has been very rare for a detention 1376 order to be challenged, and there are no records of claims for damages arising out of the wrongful detention of a ship. This reflects the care with which marine surveyors approach their work and their good relations with the shipping industry. I am sure that inspectors of both departments will be equally circumspect in using this new power to serve either of the notices. Nevertheless, equity demanded the inclusion of a procedure for determining whether a notice has been issued invalidly or includes unreasonable directions. Clause 4 accordingly provides for notices to be referred to a single arbitrator agreed between the parties and drawn from the ranks of the legal profession or those with special knowledge of maritime matters. The arbitrator's decision can take the form of confirming the notice, varying its terms or withdrawing it. We believe this will provide a quick and more appropriate means of resolving the matter than by an appeal to an industrial tribunal, as is the practice under the Health and Safety at Work etc. Act. A reference to an improved notice to an arbitrator will have the effect of suspending its operation until the arbitrator gives his decision, but because prohibition notices deal with more serious risks, a reference to an arbitrator does not automatically suspend the effect of the notices.
Clause 5 provides that where an arbitrator finds a prohibition notice to have been served on a wrong basis and without reasonable grounds he can award compensation for loss. This provision has no counterpart in the Health and Safety at Work etc. Act. It was included because a prohibition notice could in some cases have much the same effect as a detention order, and there has been a long—established right to claim damages under the Merchant Shipping Acts for wrongful detention of a ship.
I now turn to Part II of the Bill, concerned with limitation tonnage. These provisions are of a technical nature but can significantly affect the compensation available to victims in maritime incidents. They are necessary in order for the United Kingdom to continue to comply with the provisions of two international conventions to which we are a party. These conventions are the International Convention relating to the Limitation of the Liability of Owners of Seagoing Ships of 1957 and the International Convention on Civil Liability for Oil Pollution Damage of 1969.
The limitation of liability which shipowners and others are entitled to claim is related to the net tonnage of the ship as defined in the two international conventions. United Kingdom legislation does not repeat the international definition in so many words but, instead, takes as its reference point the registered tonnage. Until July of last year the United Kingdom definition gave the same result as required under the international conventions.
However, in July 1982 a new international system of tonnage measurement, agreed at an international conference in 1969—the International Conference on Tonnage Measurement of Ships—came into force and was implemented in the United Kingdom through the Merchant Shipping (Tonnage) Regulations 1982. These regulations, which applied immediately to all new or modified ships, or ships for which re-measurement was requested, introduced a new 1377 approach to tonnage measurement. Where vessels are measured and registered in accordance with the new regulations, the courts will be placed in some difficulty in interpreting the provisions on limitation tonnage. In so far as they decide they are able to apply them, they will arrive at a limitation tonnage which may be different by as much as 50 per cent. from that required under our international obligations.
It is clearly important that the problem should he rectified quickly so that the provisions on limitation tonnage are applied uniformly and consistently. The Bill accordingly provides for the limitation tonnage to be redefined in terms of the registered tonnage, which equates to the old net tonnage, and for this to be applied in all cases.
Clause 11(1) amends the provisions of the Merchant Shipping Act 1894, as modified by the Merchant Shipping (Liability of Shipowners and Others) Act 1958, which govern the limitation liability for general damages, including loss of life and injury, by substituting a new definition of limitation tonnage. Subsection (2) similarly amends the provisions of the Merchant Shipping (Oil Pollution) Act 1971, which governs the limitation of liability in cases of oil pollution damage by substituting essentially the same new definition of limitation tonnage. Subsections (3) and (4) retain the present effect of the 1894 Act, as modified, but in respect of hovercraft, and provide for automatic cessation of the provisions relating to the 1894 Act when the limitation of liability provisions of that Act are superseded by the more up-to-date international regime, as provided for in the Merchant Shipping Act 1979.
I have gone somewhat quickly through this Bill. I think that Part I is fairly clear from the way in which it is written. I emphasise that Part II is essentially a technical piece of legislation which has been discussed fully with all the parties who are involved. I hope therefore that this is clear to your Lordships. If there are any further questions, I shall be happy to answer them as best I may when we come to the end of this debate. Meanwhile, I commend this Bill to your Lordships, and beg to move that it be now read a second time.

§ Lord Underhill
My Lords, I need not detain the House long on this Bill. Any measure which, as explained in Part I, endeavours to carry through the provisions of the Health and Safety at Work etc. Act is to be welcomed. I am grateful to the Minister for explaining the terms. He said that Part I of the Bill is simple to understand. No matter what is in the memorandum in the front of the Bill, or in Clause 1, which deals with the improvement notices, frankly, it is almost impossible to understand to what it refers. It refers to relevant statutory provisions; but the interpretation clause refers to the provisions of Schedule 1, which, in turn, refers to the provisions of no fewer than 14 Acts, either wholly or in part. One needed the Minister's explanation to gather exactly what Clause 1 is about.
Clause 2 is more understandable. It deals with activities carried out on board ship which may cause serious personal injury or pollution. I am pleased that 1378 the Minister emphasised that although there are provisions in Clause 4 for arbitration, these will be set aside where a prohibition notice is urgent and requires immediate effect. I was going to ask him about that.
Part II of the Bill relates to the revised formula for ascertaining tonnage. It seems both appropriate and necessary and in conformity with the international conventions. I understand that the trade unions concerned have no particular points to raise on the Bill. Therefore we welcome the fact that it is having a Second Reading.

§ Lord Lucas of Chilworth
My Lords, I am most grateful to the noble Lord, Lord Underhill, for his welcome for the Bill. I am particularly glad that in my explanation I was able to satisfy perhaps one or two questions that there might have been. Since it may be some weeks before we come to the next stage of the Bill, there will be adequate time for any discussion which any noble Lord may feel is necessary. If it should prove necessary, I would be very happy to enter into such discussion.