HL Deb 23 May 1984 vol 452 cc293-301

7.58 p.m.

Lord Walston

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Walston.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AIREDALE in the Chair.]

Clause 1 [Directions by harbour master concerning dangerous vessels etc.]:

Lord Lucas of Chilworth moved Amendment No. 1: Page 1, line 9, leave out from ("vessel") to ("that") in line 1 on page 2 and insert— ("if in his opinion the condition of that vessel or the nature or condition of anything it contains is such that its presence in the harbour might involve—

  1. (a) grave and imminent danger to the safety of any person or property; or
  2. (b) grave and imminent risk").

The noble Lord said: It may help the Committee if I say that although the Marshalled List appears to be extraordinarily long, most of the amendments are in fact drafting. I do not think, since we have discussed all of these with the noble Lord, Lord Walston, that they should take too much time, although, of course, I shall attempt to explain them all as we go through.

Amendment No. 1 is purely a drafting amendment. It is designed to clarify the circumstances in which a harbour master may exclude vessels from the harbour. I beg to move.

Lord Walston

I do not propose to speak on every amendment, which may be of some relief to the Committee, but I should like to confirm what the noble Lord, Lord Lucas, has said: that although all the amendments except one are in his name, they have been discussed with me and all of them are improvements which will clarify the intentions of the Bill without in any way altering them.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 2: Page 2, line 12, at end insert— ("; and in paragraph (b) of this subsection, "master" means the person having command or charge of the vessel, but does not include a pilot (that is to say, a person not belonging to the vessel who has the conduct of it).").

The noble Lord said: Amendment No. 2 is, again, a drafting amendment, in that it makes it clear that a harbour master's power to give directions to the master of a vessel does not include a power to give directions to the pilot. I beg to move.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 3:

Page 2, line 17, at end insert ("and including the vessel in question in that case).").

The noble Lord said: Again, this is a drafting amendment to put beyond any doubt that in deciding whether to give directions to exclude a vessel from a harbour, the harbour master has to have regard to the safety of that vessel as well as of other vessels. I beg to move.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 4: Page 2, line 20, at end insert— ("(5) At the time any directions under subsection (1) above are given to any person, the harbour master giving the directions shall inform that person of the grounds for giving them.").

The noble Lord said: This amendment requires a harbour master who excludes a vessel from a harbour to give his reasons for doing so at the time that he makes the prohibition direction. It is only proper for him to have to explain why a vessel should not have the right to enter or remain in harbour at that time rather than at a later time. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Underhill

May I raise one question on Clause 1? It may be that there are other provisions that cover the point; but the Bill seems to be silent on enforce- ment. I know that under Clause 8 we have the maximum fine of £25,000. However, if a vessel is in such a dangerous position that it should be removed, the damage is done. I accept that there is a £25,000 fine, but there could be damage in the meantime. What is to happen on enforcement or attempted enforcement? Is there any provision—I cannot see it in the Bill—for the harbour master to call the police or any other authority to assist him in enforcing his direction?

Lord Lucas of Chilworth

I wonder whether the noble Lord, Lord Underhill, will allow me to respond to that when we come to Clause 8 which may, I think, need further explanation. Although there is no amendment to Clause 8, we could perhaps go a little further into the clause when we reach it.

Clause 1, as amended, agreed to.

Clause 2 [Liability of harbour authority for certain directions given under section 1]:

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Lucas of Chilworth

In moving that Clause 2 does not stand part of the Bill, I should perhaps explain that the amendment effects a major simplification of the Bill. The clause which I propose should be deleted makes a harbour authority liable to pay compensation if the harbour master unreasonably excludes a vessel and loss or damage is suffered as a result. However, under the common law, the harbour master and harbour authority would be liable for damages in the case of any negligent use of the powers or any action in excess of the powers—for example, where there was no grave or imminent danger or risk as provided in Clause 1. It seems unnecessary to supplement this common law liability with a specific clause in the Bill. I beg to move.

Lord Walston

If I may refer to Amendment No. 5 which, as the noble Lord, Lord Lucas, has said, is really an alternative to Clause 2, it is, I think, a considerable simplification. It is far better to rely on the common law. That being so, I am fully in support of the deletion of Clause 2 as it stands.

Clause 2 disagreed to.

Lord Lucas of Chilworth moved Amendment No. 5: After Clause 2, insert the following new clause:

("Application of Merchant Shipping (Liability of Shipowners and Others) Act 1900. Where— (a) a harbour authority is liable for any loss or damage occurring outside the harbour of that authority in consequence of directions given by a harbour master in purported exercise of his powers under section 1 above; and (b) the provisions of the Merchant Shipping (Liability of Shipowners and Others) Act 1900 would apply so as to limit that liability if the loss and damage in question had occurred in that harbour; then, for the purposes of that Act, that loss or damage shall be deemed to have occurred in that harbour.").

The noble Lord said: This new clause, to which the noble Lord, Lord Walston, has spoken, follows upon the matter that we have just been discussing. Clause 3, as originally drafted, made it clear that a claim for compensation under Clause 2 was subject to limitation under the Merchant Shipping Act 1900. Since we have agreed to delete Clause 2 this provision is no longer required. Section 3 of the Merchant Shipping Act 1900 is widely drawn and the right for a harbour authority to limit its liability thereunder would clearly apply to any common law claim arising from directions given by a harbour master under Clause 1 of this Bill, if the loss or damage occurred within the harbour.

The purpose of the new clause is to make it clear that a harbour authority's right to limit its liability arising from the exercise by the harbour master of his power to give directions under Section 1 extends to liability for things which happen outside the harbour as well as within it. I would add that a harbour authority's right to limit its liability does not extend to a liability for the death of, or injury to, any person; nor does this right apply where the liability is caused by the actual fault or privity of the harbour authority. I beg to move.

On Question, amendment agreed to.

Clause 3 [Application of Merchant Shipping (Liability of Shipowners and Others) Act 1900 to claims relative to section 1]:

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Lucas of Chilworth

For the reasons that I have given, I would ask that the Committee does not insist upon Clause 3 standing part of the Bill.

Clause 3 disagreed to.

Lord Lucas of Chilworth moved Amendment No. 6: After Clause 3, insert the following new clause:

("Further directions by Secretary of State. .—(1) Where a harbour master has given directions under section 1 above as respects any vessel, the Secretary of State may, for the purpose of securing the safety of any person or vessel (including the vessel to which those directions relate), give directions under this section to that harbour master requiring him—

  1. (a) to permit the vessel to which the directions given under section 1 relate to enter and remain, or (as the case may be) to remain, in the harbour in question; and
  2. (b) to take such action (if any) as may be specified in the directions given under this section, for the purpose of enabling the vessel to do so or for any connected purpose;
and the directions under section 1 shall thereupon cease to have effect. (2) A harbour master to whom any directions are given under this section shall give notice of those directions as respects the vessel in question to the person to whom the directions under section 1 were given or, failing that, to any of the other persons mentioned in section 1(2) above, in any such reasonable manner as the harbour master may think fit; and it shall be the duty—
  1. (a) of the harbour master to take any action in relation to that vessel specified in those directions; and
  2. (b) of the harbour master and the harbour authority to take all such further action as may be reasonably necessary to enable that vessel to enter and remain, or to remain, in the harbour.").

The noble Lord said: This amendment substitutes for the existing Clause 4 of the Bill, which enables the Secretary of State, for the purpose of securing the safety of any person or vessel, to override directions given by the harbour master to exclude a vessel from harbour, a provision which is more tightly drafted but which is substantially to the same effect. In particular, the new clause makes it clear that the Secretary of State's directions must be given to the harbour master. As drafted, the Bill, if one reads line 1 on page 3, does not expressly state to whom the directions must be given, and this new clause to which I am speaking does that. Additionally, the powers contained in subsections (2) and (3) of the existing Clause 4 for the Secretary of State to pay compensation in certain circumstances are omitted. Their effect was uncertain and, as in the case of the existing Clause 2, it seems best to leave issues of legal liability to be determined in accordance with the principles of common law, as we have just discussed.

Also omitted is subsection (4) of the existing Clause 4. The provisions of this subsection did not add anything to the common law position. Clauses 5 and 6 of the Bill are ancillary to the special compensation provisions contained in Clauses 2 and 4(2) and (3). If these provisions are omitted, Clauses 5 and 6 should therefore be omitted also. I beg to move.

Lord Walston

Although this may look somewhat portentous on the papers before us, really it is nothing more than a redrafting of existing clauses with a view to simplifying them and simplifying the procedures. The various amendments to which the noble Lord, Lord Lucas, has spoken are a considerable improvement and I hope the Committee will support them.

On Question, amendment agreed to.

Clauses 4, 5 and 6 disagreed to.

Clause 7 [Saving for section 12 of Prevention of Pollution Act 1971 and section 511 of Merchant Shipping Act 1894]:

8.12 p.m.

Lord Lucas of Chilworth moved Amendment No. 7: Page 4, line 12, at end insert ("Oil").

The noble Lord said: With the leave of the Committee—I hope it will be helpful to them—in moving Amendment No. 7 I should like to speak also to Amendments Nos. 8, 9, 10 and 11. Amendment No. 8: Page 4, line 13, leave out from ("1971") to ("for") in line 14. Amendment No. 9: Page 4, line 15, leave out from ("risk") to first ("the") in line 18 and insert ("of oil pollution; and this subsection applies to any person authorised by the Secretary of State under subsection (5) of that section to exercise the powers of the Secretary of State under subsection (4) of that section as it applies to the Secretary of State. (2) Nothing in section 1 above shall affect"). Amendment No. 10: Page 4, line 19, leave out ("section 511") and insert ("sections 511 and 512"). Amendment No. 11: Page 4, line 22, leave out from beginning to end of line 25 and insert— ("; and this subsection applies to any officer or person who acts for a receiver of wreck under section 516 of that Act as it applies to such a receiver.").

All these amendments are purely drafting and technical to correct and clarify the provisions of Clause 7. Amendment No. 7 corrects an omission of description. On page 4, at line 12, reference is made to the Prevention of Pollution Act 1971. The word "Oil" has been omitted. The other amendments describe more accurately provisions of existing Acts which are preserved by this Bill. I beg to move Amendment No. 7.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Airedale)

With the leave of the Committee, I could put a single Question as to Amendments Nos. 8, 9, 10 and 11. The Question is, that Amendments Nos. 8, 9, 10 and 11 be agreed to?

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Offences]:

On Question, Whether Clause 8 shall stand part of the Bill?

Lord Lucas of Chilworth

Earlier in our consideration the noble Lord, Lord Underhill, raised a question about enforcement. He reminded the Committee that Clause 8 says: A person who without reasonable excuse contravenes or fails to comply with any directions given under section 1 above shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £25,000 and on conviction on indictment to a fine". The enforcement action is that which would apply in any other case in that the harbour master can direct that the vessel does not enter. If it does enter in contravention, then where necessary the harbour master will have the assistance of the ordinary process of criminal law, for example, the police, and will issue a summons. The courts will take it on board from there. In matters of this kind, normally summonses are served on the master in that he is the person more readily available, rather than on the agent or the ship owner. Normally he is on board the vessel. As I understand it, in maritime cases there is some speedy processing of summonses to ensure that the vessel or the alleged offender does not leave. In effect, the normal processes of law will apply.

It may be useful to add that if the harbour master directs that the vessel be removed and it is not removed, it follows that the vessel and the master are available to receive the summons, which would be served in the ordinary way. I hope that is helpful to the noble Lord.

Lord Underhill

I am grateful to the Minister for his explanation, but I do not think it meets the point I have in mind. Amendment No. 1, which the noble Lord moved, referred to "grave and imminent risk". There is a maximum fine of £25,000. But if there is imminent risk because there is danger and the vessel should really leave the harbour, we should remember that going through the court procedure is rather lengthy. I wonder if the Minister will have a look at this between now and the next stage to see whether or not there ought to be some means of enforcement, or at least attempted enforcement, by calling the police or other authorities to see that the vessel is removed. Certainly the £25,000 fine is a penalty, but going to the courts when possibly the harbour is already blocked does not stop it from being blocked in the meantime.

Lord Lucas of Chilworth

I shall be very pleased to take further advice. Probably it will be helpful to the Committee if I do this in good time so that I can write and set it out for the noble Lord. Perhaps I should add that if without reasonable excuse a person contravenes the directions given by the harbour master he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £25,000. But on conviction on indictment he can be subjected to an unlimited fine. The clause further provides that it may be a defence for a person charged thereunder to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Even if one looks into it further, we could not prosecute any further than under criminal law. If a vessel is partly removed and sinks, there are other remedies. What we are talking about here is the penalty for contravening this Bill, as it is now, or the Act I hope it will become shortly. If another injury is sustained which contravenes other merchant shipping Acts, then action could be taken under the provisions of those Acts. When one is talking about enforcement one has to recognise that it is enforcement only of these limited provisions. If the noble Lord still feels he would like further and more detailed explanation he knows very well that I shall be happy to provide it.

Lord Underhill

I am grateful to the Minister for offering to do that. I believe it is necessary. We are amateurs in this sort of field. It seems that to have the fine or the court action after there has been a blockage of the harbour is the wrong way round. I wonder whether, if the harbour master takes action, there is some way in which he can call the authorities to help him, and some provision whereby, if the master of the vessel thinks that action should not be taken, he can take immediate action to stop it. That seems to me to be the way round. In the meantime, the police and the other authorities—whatever they may be—should enable the vessel to leave the harbour (and I am talking about the case when a vessel should leave) rather than cause danger. Once the accident has happened a fine of £25,000 is a penalty on an individual, but in the meantime the harbour may be closed for a period. I hope that the Minister will kindly look into the matter.

Lord Walston

I do not think that I can add very much to this discussion, which is becoming very technical. The point which the noble Lord, Lord Underhill, has raised seems to me to go rather wide of what this particular Bill is proposing to do. Obviously, there may be occasions when a harbour master's instructions, even without this Bill, will be disregarded (although I do not think there is any record of that happening) just as undoubtedly there are occasions when a policeman's instructions to the driver of a car or lorry are disregarded. Surely the only recourse must be to the law thereafter. Just as the policeman cannot get into the lorry and drive the lorry away, so the harbour master—or even the police or the harbour police, if there are such people—cannot get on board the ship and drive it away. It seems to me to be something entirely beyond the scope of this particular Bill.

Clause 8 agreed to.

Lord Lucas of Chilworth moved Amendment No. 12: After Clause 8, insert the following new clause:

("Saving for Crown vessels. . No directions under section 1 of this Act shall apply in relation to any vessel belonging to Her Majesty, or employed in the service of the Crown for any purpose, including any such vessel in the possession of a salvor.").

The noble Lord said: This is a new clause, and I shall be asking the Committee not to accept the existing Clause 9, which this new clause replaces. The saving which it contains for vessels employed in the service of the Crown is comprehensive and goes a little wider than the existing Clause 9, which does not exclude from the scope of the Bill vessels being navigated in the course of fulfilling a contract with a government department otherwise than for defence purposes. There are, in fact, very few cases of this kind. The new clause does not include, as the existing Clause 9 does, an express saving for vessels being navigated by any visiting forces. The foreign vessels which should be excluded are visiting warships and other ships on government service. These are entitled to sovereign immunity, and it is therefore unnecessary to refer to them in this clause. I beg to move.

Lord Walston moved, as an amendment to Amendment No. 12, Amendment No. 13: At end insert— ("; or

  1. (b) any vessel which is a pleasure boat of 24 metres or less in length.").

The noble Lord said: This is an example of the donkey following the Lord Mayor's coach, because it is to add to the exempted vessels: any vessel which is a pleasure boat of 24 metres or less in length"; in other words, a pleasure yacht. This amendment has been suggested by the Royal Yachting Association, and as a former yachtsman I must say that I have great sympathy with it. It is inconceivable that a boat of this description could ever be a hazard to navigation, either by reason of its own defects or of the cargo that it is carrying. I hope that your Lordships will agree to accept this amendment to Amendment No. 12.

Lord Underhill

Again, I should like to ask a simple question. What happens if, in the opinion of the harbour master, the vessel that serves the Crown presents a grave and imminent danger? What happens if that is the opinion of the harbour master? Does the danger just continue?

Lord Lucas of Chilworth

The Crown vessel is exempt from the provisions of this Bill.

On Question, amendment to the amendment agreed to.

On Question, Amendment No. 12, as amended, agreed to.

Clause 9 disagreed to.

Clause 10 [Interpretation]:

Lord Lucas of Chilworth moved Amendment No. 14: Page 5, line 5, leave out from ("master" ") to end of line 13 and insert— ("includes any dock master or pier master who is not a subordinate of a harbour master and any deputy or assistant of a harbour master or of such a dock master or pier master;").

The noble Lord said: It may be for the convenience of the Committee if, in moving Amendment No. 14, I also speak to Amendment No. 15, because these are both drafting amendments. Amendment No. 15: Page 5, line 14, leave out from (""vessel"") to end of line 19 and insert— ("includes—

  1. (a) a ship or boat, or any other description of craft used in navigation;
  2. (b) a rig, raft or floating platform, or any other moveable thing constructed or adapted for floating on, or partial or total submersion in, water; and
  3. (c) a seaplane, a hovercraft within the meaning of the Hovercraft Act 1968 or any other amphibious vehicle.").

The definitions of "harbour master" and "vessel" are not changed in substance. It does not seem necessary to refer specifically to the Queen's harbour master in the definition of "harbour master". The definition of "master" has already been moved to Clause 1(2) since it is not used anywhere else in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 15:

[Printed above.]

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Citation and commencement]:

Lord Lucas of Chilworth moved Amendment No. 16: Page 5, line 23, at end insert— ("(3) This Act does not extend to Northern Ireland.").

The noble Lord said: Amendment No. 16 is fairly straightforward. It excludes Northern Ireland from the provisions of the Bill because under the Northern Ireland Constitution Act harbours are a "transferred matter" and are dealt with by the Northern Ireland Assembly. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

In the Title:

Lord Lucas of Chilworth moved Amendment No. 17: Line 6, leave out ("human life, property or") and insert ("the safety of any person or property, or risk of obstruction to").

The noble Lord said: Again, it may be for the convenience of the Committee if I speak also to Amendment No. 18: Amendment No. 18: Line 8, leave out from ("directions;") to end of line 10.

Both amendments to the Title are consequential upon the amendments which the Committee have just accepted to Clauses 1 and 4, and upon the omission of Clause 2. I beg to move.

On Question, amendment agreed to.

Lord Lucas of Chilworth moved Amendment No. 18:

[Printed above.]

On Question, amendment agreed to.

House resumed: Bill reported with the amendments.