Merchant Shipping Bill [H.L.]

HL Deb 26 November 1987 vol 490 cc744-89

3.53 p.m.

Lord Brabazon of Tara

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

Moved, That the House do now again resolve itself into Committee.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair].

Clause 29 [Owner and master liable in respect of dangerously unsafe ship]:

Lord Underhill moved Amendment No. 50: Page 22, line 16, leave out ("master") and insert ("manager of the ship and the employer of the master").

The noble Lord said: I do not know whether we shall take as short a time on this Bill as on the previous one. As can be seen, I am just recovering my breath.

With Amendment No. 50 it will also be convenient to take Amendment No. 58, because the proposal is to delete reference to the master in Clause No. 29 and to cover the master's responsibilities separately in the proposed new clause which is set out in Amendment No. 58.

Noble Lords will recall that various aspects of Clause 29 were dealt with in a number of speeches on Second Reading. I welcome some of the amendments to widen the definition of "owner". We consider that the main essential is to clear the position of the master. There is a need to look carefully at the position of the master. As the possessor of a Certificate of Competency he is particularly vulnerable when things go wrong. Yet in discharging many of his responsibilities he is acting as a corporate representative on board ship.

The master is not recognised as such in Clause No. 45 of the Bill, which deals with corporate responsibility. However, he is rendered personally liable under Clauses 29 and 30 for acts of omission or commission which are most likely to have been committed by others. This duality in the master's role was illustrated strongly during the "Herald of Free Enterprise" inquiry. The Bill really does nothing to clarify the position.

It must be emphasised that the master is an employee. He does not have the authority of a director of the owning company to purchase equipment or initiate major repairs and similar matters. It would appear both illogical and unjust to credit the master with the same resources as an owning or managing company to which he is subservient and to which he owes his livelihood.

This is made absolutely clear in Regulation 2 of the Merchant Shipping (Health and Safety: General Duties) Regulations 1984. The regulations set out what are the requirements of the employers regarding persons employed on board United Kingdom ships. They also, in particular make provision for the maintenance of plant, machinery and equipment, the use, handling, stowage and transport of articles and substances, the provision of information, instruction and training, the maintenance of the ship in a safe condition, the maintenance of a safe environment, and collaboration with other employers". That is a quotation from the explanatory memorandum to the order and deals with the responsibility of the employers towards persons who are employed on their various boats.

The responsibility under Clause 29(2)(a) for the provision of equipment is the responsibility, clearly, of the owner and manager. The master is unlikely to be in a position, for instance, immediately on joining the ship to assess the suitability of equipment or the condition and the suitability of any part of the ship. This also applies to its machinery and equipment.

It is absolutely impossible for the master to make such an assessment. He must rely upon the assistance of those on board, including specialist officers, and on surveyors of both the Department of Transport and the classification society. For full protection from penalty the master would need to call for a full survey prior to every sailing.

There are a number of amendments which have been tabled which deal with other aspects of Clause 29. Some of these amendments we shall be happy to support. The important issue is to deal with the question of the master. The position is also illustrated in the matter of the "Herald of Free Enterprise"; namely, what facilities there are to back up and to protect the master in his employment. I could deal with this at some length but to save time I will not do so.

I merely wish to say that if a master is to be given even greater responsibility without authority, then the Department of Transport must appoint an experienced nautical deputy surveyor general to provide support and understanding rather than simply compounding penal liabilities.

It will be noted that under this clause there are very heavy penalties not only upon the owner but also upon the master. On summary conviction they are as high as a £50,000 fine and also the possibility of imprisonment.

We suggest that these penalties are far too high. Reference to our new clause will show that these are deleted. We still say that there should be penalties but not to the degree proposed in Clause 29.

Therefore I beg to move Amendment No. 50 which will delete reference to the master. I regret that we have to do it this way because there are other amendments which amplify the position of the owner very satisfactorily and which we would like to support. We wish the master to be taken out of Amendment No. 29 for the reasons I have mentioned. We suggest that the master's responsibility should be placed in the terms of the new clause in Amendment No. 58. I beg to move.

4 p.m.

Lord Mottistone

I see the point behind the two amendments, Amendments Nos. 50 and 58, in the name of the noble Lord, Lord Underhill. I have some sympathy for them. However, I believe that it is extremely important that in this process we do not so emasculate the position of the master that his authority is undermined because he does not have the responsibility that he should have. For that reason I do not support these amendments.

I think that, in removing "master" altogether from the penalties that are contained in Clause 29, Amendment No. 50 goes much too far. As I said on Second Reading, in the Navy captains of ships are subject to imprisonment for hazarding their ships and I believe that that should be the case in the Merchant Navy. I do not believe that it is right that it should be different. I go so far as to say that the master's position should he strengthened rather than weakened, though this is not the time or the place to work towards that. Anything that weakens the position of the master must be wrong.

If it is right for the master to be spared imprisonment, I believe that it is only right that the owner, manager or charterer should similarly be spared. However, I do not believe that that is right. Therefore, I hope that the Committee will not support Amendment No. 50.

Amendment No. 58 is acceptable in part. One matter which is removed from subsection (2) is that the master is not to be held responsible for the suitability of the ship for its purpose. I sympathise with that because after all he does not choose the ship. I suppose he can say that he will not take a job with one shipping line and serve on a particular sort of ship, but that seems to me to be very far-fetched. I rather like the amendment and I hope that on Report we shall return to it.

The amendment also leaves out subsection (2)(d), which is the subject of my Amendment No. 53, which I shall take separately. I shall come back to that instead of trying to muddle it up with this one. It leaves the master subject only to a fine and not to imprisonment. I do not agree with that for the reasons I have already given.

Amendment No. 58 at subsection (4) inserts an additional defence paragraph (c) that: it was necessary to leave the berth to avoid damage or risk to human life". I like that and I think we may come back to that on Report. It deletes subsection (6) which I believe is rather obscure: Any reference in this section to going to sea includes a reference to going on a voyage or excursion". I think that is very strange. No doubt my noble friend has a good reason for including it, but if not, perhaps he will consider removing it in due course.

These two amendments are like the curate's egg. At present I do not agree with Amendment No. 50. If Amendment No. 50 is not agreed to, then there is not much point in much of Amendment No. 58. However, I hope that we shall return to some of the points made in Amendment No. 58 at a later stage in the Bill.

Lord Murray of Epping Forest

It is not the purpose of those who support this amendment to seek in any way to defend or protect a master who is negligent. It is right that a master who is negligent should be answerable for his proper statutory responsibilities and indeed his contractual responsibilities. However, it is equally right that we should recognise that the ultimate responsibility must rest with the owner.

My noble friend Lord Underhill has pointed out that a master is an employee. He is told what to do by the owner and therefore it is right to distinguish between the responsibility of the master on the one hand and the owner on the other, which is what the amendment seeks to do. They should not be lumped together as if they were co-responsible, since responsibility ultimately rests with the owner.

The purpose of this particular amendment is to establish that distinction. It is equally right that within the legislation we should provide for the proper responsibilities of masters. Subsequent amendments seek to do that. However, it should be done separately. I emphasise that in my view and in the view of those who support this amendment it is important that we should observe and maintain this clear distinction between the two cases and not, as it were, put them in the same boat.

Viscount Simon

I agree with what the noble Lord, Lord Murray, has just said. We need to recognise the different responsibilities of the owner or manager on the one hand and the master on the other. I do not go as far as the noble Lord, Lord Mottistone, because the master has to carry a very heavy responsibility 24 hours a day. It is no good saying that it is all up to the owners.

Difficult positions arise when the owner is nowhere near the ship and the master has to make the decisions. It is his responsibility because he is the master of the ship. To use the old phrase, it was the "Master under God". I do not believe that he can be relieved of that responsibility. I hope that there will never be cases in which courts think it necessary to send a master to prison unless there has been absolute dereliction of duty. I believe that we cannot remove the master's responsibility though I like the idea that perhaps his responsibility and that of the owner should be separately described, because they are not precisely the same.

Earl Attlee

I do not agree with the noble Lord, Lord Murray. If I heard him correctly, he said that the ultimate responsibility lies with the owner. When a ship is at sea the ultimate responsibility lies with the master and no one else. If the owner was on board and said, "Go to port", and the master said, "Go to starboard", the helmsman would go to starboard.

Lord Brabazon of Tara

We have had an interesting short debate on this amendment and I believe that we have all listened with care to what the noble Lord, Lord Underhill, and other noble Lords have said. I hope that the Committee will forgive me if I reply in some detail to this amendment because I think it is important and I want to clarify the Government's position on it. I shall start with some general points about the application of Clause 29 to owners, masters and managers, and I shall then go on to the specific points made by the noble Lord, Lord Underhill, in connection with the proposed new clause, going in turn through each respect in which that clause differs from the existing Clause 29.

Clause 29 in its present form applies not only to owners but to masters as well. I must stress that this is not a new feature of the clause: it is equally true of Section 44 of the Merchant Shipping Act 1979 which this clause is intended to replace. There are of course some matters listed in subsection (2)—such as unsafe loading—which it is well within the master's ability to influence. Of course it is the duty of the master to refuse to put to sea if his ship is unfit for any reason, and I think no one would disagree with that.

There is, however, another reason why owner and master are caught by this clause (as they are by Section 44 of the 1979 Act now) on exactly equal terms, even in respect, for example, of the penalties. I refer to the fact that there is a fine of £50,000 on summary conviction which is of course not normal for offences by individuals, as the noble Lord, Lord Underhill, mentioned. The reason is that the clause also applies to foreign ships, where the owner will often, indeed usually, be out of reach of the British courts. The practice then of course is for proceedings to be taken in a magistrates' court against the master and once the fine has been paid and the ship made fit, it can sail again. That then is the general reason why this clause needs to apply equally to owners and masters, but I shall run through the detailed points raised by the noble Lord, Lord Underhill in a moment.

First, however, I shall deal with the question of managers, and also the employer of the master. The Government have put down their own amendment, Amendment No. 54, on this matter, responding to points made at Second Reading by the noble Viscount, Lord Simon, and to representations made to the Department of Transport by the GCBS. It would make the owner and manager, where there is one, equally responsible for all the matters covered by this clause. That would also be the effect of the amendment of the noble Lord, Lord Underhill, in so far as managers are concerned. So far as the employer of the master is concerned, it is not obvious to the Government why the inclusion of such a person, if he is in fact different both from the owner and from the manager, is appropriate. In so far as Clause 29 (like Section 44 before it) catches the master for matters for which he may be personally responsible, like overloading, there is no need to include his employer; and in so far as the master of a foreign ship is caught, so to speak, as a proxy for a foreign owner who is out of the reach of our courts, it is unlikely that the employer will be any more within the reach of our law. Therefore, the Government consider that these particular words in the amendment do not serve any convincing purpose, and we are opposed to them.

I come now to the specific differences between the proposed new clause of the noble Lord, Lord Underhill, which is intended only to apply to masters, and the existing Clause 29. There are five apparent differences.

The first change is the deletion of the words "suitability for its purpose" in subsection (2)(a). The concept of "suitability for its purpose" is indeed a new point that was not in Section 44 of the 1979 Act. The Government have introduced it in order to catch ships whose equipment may be in a satisfactory condition but which may nevertheless be below the specification required for the purpose for which it is intended. For example, pumps may have inadequate capacity, or life-saving equipment may be of an inadequate design. These matters are generally caught and, indeed, defined more precisely by the Merchant Shipping (Passenger Construction and Survey) Regulations and the Government believe it is appropriate that they should also be included in the general offence under Clause 29.

I can well understand that it could be argued that the master is not responsible for the specification of the equipment carried on the ship—a point made by the noble Lord. But the fact remains that we need to ensure that the master of a foreign vessel has to answer a charge if the owner is not available.

The second difference between the new clause and Clause 29 is the deletion of subsection (2)(d). I would be wrong to pretend that the deletion of subsection (2)(d), whether from the proposed new clause applying to masters or whether, as proposed by my noble friend Lord Mottistone, from Clause 29 itself, would emasculate the Merchant Shipping Bill. It is there, as so often in legislation, to cover other possibilities than those before it in the list which either have not been thought of or which do not warrant a specific mention. The effect is to ensure that the words "unfit to go to sea" have their full natural meaning. To delete them would mean that even if a ship is clearly unfit to go to sea, the fact that its unfitness was on account of a reason not among those listed would mean it was not caught by this clause. It is not particularly easy to put together examples of how this paragraph might operate, but that is perhaps not surprising when the object is to cater for the unforeseen. One possibility that comes to mind is the ship might not be adequately equipped for a particularly hazardous cargo.

The third difference between the new clause and Clause 29 concerns the provisions on offences in subsection (3); namely, the reduction of the maximum fine for summary offences and the deletion of the possibility of imprisonment.

I have already referred to the question of the maximum fine. If the owner is beyond the reach of the law it is necessary to be able to levy the fine on the master and this has the effect of enabling the ship to be detained until the fine is paid. It is of course in practice usually paid by the owners or the people responsible for operating the ship. It is true that a sentence of imprisonment upon the master would be a rather draconian act. Nevertheless, if, for example, the master had been personally responsible for the overloading of the vessel it might conceivably be appropriate, and I believe it would be right, to trust the good sense of the courts on these matters.

The fourth difference between the new clause and the existing clause is the addition of the new defence in subsection (4)(c), that it was, Necessary to leave the berth to avoid damage or risk to human life". I would not deny that there might very occasionally be situations where this is necessary. However, I think this provision betrays a misunderstanding of the clause.

This clause, like Section 44 of the 1979 Act, creates an offence of having an unfit ship in port. It does not make it an offence for the ship to go to sea unfit. The reason for the clause to take that form is because in that way it can be enforced through inspections of ships in port. There is, therefore, nothing in the clause to make it an offence for the ship to leave the berth; for example, in the event of a fire on the quayside. But in so far as a court considered that the ship, being unfit, had gone to sea without the appropriate arrangements foreseen in subsection (4)(a) being made, it is obvious that in those circumstances the provision of paragraph (b) would apply; namely, that, it was reasonable not to have made such arrangements". Finally, the fifth difference between the new clause proposed by the noble Lord, Lord Underhill, and Clause 29 is the deletion of subsection (6). The effect of that would be to remove from the scope of this clause ships which operate in inshore waters; for example, ferries crossing the Solent to and from the Isle of Wight. My noble friend Lord Mottistone has an interest in that and I hope that with the answer I have given he will understand why we have included it in our new clause. Many of those ships carry large numbers of passengers, and that is why the Government have included them in Clause 29, even though they were not in Section 44 of the 1979 Act. There is no obvious reason why that particular item should be disapplied in relation to masters, in so far as the clause deals with certain matters that the master is in a position to influence.

The noble Earl, Lord Attlee, and the noble Viscount, Lord Simon, said that the responsibility must remain with the master. It has been an offence, at least since 1871, for a master knowingly to take an unseaworthy ship to sea. Clause 29 is merely a more modern form of that.

That concludes my reply to the amendment tabled by the noble Lord, Lord Underhill. I am sure that the Committee will wish to study what I have said. I hope that, on reflection, the noble Lord will feel able to reconsider the position at this stage, though I accept that he may wish to return in part, or otherwise, on Report. In the meantime, with the explanation I have given I hope that the noble Lord will withdraw his amendment.

Lord Underhill

I am grateful to the Minister for his very detailed reply. It will certainly give us opportunity to consider what he said in relation to some of the later amendments. In that respect the Minister has been extremely helpful. The remarks of the noble Lord, Lord Mottistone, also have been very helpful.

We thoroughly agree that some responsibility must remain with the master. The proposed new clause contains certain new points which are not in the Government's Clause 29. The responsibility of the master is clearly denned in the new clause. As my noble friend Lord Murray of Epping Forest said, the clear necessity is to differentiate between the responsibility of the master and that of the owner. Whether or not we add all the other words such as "charterer", and so on, is another matter. I think it should be done. We must clarify that responsibility, whatever definition we give of an owner.

That is the purpose of the two amendments. Unless we can clarify this matter today it will be very difficult to come back to it on Report. Once we have widened, as I hope we will, certain definitions under later amendments it will be difficult to come back on Report to reverse the situation. The Committee may feel that we ought to have the position of the owner clearly defined under one clause—Clause 29, which I hope will be suitably amended by some of the amendments we have tabled—and the position of the master clearly defined separately in the new clause contained in Amendment No. 58. That is an issue we ought to clarify this afternoon because, as I said, it will be difficult to return to the issue on Report.

Therefore, much as I sympathise with what the Minister said and although I accept some of his arguments I should like to see the position decided one way or the other. Does the Committee accept that the same clause should cover the owner and the master, or does it take the view which we have advanced that the responsibility of the owner should be clearly defined in one clause and the responsibility of the master clearly defined in another? I should add that in no way do we want to lessen those responsibilities. Therefore, on that basis I insist on pressing Amendment No. 50.

4.20 p.m.

On Question, Whether the said Amendment (No. 50) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 104.

DIVISION NO. 1
CONTENTS
Ardwick, L.	Dormand of Easington, L.
Birk, B.	Elwyn-Jones, L.
Carmichael of Kelvingrove, L.	Ennals, L.
Cledwyn of Penrhos, L.	Gallacher, L.
Cocks of Hartcliffe, L.	Graham of Edmonton, L.
David, B.	Houghton of Sowerby, L.
Dean of Beswick, L.	Hughes, L.

Jeger, B.	Ponsonby of Shulbrede, L. [Teller.]
John-Mackie, L.
Kagan, L.	Rea, L.
Kirkhill, L.	Scanlon, L.
Leatherland, L.	Sefton of Garston, L.
Listowel, E.	Serota, B.
Longford, E.	Stallard, L.
Milford, L.	Stoddart of Swindon, L.
Mulley, L.	Turner of Camden, B.
Murray of Epping Forest, L.	Underhill, L.
Nicol, B. [Teller.]	White, B.
Peston, L.	Williams of Elvel, L.
Phillips, B.	Wilson of Rievaulx, L.
Pitt of Hampstead, L.	Ypres, E.

NOT-CONTENTS
Airey of Abingdon, B.	Hooper, B.
Alexander of Tunis, E.	Inchcape, E.
Ampthill, L.	Inglewood, L.
Arran, E.	Jessel, L.
Barber, L.	Kinnaird, L.
Beaverbrook, L.	Lane-Fox, B.
Belhaven and Stenton, L.	Lauderdale, E.
Belstead, L.	Lawrence, L.
Bessborough, E.	Lindsay, E.
Borthwick, L.	Long, V.
Boyd-Carpenter, L.	Lucas of Chilworth, L.
Brabazon of Tara, L.	Mackay of Clashfern, L.
Brentford, V.	Marley, L.
Broadbridge, L.	Merrivale, L.
Brougham and Vaux, L.	Milverton, L.
Broxbourne, L.	Montagu of Beaulieu, L.
Buckinghamshire, E.	Mottistone, L.
Butterworth, L.	Mountevans, L.
Caithness, E.	Mowbray and Stourton, L.
Cameron of Lochbroom, L.	Munster, E.
Campbell of Alloway, L.	Murton of Lindisfarne, L
Campbell of Croy, L.	Northesk, E.
Carnock, L.	Nugent of Guildford, L.
Cayzer, L.	O'Brien of Lothbury, L.
Coleraine, L.	Orr-Ewing, L.
Constantine of Stanmore, L.	Pender, L.
Cork and Orrery, E.	Peyton of Yeovil, L.
Cottesloe, L.	Rankeillour, L.
Cox, B.	Reigate, L.
Cromartie, E.	Renton, L
Cullen of Ashbourne, L.	Renwick, L.
Davidson, V. [Teller.]	Rodney, L.
De La Warr, E.	St. Davids, V.
Deedes, L.	Saltoun of Abernethy, Ly.
Denham, L. [Teller.]	Sandys, L.
Dilhorne, V.	Selkirk, E.
Dundee, E.	Sempill, Ly.
Ellenborough, L.	Skelmersdale, L.
Elles, B.	Stockton, E.
Elliot of Harwood, B.	Strathcarron, L.
Elton, L.	Strathcona and Mount Royal, L.
Erroll of Hale, L.
Ferrers, E.	Sudeley, L.
Ferrier, L.	Swansea, L.
Fraser of Kilmorack, L.	Terrington, L.
Gardner of Parkes, B.	Teviot, L.
Glenarthur, L.	Thomas of Gwydir, L.
Gray of Contin, L.	Trafford, L.
Greenway, L.	Ward of Witley, V.
Gridley, L.	Wigram, L.
Havers, L.	Windlesham, L.
Hesketh, L.	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.28 p.m.

Lord Mottistone moved Amendment No. 51: Page 22, line 16, after ("owner") insert ("or as appropriate the demise charterer, ship manager or other persons responsible for safe management").

The noble Lord said: I shall speak also to Amendments Nos. 54 to 56 inclusive and 59 to 65 inclusive. Amendments Nos. 51 and 59 are similar but relate to different parts of the Bill. We are concerned that an owner who has put his ships into the hands of another will have a residual liability for matters over which he has no control. Ship managers have also expressed concern, as they fear that owners will not entrust their ships to them if the owner remains liable to imprisonment. Further, in some ship financing arrangements, the financier is technically the owner. He might be discouraged from entering into such an arrangement.

Subsection 4 might present a defence, but greater certainty is required. The wording used is specially chosen. The wording used by my noble friend in Amendments Nos. 54 and 55 is, in my opinion and that of the General Council of British Shipping, not so good. I hope that my noble friend will take serious note of that point. He has obviously had a look at it and will probably not be too congenial this time. However, he might think about it for the future.

Where a ship is managed by someone other than the owner, my noble friend's amendments make the ship's manager as well as the shipowner liable. It is unreasonable for the shipowner to be liable for certain aspects of the ship's operation when he has devolved those matters to a ship manager or bareboat charterer. United Kingdom ship management companies fear that the provision would drive ships away from their management.

The amendments tabled by my noble friend do not meet that point, hence the need for me to persuade him and the Committee that Amendments Nos. 51 and 59 are more suitable.

Turning now to Amendment No. 56, in view of the severe penalties to which shipowners and masters, and in certain circumstances also managers and demise charterers, would be liable under this clause, I believe that the same defences should be available as are provided to masters and seamen charged with an offence under Clause 31. Clause 31 provides a defence that loss, destruction, damage, death or injury either could not reasonably have been foreseen by the defendant or could not reasonably have been avoided by him. Amendment No. 56 seeks to reflect the Clause 31 defence in Clause 29. Perhaps that is all I should say at this point. I beg to move.

Lord Carmichael of Kelvingrove

As the noble Lord, Lord Mottistone, said, this group of amendments is being taken together. He has gone more fully into the matter than he did in the series of Amendments Nos. 60 to 64 in the name of the noble Lord, Lord Underhill, and myself. We believe that we can support the amendment of the noble Lord, Lord Mottistone, in preference to that of the noble Lord, Lord Brabazon of Tara.

However, Amendments Nos. 60 to 64 clarify the fact that the owner of a ship is not always the person who is responsible. For instance, a famous firm in Scotland with a very good reputation is a manager of ships. It had been shipowners in a big way at one time. It is fully capable of taking the responsibility. It is only correct that the owner and the manager should also be included in the Bill. I therefore agree with the noble Lord, Lord Mottistone, and disagree with the Minister.

Lord Greenway

Perhaps I may add a brief word of support to Amendment No. 51. The system of separate ship managers is perhaps more prevalent today than in the past. Managers should certainly be written into the Bill as is suggested.

Earl Attlee

I should like to support the amendment of the noble Lord, Lord Mottistone. I have only one slight worry. In the case of P&O, could it, as it has done recently, get out of any responsibility by saying, "It was not us but Townsend Thoresen, who admittedly is one of our subsidiaries but nothing to do with us"? Providing that the major company could not wriggle out on that basis, I am very happy to support this amendment.

Lord Brabazon of Tara

This is a substantial group of amendments, and reflects the fact that the Government, my noble friend Lord Mottistone, and the noble Lords, Lord Underhill and Lord Carmichael, have been trying to achieve much the same result, in respect of the two clauses, namely to catch the manager, when there is a manager. Nevertheless, there are subtle differences between what, in the Government's view, one should seek to achieve in these two clauses.

I start with the proposed amendments to Clause 29. I have already referred to the Government's Amendment No. 54 and the fact that it has a very similar effect to the amendment of the noble Lords, Lord Underhill and Lord Carmichael, so far as the manager is concerned.

Amendment No. 51 proposed by my noble friend Lord Mottistone, is very similar in effect to both those amendments. But it differs in an important respect, namely that the manager or charterer would in certain cases be responsible instead of the owner.

There is a wide variety of chartering arrangements in the shipping industry. The noble Lord, Lord Greenway, pointed that out. It was pointed out at Second Reading. In some such arrangements, where a ship is chartered for a short time, with its crew, it is probably appropriate that responsibility for the ship's fitness to go to sea stays mainly with the owner. But even in a case of demise charter the Government believe that there should be a duty upon the owner not to lease the ship to a disreputable or thoroughly incompetent managing company. So the clause does need to apply both to owners and to managers. But does it need to apply to owners and managers equally in all cases? The real difficulty comes back to the question of foreign vessels. For a foreign vessel in a British port, the precise arrangement may well be beyond the capability of the court to establish. The Government therefore see it as essential that full liability should remain with the owner, even where a manager has been appointed, so that proceedings can be taken. And even for a British owned and managed ship, the wording of my noble friend's amendment would open up a fertile ground for defence lawyers which would render this clause not stronger but weaker than the existing provision in the 1979 Act.

I hope therefore that the Committee will accept that the Government's amendment extending this clause to managers is the one that should be adopted, rather than that proposed by my noble friend Lord Mottistone.

Before leaving Clause 29, I come to the Government's Amendment No. 55. This is indeed linked to the "owner versus manager" question, though it is equally concerned with the "owner versus master" issue which we discussed in the last group of amendments.

Pagagraph 4(b) is one of two general defences against offences under this clause. As drafted, however—and the 1979 Act has the same fault—it could be interpreted as meaning that the master is not guilty if it is reasonable for him not to have made the arrangements; or the owner if it is reasonable for him not to have made them; or, now, the manager. That is clearly not satisfactory. It is no good the master saying he was not guilty because it was not his job to put something right before the ship sails, but the owner's, etc. I commend this amendment to the Committee.

I now come to my noble friend Lord Mottistone's related Amendment No. 56. It is in fact questionable whether it is reasonable to permit a ship to be unfit to go to sea merely on the grounds that the serious danger referred to in subsection (1), without which no offence is committed, cannot be foreseen or avoided; but also the drafting of the amendment is such that it is a sufficient defence that the defendant himself could not foresee or avoid the danger and, as I have explained, such a limitation would be unsatisfactory in particular for foreign ships. I hope therefore that my noble friend will not wish to press that amendment.

Finally I come to the amendments to Clause 30. That is the Government's, my noble friend's, and the amendments in the names of the noble Lords, Lord Underhill and Lord Carmichael. The general considerations in connection with this clause are much the same, although the effect that one needs to achieve is subtly different. The objective of the amendment required for this clause should be to require the owner to take all the steps that it is reasonable for the owner to take, and the manager to take all the steps that it is reasonable for the manager to take. There will be some steps that it is reasonable that they both should take. Neither the amendment proposed by my noble friend, nor those proposed by the noble Lords opposite, would achieve quite this effect, and I therefore commend to Members of the Committee the government amendment.

I hope with that explanation that my noble friend will be persuaded that what the Government propose is the best.

Lord Mottistone

I am indeed grateful to my noble friend the Minister for explaining the fairly complicated position so fully. I am not wholly persuaded by his arguments, although rather more persuaded by the arguments on Amendments Nos. 51 and 65 and Amendment No. 55, than by his arguments in relation to Amendment No. 56. However, I shall have to read very carefully what he had to say. I shall reserve the right to come back on Report should there be an obvious loophole that my noble friend has not foreseen. With those remarks I beg leave to withdraw my amendment.

Lord Underhill

Before the noble Lord finally withdraws his amendment, will the Minister explain a little more fully Amendment No. 54? I am grateful for the notes which the Minister supplied to us today explaining the government amendments. However, I find that in relation to Amendment No. 54 the notes read as follows: Government amendment Number 54 would extend the liability created by this clause to managers, making a manager guilty of an offence whenever the owner is guilty of that offence". Does this mean that people in these other categories to which the noble Lord, Lord Mottistone, referred can only4be found guilty of an offence if the owner is guilty of an offence? Are there not circumstances where a manager, a charterer or a lessee might be responsible for an offence, but not the owner? Can the Minister elaborate on that because it seems to me that it is something we should consider before we come to Report stage?

Lord Brabazon of Tara

I shall try to elaborate. We are trying to say that both the owner and the manager are potentially liable for an offence. As I have said, there are many different sorts of chartering or managing arrangements in the shipping world. It will therefore be up to the courts at the end of the day to apportion the blame between the owner and the manager. The owner may not be blamed at all. I should like to look again at what the noble Lord, Lord Underhill, has said, but that is my explanation at this stage.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 52: Page 22, line 19, leave out ("suitability") and insert ("unsuitability").

The noble Lord said: This is purely a drafting change. It is clearly a little illogical to talk about a ship being unfit due to the suitability of the equipment for its purpose rather than its unsuitability. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 53: Page 22, line 25, leave out paragraph (d).

The noble Lord said: I am aware that my noble friend, in speaking to an earlier amendment, said that he does not like this amendment, but I still wish to move it. I believe that the catch-all wording of the clause is a bit too all-embracing. It is not really convincing for it to be said that in the future circumstances may arise which people cannot think of now, because one could say that about practically every law. A little clause such as this could be stuffed into all sorts of criminal liability sections of Bills, and that is not at all reasonable.

The criminal law should enable a defendant to know beforehand that what he is doing is illegal. The subsection does not give him that common law advantage, which he could reasonably expect to have. When my noble friend was commenting on this earlier he said that a ship might not be suitable for carrying a hazardous cargo. In that case the wording of subsection (2)(a), which has now been changed to "unsuitability", would apply. If a hazardous cargo was carried in a ship which was not suitable, the owner and master could be taken to court under that subsection. I should have thought that that would cover a lot of ground for other things. I should like my noble friend to consider this again and not try to provide both belt and braces, which in my opinion is unreasonable and un-British. I beg to move.

Lord Brabazon of Tara

I touched on the deletion of subsection (2)(d) when I dealt with a previous amendment. As I explained, I did not think it would have a catastrophic effect on the Bill. The Government believe that subsection (2)(d) is beneficial in that it caters for the unforeseen. I do not believe either that it is as unpredictable in its effects as my noble friend has suggested. It catches everything else that might render the ship unfit to go to sea without serious danger to human life. That is no more sweeping in its effect than it should be. I hope, therefore, that my noble friend will agree that the provision has a certain logic about it, even though its detailed application may not be anticipated in advance.

However, I agree to consider this matter again before the next stage, but I cannot promise to be particularly forthcoming to my noble friend about it.

Lord Hailsham of Saint Marylebone

Might it not be that my noble friend who proposed this amendment or my noble friend who replied to it have not really applied their minds to the problem of which of the other subsections of this clause would apply to a roll-on roll-off ferry which went to sea with its doors open?

Lord Mottistone

I think that that comes under the heading of "hazarding". I should not have thought that subsection (2)(d) would cover that. Subsection (1) covers it by the words: it is not fit to go to sea without serious danger to human life". I am grateful to the noble and learned Lord for drawing our attention to that. I am also grateful to my noble friend the Minister for agreeing to consider this point. I shall consider also what he said and perhaps we may come back to this on Report if we cannot resolve the matter satisfactorily in the meantime.

Lord Hailsham of Saint Marylebone

With great respect to my noble friend, he has again overlooked the fact that what occurs in subsection (1) is expressed in the subsection to be subject to the matters in subsection (2).

Lord Brabazon of Tara

Perhaps I may assist my noble and learned friend in the example that he gave of a ro-ro ship setting sail with its bow doors wide open. I believe my noble and learned friend will find that that offence is much better and fully catered for when we come to the next two clauses.

Lord Mottistone

In conclusion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Brabazon of Tara moved Amendment No. 54:

Page 22, line 28, at end insert— ("( ) Where the ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), this section shall apply to that person as it applies to the owner.").

The noble Lord said: I spoke to Amendment No. 54 with Amendment No. 51. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 55: Page 22, line 37, leave out ("not to have made such arrangements") and insert ("for such arrangements not to have been made").

On Question, amendment agreed to.

[Amendment No. 56 not moved.]

Lord Mottistone moved Amendment No. 57:

Page 23, line 3, at end insert— ("( ) In the event of proceedings against a master of a ship under this section, the court shall be assisted by a nautical assessor with current experience in command of a ship similar to that concerned with the proceedings.").

The noble Lord said: This amendment springs from a point that I made on Second Reading, which is that when a court-martial takes place of a captain of a ship who has hazarded his ship, the court so far as possible consists of active ships' captains, some of whom are commanding the same sort of ship as the one involved in the case being considered by the court. It seems reasonable that a similar sort of safety should be given to merchant ships' captains who may appear before a court under this clause or under Clause 31, to which Amendment No. 74 applies. I am speaking also to that amendment.

Since then my noble friend the Minister has written me a long letter saying, no. He said no because the criminal courts are involved. Nautical assessors are well known in the civil courts. The Admiralty Court frequently has them and there are other occasions in the civil courts when it is quite understandable and reasonable to do this. My noble friend's argument is that the ship's master who is invited to sit with the judge would not understand the law and so he would be a very inadequate adviser at the best of times, and that judges are so frightfully clever that they must be able to understand anything without special advice.

I am not altogether happy with either of those points. Ships' masters do have disciplinary responsibilities. They are not perhaps as extensive as those of the captains of naval warships but they have such responsibilities and so they would have experience of sitting in court. I am not altogether happy with my noble friend's comments. I should be grateful therefore if he could tell us his arguments, although perhaps not as lengthily as in his letter to me. I shall give thought to bringing this back on Report because of the unsatisfactory nature of the information I have had so far. I beg to move.

Lord Carmichael of Kelvingrove

We have not had the advantage of the words of the Minister. We did not get a copy of the letter as it was not our amendment. In a highly specialised area such as the trial of a captain or a master of a ship who is going before an ordinary court there should certainly be a nautical assessor. This links up with what my noble friend Lord Underhill was saying earlier about the importance of some back-up for the master of a ship in these circumstances. If we can have a brief explanation from the Minister we shall be in a position to decide when we reach Report whether or not we can support the noble Lord, Lord Mottistone.

Lord Brabazon of Tara

My noble friend raised this point at Second Reading and I have written to him at some length in response to the point he raised then. I still have to say that we oppose the amendment.

The reasons are as follows. The courts frequently hear cases of technical complexity on all manner of subjects, among which fraud is the most frequently cited example; but there are also, for example, cases arising from the Health and Safety at Work Act that centre on industrial processes which are also difficult to understand. It is a strength of our judicial system that the prosecution has to explain exactly how an offence was committed, to the satisfaction of either magistrates or a jury before a conviction is recorded against the accused.

In formulating this explanation it may become apparent that the alleged criminal offence was in reality no more than an error of judgment on the part of the individual. It is indeed a greater discipline upon the prosecution to have to make its case out to the satisfaction of a person who is not an expert in the field concerned. A court should not be influenced by a knowledge of the practices within the industry but only by the facts as they relate to the law under which the accused is being charged.

We are talking here about criminal offences under the Act. When we come to formal investigations, a panel of experts is involved. That really is a better comparison to make with a court-martial in the Royal Navy. I should also point out to my noble friend that it is possible for the defence or the prosecution to call expert witnesses in these matters. To accept such an amendment has implications which could go well beyond this Bill and therefore it would not be the right way to proceed this afternoon. I hope my noble friend will withdraw the amendment.

Lord Mottistone

My noble friend's speech was more convincing than his letter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 29, as amended, shall stand part of the Bill?

Viscount Simon

Before we pass this Motion I should like to say something about Clause 29. During Second Reading I said that I thought Clause 29 and the following two clauses needed careful consideration. They have had it in the form of examining various details as we went through, but to my mind the wording of this clause is quite inadequate. Perhaps "inadequate" is not the right word. I shall come to the point.

The clause says that if a ship is in an unseaworthy condition in a port the master, the captain, the charterer or whoever, has committed an offence. I do not know how that will work. It is just a matter of fact if the ship is in port. I shall give an example. If a ship has suffered an engine breakdown at sea the ship will be brought as quickly as possible and as safely as possible into port. A salvage tug may have to be used. I have known cases where the ship's engineers, who are ingenious people, have been able to make the engines provide sufficient power to bring the ship into port. What will happen when it arrives in port? The owner of the ship will be immediately told that he has committed an offence. Surely the safest place for a ship that is not seaworthy is in port, and not anywhere else. The offence should be taking an unseaworthy ship to sea. Curiously enough, this was the law.

I have been doing some rather amateur dredging through the Merchant Shipping Act 1979. The last subsection of Clause 44 says: Section 457 of the Merchant Shipping Act 1894 [under which it is an offence to send an unseaworthy ship to sea] shall cease to have effect". I have no idea why this was done. It seems to me that there is a much more logical explanation of where the offence lies.

Clause 29(4) says: It shall be a defence in proceedings for an offence under this section to prove that at the time of the alleged offence— (a) arrangements had been made". I am glad to see the noble and learned Lord, Lord Hailsham of Saint Marylebone, in the Committee because I want some advice on what this clause means. It says: It shall be a defence in proceedings for an offence under this section". I would have assumed that the defence could be put forward only if there were proceedings and that either the owner or the master or both were brought into court. This would seem to be a great waste of the court's time. I do not know whether that is the precise position.

I shall listen to what the noble Lord has to say in reply, but it seems to me that the right thing to do is to take the whole clause away. Before the next stage, or before the Bill goes to another place, the Minister should think of an alternative. It seems extraordinary that the offence consists of not doing anything but a ship which is unfit to go to sea remaining in port. I should have thought that that is exactly what it ought to do.

5 p.m.

Lord Brabazon of Tara

The noble Viscount puts an interesting proposition to the Committee and it is one that I should like to study. However, I do not propose to withdraw the clause at this stage. The clause is closely based on Section 44 of the 1979 Act. In 1979 it was changed from the original in order to make it easy to enforce through inspections in ports. I should like to study what the noble Viscount said and write to him between now and the next stage.

Clause 29, as amended, agreed to.

[Amendment No. 58 not moved.]

Clause 30 [Owner liable for unsafe operation of ship]:

[Amendments Nos. 59 to 64 not moved.]

Lord Brabazon of Tara moved Amendment No. 65:

Page 23, line 32, at end insert — ("( ) Where any such ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), any reference to the owner of the ship in subsection (1) or (3) above shall be construed as including a reference to that person.").

The noble Lord said: I spoke to this amendment with Amendment No. 51. I beg to move.

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31 [Conduct endangering ships, structures or individuals]:

Lord Brabazon of Tara moved Amendment No. 66:

Page 24, leave out lines 24 to 30 and insert— ("(b) omits to do anything required—

1. (i) to preserve his ship or its machinery, navigational equipment or safety equipment from being lost, destroyed or seriously damaged, or
2. (ii) to preserve any person on board his ship from death or serious unjury, or
3. (iii) to prevent his ship from causing the loss or destruction of or serious damage to any other ship or any structure, or the death of or serious injury to any person not on board his ship.").

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 67 in the name of my noble friend Lord Mottistone.

Those noble Lords who have compared Section 27 of the 1970 Act, as proposed to be amended by Clause 31, with Section 27 as it now stands, will have observed that the main change in subsection (2)(a) is that the offence has been widened to include acts that endanger ships other than the defendant's own ship, structures, and persons not on board his own ship. That is an entirely reasonable change covering, for example, dangers to dinghy operators and even swimmers, and is, I hope, not controversial.

However, if one looks at subsection (2)(b) which deals with omissions, one sees that it goes rather further, and, in effect, requires masters and seamen to salve other vessels, and to rescue persons not from their own ship. That was unintentional. Salvage law is complicated enough already and the duty to come to the assistance of individuals is dealt with entirely adequately by Section 6 of the Maritime Conventions Act 1911 and by Section 22 of the Merchant Shipping (Safety Convention) Act 1949.

The Government's amendment therefore removes these duties, to salve and to rescue, which were created inadvertently in the Bill as introduced, leaving these matters as they are dealt with in existing legislations.

Turning briefly to the amendment proposed by my noble friend, it deals with only part of the problem and I hope, therefore, that he will agree to withdraw it in favour of my amendment.

Lord Mottistone

My Amendment No. 67 was tabled to ensure that the subsection did not make the salvage of property compulsory, as it appeared. My noble friend has explained the situation and his amendment more than covers the matter. I am happy not to pursue my amendment and let the case be borne by Amendment No. 66.

On Question, amendment agreed to.

[Amendment No. 67 not moved.]

Lord Underhill moved Amendment No. 68: Page 24, line 36, after ("or") insert ("gross").

The noble Lord said: I understand it has been agreed that with Amendment No. 68 we shall deal with Amendments Nos. 69 to 71, 73 and 75 to 77. In trying to piece together the different amendments I hope that I shall not be unduly long, but the Committee will expect me to explain these matters.

Under subsection (3)(a) the Bill provides that the act or omission was deliberate or amounted to a breach or neglect of duty. In Amendment No. 68 we are attempting to put the word "gross" in front of the words "neglect of duty". The imposition of the heavy penalties to which persons are liable should be limited to wilful default; otherwise the master is exposed to penalties for acts or omissions which he has not committed personally. The same principle is covered by Amendment No. 75.

We regard Amendment No. 69 as the most important in the group; it is to delete subsection (4). It deals with acts of commission or omission by seamen which lead to death, serious injury to persons, or to the loss of a ship, or to serious damage to a ship or its equipment. Its inclusion in the Bill follows the tragic loss of the "Herald of Free Enterprise". It is accepted that acts of omission or commission which lead to the consequences described should be subject to legal punishment. Such offences are already catered for in the Merchant Shipping General Duties Regulations 1984, and under the Health and Safety at Work Act all employees are liable to the same punishment. It is being proposed in the Bill that seamen should be liable to stiffer penalties for offences which are rooted to the same principle of acts of omission or commission. We believe that to be unfair as there must be many occupations ashore where employee negligence can cause death, injury or damage on a large scale.

The subsection refers to a seaman discharging or failing to discharge his duties as a result of which certain serious consequences follow. This presumes that a seaman is fully conversant with all his actual or implied duties, and with how those duties should be discharged under both normal and unusual circumstances.

In the "Herald of Free Enterprise" inquiry there was evidence showing that individuals may have conflicting duties or that they may be unaware of their duties because these have never been properly explained to them. A seaman's duties are not necessarily written down; nor is he necessarily made aware of all his duties by way of training, instruction or information given.

The "Herald of Free Enterprise" tragedy confirmed that events which should have been foreseen, and for which precautions should have been taken, were totally ignored by those ultimately responsible. Yet if Clause 31 had been law the seamen on board would have been held liable and those responsible in an indifferent shore management would have gone unpunished. These proposals seek to secure the enforcement of statutory duties in respect of the safety of seamen and ships under the threat of massive penalties.

Amendment No. 70 is consequential on Amendment No. 69. Amendments Nos. 71 and 73 are also consequential. Amendment No. 75 inserts the word "gross", as I mentioned when dealing with the first amendment.

Amendment No. 76 deletes subsection (b) at the top of page 26. There is a correction to Amendment No. 72 with which we shall deal at a later stage.

Turning to Amendment No. 76, the clause fails to define the phrases "good management" and "safety of operation" which are included in the clause. Without a clear definition and understanding it is not possible for masters to identify the duty imposed on them under this clause. It has been suggested that offences under statutory instruments would constitute a failure to discharge duty under Clause 31(8)(b). Since potential offences are numbered in hundreds—I understand that to be a fact—it is unjust to expose masters who are defined as employees under Statutory Instrument No. 408 to double penalties under statutory instruments and under Clause 31(8)(b). This clause reinforces the need for the transfer of safety functions to the Health and Safety Executive for a thorough and fresh look at the penal environment under which some United Kingdom employees—the masters—currently work.

Clause 31(8)(b) confirms the view that the number of nautical surveyors should be increased and not decreased as proposed at present and that the senior post at the deputy surveyor-general level should be filled by a person from the nautical discipline with the experience of command. Without the support and understanding of nautical surveyors and nautical professionals within the departments, masters in particular are totally exposed under the requirements of the subsection that we are seeking to delete.

The Minister made clear at Second Reading that Clause 31 applies, as does Clause 29, to all ships and not just roll-on roll-off ships. Masters and officers do not work under a system of statutory limitation regarding hours worked. I have before me a document which gives details of the various number of hours that are worked. The problem of fatigue, which is now before the International Maritime Organisation, is a question of importance. Will the Minister confirm that in the light of the responsibilities, duties and penalties under Clauses 29 and 31, on behalf of the United Kingdom he will actively support the introduction of a statutory limitation on hours for masters and officers under national legislation and will seek an extension to the powers of the International Maritime Organisation by amendment to the standards of training, certification and watchkeeping conventions?

Finally, there is Amendment No. 77, which is consequential upon the other amendments. I am sorry that I have taken so long to explain these amendments but, as I pointed out, subsection (4) is regarded as vital both by the National Union of Seamen by the officers' union, NUMAST. I beg to move.

5.15 p.m.

Lord Brabazon of Tara

My Lords, I am grateful to the noble Lord, Lord Underhill, for focusing the attention of the Committee on the purpose of this clause by means of this series of amendments. Having said that, I must add that the effect of these amendments, if accepted by the Committee, would be to remove totally the main purpose of this clause. It would make the general statutory duties of masters to see to the safety of their ships, passengers and crews not stronger, as is the intention of this clause, but materially weaker than they are at present under Section 27 of the 1970 Merchant Shipping Act.

I should first perhaps explain what led the Government to propose this substantial revision of Section 27 of the 1970 Act in the first place. The Committee may be aware that the report of the court of formal investigation into the loss of the "Herald of Free Enterprise" stated the court's clear view that no statutory offence had been committed on that occasion. While I should be most reluctant to go into any great detail on this question at a time when the Director of Public Prosecutions is considering the papers from the inquest into this tragedy, I can say that the Government view the present state of the law as unsatisfactory. The Government consider that if members of a ships's crew operate a ship in such a manner that it endangers the ship and its passengers, that should (subject to certain reasonable defences) be an offence. To bring that about, the Government are proposing changes in the law on two fronts.

First, we are making certain operations that are crucial in the running of a ship, if they are not carried out properly, the subject of specific offences by statutory instrument. One such proposed offence, of which the Committee will no doubt be aware, will be failure to close the vehicle deck doors on departure from the berth; but there are others under consideration.

However, it is not possible to deal with all such matters in this way. Specific statutory instruments cannot cover all possible operating errors, and we therefore propose through this clause to make it a general requirement for a crewman to exercise due diligence in the carrying out of his duties in so far as it affects the safety of the passengers and the ship.

That is the purpose of this clause, and I shall now explain how it is laid out. It is considerably longer than the present Section 27, but that is partly because it is set out differently. Subsections (1), (2), (3) and (5) and the amplification of "breach or neglect of duty" in subsection (8) cover more or less the same ground as the original Section 27. The main changes to these parts are as follows: subsection (1) extends the section to cover foreign vessels; and subsection (2), as we have already seen, widens the clause to cover acts and omissions endangering ships other than a seaman's own, and structures and persons not on board the seaman's ship. The new subsection (7) requiring the DPP's authority to institute proceedings is appropriate in view of the extension to foreign ships where international conventions may have to be observed when determining whether there should be prosecutions.

These changes are, in the Government's view, worth while and important but not fundamental. The basic limitation upon this part of the clause is the condition imposed by subsection (3)(a). It covers acts and omissions that are deliberate or amount to a breach or neglect of duty. Section 27 has generally been regarded by the courts as dealing with offences of a disciplinary character (particularly malicious acts or omissions which may not even be connected with a seaman's duties) and also allowing prosecutions under primary legislation for acts and omissions which constitute breaches of regulations.

The only amendments proposed by the noble Lord, Lord Underhill, that bear on this part of the clause are the proposed insertion of the word "gross" before "neglect" at two points. The Government are not attracted to those amendments because, as is quite evident, it would take out of the scope of this subsection cases of neglect that were not gross neglect, and the Government believe that that would be wrong.

Amendment No. 73, the amendment proposed by the noble Lord, Lord Underhill, to subsection (7) of this clause, would make it an offence for a seaman on a foreign ship to endanger his own ship, machinery or equipment, as well as—as at present drafted—other ships, structures or persons. The Government have given careful consideration to the position of seafarers serving in foreign ships. While we were concerned to provide adequate powers to deal with those who wilfully or negligently endanger lives or property under British protection, we were also anxious to preserve the accepted doctrine that the supervision of each vessel is primarily a matter for the state of registry. Against that background we believe that it would be inappropriate for the Government to take powers to deal with an incident on a foreign ship which endangered only that ship or its equipment, in the same way that we would not wish British seafarers in foreign parts to be affected by similar legislation dealing with the ship on which they are serving.

I come now to the more fundamental changes to Section 27, which are to be found in subsections (4) and (6) and the definition of the duties of the master in subsection (8). The Government believe that these changes form a balanced package. Subsection (4), when taken with subsection (6)(b), is the new provision which requires all crew members to carry out their duties with due diligence in so far as they may affect the safety of the ship, its machinery and passengers. I emphasise that such is the impact of subsection (4); namely, to ensure that master and crew exercise due diligence in the carrying out of their duties. Is that really unreasonable? The penalty on summary conviction is the scale maximum of £2,000, which is the same as under the Health and Safety at Work Act.

Subsection (6) as a whole includes a range of new defences, not only to matters that would be offences under the new subsection (4) but also to acts and omissions that would be offences under subsection (2); that is, under the existing Section 27. These are defences of having taken all reasonable steps to avoid a breach, of unforeseeability, and unavoidability. They have been campaigned for by seafarers' unions for some years, and the Government believe that in the context of the package of measures in this clause they are reasonable and just.

Finally, in subsection (8) it is for the first time set out in a statute that a master's duty includes overall responsibility for the good management and safe operation of the ship. The Committee may find it astonishing that this is not already in the statutes, but to the Government's best knowledge it is not. The 1894 Act, for example, uses rather similar language to define who is the master, but that is not the same as saying that this shall be the duty of any master.

In passing, I should reply to the proposal of the noble Lord, Lord Underhill, that references to good management be deleted. A ship that is not well managed by its master in terms of having clear lines of command and making sure that everyone knows what his duties are is not a safe ship. There is a limit to how much a master can achieve in this respect, and the defences in subsection (6) recognise that. There is an important role for shipowners and management companies which is now recognised in Clauses 29 and 30. But the Government do not think it inappropriate to refer to the role of the master in this respect explicitly in subsection (8).

I have spoken at some length on this amendment. The noble Lord, Lord Underhill, asked particularly about statutory limitations on hours of work for masters and crew. They must be able actively to manage their vessels at any time. Indeed, this may be prolonged during fog or storms. We would therefore oppose any statutory limitations on the hours of work of masters.

That brings me to a further point which the noble Lord, Lord Underhill, raised: how far does this clause single out seamen for special treatment in a way that workers in other industries are not singled out? Certainly Section 27 treats workers on ships differently from workers in other walks of life. But seafarers are in a position of special responsibility, with many lives depending on their carrying out their duties safely. Bus drivers and lorry drivers are subject to the road traffic Acts. As regards airlines, aircrew are subject to the air navigation orders in respect of some of their activities. However, the main difference in that sector is that they are subject to very close and detailed regulation on all aspects of flying aircraft and maintenance, through operating procedures approved by the Civil Aviation Authority. I am not persuaded that criminal law should not apply to the actions of ship crew members.

In conclusion, I emphasise that this clause has been the subject of long and careful consideration by the Government, before the Bill was introduced. I believe that it strikes the right balance and deals promptly with the concerns expressed in the debate. I hope that the noble Lord, Lord Underhill, will decide not to press this amendment but will reflect on the matter after the very full explanation that I have given of this clause this evening.

Lord Underhill

Once again, I am grateful to the Minister for his detailed reply. We are covering many different amendments and his replies will be very helpful when considering whether or not we will come back to these issues either in the same form or in a different form on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 69 to 71 not moved.]

Lord Underhill moved Amendment No. 72:

Page 25, line 31, at end insert— ("( ) In the event of a defence under subsection (6) above being upheld, it shall be unlawful for an owner to take any disciplinary action against the master or crewman concerned.").

The noble Lord said: We have not debated this amendment. Perhaps I may point out that in the first line of the amendment as it appears on the Marshalled List "subsection (b)" should read "subsection (6)". I think this may be due to an error on my part when I passed this amendment up to the Public Bill Office. I hope the Minister has been informed that we drew attention to that. I am grateful to the Minister for setting out in the letter that he sent me information about industrial tribunals and unfair disciplinary actions. He also said that he would study this amendment against that background. Perhaps I may add a few points.

The whole point of Clauses 29, 30 and 31 is that ships can be rendered so unsafe that they run the risk of becoming unseaworthy, whether at sea or in port. There is, therefore, a need—as was demonstrated recently when the crew of a cross-Channel ferry protected themselves by drawing the master's attention to the fact that the ship was overloaded with passengers—to give seamen the countervailing right to stop a particular activity if it is contrary to regulations or accepted practices to such an extent that lives are at risk.

Under Section 31(6), seamen are obliged to obey lawful commands but are not always in a position to determine whether commands are lawful or otherwise. It should therefore be a defence for a seaman that he acted, or failed to act, because of his having been given what he deemed to be a lawful command. Amendment No. 72 says: In the event of a defence under subsection (6) above being upheld, it shall be unlawful for an owner to take any disciplinary action against the master or crewman concerned". It may be argued that no owner or person operating the boat would take such action. But we believe it should be written into the Bill that it would be absolutely unlawful for any disciplinary action to be taken after a defence has been upheld. I beg to move.

Lord Brabazon of Tara

I am grateful, first, for the noble Lord having notified me that the amendment was incorrectly printed on the Marshalled List. I have been able to take that into account in my reply. I understand the concern of the noble Lord that seafarers should not be disciplined by their employers if they have been acquitted of a criminal charge of failing to perform their duties in a proper manner. However, I am afraid I cannot accept the amendment.

I hope the Committee is agreed that to arraign someone before a criminal court is a serious matter. There may be instances where a court finds that a case for a criminal conviction has not been made out. Nevertheless, it is clear that some sort of industrial disciplinary action is justified. If the employee is aggrieved by such action on the part of his employer he has the right of recourse to an industrial tribunal. This is a body which has been specially formed to try to resolve such disputes between employers and employees. I think we would be setting a dangerous precedent if we were to accept this sort of amendment.

One particular difficulty which I think there would be with it is the definition of disciplinary action. It would be difficult to find properly what that was in law. I hope that with the explanation I have given and the fact that the industrial tribunals exist specifically to deal with this kind of matter the noble Lord will be able to withdraw the amendment.

Viscount Simon

I think it would be a pity to let this eminently sensible suggestion go by simply because of the difficulties on definition. Surely that can be overcome in one way or another. I thought that the noble Lord, Lord Underhill, made a very good case here. It seems rather unreasonable that a man is found not guilty by a court and then the employer is going to discipline him.

Lord Brabazon of Tara

I have tried to cover that point in my reply. I said, first, that it is quite possible that whereas a person did not do enough to get a conviction it could still be clear that some sort of industrial disciplinary action was justified. Secondly, he also has recourse to the industrial tribunal, which, as I have already said, is the body specifically set up to deal with this sort of matter.

Lord Mottistone

I agree with my noble friend that this would set a very difficult precedent. I hope that the noble Lord, Lord Underhill, will withdraw this amendment. The safeguards mentioned by my noble friend, through the industrial tribunals are fully established. It would be very difficult in personnel terms.

Lord Underhill

I am grateful for the support given to this amendment by the noble Viscount, Lord Simon. I shall certainly study very carefully what the Minister has said. He put up justification why subsection (6) should still remain. We will study that with care and see what happens at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 73 to 77 not moved.]

5.30 p.m.

On Question, Whether Clause 31, as amended, shall stand part of the Bill?

Lord Underhill

I should like to say a few words on Clause 31 stand part. This is a very important clause in the Bill. The Minister referred in one of his replies this afternoon to Section 27 of the 1970 Act. It would appear that that section provides the basis upon which this clause has been drafted. So it may be worth while seeing how the matter was viewed by the Department of Transport as recently as September 1987—and we are only in November now.

In a consultative document issued in connection with increasing the penalties under the Merchant Shipping Health and Safety (General Duties) Regulations 1984 No. 408, the department stated—and I am quoting from the document— Unlike the position under the Health and Safety at Work Act (1974) the penalties under the general duties regulations vary in amount reflecting the different working conditions at sea and in particular the existence of other offences under the Merchant Shipping Acts; e.g. S.27 of the Merchant Shipping Act 1970 (misconduct endangering a ship or persons aboard) which have a similarity with those arising under the general duties regulations". A letter with that consultative document was dated 9th September this year. For the purpose of determining appropriate penalties, therefore, the department saw a clear relationship between Section 27 of the 1970 Act and the general duties regulations of 1984.

Based on its own assumptions, the department then proposed the following range of penalties. First, for infringements by shipowners of their various general duties as employers, a maximum fine on summary conviction of £2,000 or on conviction on indictment an unlimited fine with a maximum of two years' imprisonment. This is the same as for employers under the 1974 Health and Safety at Work Act.

Secondly, it was proposed by the department that should a seafarer be guilty of failing to co-operate with his employer in the matter of health and safety, or should he fail to take reasonable care for his own health and safety or that of others, the maximum fine proposed was £400. An employee held liable under the 1974 Health and Safety at Work Act for similar offences faces the same penalties as his employer—that is, a maximum fine of £2,000 on summary conviction, or on conviction on indictment an unlimited fine plus a maximum of two years' imprisonment.

Thirdly, the department also proposed that a seaman who intentionally or recklessly interferes with or misuses anything provided for health and safety purposes shall be liable to a fine of up to £1,000. Under the 1974 Health and Safety at Work Act, an employee similarly accused is liable to a maximum fine of £2,000 or up to two years' imprisonment and to an unlimited fine.

It must be pointed out that the introduction of health and safety regulations for seamen began in the 1980s. Underpinning this initiative was the commitment that seamen would be given the same legislative protection as was provided for non-seafarers under the 1974 Health and Safety at Work Act. By implication that proviso applied to any scale of penalties which might apply.

Seamen now have the same general duties as employees generally for the health and safety of themselves and others. This applies equally to acts of commission and omission. However, in the case of Clause 31 of the Bill before us, seamen are being exposed to a much higher range of financial penalty than that which now applies to any other employee, whether under the 1974 Act or any other legislation. This being the case, why should the 1987 legislation introduce penalties for one category of employee which are totally out of line with the penalties applicable to workers in all other occupations? Seamen have the same general duty obligations as other workers. Therefore they should surely have the same scale of penalties.

The next point is that if the Merchant Shipping Health and Safety (General Duties) Regulations are the point of reference, why are not those same general duties the reference point for the revised Section 27 of the 1970 Act as it now stands apparently in Clause 31 of this Bill? There is a feeling, in the same way as the noble Viscount, Lord Simon, said that Clause 29 is rather untidy, that this also is untidy. This untidiness, it is suggested, stems from the fact that the general duties of most employers and employees are set out in primary legislation; that is, Sections 2 to 9 of the 1974 Health and Safety at Work Act. This is not the case for employers and employees affected by merchant shipping legislation. These same duties are set out in regulations; that is, in secondary legislation, the Merchant Shipping Health and Safety (General Duties) Regulations 1984, SI.408, which were referred to previously.

So we find that we have the following consequences. First, Statutory Instrument 408 of 1984 is treated as an isolated piece of legislation and is not referred to when new legislation is being prepared. Secondly, new legislation, whether in the form of a Bill or a statutory instrument, unnecessarily repeats or extends matters which come within the scope of an employer's or an employee's existing general duty under SI.408 of 1984. Thirdly, these inadequacies and discrepancies do not arise under the Health and Safety at Work Act 1974, because the concept of an employer's and an employee's general duties is the foundation upon which that Act is based.

In conclusion, I would ask the Minister to incorporate the Merchant Shipping Health and Safety (General Duties) Regulations 1984 into the Bill. By so doing, shipowners and seamen would be placed on the same statutory footing as employers and employees in other industries. Further considerable legislative untidiness and duplication could be avoided. There is this clear relationship between the Health and Safety at Work Act and what we believe is an untidy position in the new suggested Clause 31.

Lord Brabazon of Tara

I have already explained fairly fully in the course of winding-up on the noble Lord's earlier amendment about the different treatment of workers in shipping and in other industries. But as regards the Merchant Shipping Health and Safety (General Duties) Regulations 1984, these are concerned with occupational safety and provide only for summary proceedings. They are typical issues of safety at work. We should distinguish between occupational safety and safety at work, and the way in which crews work so as not to endanger a ship or its passengers. One should differentiate between those two things. As to whether we could incorporate the regulations into the Bill, I do not propose to give the noble Lord an answer at this moment. I shall look into the matter and write to the noble Lord.

Clause 31, as amended, agreed to.

Clause 32 [Investigation of marine accidents]:

Lord Carmichael of Kelvingrove moved Amendment No. 78: Page 26, line 27, leave out ("may") and insert ("shall").

The noble Lord said: This is really a paving amendment to allow for Amendment No. 79, which asks for the appointment of independent accident investigators representative of persons involved in an accident that is under investigation. The basis of this amendment is that some accidents to ships at sea or in dock are highly complicated specialist matters. We are all glad that the Government intend to appoint a marine accident investigation branch to parallel the airways and railways branches.

I would point out to the Minister that provision is already made in aviation accident investigations for independent investigators to accompany the inspector and to be fully involved in the investigation. The unions respresenting members involved in accidents suggest that the same conditions should apply to seagoing vessels as to aircraft, and that people should be trained as accident investigators. It is those trained members who should accompany the inspector. As this clause provides for regulations to be made it is vital that the officers' union, whose members are most at risk, is consulted at all stages in the drafting of the regulations. It is important that both the officers' union and the National Union of Seamen should be consulted.

I hope the Minister will see the point of this. The National Union of Seamen and the officers' union, NUMAST, feel that someone who is properly qualified should work with the inspector of the marine accident investigation branch, at least when an important investigation is being carried out. I beg to move.

Lord Mottistone

As regards Amendment No. 79, to which the noble Lord was also speaking, I do not understand how an independent accident investigator can be representative of anybody, because if he is representative of someone he is not independent. The wording of the amendment would have to be changed in any case. I hope that the noble Lord will not press his amendment.

Lord Carmichael of Kelvingrove

I am very pleased that the noble Lord, Lord Mottistone, has pointed that matter out. The wording does suggest that an independent investigator who is representative of the person involved in an accident is appointed. However, it is not uncommon that a friend should look after the interests of a particular group of people. That is not to say that we do not trust the new body that is going to be set up by the department. But we are merely saying that certain voices are louder than others. I would hope that the sailors and the officers who are involved would be able to put their case to the inspector through someone who is fully trained in putting such cases.

However, I do take the point that the amendment needs revision. I hope that the Minister will allow me to take it back unless he requires further clarification on any point. The amendment contains an important point and I should be able to find a better wording to accommodate the views of NUMAST and the NUS.

Lord Brabazon of Tara

I should first say that in establishing this new marine accident investigation branch it has been our aim to model it as closely as possible upon the aviation accident investigation branch at Farnborough. That is well known in this country and enjoys a worldwide reputation.

The prime consideration in investigating a marine accident must of course be, as it is in aviation, to obtain an independent report. It was because of criticism that the present arrangements do not ensure that sufficiently that we propose to set up this investigation branch entirely separate from the marine directorate.

I do not believe that the interests of an independent investigation would be served by requiring the investigation team to contain a member representative of each person who may have been implicated in the incident concerned. Such a team might have to be very large. In due course the Government will have to consider carefully the composition of the marine accident investigation branch. It will certainly have to include members with experience on board ship, as indeed the AIB includes pilots, engineers and other such people. However, that is quite different from implying that the team investigating each accident must contain people with particular backgrounds.

The investigating team needs expert independent investigators, not advocates. I am not aware of any difference in the drafting of this clause as opposed to the appropriate clause that covers aviation. I hope that we all recognise that that works extremely well.

As the provision which is proposed by the noble Lords is regarded as enabling rather than mandating, it is unnecessary, since subsection (4)(f) already allows the chief inspector discretion in the appointment of inspectors.

I hope that with that explanation the noble Lord will feel, as I feel, that the new marine accident investigation branch will be a thoroughly professional independent body. It would be a mistake to allow the different parties to an investigation to add their own people. It should be truly independent as the air accident investigation branch is.

5.45 p.m.

Lord Carmichael of Kelvingrove

I am grateful to the Minister for those comments. I intend to withdraw the amendment, but can he give me some indication that NUMAST and the NUS, whose members after all are most at risk, will be consulted during the drafting of the regulations? I am sure that that is normal practice within the department but I hope that the Minister can give me that assurance.

Lord Brabazon of Tara

Before the noble Lord withdraws his amendment I shall reply to that point. We always consult NUMAST and the NUS on any marine regulations which we put out. That will certainly be the case with these regulations.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

Clause 32 agreed to.

Clause 33 agreed to.

Schedule 4 agreed to.

Clause 34 [Regulation of transfers between ships in territorial waters]:

Lord Carmichael of Kelvingrove moved Amendment No. 80:

Page 28, line 40, at end insert — ("( ) prohibit transfers of any cargo carried by a ship of any nationality if the cargo is not destined for a United Kingdom port, or if it has not emanated from a United Kingdom port;").

The noble Lord said: This amendment deals with the introduction of regulations governing the transfer of substances between ships in territorial waters. In this amendment we seek to prohibit: transfers of any cargo carried by a ship of any nationality if the cargo is not destined for a United Kingdom port, or if it has not emanated from a United Kingdom port". Such transfers should really not be permissible in the case of a cargo carried in a ship of any nationality if the cargo is not destined for a port within the United Kingdom or has not come from a port within the United Kingdom. In other words, our domestic legislation should not provide the means whereby a transfer of substances industry, or an offshore industry as one may call it, could develop in our territorial waters. The amendment is an attempt to try to protect British shipping and of course British seafarers. I beg to move.

Lord Mottistone

This rather remarkable amendment would introduce a purely nationalistic condition into a perfectly normal transaction. Surely the right criteria by which such operations should be judged is whether they are safe and pollution free. The amendment would introduce a degree of inflexibility which would obviously have cost consequences for the operator. I suggest that the Committee should reject this amendment very firmly.

Lord Greenway

I think that the main purpose behind this clause is to tighten up legislation with regard to the transfer of oil, which at present takes place in Lyme Bay among other places. I think that the noble Lord, Lord Carmichael of Kelvingrove, might be getting at the transfer of, say, fish between trawlers and a factory mothership or a fish carrier such as is carried out widely by the Comecon countries. If that is what he is referring to I should be interested to hear what the Minister has to say, but I cannot think of any other circumstance in which that might have effect.

Lord Brabazon of Tara

I had based my speech on this amendment to refer to the transfer of cargo such as oil and dangerous cargoes. I must admit that fish had not particularly entered my mind, nor I suspect had it entered that of the noble Lord, Lord Carmichael, at this stage. However, we share the general concern to minimise the risks of pollution and other hazards attendant upon ship transfers. However, I am afraid that I see some difficulties with this amendment. The nature of the trade and especially of bulk shipments of oil is such that chartered tonnage and changes in the destination of cargoes are not infrequently dealt with during or after a transfer operation. The noble Lord will appreciate that the monitoring operations in such circumstances would be almost impossible.

There is a second problem. A prohibition of the kind the amendment describes might well encourage vessels which need to lighten and so reduce their draught in order to proceed, say, to Rotterdam, to carry out that operation just outside our waters—say, at 12½ miles—and so beyond our control. Finally, such prohibitions would cut across established practice for cargo transfers in the UK and elsewhere, and could conceivably lead to discrimination against UK ships in other areas of the world.

The regulations will apply to foreign as well as United Kingdom vessels in United Kingdom territorial waters and the clause will provide stringent penalties, including heavy maximum fines of up to £25,000 on summary conviction. That will make it possible to move quickly and effectively against foreign ships while they are in UK jurisdiction.

The Bill will not apply to the transfer of fish between trawlers and/or factory vessels. Nor will it apply to the replenishment at sea operations carried out by the Ministry of Defence. I believe that that covers the point made by the noble Lord, Lord Greenway.

The clause has been carefully drafted to contain all the powers we believe are needed to monitor ship to ship transfers, including powers of prohibition which cover the type, the method and the location of the particular transfer. I hope I have explained why the noble Lord's amendment is unnecessary and could possibly cause severe problems. Therefore, I hope he will agree to withdraw it.

Lord Carmichael of Kelvingrove

I thank the Minister for his reply. I believe that the point which was made about fish was out of place in the context of the discussion. That point may be quite important and I hope the Minister will consider it. However, it was not the point I was making. I moved the amendment in the belief that there could be a growth of offshore businesses avoiding our ports and merely using the shelter in order to start a new type of industry which would do the British Merchant Fleet no good.

I shall look carefully at what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 81: Page 29, line 21, leave out ("of amounts").

The noble Lord said: This is a minor drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 agreed to.

Clause 36 [Amendments of Part III of Merchant Shipping Act 1974]:

Lord Mottistone moved Amendment No. 82: Page 31, line 44, after ("adopt") insert ("or permit").

The noble Lord said: I should like to move this amendment on behalf of my noble friend Lord Gray of Contin. Perhaps I may speak also to Amendments Nos. 82, 83, 85, 86, 87 and 88. The amendments relate to the problems which my noble friend brought forward relating to offshore support vessels.

The purpose of those amendments is twofold. First, they provide the Secretary of State with powers to act if United Kingdom shipping or trading interests are damaged or threatened by actions permitted by a foreign government, though not necessarily formally adopted by it. Such activity could take the form of discrimination or protectionism. In earlier speeches, my noble friend mentioned examples. The amendments would facilitate retaliation until British interests were put on equal terms.

The second reason would be further to extend the scope of Section 14 of the Merchant Shipping Act 1974 to cover the provision of services by sea as well as the carriage of goods or passengers. There are increasing examples of ships performing services as distinct from carrying goods or passengers. For example, cable layers, dredgers, heavy lift ships, offshore support vessels and tugs should be covered by the clause. I beg to move.

Lord Brabazon of Tara

Those amendments would represent a considerable extension of the scope of Clause 36, which is already intended to strengthen the powers currently available to take action against unfair competition from other countries. With the Committee's permission, I shall deal first with Amendments Nos. 83, 85, 86 and 87.

I recognise that those amendments call attention to the fact that, while Clause 36 would give the Secretary of State further powers to deal with unfair competition in the case of the carriage of passengers in addition to the carriage of goods, some important shipping activities might remain outside the scope of that part of the legislation, as my noble friend mentioned. These amendments would further extend the scope of the legislation to include the provision of services. That would seem to be a reasonable proposition, and I am therefore happy to accept the amendments in principle.

I turn now to Amendments Nos. 82 and 88, which raise a rather different issue. Those amendments would specifically allow the Secretary of State to take action against activities which may in themselves arise from essentially commercial decisions taken by foreign trading or shipping interests. Just as it is right that we should seek to prevent foreign governments from interfering in the market place to the detriment of our shipping or trading interests, I do not believe the British Government should arm themselves with powers to intervene in the market place to overturn commercial decisions. Much of our effort in foreign shipping policy is aimed at minimising undue government interference and we should resist those temptations ourselves.

I therefore hope that my noble friend will agree to withdraw the amendments and will accept the explanation for my opposition to one group of amendments on the understanding that we are able to come some of the way towards meeting his concerns. I wish to make it quite clear that I cannot accept the amendments as drafted but I certainly accept the principle of those amendments.

Lord Mottistone

I am very grateful to my noble friend for accepting the principle of Amendments Nos. 83, 85, 86 and 87. I look forward to the amendments which my noble friend will put down at the next stage to deal with those points. I shall read carefully what my noble friend has said about Amendments Nos. 82 and 88 with a view possibly to coming back at a later stage. That will also depend on what my noble friend Lord Gray of Contin wishes to do. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 83 not moved.]

Lord Brabazon of Tara moved Amendment No. 84: Page 32, line 8, leave out ("Her Majesty's Government") and insert ("the United Kingdom").

The noble Lord said: Again, this is a minor drafting amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 85 to 88 not moved.]

Clause 36, as amended, agreed to.

Clauses 37 and 38 agreed to.

Clause 39 [Payment out of General Lighthouse Fund of certain expenses of the Secretary of State]:

Lord Mottistone moved Amendment No. 89: Page 36, line 39, leave out ("(whether of a capital nature or not)").

The noble Lord said: In speaking to Amendment No. 89, I should like also to speak to Amendments Nos. 90 and 91. Perhaps I may refer first to Amendments Nos. 89 and 90, which go together. I shall then say a brief word concerning Amendment No. 91.

Since Parliament adopted the General Lighthouse Authorities (Beacons: Hyperbolic Systems) Order 1986, the provision of electronic position-finding systems is a proper charge on the General Lighthouse Fund. That is entirely financed by light dues paid in respect of ships entering UK ports. Equally, proper expenditure to replace the current Racal Decca navigation chain as it becomes obsolete would be an entirely proper charge on the fund. However, this clause appears to go further than that, even encompassing, for example, the expenses of officials travelling to meetings to negotiate international agreements. While user charges for specific services have long been a feature of government finance, it is a new departure to finance the executive branch in this way. Airlines are not charged for Civil Service participation in negotiations concerning air traffic control agreements. Shipping should not be asked to fund activities which should be a charge on general revenue.

Turning to Amendment No. 91, again this deletion of Clause 2B covers purely administrative expenses incurred by the executive branch of the Civil Service and the same reasons as were put forward in respect of Clause 2A apply here. I do not think that these should be funded out of light dues. In conclusion, perhaps when my noble friend replies he will say whether the existing wording would cover the odd gin and tonic for Ministers and their officials. I beg to move.

Lord Carmichael of Kelvingrove

It is not because of the suggestion of the gin and tonic that I am rising to give general support to the noble Lord, Lord Mottistone. It has been our consistent view since we were discussing the Pilotage Bill that by and large these should be national charges. I agree that the cost of travel to international conferences should be a national charge and not one placed on the industry. Therefore, subject to what the Minister may have to say, I give the support of our side of the Committee to the noble Lord, Lord Mottistone.

6 p.m.

Lord Brabazon of Tara

The noble Lord has brought the whole subject of the cost of light dues into this debate. It remains the Government's intention that they should not be a charge on the taxpayer and that the arrangements should remain as they are at present. My noble friend Lord Mottistone recognised that in moving the amendment when he said that, as we know, the Decca system was already paid for out of light dues and any possible extension to Loran C will also be paid for in this way.

These amendments do touch upon matters of some complexity, particularly in regard to the possible international arrangements for an electronic navigational aid to ship navigation. What lies behind Clause 39 is the possible establishment of a comprehensive civil Loran C system in North-West Europe, when that system is no longer required for military purposes by the US Department of Defense in the 1990s. The International Association of Lighthouse Authorities has urged the advantages offered by this opportunity, as an alternative to dependence on the American military satellite system. At this stage, informal without-prejudice international discussions are proceeding on the feasibility of adopting the system and how the costs should be met. Some cost-sharing between participating states is likely to be unavoidable, not only for the direct costs of running the system but also the initial capital costs of extending and adapting it for its future role. Hence the clause provides for the Secretary of State to meet the possible commitments of the United Kingdom under both these headings.

It is unclear at this stage whether any costs incurred prior to reaching an agreement would also be covered by the cost-sharing arrangements. Here, I am referring to the research costs necessary to test the suitability and feasibility of operating the Loran system in domestic waters. Clause 2A(1)(b) provides that, if these costs are outside the provisions of any agreement, they may be met as a charge on the General Lighthouse Fund.

The third element of my noble friend's amendment raises a separate issue and would prevent the Secretary of State from recovering from the GLF the costs he currently incurs out of voted money in administering the fund. These costs of around £150,000 a year are those of audit, the preparation of the annual accounts and the management of the fund's investments and cash flows. Other costs might include the engaging of consultants for studies. The Government believe these items are more properly a direct charge on the fund than on the taxpayer in the same way as such costs would be met by any commercial undertaking. The Secretary of State manages the fund as a quasi-trustee and, as my noble friend will be aware, a trustee is not normally required to meet the costs of his trusteeship out of his own pocket.

I can assure my noble friend that it is not envisaged under any of the provisions of Clause 39 that the department's own general administrative costs would be a charge on the fund. That includes the Minister's gin and tonics. I hope that with that explanation my noble friend will be able to withdraw these amendments.

Lord Mottistone

I thank my noble friend for his careful explanation of the situation. I am left with a niggling thought, because I am not entirely happy with the arrangements concerning the light fund. It may be that this is not the right Bill upon which to return to the charge on the matter. It leaves a tiny question mark and I may come back to this area at Report stage. For the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 90 and 91 not moved.]

Clause 39 agreed to.

Clauses 40 and 41 agreed to.

Clause 42 [Payment of wages on termination of crew agreement]:

Lord Carmichael of Kelvingrove moved Amendment No. 92: Page 39, line 11, leave out from ("him") to end of line 14 and insert ("seven days after the time of his discharge").

The noble Lord said: This is a rather important amendment and I make no apologies for perhaps taking slightly longer than we have been taking until now.

Clause 42 seeks to amend Section 7 of the Merchant Shipping Act 1970 by the introduction of new subsections (3A), (3B) and (3C). I understand that at present, in general terms, seamen are entitled to be paid any outstanding wages in full on being discharged from a ship, subject to the proviso that payment may be made in two instalments within seven days and that non-payment after seven days attracts two penalties.

For wages paid up to 56 days, the first penalty is a day's wage for each such day. For periods which exceed 56 days, interest is charged at a rate of 20 per cent. per annum on any amount due.

Many, if not all, companies now have computerised payroll systems, and wages and salaries are generally paid on a monthly rather than a weekly basis. The proposed amendments purport to cater for this development.

The effect of subsection (3A) will be to give employers of monthly paid seafarers a period of 28 to 30 days in which to make a final settlement of the normal salary due. Subsection (3B) is directed at the payment of relatively small amounts and extraneous payments which are not catered for by the computerised payrolls.

As we read the Bill, an employer can now have up to 60 days in which to clear outstanding debts of this kind. The 20 per cent. interest penalty described in subsection (3C) will not apply until the time at which any amount due becomes payable. This means that a proportion of a seaman's wages may be withheld for a period of up to 30 days. In the case of extraneous earnings this period may extend to up to 60 days without the employer becoming liable to a penalty. Neither would the seaman be entitled to receive a day's pay in respect of each day for which wages were unpaid as provided for in the unamended subsection (2).

These proposals are intended to facilitate the administration by the shipping companies of the payroll system. They represent the subordination of an employee's right to be paid to the supposedly superior claim that computer payroll programs must not be interfered with other than on days set aside for this purpose. That is technology taking precedence over human need. I believe that the amendments will cater for both. There is no other category of employee who would be required to wait for 30 or even 60 days in order to receive outstanding earnings from a former employer.

The availability of computer technology has always been seen as a source of increasing efficiency and enhanced convenience. These proposed arrangements will deprive the vast majority of seamen of their existing wage rights and will also render their position worse than it was under the infamous Merchant Shipping Act 1894. With today's modern communications, no shipowner can have any excuse for not knowing what wages are due to a seaman within a matter of hours. The present arrangements mean that seven days, as contained in Section 7(2), are more than ample for information of this kind to be obtained. Therefore, I hope that the Minister will accept the amendments. I beg to move.

Lord Mottistone

We must move with the times. The provision contained in subsection (5) is welcome because it puts shipowners in the same position as other employers following the repeal of the Truck Acts. Almost all seafarers are now paid monthly. Shipowners like the facility to forward the balance of wages due to a former employee on the next pay day after he leaves their employment. The proposed amendments would remove that facility, gracing it with a degree of protection which is not enjoyed by other categories of employee. Therefore, I hope that the Committee will resist this amendment.

Lord Murray of Epping Forest

I agree that we should move with the times. The shift in the method of payment, with the agreement of the seamen's unions, has been to move with the times from a weekly to monthly basis of payment. However, I admit that I was surprised when I saw proposed in the Bill the special condition that a termination of contract should not be recognised as requiring speedy payment under the old system to people who need the money. To use this facility of monthly payment as a basis for deferring the final payment on the termination of contract seems to be entirely wrong. I do not support the amendment.

Lord Brabazon of Tara

I have listened carefully to noble Lords on this amendment. On the face of it the arguments are not unreasonable. However, they need to be set against the consideration that only seafarers have a statutory right to the payment of their wages within a given time limit. The periods quoted in the Bill are not average times that a seafarer will be kept waiting for his money, nor are they targets to be aimed at. They are statutory maxima after which heavy penalties can be imposed on his employer in the form of a punitive rate of interest to the seafarer. A factory hand or any other employee may be paid shortly after leaving his employment but he has no such redress against his former employer if the payment is delayed for any reason, and that was the point made so clearly by the noble Lord, Lord Mottistone.

Most crew agreements allow a seafarer to give 48 hours' notice to leave his ship, which might be anywhere in north-west Europe at the time, and it will necessarily take some time, even with modern computers, to compute his wages and make the necessary payments. The Government do not consider that this should be done under the immediate pressure of a penalty. Moreover, the law relates to payments due under a crew agreement and in many cases the end of a crew agreement does not mean the end of a seafarer's employment with the company. He may be transferring to another ship or going on leave and there is no justification for disrupting the routine of wage payments. The penalty of a day's pay for each day of delay in payment, which the noble Lord, Lord Carmichael, referred to, has been removed from the new arrangements because some of the payments are for very small amounts. The penalty of a day's pay, in that instance, would be totally excessive.

I believe that we have to move with the times. Seafarers have enjoyed and will still enjoy a benefit which nobody else enjoys. I do not believe that what the Government propose in the Bill is at all unreasonable.

Lord Carmichael of Kelvingrove

The Minister will realise that his reply is disappointing. I thought that we were moving with the times in allowing the payment to be geared up through modern computers. I find it difficult to believe that, with the small number of seamen employed in ships nowadays, it is so difficult to keep track of particulars of seamen in north-west Europe. The banks assure me that they can deliver cash to nominated banks in almost any part of Europe by telegraph in seconds. Therefore, while I understand the problem of the 56 days, which was required at one time, not being as important as it once was, because of better international arrangements for the transfer of money, I nevertheless feel that the reply of the Minister was almost turning the argument on its head. Whether he believes it or not, I was trying to pull us into the 21st century, whereas I thought he was trying to hold back.

I shall look at his reply and take advice on it. At present I withdraw the amendment but shall almost certainly come back to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

Clause 42 agreed to.

Clause 43 agreed to.

6.15 p.m.

Schedule 5 [Miscellaneous amendments of merchant shipping acts]:

Lord Underhill moved Amendment No. 94: Page 73, line, 2, leave out paragraph 1.

The noble Lord said: It may be convenient to discuss also Amendment No. 105 which is consequential. This is merely a deletion from the list of repeals. Page 73 of the Bill lists amendments to the Merchant Shipping Act 1970. Paragraph 1 reads: Omit Section 10 (power of superintendent or proper officer to decide disputes about seamen's wages)". The section which it is proposed to delete continues a long established role given by the merchant shipping legislation to mercantile marine superintendents and to consular officers. These officers are permitted to decide disputes about wages referred to them by a seaman or by an employer or master of a seaman. The decision of the superintendent or the proper officer is final in these cases. Deletion of the section was proposed in January 1983. At that time the National Union of Seamen opposed such a course on the ground that, while the facility provided by Section 10 of the 1970 Act may be little used, it makes sense to retain a reserve mechanism of this kind.

Now, more than ever, the National Union of Seamen believes it should not be repealed. Section 94 of the Merchant Shipping Act 1970 gives power for the Act to be extended to Crown dependencies and dependent territories. To the extent that this has happened, or will happen in the future, it should be noted that seamen employed on ships registered in those territories will, in many instances, not be members of any trade union. As regards the United Kingdom register, opportunities for a similar lack of competent seafarer representation are growing. The so-called non-federated sector is expanding, to some extent with the Government's assistance, through the Business Enterprise Scheme. Many seamen, both native and foreign, are not members of any trade union. Further, the employment Bill, now before the other place, contains provisions proscribing a closed shop. If this becomes law, the scope for organising seamen in an extremely difficult industry will be adversely affected.

Against this background, it is considered imperative that Section 10 of the 1970 Act should be retained and so provide seamen with some means of protecting their interests in an industry where opportunities for an unscrupulous employer—I hope no one will say that there is never an unscrupulous employer, because even in the best regulated industry there is always a black sheep—to take advantage of the seamen in his employment are invariably exploited. I beg to move.

Lord Mottistone

The power of a superintendent or proper officer to decide disputes about seamen's wages is long obsolete and provides a degree of protection not enjoyed by any other category of employee. I strongly hope that the Committee will resist this amendment.

Lord Brabazon of Tara

The repeal of Section 10 is proposed by the Government in order to remove from the statute book a provision now rarely, if ever, invoked. I understand that most of the disputes which are referred to officials under the section turn on differing interpretations of industrial agreements reached between employers and unions under the auspices of the National Maritime Board. The Government are not party to these agreements and nor would they be party to any agreements outside unions. I gather that the officers in question—not, I think, surprisingly—usually exercise their right under the section to decline to decide the dispute.

Section 10 was based on a similar provision in the 1894 Act, and today, when there is no lack of mechanisms for negotiation and discussion between seamen and their employers, it is, I suggest, redundant. The Government view remains that it should be repealed.

Lord Underhill

I am sorry to note that we had the noble Lord, Lord Mottistone, saying that this section is long obsolete and the Minister saying that it is redundant. Strangely enough, the people who work in the industry—the seamen—admit that the section is seldom used, but they believe that it is vital for it to be retained as a reserve mechanism. That is all they ask. It is regrettable that the Government cannot see that case, particularly in such an industry where opportunities for union organisation are, in many cases, extremely difficult. The decision of the superintendent or proper officer would be final in all these matters.

I am sorry that the Minister is so adamant. We will read what he said but in the meantime I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 95:

Page 73, line 7, at end insert— ("3A. In section 42 (trade disputes involving seamen), omit—(a) in subsection (1), the words "except section 5"; and (b) subsection (2).")

The noble Lord said: The subsections covered by this amendment give seafarers the right to terminate their employment on a ship in order to take part in industrial action, provided the ship is securely moored in a safe port in the United Kingdom. The original intention was to give seafarers protection from the penal clauses of earlier Acts in the event of an industrial dispute.

Since the repeal of the penal clauses in 1974 the section has not served any useful purpose. No other employees have a similar statutory provision included in their contracts of employment. However, the provisions of Section 42(2) now present a major drawback to shipping companies because they could be used by the seafarers' unions to organise a strike by calling on their members to give Section 42(2) notice without the need to hold a ballot in accordance with the provisions of the Trade Union Act 1984. This is because an employer can only obtain an injunction enforcing the 1944 Act if he can show that the union had been inducing employees to break their contracts of employment.

It is not unlawful to induce someone to terminate his contract by giving notice in accordance with the provisions of that contract. Therefore, inducing seafarers to give Section 42(2) notice would not be a tort in common law and the companies affected would be unable to take out an injunction against the union or seek damages from the courts. In practice, seafarers—particularly those employed on ferries—who have frequently used the Section 42(2) provisions in the past, almost always have a second contract of employment besides the crew agreement and, therefore, are not in the same position as shore employees who resign. As a result, the repeal of this section has high priority among shipowners so that they can have protection comparable to that enjoyed by other employers. I beg to move.

The Earl of Inchcape

I support the amendment of my noble friend Lord Mottistone, which, as he said, will effectively repeal Section 42 of the Merchant Shipping Act 1970. I do not want to repeat all the points made by my noble friend, but merely add that between 1982 and 1986 there were 38 short ferry stoppages, often involving several ferries in each port. In many cases, though not all, the Section 42 procedure was used.

The shipping industry's case is not that Section 42 is being abused regularly but that shipowners should be in the same legal position as other employers; that is, no better off but certainly no worse off. I commend my noble friend's amendment.

Lord Underhill

I must inform the Committee that on this matter I am advised by the National Union of Seamen. I see that the Government Front Bench speakers are smiling but I can assure them that I do not support anything with which I do not agree. The National Union of Seamen is well aware of that.

The union, writing to me on this matter, says that Section 42 of the 1970 Act was introduced following a recommendation made by the court of inquiry into certain matters concerning the shipping industry. The inquiry was presided over by Lord Pearson and it reported in February 1967. That may seem a long time ago, but the recommendation was made in order to give seamen a measure of protection commensurate with the needs arising from the contractual and itinerant nature of their employment. Those points must not be overlooked.

That, and other recommendations made by Lord Pearson, was accepted by the General Council of British Shipping—which I believe may be advising certain noble Lords today, though at that time it accepted the position—and the maritime trade unions. The section legalises strike action by seamen while their ships are in United Kingdom ports and is designed to do this without their falling foul of merchant shipping legislation.

Under the 1894 Act, stopping work for the purpose of engaging in a trade dispute during the currency of a crew agreement left seamen open to charges of desertion and to imprisonment. Today, without the protection of Section 42 they would, as individuals, be liable to pay compensation to their employer in accordance with Section 39 of the 1970 Act. The General Council of British Shipping claims that Section 42 constitutes a major drawback for its members because it could be used—not that it is so used—by a seafarers' union to organise a strike by calling on its members to give notice without the need to conduct a ballot in accordance with the provisions of the Trade Union Act 1984. Frankly, the National Union of Seamen does not share that view.

The union believes that the section allows a seaman to leave his place of employment in order to give effect to the industrial action which is contemplated. The union's view is that industrial action about which it is required to give notice must be industrial action within the meaning of the Trade Union Act 1984 in so far as ballots and related procedures are concerned. Thus, this gives the shipowners the same protection as is available to other employers.

Some members of the Committee may say that the National Union of Seamen's viewpoint puts a different emphasis on this matter from that introduced by the noble Lord, Lord Mottistone, in moving his amendment. The unions believe that the shipowners have the same protection as is available to other employers under the Trade Union Act 1984. Therefore, I hope that this amendment will not be accepted.

6.30 p.m.

Lord Brabazon of Tara

I have listened with interest to the comments made on this amendment. I should like, if I may, to comment separately on the two repeals in Section 42 of the 1970 Act contained in the amendment. The effect of the repeal in Section 42(1) would be to apply Section 5 of the Conspiracy and Protection of Property Act 1875 to seamen. This makes it an offence for a person maliciously or wilfully to break a contract of service knowing, or having reason to believe, that the breach might endanger human life, cause serious injury, or damage valuable property. The remainder of the 1875 Act, except for Section 5, was extended to seamen under the 1970 Merchant Shipping Act. But a conscious decision was taken at the time to make an exception in the case of Section 5. The reason for this was that other provisions in the 1970 Act, namely, Section 27 on misconduct endangering ships, made alternative arrangements more appropriate to the conditions of service of seafarers for dealing with the case of a seaman who as a result of a breach or neglect of duty endangers his ship or the life of anyone on board his ship.

The Committee will be aware that Clause 31 of this Bill is designed to strengthen the provisions in Section 27 of the 1970 Act. To extend Section 5 of the Conspiracy and Protection of Property Act 1875 to seamen as proposed in the amendment would serve only to duplicate these provisions and I hope my noble friend will agree that in the interests of clarity and simplicity we should not make this change.

Turning to the repeal of Section 42(2), it may perhaps help if I were to give some background. Prior to 1st January 1973, when Section 42 of the Merchant Shipping Act 1970 was brought into effect by commencement order, it was a criminal offence for any seaman to take any form of industrial action in a UK-registered ship. The law was difficult to enforce but seafarers were convicted and imprisoned from time to time. One of the results of the 1966 national seamen's strike was a review of the disciplinary provisions of the Merchant Shipping Acts, and Section 42 of the resulting Act of 1970 permitted seafarers to give notice to terminate their employment in furtherance of an industrial dispute provided that the vessel was safely moored in a UK port at the time. The seafarer is required to give 48 hours' notice of termination and, in order to prevent the employer frustrating this action, the ship could not be lawfully ordered to sea during this time. It is important to recognise that the seafarer is working his notice during the 48-hour period: he is not on strike and should work normally apart from not taking the ship to sea.

The next development was that under the Merchant Shipping Act 1974 seamen were for the first time given the right to strike. The noble Lord, Lord Underhill, did not mention that. Section 30 of the 1970 Act was amended to remove the offence of combining with other seamen to disobey orders if at the relevant time the ship is securely moored in a safe berth anywhere in the world. No notice is required under this section. The fact that seamen now have the right to strike under the 1974 Act means that Section 42(2) of the 1970 Act has to some extent been overtaken and I can appreciate that there is a case for repeal on the grounds of redundancy.

My noble friend Lord Mottistone expressed concern that Section 42(2) was open to abuse and might provide a way of circumventing the Government's industrial relations legislation. There is no doubt that Section 42(2) has been abused in the past, particularly on ferry services where different sections of the crew have given their notice at different times and then withdrawn it after 47 hours with the result that some of the crew are always working their notice, and under Section 42 the ship is prevented from sailing. In this way a ship can effectively be immobilised indefinitely. My noble friend Lord Inchcape mentioned the troubles with the ferries a few years ago.

My noble friend Lord Mottistone also pointed out that action under Section 42(2) is not caught by the ballot provisions of the Trade Union Act 1984. But it is important to remember that action under Section 42(2) is not strike action or industrial action under the law and that the Trade Union Act was not intended to deal with employees giving notice of industrial action.

I am not aware that there have been any serious incidents of the use of Section 42(2) recently. The fact that there was no provision in the Bill on publication reflected our concern to restrict the Bill to essentials and that the need for such an amendment seemed to be receding. But I am sure that the Committee would agree that it would be a matter for concern if in any future disputes the provision were misused in the pursuit of industrial action.

I would therefore like to consider what has been said this afternoon and, if my noble friend will agree to withdraw his amendment, I can promise him that I shall look carefully at the arguments that have been put forward today and, if appropriate, will bring forward an amendment on Report.

Lord Mottistone

I thank my noble friend for what he said and the care with which he said it. I appreciate what he said in the earlier part of his speech. We shall of course read what he said in Hansard. We look forward to his tabling an amendment on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 96: Page 73, leave out lines 10 to 24

The noble Lord said: In the absence of an understanding as to the method by which costs are to be assessed, it is preferable that orders for costs remain with the wreck commissioner or the sheriff. I appreciate that this point may apply to areas of the law other than shipping accidents and injuries. The present position is that a blameless individual who is a party to a formal investigation must be present and represented and bear a proportion of the cost.

That represents an unwarranted penalty. The person may be blameless, but he will be asked to bear some of the costs. That may include travelling costs and they may be expensive. An amendment to Section 56(5) and (6) of and Schedule 5(4) to the Merchant Shipping Act 1970 would make matters worse unless the method of awarding costs is clarified and allows for full reimbursement in certain cases. Of course it would be up to the wreck commissioner or sheriff whether to reimburse fully.

All costs of investigations involving operating procedures and principles involving safety of life at sea, design, construction and performance of equipment should be met by government. It is inequitable that individuals should bear any of the costs stemming from inquiries or investigations which are in the public interest.

The purpose of the amendment is to ensure that until the clause is clearer, orders for costs remain with the wreck commissioner or the sheriff. I beg to move.

Lord Brabazon of Tara

Our proposal to amend Section 56 of the Merchant Shipping Act 1970 is to simplify the task of the wreck commissioner or sheriff in assessing costs at a formal investigation. He will still be able to award such costs as he thinks fit but in terms of a percentage. The precise amount will be determined by a specialist (a taxing master in the High Court).

The major proportion of the costs of a formal investigation is borne by government. Since the primary purpose of an investigation is to provide lessons in the wider interests of safety this is right and proper. The costs of those who are made, or who elect to be made, parties to the investigation can be awarded to them by the court but only in respect of expenses properly incurred in meeting the aims of the investigation. Costs, for instance, would be awarded against those who unnecessarily delayed proceedings. A wreck commissioner or sheriff must be left to make assessments of costs judicially on the basis of his knowledge of the case.

The formal investigation rules provide for those who wish to do so to make submissions directly to the court. There is no need for any organisation or individual to apply to become parties simply to maintain a general watching brief. Counsel for the Secretary of State acts entirely in the public interest and will ensure that their views are properly considered. In the future—although the noble Lord, Lord Carmichael, did not mention this, I think it is worth putting on the record—my right honourable and learned friend the Attorney-General has agreed that the conduct of the case can be remitted to him and the necessary amendment to the rules which govern formal investigations will be made shortly. This, together with the setting up of the marine accident investigation branch, should remove all doubts about the independence of the inquiry.

I hope that with that explanation, which goes a little further than the noble Lord, Lord Carmichael, went, he will feel able to withdraw the amendment.

Lord Carmichael of Kelvingrove

I am grateful for the Minister's clarification. He has again given me a great deal to look at. By and large, I agree with him, but I should like to look at what he said in Hansard. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 97: Page 74, line 10, at end insert—

("MERCHANT SHIPPING ACT 1979 (C. 39)

In section 46(1) (offences by officers of bodies corporate), for the words from "such an" to "of this Act" substitute "an offence under section 23(6) or 28(1) of this Act, or under any regulations made by virtue of section 21(1) of this Act,".").

The noble Lord said: I beg to move Amendment No. 97 and with the leave of the Committee speak at the same time to Amendments Nos. 98 and 100.

These are technical amendments. Clause 45 makes senior officers of companies personally liable for offences under the Act if it can be shown that the officer in question consented to or connived at the offence or was negligent. The amendment to this clause would extend that liability to cover offences under any regulations made under the Act as well as offences under the Act itself. A similar change is being made to the same provision as it appears in the Merchant Shipping Act 1979.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Clause 44 agreed to.

Clause 45 [Offences by officers of bodies corporate]:

Lord Brabazon of Tara moved Amendment No. 98: Page 40, line 31, after ("Act") insert ("or any regulations made under it,").

On Question, amendment agreed to.

Clause 45, as amended, agreed to.

Clauses 46 to 51 agreed to.

Schedule 6 [Minor and Consequential Amendments]:

Lord Brabazon of Tara moved Amendment No. 99: Page 75, line 2, at end insert—

("MERCHANT SHIPPING ACT 1984 (c. 60)

1. In section 459 (power to detain unsafe ships, and procedure for detention)—

1. (a) in subsection (1), for the words from "the defective condition" to "improper loading" substitute "any of the matters mentioned in subsection (1A) of this section";
2. (b) after that subsection insert—

"(1A) The matters referred to in subsection (1) of this section are—

1. (a) the condition, or the unsuitability for its purpose, of—
1. (i) the ship or its machinery or equipment, or
2. (ii) any part of the ship or its machinery or equipment:
2. (b) undermining;
3. (c) overloading or unsafe or improper loading;
4. (d) any other matter relevant to the safety of the ship.", and
5. (e) in subsection (5), for "British register being subsequently closed" substitute "subsequently ceasing to be a British ship".

2. In section 462 (application to foreign ships of provisions as to detention), for the words from "by reason of" (where first occurring) to "the provisions" substitute "by reason of any of the matters mentioned in section 459(1A) of this Act, the provisions".").

The noble Lord said: I beg to move Amendment No. 99 and with the leave of the Committee speak at the same time to Amendments Nos. 103 and 104.

These amendments adapt the provisions in the 1894 and later Merchant Shipping Acts relating to the detention of unfit vessels to bring them into line with the criteria of unfitness in Clause 29(2).

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 100: Page 77, line 9, leave out paragraph 3.

The noble Lord said: I spoke to this amendment with Amendment No. 97. I beg to move.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Schedule 7 [Repeals]:

Lord Brabazon of Tara moved Amendments Nos. 101 and 102: Page 79, line 30, column 3, leave out from ("27,") to (", and in") in line 33 and insert ("subsection (1)(b)"). Page 79, column 3, leave out lines 36 and 37.

The noble Lord said: I beg to move Amendment No. 101 and with the leave of the Committee Amendment No. 102 at the same time.

These amendments are technical drafting points following the earlier amendments to Sections 24 and 28 of the 1984 Act now contained in Schedule 1 to this Bill. I beg to move the two amendments en bloc.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendments Nos. 103 and 104:

Page 80, line 59, at end insert—

("1897 c. 59.

Merchant Shipping Act 1897.

In section 1, in subsection (1) the words from "as if" (where first occurring) to ""machinery", and", and subsection (2).").

Page 80, line 60, column 3, at beginning insert ("In section 2, paragraph (1) and the "(2)" immediately following it.").

The noble Lord said: I spoke to Amendments Nos. 103 and 104 with Amendments No. 99. With the leave of the Committee I beg to move these two amendments together.

On Question, amendments agreed to.

[Amendment No. 105 not moved.]

Schedule 7, as amended, agreed to.

Clause 52 agreed to.

Schedule 8 [Transitional Provisions and Savings]:

Lord Brabazon of Tara moved Amendment No. 106:

Page 83, line 26, at end insert— ("(4) Where—

1. (a) any ship is not wholly owned by such persons as are mentioned in section I of the 1894 Act (qualification for owning British ships) as in force in any such territory, but
2. (b) the ship is a British ship by virtue of section 2 of this Act, the ship shall nevertheless be recognised as a British ship for the purposes of the Merchant Shipping Acts as in force in that territory, and the following provisions of the 1894 Act (as so in force), namely—
1. (i) section 69 (penalty for unduly assuming British character), and
2. (ii) section 71 (penalty for acquiring ownership if unqualified, shall not apply in relation to the ship.").

The noble Lord said: I spoke to this amendment with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

House resumed: Bill reported with amendments.