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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 709-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE TRANSPORT committee
MR MARTIN PUTMAN, MR DAVID SNELSON and MR STEPHEN BRACEWELL MR DAVID ASPREY, MR JAE JONES and MR GUS LEWIS Evidence heard in Public Questions 1 - 96
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Transport Committee on Members present Mrs Louise Ellman, in the Chair Mr Philip Hollobone Mr John Leech Mr Eric Martlew Mr Lee Scott David Simpson Graham Stringer ________________ Memorandum submitted by the United Kingdom Major Ports Group (UKMPG)
Witnesses: Mr Martin Putman, Port
Manager,
Chairman: Good afternoon. I would like to welcome you to our session today. Could I start by asking Members to declare any relevant interests? Graham Stringer: I am a member of Unite. Eric Martlew: I am a member of Unite and GMBU. Q1 Chairman: Louise Ellman, a member of Unite. Could I ask our witnesses if you would like to identify yourselves, please? Mr Putman: Martin Putman. I am a port manager at Portsmouth Commercial Port. I am representing the Local Government Associations. Mr Snelson: David Snelson, representing
the UK Major Ports Group and I am the chief harbour master at the Mr Bracewell: Good afternoon. Stephen Bracewell. I am the chief executive of Harwich Haven Authority. I am here today representing the BPA as the BPA chairman. Q2 Chairman: Thank you. I would like to start by asking you a question to do with clause six. That concerns granting the Secretary of State the power to permit designated harbour authorities to issue general harbour directions to ships within their jurisdiction. On the written evidence from the UK Major Ports Group, you are suggesting that instead of that there should be an automatic right to issue general directions to all commercial harbours. Could you perhaps explain why you think that is so? Mr Snelson: Yes. Overall, this is a sensible idea because the streamlining of the issuing of general directions will allow ports to be more responsive to changing situations and to change their directions in response to emerging safety situations or different trades and so on. The proposal is a good one. There is a small debate to be had about what mechanism the department uses. It is our view at UKMPG that it would probably be easier for all concerned if it was automatically conferred. There would just be less hassle for everyone concerned, less cost and less time, but provided the measure comes into force that is probably the important thing. It is no more than that. It is a simpler method of doing it. Q3 Chairman: Why would you want to extend this measure automatically to commercial ports only? Mr Snelson: I think it is to all ports. There is no sense in our input that this is on one particular sort of port. I am just looking again at the evidence we put in. Commercial ports were not put there with any particular intent. The ability of the ports to put in place general directions quickly is an important thing and this measure recognises it. Q4 Chairman: Should ministers be able to revoke the power to issue general directions where that power has been abused? Mr Putman: It is very difficult for a local government association, with respect, to answer many of these questions. The Local Government Association has many members who have harbours and ports within their boundaries but the specifics are generally dealt with by the British Ports Association, the trade associations and the UK Harbour Masters' Association rather than the Local Government Association. We have a couple of points on the draft Bill which we would like to bring out in discussion but those are probably not relating to the Secretary of State's powers. Mr Bracewell: As I understand it, it is about the ministers' ability to revoke the powers of general direction that would be given under this revised legislation. I am trying to understand what circumstances might prompt that and whether you are referring to a specific general direction that has been issued that certain people might view afterwards as being inappropriate. If you took away their entire powers of general directions, in many respects, you might be removing their powers to ensure the safety of navigation and the protection of the environment within their harbour limits. That would have to be carefully weighed, if indeed those powers of revocation were given. Q5 Chairman: Do you think there could be any concerns that directions could be unfair or disproportionate to particular types of harbour users - let us say leisure ports, for example? Are there any real concerns about that? Mr Bracewell: I think it is right to raise concerns. If I go back to my home patch, we have had powers of general directions for some time. The success of our ability to actually implement them is the process of consultation we use. If we are going to bring something in that has an impact or an influence on certain port users, we would want to discuss that with them first. It is absolutely essential to do that, to make sure we are all working to the same objective which has to be provision of safety and protection of the environment. It is difficult to see how some sort of achievement and agreement should not be met under those guises. Q6 Chairman: Do the interests of different port users vary in respect of safety measures? Mr Bracewell: In practice or in principle? Q7 Chairman: In practice, in your experience. Mr Bracewell: At home base we do not give any lesser priority to any port user. It is different for a commercial operator or the 100,000 tonne container ship as opposed to a 24 foot sailing dinghy, but safety is paramount for both of them. Mr Snelson: Can I go back to your previous question, should the Secretary of State be able to step in? I would say the Secretary of State should only need to step in in extreme circumstances where something has gone wrong with the process. I know this Bill looks at giving the Secretary of State the power to direct. I think that should be seen as a measure of last resort. The Port Marine Safety Code has improved safety enormously since it came in and the Marine Accident Investigation branch can and does in some cases inspect ports' adherence to the Port Marine Safety Code. The Maritime Coastguard Agency and the department check with the ports whether they are compliant on a periodic basis. As a general comment on the ability of the Secretary of State to step in, yes, I can see why government would want it there but I think it is a measure of last resort. Coming to your second question, do the interests of port users differ in some way, in principle, no. I completely agree with what Stephen said just now because safety is absolutely paramount. Nobody wants to have collisions, groundings or contacts. Having said that, you will find some people who for instance own a speed boat and come into a commercial port and who will want to proceed at very high speed in areas which are inappropriate. There, the port authority may want to put a speed limit in place, so you will find a difference of view on what is safe or is not safe but I again emphasise the point that Stephen made: consultation is key. All of the large ports or the vast majority of ports consult with stakeholders. You get to an agreed view before going ahead with a byelaw or a direction. That may not have worked in some places but it certainly works in my experience. Q8 Chairman: Should it be solely the master of the ship who is held responsible for breaches in relation to general directions? Do you think that is where the responsibility should always lie? Mr Bracewell: Ultimately in marine law the master is responsible for the conduct of his vessel and for the people on board under his authority. In existing, international law, we would find it difficult to take any other view, whether it is related to general directions or otherwise. Q9 Chairman: What about the possibility of fining the owner or the charterer of a ship? Do you think that should be considered? Mr Snelson: The master is clearly responsible for the conduct of the vessel at the time but of course the master is also dependent upon the whole ship management and safety regime that underpins what he has on board in terms of the number of crew, the competency of the crew, the training they have and so on. There is a whole lot of stuff that the company provides for the master for which the master is not directly responsible, though of course he carries the can in terms of what happens to the vessel at that time. It is quite a complex question and there are responsibilities that he has at a moment in time, but there are wider responsibilities which have been tested in international law. I am not an expert but if you look at the Erica case for instance the responsibility of other people associated with that came out in that court case. Q10 Chairman: Do you think the proposed fines for breaches are equitable? Mr Bracewell: It is difficult to take a view. It is a well established system. I do not think they are over harsh or inappropriate but time will tell. Q11 Graham Stringer: You have read the consultation document the department has put out? Mr Snelson: Yes. Q12 Graham Stringer: I was surprised at the number of deaths in the consultation document. Do you believe that is accurate? Mr Snelson: So was I. We were talking about it earlier on. Mr Bracewell: We were extremely surprised to see it in there without any context put around it. It is a terrible statistic to see but, without trying to put it in a context of port marine safety, statistics are not collated separately and it is impossible to put it in the context of what we are trying to give evidence here today on. Q13 Graham Stringer: Do you believe it? Do you think it is accurate? Mr Bracewell: I do not disbelieve it. We are aware for example that this will encompass a huge area that the MCA has responsibility for, which exceeds not only around our coastline but many, many miles away from our shores. It would include not only incidents related to vessels, almost deep sea and certainly in coastal and port waters. It also covers, I expect and I understand from looking at the MCA's website, things like the leisure community off our coast, people drifting out to sea on lilos off the beach at Southend or jumping off the pier. There is tomb stoning, so there are a lot of statistics in there. Unfortunately, they are difficult to identify within this. It is a horrific figure but put collectively together ---- Q14 Graham Stringer: You think these figures include tomb stoning? Mr Bracewell: I would not be surprised if they did. Why not? Q15 Graham Stringer: Because there are no ships involved. Mr Bracewell: It is an MCA statistic, is it not? Is a lilo a ship? Q16 Graham Stringer: I would not have thought so. Mr Bracewell: I would hope not. Q17 Graham Stringer: You are providing interesting insights into these statistics. The basis of these proposals is to increase safety in harbours and coastal waters. How would you disaggregate the figures? Do you have any figures that would indicate which would justify these centralising proposals? If as part of the consultation document we have people who are daft enough to jump into shallow water off rocks and die, it is hardly justification for changing a harbour regime, is it, or people who are fortunate enough to go out on a lilo. Do you know of any figures that would justify that? Mr Bracewell: If anything, I think you have put it in a slightly similar context to what I was trying to frame in my mind. If I look at all these initiatives in this proposed Bill, I find it difficult to associate that any of these could have helped reduce that number of 540. Q18 Chairman: In addition to those deaths, the figures in the document talk about over 11,500 incidents in relation to leisure craft. Does that seem right to you? Mr Bracewell: It seems incredibly high certainly for harbour authority waters anyway. Mr Snelson: The Q19 Graham Stringer: Are you talking about accidents or deaths? Mr Snelson: Accidents and incidents. The definition of "incident" by the Marine
Accident Investigation branch is a collision, a grounding or a contact which is
a vessel hitting a stationary object.
Those statistics, I emphasise, are not deaths. I looked at the statistics at the port I know
best in Q20 Graham Stringer: You are saying the department's justification in its regulatory impact assessment is flawed? Mr Bracewell: If you look at the assessment, it does not even mention that, does it? It says many of the impacts of this will be negligible, if I have read it correctly. I do not disagree with that. It is a tidying up exercise. Chairman: Those figures that have been quoted are in that regulatory assessment report. Q21 Graham Stringer: Could you point us to a source of statistics dealing with docks and harbours for deaths and accidents? Mr Bracewell: At this particular point in time, on the occupational health and safety side, yes, improved statistics are coming through, not least of which is the good work that has been picked up ports skills and safety and coming up now to the national committee of the new Ports and Shipping Partnership. They are looking to improve that. If you are looking at navigational port operations - i.e., the waterside - that is work in progress. Certainly over the last couple of years through the Port Marine Safety Code Steering Group, the MCA working with the industry, BPA, UKMPG and others are looking to better determine and make consistent the reporting methods and definitions. We are down now to four distinct classes of accident and incident, one, two, three and four. Harbour authorities are now endeavouring and if you want first hand experience of how we as a harbour authority go about this you are more than welcome to come and visit us. We could demonstrate how we go about reporting these on a regular basis. The consistency on that is still work in progress. If you are saying, "Where is the national evidence on that?" it is not there. It is not collated at that level to the degree that it is perhaps on occupational health and safety. Q22 Mr Scott: I would like to talk about the closure of harbours, clause nine. Do you believe that the Secretary of State should be able to close ports against their will under clause nine, if they believe the harbour authority is failing to implement safety measures? Mr Putman: I find it very difficult to see a circumstance in which it would be better to close a harbour and remove the harbour authority that has all the regulatory powers and leave a void in its place. It is certainly one of the concerns of the Local Government Association and its members that this void may be filled by trying to push new measures onto the local authorities, who will not have the regulatory powers of the harbour authority. Mr Snelson: Where there is no functioning harbour, there is a sensible tidying up element here again of giving somebody the powers to close a harbour that is no longer needed, but I completely agree with what was said. If we are talking about using that power in a different way and closing it but not replacing it with anything, then that would not be sensible. Mr Bracewell: If I understood the question, you are talking about the power to close a harbour on safety grounds? Q23 Mr Scott: Yes. Mr Bracewell: On safety grounds there has to be a good reason to do lots of things like stopping trains and planes. If there are good safety grounds, without getting into specific cases, you would have to consider them, would you not, in which case why has the harbour authority itself not taken action. Rather than step in and override the harbour authority, the step is for the proper dialogue to take place with the proper authorities, including the harbour authority, the MCA, whoever, to first have those appropriate discussions as to what should be reasonable action to take rather than just step in and close it arbitrarily. Q24 Mr Leech: In terms of the LGA and local authorities, is there a concern amongst local authorities that this might end up being a significant financial burden on local authorities? Mr Putman: Yes, that has to be a concern. Also, the fact that there is a total lack of control if a harbour authority is taken away completely, because there is then no regulation of that stretch of water or whatever it might be, even though leisure craft might be using it or it might be an environmental area. It is difficult to see how that can exist without reinstating a harbour authority in some form because that is the way the regulations work. They have a harbour master who can then control it. In terms of the safety case, I agree something has to be done but removing the harbour authority does not seem to me a very good way to do it. Q25 Mr Leech: Is there a concern that the safety implications may then become a burden as well for the local authority? You would take on those safety problems that the authority has not dealt with? Mr Putman: If there is a void and the Secretary of State or whoever is looking around at who is going to control this area, the local authority is likely to be somewhere in his mind. Yes, it would be a financial burden and a burden in terms of the regulation and safety of that area. Q26 Mr Scott: Do you feel that clause nine provides an adequate safeguard against small harbour authorities seeking closure in order to sell the ports for development? Mr Putman: The problem of the marine development is obviously uppermost in your mind there. Getting rid of the harbour authority, if there is still navigable water present, still leaves problems, even if you have a waterside development because there are problems of regulation of that area. Q27 Mr Scott: You do not think the clause gives adequate safeguards? Mr Putman: I do not think it particularly safeguards it, no. The safeguard of land around the waterside has to be done by other means. There are other means in place. Q28 Chairman: I want to ask you about the proposals to remove pilotage powers. How many ports do you think are likely to ask for a removal of their pilotage powers? Is this a burning issue? Mr Snelson: No, it is not. This is part of what I referred to before as the sensible tidying up. There is a loose end in terms of regulations, that if you have an existing competent harbour authority, if that is what we are talking about, but the competent harbour authority does not need those powers because it is not doing pilotage, then this is just a tidying up. Q29 Chairman: It is also proposed to change the rules about who can hold a Pilotage Exemption Certificate. Are there any concerns about that? Mr Bracewell: The BPA were confident that the competent harbour authority has to put its own regimes in place for it to issue those exemptions. That is where the discipline needs to be, in making sure those regimes for assessment, familiarisation, examination and authorisation are robust. If they are robust, certainly our view is that an extension from master and first mate to others is a good thing. Mr Snelson: The last point Stephen mentioned that we need to think through is the removal of the requirement for the Pilotage Exemption Certificate holder to be a master or first mate. At the moment, that helps underpin the safety standards. The business of somebody having a Pilotage Exemption Certificate is the skills and competences of the individual, their knowledge of the vessel, their knowledge of the waters and the berth they are going to. The requirement to be a master or first mate has helped underpin the skills and competences at the beginning. There are sensible reasons for removing that but there is probably a little bit of development of the Port Marine Safety Code that has to go hand in hand with that. As Stephen said, when the competent harbour authority has done its risk assessment and it has determined that the skill level of the Pilotage Exemption Certificate holder should be at a certain level, it should unequivocally have the powers to say that in its pilotage directions and then be able to apply those standards. There is a detail to be worked through there and we want to talk to the DfT a bit more about the detail of that. Q30 Chairman: Should the holder of a PEC be penalised if somebody else uses their certificate without their knowledge? Mr Bracewell: It certainly would be inappropriate to misuse that. Back at home base in our own regime we are very clear on the threat of withdrawal of the PEC if we have any suspicion or knowledge that that has been done. How you would take action against the individual other than withdrawing their PEC or take action against others is difficult to envisage at this point in time. Q31 Chairman: Do you think that is likely to be a big problem, the whole issue of renting PECs? Mr Bracewell: From our own experience at
home base, we have annually something like 16,000 vessels transits a year in
our harbour authority. Roughly 50% of
those are undertaken under PEC. We
probably have one of the largest PEC regimes anywhere in the Q32 Chairman: Should there be an appeals procedure where a PEC has been withdrawn? Mr Bracewell: Yes. Why not? Mr Snelson: I do support what is said there about the PEC. I do not see abuse of them as a particular problem. In any case, certainly in the port I know, we have a contract between the port and the company who operates the ship. If we found that somebody was abusing it, the contract is between the company and the port authority and we would go for the company, to be honest, in answer to your first question. I do not see it as a major issue. Q33 Chairman: Should there be compensation for wrongful withdrawal of PECs? Mr Snelson: That is a reasonable thing to put in, yes, because there might be an error in removing a PEC and then there should be compensation. Again, the devil is in the detail and limitations on the compensation or conditions on it need writing into the rules somewhere, but it is probably not a matter for the Bill. Q34 Mr Leech: I would like to move on to clauses 10 and 11 of the Bill, enforcement of GLA inspections. Is the failure of local lighthouse authorities to comply with requests for information or directions from the GLAs a widespread problem? Mr Bracewell: I do not believe it is. From knowledge both collectively and at home
base for me, which is one of the biggest trade gateways in the Mr Snelson: I agree with what has been
said. Part of the provision in the draft
Bill is to allow the General Lighthouse Authority to prosecute the local
lighthouse authority if it is not doing its job properly. One of the problems that local lighthouse
authorities have - the ports - is that quite often the lights are the
responsibility of a third party, i.e., the owner of a wharf or a jetty. If that third party is not doing its job, it
just makes sense that the GLA can prosecute the third party. What you do not want is a tier of
prosecutions. It is a bit of a problem
again in the port I know best on the Mr Putman: I am a member of the Lights Advisory Committee to the Department for Transport and as such I am obviously in correspondence with the GLAs. They have identified some cases where there are persistent failures of local lighthouse authorities to put right deficiencies. I think that is the root of this Bill. In terms of the Local Government Association of course, the local authorities may have an outfall or a pier which is marked. Obviously there need to be reasonable measures to give them time to put that right, given that they do not have the same facilities as a harbour authority to immediately put any discrepancies right from the GLA's point of view. Q35 Mr Leech: The new offences both have penalties at maximum level five, which I think is currently £5,000. Are those penalties reasonable, in your view? Mr Snelson: That is a good point. I have to admit I have not focused on that level but just hearing it put like that I can think of some recalcitrant third parties where it may not be enough. I am shooting from the hip here a bit. Mr Putman: It does seem disproportionate compared with the other fines we are talking about of £2,500 earlier in the Bill for what I would consider a much greater offence. Mr Bracewell: There has to be some consideration here on relevance. Does one size fit all on a fine? What is deemed to be a more appropriate need to mark something, a priority to mark something, re-establish a mark or service a mark? To apply one size fits all could be extreme in some cases but may be appropriate in others. Q36 Mr Leech: There are therefore going to be some examples where you do not think £5,000 would be a proportionate penalty. Mr Bracewell: Possibly, I would suspect, yes. Q37 Mr Leech: Do you think there should be a minimum penalty? Mr Putman: In many of these cases the remedy will be for the GLA to put the matter right and then charge the local lighthouse authority. I do not think in general it is the major harbour authorities who will put the matters right as soon as they are informed by the GLAs. I think it is a very small proportion of odd local lighthouse authorities. Q38 Mr Leech: Should there not also be some punitive charge for failing to comply? Mr Putman: I suppose, if they keep doing it, there would have to be, yes. If they continued not to put it right or allowed it to happen again, that would be reasonable. Q39 Mr Leech: Would there be any benefit of having an ongoing, daily fine for non-compliance? Mr Bracewell: As a sort of incentive, sort of a daily top up? Q40 Mr Leech: For every day you do not sort the problem out, you get an additional fine. Mr Snelson: There is certainly merit in having some sort of escalation here in terms of the degree of hazard that is afforded by not having this thing lit, whatever it is, so yes, there probably is merit in looking at that. That is something the DfT perhaps should be looking at when they frame this finally. Q41 Mr Leech: Should redeploying aids to navigation without the GLA's consent also be an offence? Mr Putman: I think the same applies. Most reasonable authorities will respond if the General Lighthouse Authority brings it to their notice. Mr Snelson: Thinking as the UK Major Ports Group, I cannot conceive of a situation where we are going to go nipping around, shifting buoys or lighthouses without talking to the General Lighthouse Authority, so it is a highly unlikely scenario, I would have thought. Q42 Mr Leech: You mentioned third parties having responsibility. Under what circumstances do third parties have prime responsibility for aids to navigation operated by local lighthouse authorities? Mr Snelson: The one example that comes immediately to mind is the one I quoted before, where there is some structure owned by a third party which needs to be marked because it is a potential hazard to navigation, but that structure is nothing to do with current port operations today. There you can fine people who are perhaps slow in complying with the regulations. Q43 Mr Leech: Can you give us a particular example where that would be the case? Mr Snelson: Yes. The ones I know best are further down river
here on the River Thames. If you take a
boat down river to Q44 Chairman: Is it feasible to create national standards of professional competency and qualifications for all pilots and harbour masters, given how different ports are? Mr Bracewell: It has already been done. They have been in place for some time. Q45 Chairman: We are told that there are discussions taking place with the MCA at the moment. Is that not correct? Mr Bracewell: The discussions that are taking place now are more to try and get some progress, to try to demonstrate accreditation and compliance more than anything else, but the standards have been in place for some years. I would say probably between 2000 and 2004, certainly for pilots, harbour masters and VTS. Q46 Chairman: Is there not a voluntary code? There has been a debate within the industry about whether that voluntary code is appropriate. Is that not correct? Mr Bracewell: I am not so sure on the relevance of that. There seem to be different views in the consultation document. In the early part of the document, it talks about the industry continually failing to adopt these, whereas later in the document it is quite praising of the industry for adopting them. I was not sure whether there were co-authors to this document because the latter report is the correct one. The standards have been there for some time. Perhaps the transparency is how each competent harbour authority captures those standards in its training and development programme for those particular appointees. Of those three areas, pilots, harbour masters and VTS, currently VTS is the only one that has the MCA accreditation on competency; whereas this is probably the ongoing discussion you may have been referring to, where work is in progress to try and advance the pilot and harbour master standards that are already established, to actually give them perhaps some more profile and transparency. Q47 Chairman: Is the issue not so much that there are not established standards but that it is a voluntary code rather than a mandatory one? Mr Snelson: It is that latter bit. It is getting the accredited standards to be used by everyone across the industry. Q48 Chairman: To make it mandatory rather than voluntary is the issue, rather than the absence of any standards. Mr Bracewell: If you are referring to the Port Marine Safety Code which is voluntary, it does require pilot and harbour master authorisations to be appropriate to the national standards established. Are you referring to making the Port Marine Safety Code mandatory or just the national occupational standards element? Q49 Chairman: We are looking at both of those issues. Let us turn to the Port Marine Safety Code. We are talking now about whether that should be mandatory and, if it is mandatory, subject to inspection rather than voluntary as it is now. What are your views on that? Mr Bracewell: It seems to have worked very well so far. Certainly the voluntary approach was taken following the very quick implementation back in 2000, following the Sea Empress, was met with a large degree of support from all the industry. The success and speed with which it was implemented are certainly a reflection of the voluntary approach. To try and go down the mandatory route will cause further delays and disruptions. Q50 Chairman: Is that the view of the other witnesses? Mr Snelson: Yes. UKMPG would agree with that. The Port Marine Safety Code has been a very good thing. Although it is technically voluntary, everyone uses it. Everyone adopts it. There is a provision in this Bill for the Secretary of State to step in in the case of a really failing port, as we discussed earlier. The Marine Accident Investigation branch can inspect to a standard they have already established. The Coastguard Agency checks with every port every three years as to whether or not they are compliant with it. A number of ports use the Marine Accident Investigation branch check off to check their own compliance with it. To try and drive it centrally, you would inevitably, as bureaucracies do, get into a sort of straitjacket, one size fits all, which is inappropriate for the industry. The existing "voluntary" Port Marine Safety Code is exactly the right thing, in my view. Q51 Chairman: Suppose the figures given in the consultation document, the ones we discussed earlier, were correct. Would that change your view on the need for a mandatory rather than voluntary code? Mr Bracewell: I have no doubt that they are correct. They are just done in a context I can understand. To be able to comment on figures, we would need to see the figures that are appropriate to those areas covered by the Port Marine Safety Code. I do not think we have that transparency here. Mr Snelson: I think that is a very hypothetical question, if I can say so, because we are not in that situation. There is not a large number of deaths or anything in the port marine navigation business. There is a number of incidents and there is some sensible tidying up of the rules required, but the Port Marine Safety Code is demonstrably working in its current form. I would recommend that is how it needs to stay. Q52 Chairman: Looking at the issue of wrecks, which are also covered by the draft Bill, the draft Bill would allow the Secretary of State to direct harbour authorities to locate, mark or removes wrecks. Would you say harbour authorities are equipped to deal with that if a ship is wrecked within their area? Mr Snelson: It depends very much on the size of the harbour authority and its capability. If it is a large port that has the ability to do it, then this is an entirely reasonable provision. If not, one would expect a General Lighthouse Authority to step in and do it. This part of the Bill, as I understand it, is merely ratifying an international standard and in that sense again it is a sensible piece of tidying up legislation. Mr Bracewell: If I understand it, this is more about making sure the financial support and compensation is available as a recourse to make sure that those who have to step in and deal with the situation - your question was more phrased around the capacity or the capability to step in and practically deal with wreck removal. That to me is a very difficult issue on a small level, a small leisure vessel or a small fishing vessel. Most ports' capability is probably to do something with the recovery of that, but heaven forbid a large vessel on the scale of some seen in the headlines recently. That would be a major operating involving major, international salvors which are not readily accessible in every port, as I am sure you are aware. Certainly the recourse to make sure the finances and cost recovery are put in place is absolutely essential. Q53 Chairman: Are you concerned that harbour authorities might end up footing the bill if they could not recover the money from the owners? Mr Snelson: Yes. That happens at the moment to some degree, where you cannot get financial recompense for somebody who has fundamentally left a wreck in your harbour area. Mr Bracewell: There are a couple of classic
cases in the consultation document of Mr Snelson: What is being proposed makes sense. Chairman: Thank you very much for answering our questions. Witnesses: Mr David Asprey, Head of Policy, Mr Jae Jones, Marine Manager, Hanson Aggregates Limited, Chamber of Shipping; Mr Gus Lewis, Legal and Government Affairs Manager, Royal Yachting Association, gave evidence. Q54 Chairman: Good afternoon. Would the witnesses like to introduce themselves, please? Mr Jones: My name is Jae Jones. I am the marine manager at Hanson Aggregates Marine. I am also the chairman of the British Marine Aggregate Producers' Association Operations Committee. Mr Asprey: I am Mr Lewis: I am Gus Lewis. I am the legal and government affairs manager of the Royal Yachting Association. Q55 Chairman: I would like to draw your attention to clause six which relates to the proposal to grant the Secretary of State the power to permit designated harbour authorities to issue general harbour directions to ships within their jurisdiction. Are you satisfied with that proposed power? Mr Asprey: We are certainly well satisfied that there are measures which should allow all harbour authorities to be able to issue general directions. Maybe half or so already have those powers. It would seem to us to be a pretty standard piece of kit for safe regulation and safe navigation in harbours. It would seem therefore sensible that all harbours should be able to have that power without having to go through an individual promotion of revision orders or byelaws, after which they promulgate some general directions which by and large would be similar to the ones in the port next door. We do have some concern about whether the bureaucracy and the way it is proposed here would mean individual ports having to seek permission to seek powers. That may be an unnecessary step but, apart from that, we are more than content. Q56 Chairman: Have you any suggestions about how it could be done better? Would you look at any automatic right? Mr Asprey: We would be in favour of a general power just as there are general powers for many things for harbour authorities to be able to secure arrangements for safe navigation and pursue general directions through those, so that they can develop, consult and promulgate sensible directions which will ensure safe navigation without undue rules. Q57 Chairman: Should ministers be able to revoke those powers if they are being abused? Mr Asprey: I think that is a bit hypothetical. We find it difficult to imagine that a port authority whose sole purpose is the safe navigation in a harbour is likely to produce regulation which will be outrageously inappropriate. I am finding it difficult to see how one gets to that situation. Harbour authorities should be required to consult and to take account of that consultation. I think that is written into the procedures. You would expect that to be normal. Ship owners, leisure users, the fishing industry and so on would make their input to that point and it is fair to see their views taken into account, with a sensible regime emerging at the end. Q58 Chairman: Is there any danger that harbour authorities could issue directions that could disadvantage any particular group of users - for example, leisure craft? Mr Lewis: We take a slightly different view from the Chamber of Shipping. We have quite serious concerns at the power to grant harbour authorities power to make general directions set out in the draft Bill. We do not have any difficulty and we fully support the need for harbour authorities to manage their ports, to improve port marine safety. We are very supportive of appropriate regulation and legislation to do that. Our concern is that inadvertently this might give rise to bad regulation and inappropriate legislation. In particular, it is to do with the fact that general directions historically have been used by commercial ports to manage commercial operations and primarily they work well. Our understanding from the consultation document is that the department's proposal is that the power to make general directions will essentially supersede the current power to make byelaws. The current byelaw making power is subject to the approval of the Secretary of State. The proposed general direction power is not and therefore we are seeing commercial ports taking general directions in relation to commercial activity. If this Bill becomes an Act, all ports will be using it to manage all of their operations without the appropriate levels of scrutiny. Q59 Chairman: In your experience, do the different users of ports have differing requirements in relation to safety? Mr Lewis: In principle, no. In principle, everyone is keen to ensure that personal safety, shipping safety and vessel safety are paramount. There will be disagreement as to how that might best be achieved. Our concern, if the power to make general directions is granted to all harbours, is that smaller, under resourced harbour authorities, in an effort to promote safety, would effectively ban all hart to manage activities. Q60 Chairman: Should it be solely the masters of ships who are held responsible for any breaches? Mr Jones: As a representative of a ship owner, I fully support the powers that are currently placed for the issue of general directions. The directions are generally used solely for the safety of the operations within ports and, as part of the consultation process that is required at the moment, they are out there to be able to make suggestions and lobby for changes or amendments to proposed directions, which I think is quite sufficient. With regard to masters, the master of the ship is the person ultimately in control of that vessel at any one particular time. If he does not comply with the general directions, then he is the person who is accountable. There should be a framework in place supported by the shipping company to ensure that he has all the facilities to be able to operate safely and efficiently within port limits. Q61 Mr Leech: Mr Asprey, you said that a large number of ports already have these powers. Can you give an example of a port where they do not currently have the powers, where there has been a problem as a result of not having the powers and, if now they are going to be given the powers, they would be able to deal with a particular issue? Mr Lewis, can you give an example, where a port does have power to give general directions, this has caused undue problems to the industry? Mr Asprey: I would have to say no, I am not aware of particular ports where problems have arisen, just as I am not aware that particular general direction problems of the nature described just now have arisen. Q62 Mr Leech: If it is working okay at the moment, why is it necessary to change? Mr Asprey: There are many commercial ports that do not have powers of general direction. It has been seen as a useful, practical way for harbour masters to set out the rules of the road for safe navigation in a port. Where there are general directions, we are not aware that there have been problems about their nature or implementation. It seems a sensible tool for harbour masters to have. When a harbour wishes to get those powers at the moment - over the years there has been one harbour after another seeking those powers - it has had to promote itself in an individual harbour revision order, which is a lengthy process and not cheap. It goes before an under-resourced Department for Transport and it can take quite a long time to get a harbour revision order through the system. In order to implement a regime which is there for the purpose of safety, if only to avoid that time consuming element during which time something may happen that could have been better regulated, it would seem better to allow all port authorities to have that subject to safeguards and I think probably safeguards which would reflect the needs of the leisure industry could well be devised in individual procedures. I do not see an overriding problem. Q63 Chairman: Mr Lewis, do you feel confident that safeguards could protect the leisure industry? Mr Lewis: No. I can give you an example of an instance where a harbour authority has published draft general directions, has consulted and responded and carried on regardless. Tynemouth Harbour Commission has been an example where in 2004 we were in consultation with them. As of 2005, they put their general directions in place which put a six nautical mile per hour speed limit in a port over the ground rather than through the water. The tidal stream in the harbour at spring tide is five nautical miles per hours which means that if a motor boat is going against the tide it can travel at 11 miles per hour and create a wash. If it is going in the other direction, it can only go at one mile an hour without breaking the speed limit. This means if you are sailing and you are under sail, going in the same direction as the tide, you would have to have your engine on in astern in order to comply with the speed limit. If you are sailing without an engine, you are in trouble because there is nothing you can do to go backwards. We pointed this out to the commissioners at the time through the consultation process and they decided that our explanation and concerns were valid. They pressed on to bridge that general direction. That would impose a criminal penalty on somebody who happened to be going in the wrong direction at the wrong stage of the tide. Mr Asprey: I do not think the powers in the Act would resolve that kind of issue because it is not envisaged, as I read it, that harbour authorities if they wanted to develop general directions would bring those specific directions to the Secretary of State to be approved. They would apply for permission to have general directions and then would develop them in exactly the same process that seems to have gone wrong. That does not make sense to me at all in this case. I am not sure if this is an argument against what is proposed here but it is an illustration of how life is not perfect. Q64 Chairman: I would like to turn now to the clauses concerning the removal of pilotage powers. Are you satisfied with the proposals where pilotage powers could be removed following a request from the harbour authority? Mr Asprey: Removal of pilotage powers, as we read it, is a tidying up operation in a sense, where a port no longer has traffic but requires compulsory pilotage. They are a competent pilotage authority, they have powers and are expected to apply them but they cannot use them. Such authorities would have to, under the Port Marine Safety Code, conduct periodic reviews of their pilotage requirements and yet they know they do not have any. This would remove them from the list of people who have to do that. Q65 Chairman: There are also proposals concerning the Pilotage Exemption Certificates. Do those proposals give you concerns about widening the scope of those people who can hold those certificates? Mr Asprey: Widening the scope does not. Mr Jones: With our particular industry, our particular trade is affected very badly by the restriction on the limitation of it only being the master or the bona fide first mate of that ship. From a safety fatigue perspective, we would support wholeheartedly the removal of those restrictions, understanding completely that there has to be a regime in place by the competent harbour authority to ensure that appropriate certification and checks are made on the competence and ability of those people within those authorities to hold that certificate. Provided there is a robust regime which currently exists in most ports, we are confident that it will be a positive move. Q66 Chairman: It has been suggested to us that only those holding a class one or a class two certificate of competency should be eligible to apply for a Pilotage Exemption Certificate. Would you agree? Mr Jones: No, I would not. The vast majority of masters within our particular trade do not hold either a class one or a class two certificate of competency. You would automatically exclude from that a lot of people who already hold those certificates and have done for a number of years. The certificate of competency structure that exists allows for a master to have a master's qualification without having a class one or class two qualification. Q67 Chairman: What would you say to the people who have given that evidence to us to say that there has been concern about these proposed changes and that it could lead to great danger? Mr Jones: I would suggest that it is down to the issuing authority of those particular certificates to ensure that they are satisfied that the people who are applying for those certificates have the appropriate level of professional qualifications and the level of experience and local knowledge to be able to hold those certificates. Q68 Chairman: Should the Bill include an appeals procedure for cases where a PEC is suspended or revoked? Mr Asprey: Yes, it should. A PEC holder is conducting an important task
as part of the economic operation of commercial shipping and in some cases it
is part of his personal remuneration that he is undertaking that task rather
than some other task. We think it would
be inappropriate for certificates to be arbitrarily suspended without the
possibility of compensation where it is subsequently shown to be
incorrect. We would prefer, wherever
possible, the appeal procedure to be the present one. At present, harbour masters can suspend Q69 Chairman: Do you agree that there should be compensation if a certificate is revoked wrongly? Mr Asprey: Yes, most definitely. It should reflect at the very minimum the additional costs which have been borne by the ship owner as a result of the PEC being withdrawn. Q70 Graham Stringer: Collectively, you have been a bit critical of parts of the Bill. Are there any parts of the Bill that you think should be completely removed? Mr Asprey: No. Q71 Graham Stringer: Do you think the whole Bill is justified? Mr Asprey: All the parts that directly affect us seem to be moving in the right direction, either tidying up or improving matters or, in the case of the Wreck Convention, are implementing something which is new. I would not say that there are any sections of the Bill which would be better not there. Mr Lewis: In answer to your question I do not think there are any bits that we would have removed but our concern - slightly going backwards and to do with general directions - is that we think there should be additional items in it that would assuage our concerns and actually make the whole proposal more workable on a general scale. As it stands we are not comfortable but we think it could relatively straightforwardly be made to work. Q72 Graham Stringer: Were you here for the earlier evidence session? Mr Lewis: Yes. Q73 Graham Stringer: Do you recognise the figures for accidents in the consultation document? Mr Lewis: We do not. We work very closely with the Maritime and Coastguard Agency, the Marine Accident Investigation Branch, the Royal Society for the Prevention of Accidents and part of the difficulty is the myriad of means of collecting data, the categories, the classifications, the way they are collated and prepared - there is not a single way of doing it so you get different comparisons. The figures that we extracted and agreed with the Maritime and Coastguard Agency for recreational/leisure fatalities are fairly stable at between 20 and 25 per annum. Q74 Graham Stringer: That is an interesting figure. Were you consulted about the consultation document, were there discussions with your organisations before the consultation document and the Draft Bill were produced? Mr Asprey: Yes. We have been consulting
the Department for Transport on some of the elements in this Bill for a very
long time, indeed we proposed one or two of them ourselves in any case. So the answer is yes but it is a consultation
which is ongoing. There are some new
things in this proposal which we have not been consulted on before,
particularly the last section on implementing the Wreck Convention. I would probably say that our written
evidence is provisional in terms of what we have said about that because we
have not fully consulted our own members about that yet, that is a new process,
but we are running two things at once, are we not? I might have misled you just now, it occurs
to me, when you asked about whether there were any provisions in the Bill which
we would prefer not to be there. If we
are talking about more specific parts then I would draw attention to the parts
in relation to wreck removal where we are concerned that introducing a power to
require the General Lighthouse Authorities to become the wreck removal agents
and to fund those would be damaging, we would oppose that. As you are all probably aware the lighthouse
authorities' activities are funded largely from UK light dues and most of the
activities that would be likely to arise under this convention would not arise
from the actions of those who come to UK ports; indeed, it is almost impossible
to imagine they could because the ships coming to UK ports would be required to
have insurance and so the likelihood of costs falling on the General Lighthouse
Fund would tend to be either from historic incidents, from a long time ago, or
from ships which are not coming to the UK or for other reasons are not covered
by the requirements for insurance. If I
can just give you an example of what this could mean, at the moment Trinity
House are removing a sunken submarine wreck which is adjacent to the navigation
channel in the Q75 Graham Stringer: It is the administrative mechanism you are opposed to as opposed to the obligation on shipping in British coastal waters to carry insurance for wreckage. Mr Asprey: The requirements of the convention we are content with and we support the ratification of the convention; it is purely this moving of the responsibility from government under the convention onto an agency which is funded privately, in this case by British trade, to which we find objection. Q76 Chairman: Who do you think should be responsible for marking wrecks and operating aids to navigation between the 12-mile limit and the pollution control zone? Mr Asprey: We are content that the General Lighthouse Authorities should in principle be responsible for actually carrying out the work; they are the experts, they have been doing it for a very long time, they have the right equipment and the right knowledge to be able to mark hazards - usually static ones rather than floating ones - when they need to be marked. Q77 Chairman: They should pay for it under the existing provisions. Mr Asprey: They should do it; whether they should pay for it is another question. As I was suggesting earlier in relation to the removal of wrecks, particularly where they happen beyond the 12-mile limit - in other words are largely occasioned by objects or vessels which have no direct links with UK trade - then it may well be right that if they are not covered by insurance, which will be the usual case, then they should be funded from the Exchequer. Q78 Chairman: There are proposals to extend the General Lighthouse Authorities' commercial operations; are you satisfied with those? Mr Asprey: Yes. It seems, again, a sensible completion of a project that is already there. They already have the ability to be sanctioned to carry out commercial activities with their own spare resources; here we are talking about the possibility of being able to widen that slightly but always subject to the specific approval of the secretary of state. In practice the secretary of state always consults light dues payers about these proposals so we feel that we shall be able to have our say to ensure that what is proposed is not going to be anti-competitive in relation to the private sector or involve undue investment by the lighthouse authorities from the General Lighthouse Fund. We think on the whole the balance is right. Q79 Chairman: Does anybody have a different view? No. Is the failure of local lighthouse authorities to comply with requests or directions from the GLAs a major problem? Mr Asprey: It is causing the GLAs grief. Q80 Chairman: Is it a big problem? Mr Asprey: I cannot quantify whether it is a big problem. I do not know whether you are taking evidence from the lighthouse authorities but they would certainly be able to inform you. Q81 Chairman: We are taking evidence from them. Mr Asprey: What we do think is right is that they have these statutory responsibilities and where the local lighthouse authority is deficient, and particularly where it is persistently deficient, the cost of doing that should be reimbursed by the failing party to the General Lighthouse Fund, not as proposed in the Bill as a payment into the Exchequer. Q82 Chairman: If they fail to follow those directions would it be better for the local lighthouse authorities to pay a fine to the General Lighthouse Authority? Mr Asprey: Yes, that is exactly the point I was making, Chairman. I should say that in your earlier session you were talking with the Ports Authority about this; by and large my understanding is that the failing local lighthouse authorities are certainly not commercial ones, they are just as likely to be either small harbours or fish farms or other utilities with outfalls and these kinds of structures which need to be marked for the safety of all of us. Q83 Chairman: Is the International Convention on the Removal of Wrecks necessary? Mr Asprey: It is desirable; it will create some certainty to the position of ship-owners, wherever they are trading in the world, when fully implemented. It will rationalise the position and ensure that insurance is properly carried by all shipping, and we would certainly hope that it would go towards that, it should help remove some of the mavericks in trade - there are not many of them but there are some. Q84 Chairman: Where do those mavericks come from? Are there any particular countries? Mr Asprey: I do not think so, not to my knowledge. I would not say so, but they would tend to be ships trading between countries which do not have this kind of regime, do not have an insurance requirement at the moment. I guess it will be the countries which do not ratify the Convention which one might look towards. Q85 Chairman: Do you have any predictions about when the Convention is likely to be ratified and which countries might ratify it? Mr Asprey: Not about which countries, it might depend on whether the Q86 Chairman: What is the likely cost of dealing with wrecks? Do you have any estimate of how much of a burden this is going to put on the authorities? Mr Asprey: No, we do not. I gave an example of what one wreck could cost but removing a yacht from a sandbank clearly would not cost £2 million. First of all these are not common events and they all tend to be different; I do not think it is possible to say. Q87 Chairman: Is there likely to be any significant impact on light dues rising for this? Mr Asprey: At £2 million a time for German submarines, yes, at £200 for yachts, no. We would be guessing. Q88 Chairman: Have you any other suggestions about how it could be funded or do you think this is quite manageable? Mr Asprey: In terms of wreck removal we do not see any need for the General Lighthouse Authorities to even be in the equation, to be honest; they are not equipped for wreck removal, they are not hired by other people for wreck removal and if one takes the case of the Napoli for example, frequently in all our minds, this was a business which was managed by SOSREP on behalf of the secretary of state, a method which seems to have worked incredibly well. In this case the MCA and SOSREP selected who the salvors were and got them to go ahead with it. Of course, in this case insurers will be paying, but in the case of the non-insured we would think the same players would be better placed to make the decisions about removing wrecks than the lighthouse authorities. Q89 Eric Martlew: Just on non-insurance, in your experience have we had any of these non-insured wrecks? Obviously we have got warships which go back some time. Mr Asprey: There have been in the past although my memory does not recall the names and the circumstances. One of the most common types of ships which could become a wreck and would not fall into the compulsory insurance area would be government-owned ships - not warships necessarily but non-trading ships, survey ships and research ships and those sorts which would not carry insurance, and the owning state may or may not compensate as if it was insured. Q90 Eric Martlew: In a case like that the reason you do not carry insurance is because it is cheaper for the government to pay, is it not? Is this not a bit of a red herring? They do not carry insurance because their Treasury will pay. It is a red herring, is it not? Mr Asprey: It is only a red herring if you could not claim. I do not know what the procedure is for claiming against another state. Q91 Eric Martlew: You do not know whether it is a problem or not. Mr Asprey: I do not expect it to be a problem. Q92 Eric Martlew: I do not either. Mr Asprey: I do not know. Q93 Mr Leech: You mentioned the submarine that was not originally a problem but is now a problem and therefore has to be removed. Are there going to be circumstances where wrecks in the future, under this change in legislation, will not need to be removed but may at some point in the future have to be? How would you see that fitting in with the legislation in terms of who would pay for it at some point in the future? Mr Asprey: I do not know. It is certainly conceivable that changes in shipping patterns and changes in draught requirements and so on will lead to wrecks which were inoffensive before becoming offensive or dangerous, as in this current case, but putting a handle on that would be impossible. Q94 Mr Leech: Do you think that the new legislation should have something about that potential scenario? Mr Asprey: I find it difficult to see what it could be. The idea that you could go back to someone 50 years after the event to check his insurance does not sound very feasible. Q95 Mr Leech: You do not think there are circumstances where changes in shipping patterns may occur within a much shorter period of time so that something that goes down now may in five years time become something that needs to be recoverable? Mr Asprey: That is conceivable. Q96 Mr Leech: You do not think there is something within the legislation or that could be written into it to look at that eventuality. Mr Asprey: Off the top of my head in front of you now, no, I cannot, but I am happy to reflect on that and write to you if we can come up with some sensible observations. Chairman: Gentlemen, thank you very much for answering our questions. |
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