Merchant Shipping Act 1995

Improvement notices and prohibition notices U.K.

261 Improvement notices. U.K.

(1) If an inspector appointed under section 256(6) is of the opinion that a person—

(a) is contravening one or more of the relevant statutory provisions, or

(b) has contravened one or more of those provisions in circumstances that make it likely that the contravention will continue or be repeated,

he may serve on that person a notice under this section, (referred to in the following sections of this Part as an improvement notice).

(2) An improvement notice shall—

(a) state that the inspector is of the said opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion, and

(b) require the person on whom the notice is served to remedy the contravention in question or (as the case may be) the matters occasioning it within such period as may be specified in the notice.

(3) The period specified in pursuance of subsection (2)(b) above shall not expire before the end of the period within which a notice can be given under section 264 requiring questions relating to the improvement notice to be referred to arbitration.

(4) In this and the following sections of this Part “the relevant statutory provisions” means—

(a) sections 43, 44, 46 to 55, 85, 86, 88 (and Schedule 2), F1 . . . F2 . . .99, 109, 115, 116, 121 to 126, 128, 129, 130 [F3 130A], 131 to 151 and 272; and

(b) the provisions of any instrument of a legislative character having effect under any of those provisions.

Textual Amendments

F1 Words in s. 261(4)(a) repealed (12.10.1998) by S.I. 1998/2241, reg. 3(1)(b)

F2 Words in s. 261(4)(a) repealed (1.12.1998) by S.I. 1998/2647, reg. 1(2)(b)

F3 Figure in s. 261(4)(a) substituted (19.3.1997) by 1997 c. 28, ss. 29(1), 31(4), Sch. 6 para. 16

Modifications etc. (not altering text)

C1 S. 261 modified (16.2.2001) by S.I. 2001/152, reg. 11(2)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

262 Prohibition notices. U.K.

(1) If, as regards any relevant activities which are being or are likely to be carried on on board any ship by or under the control of any person, an inspector appointed under section 256(6) is of the opinion that, as so carried on or as likely to be so carried on, the activities involve or (as the case may be) will involve the risk of—

(a) serious personal injury to any person (whether on board the ship or not), or

(b) serious pollution of any navigable waters,

the inspector may serve on the first-mentioned person a notice under this section (referred to in the following sections of this Part as a “prohibition notice”).

(2) In subsection (1) above “relevant activities” means activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are carried on as mentioned in that subsection, apply.

(3) A prohibition notice shall—

(a) state that the inspector is of the said opinion;

(b) specify the matters which in his opinion give or (as the case may be) will give rise to the said risk;

(c) where in his opinion any of those matters involve or (as the case may be) will involve a contravention of any of the relevant statutory provisions state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and

(d) direct—

(i) that the activities to which the notice relates shall not be carried on by or under the control of the person on whom the notice is served, or

(ii) that the ship shall not go to sea,

(or both of those things) unless the matters specified in the notice in pursuance of paragraph (b) above, and any associated contraventions of any provision so specified in pursuance of paragraph (c) above, have been remedied.

(4) A direction contained in a prohibition notice in pursuance of subsection (3)(d) above shall take effect—

(a) at the end of a period specified in the notice, or

(b) if the direction is given in pursuance of subsection (3)(d)(ii) above or the notice so declares, immediately.

Modifications etc. (not altering text)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

263 Provisions supplementary to sections 261 and 262. U.K.

(1) An improvement notice or a prohibition notice may (but need not) include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates; and any such directions may be framed so as to afford the person on whom the notice is served a choice between different ways of remedying the contravention or matter.

(2) An improvement notice or a prohibition notice shall not direct any measures to be taken to remedy the contravention of any of the relevant statutory provisions that are more onerous than those necessary to secure compliance with that provision.

(3) Where an improvement notice or a prohibition notice that is not to take immediate effect has been served—

(a) the notice may be withdrawn by an inspector at any time before the end of the period specified in it in pursuance of section 261(2)(b) or (as the case may be) section 262(4); and

(b) the period so specified may be extended or further extended by an inspector at any time when a reference to arbitration in respect of the notice is not pending under section 264.

Modifications etc. (not altering text)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

C5 S. 263 modified (16.2.2001) by S.I. 2001/152, reg. 11(2)

264 References of notices to arbitration. U.K.

(1) Any question—

(a) as to whether any of the reasons or matters specified in an improvement notice or a prohibition notice in pursuance of section 261(2)(a) or 262(3)(b) or (c) in connection with any opinion formed by the inspector constituted a valid basis for that opinion, or

(b) as to whether any directions included in the notice in pursuance of section 263(1) were reasonable,

shall, if the person on whom the notice was served so requires by a notice given to the inspector within 21 days from the service of the notice, be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by him.

(2) Where a notice is given by a person in accordance with subsection (1) above, then—

(a) in the case of an improvement notice, the giving of the notice shall have the effect of suspending the operation of the improvement notice until the decision of the arbitrator is published to the parties or the reference is abandoned by that person;

(b) in the case of a prohibition notice, the giving of the notice shall have the effect of so suspending the operation of the prohibition notice if, but only if, on the application of that person the arbitrator so directs (and then only from the giving of the direction).

(3) Where on a reference under this section the arbitrator decides as respects any reason, matter or direction to which the reference relates, that in all the circumstances—

(a) the reason or matter did not constitute a valid basis for the inspector’s opinion, or

(b) the direction was unreasonable,

he shall either cancel the notice or affirm it with such modifications as he may in the circumstances think fit; and in any other case the arbitrator shall affirm the notice in its original form.

(4) Where any reference under this section involves the consideration by the arbitrator of the effects of any particular activities or state of affairs on the health or safety of any persons, he shall not on that reference make any decision such as is mentioned in subsection (3)(a) or (b) above except after—

(a) in the case of an improvement notice, affording an opportunity of making oral representations to him with respect to those effects to a member of any such panel of representatives of maritime trade unions as may be appointed by the Secretary of State for the purposes of this subsection; or

(b) in the case of a prohibition notice, affording an opportunity of making such representations to him to either—

(i) a representative of a trade union representing persons whose interests it appears to him that the notice was designed to safeguard, or

(ii) a member of any such panel as is referred to in paragraph (a) above,

as he thinks appropriate; and

(c) (in either case) considering any representations made to him in pursuance of paragraph (a) or (b) above.

(5) A person shall not be qualified for appointment as an arbitrator under this section unless he is—

(a) a person holding a certificate of competency as a master mariner or as a marine engineer officer class 1, or a person holding a certificate equivalent to any such certificate;

(b) a naval architect;

(c) a person falling with subsection (6); or

(d) a person with special experience of shipping matters, of the fishing industry, or of activities carried on in ports.

(6) For the purposes of subsection (5)(c) a person falls within this subsection if—

[F4 (a) he satisfies the judicial-appointment eligibility condition on a 7-year basis;]

(b) he is an advocate or solicitor in Scotland of at least [F5 7] years’ standing; or

(c) he is a member of the bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least [F6 7] years’ standing.

(7) In connection with his functions under this section an arbitrator shall have the powers conferred on an inspector by section 259 other than subsections (3), (4) and (6).

(8) In the application of this section to Scotland any reference to an arbitrator shall be construed as a reference to an arbiter and the reference in subsection (1) above to a single arbitrator appointed by agreement between the parties shall be construed as a reference to a single arbiter so appointed or, in default of agreement, appointed by the sheriff.

F7 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 S. 264(6)(a) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(2); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)

F5 Word in s. 264(6)(b) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(3); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)

F6 Word in s. 264(6)(c) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(3); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)

F7 S. 264(9) repealed (31.1.1997) by 1996 c. 23, s. 107(2), Sch. 4 (with s. 81(2)); S.I. 1996/3146, art. 3 (with art. 4, Sch. 2)

Modifications etc. (not altering text)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

C6 S. 264 modified (16.2.2001) by S.I. 2001/152, reg. 11(2)

S. 264 applied (16.2.2001) by S.I. 2001/152, reg. 13(3)

Ss. 264-266 applied (with modifications) (16.2.2001) by S.I. 2001/152, reg. 9(3)

265 Compensation in connection with invalid prohibition notices. U.K.

(1) If on a reference under section 264 relating to a prohibition notice—

(a) the arbitrator decides that any reason or matter did not constitute a valid basis for the inspector’s opinion, and

(b) it appears to him that there were no reasonable grounds for the inspector to form that opinion,

the arbitrator may, subject to subsection (3) below, award the person on whom the notice was served such compensation in respect of any loss suffered by him in consequence of the service of the notice as the arbitrator thinks fit.

(2) If on any such reference the arbitrator decides that any direction included in the notice was unreasonable, the arbitrator may, subject to subsection (3) below, award the person on whom the notice was served such compensation in respect of any loss suffered by him in consequence of the direction as the arbitrator thinks fit.

(3) An arbitrator shall not award any compensation under subsection (1) or (2) above in the case of any prohibition notice unless—

(a) it appears to him that the direction given in pursuance of section 262(3)(d) contained any such requirement as is mentioned in subparagraph (ii) of that provision; or

(b) it appears to him that—

(i) the inspector was of the opinion that there would be such a risk of injury or pollution as is referred to in the notice if the ship went to sea, and

(ii) the effect of the direction given in pursuance of section 262(3)(d) was to prohibit the departure of the ship unless the matters, or (as the case may be) the matters and contraventions, referred to in the direction were remedied.

(4) Any compensation awarded under this section shall be payable by the Secretary of State.

(5) In the application of this section to Scotland any reference to an arbitrator shall be construed as a reference to an arbiter.

Modifications etc. (not altering text)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

C7 Ss. 264-266 applied (with modifications) (16.2.2001) by S.I. 2001/152, reg. 9(3)

266 Offences. U.K.

(1) Any person who contravenes any requirement imposed by an improvement notice shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(2) Any person who contravenes any prohibition imposed by a prohibition notice shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(3) It shall be a defence for a person charged with an offence under this section to prove that he exercised all due diligence to avoid a contravention of the requirement or prohibition in question.

(4) In this section any reference to an improvement notice or a prohibition notice includes a reference to any such notice as modified under section 264(3).

Modifications etc. (not altering text)

C2 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19

C3 Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18

C4 Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22

C8 S. 266 modified (16.2.2001) by S.I. 2001/152, reg. 11(2)

Ss. 264-266 applied (with modifications) (16.2.2001) by S.I. 2001/152, reg. 9(3)