The Folkestone Harbour Revision Order 2017

PART 4 MANAGEMENT AND REGULATION OF HARBOUR

General powers in respect of harbour

19.—(1) The Company may, subject to the provisions of this Order, take such steps as it considers necessary or desirable for the improvement, maintenance and management of the harbour and the facilities afforded therein or in connection therewith.

(2) For those purposes, and without prejudice to the generality of paragraph (1), the Company may—

(a) improve, maintain, regulate, manage, mark and light the harbour and provide services and facilities therein;

(b) subject to obtaining the necessary rights in or over land—

(i) execute and place in and over the harbour such structures, works and equipment as are required; and

(ii) maintain, renew, alter, extend, demolish and reconstruct structures, works and equipment in the harbour (including those executed or placed pursuant to sub-paragraph (i) above;

(c) nourish, replenish and otherwise alter the levels of beaches or improve the foreshore; and

(d) do all other things which in its opinion are expedient to facilitate the proper carrying on or development of the undertaking.

(3) No other provision of the Folkestone Harbour Acts and Orders 1807 to 2017 shall prejudice or derogate from the generality of this article.

(4) In paragraph (3) “the Folkestone Harbour Acts and Order 1807 to 2017” means the Act of 1807, the Act of 1818, the Act of 1844, the Act of 1885, the 1991 Order, the Act of 1992 and this Order.

Limits of harbour

20.—(1) The limits of the harbour within which the Company exercises jurisdiction as a harbour authority and the harbour master exercises his powers are—

(a) the area described in the Schedule; and

(b) so much of the harbour premises as is not situated within that area.

(2) The area described in paragraph (1)(a) is, for the purpose of identification only, shown edged red and coloured pink on the harbour limits map.

(3) Section 9 of the Act of 1885 has effect subject to this article.

(4) In the event of a discrepancy between the description of the boundaries of the harbour referred to in this article and the boundaries shown on the harbour limits map the descriptions of the boundaries shall prevail over the harbour limits map.

(5) In this article—

“harbour premises” means—

(i)

the piers, harbour walls, berths, jetties, slipways, landing platforms, wave walls, rock revetments and other works for the time being leased to or occupied by the Company as part of the harbour;

(ii)

so much of the land immediately to the north of the Inner Harbour and Outer Harbour as is within Land Registry title number K721157 and is for the time being leased to or occupied by the Company for the purposes of the harbour;

(iii)

the premises for the time being leased to or occupied by the Company for the purposes of the harbour master’s offices; and

(iv)

the part of South Quay north of an imaginary straight line drawn along the upper level northern face of the quay between the railway viaduct and north-eastern corner of the quay for the time being leased to or occupied by the Company for the purposes of the harbour; and

“the harbour limits map” has the meaning given by article 2(1).

As to use of harbour

21.—(1) Notwithstanding anything in article 3 or in any other local enactment the Company may from time to time set apart and appropriate any part of the harbour for the exclusive, partial or preferential use and accommodation of any particular trade, activity, person, vessel or class of vessels, or goods, subject to the payment of such charges and subject to such terms, conditions and regulations as the Company thinks fit.

(2) No person or vessel shall, otherwise than in accordance with the terms, conditions and regulations of the setting apart or appropriation, make any use of any part of the harbour so set apart or appropriated without the consent of the harbour master or other duly authorised officer of the Company and—

(a) the harbour master, or as the case may be such officer, may order any person or vessel making use of the harbour without such consent to leave or be removed; and

(b) the provisions of section 58 of the Act of 1847 shall extend and apply with the necessary modifications to and in relation to any such vessels.

(3) Nothing in this article shall authorise the prohibition of navigation within any part of the harbour, nor shall it authorise interference with any public right of way.

Removal of vehicles or vessels

22.—(1) If a vehicle or vessel is left without the permission of the Company─

(a) in any place where it is likely to obstruct or interfere with the use of the harbour; or

(b) in any part of the harbour premises where the parking of vehicles or vessels is prohibited by notice erected by the Company;

the Company may, at the risk of the owner, remove the vehicle or vessel or cause it to be removed.

(2) Any notice erected under paragraph (1)(b) must be conspicuously posted in or close to the place to which is relates.

(3) Where the Company in exercise of the powers of this article removes a vehicle or vessel or causes it to be removed it must as soon as practicable report that fact to a constable or to a police station.

(4) The expenses of and incidental to the removal of a vehicle or vessel under this article shall be recoverable from any person responsible.

(5) For the purposes of paragraph (4) “person responsible” means—

(a) the owner of a vehicle or vessel at the time when it was left in the place from which it was removed under paragraph (1), unless the owner shows that the owner was not concerned in, and did not know of its being left there; or

(b) any person by whom the vehicle or vessel was left in that place.

(6) If the Company in exercise of the powers of this article removes a vehicle to a place not readily visible from the place whence it is so removed, it must, if and as soon as it is reasonably practicable to do so, send to the person for the time being registered as the owner of the vehicle for the purposes of the Road Vehicles (Registration and Licensing) Regulations 2002(1) or any other regulations having the like effect for the time being in force, at his last known address, his registered address or the address where the vehicle is ordinarily kept, notice that it has exercised the powers of this article and of the place to which the vehicle has been removed.

(7) A notice stating the general effect of paragraph (1) must be displayed in a prominent position at each place where a road accessible to vehicles enters any part of the harbour.

Removal of obstructions other than vehicles or vessels

23.—(1) Without prejudice to its powers under this Order or any other enactment, the Company may remove anything (other than a vehicle or vessel) but including a wreck within the meaning of Part IX of the Merchant Shipping Act 1995(2), in, or on land adjoining, the waters of the harbour or the approaches thereto—

(a) which is causing, or likely to cause, an obstruction to, or interference with, navigation;

(b) which is causing, or likely to cause, interference with the operation of any works of the Company, or damage to any such works or to any property; or

(c) which is in the harbour without lawful authority;

and may take such steps as appear to it to be appropriate to prevent or minimise such obstruction, interference or damage.

(2) Where the Company—

(a) removes anything under paragraph (1); and

(b) can readily identify its owner or a person whom it reasonably believes to be its owner;

the Company must, within 28 days of its coming into its custody, give written notice to that person stating that, upon proof of ownership to the reasonable satisfaction of the Company, possession may be retaken at a place named in the notice within the period specified in the notice (being not less than 14 days after the notice is served) and, if possession of the thing removed is not so retaken, it shall at the end of that period vest in the Company.

(3) The Company may, at such time and in such manner as it thinks fit—

(a) dispose of anything removed under paragraph (1) in the case of which paragraph (2) does not apply; or

(b) notwithstanding paragraph (2), dispose of anything so removed which is of a perishable nature or the custody of which involves unreasonable expense or inconvenience.

(4) If anything disposed of by the Company under this article is sold, the Company may retain out of the proceeds of sale any expenses incurred by it under this article, and any surplus—

(a) must be paid to any person who within three months from the time when the thing came into the custody of the Company proves, to the reasonable satisfaction of the Company, ownership thereof by that person at that time; or

(b) if within the said period no person proves ownership in accordance with sub-paragraph (a) shall vest in the Company.

(5) If the proceeds of the sale of anything removed under this article are insufficient to reimburse the Company for the said expenses, or there is no sale, the Company may recover as a debt the deficiency, or, where there is no sale, the whole of the expenses, from the person who was the owner at the time when the thing removed came into the custody of the Company or who was the owner at the time of its abandonment or loss.

Byelaws

24.—(1) The Company may from time to time make byelaws for the management and regulation of the harbour and, without prejudice to the generality of the foregoing, for all or any of the following purposes—

(a) for regulating the use, operation and superintendence of the harbour and the berths, pontoons, stagings, quays, jetties, piers, walkways, bridges, approaches, slipways, landing places, berthing heads, boat lifts, mooring posts, buildings, parking places and other works and facilities (including moorings) in the harbour;

(b) for regulating the shipping and unshipping, landing, warehousing, stowing, depositing and removing of goods within the harbour;

(c) for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the harbour;

(d) for regulating the conduct of all persons in the harbour, not being members of a police force or officers or servants of the Crown or members of a fire and rescue authority acting in pursuance of the Fire and Rescue Services Act 2004(3) whilst in the exercise of their duties as such;

(e) for regulating the placing, laying down, maintenance and use of moorings and for prescribing the patterns and specifications of moorings in the harbour;

(f) for preventing or removing obstructions or impediments within the harbour;

(g) for regulating the launching of vessels with the harbour;

(h) for regulating or prohibiting the mooring, berthing, careening, beaching, maintenance and repair or anchoring and presence and keeping of vessels in the harbour;

(i) for regulating or preventing the use in the harbour or on board a vessel in the harbour of fires, lights or other equipment, tools or appliances which the Company considers involves a risk of fire and for the prevention of smoking;

(j) for prohibiting or regulating the removal or disposal of rubbish (including ballast, earth or clay or other refuse or polluting liquid) and sewage from vessels in the harbour;

(k) for prohibiting the use or regulating the movement, speed and parking of vehicles in the harbour;

(l) for requiring the use of effectual silencers and the general control of noise on vessels in the harbour;

(m) for regulating vessels in the harbour and their entry into and departure from the harbour and, without prejudice to the generality of the foregoing, for prescribing rules for regulating the speed and manner of navigation and the lights and signals to be exhibited or made by, or for the benefit of, vessels using, navigating or mooring within the harbour;

(n) for regulating the embarkation of persons into, or their disembarkation from, vessels in the harbour;

(o) for regulating the fuelling of vessels in the harbour;

(p) for regulating the holding of regattas and other public events in the harbour;

(q) for prescribing the lights and signals to be exhibited or made—

(i) by vessels aground in the harbour;

(ii) by vessels or devices used for marking obstructions in the harbour; or

(iii) for assisting the navigation of vessels in the harbour, at the entrance to a dock or at a wharf, pier or other work;

(r) for the prevention of nuisances in the harbour;

(s) for preventing or regulating the discharge by land or sea of any material or thing in the harbour or the approaches to it;

(t) for regulating or preventing fishing for marine creatures of any type and by whatever means from any pier, jetty, wharf, or other installation or structure of any kind in the harbour, or from vessels in the harbour;

(u) for regulating or preventing aquaplaning, parascending, water skiing or other recreational activities involving towing, surfing, or diving or other underwater activities in the harbour;

(v) for regulating or preventing bathing, and for securing the protection of bathers, in the harbour;

(w) for requiring the reporting of accidents and of other incidents giving rise to the risk of death or injury, or damage to property, occurring in the harbour;

(x) for regulating or prohibiting the carrying on of trading or commercial activities in the harbour;

(y) for making the carrying out of specified harbour operations, or the conduct of persons in the harbour, subject to the approval (with or without conditions), control or direction of the harbour master;

(z) for regulating the use in the harbour of yachts, sailing boats, rowing boats, pleasure craft, windsurfing boards, personal watercraft and other small vessels;

(aa) for prohibiting or restricting the bringing of animals onto harbour premises and for regulating the control of animals in the harbour;

(bb) for the conservation of flora and fauna in the harbour;

(cc) in relation to vessels other than pleasure vessels to impose requirements as to the standards of competence and experience required by persons navigating or working with the vessels, and requirements as to the number, competence and experience of their crew, and the standard of seaworthiness of the vessels;

(dd) for regulating the equipment of vessels and requiring vessels to carry specified equipment in the interests of safety;

(ee) for regulating or preventing the use by vehicles of the foreshore within the harbour;

(ff) for regulating the use of or requiring the registration of ferries, water taxis and passenger boats in the harbour and the conduct of boatmen, ferrymen and others plying for hire or engaged in navigating in the harbour and of persons resorting to any works constructed or operated by the Company; and

(gg) for regulating the exercise of the powers vested in the harbour master.

(2) In this article “signals” includes sound signals.

(3) Byelaws made under this article, under section 83 of the Act of 1847 and under or by virtue of the Act of 1807 or the Act of 1844, may─

(a) provide for imposing upon persons offending against them, or against any condition, requirement or direction imposed, made or given under such byelaws, fines not exceeding level 3 on the standard scale;

(b) relate to the whole of the harbour or to any part of it;

(c) make different provisions for different parts of the harbour or in relation to different classes of vessels or vehicles; or

(d) make different provision for different circumstances.

(4) Byelaws under this article may authorise the imposition of reasonable charges by the Company for assessing standards of competence and experience and for issuing any relevant certificates and endorsements required by such byelaws.

(5) In proceedings for an offence against byelaws made by the Company under this article, or section 83 of the Act of 1847 or under or by virtue of the Act of 1807 or the Act of 1844, it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised due diligence to avoid the commission of the offence.

(6) The powers of this article are in addition to the powers conferred by section 83 of the Act of 1847 and under or by virtue of the Act of 1807 and the Act of 1844.

(7) In paragraph (1)(z) “windsurfing board” means a board with a sail or sails designed to be operated by a person or persons standing upright on it.

Confirmation of byelaws

25.—(1) Byelaws made by the Company under this Order or section 83 of the Act of 1847 or under or by virtue of the Act of 1807 or the Act of 1844 shall not come into operation until they have been confirmed by the Secretary of State.

(2) At least one month before an application for confirmation of byelaws is made by the Company to the Secretary of State notice of the intention to apply for confirmation and of the place at which and times during which a copy of the byelaws will be open to inspection must be published in one or more newspapers.

(3) Such notice must include reference to the right to make objection or representation referred to in paragraph (7).

(4) Not later than the first date on which the notice under paragraph (2) is published, the Company must send a copy of the notice to the Chief Executive Officer of Shepway District Council and to the Secretary of State.

(5) During a period of at least one month before application is made for confirmation of the byelaws, a copy of the byelaws must be kept by the Company at the office of the harbour master and must at reasonable hours be open to public inspection without payment.

(6) The Company must supply a copy of the byelaws or of part of the byelaws to a person who applies for it on payment of a reasonable charge as determined by the Company.

(7) During the period of one month after completion of the publication of the notice required by paragraph (2), a person may make in writing to the Secretary of State an objection to or representation respecting the byelaws to which the notice relates.

(8) Subject to paragraph (9), the Secretary of State may confirm the byelaws in the form submitted to him, with such modifications as he thinks fit, or may refuse to confirm them.

(9) Where the Secretary of State proposes to make a modification that appears to him to be substantial, he must inform the Company and require it to take any steps the Secretary of State considers necessary for informing persons likely to be concerned with the modification, and the Secretary of State must not confirm the byelaws until such period has elapsed as the Secretary of State thinks reasonable for consideration of, and comment upon, the proposed modification by the Company and by other persons who have been informed of it.

(10) A copy of the byelaws when confirmed must be printed and deposited by the Company at the office of the harbour master and must at all reasonable hours be open to public inspection without payment, and a copy of the byelaws must on application be furnished to any person on payment of such reasonable charge as the Company may determine.

Application of byelaws of the Company

26.  All byelaws, rules and regulations made in relation to the harbour for the time being in force shall apply to the works and within the harbour limits and may be enforced by the Company accordingly.

Power to give general directions as to use of the harbour, etc.

27.—(1) The Company may, in accordance with the requirements of article 28, give a direction for—

(a) the ease, convenience or safety of navigation;

(b) the safety of persons; or

(c) the protection of property, flora or fauna;

in the harbour.

(2) A direction under this article may apply—

(a) to all vessels or to a class of vessels;

(b) to persons designated in the direction;

(c) to the whole of the harbour or to a part; or

(d) at all times or at certain times or at certain states of the tide;

and every direction must specify the extent of its application in relation to the matters referred to in sub-paragraphs (a), (b), (c) and (d).

(3) The Company may, in accordance with the requirements of article 28, amend or revoke a direction given under paragraph (1).

Procedure for giving, amending or revoking general directions

28.—(1) Subject to paragraph (7), if the Company proposes to give, amend or revoke a general direction (“the proposal”), it must—

(a) give notice in writing of the proposal to the Chamber of Shipping and the Royal Yachting Association and to such other persons or organisations as it considers appropriate for the purposes of the application of this provision (“designated consultees”);

(b) consult with the designated consultees upon the proposal and allow a period of not less than 6 weeks from the date of the notice given in accordance with sub-paragraph (a) for written representations to be made by the designated consultees to the Company regarding the proposal;

(c) have regard to any representations made by designated consultees during the consultation;

(d) give notice in writing to the designated consultees following the consultation as to whether the Company proposes to proceed with the proposal and, if so, specifying whether it is making any modifications to the proposal and its reasons for so doing; and

(e) if the Company proposes to proceed with the proposal and a designated consultee has made representations against the proposal, invite that designated consultee to confirm in writing whether they maintain their objection to the proposal within 28 days from the date of the notice given in accordance with sub-paragraph (d), or such longer periods as the Company may specify.

(2) Where the Company has complied with paragraph (1), it may proceed with the proposal if—

(a) none of the designated consultees has made representations against the proposal;

(b) none of the designated consultees which made representations against the proposal has confirmed in writing that they are maintaining their objection to the proposal in accordance with paragraph (1)(e); or

(c) where at least one designated consultee has maintained an objection in accordance with paragraph (1)(e), the requirements of paragraph (3) have been complied with.

(3) Where at least one designated consultee has confirmed in writing to the Company that they maintain their objection to the proposal—

(a) the issue must be referred to an independent person (“the adjudicator”) appointed—

(i) by agreement between the Company and each designated consultee maintaining an objection in accordance with paragraph (1)(e) (“the parties”); or

(ii) failing agreement, by the President of the London Maritime Arbitrators Association on the application of either of the parties;

(b) so far as is reasonably practicable within three months of the referral, the adjudicator must—

(i) provide a reasonable opportunity for the parties to make representations to or be heard by the adjudicator at a hearing; and

(ii) make a written report to the parties with findings and recommendations on the issue; and

(c) the Company must decide whether to proceed with the proposal having regard to the adjudicator’s report (but is not bound to give effect to any recommendations) and, once it has decided, must give notice in writing to the designated consultees of its decision and the reasons for that decision.

(4) Except as otherwise provided for in paragraph (3), the adjudicator may determine the procedure for the making of representations and the conduct of any hearing.

(5) The costs incurred by the adjudicator and the parties from a referral under paragraph (3) are to be paid by one or more of the parties as the adjudicator may direct.

(6) If the Company wishes to proceed with the proposal in a form materially different from both the form notified to the designated consultees under paragraph (1)(d) and (where paragraph (3) applies) the form recommended by the adjudicator under paragraph (3)(b), it must proceed, unless all the designated consultees agree in writing that it need not, as if the proposal were a new proposal to which paragraph (1) applies.

(7) Paragraphs (1) to (6) do not apply where in the interests of navigational safety the Company proposes to give, amend or revoke a general direction applying to vessels or persons—

(a) in an emergency; or

(b) relating to an intended activity or operation within the harbour which—

(i) is expected to commence less than four months after the Company is notified or otherwise becomes aware of it;

(ii) is to last less than three months; and

(iii) the Company considers that the giving, amending or revocation of a general direction in relation to that activity or operation is required, taking into account other activities or operations in the harbour which may be affected.

(8) Where the Company proceeds to give, amend or revoke a general direction in accordance with paragraph (7), it must—

(a) as soon as is practicable give notice of the direction, amendment or revocation to those persons who would have been designated consultees had paragraph (1)(a) applied; and

(b) if the direction or amendment is intended to continue in force for more than three months or the revoked direction is not intended to be restored within that period, apply the procedure under paragraphs (1)(b) to (e) and (2) to (6) to the direction, amendment or revocation with the following modifications—

(i) a reference in those paragraphs to the ‘proposal’ is to be read as a reference to the direction, amendment or revocation;

(ii) in paragraph (1)(b), for “sub-paragraph (a)” substitute “paragraph (8)(a)”; and

(iii) a reference in those paragraphs to the Company proceeding with a proposal is to be read as a reference to the Company determining that the direction or amendment should remain in force or the revoked direction should not be restored.

Publication of general directions

29.—(1) Subject to paragraph (3), the Company must publish a notice of the giving, amendment or revocation of a general direction as soon as practicable on one occasion in a newspaper circulating in the locality of the harbour.

(2) The notice must state a place at which copies of the general direction as to be given, amended or revoked may be inspected.

(3) In an emergency, the Company may give notice of the giving, amendment or revocation of a general direction in any manner which they consider to be appropriate.

Special directions as to use of the harbour, etc.

30.—(1) In addition to the directions which the harbour master may give under section 52 of the Act of 1847, the harbour master may give a direction which applies to a vessel in the harbour limits for one or more of the following purposes—

(a) requiring compliance with a requirement made in or under—

(i) a general direction;

(ii) a byelaw; or

(iii) a provision of any other enactment of local application to the harbour or to the Company;

(b) regulating or requiring the movement, berthing, mooring or unmooring of a vessel;

(c) requiring the removal of a vessel from any part of the harbour if—

(i) it is on fire;

(ii) it is in such condition as to be liable to become immobilised or waterlogged, or to sink, or to constitute a danger to life or property;

(iii) it is making an unlawful use of the harbour or interfering with the reasonable use or enjoyment of the harbour by other persons or vessels or the carrying on of business in the harbour;

(iv) it is necessary to enable maintenance or repair work to be carried out in the harbour or to premises adjacent to the harbour; or

(v) its removal is considered by the harbour master to be necessary in order to ensure the safety of persons or the protection of property, flora and fauna or any part of the harbour referred to in paragraph (3);

(d) regulating the loading, discharging, storing or safeguarding of the cargo, fuel, water or stores of a vessel and the discharge of its business at the harbour;

(e) specifying the precautions to be taken in respect of apparatus, machinery and equipment;

(f) regulating the speed of a vessel;

(g) regulating the use of the motive power of a vessel;

(h) prohibiting or restricting the use of fires or lights; or

(i) as to the discharge or use of ballast.

(2) The harbour master may give a direction which applies to—

(a) a person;

(b) all vessels; or

(c) all vessels of a particular class;

within the harbour for one or more of the purposes in paragraph (1)(a).

(3) A special direction may be given in the interests of the conservation of, or prevention of damage to, any part of the harbour where that part has been designated, or otherwise given special protection or status, under any enactment by reason of its natural beauty, fauna, flora or archaeological or geological or physiographical features or any other natural features.

(4) A special direction may be served in a manner considered by the harbour master to be appropriate and, where it is in respect of a vessel, must be addressed to the master of the vessel.

(5) Where a special direction is to be given which applies to a person, the harbour master must, where possible, specify a particular person to whom the direction is addressed, either by name or by a description sufficient to enable the person to be readily identified.

(6) The harbour master may amend or revoke a special direction.

Failure to comply with directions

31.—(1) A person who fails to comply with a general direction or a special direction shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) In any proceedings for an offence under paragraph (1) it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Enforcement of special directions

32.—(1) Without prejudice to any other remedy available to the Company, if a special direction is not complied with within a reasonable time, the harbour master may, where practicable, put persons on board the vessel to carry out the direction or may otherwise cause the vessel to be handled in accordance with the direction.

(2) If there is no one on board the vessel to attend to a special direction, the harbour master may proceed as if the direction had been given and not complied with.

(3) Reasonable expenses incurred in the exercise of the powers conferred by this article shall be recoverable by the Company from the owner of the vessel as if they were a charge of the Company in respect of the vessel.

Master’s responsibility in relation to directions

33.  The giving of a general direction or a special direction shall not diminish or in any other way affect the responsibility of the master of the vessel to which the direction applies in relation to that vessel, to persons on board the vessel, to the cargo or any other person or property.

Obstruction of officers

34.—(1) A person who—

(a) intentionally obstructs an officer of the Company acting in pursuance of a provision of this Order or a statutory provision of local application applying to the harbour; or

(b) without reasonable excuse fails to comply with a requirement properly made by such an officer; or

(c) without reasonable excuse fails to give such an officer any information which he may require for the purpose of the performance of his functions,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(2) A person who in giving information to such an officer, makes a statement which he knows to be false shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

General rules for navigation

35.  A master who navigates a vessel in the harbour—

(a) without due care and attention; or

(b) in a manner liable to injure or endanger persons, other vessels, the banks of the harbour (whether above or below the level of high water) or any facility, structure or installation in or adjoining the harbour,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Vessels adrift

36.—(1) The owner or master of a vessel adrift in the harbour shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(2) It shall be a defence for the owner or master of a vessel charged with an offence under paragraph (1) to prove that the vessel did not become adrift as the result of any neglect or default on his part.

Power to deal with unserviceable vessels

37.—(1) In addition to the powers conferred on the harbour master by section 57 of the Act of 1847 and on the Company by the Merchant Shipping Act 1995 and by this Order the Company may remove, sell, destroy or otherwise dispose of a vessel laid by or neglected as unserviceable in, or on land adjoining the water of the harbour.

(2) The Company may retain out of the proceeds of sale of such a vessel expenses incurred by them in respect of the vessel, or in marking, buoying, lighting or otherwise controlling the vessel or warning shipping of its presence and expenses incurred by the harbour master under section 57 of the Act of 1847 and must pay the surplus, if any, to the person entitled thereto.

(3) If the proceeds of sale are insufficient to reimburse the Company for the said expenses, or there is no sale, the Company may recover the deficiency, or, where there is no sale, the whole of the expenses, from the owner as a simple contract debt.

(4) Except in the case of emergency, the Company must, before exercising its powers under this article, give 28 clear days’ notice in writing of its intention to do so to the owner of the vessel and by advertisement in each of three successive weeks in a local newspaper.

(5) If the owner or his place of business or abode is not known to the Company or cannot after diligent inquiry be found or is outside the United Kingdom, the notice may be given by displaying it at the harbour offices, Folkestone for the period its duration.

(1)

S.I. 2002/2742.

(2)

1995 c.21.

(3)

2004 c. 21.