Wednesday, 23 June 2010
Merchant Shipping Bill 2009: Committee and Remaining Stages
Last week during the debate on Second Stage I stressed that Fine Gael supported the Bill, but I have since had the opportunity to review it in more detail and would like to hear the Minister of State's response to some observations of mine. Section 2 contains definitions. A number of things struck me and I would like the Minister of State to consider them. If he cannot give a response today, he may do so when we take the final Stages of the Bill. The only person defined as being on the ship is the ship's master. In later sections, particularly those dealing with safe manning regulations and unsafe ships, the Bill makes several references to crew members and other personnel on the ship. However, these are not defined in the Bill. Can it be amended or improved in some way by including a definition of other personnel on the ship, apart from the master?
In various places in the Bill reference is made to passenger steamers. This strikes me as a quaint definition of a seafaring vessel. Would it improve the Bill if this phrase were more tightly defined in section 2?
The definition of an Irish ship in the Bill is "a ship, other than a ship of war, known as such under section 9 of the Mercantile Marine Act 1955". Does this mean the Naval Service is excluded from the provisions of the Bill? There are many references in later sections of the Bill to safety and safe manning regulations which could well be applied to the Naval Service. Does the exclusion of a ship of war from the definition of an Irish ship mean the Naval Service is excluded from the provisions of the Bill?
The definition of master in the Bill is, "the person having, for the time being, the command or charge of the ship". As I understand it, the Senator asked if the legislation would be improved by expanding the definition to include other persons on the ship. A careful note will be taken of that query. However, the obligations arising from this legislation and international conventions relating to these matters are placed on those persons in control of the ship rather than those who might be working on it. Therefore, I do not know how expanding the definition would improve the Bill. The crew of a ship would be protected by the provisions of the Bill.
A passenger steamer is defined in the Merchant Shipping Act 1992 and earlier statutes. Therefore, a revision of a definition would need to be addressed in a consolidation Bill. Would such a revision add something to the legislation? By any ordinary construction, the term "ship" include any seafaring vessel in Irish waters. Any ordinary vessel that travels the seas will be covered by the legislation. The Senator's proposed extension of the definition would not, therefore, add to the Bill. However, at his request, a note will be made of the matters he raises and consideration given to them in the event that the suggested changes would give further meaning to the definitions section in the Bill.
On the question of whether the Bill covers ships of war known as such under section 9 of the Mercantile Marine Act 1955, I draw the Senator's attention to the fact that the Act does not apply to ships of the Naval Service which are wholly manned by its personnel. It sets out that Irish ships entitled to bear proper national colours and assume national character are State owned ships; ships wholly owned by Irish citizens or Irish bodies corporate and not registered under the law of another country; and other ships registered or deemed to be so under the Mercantile Marine Act 1955. Whether Naval Service ships should be covered by this section is a separate issue. The Bill has been designed to apply to merchant ships or other vessels. Other legislation covers the conduct and activities of ships of the Naval Service.
I thank the Minister of State for his response in regard to the passenger steamer and our own Navy which makes sense to me. It would be worthwhile looking at my point about the need to consider defining the crew of the ship because although the only person on the vessel given legal definition is the master of the ship, in different parts of the legislation other personnel are referred to in different ways. I shall give one example to show that my point merits consideration. At different stages in Part 6 of the Bill reference is made to the ship's crew. There might be benefit in defining this crew. Is it people who are on the ship for a continuous period or does the definition cover those who merely set foot on the ship? A vessel might be performing some kind of commercial service where there would be high turnover in the personnel on board and so on.
There might be nothing to this but given that many other terms in the Bill are so rigorously defined it strikes me as odd that we define only one person on the ship, namely, the master while other people on the ship are given different definitions in other parts of the Bill. There is no consistency or harmonisation in the definitions. I shall leave this with the Minister and perhaps we can look at it on Final Stage.
The Senator's point is well made, in fairness to him. We are on Report Stage in the Seanad, however, and there is no scope for further amendment of the Bill. I reiterate my earlier point that the master of the ship has responsibility for ensuring overall safety on the ship. His obligations and legal responsibilities are enshrined in this legislation and he is the relevant person. I know what the Senator is saying but the actual obligations and rules imposed on the person responsible for safety on the ship fall to be discharged by the master of the ship.
I have a question for the Minister of State which goes back to the point on definitions already discussed. Why is reference made in section 7(2) to "passenger steamers" while in section 5 the reference is to "ships"? This concerns consistency. The term "passenger steamers" is used up to a point but in section 7 the term used is "ships".
As I understand this matter of construction rules, the ships mentioned in other sections of the Bill to which the Senator refers are not passenger ships whereas section 7 provides that, "In making construction rules the Minister may categorise passenger steamers into different classes where appropriate", having regard to various conditions. However, the other vessels to which the Senator refers are not passenger ships. That is my understanding.
The Minister of State is correct. There are references in other parts of the Bill to different kinds of vessels. My point, however, is that within this section one part categorises passenger steamers into different classes while in another part that takes account of additional requirements for vessels they are no longer passenger steamers but become ships.
Subsection (2) states that the Minister may categorise passenger steamers into different classes and lays down what are those classes. Subsection (5) states that construction rules may require the provision in ships to which this section applies. My interest lies in having everything harmonised. Within the same section a vessel is classed as a "passenger steamer" in one part and as a "ship" in another. I am always given to understand that as we go through legislation if we have harmony unforeseen consequences or challenges can be avoided. I am happy to stop making this point if it is not a substantive one or if there is an explanation that might clear up the issue. However, it appears the same object is referred to in two different ways in the same section of the Bill.
Perhaps if I read the explanatory note on the section it might become clearer to both the Senator and me. Section 7 provides the Minister with power to make construction rules prescribing the requirements for the hull, superstructure, sub-division and stability, electrical installations, equipment and machinery of, and fuel use in passenger steamers. This term passenger steamers refers to passenger ships, namely, carriers of more than 12 passengers and to arrange passenger ships into different classes for the purpose of making construction rules having regard to their size, shape, speed or configuration, the services in which they are employed to the nature and duration of the voyage and the number of persons carried. The section applies to passenger steamers registered in the State or other passenger steamers while in the territorial seas or elsewhere in the State. It is made clear that the Minister may prescribe the extent, manner and frequency in which passenger steamers may be surveyed.
This section amends the 1952 Act. I refer the Senator to section 7(1) where it states the Act of 1952 is amended, substituting a new section in that Act. The purpose of this provision is to avoid confusion as regards use of the different terms and to make it clear that the references to passenger steamer that are contained throughout the construction rules in section 10 of the 1952 Act, which is being substituted by section 7 of this Bill, includes "passenger ship". This does not apply where the term "steamer" is used in subsection (1)(b) in respect of survey requirements. The reason for this exclusion is that the Merchant Shipping Act 1992 already provides for survey of passenger ships.
I do not know whether that makes the matter clear for the House. This section amends the 1952 Act and is separate from other sections of the Bill.
I have a question on the drafting of section 13(1). I read the section a dozen times today to ensure I got its gist and am still not sure about it. If I am misreading the subsection, I am sure the Minister of State will correct me, but from my reading of it, there appears to be a word missing from it. Section 13(1) reads:
The Minister may, in any case where following a survey under the Merchant Shipping Acts or under radio rules or cargo ship construction and survey rules a safety equipment certificate, a radio certificate...
Should a verb not be inserted in the subsection to the effect that the Minister may, in any case, perform an action in requesting a safety equipment certificate, a radio certificate and a cargo ship safety certificate? Should the wording indicate that the Minister may request such a certificate or for one to be drawn up, or is this provided for elsewhere in the subsection?
Section 13(1) reads:
The Minister may, in any case where following a survey under the Merchant Shipping Acts or under radio rules or cargo ship construction and survey rules a safety equipment certificate, a radio certificate and a cargo ship safety construction certificate each fall to be issued by him or her in respect of a cargo ship (within the meaning of section 3 of the Act of 1966), at the request of the owner of the ship issue a composite certificate ("cargo ship safety certificate") in respect of the ship in relation to those certificates and in lieu of issuing separate certificates.
"Issue" is the relevant verb.
I move amendment No. 1:
In page 27, subsection (3), between lines 16 and 17, to insert the following:
"(e) consideration to be taken of local, economical and fleet size,".
This amendment is similar to one tabled by my colleagues in the Dáil who asked whether a dispensation would be allowed in the application of the rules, if the vehicle or service in question was so small that complying with this provision would result in those providing the service incurring a large cost. On checking the record of the Dáil, I noted that the Minister had said there would be an opportunity for representations to be made or discretion to be used in this regard. I would like him to clarify if judgment will be exercised in meeting these requirements in circumstances where the services in question are of such a small size that it would appear not to be the smartest action to impose the requirements.
The amendment proposes the insertion of a new paragraph in section 18(3). The section deals with the making of chemical tanker rules. Specifically, it sets out the matters to which the Minister for Transport may have regard in respect of the categorisation of ships into different classes when making chemical tanker rules. The subsection relates to rules under SOLAS with regard to chemical tankers on international journeys. Therefore, the inclusion of local, economical and fleet size criteria, as proposed in the amendment, would not be relevant in this context.
Section 20(5)(b) provides that if an Irish ship encounters a difficulty and has to be brought to a port in another state, the owner or master of the ship will be compelled to inform the relevant authorities of the position on the ship's certificate of fitness. Should the owner or master of the ship also be obliged to inform the chief surveyor of ships in Ireland, as well as the local authorities in the foreign port? Therefore, where an incident occurs in another jurisdiction involving an Irish ship which will be regulated under the Bill, the Department of Transport would be informed of it. If something occurs in another jurisdiction in breach of this legislation, at what point will the owner or master of the ship be compelled to inform the Department of the incident? If the owner or master of the ship inform the authorities where the incident occurs only, will he or she be in compliance with this provision?
The Senator has raised an important point which I am delighted to clarify for him. Subsection (5) puts a statutory onus on the owner or master of an Irish ship to report to the chief surveyor - this refers to the Department of Transport - if an accident occurs or a defect is discovered - I presume this is the point to which the Senator was referring - particularly if it affects the safety and efficiency or completeness of its life saving appliances or other equipment required in this case by the chemical tanker rules. If the ship is abroad in a port to which the safety convention applies, the owner or master must also report to the appropriate authorities of the government of that state. The subsection provides for a dual obligation in this respect.
This section deals with liquefied gas carriage rules, while a later section deals with the nuclear waste carriage rules. The requirements set out in the section are specific in terms of electrical installations, tank vent systems and so on. However, a phrase not included in the section which is included in other parts of the Bill and other legislation for which the Minister is responsible, that is, "or another matter that the Minister might deem appropriate". When having this discussion on other Bills and if I put in a specific point that the Minister should consider something in respect of regulation, the Minister or one of his representatives normally come back and say that he does not want to get too specific in case his hands are tied. That kind of welcome ambiguity is absent from this section. Perhaps sections such as these would be improved if the Minister still had scope to say that these are the areas in which he wants regulation implemented and then obeyed. This is especially the case given that we are talking about the transport of liquified gas. New events and new difficulties are always uncovered that might mean that some new regulation or safety procedure is merited in future.
I do not remember whether the section contains that phrase, but I will take the Senator's word for it. The Senator is correct on this. I have often put forward the argument that making legislation too specific can sometimes tie us up at a later stage and give "outs" to people. However, the extent of the detail in this chapter is such that everything is covered that needs to be covered. It is based on the international SOLAS convention and there is no necessity for having any other matters included in it at this stage. I will have a look at it again just in case we need to apply it later on, but most of the rules in this area are well covered.
There is sufficient scope in drafting various regulations in the sections. Looking at section 28 and other sections, there are regulations that must be drawn up and we can use them to cover anything that may arise that is not specifically covered in the detail of the section.
That is fair enough. Under section 27(3)(f), the capacity is there for the Minister of the day to consider any other matters he thinks are appropriate in the circumstances, yet the same capacity is not in place in the earlier part of the Bill. I take the Minister's point that the list may be exhaustive, but given that we are continuously learning about how we can deal with matters like safety, having a degree of additional autonomy on the requirements would be a good idea. That said, I will not press this as I do not want to slow things down.
This section is about nuclear carriage rules, which is a serious matter. It lays out the different fines for which offenders under the section are liable. The fines are similar to fines in other parts of the Bill, which on summary conviction, represent a fine not exceeding €5,000, or a fine not exceeding €100,000 on conviction on indictment. If we find out that somebody is in breach of the regulations in our jurisdiction in respect of the transfer of nuclear material, then that is extremely serious. Is there a case for stronger fines here than in other parts of the Bill? Might there also be a case for imprisonment for the offences in this section? If there was a nuclear waste incident on one of our ships, we would not be happy to find that the greatest deterrent to deal with the person responsible was a fine.
I take the Senator's point, but we are providing here that the owner or master of the ship commits an offence if he fails to comply with the duties imposed on him, and then is liable for the €5,000 or the €100,000 fine. The duties consist of the duty to ensure that the ship complies with the nuclear carriage rules, the duty to have the ship surveyed as and when required, and the requirement not to go to sea with nuclear cargo without having the international certificate of fitness enforced. The ship may be regarded as unsafe under section 66, with which it is required to comply.
If something goes wrong, there is a host of other legislative provisions, not least environmental protection legislation, which can ensure that such events will never happen and which provide for imprisonment. The offences we are talking about here are consistent throughout the Bill, as are the fines. The size of the fine is a matter for the courts. The offences are related to a failure to comply with the duties I outlined, and the fines have to be proportionate, which is the advice we get regularly from the Office of the Attorney General. These fines are proportionate and they are consistent with other fines across the Bill.
The part of the Minister's response that interested me was about the other legislation that could kick in if some terrible incident was to take place. I am trying to figure out whether the consistency of fining is appropriate when we are dealing with something like nuclear carriage rules. A part of the Bill states that if a person does not have a safe manning document available, the fines to be faced are €5,000 or €100,000. It appears the offence of not complying with the nuclear carriage rules is on an entirely different level from that of not having a manning document available for a vessel. If the Minister is stating other legislation will create additional penalties, perhaps that might deal with the issue.
The section compels the master and owner of a ship to have the safe manning document available. Where will the document be kept? I understand from my reading of the Bill that it will be kept on the vessel. Is there is a provision to ensure a duplicate will be kept by the surveyor of the ship or the Department of Transport?
The reason it must be visible on the ship is to ensure compliance. There is provision only for a copy to be kept on the ship. The Senator has raised an interesting point. I do not want to amend or delay the Bill, but perhaps the regulations can provide for the keeping of a copy. I can see the point the Senator is making. We are complying with international regulations and standards. I am thinking on my feet. If somebody makes a complaint-----
Obviously, the person on board the vessel can view the document and see, for example, that there should be a crew of ten. I will ask my officials to raise at international level the point that there should be an obligation on state authorities to keep a copy in their files for cross-checking purposes.
It would be worth considering. There will be a document on the vessel, but from my reading of the Bill there is no requirement for a duplicate to be stored centrally. Section 60(2) states the Minister may require an applicant to amend a proposal for a safe manning level on a ship. However, if one does not have a copy of the original document, how will one know whether the amendment was made?
The reason the document is kept on the vessel is to enable someone at a foreign port to board and check it. I will examine this issue. It may not need legislation. I will examine whether one should ask for a copy on a non-statutory basis. We have much information on various vessels and perhaps we should include this document. A case can be made for the home state to have a copy in order that when a vessel is inspected at a foreign port, if there is a doubt about whether the document has been altered or is authentic, the authorities can check with the home port. We will pursue this point.
Section 46(4)(a) makes reference to reporting a matter "to the Chief Surveyor or any other surveyor of ships in the Marine Survey Office, Department of Transport". The section of the Bill dealing with authorised persons does not make reference to a chief surveyor; it revers to a "surveyor of ships", as do various other parts of the Bill. However, earlier sections do refer to a "Chief Surveyor". Is the definition of "authorised persons" elastic enough to include a chief surveyor?
An authorised person can include a person other than the chief surveyor. Section 71(1) provides that a surveyor of ships is an authorised person for the purposes of Part 4 of the Bill. It provides the Minister with the power to appoint authorised persons. It does not have to be a chief surveyor, but he or she will be among the authorised persons. It also provides for the revocation of appointments. The authorised person must receive a warrant of appointment from the Minister. The broader definition of "authorised persons" covers everybody necessary.
I move amendment No. 2:
In page 82, before section 87, but in Part 6, to insert the following new section:
87.—(1) A person shall not pilot or attempt to pilot a mechanically propelled vessel while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vessel.
(2) A person shall not pilot or attempt to pilot a mechanically propelled vessel while there is present in his or her body a quantity of alcohol such that, within 3 hours after so piloting or attempting to pilot, the concentration of alcohol in his or her blood will exceed a concentration of 50 milligrammes of alcohol per 100 millilitres of blood.
(3) A person shall not pilot or attempt to pilot a mechanically propelled vessel while there is present in his or her body a quantity of alcohol such that, within 3 hours after so piloting or attempting to pilot, the concentration of alcohol in his or her urine will exceed a concentration of 67 milligrammes of alcohol per 100 millilitres of urine.
(4) A person shall not pilot or attempt to pilot a mechanically propelled vessel while there is present in his or her body a quantity of alcohol such that, within 3 hours after so piloting or attempting to pilot, the concentration of alcohol in his or her breath will exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath.
(5) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.".
My colleagues raised the issue of tabling an amendment on the use of alcohol at sea in the other House. I have the response of the Minister and will not go through the entire argument again because I saw what he said elsewhere. The gist of his argument was that he would prefer to see this being part of an internationally co-ordinated response and that a diplomatic conference was taking place in Manila in June 2010 and that he hoped to see the endorsement of some kind of co-ordinated response which would allow the issue to be moved forward.
In the absence of my amendment being accepted, since this was discussed in the Dáil are there signs from the conference, if it has already taken place, that there will be a co-ordinated response to deal with this issue? As the Minister recognised elsewhere, this is a serious point which we should find some way of dealing with.