The Merchant Shipping (Accident Reporting and Investigation) Regulations 2012

Made: 4th July 2012

Laid before Parliament: 9th July 2012

Coming into force: 31st July 2012

The Secretary of State for Transport, in exercise of the powers conferred by section 267 of the Merchant Shipping Act 1995 , makes the following Regulations:

Citation, commencement and revocation

1

• (1) These Regulations may be cited as the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012.

• (2) These Regulations come into force on 31st July 2012.

• (3) The Merchant Shipping (Accident Reporting and Investigation) Regulations 2005 are revoked and any investigation commenced under those Regulations which has not been completed shall continue as if it had been started under these Regulations.

Interpretation

2

• (1) In these Regulations—

• “access” means the process of embarking on or disembarking from a ship, by whatever means employed;

• “accident” has the meaning given in regulation 3;

• “the Act” means the Merchant Shipping Act 1995;

• “Chief Inspector” means the Chief Inspector of Marine Accidents appointed by the Secretary of State under section 267(1) of the Act, and any Deputy Chief Inspector;

• ...

• “Court”, in the case of judicial proceedings or an application for disclosure made in England, Wales or Northern Ireland means the High Court , or in the case of judicial proceedings or an application for disclosure in Scotland means the Court of Session;

• ...

• ...

• ...

• “IMO” means the International Maritime Organisation;

• “IMO Code” means the Code for the Investigation of Marine Casualties and Incidents annexed to Resolution A.849(2.0) of the IMO Assembly of 27th November 1997 as amended at the time of the making of these Regulations;

• “IMO Code” means the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code) adopted by the IMO by Resolution MSC.255(84) on 16th May 2008;

• “incapacitation” means a person's inability to undertake their full range of normal activities;

• “inspector” means an inspector of marine accidents appointed by the Secretary of State under section 267(1) of the Act and in the context of the safety investigation of a particular accident includes any person appointed to investigate that accident under regulation 11(2);

• “MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;

• “pleasure vessel” means—any vessel which is—wholly owned by an individual or individuals and used only for the sport or pleasure of the owner or the immediate family or friends of the owner, orowned by a body corporate and used only for the sport or pleasure of employees or officers of the body corporate, or their immediate family or friends,and is on a voyage or excursion which is one for which the owner is not paid for or in connection with operating the vessel or carrying any person , other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion, orany vessel which is wholly owned by or on behalf of a members' club formed for the purpose of sport or pleasure which, at the time it is being used, is used only for the sport or pleasure of members of that club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club;and no payments other than those mentioned above are made by or on behalf of the users of the vessel, other than by the owner, and in this definition, “immediate family” means in relation to an individual, the husband, wife or civil partner of the individual, and a brother, sister, ancestor or lineal descendant of that individual or of that individual's husband, wife or civil partner;

• “preliminary assessment” means a preparatory evaluation by the Chief Inspector which is intended to establish the likely causes and circumstances of an accident with a view to deciding whether or not a safety investigation should be undertaken;

• “relevant vessel” means any vessel other than a vessel—falling within regulation 4(1)(a)(i) to (iii);that is a warship;that is not propelled by mechanical means;that is a wooden vessel of traditional build which is not primarily propelled by mechanical means, including a dhow or junk which is made of wood and provided with sails; orthat is a fishing vessel of less than 15 metres length overall;

• ...

• “safety investigation” means an investigation or inquiry into an accident conducted with the objective of preventing future accidents.

• “senior surviving officer” means the senior surviving officer in the deck department and if there is no surviving officer in the deck department; then whoever is the senior surviving officer between—the senior surviving engineer officer; orthe senior surviving electro-technical officer;

• “serious injury” means—any fracture, other than to a finger, thumb or toe;any loss of a limb or part of a limb;dislocation of the shoulder, hip, knee or spine;loss of sight, whether temporary or permanent;penetrating injury to the eye;any injury to a person employed or carried in a ship which occurs on board or during access which results in incapacitation for more than three consecutive days excluding the day of the accident;any other injury—leading to hypothermia or unconsciousness,requires resuscitation, orrequiring admittance to a hospital or other medical facility as an in-patient for more than 24 hours;

• “severe pollution” shall have the same meaning as that set out by the IMO ;

• “ship's boat” includes a liferaft, painting punt and any boat normally carried by a ship;

• “Substantially Interested State” has the meaning given in the IMO Code;

• “United Kingdom ship” means a ship registered in the United Kingdom or a ship that is not registered under the law of any State but is eligible for registration in the United Kingdom under the Act;

• “voyage data recorder” means the electronic or mechanical equipment which may be installed on a ship to record key navigational and control information.

• (2) Where a ship is managed by a person other than by the owner (whether on behalf of the owner or some other person, or on their own behalf), a reference in these Regulations to the owner shall be construed as including a reference to that person.

Meaning of “accident”

3

• (1) Subject to paragraph (2), for the purposes of these Regulations and of section 267 of the Act, “accident” means—

• (a) a marine casualty, which is an event or sequence of events that has resulted in any of the following and has occurred directly by or in connection with the operation of a ship involving—

• (i) the death of, or serious injury to, a person;

• (ii) the loss of a person from a ship;

• (iii) the loss, presumed loss or abandonment of a ship;

• (iv) material damage to a ship;

• (v) the stranding or disabling of a ship, or the involvement of a ship in a collision;

• (vi) material damage to marine infrastructure external of a ship, that could seriously endanger the safety of the ship, another ship or any individual;

• (vii) pollution, or the potential for such pollution to the environment caused by damage to a ship or ships, or

• (b) a very serious marine casualty, which is an event or sequence of events that has resulted in any of the following and has occurred directly by or in connection with the operation of a ship involving—

• (i) the total loss of a ship;

• (ii) loss of life;

• (iii) severe pollution, or

• (c) a serious marine casualty, which is an event or sequence of events that has occurred directly by or in connection with the operation of a ship but which does not qualify as a very serious marine casualty, that involves—

• (i) fire;

• (ii) explosion;

• (iii) collision;

• (iv) grounding;

• (v) contact;

• (vi) heavy weather damage;

• (vii) ice damage, or a suspected hull defect;

resulting in any of the following—

• (aa) the immobilization of the main engines;

• (bb) extensive accommodation damage;

• (cc) severe structural damage including penetration of the hull under water rendering the ship unfit to proceed;

• (dd) pollution;

• (ee) a breakdown that necessitates towage or shore assistance, or

• (d) a marine incident, which is an event or sequences of events other than those listed in sub-paragraphs (a) to (c) which has occurred directly in connection with the operation of a ship that endangered, or if not corrected would endanger the safety of a ship, its occupants or any other person or the environment.

• (2) An accident does not include a deliberate act or omission with the intention to cause harm to the safety of a ship, an individual or the environment.

Application

4

• (1) These Regulations apply to all accidents involving or occurring on board—

• (a) any United Kingdom ship, except that regulation 6 does not apply in relation to—

• (i) a pleasure vessel;

• (ii) a recreational craft which is hired on a bareboat basis; or

• (iii) any other craft or boat, other than one carrying passengers, which is in commercial use in a harbour or on an inland waterway and is less than 8 metres overall in length unless, in the case of a craft or boat mentioned in sub-paragraphs (ii) or (iii), the accident involves any of the following—

• (aa) explosion;

• (bb) fire;

• (cc) death;

• (dd) serious injury;

• (ee) capsize of a power-driven craft or boat; or

• (ff) severe pollution; or

• (b) any other ship within the United Kingdom or United Kingdom waters save that regulations 6, 10(1), 10(2) or 10(3) only apply in relation to such a ship, to which these Regulations apply, if-

• (i) it is within the jurisdiction of a harbour master or Queen's harbour master appointed or required to be appointed, under any enactment;

• (ii) it is employed in carrying passengers to or from a port in the United Kingdom or a place mentioned in sub-paragraph (i); or

• (iii) an inspector, or other person acting on behalf of the Chief Inspector, requires that any of the evidence mentioned in regulation 10(1) or 10(2) be preserved; or

• (c) any other ship, where the Chief Inspector considers the United Kingdom to be a Substantially Interested State.

• (2) A safety investigation may also be held under regulation 8 into an accident involving or occurring on board a ship which is not a United Kingdom ship and which at the time of the accident was not within the United Kingdom or United Kingdom waters , if the Secretary of State so determines.

• (3) For the purpose of this regulation, “hired on a bareboat basis” means hired without a professional master, skipper or crew.

Objective of a safety investigation

5

• (1) The sole objective of a safety investigation into an accident under these Regulations shall be the prevention of future accidents through the ascertainment of its causes and circumstances.

• (2) It shall not be the purpose of such an investigation to determine liability nor, except so far as is necessary to achieve its objective, to apportion blame.

Duty to report accidents and serious injuries

6

• (1) When an accident occurs the following persons associated with the ship shall notify the Chief Inspector as soon as is practicable following the accident and by the quickest means available—

• (a) the master or, if the master has not survived, the senior surviving officer; and

• (b) the ship's owner unless they have ascertained to their satisfaction that the master or senior surviving officer has reported the accident in accordance with sub-paragraph (a).

• (2) In addition to any notification made under paragraph (1) the following persons shall notify the Chief Inspector as soon as is practicable and by the quickest means available any accident of which they are aware —

• (a) in the case of an accident within or adjacent to the limits of any harbour, the harbour authority for that harbour;

• (b) in the case of an accident on any inland waterway in the United Kingdom, the person, authority or body having responsibility for that waterway; or

• (c) an official of the MCA in respect of an accident within United Kingdom waters.

• (3) A person making a notification in accordance with paragraph (1) or (2) must, in so far as is practicable, include the information set out in Schedule 1.

• (4) In addition to making a notification under the preceding paragraphs, the persons specified in paragraphs 1 and 2(a) and (b) must, so far as is reasonably practicable, ensure that the circumstances of every accident are examined and that a report giving the findings of such examination, stating any measures taken or proposed to be taken to prevent a recurrence, shall be provided to the Chief Inspector as soon as is practicable.

Preliminary assessments

7

• (1) In the case of a serious marine casualty, in relation to a relevant vessel, the Chief Inspector must carry out a preliminary assessment in order to decide whether or not to undertake a safety investigation.

• (2) When carrying out a preliminary assessment the Chief Inspector must take into account, but need not be limited to;

• (a) the seriousness of the accident;

• (b) the type of vessel and or cargo involved;

• (c) the potential for the findings of a safety investigation to lead to the prevention of future accidents.

• (3) Where the Chief Inspector does not undertake a safety investigation into a serious marine casualty, the reasons for that decision must be recorded and published.

• (4) For the purposes of a preliminary assessment the powers in section 259 of the Act shall apply.

Ordering of a safety investigation

8

• (1) The Chief Inspector must ensure a safety investigation is carried out in relation to any accident that is a very serious marine casualty as regards a relevant vessel.

• (2) The Chief Inspector may decide to undertake a safety investigation in relation to an accident that is a serious marine casualty having carried out a preliminary assessment in accordance with regulation 7(1) and (2).

• (3) The safety investigation shall include but is not limited to—

• (a) the collection and analysis of evidence;

• (b) the identification of causal factors, and

• (c) where appropriate, the making of safety recommendations.

• (4) The Chief Inspector may carry out a safety investigation in relation to an accident that is a marine casualty.

• (5) Where the Chief Inspector has received a notification under paragraph (1) or (2) of regulation 6 or a report under paragraph (4) of that regulation, the Chief Inspector must decide whether or not a safety investigation should be carried out and shall publish details of that decision as soon as is reasonably practical, in such manner as is seen fit.

• (6) Before deciding whether a safety investigation should be carried out and if so, what form it should take, the Chief Inspector may obtain such information as the Chief Inspector considers necessary concerning the accident and any remedial action taken as a result.

• (7) Any person mentioned in regulation 6(1) or (2), as well as any other person who is in possession of information requested by an inspector for the purposes of paragraph (6), shall provide such information to the best of their ability and knowledge.

• (8) In the case of an accident to which regulation 3 applies, the Chief Inspector may decide not to carry out a safety investigation if satisfied, or it is otherwise established to the Chief Inspector's satisfaction, that—

• (a) any loss of life resulted from suicide or natural causes, or

• (b) any serious injury resulted from attempted suicide,

and in such circumstances the Chief Inspector may discontinue any safety investigation which has already been commenced.

• (9) Public notice that a safety investigation has been commenced may be given in such manner as the Chief Inspector may think fit, and may invite any persons who so desire to present relevant evidence to an Inspector in such a manner and within such a time as is specified in the notice.

• (10) A safety investigation shall be started as promptly as is practicable by the Chief Inspector after an accident occurs, and in any event no later than two months after the Chief Inspector is notified of its occurrence.

Subsequent or reopened investigations

9

• (1) Notwithstanding a decision not to investigate, the Chief Inspector may at any subsequent time undertake a safety investigation if satisfied that there is a good reason in the interests of future safety to do so.

• (2) The Chief Inspector may re-open a safety investigation if, following its completion, new and important evidence is discovered which in the Chief Inspector's opinion could have a material effect on any safety recommendations made.

• (3) Any safety investigation may be re-opened either in whole or as to any part of it and a re-opened investigation shall be subject to and conducted in accordance with the provisions of these Regulations.

Preservation of evidence

10

• (1) Following an accident involving a ship to which regulation 4 applies and is reportable under regulation 6, the persons mentioned in paragraph (3) shall so far as is practicable ensure that all—

• (a) charts;

• (b) log books;

• (c) recorded information relating to the period preceding, during and after an accident, howsoever recorded or retained, including information from a voyage data recorder and video recorders; and

• (d) all documents or other records which might reasonably be considered pertinent to the accident,

are kept and that no alteration is made to any recordings or entries in them.