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The Comhairle nan Eilean Siar (Aird Mhor, Barra) Harbour Empowerment Order 2001

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PART IIIHARBOUR REGULATION

Power to lay down moorings

19.  The Comhairle may provide, place, lay down, maintain, renew, use or remove such moorings, buoys and similar apparatus within the harbour as they consider necessary or desirable for the convenience of vessels.

Licensing of moorings

20.—(1) The Comhairle may from time to time grant a licence to any person to place, lay down, maintain, renew or use moorings, buoys and similar apparatus for vessels in the harbour.

(2) Any licence granted under paragraph (1) shall be valid for a period of three years commencing with the date on which it takes effect.

(3) The Comhairle may charge a reasonable fee for the grant of a licence under this article.

Offences as to moorings, etc.

21.  Any person who, without reasonable excuse, shall place, lay down, maintain, renew, or use a mooring, buoy or similar apparatus for vessels within the harbour except under and in accordance with the terms and conditions of a licence granted under article 20 above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

General byelaws

22.—(1) The Comhairle may from time to time make byelaws for the efficient management and regulation of the harbour and the harbour undertaking.

(2) Without prejudice to the generality of paragraph (1) above, byelaws may be made under this article for the following purposes–

(a)regulating the use, operation and superintendence of the harbour and the docks, berths, wharves, quays, piers, jetties, staiths, warehouses, sheds, landing places, locks, sluices, equipment, works and conveniences (including moorings in the harbour);

(b)regulating the admission to, and the movement within, and the departure of vessels from the harbour or the removal of vessels, and for the good order and government of vessels whilst within the harbour;

(c)regulating the shipping and unshipping, landing, warehousing, stowing, depositing and removing of goods, including marine creatures of any type, within the harbour;

(d)regulating the navigation, berthing and mooring of vessels within the harbour and their speed and manner of navigation, and the use of tugs within the harbour;

(e)preventing damage or injury to any vessels, goods, vehicles, plant, machinery, property or persons within the harbour;

(f)regulating the conduct of all persons in the harbour not being members of a police force or officers or servants of the Crown whilst in the exercise of their duties;

(g)regulating the placing and maintenance of moorings within the harbour;

(h)preventing and removing obstructions or impediments within the harbour;

(i)prohibiting or regulating the discharge or deposit of ballast, ashes, refuse, rubbish or other material (including any polluting liquid) into the harbour;

(j)regulating the use of ferries within the harbour;

(k)regulating in the harbour the use of yachts, sailing boats, sailboards, rowing boats, pleasure craft and other small craft;

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

(m)regulating or prohibiting the activities in the harbour of divers, surfers, water skiers and other persons engaged in similar recreational pursuits but not so as to prohibit the use for navigation of the vessels referred to in subparagraph (k) above;

(n)regulating the launching of vessels within the harbour;

(o)prohibiting persons working or employed in or entering the harbour, or any part thereof, from smoking therein;

(p)regulating or preventing the use of fires and lights within the harbour, and within any vessels within the harbour;

(q)regulating the movement, speed and parking of vehicles within the harbour;

(r)regulating the use of any fish market provided by the Comhairle and the conduct of persons working therein or resorting thereto, and for preventing nuisance or annoyance thereat;

(s)regulating the exercise of the powers vested in the harbour master;

(t)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, and for authorising him to take such action as may be reasonably required in default of compliance with any such condition, control or direction;

(u)for the conservation of the natural beauty of all or any part of the harbour or of any of the fauna, flora, or geological or physiographical features in the harbour and all other natural features.

(3) Byelaws made under this article may–

(a)provide for imposing upon persons offending against them, or against any condition, requirement or direction imposed, made or given thereunder on summary conviction, fines not exceeding level 4 on the standard scale;

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

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

(4) Where a person is charged with an offence against a byelaw in force under this article, it shall be a defence that the offence was not caused or facilitated by any act or neglect on his part or on the part of any person engaged or employed by him and, if he was at the material time the owner or master of a vessel, that all reasonable steps were taken to prevent the commission of the offence.

(5) Where the Scottish Ministers propose to exercise the power of modification conferred on them by subsection (10) of section 202 of the Local Government (Scotland) Act 1973(1), and the modification appears to them to be substantial, they shall inform the Comhairle and require them to take any steps they consider necessary for informing persons likely to be concerned with the modification and they shall not confirm the byelaws until such period has elapsed as they think reasonable for consideration of, and comment upon, the proposed modification by the Comhairle and by other persons who have been informed of it.

Provisions as to damage

23.—(1) This article applies to any damage caused to any of the authorised works or to any other work or property of the Comhairle in the harbour–

(a)by any person who contravenes any provision of this Order, or of any byelaw made in relation to the harbour by the Comhairle; or

(b)by a vessel, whether or not as a result of any contravention of any such provision.

(2) Where damage to which this article applies has occurred, the Comhairle may detain any vessel which caused the damage, and any other property belonging to or in charge of the person causing the damage, or belonging to his employers, until the cost of the damage has been paid or until reasonable security therefor has been given to the Comhairle.

(3) The owner of any vessel causing damage to which this article applies and the master (if it was through his intentional act or failure to act that the damage was done) shall be liable for the cost of the damage.

(4) This article is without prejudice to–

(a)any right of the owner or master of a vessel to recover the cost of damage from any person whose act, or failure to act, gave rise to the damage; or

(b)any right of the Comhairle under any other enactment, agreement or rule of law; or

(c)the criminal liability of any person under any provision of this Order, or any byelaw made in relation to the harbour by the Comhairle.

General directions to vessels

24.—(1) The Comhairle may give directions for the purpose of promoting or securing conditions conducive to the ease, convenience or safety of navigation and the safety of persons and property in the harbour and, without prejudice to the generality of the foregoing, for any of the following purposes:–

(a)for designating areas, routes or fairways in the harbour which vessels are to use or refrain from using for movement, mooring or anchorage;

(b)for securing that vessels move only at certain times or during certain periods;

(c)for securing that vessels make use of descriptions of aids to navigation specified in the direction;

(d)for prohibiting–

(i)entry into the harbour by a vessel which for any reason would be or likely to become a danger to other vessels in the harbour, or to persons, property, flora or fauna in the harbour or within the harbour premises; and

(ii)entry into or navigation within any of the main fairways during any temporary obstruction thereof; and

(e)requiring the master of a vessel to give to the harbour master information relating to the vessel reasonably required by the harbour master for effecting any of the purposes of this paragraph.

(2) A direction under this article may apply–

(a)to all vessels or to a class of vessels designated in the direction;

(b)to the whole of the harbour or to a part designated in the direction; or

(c)at all times or at times designated in the direction,

and every direction under this article shall specify the extent of its application in relation to the matters referred to in sub-paragraphs (a), (b) and (c) of this paragraph.

(3) The Comhairle may revoke or amend any general direction.

Publication of general directions

25.—(1) Notice of the giving of a general direction and of any amendment or revocation of a general direction shall, except in an emergency, be published by the Comhairle as soon as practicable once in a newspaper circulating in the locality of the harbour and, if the notice relates to the giving or amendment of a direction, shall state a place at which copies thereof may be inspected and bought and the price thereof.

(2) In an emergency, notice of the giving of a general direction or of the amendment or revocation of a general direction may be given in any manner considered by the Comhairle to be appropriate.

Special directions to vessels

26.—(1) The harbourmaster may give a direction under this article in respect of a vessel anywhere in the harbour for any of the following purposes:–

(a)requiring persons to comply with a requirement made in or under a general direction;

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

(c)regulating the loading, discharging, storing and safeguarding of its cargo, fuel, water or stores and the dispatch of its business at harbour premises;

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

(e)as to the use of the motive power of the vessel;

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

(g)as to the use of ballast;

(h)requiring the removal from any part of the harbour of a vessel 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 (including wildlife) or property;

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

(iv)its removal is necessary to enable maintenance or repair work to be carried out to harbour premises or to premises adjacent thereto; and

(i)requiring its removal outside the harbour if such removal is considered by the harbourmaster to be necessary in order to avoid danger to life (including wildlife) or to property.

(2) In an emergency the harbour master may give special directions applicable to all vessels or to a particular class of vessels for any of the purposes mentioned in paragraph (1) above.

(3) A special direction may be given in any manner considered by the harbour master to be appropriate.

Failure to comply with directions

27.—(1) The master of a vessel who fails to comply with a general direction or special direction shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) Without prejudice to any other defence, it shall be a defence to a charge made pursuant to paragraph (1) above that the master had reasonable ground for believing that to comply with the direction in question would have endangered life or imperilled the safety of any vessel or its cargo, or that for other reason such compliance was impracticable.

Enforcement of special directions

28.—(1) Without prejudice to any other remedy available to the Comhairle, if a special direction is not complied with within a reasonable time, the harbourmaster may 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 a vessel to attend to a special direction, the harbourmaster may proceed as if the direction had been given and not complied with.

(3) The powers of paragraph (2) shall not be exercised–

(a)in relation to a vessel other than a lighter unless, after reasonable inquiry has been made, the master cannot be found; or

(b)in relation to a lighter unless it is obstructing or interfering with navigation.

(4) Expenses incurred by the Comhairle in the exercise of the powers conferred by paragraph (1) above shall be recoverable by them as if they were a charge of the Comhairle in respect of the vessel.

Master’s responsibility in relation to directions

29.  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 is given in relation to his vessel, to persons on board the vessel, to the cargo or any other person or property.

Power to lease harbour land and enter into agreements

30.  The Comhairle may for such consideration and upon such terms and conditions and subject to such restrictions and for such period as they think fit sell, feu, lease, excamb or otherwise dispose of the whole or any part of the lands which from time to time form the harbour and may carry into effect agreements with respect to any offices, stalls and ancillary buildings in connection therewith.

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