Commentary on sections
109.Part 4 of this Act provides for the creation of statutory alcohol limits for mariners, and the creation of alcohol and drug-testing regimes. These provisions largely mirror provisions for road users and safety-critical staff on railways and related transport systems.
110.This Act puts in place an alcohol-testing regime in a similar manner to that already existing in other transport modes. The provisions in this Act therefore largely mirror those of the Road Traffic Act 1988, the Road Traffic Offenders Act 1988 and the Transport and Works Act 1992. The Act also introduces a drug-testing regime into this Part, which reflects the regime introduced in relation to road traffic by virtue of section 107 and Schedule 7 of this Act. The following table shows the sections of the current Act which are drawn from provisions in the 1988 Acts and 1992 Act, along with a brief description of their effects.
|RTS Section||Road Traffic Act 1988||Road Traffic Offenders Act 1988||Transport & Works Act 1992||Description|
|Section 4||Section 27(1)||Being impaired through drugs or alcohol|
|Section 5||Section 27(2)||Having alcohol in body above prescribed limit|
|81||Section 11(2)||Section 38(2)||Prescribed limit|
|83||See table on face of Act||See table on face of Act||Sections 29, 31, 32, 33, 34, 35||See table on face of Act|
|85||Sections 4(6) and 6(5) & (6)||Section 30||Powers of arrest without a warrant|
|86||Section 6(6)||Section 30(3) and 30(4)||Right of entry|
Section 78: Professional staff on duty
111.If a fisherman is charged with an offence under section 78(2) or 78(3), section 78(5) makes it a defence for him to show that he took the drug for medicinal purposes, in accordance with medical advice or where he had no reason to expect it would affect him adversely. The equivalent provision was contained in section 117(2) of the Merchant Shipping Act 1995, which section is now repealed.
Section 79: Professional staff off duty
112.Section 79 includes off duty professional seamen who may be called on in an emergency at any time to protect the safety of passengers. Section 79(5) extends to this class of professional staff the defence of having taken a drug for medicinal purposes.
Section 80: Non-professionals
113.Section 80 applies to non-professionals (recreational mariners). The offence created is a “moving” offence, which only applies if the vessel is in motion (in contrast to sections 78 and 79) and the offence does not apply to passengers. Section 80 also provides a power to except, by regulations, non-professional mariners who do not pose substantial safety risks from the prescribed limits and the requirement to provide specimens.
Section 83: Specimens, &c.
114.Section 83 replicates certain provisions of the Road Traffic Act 1988, amended where appropriate to apply to shipping, adopting in relation to mariners the same procedures for taking specimens as are applicable to motorists. This section also replicates, as similarly amended, the new provisions of the Road Traffic Act 1988 introduced by section 107 and set out in Schedule 7 to this Act in relation to preliminary impairment tests and preliminary drug tests.
115.Section 83 also applies certain provisions of the Road Traffic Offenders Act 1988, to offences under sections 78, 79 or 80 of this Act by substituting navigation functions for references in the 1988 Act to driving a motor car.
Section 84: Detention pending arrival of police
116.Prior to this Act, local bye-laws allowed some harbour authority officials to exercise powers to detain ships whose pilots were suspected to be committing an offence of being impaired by drink or drugs. Section 84 extends this regime to allow marine officials to detain a vessel when they reasonably suspect that a person on board is committing an offence under this Part. However, in order not to affect the operational effectiveness of the armed forces, this section does not apply to ships which are being used for a purpose of Her Majesty’s forces or which form part of the Royal Fleet Auxiliary.
Section 86: Right of entry
117.A constable in uniform may use reasonable force to board a ship or enter any other place if he reasonably suspects that he may wish to exercise a power under this Act, e.g. to administer a preliminary breath test. In exercising his right of entry he may be accompanied. This section does not extend to Scotland where adequate common law powers of entry already exist.
Section 88: Orders and regulations
118.Section 88 makes provision for the making of various orders and regulations under this Part. Under section 80 regulations may be made to create exceptions removing non-professional mariners in certain specified categories from the offence of exceeding the prescribed alcohol limit. Regulations may be made under section 81 altering the prescribed alcohol limits. Regulations may be made under section 83 to amend the table, for example, to reflect any future changes in road traffic legislation. Finally, orders can be made under section 84 to designate marine officials who are able to detain a ship.
Section 90: Crown application &c.
119.Section 90(1) and (4) excepts members of Her Majesty’s forces and members of visiting forces (including civilians attached to such visiting forces) from the offences created by this Part when they are acting in the course of their duties. This is because in such circumstances they would be subject, as the case may be, either to UK service law or, in the case of a visiting force from another country, to the service laws of that country. Otherwise, under section 90(2) this Part applies to any civilian person who is in the service of the Crown. Section 90(3) prevents marine officials from detaining any ship which is being used by Her Majesty’s forces or a ship forming part of the Royal Fleet Auxiliary Service.
Section 91: Territorial application
120.Section 91(2) and (3) ensures that the Scottish common law powers of entry for obtaining evidence are maintained in the case of mariners, as is currently the case for car drivers, train drivers and now aviation personnel who may have committed an alcohol or drug related offence. It disapplies provisions contained in this Act giving the police rights of entry, since these would risk conflicting with the common law powers available in Scotland.