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Railways and Transport Safety Act 2003

Background

201.On 15 June 2000, in the case of Goodes v East Sussex County Council(9), the House of Lords decided that the duty of a highway authority, under section 41 of the Highways Act 1980, to maintain a highway did not include a duty to keep the highway safe by preventing ice from forming. They considered that if such a duty were desirable, that would be a matter for Parliament.

202.The duty provided by this section is similar to one already existing in Scotland, contained in section 34 of the Roads (Scotland) Act 1984.

Section 112: Shipping legislation: application to structures, craft &c.

203.This section extends throughout the United Kingdom.

204.Section 112 provides a new, extended power for the Secretary of State to make an order so that any shipping provision may be applied, disapplied or modified in relation to things used on water.

205.A “shipping provision” is defined so that it could include a provision made in this Act (when enacted) or in the Merchant Shipping Act 1995, or in subordinate legislation made under either Act, or a provision made in or under another Act. To be a shipping provision it must also expressly apply in relation to ships, vessels or boats.

206.The order may provide for other legislation to take precedence, for example where there are relevant harbour byelaws in place.

207.The Secretary of State may use the power in order to apply the provisions of the Act relating to alcohol testing of mariners to users of personal watercraft (such as jetskisTM ), or to those in charge of chain ferries. Current case law casts doubt on whether these things would otherwise be “ships” for the purposes of Part 4 of the Act.

208.An order could also be made in order to apply the UK’s merchant shipping regulations relating to the prevention of collisions to personal watercraft, even if they are not being used “at sea”. Regulations relating to the survey of ships could be made to apply to chain ferries by means of such an order.

209.An order could be used to clarify the application of other legislation. For example, various Acts relating to public health and regulation of activities near the seashore confer byelaw-making powers on local authorities with regard to vessels used for pleasure purposes or pleasure boats. These powers (e.g. under section 76 of the Public Health Act 1961 and section 231 of the Public Health Act 1936) are currently used occasionally to prosecute users of personal watercraft for breaches of byelaws. However, if it were considered necessary to create an order under the Merchant Shipping Act 1995 in relation to personal watercraft, this order might cast doubt on the application of these other Acts to such craft. An order under section 112 of this Act might therefore be necessary to clarify the application of other Acts.

Section 113: Maritime security services

210.This section extends to the whole of the United Kingdom. It amends the Aviation and Maritime Security Act 1990 by adding a new section 36A.

9

[2000] 3 All ER 603

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Explanatory Notes

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