The Merchant Shipping (Accident Reporting and Investigation) Regulations 2005

Explanatory Note

(This note is not part of the Regulations)

These Regulations replace the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999 (S.I. 1999/2567).

The 1999 Regulations have been revised to reflect the current working practices of the Marine Accident Investigation Branch (MAIB) of the Department for Transport and to align them, where possible, with practices applicable to the investigation of accidents in other transport modes.

• The main changes are:

Definitions of “preliminary examination”, “senior surviving officer”, “United Kingdom waters” and “voyage data recorder” have been introduced and the definition of “pleasure vessel” has been modified to take account of the concept of civil partners under the Civil Partnership Act 2004 when it comes into force. (Regulation 2(1)).

The MAIB’s main concern that safety lessons should be learned is reflected in modification of the regulation relating to the purpose of investigation, which now refers to the sole objective of the investigation of an accident being the prevention of future accidents, whilst recognizing that causes and circumstances will be established in the course of achieving the sole objective. (Regulation 5).

The duty to report accidents has been expanded to fall upon the ship’s owner (including any manager) and senior surviving officer, as well as upon the master or skipper. In addition, a requirement has been introduced for harbour authorities and other responsible authorities, as well as the Maritime and Coastguard Agency (MCA), to report accidents of which they are aware. (Regulation 6).

The circumstances in which an investigation may be ordered have been modified specifically to exclude any loss of life resulting from suicide or natural causes, or any serious injury resulting from attempted suicide. The requirement for an investigation to be discontinued where the Secretary of State orders a formal investigation to be held has been removed. (Regulation 7).

The duty to preserve evidence has been modified to fall upon the persons having a duty to report accidents under regulation 6. It has also been expanded to provide for the preservation of information from voyage data recorders and to allow a request to be made to personnel concerned with an overseas ship to comply with the requirements relating to the preservation of evidence following an accident in United Kingdom waters. A new power is provided for the Chief Inspector to require a ship to be accessible within United Kingdom waters if he considers this to be necessary for the collection or preservation of evidence and has reasonable grounds for concern that access to the ship or its crew would otherwise subsequently be denied. (Regulation 9).

In relation to the conduct of investigations, inspectors have been provided with a new power to exclude any person who has been allowed by an inspector or nominated by a witness to be present at an oral examination if he is not a solicitor or other professional legal adviser acting solely on behalf of the witness and they have substantial reason to believe that the person’s presence would hamper the investigation. Such an exclusion must be sanctioned by the Chief Inspector. If a nominated person is excluded, the witness may nominate an alternative person to be present. Provision has also been made for the Chief Inspector to decide, following a preliminary examination, whether or not a full investigation leading to a published report should take place. (Regulation 10).

The regulation relating to disclosure of records has been modified to increase the range of documents or records that may be made available without a Court order and to enable a witness to disclose his own declaration as he sees fit. A new provision has been inserted to ensure that an order is made only where the Court is satisfied that the interests of justice in disclosure outweigh any prejudice to accident investigation or to the United Kingdom’s external relations. Provision is also made for the Chief Inspector, at his discretion, to share certain information or data with the police or other official authorities. (Regulation 12).

In relation to investigations which proceed beyond the preliminary examination stage, provision is made about the facts and matters to be set out, including recommendations for future safety. The categories of persons or bodies to whom the Chief Inspector shall send a copy of a published report are expanded. The provision enabling the Secretary of State to direct that a report should not be made publicly available, or that deletions should be made, on grounds of national security, has been removed. Restrictions are imposed on the disclosure, without the Chief Inspector’s consent, of information which has been provided in a draft report or otherwise in advance of publication. A new provision has been added to make a report inadmissible in civil or criminal judicial proceedings unless a court orders otherwise. (Regulation 13).

New provision is made introducing a duty upon anyone to whom a recommendation is addressed to consider it and to provide to the Chief Inspector, within 28 days, details of any implementing action or to explain why none has been taken, and allowing the Chief Inspector to publish information concerning these matters. (Regulation 15).

In relation to the service of documents, provision is made to allow for service by e-mail. (Regulation 17).

The Regulations create new offences whereby it will be an offence for harbour authorities and inland waterway authorities to fail without reasonable cause to report accidents of which they are aware, or to provide any information required by the Chief Inspector under regulation 7.

It will also be an offence for any person to fail without reasonable cause to comply with a prohibition of access to, or interference with, any ship involved in an accident, or with a requirement to ensure that a ship is accessible in United Kingdom waters for the collection or preservation of evidence. (Regulation 18).

A Regulatory Impact Assessment has been prepared and copies can be obtained from the Marine Accident Investigation Branch, Carlton House, Carlton Place, Southampton SO15 2DZ. A copy has been placed in the Library of each House of Parliament.

Copies of the IMO Code for the Investigation of Marine Casualties and Incidents may be obtained from the International Maritime Organization at 4 Albert Embankment, London SE1 7SR.