The Merchant Shipping (Watercraft) Order 2023

PART 1 Introductory

Citation, commencement, extent and application

1.—(1) This Order may be cited as the Merchant Shipping (Watercraft) Order 2023 and comes into force on 31st March 2023.

(2) This Order extends, and applies in relation, to the whole of the United Kingdom.

Interpretation

2.—(1) In this Order—

“the 1995 Act” means the Merchant Shipping Act 1995(1);

“applied shipping provision” means a provision applied, together with any modifications made, by this Order;

“watercraft” has the meaning given in article 3.

(2) Except in—

(a) section 8(1) of the 1995 Act (as applied by article 4(a));

(b) section 313(2) of the 1995 Act (as applied, and modified, by paragraph (4)(c));

(c) the Merchant Shipping (Registration of Ships) Regulations 1993(3) (as applied, and modified, by Schedule 1);

(d) a reference to a surveyor of ships, a surveyor general of ships or the master of a ship,

a reference in an applied shipping provision to a ship is to be read as including a reference to a watercraft (and cognate expressions are to be construed accordingly).

(3) Where an applied shipping provision refers to—

(a) an enactment;

(b) part of an enactment;

(c) provision—

(i) contained in an enactment, or

(ii) made under enabling powers contained in an enactment,

to the extent the enactment, part or provision is applied (and to the extent it is modified) by this Order, the reference is to be read as a reference to the enactment, part or provision as so applied (and as so modified).

(4) The definitions of terms contained in the following provisions of the 1995 Act apply for the purposes of interpreting an applied shipping provision—

(a) the following provisions of section 1 (British ships and United Kingdom ships)—

(i) subsection (1)(d), as if for “is a small ship other than a fishing vessel and” there were substituted “a watercraft”;

(ii) the definition of “qualified owners” in subsection (2), as if “for the purposes of that paragraph; and” were omitted;

(b) section 23 (interpretation of Part 2), except for the definition of “the private law provisions for registered ships” in subsection (1);

(c) section 313 (definitions)—

(i) as if for the definition of “foreign” there were substituted—

““foreign”, in relation to a watercraft, means that it is not a watercraft which is a British watercraft (as defined in section 1(1)(d) of the Merchant Shipping Act 1995);”;

(ii) but the definitions of “harbour” and “harbour authority” do not apply for the purposes of interpreting the applied shipping provisions mentioned in article 11(1);

(d) section 313A(4) (meaning of “qualifying foreign ship”).

Meaning of “watercraft”

3.—(1) Subject to paragraph (2), “ watercraft” means any type of craft which—

(a) is capable of moving under its own mechanical power,

(b) is used, navigated or situated wholly or partly in or on water, and

(c) is capable of being used to carry one or more persons.

(2) “Watercraft” does not include a ship or fishing vessel within the meanings given in section 313(1) of the 1995 Act.

PART 2 Registration of watercraft

Registration of watercraft: application of the 1995 Act

4.  The following provisions of the 1995 Act apply in relation to watercraft as they apply in relation to ships—

(a) section 8 (central register of British ships), as if after subsection (1) there were inserted—

“(1A) From 31st March 2023, the register of British ships maintained under subsection (1) is to include all registrations of watercraft in the United Kingdom.”;

(b) section 9 (registration of ships: basic provisions);

(c) section 10 (registration regulations);

(d) section 13 (status of certificate of registration);

(e) section 14 (offences relating to a ship’s British connection);

(f) subsection (3) of section 16 (private law provisions for registered ships and liability as owner);

(g) section 21 (disclosure of information relating to registration by other government departments);

(h) section 22(1) (forgery of documents: Scotland).

Registration of watercraft: application of the Merchant Shipping (Registration of Ships) Regulations 1993

5.  Schedule 1 applies and, in some cases, modifies certain provisions of the Merchant Shipping (Registration of Ships) Regulations 1993 in relation to watercraft.

PART 3 Safety of watercraft

Conduct endangering watercraft, ships, structures or individuals

6.  Section 58 (conduct endangering ships, structures or individuals) applies in relation to watercraft as it applies in relation to ships, as if it read—

“58.— (1) This section applies in relation to a watercraft within United Kingdom waters.

(2) If the user of the watercraft, while in or on the watercraft or in its immediate vicinity—

(a) does any act which causes or is likely to cause—

(i) the loss or destruction of or serious damage to the watercraft or its machinery, navigational equipment or safety equipment, or

(ii) the loss or destruction of or serious damage to any other watercraft or any ship or structure, or

(iii) the death of or serious injury to any person, or

(b) omits to do anything required—

(i) to preserve the watercraft or its machinery, navigational equipment or safety equipment from being lost, destroyed or seriously damaged, or

(ii) to preserve any person in or on the watercraft from death or serious injury, or

(iii) to prevent the watercraft from causing the loss or destruction of or serious damage to any other watercraft or any ship or structure, or death of or serious injury to any person not on or in the watercraft,

and either of the conditions specified in subsection (3) below is satisfied with respect to that act or omission, the person is (subject to subsections (6) and (7) below) guilty of an offence.

(3) Those conditions are—

(a) that the act or omission was deliberate or amounted to a breach or neglect of duty;

(b) that the person who committed the act or made the omission was under the influence of drink or a drug at the time of the act or omission.

(4) If the user or operator of the watercraft—

(a) discharges any of their duties or performs any other function in relation to the operation of the watercraft or its machinery or equipment, in such a manner as to cause, or to be likely to cause, any such loss, destruction, death or injury as mentioned in subsection (2)(a) above, or

(b) fails to discharge any of their duties, or to perform any such function, properly to such extent as to cause, or to be likely to cause, any of those things,

the person is (subject to subsections (6) and (7) below) guilty of an offence.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding level 5 on the standard scale;

(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(6) In proceedings for an offence under this section it is a defence to prove—

(a) in the case of an offence under subsection (2) above where the act or omission alleged against the accused constituted a breach or neglect of duty, that the accused took all reasonable steps to discharge that duty;

(b) in the case of an offence under subsection (2) above, that at the time of the act or omission alleged the accused was under the influence of a drug taken for medical purposes and either—

(i) the accused took the drug on medical advice and complied with any directions given as part of that advice, or

(ii) the accused had no reason to believe that the drug might have the influence it had;

(c) in the case of an offence under subsection (4) above, that the accused took all reasonable precautions and exercised all due diligence to avoid committing the offence; or

(d) in the case of an offence under either of those subsections, that in all the circumstances, the loss, destruction, damage, death or injury in question, or (as the case may be) the likelihood of its being caused, either could not reasonably have been foreseen by the accused or could not reasonably have been avoided by them.

(7) Where the watercraft is registered under the law of any country outside the United Kingdom, no proceedings for any offence under this section are to be instituted against any person—

(a) in England and Wales, except by or with the consent of the Secretary of State or the Director of Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Secretary of State or the Director of Public Prosecutions for Northern Ireland.

(8) In this section—

“duty” means a duty of care however it arises, but only to the extent that the duty is owed in connection with the use or, as the case may be, the operation of the watercraft;

“structure” means any fixed or moveable structure (of whatever description) other than a ship or watercraft.”.

Power to detain dangerously unsafe watercraft

7.  The following provisions of the 1995 Act apply in relation to watercraft as they apply in relation to ships—

(a) section 94(5) (meaning of “dangerously unsafe ship”), as if in subsection (1) for “96, 97 and 98” there were substituted “96 and 97”;

(b) section 95(6) (power to detain dangerously unsafe ship), as if—

(i) in subsection (2), the reference to United Kingdom ships includes a reference to watercraft whether unregistered or registered in the United Kingdom;

(ii) in the introductory words to subsection (3), the reference to the master of the ship includes a reference to the owner of the watercraft;

(c) section 96(7) (references of detention notice to arbitration);

(d) section 97 (compensation in connection with invalid detention of ship);

(e) section 284(8) (enforcing detention of ship), as if each reference to a master of a ship includes a reference to an operator of a watercraft.

Owner liable for unsafe operation of watercraft

8.  Section 100(9) (owner liable for unsafe operation of ship) of the 1995 Act applies in relation to watercraft as it applies in relation to ships, as if it read—

“100.— (1) It is the duty of the owner of a watercraft to which this section applies to take all reasonable steps to secure that the watercraft is operated in a safe manner.

(2) This section applies to any watercraft within United Kingdom waters.

(3) If the owner of a watercraft to which this section applies fails to discharge the duty imposed by subsection (1) above, the owner is liable—

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding level 5 on the standard scale;

(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(4) Where any such watercraft is managed, either wholly or in part, by a person (“P”) other than the owner under the terms of an arrangement (whether or not for reward) under which the operational safety of the watercraft (whether or not among other things) is to be maintained by P, any reference to the owner of the watercraft in subsection (1) or (3) above includes a reference to P.

(5) No proceedings for an offence under this section are to be instituted—

(a) in England and Wales, except by or with the consent of the Secretary of State or the Director of Public Prosecutions;

(b) in Northern Ireland, except by or with the consent of the Secretary of State or the Director of Public Prosecutions in Northern Ireland.”.

Safety and health regulations

9.  Section 85(10) (safety and health on ships) of the 1995 Act applies in relation to watercraft as it applies in relation to ships.

Safety and health regulations: supplementary provision

10.—(1) Section 86(11) (provisions supplementary to section 85: general) of the 1995 Act applies in relation to watercraft safety regulations as it applies in relation to ship safety regulations.

(2) In paragraph (1)—

(a) “ship safety regulations” means regulations made in relation to ships under section 85 of the 1995 Act;

(b) “watercraft safety regulations” means regulations made in relation to watercraft under section 85 of the 1995 Act as applied by article 9.

PART 4 Harbour directions in relation to watercraft

Application of the Harbours Act 1964

11.—(1) The following provisions of the Harbours Act 1964(12) apply in relation to watercraft as they apply in relation to ships—

(a) section 40A (directions), as if for “the master of a ship” were substituted “the owner or operator of a watercraft”;

(b) section 40B (procedure);

(c) section 40C (enforcement), as if for “The master of a ship” were substituted “The owner and operator of a watercraft”;

(d) section 40D (supplemental).

(2) The definitions of “harbour” and “harbour authority” in section 57(1)(13) of the Harbours Act 1964 apply for the purposes of interpreting the applied shipping provisions mentioned in paragraph (1).

PART 5 Miscellaneous provisions

Appointment and powers of surveyors in relation to watercraft

12.  The following provisions of the 1995 Act apply in relation to watercraft as they apply in relation to ships—

(a) section 256 (appointment of inspectors and surveyors), as if subsections (6) to (8) were omitted;

(b) section 258(14) (powers to inspect ships and their equipment, etc.), as if subsection (2) were omitted.

Powers to make subordinate legislation under the 1995 Act

13.  The following provisions of the 1995 Act apply for the purposes of any power to make subordinate legislation in relation to watercraft conferred by an applied shipping provision as they apply for the purposes of any power to make subordinate legislation in relation to ships conferred by the 1995 Act—

(a) section 306(1) and (2)(15) (regulations, rules and orders, etc.);

(b) section 306A(16) (power to make ambulatory references to international instruments).

Application of other shipping provisions in relation to watercraft

14.  Schedule 2 applies and, in some cases, modifies certain shipping provisions in relation to watercraft.

Signed by authority of the Secretary of State for Transport

Vere

Parliamentary Under Secretary of State

Department for Transport

16th January 2023