Part X

Enforcement Officers and Powers

Improvement notices and prohibition notices

References of notices to arbitration.
264
1
Any question—
a
as to whether any of the reasons or matters specified in an improvement notice or a prohibition notice in pursuance of section 261(2)(a) or 262(3)(b) or (c) in connection with any opinion formed by the inspector constituted a valid basis for that opinion, or
b
as to whether any directions included in the notice in pursuance of section 263(1) were reasonable,
shall, if the person on whom the notice was served so requires by a notice given to the inspector within 21 days from the service of the notice, be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by him.
2
Where a notice is given by a person in accordance with subsection (1) above, then—
a
in the case of an improvement notice, the giving of the notice shall have the effect of suspending the operation of the improvement notice until the decision of the arbitrator is published to the parties or the reference is abandoned by that person;
b
in the case of a prohibition notice, the giving of the notice shall have the effect of so suspending the operation of the prohibition notice if, but only if, on the application of that person the arbitrator so directs (and then only from the giving of the direction).
3
Where on a reference under this section the arbitrator decides as respects any reason, matter or direction to which the reference relates, that in all the circumstances—
a
the reason or matter did not constitute a valid basis for the inspector’s opinion, or
b
the direction was unreasonable,
he shall either cancel the notice or affirm it with such modifications as he may in the circumstances think fit; and in any other case the arbitrator shall affirm the notice in its original form.
4
Where any reference under this section involves the consideration by the arbitrator of the effects of any particular activities or state of affairs on the health or safety of any persons, he shall not on that reference make any decision such as is mentioned in subsection (3)(a) or (b) above except after—
a
in the case of an improvement notice, affording an opportunity of making oral representations to him with respect to those effects to a member of any such panel of representatives of maritime trade unions as may be appointed by the Secretary of State for the purposes of this subsection; or
b
in the case of a prohibition notice, affording an opportunity of making such representations to him to either—
i
a representative of a trade union representing persons whose interests it appears to him that the notice was designed to safeguard, or
ii
a member of any such panel as is referred to in paragraph (a) above,
as he thinks appropriate; and
c
(in either case) considering any representations made to him in pursuance of paragraph (a) or (b) above.
5
A person shall not be qualified for appointment as an arbitrator under this section unless he is—
a
a person holding a certificate of competency as a master mariner or as a marine engineer officer class 1, or a person holding a certificate equivalent to any such certificate;
b
a naval architect;
c
a person falling with subsection (6); or
d
a person with special experience of shipping matters, of the fishing industry, or of activities carried on in ports.
6
For the purposes of subsection (5)(c) a person falls within this subsection if—
a
he satisfies the judicial-appointment eligibility condition on a 7-year basis;
b
he is an advocate or solicitor in Scotland of at least 7 years’ standing; or
c
he is a member of the bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years’ standing.
7
In connection with his functions under this section an arbitrator shall have the powers conferred on an inspector by section 259 other than subsections (3), (4) and (6).
8
In the application of this section to Scotland any reference to an arbitrator shall be construed as a reference to an arbiter and the reference in subsection (1) above to a single arbitrator appointed by agreement between the parties shall be construed as a reference to a single arbiter so appointed or, in default of agreement, appointed by the sheriff.
9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
S. 264 modified (16.2.2001) by S.I. 2001/152, reg. 11(2)
S. 264 applied (16.2.2001) by S.I. 2001/152, reg. 13(3)
Ss. 264-266 applied (with modifications) (16.2.2001) by S.I. 2001/152, reg. 9(3)
S. 264(9) repealed (31.1.1997) by 1996 c. 23, s. 107(2), Sch. 4 (with s. 81(2)); S.I. 1996/3146, art. 3 (with art. 4, Sch. 2)
Word in s. 264(6)(b) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(3); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)
Ss. 261-266 applied (with modifications) (1.12.2009) by The Merchant Shipping (Anti-Fouling Systems) Regulations 2009 (S.I. 2009/2796), regs. 1, 10(5) (with reg. 3)
Ss. 258-266 applied (with modifications) (6.4.2010) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Chemical Agents) Regulations 2010 (S.I. 2010/330), regs. 1, 20 (with regs. 4, 5)
Ss. 261-266 applied (with modifications) (31.12.2018) by The Merchant Shipping (Work in Fishing Convention) Regulations 2018 (S.I. 2018/1106), regs. 1(2), 28(5) (with reg. 3)
Ss. 261-266 applied (with modifications) (15.8.2013) by The Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations 2013 (S.I. 2013/1785), regs. 1, 16(5)
S. 264(6)(a) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(2); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)
Ss. 261-266 applied (with modifications) (7.8.2014) by The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 (S.I. 2014/1613), regs. 1(2), 54(5)
Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Vibration at Work) Regulations 2007 (S.I. 2007/3077), regs. 1, 18
Ss. 261-266 applied (with modifications) (6.4.2018) by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58), regs. 1, 19(6)(7), 20(6)(7) (with regs. 3, 4)
S. 264 applied (20.4.2010) by The Merchant Shipping (Technical Requirements for Inland Waterway Vessels) Regulations 2010 (S.I. 2010/1075), regs. 1(2), 12(7)(b) (with reg. 3)
Ss. 258-266 applied (with application in accordance with reg. 4 of the amending S.I.) by The Merchant Shipping and Fishing Vessels (Control of Noise at Work) Regulations 2007 (S.I. 2007/3075), regs. 1, 19
Ss. 258-266 applied (with modifications) (5.12.2016) by The Merchant Shipping (Marine Equipment) Regulations 2016 (S.I. 2016/1025), regs. 1, 28
Ss. 258-266 applied (with modifications) (21.11.2016) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Electromagnetic Fields) Regulations 2016 (S.I. 2016/1026), regs. 1, 15 (with reg. 4)
Ss. 258-266 applied (with modifications) (6.4.2010) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Biological Agents) Regulations 2010 (S.I. 2010/323), regs. 1, 27 (with regs. 4, 5)
Word in s. 264(6)(c) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), s. 148, Sch. 10 para. 26(3); S.I. 2008/1653, art. 2(d) (with arts. 3, 4)
Ss. 258-266 applied (6.4.2010) by The Merchant Shipping (Maritime Labour Convention) (Medical Certification) Regulations 2010 (S.I. 2010/737), regs. 1(1), 19 (with reg. 5)
Ss. 261-266 applied (with modifications) (17.3.2014) by S.I. 2002/2125, reg. 14(6) (as substituted by The Merchant Shipping (Maritime Labour Convention) (Hours of Work) (Amendment) Regulations 2014 (S.I. 2014/308), regs. 1(2), 2(14))
S. 264 applied (with modifications) (24.11.2011) by The Merchant Shipping (Port State Control) Regulations 2011 (S.I. 2011/2601), regs. 1(2), 14(4)
Ss. 258-266 applied (1.3.2008) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 (S.I. 2007/3100), regs. 1, 22
Ss. 258-266 applied (with modifications) (6.4.2010) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Work at Height) Regulations 2010 (S.I. 2010/332), regs. 1, 22 (with regs. 4, 5)
Ss. 258-266 applied (10.1.2011) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Asbestos) Regulations 2010 (S.I. 2010/2984), regs. 1, 26
Ss. 258-266 applied (10.1.2011) by The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Artificial Optical Radiation) Regulations 2010 (S.I. 2010/2987), regs. 1, 16
Ss. 261-266 applied (with modifications) (30.11.2019) by The Merchant Shipping (Work in Fishing Convention) (Survey and Certification) Regulations 2018 (S.I. 2018/1107), regs. 1(2), 10(5) (with reg. 3)
Ss. 261-266 applied (with modifications) (13.10.2014) by S.I. 1997/2962, reg. 27A(5) (as inserted by The Merchant Shipping (Maritime Labour Convention) (Health and Safety) (Amendment) Regulations 2014 (S.I. 2014/1616), regs. 1(2), 2(18))