Darren Wakefield

ig

PF
Department MARITIME COMMERCE AND INFRASTRUCTURE
for Transport DEEN
p DEPARTMENT FOR TRANSPORT
ZONE 2/29
GREAT MINSTER House
33 HORSEFERRY ROAD
LONDON
Mr IM Arrow SW1P 4DR
Senior Coroner
Her Majesty's Coroner for the County of Devon
DIRECT is is

By Email: hmcoroner@plymouth.gov.uk

e-mail:
Web Site: www.dft.gov.uk
Our Ref:

30 JUNE 2016

Dear Mr Arrow,

Thank you for your letter dated 21 January 2016 to the Secretary of State regarding the
inquest touching the death of Darren Wakefield. In your letter you explain that the hulk of
the Guiding Star remains in situ and that in your view it is a potential hazard. You
suggest that the Department may want to consider whether current legislation for dealing
with derelict (which we have taken to include abandoned or neglected vessels) vessels in
harbours is fit for purpose. I’m sorry it has taken a little while to respond.

The Department has undertaken a review as to whether the current legislation relating to
derelict vessels is fit for purpose. ‘In carrying out the review we have identified the
relevant legislation, consulted the Maritime and Coastguard Agency and sought the views
of harbour masters through the United Kingdom Harbour Masters Association. The detail
of our findings is outlined below. To summarise, our conclusion is that the existing primary
legislation and common law duties do provide a sufficient legal framework for dealing with
derelict vessels in harbours. However, we recognise that some of the legislation is old
and can be difficult to interpret. We have therefore provided further guidance on this
matter in the Department’s Port Marine Safety Code and associated Guide to Good
Practice, revised versions of which are to be published shortly.

Background

Nearly all harbours with significant commercial or recreational usage in the UK are
managed by Statutory Harbour Authorities (referred to here as harbour authorities).

There are several hundred harbour authorities in the UK. The powers and duties of each
harbour authority including those to regulate users of the harbour are set out in its local
legislation. This includes private Acts of Parliament and secondary legislation made under
the Harbours Act 1964, known as Harbour Revision Orders and Harbour Empowerment
Orders. The details of the legislation varies for each harbour authority reflecting the
particular circumstances of the harbours. There are also a number of general public Acts
of Parliament that are relevant to harbour authorities in carrying out their business.

The local legisiation of many harbour authorities incorporate a number of standard
provisions taken from the Harbours Docks and Piers Clauses Act 1847, (the 1847 Act).
Clauses from this Act can be amended when incorporated in a harbour authority’s local
legislation to reflect its particular requirements.

Harbour authorities are independent bodies, they may be part of a private company,
owned by local authorities or independent ‘trust ports’. They are run on a commercial
basis, earning revenues from charges levied on harbour users and other sources. They
generally do not receive government funding in support of their activities.

The Department for Transport has responsibility for policy on maritime matters in the UK,
including in relation to safety in harbours. The Maritime and Coastguard Agency (MCA) is
an executive agency of DfT and works with strategic partners to promote and discharge
the functions of the Secretary of State in relation to maritime safety, encouraging
economic growth, and minimising the maritime sector's environmental impact.

An important role of the Department and MCA in relation to harbour authorities is the
preparation and up-dating of the Port Marine Safety Code (PMSC) and associated Guide
to Good Practice on Port Marine Operations. The PMSC applies to all harbour authorities.
It is primarily intended for the duty holder in each authority who is directly responsible for
safety of marine operations in the harbour waters and approaches.

Summary of the principal statutory powers

The principal legislation that covers these types of vessels are sections 52, 56 and 57 of
the 1847 Act (as incorporated into local harbour legislation), section 252 of the Merchant
Shipping Act 1995 (the 1995 Act), section 1 of the Dangerous Vessels Act 1985 (subject
to certain limitations) and section 108A and Schedule 3A of the Merchant Shipping Act
1995. Some of these legislative powers rest with the harbour master or harbour authority;
some rest with the Secretary of State. In response to our consultation, harbour masters
also stated that they have provisions within their own local legislation and have also used
alternative legislation in some cases to deal with problem vessels.

We have not been able to undertake a review of the individual local legislation as
applicable to each harbour, and within which there may be considerable variations. For
example, substantial parts of the 1847 Act (including sections 56 and 57) may be
incorporated into local legislation, but additional or modified powers may also be included,
including specific wreck removal powers.

More information about the principal statutory powers available to harbour masters and
harbour authorities is in the annex.

Common law duties

In addition to statutory powers and duties, harbour authorities and their employees
(including the harbour master) owe a duty of care under the common law to those who
reasonably and foreseeably are within the harbour area.

Consultation responses
The responses received to our consultation with harbour masters showed that issues

relating to derelict vessels do arise at harbours from time to time, although the position
varied somewhat from harbour to harbour. For example, one harbour master said that

derelict vessels were a persistent and endemic problem, while another said there had
been one case in the past 5 years. One harbour master said that the board has a
standing agenda item to deal with abandoned and neglected vessels.

The responses revealed that harbour masters and harbour authorities utilise different
legislative powers when dealing with abandoned and neglected vessels. Some rely on
$252 of the 1995 Act; other harbour masters said they relied on clauses incorporated from
the 1847 Act or other local harbour legislation. Some harbours indicated that they rely on
both the 1847 and 1995 Acts. Others used powers in general legislation.

There were a range of views about the efficacy of the legislation used to deal with this
issue. There were concerns about the practicalities of dealing with derelict vessels
including costs incurred by harbour authorities. A number also mentioned the risk of legal
challenge from the owner of a vessel.

Conclusion

On the basis of our review, our conclusion is that the existing primary legislation and
common law duties provide a sufficient legal framework for the purposes of dealing with
derelict vessels. In our consideration of the legislative provisions, we have also noted that
although the legislation is generally expressed in permissive (discretionary) terms, the
powers granted to a harbour by Parliament are in almost all cases conferred for the
purpose of providing a public service and may by implication impose a duty to take action
where there is a threat to life. Where harbour masters are uncertain of their powers it is
expected that they will seek appropriate legal advice.

In terms of the 1847 Act, we recognise that because it is old and contains outdated
drafting, it can be difficult to interpret, and as a result harbour masters can be cautious
about using it for fear of legal challenge. In some cases we understand that the financial
implications of dealing with an abandoned or neglected vessel, and the lack of value of
such vessels, resulting in an inability for harbours to recover their costs fully, can lead to a
cautious approach by harbour masters and authorities. However, from a legal standpoint
in such circumstances we consider that safety should be the key consideration for
harbour authorities.

The Department has prepared advice to clarify for harbour authorities and harbour
masters their various responsibilities and powers relating to abandoned vessels for
inclusion in the PMSC and the accompanying Guide to Good Practice, which is due to be
reissued shortly. Also, to highlight the importance of good communication between
harbour masters and the harbour authority board to enable effective use of their statutory
powers, some guidance on this will be included within the good governance guidance for
ports when this is updated later in 2016.

Yours sincerely

jae.

Deputy Director, Maritime Commerce and Infrastructure