Office of Public Sector Information
PART III continued
(5) In section 36 (enforcement of section 34)—
(a) after subsection (1) there shall be inserted—
“(1A) Where a person is bound by any condition subject to which any such consent has been given under that section but is not the person to whom the consent was given, then, for the purposes of subsection (1) of this section, he shall not be taken to have failed to comply with the condition unless—
(a) he has been served by the Secretary of State with a notice requiring him to comply with the condition within such period (not being less than thirty days) as may be specified in the notice; and
(b) he has failed to comply with the condition within that period”;
(b) in subsection (2), for “the last foregoing subsection” there shall be substituted “subsection (1) of this section”; and
(c) in subsection (4), after “from the person” there shall be inserted “on whom the notice was served under subsection (2) of this section or (if no such notice was served) from the person”.
(6) After section 36 insert—
(1) Where at any time after the Secretary of State has given his consent for an operation falling within section 34(1)(a) of this Act (“the relevant consent”), it appears to him—
(a) that any danger to navigation has arisen by reason of—
(i) any substantial damage to any works to which that consent relates, or
(ii) any other substantial and unforeseen change in the state or position of any such works, and
(b) that it is urgently necessary to do so in the interests of the safety of navigation,
he may, by notice served on the person to whom the consent was given, impose on that person such requirements as he thinks fit with respect to any of the matters referred to in subsection (2) below.
(2) Those matters are—
(a) the provision on, or in the vicinity of, the works in question of any lights, signals or other aids to navigation, and
(b) the stationing of guard ships in the vicinity of those works.
(3) Where the person on whom a notice is served under subsection (1) above fails to comply with any requirements of the notice within the period of 24 hours beginning with the time when it is served on him or as soon after the end of that period as is reasonably practicable, the Secretary of State may make such arrangements as he thinks fit for the purpose of securing that those requirements are implemented.
(4) Where under subsection (3) above the Secretary of State makes any such arrangements, he shall be entitled to recover the cost, as certified by him, of making those arrangements from such one or more of the following, namely—
(a) the person to whom the relevant consent was given, and
(b) any other person or persons who is or are, in accordance with section 34(4A)(b) of this Act, bound by any condition subject to which that consent was given,
as he thinks fit.
(5) Once the requirements of a notice under subsection (1) above have been complied with by the person on whom it was served, or implemented in accordance with arrangements made by the Secretary of State under subsection (3) above, those requirements shall, subject to subsection (6) below, be treated for the purposes of this Part of this Act as conditions subject to which the relevant consent was given.
(6) Section 34(4A)(a) and (d) of this Act shall not apply to any such requirements; but if it appears to the Secretary of State (whether on the application of any person or otherwise) that the circumstances giving rise to the urgent necessity for the imposition of the requirements no longer exist, he shall revoke them by notice served on the person to whom the relevant consent was given.
(7) Where the Secretary of State has served a notice under subsection (1) above in respect of any particular circumstances, subsection (5) above shall not preclude him from serving a further notice under subsection (1) in respect of those circumstances.
(8) A notice may be served by the Secretary of State under subsection (1) above whether or not—
(a) the operation in question has been completed, or
(b) any condition was imposed by him, on giving the relevant consent, with respect to any of the matters referred to in subsection (2) above.”
(7) In section 49 (interpretation)—
(a) in subsection (1), in the definitions of “sea” and “seashore”, for “the next following subsection” there shall be substituted “subsections (2) and (2A) of this section”; and
(b) the following subsection shall be inserted after subsection (2)—
“(2A) For the purposes of Part II of this Act the expression “sea” includes any part of the sea within the seaward limits of the territorial sea of the United Kingdom, and the expression “seashore” shall be construed accordingly.”
(1) Where—
(a) it appears to the Secretary of State that any harbour authority have, by virtue of any statutory provision, power to license or otherwise regulate operations of any description falling within any of paragraphs (a) to (c) of section 34(1) of the [1949 c. 74.] Coast Protection Act 1949 (“the relevant power”), and
(b) he considers it appropriate to do so,he may make regulations providing for section 34 of that Act not to apply to operations of that description in relation to which the relevant power is exercisable and which are carried out within such area or areas falling within the jurisdiction of that harbour authority as may be specified in the regulations (“the prescribed operations”); and, if he does so, the relevant power shall be exercisable by the harbour authority, in relation to the prescribed operations, subject to and in accordance with the following provisions of this section.
(2) Regulations made by the Secretary of State under this section with respect to any harbour authority may make provision—
(a) in connection with the exercise by the authority of the relevant power in relation to the prescribed operations—
(i) for any matter for which provision is made by sections 34(2) to (4A) and 36 of the Coast Protection Act 1949, and
(ii) for any provision of the regulations made in pursuance of sub-paragraph (i) above or any of paragraphs (b) to (g) below to have effect in addition to or in substitution for any other statutory provision which (apart from the regulations) has effect in that connection;
(b) requiring the authority to advertise in such manner as may be specified in the regulations—
(i) any application made to them for the grant, in the exercise of the relevant power, of a licence to carry out a prescribed operation, and
(ii) the grant of any such licence and any conditions subject to which it has been granted,
and to give to the Secretary of State such notice of any of those matters as may be so specified;
(c) enabling representations to be made with respect to any such application in such manner as may be specified in the regulations;
(d) requiring the authority, when determining any such application, to have regard to any representations made in accordance with the regulations so far as touching on any consideration material to the authority’s decision on the application;
(e) enabling an appeal to the Secretary of State to be brought, by such persons, on such grounds and in such manner as may be specified in the regulations, against—
(i) the grant or refusal of any such licence, or
(ii) any conditions imposed on the grant of any such licence;
(f) for the operation of any such licence to be suspended during the period during which such an appeal may be brought and, if such an appeal is brought by a person other than the applicant, until such time (if any) as the authority’s decision on the application is affirmed by the Secretary of State;
(g) authorising the Secretary of State on such an appeal to do any of the things mentioned in subsection (6)(a) to (c) below;
(h) for any statutory provision having effect in relation to the authority to have effect subject to such modifications as appear to the Secretary of State to be necessary or expedient—
(i) for the purpose of making provision for any matter for which provision may be made by virtue of any of paragraphs (a) to (g) above, or
(ii) in consequence of any provision of the regulations made in pursuance of any of those paragraphs.
(3) Where—
(a) any regulations under this section are in force in relation to a harbour authority, and
(b) the authority have determined an application made to them for the grant, in the exercise of the relevant power, of a licence to carry out a prescribed operation, and
(c) no appeal has been brought (whether under the regulations or otherwise) in respect of their determination of the application, but
(d) the Secretary of State considers that it would be appropriate in the interests of the safety of navigation for the application to be redetermined by him,
the Secretary of State may, within the period of 60 days beginning with the date of the authority’s determination, serve a notice on the authority requiring them to furnish him with written particulars of their determination, and with any documents in their possession relating to the application, in order that he may redetermine the application.
(4) Where the Secretary of State serves a notice under subsection (3) in respect of any application—
(a) the Secretary of State shall serve a copy of that notice on the applicant and shall, in such manner as he thinks fit, advertise the fact that the application is to be redetermined by him; and
(b) the operation of any licence granted by the authority in pursuance of the application shall be suspended until such time (if any) as the authority’s decision to grant the licence is affirmed by the Secretary of State under subsection (6).
(5) The Secretary of State shall, when redetermining any application, have regard to any representations made to him by persons appearing to him to be likely to be affected by the operation to which the application relates where those representations have been made to him within the period of 30 days beginning with the date (or, as the case may be, the latest date) of the publication of any advertisement published in pursuance of subsection (4)(a).
(6) Where the Secretary of State redetermines an application, he may (according to the circumstances of the case)—
(a) direct the harbour authority to grant either—
(i) a licence free from conditions, or
(ii) a licence subject to such conditions as are specified in the direction,
as he thinks fit;
(b) direct the harbour authority to cancel any licence granted by them in pursuance of the application; or
(c) affirm the harbour authority’s determination of the application.
(7) Any direction given by the Secretary of State under subsection (6)(a) shall be a direction requiring the authority in question to grant such a licence as is mentioned in sub-paragraph (i) or (ii) of that provision either—
(a) in the form in which it was originally applied for by the applicant, or
(b) in that form but subject to such modifications as are specified in the direction,
as the Secretary of State thinks fit; but where the Secretary of State proposes to specify any modifications under paragraph (b) above which appear to him to be capable of resulting in any substantial interference with navigation—
(i) he shall take such steps as appear to him to be reasonably practicable for informing persons likely to be concerned, and
(ii) shall not so specify those modifications unless there has elapsed such period for consideration of, and comment upon, them as he thinks reasonable.
(8) The power of the Secretary of State to make any regulations under this section with respect to any harbour authority shall be exercisable by him either—
(a) on the application of the harbour authority, or
(b) of his own motion after consulting the authority.
(9) On each occasion when a harbour authority grant a licence in the exercise of any such power as is mentioned in subsection (1) (whether they do so in pursuance of the preceding provisions of this section or not) they shall furnish the Hydrographer of the Navy—
(a) before the operation to which the licence relates has been begun, with written particulars of the operation and with a plan showing where it is to be carried out, and
(b) once the operation has been carried out, with a notification of that fact, and with such plans and additional information relating to the completed operation as he may require for the purpose of determining whether, and if so what, changes should be made to any chart or other publication produced under his superintendence.
(10) It shall be the duty of any harbour authority to whom the Secretary of State gives a direction under or by virtue of this section to give effect to the direction.
(11) In this section “licence” includes a consent or permission and references to the grant of a licence accordingly include references to the giving of a consent or permission.
(1) Part III of the [1974 c. 43.] Merchant Shipping Act 1974 (protection of shipping and trading interests) shall be amended as follows.
(2) In section 14 (foreign action affecting shipping), the following subsection shall be substituted for subsection (1)—
“(1) The Secretary of State may exercise the powers conferred by this section if he is satisfied that—
(a) a foreign government, or
(b) persons purporting to exercise governing authority over any territory outside the United Kingdom, or
(c) any agency or authority of a foreign government or of such persons,
have adopted, or propose to adopt, measures or practices concerning or affecting any shipping services which—
(i) are damaging or threaten to damage the shipping or trading interests of the United Kingdom, or
(ii) are damaging or threaten to damage the shipping or trading interests of another State,
and, in the latter case, the Secretary of State is satisfied that action under this section would be in fulfilment of the obligations of the United Kingdom to that other State or would be appropriate in view of any arrangements made between Her Majesty’s Government and the government of that other State.”
(3) The following subsection shall be substituted for section 14(3)—
“(3) The Secretary of State may by order provide for—
(a) regulating the provision of any shipping services and the rates, fares or other amounts which may or must be charged for providing those services;
(b) regulating—
(i) the admission and departure of ships to and from United Kingdom ports,
(ii) the nature of the shipping services they may be used to provide (whether by reference to the cargoes or passengers they may carry or otherwise), and
(iii) the loading or unloading of cargoes, the embarkation or disembarkation of passengers, or the doing of other things in connection with the provision of any shipping services;
(c) regulating the making and implementation of agreements (including charter-parties) whose subject matter relates directly or indirectly to the provision of any shipping services, and requiring such agreements to be subject to the Secretary of State’s approval in such cases as he may specify;
(d) imposing charges in respect of ships which enter United Kingdom ports in connection with the provision of any shipping services;
(e) imposing, in pursuance of any Community obligation, such tax or duty payable by such persons and in such circumstances as the Secretary of State may specify;
and in this subsection “regulating”, except in relation to the rates, fares or other amounts which may or must be charged as mentioned in paragraph (a) above, includes imposing a prohibition.”
(4) In section 14(4) (orders under subsection (3)), for “subsection (1)(a)” substitute “subsection (1)(i)”.
(5) In section 14(5) (directions by Secretary of State), for “charges imposed under subsection (3)(d) above” there shall be substituted “any charge, tax or duty imposed under subsection (3)(d) or (e) above”.
(6) The following subsections shall be substituted for section 14(11) and (11A)—
“(11) In this section—
(a) “foreign government” means the government of any State other than the United Kingdom;
(b) references to an agency or authority of a foreign government or of such persons as are mentioned in subsection (1)(b) above include references to any undertaking appearing to the Secretary of State to be, or to be acting on behalf of, an undertaking which is in effect owned or controlled (directly or indirectly) by a State other than, or by a territory outside, the United Kingdom;
(c) “shipping services” means services provided by means of ships, and includes the carriage of goods or passengers by sea, cable laying, dredging, and services provided by offshore support vessels; and
(d) references to ships are to ships of any registration.
(11A) A recital in an order under this section that the persons who have adopted, or propose to adopt, the measures or practices in question are—
(a) a foreign government, or
(b) such persons as are mentioned in subsection (1)(b) above, or
(c) an agency or authority of a foreign government or of such persons,
shall be conclusive.”
(7) In section 15 (parliamentary control of orders under section 14)—
(a) at the beginning of each of subsections (1) and (2) there shall be inserted “Subject to subsection (2A) below,”;
(b) after subsection (2) there shall be inserted—
“(2A) Subsections (1) and (2) above do not apply to an order under the said subsection (3) which is made for the purpose only of implementing any Community obligation.”; and
(c) in subsection (4), after “recites” there shall be inserted “that it is made as mentioned in subsection (2A) above, or”.
(8) In Schedule 4 (provisions supplementing section 14), for paragraph 2 there shall be substituted—
2 (1) An order under subsection (3)(d) or (e) of the principal section —
(a) may apply to ships of any description specified in the order, and may apply in particular to ships registered in a specified country, or to ships carrying goods or cargoes of a specified description, or providing any other specified shipping services (within the meaning of the principal section), and
(b) may contain such provisions as appear to the Secretary of State expedient to enable the Commissioners of Customs and Excise to collect any charge, tax or duty imposed by the order, and
(c) may apply, subject to any modifications or exceptions specified in the order, any of the enactments for the time being in force relating to duties (whether of customs or excise) chargeable on goods imported into the United Kingdom.
(2) Any charge, tax or duty so imposed may be a fixed amount, or an amount depending on the tonnage of the ship.
(3) Any such charge, tax or duty shall be payable to the Secretary of State.
(4) An order shall not be made by the Secretary of State under subsection (3)(d) or (e) of the principal section except with the consent of the Treasury.
(5) Nothing in this paragraph prejudices subsection (6) of that section.”
(1) The Secretary of State may by order provide for the provision of shipping services to which this section applies to be prohibited except where such services are provided from one or more permanent places of business maintained in the British Islands.
(2) This section applies to the following shipping services—
(a) the carriage of goods or passengers by sea—
(i) between ports in the United Kingdom, or
(ii) between a port in the United Kingdom and an offshore installation in United Kingdom waters, or
(iii) between offshore installations in United Kingdom waters;
(b) the carriage of passengers by sea on voyages or excursions beginning and ending at the same port in the United Kingdom, other than voyages or excursions which involve calling at any port or ports outside the British Islands (whether passengers disembark there or not); and
(c) shipping services (other than the carriage of goods or passengers by sea) which are—
(i) provided by means of ships operating out of ports in the United Kingdom (whether so provided within United Kingdom waters or not), or
(ii) provided within United Kingdom waters by means of ships operating out of ports outside the United Kingdom.
(3) An order under this section may make provision—
(a) with respect to the circumstances in which shipping services are to be regarded for the purposes of the order as being provided from one or more permanent places of business maintained in the British Islands;
(b) authorising the Secretary of State to issue licences sanctioning the provision of shipping services to which this section applies, notwithstanding that they are not provided as mentioned in paragraph (a) above, in cases where he is satisfied that there is no-one willing and able to provide the services in question as mentioned in that paragraph;
(c) requiring the payment, in connection with applications for such licences, of fees determined with the approval of the Treasury;
(d) exempting any prescribed class or description of shipping services from any prohibition imposed by virtue of subsection (1);
(e) authorising the Secretary of State, or a person appointed by him for the purpose, to serve notices requiring the production or furnishing of documents or information appearing to the Secretary of State or any such person to be necessary to enable him to determine such matters as may be prescribed;
(f) with respect to the manner of service of notices in pursuance of paragraph (e).
(4) An order under this section may—
(a) make different provision for different circumstances;
(b) make such transitional, incidental or supplementary provision as appears to the Secretary of State to be necessary or expedient.
(5) The provisions of an order under this section shall not discriminate between shipping services provided by different persons on the basis of the place of registration of the ships by means of which the services are provided.
(6) Section 728 of the 1894 Act (appointment of inspectors) shall have effect in relation to—
(a) any order under this section, or
(b) any licence issued by virtue of subsection (3)(b) above,
as it has effect in relation to any such regulations or licence as is mentioned in paragraph (b) of that section; but section 27 of the [1979 c. 39.] Merchant Shipping Act 1979 (powers of inspectors) shall have effect in relation to any inspector appointed by virtue of this subsection with the omission of paragraphs (f) to (h) of subsection (1) of that section.
(7) The power to make an order under this section shall be exercisable by statutory instrument, but no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.
(8) In this section—
“offshore installation” has the same meaning as in the [1971 c. 61.] Mineral Workings (Offshore Installations) Act 1971;
“prescribed” means prescribed by an order under this section;
“shipping services” means—
(a) the carriage of goods or passengers by sea,
(b) services provided by offshore support vessels, and
(c) such other services provided by means of ships as the Secretary of State may specify in an order under this section;
“United Kingdom waters” means waters within the seaward limits of the territorial sea of the United Kingdom and waters in any area designated under section 1(7) of the [1964 c. 29.] Continental Shelf Act 1964.
(1) Where—
(a) any ship is used in the course of the provision of any shipping services to which section 39 applies, or
(b) anything is done on board a ship with a view to its being used to provide any such services,
and the provision of those services is prohibited by virtue of subsection (1) of that section and is not sanctioned by any licence issued by virtue of subsection (3)(b) of that section, then (subject to subsections (6) and (7)), the master and the owner of the ship shall each be guilty of an offence.
(2) Where the ship—
(a) is chartered by demise, or
(b) is managed, either wholly or in part, by a person other than the owner under the terms of a management agreement,
the reference in subsection (1) to the owner of the ship shall be construed as including a reference—
(i) to the charterer under the charter by demise, or
(ii) to any such manager as is referred to in paragraph (b) above, or
(iii) (if the ship is both chartered and managed as mentioned above) to both the charterer and any such manager.
(3) Any person who—
(a) in connection with an application for such a licence as is mentioned in subsection (3)(b) of section 39, or
(b) in purported compliance with the requirements of any notice served on him by virtue of subsection (3)(e) of that section,
knowingly or recklessly furnishes information which is false in a material particular shall be guilty of an offence.
(4) Any person who—
(a) without reasonable excuse (the proof of which lies on him) fails to comply with the requirements of any such notice, or
(b) intentionally alters, suppresses, conceals or destroys a document which he has been required to produce in pursuance of subsection (3)(e) of that section,
shall be guilty of an offence.
(5) Any person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £50,000;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
(6) It shall be a defence in proceedings brought under subsection (1) against the master of a ship to prove—
(a) that the master did not know and had no reason to suspect that, in the circumstances of the case, the provision of the shipping services referred to in paragraph (a) or (as the case may be) paragraph (b) of that subsection was prohibited by virtue of subsection (1) of section 39, or
(b) that the master had reasonable grounds for believing that the provision of those services was sanctioned by a licence issued by virtue of subsection (3)(b) of that section.
(7) It shall be a defence in proceedings brought under subsection (1) against a person other than the master of a ship to prove that, under the terms of one or more charter-parties or management agreements entered into by the defendant, the right to determine the purpose for which the ship in question was being used at the time of the alleged offence was wholly vested in some other person or persons party thereto (whether or not any such other person or persons had entered into a further charter-party or management agreement providing for that right to be vested in some other person).
(8) Subsections (1), (3) and (4) apply to offences falling within those subsections wherever committed.
(9) Proceedings for an offence under this section may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
(10) Proceedings for an offence under this section shall not be instituted—
(a) in England and Wales, except by or with the consent of the Attorney General or the Secretary of State; or
(b) in Northern Ireland, except by or with the consent of the Attorney General for Northern Ireland or the Secretary of State.
(11) Any document required or authorised, by virtue of any statutory provision, to be served for the purpose of the institution of, or otherwise in connection with, proceedings for an offence under subsection (1) shall, where it is to be served on a person who was, at the time of the alleged offence—
(a) the owner of the ship in question, or
(b) such a charterer by demise or manager of that ship as is mentioned in subsection (2),
be treated as duly served on that person if—
(i) sent to him by post at his last-known address (whether of his residence or of a place where he carries on business), or
(ii) left for him at that address,
or if the document is served on the master of the ship in question.
(12) In this section “management agreement” has the same meaning as in section 30.
The following section shall be inserted after section 634 of the 1894 Act—
(1) Two or more of the general lighthouse authorities may discharge any of their functions jointly; and for that purpose—
(a) those authorities may share any part of their respective establishments, and
(b) any of them may, in the area of another and on that other’s behalf, execute any works or do any other thing which the authority have power to execute or do in their own area;
and any enactment relating to the functions in question or to the authorities by whom or the areas in which those functions are to be discharged shall be construed accordingly.
(2) Any expenses incurred by any of the general lighthouse authorities in pursuance of this section shall be apportioned between that authority and the other authority or authorities concerned in such manner as may be agreed between them or (in default of agreement) determined by the Secretary of State.”
(1) The following sections shall be substituted for section 662 of the 1894 Act—
(1) A general lighthouse authority may, with the consent of the Secretary of State and the Treasury, borrow money for the purpose of defraying any expenses incurred or to be incurred by the authority in connection with the discharge of their functions under this Act.
(2) A general lighthouse authority may, in connection with any advance to them under this section, mortgage any land or other property belonging to them.
(3) Any sums payable by a general lighthouse authority under the terms of an advance under this section by way of principal, interest or otherwise shall be paid out of the General Lighthouse Fund.
Merchant Shipping Act 1988