Shipping Legislation: Proposed AmendmentsLaw Drafting Instructions - Legislation Programme 2010
Shipping - (Ref 1.1.2 of Summary K, States Business Plan, P117/2009)
Amendments to Fishing Vessel Safety Legislation –
Shipping (Fishing Vessels – Safety Training) (Jersey) Order 2004 & Shipping (Fishing Vessels Safety Provisions) (Jersey) Order 2004
Introductory Note
The Instructions are submitted in two parts and both consist of amendments to existing subordinate legislation. It is believed that there is no requirement for separate new legislation.
The States Business Plan only refers to the Fishing Vessels Safety Provisions. However, the subsequent internal analysis and external comment from the UK Maritime Accident Investigation Board, have shown that to bring fishing vessel safety up to the required modern standards both Orders require amendment.
Instructing Officer
12 October 2010
Amendment to Shipping (Fishing Vessels – Safety Training) (Jersey) Order 2004
Core Aim
To draft amendments to the Shipping (Fishing Vessels - Safety Training) (Jersey) Order 2004:
Include additional training so as to be in accordance with established UK criteria.
- New entrants – 1 day basic Health and Safety;
- Experienced fishermen – 1 day Safety Awareness and Risk Assessment;
- Watchkeepers and Certificates of Competency - To be in accordance with the relevant United Kingdom Marine Guidance Note.
Introductory comments
The existing Order has now been in operation for nearly six years, during which time further training has been introduced in the UK. This additional training has been highlighted as a requirement by the UK Maritime Accident Investigation Board and is clearly necessary given the continuing occurrence of preventable accidents.
Detail of Amendments Required
- Preamble - The Instructions bring in a watchkeeping requirement which is not related exclusively to safety training alone. For that reason the vires for the Order should be extended in the preamble to include a reference to Manning (article 29) of the Primary Law as well as the existing reference to Article 89.
- Article 2 - Requirements for Safety Training
- Application of paragraph (1) – Replace general application so that it only applies to, “A person not being an existing fisherman”, as defined below (see 2.vii)
- At sub-paragraph (1)(b) add “basic Health and Safety”
- At sub-paragraph (1)(c), insert additional authority for the Harbour Master to approve an appropriate local alternative for fishermen operating their vessels from a harbour within Jersey. This may not be ‘equivalent to or superior’, as currently required.
- At sub-paragraph (1)(d), the reference to Article 4 becomes a reference to Article 6.
- Replace paragraph (2), which is now spent, by a provision that all new entrants may have a limited initial period, not exceeding three months sea time, during which they are exempt from the Fire-Fighting, First Aid and Health and Safety training requirements, on application to the Harbour Master. Failure to obtain written permission shall be an offence.
- New paragraph (3) “Existing Fishermen”
A fisherman who can show he has been working as a fisherman for two years or more and either:
(a) can show that he is a certified deck or engineer officers (as defined in the current Order at Article 1(1)) or
(b) that he has already obtained certification relating to approved training in sea survival, fire-fighting and prevention and first aid as referred to in article 2 (1)(b) or has the relevant equivalent or alternative certification recognised by the Harbour Master,
must undergo the 1 day Safety Awareness and Risk Assessment course run by a Seafish[1] Approved Training Provider (or such other appropriate local alternative recognised by the Harbour Master for fishermen operating their vessels from a harbour within Jersey).
Existing fishermen should have one year from the date of commencement of the amended Order to obtain the relevant Safety Awareness and Risk Assessment course.
3. New Article 3 – “Skipper’s Certificate of Competency - Fishing vessels of 6m but less than 16.5m in registered length”
(i) Application – skippers of vessels of 6m or more in registered length.
(ii) Prior to serving as a skipper a person must already be compliant with Article 2.
(iii) New Skippers:
- to be in possession of a Skipper’s Certificate that meets the requirements appropriate for the intended area of operation, as described in the United Kingdom’s Marine Guidance Note:
“Training and Certification Requirements for the Crew of Fishing Vessels and their Applicability to Code Vessels and Large Yachts” MGN 411 (M+F) or any subsequent replacement guidance document to similar or better effect, or
- to have satisfactorily completed a:
- Royal Yachting Association (RYA) Coastal Yachtmaster Certificate of Competence course for power driven vessels,
- 1 day GMDSS Short Range Certificate course,
- 1 day Diesel Engine course; and
- 1 day stability Awareness course.
Or
- to be in possession of equivalent or superior certification recognised by the Harbour Master.
Failure to have the appropriate certification shall be an offence.
(iv) New skippers’ time allowance - all new skippers may be exempted from these requirement, for up to a limited period not exceeding three months from the time they take on the role of skipper, on application to the Harbour Master.
- Failure to obtain written permission shall be an offence.
(v) Certificate of Service for Existing Skippers:
- Existing skippers are those who have served in the relevant capacity for at least two years and who can produce bona fide log book or other valid evidence such as records of fish sales or exports. These persons may apply to the Harbour Master for a Certificate of Service, valid for five years from the commencement of the amended Order. After this time, the requirement for the relevant certificate of competency will take effect.
- Existing Skippers should have one year from the date of commencement of the amended Order to obtain the Certificate of Service.
- Failure to obtain a Certificate of Service within the one-year period allowed or going to sea without the correct qualifications after the five year period shall be an offence.
4. New Article 4 – “Watchkeeping Certification - Fishing vessels of 16.5m or more”
(i) New skippers and crew - Manning and certification are to be in accordance with the requirements appropriate for the intended area of operation and vessel size, as specified in section 6 of the United Kingdom’s Marine Guidance Note:
“Training and Certification Requirements for the Crew of Fishing Vessels and their applicability to Code Vessels and Large Yachts” MGN 411 (M+F), or any subsequent replacement guidance document to similar or better effect.
These requirements are attached at Appendix 1.
(ii) Certificates of Service for Existing Skippers and Crew - Existing skippers and crew are those who have served in the relevant capacity for at least two years and who can produce bona fide log book or other valid evidence such as records of fish sales or exports. These persons may apply to the Harbour Master for a certificate of service, valid for five years from the commencement of the amended Order. After this time, the requirement for the relevant certificate of competency will take effect.
- Existing Skippers and Crew should have one year from the date of commencement of the amended Order to obtain the Certificate of Service.
(iii) Offences:
- Failure to obtain a Certificate of Service within the one-year period allowed or going to sea without the correct qualifications after the five year period shall be an offence.
- The skipper commits an offence if the wheelhouse is left unattended at any time.
- The skipper commits an offence if a person who does not hold the relevant Certificate of Competency, a valid Certificate of Service or a certificate for a five-day Bridge Watchkeeping Course, is put in charge of a navigational watch, except where the vessel is under 24m in length and is operating in the limited area described in Appendix 1 at 6.1.1.
5. New Article 5 “Offences”
This is a renumbered article 3. Extend it as follows:
(i) Include as liable, any person referred to in Regulation 5 of the Shipping (Registration) (Jersey) Regulations 2004;
(ii) include breaches of the proposed new articles 3 and 4 as offences.
The penalties may remain the same – i.e. Level 2 for crew and level 4 for skippers and owners.
6. New Article 6 “Exemptions”
This is a renumber article 4. Extend it to include exemptions from the requirements in the new articles 3 and 4.
7. Commencement
The amended Order may come into force 7 days after it is made.
UK References
SI 1989 No. 126 Fishing Vessel (Safety Training) Regulations, as amended and currently in force.
SI 1984 No. 1115 Fishing Vessels (Certification of Deck Officers and Engineering Officers) Regulations, as amended and currently in force.
Marine Guidance Note “Training and Certification Requirements for the Crew of Fishing Vessels and their applicability to Code Vessels and Large Yachts” MGN 411 (M+F), as published in March 2010.
Marine Guidance Note “Keeping a Safe Navigational Watch on Fishing Vessels” MGN 313 (F), as published in February 2006.
Appendix 1
Extract from UK Marine Guidance Note “Training and Certification Requirements for the Crew of Fishing Vessels and their applicability to Code Vessels and Large Yachts” MGN 411 (M+F), as published in March 2010.
6.0 CERTIFICATION REQUIREMENTS FOR OFFICERS ON FISHING VESSELS
6.1 Deck
6.1.1 The minimum manning requirement for qualified Deck Officers is as follows:
Fishing Area | Length of Vessel | Deck Officer Certificate of Competency (Fishing Vessel) Class 1 | Deck Officer Certificate of Competency (Fishing Vessel) Class 2 | Deck Officer Certificate of Competency (Fishing Vessel) Class 3 |
Unlimited | 40m and over | 2 | 1 | |
Unlimited | Under 40m | 1 | 1 | |
Limited* | 30m and over | 1 | 1 | |
Limited* | 24m or more but under 30m | | 1 | 1 |
Limited* | 16.5m or more but under 24m | | 1 | |
* Limited Area means any location within the area bounded by a line from a point on the Norwegian coast in latitude 62° N due west to a point 62° N 3° W; thence to a point 58° N 10° W; thence to a point 53° N 12° W; thence to a point 49°N 12° W; thence to a point 46° 30’N 6° W and thence due East to the French coast.
6.1.2
With the exception of vessels of less than 24m operating in the limited area, only persons holding a Certificate of Competency as a Deck Officer or a 5 day Bridge Watchkeeping Course shall be in charge of a navigational watch.
6.1.3
When deciding on Watchkeeping arrangements for fishing vessels of less than 24m operating in the limited area, the requirements of MGN 313(F) – Keeping a Safe Navigational Watch must be also followed. Uncertificated watchkeepers must be experienced, capable and have been instructed in their duties. The following factors must be taken into account when deciding on Watchkeeping duties:
• the wheelhouse must not be left unattended at any time;
• the weather conditions, visibility and time of day. Although the size of the crew and the wheelhouse may not permit a continuous two person watch, two people must always be on watch during the hours of darkness and in poor weather conditions;
• the proximity of navigational hazards and any other hazards which may require additional navigational duties to be undertaken;
• the use and operational condition of navigational aids such as radar, echo sounder, automatic pilot, and position-fixing equipment;
• any unusual demands on the navigational watch that may arise as a result of fishing operations.
6.2 Engineer
6.2.1
Every fishing vessel with a propulsive power of 750 kilowatts or more operating in the unlimited area must carry at least two qualified engineer officers, being at least a Chief Engineer holding an Engineer Officer Certificate of Competency (Fishing Vessel) Class 1 and a Second Engineer holding an Engineer Officer Certificate of Competency (Fishing Vessel) Class 2.
6.2.2
The MCA has issued a General Exemption[2] [………. ] such that vessels with a propulsive power of 750 kilowatts or more operating in the limited area may, as an alternative to 6.2.1 above, carry a Chief Engineer holding an Engineer Officer Certificate of Competency (Fishing Vessel) Class 1 and the holder of an Engine Room Watchkeeping 5 day course certificate.
Amendment to Shipping (Fishing Vessels Safety Provisions) (Jersey) Order 2004
Core Aim
To draft amendments to the Shipping (Fishing Vessels Safety Provisions) (Jersey) Order 2004:
For all fishing vessels of up to 24 metres in length - to replace existing provisions so as to apply UK Codes of Safe Working practice.
Background
Jersey fishing vessels operate in UK and EU waters. However, the current provisions are largely a repetition of now out-of-date UK standards and have come in for recent criticism both locally and by UK government accident investigation surveyors.
A number of incidents over the last three years involving Jersey vessels indicate safety standards are not as high as they should be.
In order for Jersey vessels to continue to be able to operate without attracting criticism and in order to protect the safety of fishermen at sea it is important that out-of-date legislation is replaced.
The local fishermen’s associations are in agreement with these proposals in principle.
Detail of Amendments Required
Article 2 – Application
– Article 1 and Parts 2 and 3 should no longer apply to any fishing vessel less than 24m registered length.
– Schedules 1 through to 24 should no longer apply to any fishing vessel less than 24m registered length.
Fishing Vessels of less than 24m
– Fishing vessel of less than 24m registered length are to be constructed, equipped, maintained, crewed, surveyed, inspected and certificated in accordance with the standards specified in the relevant UK Code as it is from time to time published in the United Kingdom and amended in its application to Jersey.
– The relevant Codes are as follows:
- Merchant Shipping Notice 1770 (F) “The Code of Safe Working Practice for the Construction and use of 15 metre (LOA) to less than 24 metre (L) Fishing Vessels”; and
- Merchant Shipping Notice 1813 (F) “The Fishing Vessels Code of Practice for the Safety of Small Fishing Vessels”.
– The Codes, amended in their application to Jersey, are to be attached as Schedules to the Order.
– The following articles may be omitted in their entirety: 28, 33, 39, 44, 48, 81, 82, 106, 107 and 108.
– Fishing vessels of 24 metres but less than 24.4 metres in registered length are to comply with the requirements of this Order as applied to vessels of 24.4m in length and over: See articles 27, 28, 29, 30, 32, 33, 38, 39, 43, 44, 47, 48, 51, 80, 81, 105 and 106 in particular.
– Penalties and Inspection:
(1) If –
(a) the requirements of the relevant Code are contravened; or
(b) a vessel to which the relevant Code applies is, under Article 187 of the Shipping (Jersey) Law 2002, exempted from a requirement but subject to an associated condition and the condition is not complied with; or
(c) a vessel to which the relevant Code applies is, under Article 125 of this Order, excepted from a requirement subject to adopting an alternative provision and that provision has not been complied with;
the owner and master of the vessel should be liable to a fine.
(2) A surveyor appointed by the Minister may inspect any fishing vessel for the purpose of seeing that it complies with the relevant Code and for that purpose shall have all the powers of an Inspector under the Shipping (Jersey) Law 2002.
Article 3 – Exemptions
Delete the words “Part 2” and replace with “of this Order or any specific requirement of the relevant Code”.
Article 125 – Exceptional Provisions
After the words “Where this Order” insert “or any specific requirement of the relevant Code”
Article 126 – Surveys etc
“Every vessel of 12 24 metres in length and over to which this Order applies shall be surveyed and periodically inspected and certificated in accordance with the requirements of this Part.”
Add:
“Every vessel of less than 24 metres in length to which this Order applies shall be surveyed, periodically inspected and certificated in accordance with the requirements of the relevant Code.”
Article 132(3) - the reference to “a period of 4 years” should read “a period of 5 years”
Article 134 (4) - the reference to “not less than 21 months and not more than 27 months” should read “not less than 27 months and not more than 33 months”
Article 135 – Prohibition etc.
This article should be moved to be in Part 6 ‘Miscellaneous’, so as not to imply the prohibition is only applicable to vessels surveyed under Part 5.
In paragraph (1), after the words “under Article 129” insert “or certificate or signed self-certification declaration under the relevant Code”;
Add: sub-paragraph (1A) to the effect that – “in this article a reference to a certificate being in force means that, if issued under Article 129 and it is due for endorsement in accordance with Article 134(5), the certificate must in fact been endorsed.”
In paragraph (2) add managing owner, charterer, manager or operator as persons additionally liable.
In paragraph (3) after the words “under Article 129” insert “or certificate or signed self-certification declaration under the relevant Code…..”
Article 136 Transitional provisions
The existing references to the Fishing Vessels (Safety Provisions) (Jersey) Regulations 2003 are to be replaced by references to the Shipping (Fishing Vessels Safety Provisions) (Jersey) Order 2004 as it applied prior to these amendments coming into force.
Minor Corrections
Article 74 – the reference to Article 127 is wrong and should refer to Article 128.
Article 77 –
(i) In the heading, the reference to Part II should be replaced by a reference to Part 2
(ii) In paragraph (2), delete the word ‘Ministry’
Article 124 –
(i) In the heading, the reference to Part III should be replaced by a reference to Part 3;
(ii) In paragraph (2), delete the word ‘Ministry’.
Article 127 – The references to Parts II and III should be replaced by references to Parts 2 and 3.
Schedule 2 – The reference to Article 127(2) is wrong and should refer to Article 128(2).
Schedules
Two new schedules are to be added:
- Merchant Shipping Notice 1770 (F) “The Code of Safe Working Practice for the Construction and use of 15 metre (LOA) to less than 24 metre (L) Fishing Vessels”; and
- Merchant Shipping Notice 1813 (F) “The Fishing Vessels Code of Practice for the Safety of Small Fishing Vessels”;
- as amended in their application to Jersey.
Commencement
- The Order may come into force 7 days after it is made.
12 October 2010
[1] Seafish is the term used to describe the UK Sea Fish Industry Authority as described in Article 1 of the current Order.
[2] This exemption is also acceptable for Jersey fishing vessels.
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