Archived decisions

9th August 2005

Mr A Clatworthy

Harbour Master

River Hamble Harbour Authority

Shore Road

Warsash

Southampton SO31 9FR

Dear Sir

PORT MARINE SAFETY CODE COMPLIANCE AUDIT 26.07.05

The Port Marine Safety Code requires that the Designated Person audits the Harbour Authority's compliance with the Code and provides independent assurance to the duty holder. We report accordingly and ask that this report be presented to the Board.

We enclose a Certificate of Compliance confirming compliance with the Code subject to the contents of this report. This should be filed in Volume 4 under Tab 4 of the Safety Management System. We also enclose a notated Audit Report Form.

    1. OBSERVATIONS:

    1.1 Statutory Consents:

The River Hamble Harbour Authority has by law to grant written consent before works can be carried out within its jurisdiction. The opinions of the Harbour Authority are also sought from other bodies that have to grant their consent for proposed works and developments. Such works and developments can often have an impact on navigational safety and on that basis we make the following observations:-

By virtue of the provision of Sec. 48 Southampton Harbour Act 1949 (as amended)1 the Harbour Authority has to consent in writing before any works are commenced within their jurisdiction. This consent has to be in "writing of the Board signed by the Clerk". It is my view that this means the Chairman of the Board should sign the consent.

It is important to consider 3 issues:

    1. The geographical area in which the Harbour Authority is obliged to give consent;

    2. The nature of the works that require consent;

    3. The matters the Board should consider when deliberating granting consent.

I shall deal with each in turn.

    1. The Geographical Area in which the Harbour Authority is Obliged to give Consent:

The amendment to Sec. 48 Southampton Harbour Act 19492 (as amended) makes it clear that consent has to be given for works "in the navigation". This is defined3 as

      "the area edged black on the map certified on behalf of the Secretary of State for Transport4..... and the navigation shall comprise so much of that area and of such of the following areas as are navigated by sea-going ships5, namely, all creeks, inlets, bays and tributaries as far as the tide shall flow and any lake, pit, pond or other substantially enclosed water adjacent to the said area and from which a vessel may be navigated (whether or not through a lock or other similar work) into that area."

It is recommended that the Harbour Authority obtain a copy of the map to determine its jurisdiction and that it recognises it has jurisdiction over creeks, inlets, bays etc. adjacent to the area marked on the map provided they can be navigated by a vessel capable of leaving the Solent.

This will define precisely over which geographical area consent has to be given.

    2. The Nature of the Works that require Consent:

Sec. 48 Southampton Harbour Act 1949 (as amended) makes it unlawful to "construct, erect, bring forward or retain any quay wall or other work or any part of any such work" without consent in writing of the Board.

I take this to mean any structure, pile, pontoon, quay, wall or pier or any vessel which was to become a fixture by way of permanent moorings. It would not in my view extend to the change of use of existing works or the change of use of permanently moored vessels.

    3. The Matters the Board should Consider when Deliberating Granting Consent:

Sec. 48 Southampton Harbour Act 1949 (as amended) is silent on this point but it is my view that it is for the Board to consider the following matters:-

    1. Navigational Safety. The overriding responsibility of the Harbour Authority is that of conservancy. That is to take reasonable care that those who lawfully use the Harbour may do so in safety. Accordingly, the Harbour Authority must consider the impact on navigational safety any proposed works will have. To this end the Harbour Authority may wish to consider risk assessments compiled in accordance with the Port Marine Safety Code. Such risk assessments can be very useful tools when considering granting consent. It must be recognised that the Code does not expect risks to be eradicated only that they are managed to As Low As Reasonably Practical (ALARP).

    2. That facilities provided to all who use the River are kept up to date. This is a matter for the Board. It is for them to decide how the facilities on the River should be permitted to develop.

    3. Sites on the River may need to redevelop in order to modernise their operations. Again this is a matter for the Board.

It is recommended that the Board formulate the procedure they will follow, the criteria they will consider and the input they require from the Harbour Master when considering granting consent.

Of note is that before the Board discharge their powers, functions and obligations they must refer the matter (as they must all matters of substance) to the Management Committee. The Board must then consider a report of the Management Committee before granting its consent. It does not follow that the Board is bound by the contents of the report from the Management Committee only that it has to consider it. It is my view that the Board and the Management Committee need to consider what matters need to be referred to the Management Committee and how the Management Committee should submit their reports.

One of the objectives of formulating the Board was to streamline the decision making process and it is my view that:

    · The day to day management of the Harbour should be delegated and left with the Harbour Master and his staff;

    · The Board should seek input from the Harbour Master as they see fit;

    · The Board should determine the policies of the Harbour Authority;

    · Matters where the Board has to discharge its legal powers, functions and obligations i.e. granting consent under Sec. 48 Southampton Harbour Act 1949 (as amended), making new Byelaws or giving Directions, discharging its conservancy functions, setting of harbour dues and other fees, enforcement of legislation, buoyage and dredging should be referred to the Management Committee for a report;

    · All other matters should be dealt with by the Board.

It must be recognised that the Board should consult with its stakeholders and that the Management Committee has no decision making powers.

Of further note is that Sec. 48 Southampton Harbour Act 1949 (as amended) provides in Sec. 48(3)6 a right of appeal by an applicant for consent. He can appeal to the "Minister".

    1.2 Statutory Consent v Opinions:

The granting of consent under Sec. 48 Southampton Harbour Act 1949 (as amended) is legally specific. It is also the case that other Statutory Bodies are charged with a duty to grant their consent under different law. These Statutory Bodies or Authorities often seek the opinions of the Harbour Authority.

It is my view that it is important for the Harbour Authority to differentiate between granting consent (pursuant to the Southampton Harbour Act 1949) and providing its opinions as a consultee to other Statutory Bodies.

It is recommended that the Board also considers how and how wide it wishes to express its opinions as the Harbour Authority when such opinions are sought from other Statutory Bodies. It may be that they wish to limit their opinions to those of navigational safety, alternatively, it may wish to express its opinions in the widest sense. As a consultee the Harbour Authority is free to say whatever it wishes within reason. My point is that the Harbour Authority must be clear when it is granting (or declining to grant) statutory consent as opposed to giving its opinions as a consultee.

It is my view that when the Harbour Authority gives its opinions it is not discharging a power, function or obligation and therefore such matters do not need to be referred to the Management Committee. The Board may wish to delegate this function to an officer of the Harbour Authority.

    1.3 Mission Statement, Policy Statements and Acceptance of Responsibilities:

The Port Marine Safety Code requires that the Harbour Authority makes various public statements and that officers of the Harbour Authority accept their responsibilities in writing. With the formation of the new Board the existing statements need to be revisited and signed appropriately.

    1.4 Non-Conformity Reports:

Once a non-conformity report has been notified to the Harbour Master he should action it as he sees appropriate and importantly sign it off once that action has been taken. These non-conformity reports should not be used in substitution of incident reports. They are to be used by the Harbour Master's staff to report deficiencies in the procedures and operating instructions incorporated in the Safety Management System (SMS). Reports of speeding and other misconduct on the River are not non-conformities but are incidents that need reporting on the Incident Report form.

    1.5 Incident Reports:

The Harbour Master's staff diligently report incidents which provide invaluable insight into the activities on the River and the nature of the risks that require management. Generally, I am satisfied that the procedures adopted and the precautions put in place by the Harbour Authority are consistent with the requirements of the Code.

I do have one concern that stems from an Incident Report dated 29.06.05:

After the Trafalgar 200 celebrations a 42 ft. motor boat fouled the mooring lines between fore and aft mooring buoys off the Harbour Master's jetty. The Harbour Master and his staff acted professionally and cut the boat free. What concerns me is the closing narrative of the patrol officer's report in which he wrote:

      "This is becoming a very serious issue because these moorings, which there are three in front of the Harbour Master's jetty, are crossed and chopped and snagged at least half a dozen times annually, something needs to be done about them before a very serious incident happens!!! A LUCKY ESCAPE THIS TIME!!!"

This report was used when re-assessing risk controls yet it was considered that the risk controls (the precautions to take) did not require amendment. I question this.

Whilst it is recognised that it is hoped the Crown Estate will remove these fore and aft moorings and starboard navigation marks will be put in place, I consider it would be prudent to put in some precautions now. I leave the Harbour Master to consider appropriate precautions but at the very least I would recommend a Notice to River Users warning mariners of the risk of fouling these moorings.

This type of incident is perhaps symptomatic of the wider issue of poorly defined main channels.

    1.6 Main and Secondary Channels:

Much has been debated over the use and continuing use of main and secondary channels. It is my view that as the traffic on the River has increased the preferred channel needs to be more clearly defined by buoyage, spars and lights. Where there is more than one channel it should be marked in accordance with the IALA buoyage (region A) convention and appropriate preferred channel markers placed. The terminology "main and secondary channels" has caused confusion amongst river users and stakeholders and the Harbour Authority should now adopt the correct terminology as well as designating and marking preferred channels and other channels. It will be for the mariner to decide which channel to use or if he wishes not to use a marked channel at all and navigate in free water7.

    1.7 Audit Reports:

The audit reports by the Designated Person will be the first documents sought by either the Authorities or lawyers after an incident. They give outside scrutineers the first impression of the Harbour Authority's Safety Management System (SMS). As such they should all be filed under Tab 4 of Volume 4 of the SMS not as some are filed, under Tab 2.

    1.8 A27 Road Bridge:

Youths vandalizing the bridge, jumping from it and trespassing on local nearby properties are a constant problem. I am satisfied that within its authority the Harbour Authority can do little more. I do recommend a Notice to River Users is promulgated warning mariners of the dangers of approaching the bridge when youths are seen on it. The Harbour Authority need to demonstrate it can do no more.

    1.9 Speed Gun:

Although high visual use of the speed gun has had the desired deterrent effect, if it is to be used in any Court proceedings it must be calibrated each time before deployment and those operating it will have to be trained in its use.

    1.10 Crisis Management:

A more robust system should be initiated to ensure senior officers including the Chairman of the Board can be contacted at all times and kept appraised of a crisis. This may require pertinent numbers to be fed into the mobile phones used by the patrol officers so that when appropriate they can speed dial the Harbour Master who can in turn alert the Marine Director, who can in turn alert the Chairman of the Board8. I understand that the Harbour Master has, since the audit, initiated procedures and I leave it to him.

    2. NON-CONFORMITIES:

    2.1 Induction Records

All induction records for seasonal staff are to be completed.

    3. CONCLUSION:

The role of the Designated Person is to provide independent assurance to the Harbour Authority that the Safety Management System is working effectively. I can, subject to the comments detailed in this report, confirm this is the case. I also confirm that I have had direct access to the highest level of the Harbour Authority.

Yours faithfully

Mark G Capon

Managing Partner

Enc: