Merchant Shipping (Health and Safety - General Duties) Regulations 1991

The Minister, after consulting with the persons referred to in section 22(7) of the Merchant Shipping Act 1979 [title 31 item 16] here inafter called "the Act"), in ex ercise of powers conferred on him by sec tion 22(1)(a) and (b) and (c), (3)(q) and (5)(a) and (b) of the Act, hereby makes the following Regulations:

Citation and commencement

1 These Regulations may be cited as the Merchant Shipping (Health and Safety: General Duties) Regulations 1991 and shall come into operation on 1 February 1991.

Interpretation

2 In these Regulations, unless the context otherwise requires—

"employee" means a person (in cluding the master and self-em ployed persons) employed on board ship other than a dock worker or shore-based repair or other worker temporarily em ployed on board a ship;

"employer" means a person who employs an employee other than himself;

"fishing vessel" means a vessel for the time being employed in fishing but does not include a vessel used otherwise than for profit;

"pleasure craft" means a vessel primarily used for sport or rec reation;

"substance" means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour.

Application

3 (1) Subject to paragraph (2)—

(a) these Regulations except regulation 13 apply to ships registered in Ber muda; and

(b) regulations 1, 2, 3, 13 and 14 apply to ships other than ships registered in Bermuda while they are in a port in Bermuda.

(2) These Regulations do not apply to fishing vessels or pleas ure craft.

General duties of employers

4 (1) It shall be the duty of the employer of employees aboard a ship registered in Bermuda to ensure, so far as is reasonably practica ble, the health and safety of employees and other persons aboard ship who may be affected by his acts and omissions.

(2) Without prejudice to the gen erality of the employer's duty under paragraph (1), the matters to which that duty extends shall in clude in particular —

(a) the provision and mainte nance of plant, machinery and equipment and systems of work that are, so far as is reasonably practicable, safe and without risk to health;

(b) arrangements for ensuring, so far as is reasonably practi cable, safety and absence of risk to health in con nection with the use, handling, stow age and transport of articles and substances;

(c) the provision to his employ ees of such information, in struction, training and su pervision as is necessary to ensure, so far as is reason ably practicable, the health and safety of persons aboard ship;

(d) so far as is reasonably practi cable, the maintenance of all places of work in the ship in a condition that is safe and without risk to health;

(e) the provision and mainte nance of an environment for persons aboard ship that is, so far as is reasonably practi cable, safe and without risk to health;

(f) so far as is reasonably practi cable collaboration with oth ers who employ persons who are at any time in the course of their employment aboard a ship or engaged in loading or unloading activities in re lation to a ship to protect the health and safety of all per sons aboard that ship.

(3) It shall be the duty of every employer of employees aboard a ship registered in Bermuda to prepare and, as often as may be appro priate, revise a written statement of his gen eral policy with respect to the health and safety aboard ship and the or ganisation and arrange ments for the time being in force for carrying out that policy, and to bring the state ment and any revision of it to the notice of his employees except that this requirement does not apply to an employer who em ploys less than five employees in aggregate on board ships registered in Bermuda.

General duties of employees

5 It shall be the duty of every employee aboard a ship registered in Bermuda —

(a) to take reasonable care for the health and safety of him self and of other persons aboard ship who may be af fected by his acts or omis sions; and

(b) as regards any duty or re quirement imposed on his employer or any other person by these Regulations and the Merchant Shipping Acts 1894 to 1983 of the United Kingdom as in force in Ber muda or any regulation or rule made thereunder as in force in Bermuda, with re gard to the safety or health of persons aboard ship reg is tered in Bermuda to which these Regulations apply, to co-operate with that person so far as is necessary to en able that duty or require ment to be performed or com plied with.

Prohibition on levy

6 No employer of persons aboard ship registered in Bermuda shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pur suance of any requirement of these Regulations.

Duty not to interfere with or misuse certain things

7 No person shall intentionally or recklessly interfere with or mis use anything provided in the interests of health or safety aboard a ship regis tered in Bermuda in pursuance of these Regulations and the Mer chant Shipping Acts 1894 to 1983 of the United Kingdom as in force in Ber muda or any regulation or rule made thereunder as in force in Ber muda.

Penalties

8 (1) Contravention of regulation 4 or 6 is an offence punishable on sum mary conviction by a fine of two thou sand dollars.

(2) Contravention of regulation 5 is an offence punishable on summary conviction by a fine of two hundred dollars.

(3) Contravention of regulation 7 is an offence punishable on summary conviction by a fine of four hundred dollars.

(4) It is a defence for a person charged under paragraph (1) or (2) to show that he took all reasonable pre cautions and exercised all due dili gence to avoid the commission of the offence.

Act or default of some other person

9 Where the commission by any person of an offence under any of these Regulations is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this regulation whether or not proceedings are taken against the first-mentioned person.

Offences by body corporate

10 Where an offence under any of these Regulations committed by a 10(1) [sic] Where an offence under any of these Regulations commit ted by a body corporate is proved to have been committed with the con sent or conniv ance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a per son who was purporting to act in any such ca pacity, be as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its mem bers, paragraph (1) applies in relation to the acts and defaults of a member in connection with his functions of man agement as if he were a director of the body corporate.

Onus of proving what is reasonably practicable

11 In any proceedings for an of fence under any of these Regula tions consisting of a failure to comply with a duty or requirement to do some thing so far as is reasonably practi cable, it is for the accused to prove that it was not reasonably practi cable to do more than was in fact done to satisfy the duty or requirement.

Inspection and detention of a ship registered in Bermuda

12 Any person duly authorised by the Minister may inspect any ship registered in Bermuda and if he is satisfied that there has been a failure to comply in relation to that ship with the requirements of these Regula tions he may detain the ship until the health and safety of all employees and other persons aboard ship is secured, but shall not in the exercise of these powers detain or delay the ship unreasonably.

Inspection, detention and other measures in respect of ships regis tered outside Bermuda

13 (1) Any person duly authorised by the Minister may inspect any ship other than a ship registered in Bermuda when the ship is in a Bermuda port and if he is satisfied that the ship does not conform to the stan dards of health and safety required of ships registered in Bermuda by these Regula tions he may —

(a) send a report to the government of the country in which the ship is registered, and a copy thereof to the Direc tor-General of the International Labour Office; and

(b) where conditions on board are clearly hazardous to safety or health—

(i) take such measures as are necessary to rectify those conditions;

(ii) detain the ship:

Provided that the measures specified in subparagraphs (a) and (b) may be taken only when the ship has called at a port in Bermuda in the normal course of business or for operational reasons.

(2) If the person duly authorised takes either of the measures specified in paragraph (1)(b), he shall forthwith notify the nearest mari time, consular or diplomatic representative of the State whose flag the ship is entitled to fly.

(3) The person duly authorised shall not in the exercise of his powers under this regulation unreasonably detain or delay the ship.

Compensation and enforcement of detention

14 (1) If it appears that there was not reasonable and probable cause for the detention of a ship under these Regulations, the Govern ment is liable to pay to the owner of the ship his costs of and incidental to the detention of the ship and also compensation for any loss or dam age sustained by him by reason of the detention.

(2) Where under these Regulations a ship is to be or may be detained, any person duly authorised by the Minister for the purpose may detain the ship, and if—

(a) after the ship is detained; or

(b) after notice of an order for the detention of the ship has been served on the master,

the ship proceeds or attempts to proceed to sea before it is duly re leased, the master of the ship and also the owner, and any person who sends the ship to sea, if the owner or such person is party or privy to the offence, shall each be guilty of an offence and be liable on summary conviction to a fine of one thousand dollars.

(3) Where a ship so proceeding to sea takes to sea when on board thereof in the execution of his duty any person duly authorised to detain the ship, the owner and the master of the ship shall each be li able to pay all expenses of and incidental to the duly authorised person being so taken to sea and shall also be guilty of an offence and liable on summary con viction to a fine of five hundred dol lars.

(4) Where under these Regula tions a ship is to be detained, the Registrar of Shipping shall refuse a clearance to that ship.

Bermuda Consolidated Legislation

Merchant Shipping (Health and Safety - General Duties) Regulations 1991