This article was first published in the July edition of Marine & Maritime Gazette, and the original article can be found on page 20 here.

Recent changes in sentencing practice mean the penalties for breach of Health and Safety Regulations have in some cases become much harsher. If you are a marina or a boatyard we provide you here with a small reminder of your health and safety obligations, as well as some of your rights as well.

Boatyard and marina inspections are serious business, both for the yard and the inspectors. The HSE has wide powers of inspection, compulsion and, ultimately, prosecution. This can result in fines of up to £500,000 in extreme cases (depending on the size of the organisation). There is also the possibility that directors can be found personally liable and accordingly disqualified or even imprisoned. The marinas and boatyards, in turn, have their own rights which will usually be of assistance to them in certain circumstances.

By way of reminder, the most regularly enforced Regulations are the Work at Height Regulations 2005, COSSH Regulations 2002 and LOLER 1998. Taking each one in turn, the Work at Height Regulations cover work undertaken at such as height as to cause personal injury or death by falling from distance. This will include working above ground floor level, up ladders, harnesses, Mobile Elevated Work Platforms (MEWPs), on edges or fragile surfaces. The COSSH regulations cover substances that are hazardous to health. This not only covers dangerous chemicals but also dust, vapours, mists and gases. LOLER 1998 covers the operation of lifting equipment. This includes cranes, slings, hoists and MEWPs.

Generally, the key to staying on top of what is required under these regulations is to:

  • Plan and organise the work to be undertaken properly and well in advance;
  • Make sure those working e.g. with hazardous materials or at height are competent and properly trained;
  • Carry out proper risk assessments of the work or equipment (lifting equipment for example should be examined every 6 months if it is used to lift people); and
  • Have an up-to-date Health and Safety Policy.

The HSE provides detailed guidance in respect of these Regulations and further details of the requirements and obligations can be found with them.

The HSE have powers in certain circumstances to enter a marine or boatyard to conduct a search, in order to make sure these Regulations are being adhered to properly. If a search s contemplated by them, you will be notified in advance. As part of its investigation, the HSE may require you to answer questions or produce supporting documentation, to prove your practices are in accordance with a specific Regulation. Other powers they have state that items may be seized, samples or photographs can be taken and, in extreme cases, the marina or boatyard could be closed while investigation continues.

Having undertaken the investigation, the HSE also has the power to issue:

  • Improvement notices, where it believes there has been a contravention of a Regulation, compelling the boatyard or marina to rectify the contravention within 21 days; or
  • Prohibition notices, prohibiting a specific piece of equipment, such as a crane, or an area of a yard from being used, where the inspector believes there is such serious risk of harm.

So, what rights do marinas and boatyards have in these circumstances? The Regulations do not give the HSE inspectors absolute powers to undertake their duties. A boatyard or marina should therefore consider the following if they are made aware of an inspection:

  • The basis for the inspector's attendance should have been clearly stated;
  • If the inspector is not present when the investigation is taking place (for whatever reason) you can refuse entry and demand it takes place another time;
  • If you are served with a notice, you have the right to appeal it within 21 days of the date of issue; and
  • You can appeal to modify or cancel the notice or to request an extension of time. Once the contravention is remedied, an application to cancel the notice may be made.

Above all else, if in doubt you should seek legal advice. This is important if you are under questioning or have been requested documentation by an HSE inspector. It is, overall, very important that you familiarise yourself with these Regulations and what they require before you are dealt an unwelcome surprise by an HSE inspector.