The Merchant Shipping (Watercraft) Order 2023

The 2023 Order applies certain provisions of the Merchant Shipping Act 1995. It also applies to instruments made, or treated as made, under that Act and the Harbours Act 1964 (as defined in Article 3 of the 2023 Order). They apply in relation to ships, albeit with modifications in some cases.

The Merchant Shipping (Watercraft) Order 2023 was laid before Parliament on 18 January and became law on 31 March 2023.

No.

The 2023 Order applies to all “watercraft”, meaning any type of craft which is:

• capable of moving under its own mechanical power
• used, navigated, or situated wholly or partly in or on water
• able to carry one or more persons.

This includes PWC, powerboats and RIBS, tenders and sailing dinghies which are fitted with or carry a motor. However, vessels which are already considered “ships” for the purposes of the Merchant Shipping Act 1995 are expressly excluded from the definition of “watercraft”. A motor or sailing yacht on passage is almost certainly already considered to be a “ship”.

This Order extends and applies to the whole of the United Kingdom.

Yes.

However, the 2023 Order operates by applying to “watercraft” certain provisions in or made under the Merchant Shipping Act 1995 which are applicable to “ships”. If the relevant provision in or made under the act only applies to a ship which is in a port or at sea, then the 2023 Order will only apply that provision to a watercraft which is in a port or at sea.

The 2023 Order does not apply to craft that do not fall within the definition of watercraft or those considered to be ships under the Merchant Shipping Act 1995. Unpowered craft such as pedalos, canoes, rowing boats, SUPs, windsurfers, kite surfers, wing surfers, sailing dinghies and unpowered surf boards are excluded from the 2023 Order.

No.

The 2023 Order does not specify length of watercraft as defined in Article 3 of the 2023 Order.

If a watercraft user does something or omits to do something that leads to the loss, destruction or serious damage of their watercraft, any other watercraft, ship or structure, or the death of or serious injury to any person and either:

• the act or omission was deliberate or amounted to a breach or neglect of duty.

OR

• the person who committed the act or made the omission was under the influence of drink or a drug at the time of the act or omission.

then the person is guilty of an offence under section 58 (conduct endangering ships, structures, or individuals) of the Merchant Shipping Act 1995, as applied by the 2023 Order.

No.

The 2023 Order does not introduce specific alcohol limits for those in charge of a watercraft or other recreational craft. The reference in the 2023 Order to drink or a drug is merely one of the conditions which, only if satisfied, may lead to an act or omission under Section 58 of the Merchant Shipping Act 1995 amounting to an offence.

Note: Local harbour legislation prohibits a person from navigating a vessel when unfit by reason of drink or drugs. The expression “vessel” mentioned in local legislation may well include watercraft and personal watercraft, used as a means of recreation and/or transportation.

On conviction, imprisonment for a term not exceeding two years or a fine, or both.

Yes.

In proceedings for an offence under this section it is a defence to prove that the accused:

• took all reasonable steps to discharge that duty
• took a drug on medical advice or had no reason to believe that the drug might have had an influence
• took all reasonable precautions and exercised all due diligence to avoid committing the offence, and the likelihood of the offence could not have been foreseen by the accused or could not have been avoided by them.

Yes and No.

The 2023 Order extends a harbour authority’s power under sections 40A-40D of the Harbours Act 1964 to give harbour directions to watercraft as if they were ships. However, only 35 harbour authorities in England and Wales have been authorised by the Secretary of State to give harbour directions under sections 40A-40D of the Harbours Act 1964.

Most harbour masters already have a power to give legally binding instructions to individual vessels (known as “special directions”) and an increasing number of harbour authorities have a power to give legally binding instructions to vessels in general (known as “general directions”). It is important to note that these powers apply to vessels rather than to ships. The traditional definition of “vessel” used in harbour legislation includes “craft of every kind” and so probably already includes the types of craft that are now “watercraft” but, in any case, many harbour authorities have adopted their own even broader definitions of “vessel” in their local legislation. The 2023 Order will have no impact on the scope of these powers.

No.

There is no compulsory requirement to register a watercraft or any other recreational craft that is already considered to be a “ship.” The 2023 Order now makes it possible for the owner of a watercraft as defined in Article 3 of the 2023 Order to be registered as a small ship on Part III of the UK Ship Register but the 2023 Order does not make it compulsory for a watercraft to be registered.

No.

The current controls and restrictions that are in place remain.

Yes.

The 2023 Order provides the power to detain a dangerously unsafe watercraft by an inspector or surveyor of ships. That is a watercraft that is unfit to remain at sea without serious danger to human life, or unfit to go on a voyage without serious danger to human life because of its condition, manning, overloading or any other matter relating to safety.

The use of these powers would only be in these extreme circumstances and the MSA 1995 already contains a definition of “unsafe” with significant guidance already available to enforcement authority officers which explains that high threshold.

What does dangerously unsafe mean?

A watercraft may be considered as dangerously unsafe if it is considered that its condition is unfit to go to sea or where there is serious danger to human life.

What is an enforcement Authority?

The power to inspect and to detain watercraft is conferred upon inspectors and surveyors appointed in accordance with Article 12 of the 2023 Order.

The 2023 Order places a duty on the owner of a watercraft within UK waters to take all reasonable steps to ensure that it is operated in a safe manner. If the owner fails to do so then they may commit an offence that is punishable by imprisonment for a term not exceeding two years or a fine, or both.

The owner of a watercraft has a responsibility to ensure that it is used in a safe manner and is liable if this is not the case. That responsibility cannot wholly be negated simply because the watercraft is being used by another person, regardless of whether there is any payment for that use. In cases where a watercraft is available for hire, there should be an onus on the owner to ensure that those who are hiring the watercraft do so safely, for example, by being given a safety briefing.

Yes.

The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 apply to watercraft as if they are UK ships wherever they may be, except where an exemption is granted by the Secretary of State under regulation 5 of the 1996 Regulations.

Yes.

The Merchant Shipping (EPIRB Registration) Regulations 2000 apply to watercraft as if they are UK ships and requires the owner and the operator to ensure that every EPIRB is registered with a competent authority and that the registered particulars are correct.

Find out more about The Merchant Shipping Order 2023 or our range of Water Craft courses.