Respondee

FREIGHT TRANSPORT ASSOCIATION

The regulations use the terms "lifting equipment" instead of "lifting appliances" which is the normal term used for equipment on ships, but I notice that the term lifting equipment appears to be satisfactorily defined.

No comment required

The thorough examination of all lifting plant at least once every 12 months.  I believe that the MCA are stuck with this from the EU but in practice I foresee that the MCA will only be able to enforce and expect that which is specified in ILO 152.  I believe that the MCA may find difficulty in enforcing anything other than that detailed in an International Convention on foreign flag ships.

It is possible that this might occur in the case of  non-UK ships. Nevertheless we are obliged to fully implement the Directive in our regulations. It is however worth noting that ILO Convention 152 has currently only been ratified by some 22 Countries (but not the UK) of which 8 are EC members.

Under requirements for inspection I am concerned that the proposed regulations call for inspection by a competent person.  ILO 152 calls for a competent and responsible person with both being clearly defined.  Applying only a competent person appears to put a higher status on the proposed regulations than there is encapsulated in ILO 152.

ILO 152 defines a responsible person as:-

“a person appointed by the employer, the master of the ship or the owner of the gear, as the case may be, to be responsible for the performance of a specific duty or duties and who has sufficient knowledge and experience and the requisite authority for the proper performance of the duty or duties”.  

It is considered that our Regulations cover this point adequately.

The proposed regulations apply to seafarers and those employed by the ship.  I believe there is no intention of confusing the issue and trying to make these apply to dockworkers and other shore based workers as they are covered by HASAWA legislation, eg docks regs, PUWER and LOLER (1988) I could find no such statement in the proposed regs as to their application and confusion could reign if not careful as they look to be designed to be made under the European Communities Act as well as the MS Act.  It would be beneficial if a statement could be included to clarify that these MS

regs do not apply to dockworkers and other shore based employees.

SCOTTISH ENVIRONMENT PROTECTION AGENCY

The use of the term 'worker' raises concerns. The shore base legislation refers to all persons who use work equipment, as the regulations are there to safeguard all persons.

In implementing EC Directives we are constrained by the wording of the individual Directives. In this context the “Framework Directive” (89/391/EEC) and subsequent Health & Safety Directives specifically refer to “workers”. As a consequence, the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997, which implemented the “Framework Directive”, and subsequent regulations implementing EC Health & Safety Directives, refer to workers rather than persons.

By using the term 'worker' the problem of the definition of share fishermen is raised, as claims may be made that share fishermen are not 'workers' in the context of the legislation. We would suggest that the term 'persons' is substituted for 'workers'

To cover the “share fishermen” aspect  MCA’s regulations are drafted to apply to the self employed in respect of their actions. A share fisherman can only be a worker or a self employed person. There is no other status.  However it is now recognised that we do not actually impose any responsibility for anyone in relation to the self employed

Content with the penalties for the provision and use of work equipment regs look fine, but have reservations about  some of the penalties in the lifting operations and lifting equipment regulations.

Discussions are continuing on the points raised

MCA would agree that an officer with a certificate of competency may not be a "competent person" depending upon the task to be undertaken. It is for this reason that the regulations state that a "Competent Person" means a person possessing the knowledge or experience required for the performance of the duties under the regulations. This recognises that some tasks may be relatively easy and can be undertaken by ships personnel whereas others may require more specialist knowledge which can only be provided by specialised companies. It is for the employer etc to decide who is a competent person for each task required under the regulations. We have also sought to clarify this in the related MGNs

With reference to Regulation 4, NUMAST is of the opinion that although a ship master has responsibility for safety onboard a ship, ship masters must not be automatically assumed to have control of operational aspects, as such duties are imposed by owners and operators to which a master has little control.

MCA notes what is said however the regulations  do not specify that it shall be the master, although it may well be given the comment that the master has responsibility for safety on board a ship.

It has to be  recognised that, in this day and age there may well be several employers with workers on board a ship e.g. manning agencies, concessionaires etc who, whilst required to comply with the regulations, may not have control of the matter to which a particular regulation refers because they have no responsibility for the operation of the ship. In such circumstances the duties imposed on those persons by the regulations will also fall on the person who has control of that matter which may be the master with his overall responsibility for safety on the ship and/or the ship owner, charterer etc whoever has control of the operation of the ship. Again therefore whilst we consider the regulations cover the point appropriately if, as it appears, you do not consider the MGNs cover this aspect adequately I would welcome your clarification on how you consider the guidance could be amended to address your concerns

It is therefore proposed to utilise  wording along the lines of the following:-

“It is important that those on whom duties are placed are in a position to carry them out. Employment relationships on board ship can be complex - for example the master may not be employed by the owner or operator of the ship, or by the same employer as the crew. There may also be people working on board such as contractors and sub-contractors, stevedoring companies and those under franchising arrangements (eg in retail or service outlets) whose employer has no direct responsibility for the safety of the ship. There is therefore no single “person” on whom it is appropriate to place the entire “employment” responsibility for health and safety on board.

More detailed information on employment relationships and the responsibilities of the various employers are contained in Marine Guidance Note MGN 20 which provides guidance on the requirements of the Merchant Shipping and Fishing Vessel (Health and Safety at Work) Regulations, on which these regulations build”.

Honourable Company of Master Mariners

Consider SIs are clearly comprehensive and the MGNs are seen as a particularly helpful reference tool.

Useful comment

Suggest this provision, which comes from the Hatches and Lifting Plant Regulations, is deleted.

Posford Haskoning Ltd – Port Services

International Maritime Contractors Association

Following discussions Text of guidance on Regulation 6 in LOLER MGN to be amended to read:-

  "Guidance on the transfer of personnel is contained in the Code of Safe Working Practices for Merchant Seamen  and in Safety Notice SN 10/80  produced by the Offshore Safety Division of the Health and Safety Executive. A copy of SN 10/80 is at Annex 2”

Scottish Fishing Federation

Suggested various drafting changes and additionally suggested that rather than try to adequately explain mechanics of the self employed structure of the fishing industry the following should be adopted:-

1.  the “owner” be made equivalent to the “employer”.

2.  the “skipper” be made equivalent to the “master” and

3. “member of the crew” be made equivalent to the “employee”.

International Association of Drilling Contractors

“employer”…in order to make it clear, as it could relate to an offence, is the Master the employer under the Articles of Agreement or is it the primary employer i.e. the person supplying the crew?  The MGN should make it clear to the Master what is meant here.

Does “work equipment” include the ship’s main engines? Is it the intention that it should do so?

Guidance needs to be provided on this, with examples.

Again this is more appropriate to the MGN and it is  agreed it could do with amplification but without examples!.

Could the words “except as provided for under Regulation 3(1)(a) and (b) be added to the end of this sentence.

Use of the words “reasonably foreseeable” do leave the legislation open to different interpretation by legislator (inspector) and operator.

This indicates that where there is a maintenance log, it must be kept up to date.  Can we assume that if there is no such log there is also no such requirement?

What is this regulation trying to achieve?  It is poorly written and not understood.  It could involve the use of a hammer to a winch.  Does it mean a high risk or any risk?  If the purpose is to prevent unauthorised persons, or persons who are not competent, from using the equipment, this should be made clearer.

This was in the previous (1999)  consultation version and  no reason is seen to change it now. It could indeed cover a hammer to a winch and that is precisely the reason for risk assessments to identify risks and whether they are significant. Even a hammer in the wrong place can be very dangerous.

This section does not make sense and its purpose is unclear.

The prevention of any risk is not achievable.  This should be qualified by “so far as reasonably practicable.”

I assume that e.g. “16 to 20” means inclusive….but it doesn’t say so; and there are others  

PUWER draft MGN

Guidance needs to be provided on this, with examples.

Inspection

The term 'a competent person' has been added. HSE legislation simply refers to inspection. Applies also in 7-(2)

'and capable of operating safely' seems superfluous as 'safe to operate' is sufficient.

Conformity with Community requirements

No date is given from which work equipment must conform. eg Shore based legislation states 'this regulation applies to items of work equipment provided for use  in the premises or undertaking of the employer for the first time after 31st December 1992.'

Dangerous parts of work equipment

Fails to consider the circumstance in which guards or protection devices are not possible. Shore based legislation has 'the provision of information, instruction, training and supervision.'

We are required to fully transpose the Directive and, in drafting our Regulations our lawyers have followed closely what is in the Directive. As drafted, the wording of this regulation is in line with the requirements of the Directive

Electrical Equipment

refers to ships electrical equipment and installations. Does this include portable power tools?

In our opinion both mains and battery powered tools, as well as any other tools will be subject to the general provisions of the Regulations

Protection against specific hazards  

This section needs to specify that measures other than the provision of PPE and training etc are to be used as far as is reasonable practicable. (See the shore based legislation.) In the list of specific hazards work equipment being struck by lighting has been included - why? Of particular importance, is asbestos covered by other regulations or should it be here under specific hazards?

The provision relating to lightning is contained in the Directive. Cranes and Derricks, for example, are work equipment and if used in storm conditions could be struck by lightning.

So far as asbestos is concerned there is a separate Directive (83/477/EEC) which relates to exposure to Asbestos. However both this, and the subsequent amending Directive (91/382/EEC) contained derogations relating to sea transport. However the latest amending Directive (2003/18/EC), which is due for implementation by 15 April 2006, removes the disapplication for sea transport and the requirements regarding asbestos will apply to sea transport from the date the implementing regulations come into affect. In this context  our lawyers  have been given instructions regarding the production of draft regulations and once the draft is to hand we will be able to commence drafting appropriate supporting guidance (e.g. the MGN) for consultation purposes.

Attention is however drawn to Merchant Shipping Notice M.1428 which currently sets out safety measures to be followed in the case of asbestos. It also makes clear that, except in very limited circumstances, use of asbestos is prohibited on any vessel being built for the UK registry

Workers carried on mobile work equipment

‘protection structure so that work equipment cannot tilt by more than a quarter turn’--- why not say ‘fall on its side’ as per shore based legislation?

‘can tilt further than a quarter turn’ ---- similarly, why not say ‘can overturn further than that’.

Again this regulation follows the Directive wording and again a requirement that equipment cannot tilt by more than a quarter turn is not the same as a requirement that it shall not “overturn further than that”.

Self-propelled work equipment  

This section would be better directly after section 29

Onus of proving what is reasonable practicable

This is placing the requirement on the fisherman to prove that what he did was reasonable. What is the basis for this, as it does not appear to be the case in the shore based legislation?

Reg 3(1) says that the Regs apply to 'the use of work equipment by workers or by the person mentioned in paragraph (4) on United Kingdom ships...'.

But reg 3(9) of PUWER 98 says '...these Regulations shall not impose any obligation in relation to a ship's work equipment (whether that equipment is used on or off the ship)'.

Thus, there appears to be a gap in coverage as between the two sets of Regulations, in relation to a ship's work equipment used off the ship.

Reg 3(5) refers to PUWER, but the footnote does not refer to its amendment by the Health and Safety (Miscellaneous Provisions) Regulations 2002/2174.

One of the amendments was to regulation 10. I see that reg 11(1) and (2) of the draft follows the unamended wording of reg 10.

Reg 11(2) of PUWER was also amended, but it is not reproduced in reg 12 of the draft in any form. I don't know why.

HSE comment that Regulation 3(5) of our PUWER Regulations refers to their PUWER Regulations, but the footnote does not refer to its amendment by the Health and Safety (Miscellaneous Provisions) Regulations 2002/2174. This was unfortunate but not surprising  as the title of the 2002 Regulations does not indicate that they amend HSE's PUWER Regulations and our attention was not previously drawn to the effect of the 2002 Regulations.

So far as the amendments made by the 2002 Regulations to HSE's PUWER Regulations  we are not convinced that our Regulations require similar changes as I believe our Regulations adequately implement the Directive but have referred the matter to lawyers for consideration.

“employer”…in order to make it clear, as it could relate to an offence, is the Master the employer under the Articles of Agreement or is it the primary employer i.e. the person supplying the crew?  The MGN should make it clear to the Master what is meant here.

“Accessory for lifting” and “Loose gear” should have the same definition to avoid confusion.  If they are different then this should be stated.

Could the words “except as provided for under Regulation 3(1)(a) and (b) be added to the end of this sentence.

We are not aware that the Directive excludes fishing vessels so why this regulation?

In PUWER this regulation does not apply to non UK flag vessels but LOLER foreign-flag ships are included.  The way that both are worded at the moment allows for prosecution of the employer (possibly not based in the UK) and extended to possibly the master.  The whole issue of applicability needs to be clarified.

Guidance suggests that this regulation is applicable to new equipment.  Please confirm to what extent this regulation applies to existing permanently installed lifting equipment.

Suggest reword to confirm that lifting equipment should not be used for lifting persons unless marked, currently a literal translation would mean that all other equipment would need to be marked “not for lifting persons”.

It could be argued that equipment within the engine room (lifting beams etc.) are not ‘exposed’.  This would mean that they do not require thorough examination.  Please clarify.

Clarification on who is responsible for the ‘lifting scheme’; the employer or the competent person.

28 days is too short.  It is common for contractors to take up to three months to issue the numerous certificates involved.

Is there a standard reporting procedure or contact for the competent person to report deficiencies to the MCA.

LOLER draft MGN

“Shackles, links and rings should be renewed when wear or damage is evident” we suggest that a value be inserted (i.e. 10% wear).  As it stands, the equipment should be disposed of as soon as any wear is apparent.

3^rd Paragraph; delete last sentence “In service proof load testing is not mandatory but is recommended”.  It is not required and would prove costly and time consuming to implement.

‘lifting operation’ has the meaning given in regulation 9(4) ----- there does not appear to be a regulation 9(4)

This appears to be a typographical omission as regulation 9(4) was in earlier versions of the draft. This will be checked with our lawyers.

Positioning and installation

Add persons falling down hatchways. (See shore based legislation that refers to: employers shall ensure that there are suitable devices to prevent a person from falling down a shaft or hoistway.)

It must be borne in mind that HSE’s regulations, in respect of land-based  workers, and MCAs regulations, in respect of seafarers, will not mirror each other exactly as the means by which MCA and HSE implement Directives are different. HSE tend to have regulations covering more than one subject, such as in their COSHH regulations, whereas MCA has separate sets of regulations for each Directive.   

In this case the provision relating to persons falling down shafts or hoist ways is not contained in the Use of Work Equipment Directive as that relates solely to the use of work equipment. The Use of Work Equipment Directive, which LOLER/PUWER are implementing, is a daughter Directive of the Framework Directive (which was implemented for seafarers by the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997) and as such it builds on the provisions of the Framework Directive by introducing additional requirements in respect of the use of work equipment. However the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997

requires employers to carry out risk assessments and take appropriate general measures to safeguard workers on the vessels. We would consider this as including the provision of measures to stop persons falling down shafts or hoist ways.

In addition to the above there is a new Directive still to be implemented which amends the UWED Directive so that it covers Temporary Work at Height. In implementing this Directive it is currently our intention to cover situations whereby a person could fall down an open hatch or hoist way whilst working in proximity to it.

Testing

Why is a rope sling exempt?

As drafted LOLER & PUWER do not just implement the EC Use of Work Equipment Directive. Additionally they implement parts of International Labour Organisation Convention 152 on Dock Work and they also revoke and re-enact the Merchant Shipping (Hatches and Lifting Plant) Regulations 1988. This provision comes from regulation 7 of the Merchant Shipping (Hatches and Lifting Plant) Regulations 1988 and not the Directive.

The Honourable Company of Master Mariners have however also raised this point and it may therefore be reasonable to delete this provision.

Duty of workers

Employees do not have duties under LOLER. They have a duty under the Health and Safety at Work Regulations to comply with the safety measures put in place by the employer.

MCA would disagree. LOLER primarily imposes duties on an employer such as in regulation 9 where the employer is required to ensure that procedures and safety measures are established to ensure the safety of workers during lifting operations. However as drafted Regulation 16 of LOLER imposes a duty on a worker to make full and proper use of any system of work provided for his use by his employer in compliance with these Regulations

Onus of proving what is reasonable practicable

As with PUWER, this is placing the requirement on the fisherman to prove that what he did was reasonable. Should the onus be on the regulator to prove that the fisherman did not act reasonably?

See comments on PUWER

The 2002 Regulations amended LOLER 1998 also, and the amendment to the definition of 'accessory for lifting' is relevant. It followed comment by

the JCSI.

 HSE's comment that the 2002 Regulations amended their LOLER Regulations by amending the definition of 'accessory for lifting' to read:-

    '"accessory for lifting" means lifting equipment for    

      attaching loads to machinery for lifting'

As we use a similar definition it seems we will need to make a similar change if this was a matter raised by JCSI. This has been referred to our lawyers for consideration

Regulation 3(1) of the draft is similar to reg 3(1) of the draft MSFV (PUWER). But reg 3(6) of LOLER 98 is similar to reg 3(9) of PUWER 98. So there appears to be a similar gap in coverage.

Re the comment about the gap in coverage between Regulation 3(1) of our LOLER Regulations and their LOLER Regulations, MCA considers the problem to be  with HSE’s  Regulations and not MCA’s.

Is it intended that, under reg 13(3)(c), a copy of the report is sent to both enforcing authorities, in a case which falls within para (6)(a) and (c)?

So far as Regulation 13(3)(c) of our LOLER Regulations is concerned, MCA’s understanding is that a copy of the report would be sent to both enforcing authorities, in a case which falls within para (6)(a) and (c) of that Regulation.

Almost all of the workboats fitted with cranes have ones that are of the "knuckleboom" design. This is where the crane jib is fitted a second hyraulic knuckle mid-length, enabling the crane to be folded into a "4" configuration for stowage. These generally are derived from lorry loaders and, dependent on the cost of the crane and quality of the supplier, are adapted for marine use. Because of this, it is almost impossible to comply with either the regulations anticipated, or indeed, the suppliers own instruction manuals. I frequently see manuals supplied with new machines starting off with ..."before attempting to lift a load, ensure the vehicle is on firm ground and level"...!! Because of this I would like some reference within the rules to state that the operator should have available written instructions on the safe use of the machine that is relevant to its operation afloat.

MCA notes the  comments regarding the types of cranes fitted on work boats and the  request that the regulations require an operator to have available written instructions on the safe use of the equipment that are relevant to its safe use afloat. In this context it should be noted that the provisions of the PUWER Regulations apply to all work equipment on vessels, including lifting equipment, and the LOLER Regulations cover additional requirements specifically relating to lifting equipment and lifting operations. So far as the provision and operation of cranes on work boats is concerned Regulation 5 of PUWER requires an employer to ensure that work equipment made available to workers on the ship is suitable for the work to be carried out, or is properly adapted for that purpose, and may be used by workers without impairment to their health or safety. Additionally in selecting work equipment, every employer is required to have regard to the working conditions and characteristics and to the risks to the health and safety of workers which exist in the particular ship where that equipment is to be used and any additional risk posed by the use of that work equipment. The employer must also ensure that work equipment is used only for operations, and under conditions, for which it is suitable which means suitable in any respect which it is reasonably foreseeable will affect the health and safety of any worker. It follows from this that any lifting equipment provided must be suitable for the intended use and be safe to use.

So far as instructions on the use of equipment is concerned Regulation 9 of PUWER requires an employer to ensure that workers and supervisors have, where appropriate, written instructions pertaining to the use of work equipment including the conditions in which, and the methods by which, the work equipment may be used; foreseeable abnormal situations and the actions to be taken if such a situation were to occur; and any conclusions to be drawn from experience in using the work equipment. In addition Regulation 10 requires an employer to ensure that all workers and supervisors who use work equipment have received adequate training for the purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. These provisions would seem to address the  concerns raised but  the matter has been raised with  lawyers to see if they consider any amendments are necessary or appropriate. It might however be sufficient to draw attention to the need for ship specific instructions in the supporting Marine Guidance Notes.  

Regulation 8, (c) requires the fitting of a radius indicator able to be seen by the operator. generally, with the knuckleboom configuration, this is impossible to achieve. On shore based single jibbed cranes this is easy, with a pendulum attached to the side if the jib, and an arrow pointing to the relevant load limit at that radius. The articulating nature of the knuckleboom means that radius is not a feature of the first boom angle. Some more sophisticated models do have computerised load indicators, but in a small vessel frequently doused in salt water, such thing fail rapidly. More work needs to be done on this section.