Agreement Governing the Delegation of Survey and Certification of Small Commercial Vessels

Dec12 version

Agreement between the Maritime and Coastguard Agency (the MCA) and [CA] governing the authorisation of survey and certification of Small Commercial Vessels (Motor, Sailing, and from a Nominated Departure Point), Workboats, Pilot Boats and Police Craft under the relevant UK Codes of Practice

1.  Background and Purpose

1.1.  The MCA, an Executive Agency of the Department for Transport is appointed to act on the Secretary of State’s behalf for all purposes in connection with the legislation and responsibilities relevant to this Agreement.

1.2.  This Agreement authorises [CA] to act as a Certifying Authority (CA) to examine and certificate Small Commercial Vessels (SCVs) in accordance with the applicable requirements of the following legislation:

·  The Merchant Shipping (Small Workboats and Pilot Boats) Regulations 1998 (SI 1998/1609 as amended)

·  The Merchant Shipping (vessels in Commercial Use for Sport or Pleasure) Regulations 1998 (SI 1998/2771 as amended)

1.3.  The above legislation provides that the otherwise applicable Merchant Shipping Legislation listed in the Schedules to the Regulations does not apply to certain vessels provided that they have been examined against the standards set out in the relevant Code of Practice and issued with a certificate in accordance with that Code.

1.4.  The relevant standards against which SCVs can be examined and certificated are:

1.4.1.  The Safety of Small Commercial Motor Vessels – A Code of Practice

1.4.2.  The Safety of Small Commercial Sailing Vessels – A Code of Practice

1.4.3.  The Code of Practice for the Safety of Small Workboats and Pilot Boats

1.4.4.  The Code of Practice for the Safety of Small Vessels in Commercial use for Sport or Pleasure Operating from a Nominated Departure Point (NDP)

1.4.5.  The Police Boat Codes (A, B, C, D)[1]

1.4.6.  The Police Boat Code 2 (PCB2) [2]

1.4.7.  MGN 280 Small Vessels in Commercial Use for Sport or Pleasure, Workboats and Pilot Boats – Alternative Construction Standards (as amended)

1.5.  The purpose of this Agreement is to authorise [CA] as a CA to perform examination and certification services on SCVs and to define the scope, terms, conditions and requirements of that authorisation.

1.6.  For the purpose of clarification within this Agreement, all references to International, European, and United Kingdom documents shall be read as the latest version of that document, that is “as amended”, unless otherwise stated.

2.  Definitions

“Authorised Person” – a person who by reason of relevant professional qualifications, practical experience or expertise is authorised by the C A chosen by the owner/managing agent to carry out required examinations under the Code.

“Certifying Authority British Certification Committee” (CA BCC) - An annual meeting between the MCA and all the CAs authorised by the MCA.

“CA Committee” – A group appointed by the CA responsible for carrying out the functions laid down in this Agreement.

“Competent Person” – a person competent to the satisfaction of the C A to carry out stability examinations and tests (as required by section 11 of MGN 280, and section 8 of the Police Boat Code 2)

“the Code” – means the relevant standard, as amended, as listed in 1.4 of this agreement.

“Small Commercial Vessel” (SCV) – means, for the purpose of this agreement, all vessels within the scope of the Codes listed at 1.4.

3.  .Interpretations and Equivalences

3.1.  Where the Code gives [CA] the ability to interpret Code provisions for some part of a vessel, its equipment or machinery, [CA] may make such interpretations as appropriate and permitted.

3.2.  Where the Code requires a particular piece of equipment or machinery be provided or carried in a vessel to which the Code applies, the MCA, on behalf of the Secretary of State, may permit an equivalent piece of equipment, machinery or provision. Applications must be made to the MCA by [CA] to demonstrate the piece of equipment machinery or provision is at least as effective as that required by the Regulations or the Codes. (This must be submitted on the appropriate MCA form and procedure).

3.3.  The MCA shall inform all other CAs of equivalences to ensure consistent application of policy decisions.

3.4.  Any dispute relating to the technical application of the Codes (agreed by either an individual CA or the MCA) shall be referred to the MCA for advice. The MCA’s interpretation may be presented to the CA BCC to seek advice and opinions from other CAs before a final decision is made.

4.  General Conditions

4.1. [CA] shall form a Committee that shall be responsible for carrying out the functions authorised by this Agreement. This Committee shall be called the CA Committee of [CA] (CA Committee).

4.2. The CA Committee shall ensure that the work authorised by this Agreement is directed towards obtaining independent assessment and scrutiny of the design and construction of vessels which are presented to it for consideration.

4.3. The [CA] is responsible for each certificate it issues, and the relationship between the [CA] and a vessel owner/managing agent is direct. This does not supersede the Code requirements that an owner is responsible for ensuring his/her vessel complies with the requirements applicable to that vessel.

4.4.  The CA Committee shall:

4.4.1.  meet at least annually;

4.4.2.  retain a record of each meeting, including evidence of decisions made, action taken to address issues, and further action to be taken;

4.4.3.  establish a quorum for a meeting to take place at a level ensuring informed decisions can be made. The quorum is to be mutually agreed with the MCA;

4.4.4.  include technical and administrative representatives from [CA];

4.4.5.  invite a representative from the MCA to attend a meeting at least once a year;

4.4.6.  ensure all members declare any conflicts of interest and these are documented for each meeting; and,

4.4.7.  follow additional requirements as detailed in Annex A .

4.5.  [CA] shall maintain an effective management system that:

4.5.1.  documents how [CA] is organised to carry out the functions laid out in this agreement, including agreed arrangements for the management of the CA Committee;

4.5.2.  has documented, defined and implemented processes of communication with authorised and/or competent persons, to reduce delay in the stages of certification;

4.5.3.  determines and documents criteria and methods needed to ensure that the operation and control of the examination and certification processes are consistent and effective; and,

4.5.4.  maintains complete and accurate records, as required by Annex A to this agreement.

4.6. [CA] shall provide the MCA with a copy of documents developed to meet 4.5.1, 4.5.2, and 4.5.3.

4.7. The CA Committee will send representative(s) to the CA BCC.

4.8.  The requirements of sections 4.4 and 4.5 may be achieved through compliance with an appropriate international quality management standard. Certification to an international quality standard is not a mandatory provision of this agreement, and is not necessarily evidence that [CA] complies with 4.4 and 4.5. Therefore the MCA reserves the right to establish whether [CA] complies with 4.4 and 4.5 regardless of compliance with an international quality standard.

5.  Authorised and Competent Persons

5.1.  In order to ensure effective accountability, all examinations undertaken as authorised by this Agreement are to be carried out by persons authorised to do so by the CA Committee.

5.2.  The CA Committee shall:

5.2.1.  agree and document the specific qualifications and experience required by an authorised person as appropriate to the vessels being examined. Special consideration should be given to the vessel construction material, machinery, and the vessel’s intended use; and in accordance with the requirements detailed in Annex A;

5.2.2.  ensure and retain evidence that all authorised persons have, as determined by [CA], suitable qualifications and experience for each type of vessel they are authorised to examine. (The MCA reserves the right to assess the methodology applied by the CA Committee for deciding upon suitability of qualification, but the CA remains responsible for assessing qualifications and experience of authorised persons);

5.2.3.  ensure that no authorised person is conducting examinations on vessel types for which they do not have appropriate qualifications, experience or competence;

5.2.4.  ensure that when engaging in work under the terms of this Agreement a conflict of interest does not exist with the authorised person or the CA as an organisation;

5.2.5.  determine whether a conflict of interest exists (in association with 5.2.4 above) and this may include but is not exclusive to the following:

5.2.5.1.  responsibility for the vessel’s design or construction;

5.2.5.2.  responsibility for the operation of the vessel, or a sister vessel in production; and,

5.2.5.3.  any financial, ownership, purchase or commercial management interest in the vessel.

5.2.6.  agree, and document, the extent to which authorised persons’ competence and expertise are monitored and maintained in service, and the process for removing or suspending authorisation (this may include suspension from examining and certificating a specific type of vessel);

5.2.7.  develop and approve general instructions on [CA] certification and examination procedures, that are to be issued to and/or made accessible to authorised persons; and,

5.2.8.  develop general instructions on action to be taken by authorised persons in the event of serious deficiencies being found on a vessel, including how to resolve any dispute if the findings are questioned by the owner.

6.  Supervision

6.1.  To ensure [CA] is complying with this Agreement, the MCA will organise and conduct regular monitoring activities of [CA].

6.2.  Monitoring Visits[3]

6.2.1.  Monitoring visits are a sampling process that will discuss and review evidence to ensure [CA] is complying with the requirements and functions as authorised by this Agreement and its Annex.

6.2.2.  The monitoring visit will be conducted by MCA personnel who hold ISO 9001 auditor qualifications and/or are a qualified surveyor.[4] Other MCA personnel may be drawn upon as required. Minutes of meetings will be taken by MCA administrative staff.

6.2.3.  As a minimum, [CA] CA Committee Chairman (or nominated person if Chairman is not available) will attend the monitoring visit and will ensure that the MCA monitoring personnel are provided (within reason) with information they require. Other [CA] personnel may be drawn upon as required.

6.2.4.  [CA] shall be notified of areas for discussion in advance of a monitoring visit. Names of vessels to be discussed may be withheld to ensure a blind-sample exercise can be undertaken.

6.2.5.  The frequency and scope of these visits, and the vessel files that are examined during the visit will be determined using a risk-based approach, based on the range and risk philosophy adopted in the Codes. Factors taken into consideration will include the actions from previous BC meetings, results of vessel inspections, and other issues deemed appropriate.

6.3.  MCA Inspections

6.3.1.  In line with the MCA’s inspection regime, MCA inspectors conduct inspections of vessels to ensure they are being maintained in a condition required by relevant legislation. These are conducted in accordance with the MCA’s inspection procedures, and the MCA holds the right to take appropriate action in accordance with UK port State and flag State control regulations (this may include the detention of a vessel in port).

6.3.2.  Inspection results may be discussed with [CA] if appropriate, and action taken by the MCA and/or [CA] as agreed and required.

6.4.  Vertical Contract Audits

6.4.1.  The MCA will conduct Vertical Contract Audits (VCAs) to assess the correct application of the Code requirements at the point of vessel examination.

6.4.2.  The VCA will consist of an MCA qualified surveyor witnessing a [CA] authorised person conducting the work authorised by this Agreement onboard a vessel to provide assurance that the requirements of the Code are being met. The outcome, including any non-conformities or observations, of this audit will be discussed with the authorised person and a report provided to [CA] for consideration and agreement of actions.

6.4.3.  The MCA shall determine the frequency of these audits, type of vessel examined and authorised person to be audited using a risk-based approach, based upon range and risk philosophy adopted in the Codes. Factors taken into consideration will include the actions from previous BC meetings, results of vessel inspections, and other issues deemed appropriate.

6.4.4.  The MCA will endeavour to witness different [CA] authorised persons and types of vessels at each VCA undertaken.

6.5.  Follow-Up Action

6.5.1.  Minutes of monitoring visits and reports of VCAs will be issued by the MCA to [CA] for comment and agreement of actions.

6.5.2.  After each visit any concerns will be raised with [CA]. All actions to be taken will be agreed with [CA] and must be completed within the agreed timescale.

6.6.  Resulting Action

6.6.1.  Results of monitoring visits and VCAs will contribute to the MCA’s consideration of the need to implement provisions detailed in section 11 of this agreement.

7.  Remuneration

7.1. Remuneration for examination and certification processes carried out by [CA] as authorised in this Agreement will be directly between [CA] (or its authorised persons) and the party requesting such services.

8.  Confidentiality

8.1.  [CA] its employees and agents agree to maintain as confidential and not to disclose to any third parties any information, documents or reports derived from the MCA in connection with the services provided without the consent of the MCA except to the extent that it is reasonably necessary to enable [CA] to carry out the services in accordance with the terms of this Agreement.

8.2.  Such obligation shall continue in full force and effect during the term of and after the termination of this Agreement provided that the following shall not be subject to such restrictions:

8.2.1.  any information which was in the possession of [CA] prior to its disclosure to [CA] by the MCA; or,

8.2.2.  any information which is or lawfully becomes part of the public domain; or,

8.2.3.  any information which shall otherwise lawfully become available to [CA] from a source independent of the MCA; or

8.2.4.  any information which [CA] is legally obliged to make available to third parties.

8.3.  The MCA agrees to maintain as confidential and not to disclose to any third party any information from [CA] in connection with the monitoring arrangements exercised by the MCA in accordance with the terms of this Agreement, except insofar as it is required to disclose it by the court or to comply with its legal or statutory obligations.