Revision No.: 3.0
Date Reviewed: 13-4-2007
Issued By: EB
Document Reference: CFT 203 / Approved By: Executive 28-4-07
Legislation which might apply to diving and ancillary activities
Introduction
The CFT Code of Conduct, which has been adopted by the EUF, is a non-statutory code by which CFT expects its members to abide. The code is based on a legal foundation that has the force of law. It is surprising that there is widespread lack of information on what the law requires. Divers should be aware of all these regulations and know what is permitted and what is prohibited. The full text of the various regulations referred to may be obtained on the Irish Government website (search under Irish Statute Book). Laws are divided into Acts passed by the Dail and statutory instruments merely signed by the Minister acting under authority given to him under the Acts.
This listing of regulations that affect divers is not guaranteed to be comprehensive, nor does it purport to be a legal interpretation of the regulations. This is a layman’s summary and no liability can be attached to its content. Divers who intend to exploit grey areas would be well advised to seek professional legal advice as to the consequences of their proposed actions.
Divers will be fully aware that the regulations may not be palatable, but divers as a category must be seen to be responsible and law abiding in accord with the CFT code of conduct, CFT 223. The best results are obtained by lobbying before legislation is passed and this was most successful in the case of the National Monuments Amendment Act. It is very difficult to have legislation repealed after it has been passed or signed by the Minister in the case of Statutory Instruments.
Political considerations, largely depending on who the authorities were prepared to take on, governed many of the clauses omitted from these laws. During last summer the sea angling lobby made great noise around their inability to wear lifejackets or operate from licensed boats but their voice was unheard because their case was undermined by a poor safety record and a lack of common sense. Many of these laws are discriminatory in that the authorities backed off preventing fishermen trawling through historic sites and clearly several sites have been seriously damaged when material was recovered in trawls. Similarly, the few shellfish which might be taken by divers were considered a greater threat to fish stocks than mass removal of immature shellfish by dredges. In the safety area, the risk of drowning from a competitive rowing boat is recognised by the authorities to be less than in other craft and so life jackets are not required in rowing boats or yachts.
Wrecks
All wrecks are owned by somebody. All material recovered from any wreck should be declared to the Receiver of Wreck. This is the local Customs Officer or the local Gardai. The Receiver will make enquiries as to the legitimate owner. Usually no value is attributed to small souvenirs and the material is left with the finder. However, undeclared salvage is stolen goods and the perpetrator can be charged with theft. The Merchant Shipping Salvage and Wreck Act 1994, forbids the boarding of any wreck without the permission of the owner or master. There is no reference to the age of the wreck. Wreck is defined as on shore or underwater. The Act appointed the Gardai as Receivers of Wreck.
The relevant UK wreck legislation is the Merchant shipping act 1995 and the protection of wreck act 1973 which essentially have the same provisions in Northern Ireland waters.
Finding Something
When any property is found there is an obligation to attempt to trace the owner. The usual method is to report the find to the local Garda station as soon as possible. It is an offence to even temporarily deprive somebody of their possessions under the Criminal Justice, Theft and Fraud Offences Act 2002, which is a major change from the old larceny statutes.
Wrecks Over 100 Years Old
The National Monuments Amendment Act (No. 17 of 1984) forbids diving directed at the exploration of a shipwreck more than 100 years old without a permit. Three more modern wrecks have been designates and also require a permit – The Lusitania, the Aud and the Muirchu. Use of a metal detector is also forbidden. The onus is on the diver to prove his innocence under this legislation. Permits to dive on 100 year old wrecks may be obtained from National Monuments & Architectural Protection Division, Dun Sceine, Harcourt Lane, Dublin 2. Phone: 01 4117 140. E-mail . Application takes about three months but if a licence is not granted within three months or a reason given, a license is deemed to be granted by default. The best time to apply therefore is around September to cover the next full year. The National Monuments Act 2004 provided for fees for licenses. The heritage act 1995 may also be relevant.
Salvage
When a vessel is in distress they may be given assistance by other craft or shore based people. These people rendering assistance may claim salvage. This is essentially recompensing them for the trouble they took to assist or save the other craft. Out of pocket expenses will always be awarded in court as will lost equipment or damage to the assisting craft. Depending on the danger the rescued craft was in further award based on the value of the craft and the extent of danger will awarded if claimed. It is traditional that lifeboats do not claim salvage but this is not based on any legal principle. The insurers of the craft will pay the salvage based on the mitigation of damage which would otherwise be their loss. There is an old principle of giving a tow rope to the towing craft thus demonstrating a degree of control of the situation and offering a Lloyds open salvage agreement. Of course the rescuer can reject both and await further developments such as the endangered craft running close to rocks or another more generous offer of salvage.
Heritage Orders
Some significant underwater sites may be made the subject of Heritage Orders. The sites covered to-date are the Lusitania, the Aud and the Victoria. If a Garda suspects that such a site is being interfered with, and that an offence has been committed under the National Monuments Acts, he may seize, without warrant, equipment capable of interfering with such a wreck or site. (National Monuments Amendment Act, No. 17, 1994). .
Exclusion Orders
Section 29 of the Merchant Shipping maritime Casualties act 2000 empowers the making of exclusion orders for the purpose of preserving the scene of an accident.
The Maritime safety actno 11, 2005 gives the Minister wide powers to make orders relating to safety on the sea. Section 38 gives the minister power to make orders controlling the movement of vessels to allow actions to be carried out safely. An example of such an order is : Notice to mariners 34/05 Exclusion order on Rising sun 2-12-05 16.00 Maritime safety act no 11, 2005 section 38. In the UK the maritime and coastguard agency have the power to establish exclusion orders for vessels in UK waters.
Shellfish
The taking of any shellfish, lobsters, crawfish, crabs, prawns etc. by divers using scuba is prohibited (Shellfish By-law 533 made on 14th March, 1966). Snorkelling for shellfish does not seem to be forbidden. However, this law does not apply to Northern Ireland where the taking of shellfish is still allowed. The taking of oysters is prohibited other than by dredging in specified areas. Pollution of, or interference with, an oyster bed is forbidden (Fisheries Consolidation Act No. 14, 1959).
Foreshore
The foreshore belongs to the State except in a few rare cases. Access to the foreshore however could be in private ownership. The Minister of the Marine may give leases to individuals to build structures. A license may be given for a trivial matter. The 1992 amendment forbids removal of material from the foreshore except with a license. The tenure of bathing places like the “Forty Foot” at Sandycove near Dublin, would typically be under the Foreshore Acts (No. 12, 1933 and No. 17, 1992). It is not uncommon to be approached aggressively by landowners at islands the land is only private above the high water mark except in rare exceptional circumstances.
Attacks by Others
It has been common for fishermen to object to divers in a robust manner. This type of action is likely to be an offence under the Non-fatal Offences Against the Person Act No. 26, 1997. Fishermen who “buzz” divers in the water could be charged under this Act, especially if an injury is caused. The correct action is to take the number of any boat involved. If a camera is available take photographs. Contact Coastguard via VHF radio and Gardai as well. Bear in mind that though you may have escaped injury on a specific occasion, the behaviour will be repeated and others may not be so lucky. This could also be an offence under the 2005 Maritime Safety act.
Trailers
The Road Traffic Licensing of drivers regulations SI 352 1999 require that a person towing a trailer has the appropriate licence for a trailer. This is minimum B (car) plus E (trailer). Note that it is a strict insurance requirement that a driver be correctly licensed at the time of any incident and insurance can be technically denied for an out of date licence. Note also that if a driver’s licence is endorsed as requiring spectacles then that becomes mandatory for the driver.
Trailers over half the weight of a towing vehicle must be independently braked, trailers must have a parking brake and the trailer must not exceed a prudent weight for the towing vehicle so as to make the combination unroadworthy. Contrary to some misconceptions there is no requirement to have a four wheel drive to tow a twin axel trailer. The trailer width must not exceed the dimensions set for vehicles or else it constitutes a special load. Trailers must be lighted according to the regulations once the vehicle lights are obscured.
Marine Accidents in UK Waters
The 2004 UK Merchant Shipping (Vessel Traffic Monitoring and Reporting) Regulations Section 4 (5e) requires strict reporting when a craft is involved in an accident or incident. However the definition of accident or incident was unclear, but carries the threat of a £5,000 fine or 2 years imprisonment for failure to comply. The Regulations Smaller vessels, including our dive boats, only have to report an incident if (a) emergency services were called; (b) assistance was requested from another craft; (b) someone was injured; (c) a bend that developed after reaching shore, (d) any incident that the Cox or Dive Marshal consider serious enough. . The problem would seem to be that a regulation intended for large craft inadvertently affects sport craft. NI coastguard has indicated that they are not interested in trivial accidents but the obligation applies to serious events probably including diver not picked up. If in doubt as to whether an incident should be reported or not, H.M. Coastguard would prefer you to contact them anyway and they will make the decision as to whether it warrants being recorded on their reporting system.
Marine accidents in Irish Waters
The Marine Casualty investigation board Act 2000 obliges Skippers/Crews to report any incident giving rise to actual or potential serious loss/injury/death including man overboard. situations as soon as possible. The M.C.I.B. may appoint an Investigator who can detain vessels and crew and interrogate same and make exclusion orders.
Carelessness
The 2005 Safety at Sea Act has major implications for all boat users offshore, estuaries, rivers, lakes, canals, etc. County Councils, Harbour Authorities, etc. may make regulations prohibiting/restricting passage of craft in certain areas/at certain times, etc. and craft may be seized/Skippers or owners fined for breach. There are a number of offences created, being unreasonable use of a craft, taking an unseaworthy craft to sea, careless use & dangerous use. Vessels may be stopped, boarded and the complement interrogated by the Gardai, authorised officers and Commissioned Naval Officers. On-the-spot fines, prosecutions, seizure and disposal of craft may result.
War Graves
The wrecks of commissioned ships (Royal Navy) which sank with loss of life of naval personnel whose bodies have not been recovered are deemed to be war graves under UK legislation. Interference with these wrecks is forbidden. Note that many liners e.g. Viknor off the Northern Ireland coast were commissioned as armed merchant cruisers and so are war graves if bodies are aboard. The ruling is at least peculiar in that German vessels are not designated nor are the vessels of the merchant marine. This applies in Northern Ireland to wrecks such as HMS Drake, and HMS Racoon
Carriage of passengers
The law relating to the carriage of passengers for reward has been made much more detailed since June 1st, 2003. Boats which carry passengers for reward need to be licensed and meet stringent criteria. Passenger boats must be properly equipped SI 274 2002, amended SI 556, 2002The situation is complex and it seems that boat money paid by club members to the club may not constitute a commercial transaction as the club trustees own the boat. If the club is a limited company then this exemption may be in doubt. . Petrol may not be carried on a passenger vessel except in the built-in tank for an engine. Other clauses in the regulations include: Trawlers need to have a registration number displayed; small pleasure boats are exempt from this requirement. This differs from the situation in Continental Europe where all such craft are registered and the operator requires a certificate of competence.Article 10.4 allows RIBs to be used for diving provided they stay within three miles of land and all aboard are wearing lifejackets. When contacted on behalf of CFT in relation to the issue of affiliated diving clubs imposing a charge on members for each dive organised by the club a solicitor replied: Our instructions are that various clubs impose a small charge, in the range €3 to €10 per trip, to cover the cost of boat fuel. We further understand that no profit accrues to the clubs from these charges which are merely an effort to recover overheads. We understand that a question has arisen as to whether the imposition of these charges could be classed as a commercial transaction since, if it were there could be insurance implications. We hereby confirm in our view, on the basis of the information available, the imposition of charges on the basis outlined above is not a commercial transaction since there is no profit involved.
Speedboats
The Merchant Shipping, Jet skis and Fast Power Boats Regulations (No 2 1992) permit local authorities to apply to the Minister to designate areas where fast pleasure boats are forbidden. Malahide estuary, Carlingford Lough, Mullaghmore and Clogherhead are designated. The legislation was found to be flawed when West Cork Fisheries Board sought to have the entire coast of West Cork designated in a blanket move to which CFT objected. It seems that no new designations are being made, though Lough Owel was the subject of an application some time ago. Generally, local authorities just obstruct slipways to prevent access. Local authorities have responsibility for maintenance of harbours other than the main ports which are managed by port companies.
Collisions
The Collision regulations (ships and watercraft on the water) order SI 29 of 1984 amended by SI 47 2005 brings the International Regulations for the prevention of collisions at sea into Irish Law. This forms the legal basis for the rules such as steam gives way to sail, passing port to port etc.
Lifejackets
Regulations made under the Merchant Shipping, Investigation of Marine Casualties Act No 14 of 2000, prescribes fast power boats in Regulation SI 285, 2001 as any pleasure craft capable of a speed of more than 17 knots. The person in charge of a power boat defined is obliged to ensure that there is a lifejacket for everyone aboard and that every person under sixteen is wearing a life jacket. Merchant Shipping (Mechanically Propelled Pleasure Craft Safety Regulations SI 284, 2001) - this has been amended to say that everyone must be wearing a buoyancy aid. A buoyancy aid is defined as one bearing a CE mark. The same Regulation forbids the consumption of alcohol while aboard such craft. The same Regulations do not apply to yachts, rowing boats or small outboard boats.
Kowloon Bridge
An Exclusion Order restricting diving on the wreck of the Kowloon Bridge at the Stags Rocks off Toe Head, Co. Cork was lifted by Marine Notice 22 of 2002.
Wild Birds
The Wildlife Act 1976 empowers the Minister with responsibility for the Office of Public works to make orders designating special protection areas under Article 4 of the EU Directive 79/409/EEC. The orders forbid wilful disturbance of birds. Some, but not all of the orders, forbid operation of a motor which causes disturbance to any designated bird. The orders also prohibit climbing on the cliffs, shooting and drift netting. The sites of diving interest which are protected are Saltees, Co. Wexford; Puffin Island, Co. Kerry; Iniskea, Co Mayo; Cliffs of Moher, Co. Clare; Skelligs, Co. Kerry; Blaskets, Co. Kerry; Horn Head, Co. Donegal; Rockabill, Co. Dublin; Tralee Bay, Co. Kerry; Old Head of Kinsale and Ballycotton Bay, Co. Cork.