(Don’t) abandon ship! The power to remove vessels under section 252 of the Merchant Shipping Act 1995

Statutory harbour authorities (SHAs) often need to deal with sunk, stranded or abandoned vessels in their ports and harbours. These vessels can cause a danger to navigation and the environment if they are not dealt with and could put SHAs in breach of their core statutory duties. 

This article focuses on the power which SHAs have to remove sunk, stranded or abandoned vessels under section 252 of the Merchant Shipping Act 1995 (MSA 1995). For information on other vessel removal powers, see our article here.

Section 252 of the MSA 1995

Section 252 of the MSA 1995 allows an SHA, where any vessel is ‘sunk, stranded or abandoned’ in (or in or near any approach to) any port or harbour under a harbour authority’s control such that the vessel is, or is likely to become, an obstruction or danger to navigation or working lifeboats, to exercise powers to: 

• Take possession of, and raise, remove or destroy the whole or any part of a vessel and any other property to which the power extends.
• Mark the location of the vessel or part of the vessel and any such other property until it is raised, removed or destroyed. 

If an SHA wishes to exercise the above power, there are various conditions and notice requirements which must be met and considered. In particular:

1. There must be a vessel.
   
   ‘vessel’ is defined in section 255 of the MSA 1995 as including:
   
   “any ship or boat, or any other description of vessel used in navigation’ and “Ship” is defined in section 313 of the MSA 1995 as including ‘every description of vessel used in navigation”.
   
   As the vessel must be used in navigation, this power is unlikely to encompass small craft such as personal watercraft and may not include larger floating plant that have no independent means of propulsion.
   
   ‘Other property’ which the power extends to includes every article or (collection of) thing(s) being or forming part of the equipment cargo, stores or ballast of the vessel.
   
   
2. The vessel must be located in, or in or near any approach to, any harbour or tidal water under the control of a harbour authority.
   
   
3. The vessel must be sunk, stranded or abandoned in such manner as, in the opinion of the authority, to be, or be likely to become, an obstruction or danger to navigation or to lifeboats engaged in lifeboat service in that harbour or water or approach thereto.
   
   It’s likely that the suitable person to form the opinion is the harbour master, given a harbour master will have significant expertise in navigational safety. It’s important to remember not to justify the ‘obstruction or danger’ by reference to things which are not navigated eg small craft such as personal watercraft, paddleboarders etc.
   
   Whether a vessel has been abandoned can be more difficult to prove than if a vessel is sunk or stranded as owners or master may be on holiday, hospitalised etc, and therefore not able to visit their vessel. If an SHA wishes to exercise this section 252 power in respect of an abandoned vessel, it requires careful thought and consideration of the risks of the owner/master claiming that the SHA has exercised its powers when it was not entitled to. 

If the conditions above are met and the vessel has been raised or removed, an SHA also has the power to:

• Sell in such manner as it thinks fit, the vessel or part of it or other property recovered.
• Reimburse itself out of the proceeds of sale, for the expenses incurred in relation to the sale. 

Notice requirements apply in relation to a sale except in the case of property of a perishable nature or which would deteriorate in value by delay.

Advantage of the power under section 252 of the MSA 1995

An advantage of the power under section 252 of the MSA 1995 is that it can be exercised in an emergency due to the limited notice requirements. Although, it will be best practice to inform the owner or master of the vessel of the intention to exercise the power. 

Disadvantages of the power under section 252 of the MSA 1995

At any time before ‘any property’ is sold, the owner of the property shall be entitled to have it delivered to them on payment of its fair market value. In circumstances where the vessel is of low value, it’s likely that this is a significant disadvantage of the section and encourages prompt destruction of the vessel. Otherwise the owner is potentially entitled to a return of the vessel and any other property on payment of its market value, even if this is lower than the cost of removing it.

If the vessel is sold, the proceeds of a sale may not be sufficient to cover the costs of its removal. If there is a shortfall (or if there is no sale) the powers under section 252 do not permit the recovery of reasonable expenses incurred exercising powers under the section directly from the owner that are not recovered out of the proceeds of sale.

Do SHAs have any further powers under legislation?

SHAs may have further powers under the local legislation applying at their harbour, which should also be considered before removing a vessel from the harbour. Local legislation may also modify or extend the application of the power under section 252 of the MSA 1995 (for example to permit wider costs recovery). There will then be specific statutory processes which must be closely followed depending on which vessel removal power is to be exercised.

Ashfords’ marine team can advise on all stages of vessel removal and the various options available to harbour authorities to deal with sunk, stranded and abandoned vessels. If you would like advice, please contact Lara Moore or Ione McGregor who would be happy to assist.