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What do England's new COVID-19 laws and regulations mean for shipping?

Since the spread of the COVID-19 outbreak to British shores, the UK has passed legislation intended to address various problems anticipated to be caused by the virus.

These laws are mostly set out in the Coronavirus Act 2020 (the Act) and in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulation). The bill, which enacted the Act, passed quickly through Parliament with a high degree of cross-party consensus and the provisions of the Act mostly deal with the delivery of public services which the government anticipates may become overwhelmed during the virus outbreak. The legislation also seeks to streamline decision making by relaxing certain legal obligations. All measures are intended to be temporary.

In anticipation of increased strain on public services, section 50 and Schedule 20 of the Act empower the Secretary of State (SoS) to suspend port operations in the United Kingdom (seaports, airports, etc.) where shortages of border force officers (resulting from the coronavirus) could threaten the adequacy of border security. Any suspension order must detail which ports and which operations within those ports are suspended and for how long, and no suspension may exceed 12 hours without further ministerial approval. If the SoS directs the suspension of operations, he may direct another person to make consequential provisions at another port or through another port operation. The power to require consequential provisions presumably envisages acts such as the diversion of vessels or planes to other ports, which can remain open.

These provisions appear less concerned with the affected industries and more with enabling the state to maintain security and provide certain public services. The powers of the SoS under the Act are significant and the consequences of failing to comply with the SoS' directions are serious (fine and/ or up to one year imprisonment), though there are defences available in certain circumstances – for example, where a person fails to comply with the Act whilst performing prior but conflicting duties under Schedule 3A of the Merchant Shipping Act 1995.

Before the Act came into force, the SoS made the Regulation. The provisions of the Regulation are well known in England owing to the restrictions on movement and the closure of businesses that it imposes. The Regulation makes no specific provision or reference to shipping. Accordingly, the Regulation does not impose any restriction or requirement on shipping businesses (unless they also fall into one of the categories listed in Schedule 2 of the Regulation). However, the Regulation does restrict workers from leaving home for work where such work can be done from home. Whilst some shipping jobs can be done remotely, others clearly cannot (e.g. port workers and ships' crews).

The restriction on movement in the Regulation has raised concerns in the industry in respect of the movement of ship crews. However, whilst practical issues will remain (due to lack of international flights, closure of borders, limitations on free movement, etc.), the UK government appears to support certain exceptions for shipping; the new Minister for Maritime, Kelly Tolhurst MP, in her letter to the International Labour Organisation, the International Maritime Organisation and the World Health Organisation stated:

"We respect the right of States to close borders but we ask them to consider the facilitation of the transit and transfer of seafarers wherever possible. It is critical to the health and welfare of every State and to their own and the global economies that we ensure that supply chains remain open and collectively we do not restrict the movement of vessels and seafarers.

We ask States to allow vessels to change crew to ensure the health and welfare of individuals and for the safety of the vessel. We ask States to show compassion when there are sick on board and to not turn away vessels, their crew or their passengers."1

Hence, although the new legislation seems to make little provision specifically for shipping, the government does appear to have considered the impact of the current global situation and the legislative restrictions imposed on the shipping industry.

For more information, please contact;

Gudmund Bernitz
Partner
T +44 (0)20 7264 8413
E gudmund.bernitz@hfw.com

Thomas Willan
Senior Associate
T +44 (0)20 7264 8544
E thomas.willan@hfw.com

Denis Nifontov
Associate
T +44 (0)20 7264 8092
E denis.nifontov@hfw.com

Footnotes

  1. https://www.ukchamberofshipping.com/documents/2110/20200323_Ministerial_letter_to_ILO_IMO_and_WHO.PDF letter dated 23 March 2020 from the Parliamentary Under Secretary of State, Kelly Tolhurst MP

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