Guidance

Enforcement policy statement about applying maritime passenger rights

Published 3 November 2022

Background

The Maritime and Coastguard Agency (MCA) is an Executive Agency of the Department for Transport (DfT) and is the statutory authority for enforcing Merchant Shipping legislation. This includes EU Regulation 1177/2010 (incorporated into domestic law by section 3 of the European Union (Withdrawal) Act 2018) concerning passengers’ rights when travelling by sea and inland waterways. The enforcement action that can be taken is varied and the sanctions imposed can and must reflect the seriousness of the legislative breach.

The Regulation identifies those engaged in providing maritime passenger services (regulated business) that are placed under an obligation to adhere to a number of requirements as defined within the regulation. The Regulations, statutory instrument 2013 No 425, creates offences under UK law in respect contravention of those obligations under EU Regulation 1177/2010 and defines the penalties available to the courts.

Those facing potential enforcement action are carriers, ticket vendors, tour operators, travel agents and port operators. Enforcement action may be taken against individuals and corporate or unincorporated bodies.

Where serious criminal offences are committed outside of Merchant Shipping legislation these will always be a matter for the police and possibly other Government agencies. The MCA is committed to assisting other enforcement agencies and is a signatory to the Convention between Prosecuting Authorities and the Work Related Deaths Protocol.

Prosecution is the ultimate sanction and the MCA has available a range of administrative sanctions that must be considered before prosecution is initiated. It must be recognised that as soon as criminal proceedings are commenced the control over the sanction imposed has been passed to the Court.

The Regulatory Compliance and Investigations team and operational procedures

The MCA operates under set criteria for enforcement action in respect breaches of Regulation 1177/2010 and SI 2013/425. The criteria for action is as defined within MCA Enforcement Policy termed a “significant breach” or “persistent failure to comply”.

A “significant breach”

A serious contravention of the legislation usually by willful act or omission (though not limited to) that:

• unlawfully discriminates against a particular individual or category of passenger
• refuses to meet the obligations placed on them as defined under the Regulation
• is an act which prevents an officer of the MCA from carrying out their statutory functions

A “persistent failure to comply”

This is defined as:

• a persistent failure to comply with a particular element of the regulation after enforcement intervention
• a failure to comply with various elements of the regulation over a period of time, whether or not there has been previous enforcement intervention.

A significant breach or persistent failure to comply initiates a criminal investigation.

To comply with the requirements of the Criminal Justice System strict and comprehensive procedures have been adopted to control the enforcement activities of the MCA. All evidence is collected in accordance the relevant statutory provisions and legal requirements.

The complaint handling process, involving the various voluntary compliant handling bodies, provides a filtering system by which the investigation of possible significant breaches or persistent failures to comply will only be undertaken in respect the more serious breaches if the legislation.

The MCA will only investigate incidents that allege a breach of the Regulation in respect of this policy. Incidents meeting the enforcement criteria will be subject of a criminal investigation.

Once the investigation is complete the evidence is analysed by the investigating officer and recommendations made, which may include prosecution action. The case is reviewed by the MCA Head of Regulatory Compliance and Investigations Team and the MCA nominated director who, on behalf of the Secretary of State for Transport, decides whether criminal proceedings should begin.

At all stages the requirements contained in the Code for Crown Prosecutors are considered. Only if these requirements are met, including application of the full code test for prosecutors, will the director give the authority to prosecute.

The MCA prosecution activity, although not subject to direct managerial control by the Attorney General, is subject to Attorney General oversight and as such the MCA make regular reports to that office.

Engagement with business

The MCA will engage with regulated business in matters connected to the enforcement of the Regulation and SI 2013/425. This will be done through meetings with regulated businesses, trade associations and the voluntary complaint handling bodies. Information as to enforcement activity will be published.

In respect any changes to enforcement activity concerning the Regulation and SI 2013/425, discussions will be held with representatives of the businesses affected concerning any burden placed on them by the proposed changes in accordance with the principles of “Accountability for Regulator Impact”. Where appropriate, impact assessments will be undertaken.

Policy on prosecution of individuals

It is the MCA’s policy to primarily prosecute owners, directors and managers of operations and only to prosecute individual employee’s where they are personally culpable.

Offences

Typical offences can be broadly sub-divided as:

• failure to appropriately meet the needs of disabled passengers or those with reduced mobility

• failure to appropriately meet the needs of passengers facing cancelled or delayed service and/or provide the required assistance for alternative means of transport or compensation in accordance with the Regulation

Administrative sanctions

Where a prosecution is not appropriate, certain administrative sanctions may be appropriate.

The administrative sanctions available are:

Owners, companies or managers

• inspection and follow up
• Advice or Improvement Notice
• Notifications of Concern
• Simple Caution

Individuals

• Advice Notice
• Notifications of Concern
• Simple Caution
• inquiry into fitness to hold a Certificate of Competency

National Enforcement Body

Maritime and Coastguard Agency
Bay 3/12 MCA HQ
Spring Place
105 Commercial Road
Southampton
SO15 1EG

Email [email protected]

The UK Regulatory Compliance Investigations team