CHAPTER TWO – WHAT ACTIONS CAN BE BROUGHT BY THE MCA?
The ocean covers approximately 70% of the surface of the planet so it is unsurprising that a number of incidents can occur at sea. The most common issues that occur are as follows:
- Acts of pollution;
- Collisions;
- Unsafe operations leading to injury or death caused by hazardous operations like loading, unloading, mooring, working at height and/or exposure to toxic products;
- Conduct which endangers a master of its crew;
- Transportation of dangerous goods;
- Fraudulent seafarer documentation;
- Incidents aboard fishing vessels including vessels capsizing and health and safety incidents exposing crew to death or serious personal injury.
At present all enforcement action by the MCA is brought through the criminal courts with cases commencing in the Magistrates’ Court. However, the MCA also has the power to issue enforcement notices such as improvement notices and prohibition notices. In November 2021, the MCA opened a consultation on an extension of their enforcement powers to include civil sanctions. At the time of writing this book, there has been no such extension to the MCA’s powers. However in a later chapter, the possible civil sanctions envisaged by the MCA will be further explored.
Before the MCA can mount any prosecution, there are several considerations for the MCA before bringing an investigation. These are as follows:
- Do they have jurisdiction to investigate/prosecute?
- Who do they investigate?
- Should they investigate?
- When can they prosecute?
Do they have jurisdiction to prosecute?
Alongside the Crown prosecution Service, there are a number of alternative enforcement agencies including the Health and Safety Executive (‘HSE’), Local Authorities, the Serious Fraud Office, National Crime Agency, Financial Conduct Agency, the Environment Agency and His Majesty’s Revenue and Customs to name but a few. In most cases it will be obvious who the prosecuting authority is.
The MCA is lesser known as an enforcement agency. The powers and responsibilities of the MCA derive from the MSA 1995, Coastguard Act 1925 and the Merchant Shipping and Maritime Security Act 1997.
The RCIT[1] acts as both investigator and prosecutor of maritime offences. Their jurisdiction extends to marine offences for breaches under the MSA 1995 and associated regulations such as, but not limited to, the Merchant Shipping (Management Code) Regulations 2014 and the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996. The MCA’s jurisdiction to prosecute applies to United Kingdom Ships anywhere in the world and any other ship navigating within the UK and its territorial waters. Therefore, the MCA’s power to prosecute can extend to a British national in a foreign port and foreign nationals onboard a British Ship on the High Seas.
Collaboration with other Agencies
Although the MCA are the primary authority which enforces maritime regulations and laws, it works very closely collaborating with other agencies such as the Police, Marine Policing Unit (‘MPU)[2], HSE, EA, Marine Management Organisation (‘MMO’)[3] and Harbour Authorities when investigating criminal activity on or around the water.
The MCA is party to an agreement with the CPS and other prosecution agencies known as the Prosecutors’ Convention 2009[4]. The purpose of the Convention is to set out the responsibilities of prosecutors when one or more authority and/or investigating body share power to take action to ensure that cases are dealt with justly and serve the public interest. Agencies are obligated to work together in a co-ordinated fashion so that decisions are made promptly, to actively manage communications and interactions with other investigators and prosectors at the earliest possible opportunity and to enforce the law effectively and fairly.
The MCA is a signatory alongside a number of enforcement agencies to the Work-Related Deaths: A Protocol for Liaison’ (‘WRDP’) in England and Wales[5] and the WRDP in Scotland (‘WRDP Scot’)[6]. These protocols apply to fatalities that have resulted from or are in connection with work.
These protocols are a guide to ensuring effective joint work-related investigations between the various agencies. The WRDP makes clear that ‘only the police can investigate homicide related offences (corporate or gross negligence manslaughter), and only the CPS can decide whether a case can proceed.’[7] Therefore although the Police have primacy for an investigation when there are suspicions of a negligent homicide, they will continue to work jointly with any other relevant enforcing authorities. Following the death of four paddleboarders in Haverford West, Pembrokeshire in October 2021, the CPS and HSE led a joint investigation into the tragic deaths of the four individuals. The joint investigation led to a gross negligence manslaughter conviction of the paddleboard firm owner alongside a breach under the Health and Safety at Work Act 1974 in March 2025[8].
The WDRP makes clear that the MCA’s responsibility extends to ‘enforcing work-related health and safety legislation aboard commercial vessels of any size and in the case of UK vessels this applies to anywhere in the world and in the case of other vessels whilst they are in UK waters.’[9]
The MCA and the Marine Accident Investigation Bureau (‘MAIB’)[10]
The MAIB is a marine safety investigator which sits as an independent unit within the DfT. It is responsible for investigating accidents related to ships and crew to determine the causes of accidents at sea. Within their reports the MAIB seek to provide recommendations on safety improvements and increase awareness of how accidents occur. Their powers derive from s.267 of the MSA 1995 and The Merchant Shipping (Accident Reporting and Investigation) Regulations 2012[11], which defines when an accident and/or incident may be investigated, the requirements for reporting accidents and for publishing reports. Therefore, the sole objective[12] of the MAIB is to prevent future death by ascertaining the cause and circumstances of an accident. The investigation does not determine liability or apportion blame.
As the respective roles of the MCA and MAIB differ, it is important to note that an MAIB report cannot form any part of an MCA prosecution given that its ultimate purpose is to prevent future death. This is because the MAIB report is not written with litigation in mind and, pursuant to Regulation 14(14) of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, it shall be ‘inadmissible in any judicial proceedings whose purpose, or one of whose purposes is to attribute or apportion liability or blame’.
A Memorandum of Understanding (‘MOU’) between HSE,
MAIB and MCA
The MCA has entered into a joint MOU with both the HSE and MAIB to ensure collaborative working between these organisations where there is an overlap between health and safety enforcement and accident investigations at the water margin, offshore and on inland waterways in and around the UK. Due to the cross over between these jurisdictions, an Operational Working Agreement (‘OWA’)[13] has been put in place between all three organisations. This identifies the lead enforcement and/or investigation authority for a given activity.
Given the specific safety role of the MAIB and the importance placed on safety considerations, the MAIB investigation often runs parallel to the MCA/HSE enforcement investigations and may, at times, take precedence over a criminal investigation, if it is in the public interest for it to do so.
The OWA confirms that jurisdiction between the differing organisations is divided as follows:
- HSE: Work activities covered by Health and Safety at Work Act etc. 1974 (‘HSWA’) and relevant statutory provisions, e.g. docks, jetties, loading, cargo operations, ship repair, offshore installations[14], energy structures, wells and pipelines, aquaculture.
- MCA: UK ships and those working on them anywhere in the world, foreign flag ships and those working on them in UK waters, search and rescue co-ordination in UK SAR.
- MAIB: all marine incidents/accidents in the territorial sea and on inland waterways, incidents/accidents involving UK ships anywhere in the world and investigation of a foreign vessel outside the territorial sea when no UK flagged vessel is involved if directed by the Secretary of State to do so.
In essence the MCA takes the lead for enforcement on any normal ship activity under the control of the master of a UK vessel anywhere in the world so long as it is not an offshore installation or energy structure. However, if a vessel is involved in an activity connected to an offshore installation undertaking oil and gas exploration or production, underground coal gasification or gas storage and importation, energy structure, or is in a dock or a harbour area and[15] the activity is under the control of the Master, then the MCA continue to be the lead authority.
The MCA will not lead on an activity performed by a non-UK flagged vessel in the UK continental shelf. In this scenario, the lead authority would be the HSE if the activity is one that falls under the HSWA. For any other activity, the Flag State would take the lead. However, the MCA will remain the lead enforcement agency for non-HSWA activity which is not under the control of the master of the vessel on a UK vessel anywhere in the world or a non-UK flagged vessel in the territorial sea.
One of the most difficult areas to assess is who has the jurisdiction and where that jurisdiction overlaps in respect of incidents and fatalities involving vessels and offshore oil, gas and renewal energy installations. The OWA provides further guidance on the many possible scenarios such as mobile installations in transit and whether they meet the definition of a vessel. However, the question of whether the HSE or MCA are the lead enforcement agency will very much depend on the specific nature of the incident.
Other regulators
In general the MCA normally take the enforcement lead for issues relating to navigation, vessel standards such as stability and crew competence on commercial vessels. Many of maritime regulations relate to specific classes of vessel that operate commercially in certain categorised waters. However, given the definition of ‘ship’ as ‘any vessel used in navigation’ in the MSA 1995, the power of the MCA extends to inland waters. It is therefore important to note that the MCA often work with other regulators on vessel related issues such as Local Authorities, Adventure Activities Licensing Authority (‘AALA’)[16] and Port and Harbour Authorities.
In addition, each harbour and/or authority will have its own set of local laws known as bye-laws, which deal with the administration and regulation of the specific harbour and/or authority concerned on matters such as navigation, mooring, launching, vessel traffic and handling of goods and cargo. Any regulatory breaches of bye laws are therefore enforced by the harbour or port authority concerned, through the criminal courts.
The 2025 Port and Marine Facilities Safety Code (‘Port Code’) provides a set of national standards and guidance for all ports, harbours, marine facilities, berths and terminals in every aspect of marine facility safety. The Port Code was originally introduced in 2000 following the grounding of the Sea Empress at Milford Haven, Wales in 1996 which led to a major oil spill. The aim of the Port Code is to establish the duties relating to the safety of those working in and/or using harbours, ports, marinas and their facilities. Compliance with the Code is not mandatory however the legal duties are good practice and recognised by the industry. The duties within the Port Code arise from the Harbours Act 1964, Dangerous Vessels Act 1985, Pilotage Act 1987 and MSA 1995. The MCA advises DfT on the application of the code to all organisations in the UK and provides advice and assistance on compliance. It is therefore unsurprising that if a marine accident or incident were to occur within a harbour or authority, it is likely to collectively engage the MCA, MAIB and HSE.
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[1] Once known as the MCA’s Enforcement Unit.
[2] The MPU river police along the River Thames based at Wapping Police Station and are responsible for 47 miles of the River Thames between Dartford and Hampton Court.
[3] The MMO was created under the Marine and Coastal Access Act 2009 and protect and enhance the marine environment.
[4] See The Prosectors’ Convention 2009: https://www.cps.gov.uk/
publication/prosecutors-conventions-2009.
[5] See https://www.hse.gov.uk/pubns/wrdp1.pdf for WDRP England and Wales (last updated in September 2011)
[6] See https://www.copfs.gov.uk/publications/work-related-deaths-a-protocol-for-liaison/html/ WRDP for Scotland (last updated on 8 May 2025).
[7] See para 2.4 of WRDP.
[8] See https://press.hse.gov.uk/2025/04/23/paddleboard-tour-leader-jailed-over-deaths-of-four-people/.
[9] See p.10 of WRDP.
[10] See MAIB website at: https://www.gov.uk/government/organisations/
marine-accident-investigation-branch.
[11] Updated by The Merchant Shipping (Accident Reporting and Investigation) and the Railways (Accident Investigation and Reporting) (Amendment) (EU Exit) Regulations 2018.
[12] See Regulation 5 of The Merchant Shipping (Accident Reporting and Investigation) Regulations 2012.
[13] See OWA at: https://www.gov.uk/government/publications/
memorandum-of-understanding-between-mca-hse-and-maib/operational-working-agreement-between-mca-hse-and-maib#fnref:2.
[14] Offshore installation” means fixed or floating platform, including drilling rigs, floating production storage and offloading facilities used for the offshore production and storage of oil, and floating storage units used for the offshore storage of produced oil.
[15] Emphasis added.
[16] AALA is responsible for licensing adventure activities. Further details can be found here: https://www.hse.gov.uk/aala/licensing-authority.htm.