Publication of Merchant Shipping Bill

Minister for Transport, Eamon Ryan TD, has announced today (11th November 2021) the publication of the Merchant Shipping (Investigation of Marine Casualties) (Amendment) Bill 2021.

The Bill provides for a number of amendments to the legislation that underpins the Marine Casualty Investigation Board (MCIB) in order to facilitate the appointment of new members to the Board and to support the independent functioning of the Board as the marine casualty investigative body in the State.

The Bill is being progressed following a Court of Justice of the European Union (CJEU) Judgment in July 2020 concerning the independence of the MCIB in so far as its investigative work falls within the scope of an EU Directive 2009/18/EC, which established principles governing the investigation of accidents in the maritime transport sector.

The Bill amends the Merchant Shipping (Investigation of Marine Casualties) Act 2000 to provide for a revised Board composition for the MCIB based on a minimum of 5 and a maximum of 7 members appointed by the Minister for Transport having regard to a list of desired knowledge and expertise for Board members. This will allow the Minister to appoint new members to the Board and to fill existing vacancies. Other operational and technical revisions to the 2000 Act are also being made to support the functioning of the Board in areas such as tenure of office, the quorum for meetings, engagement of expertise and the notification of marine casualties to the Board.

“The Bill is being progressed to ensure the continued independent functioning of the MCIB in the immediate term as the marine investigative body in the State and to meet international and EU requirements to have an independent marine casualty investigative body in place”, the Minister said.

Separate to the Bill, the Department of Transport is reviewing organisational structures for marine casualty investigation in Ireland and this may lead to further legislative change. However, as noted by the Minister, “there is an immediate need for the current Bill to fill Board vacancies and in particular to ensure that the quorum requirements for Board meetings are met”.

Notes for Editors

The Marine Casualty Investigation Board (MCIB) is the independent body established under the Merchant Shipping (Investigation of Marine Casualties) Act 2000 (2000 Act) to investigate marine casualties and publish reports of such investigations. The composition of the five-person Board is set out in section 9 of the 2000 Act. The MCIB is also designated as the investigative body in the State for the purposes of Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009, which established the fundamental principles governing the investigation of accidents in the maritime transport sector and applies to a subset of the marine casualties that come within the remit of the MCIB. The purpose of an investigation is to establish the cause or causes of a marine casualty with a view to making recommendations for the avoidance of similar marine casualties. It is not the purpose of an investigation to attribute blame or fault.

On 9 July 2020 the Court of Justice of the European Union (CJEU) issued a Judgment concerning the independence of the MCIB in so far as its investigative work falls within the scope of Directive 2009/18/EC. The Court declared that by failing to provide for an investigative body which is independent in its organisation and decision-making of any party whose interests could conflict with the task entrusted to that investigative body, Ireland has failed to comply with its obligations under Article 8.1 of Directive 2009/18/EC. The issue was the presence of two Department of Transport officials on the Board who were seen as persons whose interests could conflict with the task entrusted to the MCIB. There was no finding of partiality on the part of the Board.

To address the findings of the CJEU, the two Board members resigned from the Board on 30 July 2020 and amending regulations (S.I. No. 444 of 2020) were made under the European Communities Act 1972 to give further effect to Directive 2009/18/EC. The regulations provide for a revised MCIB Board structure whereby the two Department officials are no longer Board members for the purpose of decisions relating to investigations that fall within the scope of the Directive. Arising from this action, the MCIB Board is currently composed of 3 members and the 2000 Act does not provide a mechanism to fill the existing vacancies. Hence the need for the current Bill.

The Bill was subject to pre-legislative scrutiny before the Joint Committee on Transport and Communications earlier this year.