Key takeaways
False claims can cancel adjudication
Even small misstatements can lead to big legal setbacks.
Honesty matters in legal appointments
Courts expect full transparency when choosing adjudicators.
Strong beginnings prevent legal pitfalls
Proper procedures reduce risk and save time.
Consultation on the proposed Merchant Shipping (Accident Reporting and Investigation) Regulations 2025
The Marine Accident Investigation Branch (MAIB) has published a consultation paper on replacing the existing Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 with revised 2025 Regulations that are intended to “‘streamline’ investigating procedures, modernise terminology and enhance reporting obligations.”
Below are the links to the proposed 2025 Regulations; the consultation document; and the consultation response form.
Amendments to the MAIB Regulations: Consultation Document
Amendments to the MAIB Regulations: Consultation Response Form
The consultation response form comprises 16 questions that are phrased in a way to encourages respondents to agree to the proposed changes.
The consultation closes on 17 September 2025. However, members of the UK Chamber of Shipping are requested to submit their responses to the Chamber by 10 September 2025 so that a collated response can be forwarded to the MAIB.
Definitions
The proposal includes the removal of the category of “serious marine casualty” as this was dropped by the International Maritime Organisation (IMO) in 2008. A general alignment of definitions with the IMO code seems logical.
More significantly, the definition of “marine casualty” has been updated to exclude “death resulting from suicide or natural causes or serious injury resulting from attempted suicide.” This makes sense as there is no reason for a MAIB investigation in those circumstances.
However, there is a potential drafting issue in that this extended definition applies to “marine casualty” but not to “very serious marine casualty” (total loss of a ship, death or severe damage to the environment), which makes no sense as a death is always a “very serious marine casualty”.
The definition of “serious injury” has also been amended. Now, instead of specifying various types of injury with the catch-all of either being in hospital for more than 24 hours or being incapacitated for more than three consecutive days, excluding the day of the accident, the new definition simply refers to incapacitation “where a person is unable to undertake their full range of activities for a period of more than 72 hours, commencing within seven days from the date when the injury was suffered.”
Application
A significant amendment is the fact that the Regulations are proposed to apply to accidents involving watercraft in the same way that they apply to ships, on the assumption that the Merchant Shipping (Watercraft) Order 2023 will be appropriately amended. On this basis the duty to report accidents has been extended to include watercraft.
In addition, the new Regulation will apply in all circumstances to commercial craft under eight metres in length operating in a harbour or on inland waterways, whereas previously the Regulations only applied to them if there was an explosion, fire, death, serious injury, capsize or severe pollution. This means that the master or owners of such a vessel must carry out a detailed accident investigation and report findings, including any measures taken or proposed to be taken to prevent a reoccurrence to the MAIB as soon as possible. This will, no doubt, help to improve safety but will result in a significant increase in the workload of the owner/masters of such vessels.
Ordering and discontinuing of a safety investigation
Currently, the MAIB is required to carry out a safety investigation if there has been a very serious marine casualty involving a UK ship, with some sensible exceptions. Under the proposed new Regulations, the MAIB will only have to carry out a safety investigation when there is a very serious marine casualty if the ship is engaged on international voyages and if it is 500 tonnes gross tonnage or more. In the MAIB’s view, by reducing the range of mandatory investigations that it is required to carry out, it can focus on investigations with the greatest potential for safety learning. Arguably however, the greater potential for safety learning is often on the smaller vessels as the larger ships are usually owned by companies that have the resources to ensure that appropriate procedures are in place.
Additionally, although the new Regulations include the requirement to commence investigations as soon as reasonably practicable, the requirement to commence an investigation within two months of receiving notification has been removed. We would question whether this is helpful because previously crew and owners knew that if no investigation had been commenced within two months there would be no investigation. This revision would mean that a ship owner could hear nothing from the MAIB for six to twelve months and then suddenly an investigation could be commenced.
Preservation of evidence
The 2012 Regulations stated that the MAIB shall not require a ship to remain in United Kingdom waters for any longer than is necessary for the collection and preservation of evidence and to take all reasonable steps to ensure such evidence is collected and preserved expeditiously. This protection has been removed in the proposed new Regulations.
Release of evidence to owner
This is a new regulation which states that when a ship or evidence from a ship is held by the MAIB for the purposes of a safety investigation and it is no longer required, then the MAIB will specify a date for the owner of the property to collect it, not earlier than 30 days after the date on which the notice was served. This notice will include a warning that if the owner does not incur the cost of collecting it on that date, or some other agreed date, the MAIB will make arrangements for its destruction or disposal. This is so, even though it was the MAIB that removed it from the ship in the first place.
MAIB’s obligation not to disclose information
This has sensibly been expanded to include the information contained in the documents, data and recordings of disclosure, not just the items themselves. Protection has also been given to all correspondence between an Inspector and parties involved in the safety investigations, whereas previously, it was only to all correspondence received by the Chief Inspector. Further, marine safety records (as defined by the IMO Code) provided by other states may not be disclosed without that state’s consent, but the Chief Inspector may publish information otherwise protected under this Regulation, where the information is in anonymised or a statistical form.
Witness statements
Under the 2012 Regulations, a person who has given a declaration or statement to a MAIB inspector during the course of the safety investigation may make available a copy of their statement or declaration to another person as they see fit. This has been amended in the proposed new Regulations so that a person is only entitled to a copy of their statement or declaration if they are sent a copy of the draft MAIB Safety Investigation Report. Furthermore, even in those circumstances they are still not allowed to make available a copy of it to any other person, unless it is to allow an adviser to assist them with their response to the MAIB draft Safety Investigation Report.
The MAIB’s explanation for this proposed change is that they have received evidence that witnesses have been pressured to provide the statements or declarations they have made to the MAIB to third parties, so that they can be used in blame-focussed proceedings. Therefore, this proposed amendment is intended to prevent inappropriate pressure being placed on a witness.
However, it is very clear in the Regulations that such a statement cannot be used in blame-focussed proceedings. Further, the proposed rule change not only prevents the witness from providing, if they choose to do so, their statement to another person, to assist in safety investigations. More importantly also, it prevents the witness from being entitled to review his own statement before he has to give a statement to prosecuting authorities or to his employers. The MAIB statement will often be taken first, and there can be a time delay before other statements are taken during which time memories can fade. Therefore, if the witness has a copy of his MAIB statement, he can refresh his recollection prior to these further interviews. This should allow a more accurate account to be given to the prosecuting authorities and his/her employers and avoid errors.
MAIB’s power to disclose evidence to other investigating authorities
The 2012 Regulations state that information available from a voyage recorder or from other recording systems, including voice, video, electric or magnetic recordings and any transcript made from such recordings may at the discretion of the Chief Inspector be provided to the police or other authorities.
The new Regulations specifically state that physical evidence to which the other investigating authority would be entitled can be made available to the police, Maritime and Coastguard Agency (MCA), Health and Safety Executive (HSE), the Procurator Fiscal in Scotland or any other person exercising statutory powers to investigate an accident, including the coroner. The evidence that can be made available is any equipment, item, object or substance relevant to the accident; photographs or images from the scene of the accident; and evidence from recording systems as set out above.
This makes sense because if the MAIB remove the recording equipment from the vessel, then, unless they have this power, this will delay the investigations of the other authorities. The Regulation makes it clear that any statements taken by the MAIB and correspondence between the MAIB and parties involved in the safety investigation will not be disclosed.
Offences and penalties for the proposed 2025 Regulations
The new Regulations retain the offences and penalties from the 2012 Regulations but add additional offences and penalties. The penalty for all offences is a fine ‘not exceeding Level 5 on the standard scale’ which, in effect, is an unlimited fine. The additional offences the new Regulations propose are:
After a notification of an accident is submitted to the MAIB, a master/ship owner fails to:
1.1 Examine the circumstances of the accident; and
1.2 Provide to the MAIB a report giving the findings of such an examination, stating any measures taken or proposed to be taken to prevent a recurrence to the as soon as possible.
A failure by the master/owner to, as far as practicable, preserve all evidence connected to the incident, such as charts, logbooks, recorded information howsoever recorded, information from a void data recorder and any other equipment which may be considered relevant.
The MAIB may make recommendations as to how future accidents may be prevented addressed both to a general class of person or to be served on an individual person or company. The new offence is a failure by a person or company to send to the MAIB, within a period of 30 days beginning on the date on which the notice is served, details of the measures, if any, that they have taken or are prepared to take in order to implement the recommendations and the timetable for securing that implementation or an explanation as to why the recommendation is not to be the subject of measures to be taken to implement it.
The difficulty with the first offence is that different people will have different ideas as to what in the circumstances of a particular incident should be regarded “as soon as possible”. There may also be disputes as to what is “as far as practicable” for the second proposed offence. Finally, with regards to the third offence, 30 days will normally be a reasonable period to respond, but what happens if the MAIB recommendations are provided very shortly after the accident and before the owner has been able to determine whether the recommendations are appropriate?
Please could all interested parties respond to this consultation, so that the industry’s views are taken into account before these new Regulations are finalised.
This article was co-authored by paralegal Hannah Downs.
