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Merchant Shipping (Diving Safety) Regulations 2005

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Merchant Shipping (Diving Safety) Regulations 2005
MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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BR 1 / 2005

MERCHANT SHIPPING ACT 2002

2002 : 35

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

ARRANGEMENT OF REGULATIONS

1 Citation
2 Interpretation
3 Application
4 Duty to ensure

compliance with the
regulations

5 Duties of owner of craft
6 Duties of master of craft
7 Diving contractor
8 Duties of diving

contractor
9 Diving project plan
10 Diving supervisor
11 Duties of diving

supervisor

12 Power of master and
diving supervisor to give
directions

13 Competence and fitness of
divers

14 Duties of persons taking
part in a diving project

15 Certificate of medical
fitness to dive

16 Exemption
17 Inquiries and

investigations into marine
accidents

18 Special reports of
casualties

19 Offences
20 Proceedings

The Minister of Tourism and Transport, in exercise of the powers
conferred by section 96(2) of the Merchant Shipping Act 2002, makes the
following regulations:

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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Citation
1 These Regulations may be cited as the Merchant Shipping
(Diving Safety) Regulations 2005.

Interpretation
2 (1) In these Regulations —

"Approved Codes of Practice" refers to the following
publications

(a) "Commercial Diving Projects Offshore" ISBN 0 7176
1494 8;

(b) "Commercial Diving Projects Inland/Inshore" ISBN 0
7176 1495 6;

(c) "Media Diving Projects" ISBN 0 7176 1497 2;

(d) "Scientific and Archaeological Diving Projects" ISBN 0
7176 1498 0;

(e) "Recreational Diving Projects" ISBN 0 7176 1496 4.

"approved qualification" means 

(a) a recognized qualification to the standard set by the
authority governing the territorial waters in which the
diving project is carried out; or

(b) in international waters, a standard recognized by the
U.K. Health and Safety Executive or equivalent;

"casualty" means any casualty or other incident which involves
loss or danger to the life of any person engaged in a diving
project;

"competent person" means a person who has sufficient training
and experience or knowledge and qualities, to enable him to
properly perform the duties imposed under the relevant
provisions in these Regulations;

"craft" means a ship, hovercraft, or floating structure, including
any fishing vessel or work boat, which is used for or in
connection with a diving project;

"diving contractor" in relation to a diving project means, subject
to regulation 7, a person who —

(a) is the employer of one or more persons taking part in the
diving project as a diver who is at work; or

(b) dives in the diving project as a self-employed diver;

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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"diving operation" means an activity within a diving project in
which at least one person takes part or will take part as a
diver and which can be safely supervised by one person;

"diving plant and equipment" means any plant and equipment
used or intended to be used as part of a diving project and
includes —

(a) fixed or mobile plant and equipment forming part of a
Bermuda ship or other craft's own plant and equipment;
and

(b) mobile plant and equipment provided and brought on
board for a diving project;

"diving project" means any activity in which at least one person
takes part or will take part as a diver and extends from the
time when that person, or the first time such person,
commences to prepare to dive until that person, or the last
time such person, has left the water, chamber or other
environment in which the dive, or any part of the dive, took
place and has completed any requisite decompression
procedures including, where it may be reasonably anticipated
that it will be needed, any therapeutic recompression;

"diving project plan" means a plan prepared pursuant to
regulation 9;

"diving services" means services which are provided, for profit or
gain, by the master or owner of a craft, to a person taking
part in a diving project as a diver, (including the supply of
submersible equipment for personal use by a diver or the
supply of compressed gas (excluding therapeutic oxygen) for
all forms of breathing apparatus, (but excluding the provision
of tuition or of transportation services); and for the purposes
of this definition "tuition" includes information on local
conditions and "transportation services" means the provision
of a craft for the purposes of conveying its occupants to or
from a diving operation or providing a platform for a diving
operation;

"diving supervisor" means a person appointed, in accordance
with regulation 10, to supervise a diving operation;

"Merchant Shipping Notice" means a Notice described as such
and issued by the Minister of Transport and includes any
document amending or replacing such Notice;

"self-contained underwater breathing apparatus" means diving
plant and equipment in which a supply of breathing mixture
is carried by the diver independently of any other source.

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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(2) For the purposes of these Regulations a person "dives" if he
enters —

(a) water or any other liquid; or

(b) a chamber in which he is subject to pressure greater
than 100 millibars above atmospheric pressure;

and in order to survive in such an environment he breathes in air or
other gas at a pressure greater than atmospheric pressure and
references to "a dive", "dive" and "diver" shall be construed accordingly.

(3) Where a Bermuda ship or other craft is managed by a
person other than her owner (whether on behalf of the owner or some
other person, or on his own behalf), a reference in these Regulations to
the owner shall be construed as including a reference to that person.

Application
3 (1) These Regulations apply to a diving project, within Bermuda
waters —

(a) which takes place from a craft the master or owner of
which is the diving contractor for the diving project; and

(b) to which the Marine Board (Diving) Regulations 1997 do
not apply.

(2) These Regulations also apply —

(a) in international waters, to a diving project launched or
operated from a Bermuda ship, which relates to an
offshore installation or pipeline and in relation to which
there is a diving contractor; and

(b) in international waters, to any diving project launched or
operated from a Bermuda ship, other than one which
relates to an offshore installation or pipeline in relation
to which there is a diving contractor.

(3) Where in relation to a diving project in Bermuda waters —

(a) there is no person falling within the definition "diving
contractor"; and

(b) the diving project takes place from a craft, and the
master or owner of the craft is providing diving services
to persons on board the craft,

regulations 5(2) and 6(2) of these Regulations shall apply.

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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Duty to ensure compliance with the Regulations
4 Every person who to any extent is responsible for, has control
over or is engaged in any diving project to which these Regulations apply
or whose acts or omissions could adversely affect the health and safety of
persons engaged in any such project, shall take such measures as is
reasonable for a person in his position to take to ensure that these
Regulations are complied with.

Duties of owner of craft
5 (1) The owner of a craft from which a diving project is, or will
be, undertaken shall ensure —

(a) that all plant and equipment, other than diving plant
and equipment, necessary for the safe conduct of the
diving project are available, suitable and sufficient for
that purpose;

(b) that the plant and equipment made available in
accordance with sub-paragraph (a) are maintained in a
safe working condition;

(c) so far as reasonably practicable, that the diving
contractor, diving supervisor and divers undertake their
duties under these Regulations.

(2) The owner of a craft from which any diving project is to be
undertaken who provides diving plant and equipment shall ensure that
such plant and equipment are suitable for the safe conduct of the diving
project and are maintained in a safe working condition.

Duties of master of craft
6 (1) The master of a craft from which a diving project is, or will
be, undertaken shall —

(a) ensure, so far as reasonably practicable, that no
operations or activities which might adversely affect the
health and safety of any person engaged in the diving
project are undertaken from or on the craft during the
period of the diving project;

(b) take such measures as are reasonable to ensure that
there is a safe place on board the craft from which the
diving project may be undertaken;

(c) take such measures as are reasonable to ensure that the
craft is positioned in a safe location for the duration of
the diving project, bearing in mind the weather
conditions, tides and condition of the sea-bed and, if

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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using a dynamic positioning system, all other relevant
factors;

(d) take such measures as are reasonable to ensure that all
plant and equipment, other than diving plant and
equipment, necessary for the safe conduct of the diving
project are sufficient and available for that purpose;

(e) take such measures as are reasonable to ensure that the
plant and equipment made available pursuant to sub-
paragraph (d) are maintained in a safe working
condition; and

(f) before the diving project is commenced, and at
appropriate intervals during it, consult the diving
supervisor about the said project or activities and any
other matters which may affect the safety of the diving
project.

(2) The master of a craft from which any diving project is to be
undertaken who provides diving plant and equipment shall ensure that
such plant and equipment are suitable for the safe conduct of the diving
project and are maintained in a safe working condition.

Diving contractor
7 Where there is more than one person falling within the definition
of "diving contractor" those persons shall, before commencing the diving
project, jointly and in writing appoint one of them to act as the diving
contractor for the purpose of these Regulations.

Duties of diving contractor
8 (1) The diving contractor shall ensure, so far as is reasonably
practicable, that a diving project in respect of which he is a diving
contractor is planned, managed and conducted in a manner which
protects the health and safety of all persons taking part in the project.

(2) The diving contractor shall ensure —

(a) that there are sufficient competent persons to carry out
safely and without risk to health both the diving project
and any action (including giving first aid) which may be
necessary in a reasonably foreseeable emergency
connected with the diving project;

(b) that suitable and sufficient diving plant and equipment
are available whenever needed to carry out safely and
without risk to health both the diving project and any
action (including the giving of first aid) which may be

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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necessary in a reasonably foreseeable emergency
connected with the diving project;

(c) that the plant and equipment made available under sub-
paragraph (b) are maintained in a safe working
condition;

(d) so far as is reasonably practicable, that any person
taking part in the diving project complies with the
requirements imposed on him by these Regulations and
the provisions of the diving project plan applicable to
him; and

(e) that a record in accordance with the requirements of
Merchant Shipping Notice 1762 (M) + (F) is kept for each
diving operation which forms part of the diving project
and shall retain the record in his possession or control
for at least two years after the date of the last entry in it.

Diving project plan
9 (1) The diving contractor shall before commencing the diving
project ensure that a diving project plan is prepared for the project and
that the plan is updated as necessary during the project.

(2) The diving project plan shall be based on an assessment of
the risks to the health and safety of any person taking part in the diving
project or of other persons who may be affected thereby and shall
contain such information and instructions as are necessary to give
advice to, and regulate the behaviour of, any persons taking part in the
diving project so as to ensure, so far as is reasonably practicable, their
health and safety and that of other persons who may be affected thereby.

(3) Notwithstanding paragraph (2), the diving project plan
shall—

(a) contain a record of the assessment, information and
instructions carried out by the diving contractor
pursuant to regulation 9(2);

(b) identify each diving operation to be undertaken as part
of the diving project;

(c) contain an assessment of the availability of emergency
support services, referring (as appropriate) to one or
more of the Approved Codes of Practice; and

(d) incorporate an assessment of risk in accordance with
the requirements under the Merchant Shipping (Health
and Safety at Work) Regulations 2004.

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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Diving supervisor
10 (1) Subject to paragraph (2), a diving contractor shall appoint a
person to be the diving supervisor in respect of a diving operation.

(2) Where a diving contractor —

(a) is a competent person; and

(b) has recorded in writing, before the commencement of the
diving operation, that he intends to act as diving
supervisor,

he may act as the diving supervisor for that diving operation.

(3) A diving contractor who appoints a person as a diving
supervisor shall —

(a) before the commencement of the diving operation, make
the appointment, and record it in writing;

(b) before the commencement of the diving operation,
supply the person appointed with a copy of any part of
the diving project plan which relates to that diving
operation; and

(c) as soon as possible after the appointment, provide the
person appointed with a written copy of his
appointment.

(4) A diving contractor shall not appoint a person as a diving
supervisor unless that person is a competent person.

Duties of diving supervisor
11 (1) In respect of a diving operation for which he has been
appointed the diving supervisor shall —

(a) before the diving operation commences, ensure that
each person taking part is aware of the contents of the
diving project plan which relate to that operation;

(b) before the diving operation commences, and at
appropriate intervals during it, consult with the master
of the craft from which the diving project is, or will be,
undertaken; and

(c) during the course of the diving operation ensure that it
is undertaken, so far as is reasonably practicable —

(i) without risk to the health and safety of any person
taking part in the operation or of other persons who
may be affected thereby;

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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(ii) in accordance with the requirements imposed on
him by these Regulations; and

(iii) where this would not conflict with either sub-
paragraph (i) or (ii), in accordance with the diving
project plan; and

(d) during the course of the diving operation keep a record
of that operation.

(2) Subject to paragraph (3), a diving supervisor may dive
during a diving operation in respect of which he is appointed if —

(a) he is guiding persons engaged in, or training persons to
carry out or teach, recreational diving; or

(b) the dive is for educational purposes and takes place in a
tank or pool artificially constructed for the purpose of
swimming or diving,

and the persons taking part in the dive, including the diving supervisor,
use only self-contained underwater breathing apparatus.

(3) A diving supervisor may only dive as referred to in
paragraph (2) if —

(a) he can do so without risk to the health and safety of any
other person taking part in the diving operation or of any
other person who may be affected thereby; and

(b) the diving project plan which relates to the diving
operation specifically provides for the supervisor to dive.

Power of master and diving supervisor to give directions
12 (1) A diving supervisor may, while supervising a diving
operation in respect of which he is appointed, give such reasonable
directions to any person —

(a) taking part in that operation; or

(b) on board the craft from which the diving operation is
taking place, as are necessary in order to ensure the
safety of the divers taking part in the diving operation.

(2) The master of a craft from which a diving operation takes
place may give the diving supervisor and any person taking part in the
diving operation such reasonable directions as are necessary in order to
ensure the safety of the craft.

(3) A person to whom a direction is given under this regulation
shall comply with that direction.

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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Competence and fitness of divers
13 (1) No person shall dive in a diving operation unless —

(a) he is able to carry out safely and without risk to his
health any activity which he may reasonably expect to
carry out while taking part in the diving operation;

(b) subject to paragraph (3), he has an approved
qualification; and

(c) subject to paragraph (4), he has a certificate of medical
fitness to dive which is issued and is valid in accordance
with regulation 15.

(2) No person shall dive in a diving operation if he knows of
anything (including illness or medical condition) which makes him unfit
to dive.

(3) Paragraph (1)(b) shall not apply to a diver who is diving —

(a) as a recreational activity, unless his work normally
involves work as a diver;

(b) as part of training which, if successfully completed,
would lead to the issue of an approved qualification;

(c) for educational purposes in a tank or pool artificially
constructed for the purpose of swimming or diving and
who is using only self-contained underwater breathing
apparatus, unless his work normally involves work as a
diver;

(d) only by virtue of entering a chamber in order to provide
emergency medical treatment; or

(e) as an actor or performer taking part in a live
performance or the recording of a performance, unless
his work normally involves work as a diver.

(4) Paragraph (1)(c) shall not apply to a diver who is diving as a
recreational activity, unless his work normally involves work as a diver.

Duties of persons taking part in a diving project
14 (1) Every person taking part in a diving project shall comply
with any provisions applicable to him which are contained in the diving
project plan and which do not conflict with directions given to him
pursuant to regulation 12.

(2) Subject to paragraph (3), a diver shall —

(a) maintain a daily record of his diving; and

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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(b) keep that daily record in his possession or control for at
least two years after the date of the last entry on it.

(3) Paragraph (2) shall not apply to a diver whose work does
not normally involve work as a diver and who is diving —

(a) as a recreational activity; or

(b) for educational purposes in a tank or pool artificially
constructed for the purpose of swimming or diving and
who is using only self-contained underwater breathing
apparatus.

Certificate of medical fitness to dive
15 (1) A certificate of medical fitness to dive is a certificate, issued
by a medical examiner of divers, which certifies that the person named
therein is fit to dive and which states —

(a) the period (which shall not exceed 12 months) during
which the medical examiner of divers issuing the
certificate considers the person named therein will
remain fit to dive;

(b) any limitations as to the nature of category of diving to
which it relates; and

(c) any conditions to which it is subject.

(2) A certificate of medical fitness to dive shall not be valid if —

(a) the diver is not in compliance with any extant limitation
or condition stated therein; or

(b) it has been revoked on medical grounds by any medical
examiner of divers.

(3) In this regulation "medical examiner of divers" means in
relation to the certification of a person diving from a Bermuda ship inside
or outside Bermuda waters, a medical practitioner who is qualified to
examine divers for the purpose of issuing a certificate of medical fitness
to dive.

Exemption
16 (1) Subject to paragraph (2), the Minister may direct in writing
that any —

(a) person or class of persons;

(b) diving project or class of diving projects;

(c) diving operation or class of diving operations; or

(d) plant and equipment or class of plant and equipment,

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2003

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shall be exempt from any requirement imposed by any provision of these
Regulations, and any such exemption may be granted subject to
conditions and limitations (including conditions and limitations as to the
duration of the exemption) and may be revoked at any time.

(2) The Minister shall not grant any such exemption unless,
having regard to the circumstances of the case, and in particular to —

(a) the conditions and limitations, if any, to be attached to
the exemption; and

(b) any other requirements imposed by or under any
enactment which apply to the case,

he is satisfied that the health and safety of persons who are likely to be
affected by the exemption will not be prejudiced as a consequence.

Inquiries and investigations into marine accidents
17 Part XI of the Merchant Shipping Act 2002 shall apply in relation
to accidents in the course of a diving project involving any submersible
or supporting apparatus which is not a ship as they apply to ships as if
references in those provisions, on whatever terms, to a ship or a ship's
boat or activities connected therewith included references to submersible
or supporting apparatus or activities connected therewith.

Special reports of casualties
18 Without prejudice to regulation 17, where a casualty occurs, the
Minister may, at any time, direct an inspector to make a special report
with respect to that casualty, and the Minister may cause any such
report to be made public at such time and in such manner as he thinks
fit.

Offences
19 (1) A person who contravenes a provision of these Regulations
commits an offence and is liable —

(a) on summary conviction, to a fine not exceeding
$10,000.00; or

(b) on conviction on indictment, to a fine not exceeding
$17,000.00, or to imprisonment for a term not exceeding
two years or to both.

(2) It shall be a defence for a person charged with an offence
under these Regulations to show that he took all reasonable precautions
and exercised all due diligence to avoid the commission of the offence.

MERCHANT SHIPPING (DIVING SAFETY) REGULATIONS 2005

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Proceedings
20 (1) In any proceedings for an offence under these Regulations
an averment in any process of the fact that anything was done or
situated within Bermuda waters shall, until the contrary is proved, be
sufficient evidence of that fact as stated in the averment.

(2) Proceedings for an offence under these Regulations may be
taken, and the offence be treated for all incidental purposes as having
been committed, in any place in Bermuda.

Made this 21st day of January, 2005

Minister of Tourism and Transport