Bathing in port areas
There are several elements to consider when bathing in port areas.
In general, it follows from section 24, no. 8 of the standard regulations that bathing from ships or bulwarks may not take place without prior permission from the port authority.
The port authority can therefore designate "zones" where bathing is permitted. Conversely, only the port can grant such permission. This is even if the municipality designates bathing areas in a municipal plan in accordance with the Planning Act.
If the port and municipality jointly decide to go ahead with the possibility of bathing, the municipality must be aware that the municipality (as the supervisory authority under the Bathing Water Order) will be obliged to carry out a number of ongoing control measurements and draw up plans for monitoring the bathing water in the port.
It follows from section 1(2)(1) of the Bathing Water Order that bathing water is defined as freshwater and seawater that the municipal council expects to be generally used for bathing.
Since the municipality wants to open up access to bathing in and around the harbor, the area will be covered by section 1(2)(1) of the Bathing Water Order (as the municipality must expect the area to be used for bathing) and the municipality will in that case have to;
- Designate a control monitoring site in the bathing area where the most bathers or the greatest risk of pollution (§ 3) is expected, which is reported annually to the Agency for Water and Nature Management.
- Take four samples for testing for intestinal enterococci and Escherichia coli in connection with each bathing season (§ 4).
- Assess bathing water quality after each bathing season according to Annex 1 of the Bathing Water Order (§5)
- Developing bathing water profiles (§§ 8-9)
- Post signs and inform the public about the classification of the bathing water (§§ 10).
The municipality will therefore also have to investigate whether the bathing water quality requirements of the Bathing Water Ordinance in an active commercial port can be met at all..
As far as liability is concerned, it becomes more diffuse.
In the case of a general permission for bathing at your own risk, the port's liability must be assessed based on a culpability standard (as there is no contractual relationship between the port, the bathers and the shipping traffic in general).
However, it is conceivable that by granting a permit for bathing, the port authority could act in a grossly reckless manner and thereby incur liability for damages.
This is particularly the case if permission is granted for bathing in places where there is a lot of ship activity or inadequate marking. One can also imagine a hypothetical situation where the ship owner can also claim liability against the port.
However, the port's potential liability in such a situation is uncertain - and there is currently no case law in this particular area.
The Port of Copenhagen (City & Port) had the plan for bathing zones in consultation with the police, the Danish Transport Authority and the Danish Maritime Authority, in order to get an assessment of whether it was justifiable to designate the bathing zones in question.
It can be assumed that the port should also make similar efforts (at least by contacting the local police authority).
