DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL
UNDER SECTION 16 OF THE FISHERERIES (AMENDMENT) ACT 2003
In relation to vessel MFV Rose of Sharon II
Mr Michael Kirwan Jnr, Harbour Road, Clogherhead, Co. Louth
Appellant
And
The Licensing Authority in Relation to Sea Fishing Boats
Respondents
Jurisdiction
This appeal is limited to jurisdiction granted to an Appeals Officer under section 6 (3)
and (4) of the Fisheries (Amendment) Act 2003
For the purpose of clarity, I will set this out:
Section 6 (3)
An Appeals Officer shall be independent in the exercise of his or her functions under
this Act subject to—
(a) the law for the time being in force in relation to sea-fishing boat licensing,
including, in particular, the legal obligations of the State arising under any law of an
institution of the European Communities or other international agreement which is
binding on the State, and
(b) such policy directives in relation to sea-fishing boat licensing as the Minister may
give in writing from time to time.
Section 6 (4)
A policy directive given under subsection 3(b) may require certain prohibitions or
conditions to be imposed in relation to sea-fishing for the purposes of protecting,
conserving or allowing the sustainable exploitation of living marine aquatic species.
Policy Directive 2 of 2003 Fisheries Amendment Act 2003 states that capacity taken
off the Fishing Register must be reintroduced to the Register within two years of its
removal from the fleet otherwise the entitlement will be lost to its owner.
Facts
There is no factual dispute between the parties:
The Appellant was aware of the operation of the two year rule and had used it
before, taking boats on and off the register, in order to retain capacity.
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Another expiration date (in relation to the capacity of MFV Regina Ponti) had been
29 May 2010 and as a result of this, the Appellant had mistakenly retained that date
in his mind as being the operative date for the commencement of the two year rule.
However the capacity of MFV Rose of Sharon II was de-registered on 5 March 2010.
This date was the commencement date of the two year rule for this vessel’s capacity.
Therefore the date for compliance to bring this capacity back on register was 4
March 2012.
The Respondent issued a letter dated 5 March 2010 which stated the capacity would
have to be brought back on register on 4 March 2010, otherwise it will expire.
There was no further communication, by way of letter, telephone or e mail, in relation
to capacity, between the parties until the capacity had expired.
There was a request by the Appellant, via his former solicitor, Niall Collins, for a
certificate of registration for the Rose of Sharon II. This request and reply was by e
mail in February 2012, and there was no mention then by the Respondent as to the
imminent expiry date of the capacity, some two and half weeks later.
Appellant’s submission
1. In light of the impending expiry date, and the fact that there was e mail
communication between the parties at this crucial time meant that the
Respondent should have alerted the Appellant of the fact that the capacity
was about to expire
2. Two years is a long period not to receive a reminder from a public body,
especially when the loss caused is so great. Even under the National Car
Testing and the Motor Taxation expiry dates, those affected are reminded
during the time coming up to the expiry date.
3. The Respondent’s failure to remind him during the last e mail communication,
constitutes a contribution by the Respondent to the fact that the date was not
complied with
4. The fact that the Appellant was diligent in all his affairs, and this fact being
known to the Respondent is demonstrated by the fact that as soon as he
became aware of the expiry, he contacted the Respondent immediately to
attempt to rectify the problem
5. The Appellant was moving house around the time of the expiration date,
which was the reason why he made the mistake that he did.
6. The circumstances of the case are similar to another case, that of John
Leonard, in which this Appeals Officer found in favour of the Appellant
Respondent’s submission
1. The Respondents claims that Policy Directive 2/2003 applies and that this is
strictly enforced. The Licensing Authority has no discretion but to apply the terms
of this Policy Directive and as such the duty that exists upon them is a duty to
inform any claimant of the fact of the Policy Directive and once they have
informed any claimant of the facts of the existence of the Policy Directive their
duty is at an end. The Respondents denies that once having informed a claimant
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of the expiry date of the replacement capacity that they have no ongoing
obligation to either progress an application or to keep informed a claimant as to
the time limit operating against them as time proceeds.
2. The Respondents submits that there may be many claimants that initiate a claim
for a sea boat licence who do not progress the application and the capacity fails
after the two years and nothing further occurs. The Respondents says that they
do not have either the funding or jurisdiction to have a greater role other than to
indicate to the claimant that the Policy Directive is applying against them and the
date upon which the capacity will expire.
3. The time limit under Policy Directive 2-2003 is fixed by law and there is no
discretion to waive that provision.
4. The letter of 4 March 2010 is clear, the date for expiry of the capacity of the MFV
Rose of Sharon II is 5 March 2012.
5. The request for the registration certificate would not have required a perusal of
the file. Rather the agent could merely have accessed the certificate on the
internal computer filing system, so the impending expiry date would not have
been obvious from this request.
Decision
There is no doubt that one must have great sympathy for the Appellant. He was
diligent in all his dealings, he had difficulty obtaining funding from lending institutions
at a time where such funding has been so difficult to obtain and yet still managed to
achieve that. Furthermore, he was moving house at the time of the expiry date.
Finally he has had to purchase replacement capacity at the cost to him of
€46,000.00. All these aspects of the case would be matters that would be called into
account, if this Appeals Officer had the discretion to so do.
In other appeals, I have stately that the time limit can only not be adhered to in
circumstances where the Respondents themselves have been, in some way, the
author of a delay or lapse of time. The basis that I have come to those decisions is
that to otherwise do would be in breach of fair procedures and would be open to
challenge. In the John Leonard case, the Appellant was living remotely, was not part
of a fishing organisation such as BIM. Further he was not knowledgeable of Policy
Directive 2-3, unlike this Appellant. Most significantly in the John Leonard case, the
conversation between his solicitor and the Respondent did concern the operation of
time limits (albeit licence as opposed to capacity time limits) and that request would
have required a consultation of the file, as opposed to what happened in the present
case.
To depart from anything other than an ordinary application of Policy Directive 2- 3
the facts would need to be particular and, as compelling and as candid as the
Appellant is, the facts of this case, are not. I have no discretion under the law as it
stands to find otherwise.
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For reasons cited above I find this appeal fails.
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Emile Daly B.L.
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