DETERMINATION OF APPEAL UNDER SECTION 16
OF FISHERIES (AMENDMENT) ACT 2003
Appellant:
David Marsden
45 Mulgrave Street
Dun Laoghaire
Co. Dublin
Vessel:
MFV Freebird
I have considered the documentation that has been furnished upon me, namely; the notice
of appeal dated 20 June 2006, together with all supporting documentation and exhibits, the
correspondence sent by the Applicant to the original Appeals Officer and this Appeals
Officer, the correspondence between the Applicant and the Department of
Communications, Marine and Natural Resources and the submissions made at the oral
hearing on 19 January 2007. I further note that written representations and representations
made by way of telephone communication have been raised on behalf of the Applicant by a
number of public representatives and I confirm that I have seen copies of these
representations and have received telephone communications from such persons but the
content of these representations has not been considered for the determination of this
matter.
Appeal Process
This appeal was heard by way of oral hearing on 19 January 2007. The Applicant was
represented by Niall O’Driscoll B.L. instructed by Donovan Solicitors, Capel Street, Dublin
7 and the Respondents were represented by Brendan Linehan of the Department of
Communications Marine and Natural Resources. The appeal papers were lodged with an
Appeals Officer in June 2006, the appeal came to this Appeals Officer in September 2006
when an oral hearing was requested by the Applicant. This was duly arranged the oral
hearing was heard in the Law Library Buildings, Church Street, Dublin 7 on 19 January
2007.
Decision:
The Appeal is refused
Reasons for the Decision
Section 3 (2) of the Fisheries (Amendment) Act 2003 states as follows:
The Licensing Authority shall be independent in the exercise of his or her functions under
this Part 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
(b) such policy directives in relation to sea-fishing boat licensing as the Minister may
give in writing from time to time
Section 6 (3) (a) and (b) of the 2003 Act limits the jurisdiction of an Appeals Officer to
same criteria as that which limits the Licensing Authority under in section 3 (2) (a) and (b).
Policy Directive 1 of 2003 is mandatory in wording;
Paragraph 4 of this Directive states:
In future, capacity taken off the Fishing Boat Register must be re-introduced onto the Sea
Fishing Boat Register within two years of its removal from the fleet register, otherwise the
entitlement will be lost to its owner. The two year rule will also apply to all existing “off
register” capacity from 1 January 2004.
There is nothing in the 2003 Act or the policy directives issued under the Act to permit
discretion in the application of this provision.
Facts
On 30 May 2006 the Respondent wrote to the Applicant setting out the reason for the
refusal of his application for a fishing licence and it is this decision that is under appeal.
The Applicant applied for a licence in respect of the vessel MFV Freebird on 7 September
2004.
A letter dated 10 September 2004 issued from the Respondents acknowledging receipt of
the licence application and then by way of letter dated 30 November 2004 a Licence Offer
was issued by the Respondents.
In order for the licence to issue all the conditions set out in the letter of offer had to be
complied with.
Condition (vi) of the Licence Offer was:
“The provision of documentary evidence that you have provided the required replacement
capacity (in terms of gross tonnage and engine power), removed from the Fishing Boat
Register. Current licensing policy requires that replacement capacity in this case be
provided on a 1:1 basis and from the polyvalent fleet segment…”
In other words, in order for the MFV Freebird to be licenced, one of the conditions, and for
the purpose of this appeal the salient condition, was that the Applicant would have to
replace capacity either from a vessel he already owned or from capacity that he could
purchase from other vessels which could then be taken off the Fishing Boat register, in
order that he could transfer that capacity to the newly purchased vessel. However, the
proviso being that whenever a boat came off register, the capacity would have to be
reintroduced not more than two years after it was de registered.
Communications between the Applicant and the Respondent indicate that it was the
intention of the Applicant to use capacity that he had on his previous fishing vessel, the
Lady Jan and the capacity that he purchased from two other vessels namely Iron Eagle and
Atlantic Drift.
Furthermore, an e mail dated 7 September 2004 to Leslie Fox of the Respondent confirms
that the Applicant informed the Department of his then intentions which were that his new
vessel was then being built in Scotland, that when it was ready that he would take the Lady
Jan off the register, acquire new tonnage from other, then unnamed vessels, and transfer the
tonnage from these vessels to this new vessel.
Capacity Assignment notes dated 23 March 2005 were sent by Donovan Solicitors to the
Respondents. These purported to assign to the Applicant 89.53kW from the vessel the
Atlantic Drift and 42 kW from the vessel Iron Eagle.
By way of letter dated 16 May 2005 from Raymond Taylor of the Sea Fisheries
Administration Division of the Respondent, these assignments were approved by the
Respondents.
This letter is significant because it also indicates the time limits that pertained to the
capacity of these vessels. The letter states:
“Please note that this Division approves the proposed assignments as outlined. I should
point out that, under current licensing policy, capacity removed from the Fishing Boat
Register since 17 November 2003 (the date on which the current policy was introduced)
must be re introduced onto the Register within two years of its removal, otherwise the
entitlement will be lost. The MFV Atlantic Drift was removed from the Register on 26 May
2004.
Capacity removed from the Register prior to 17 November 2003 must be brought back onto
the Register by 31 December 2005. This applies to the capacity you have purchased from
MFV Iron Eagle”
The Respondent submit that this letter put the Applicant on notice that time was running
against him in respect of the re introduction of this replacement capacity onto the Register
and furthermore that the potential loss of the capacity was inevitable if the time limits were
not adhered to, which is supported by the use of the words “will be lost” indicating that
there was no discretion in this regard.
It is the contention of the Respondent that while it was aware of the intention of the
Applicant to use the capacity that he had expressed that he would use (namely that of Lady
Jan, Iron Eagle and Atlantic Drift) the Respondent had no role or interest in the source of
the replacement capacity being used by the Applicant. Had he changed his mind and
decided to use replacement capacity from other sources, it would not have had any
involvement with this process, other than ensuring that the replacement capacity was vital
at the time of transfer.
The Applicant on the other hand submits that the Department did have a role in the process
and that the manner in which it dealt with the application made it difficult for the Applicant
to meet the terms of the licence offer in order to then meet the time lines set out in the
policy directive 1 of 2003 and paragraph 4 thereof.
Other relevant correspondence between the parties at this time was as follows:
5 April 2005 O’Donovan Solicitors wrote to Respondent indicating that it was the intention
of the Applicant that he use capacity from the Lady Jan to transfer to the new vessel despite
the fact that the Lady Jan was not on register. This was caused by delays in the processing
of her capacity caused by a heavy workload in the Marine Survey Office. The Applicant
submits that this delay was not of his making and if anything were caused by delays more
attributable to the Respondent by their failure to assess the capacity of the Lady Jan.
By way of letter dated 17 May 2005 the Respondents wrote to O’Donovan Solicitors to
indicate that in order for the Lady Jan to come off register, it would have to first go onto the
register and in order for that to be processed it would accept the previous owners figures (of
70.87kW) and would not assess the vessel on the basis of measurement (presumably
because of the delays caused in such measurement in the Marine Survey Office).
Therefore, as of 17 May 2005 there was nothing to prevent the Lady Jan coming off
register and nothing to prevent her capacity together with those capacities of Iron Eagle and
the Atlantic Drift then transferring to MFV Freebird.
Furthermore there would be another seven months before the Iron Eagle would lose its
capacity.
What did intervene was mechanical difficulties on the MFV Freebird which was grossly
unfortunate for the Applicant.
The Applicant informed the Respondent of these mechanical difficulties by way of letter
dated 25 August 2005 from O’Donovan Solicitors to the Respondent and requested that the
de registration of the Lady Jan be put in abeyance until these mechanical difficulties could
be resolved. This was to allow the Applicant be able to fish the Lady Jan as he had no other
form of income. This clearly was a change from what the Applicant had thought would be
happening at that stage namely that the Lady Jan would be de registered to create
replacement capacity.
A letter dated 30 August 2005 issued from the Respondent giving permission for the
Applicant to keep fishing on Lady Jan and the application for deregistration would be put in
abeyance.
It appears that nothing happened after this point, other than presumably the Applicant was
attempting in vain to have the ongoing mechanical difficulties of the MFV Freebird
rectified. No other correspondence issued between the parties.
On 30 May 2006 the Respondent wrote to the Applicant and infomed him that as of 31
December 2005 the capacity of the Iron Eagle had expired and as of 25 May 2006 the
capacity of the Atlantic Drift had expired. The letter refers to the original letter dated 16
May 2005 which had given the Applicant notice that this would occur unless the capacity
was transferred. The letter goes on to state that the Policy Directive 2 of 2003 does not
permit the Licensing Authority a discretion to extend this period, unless there was a delay
on the part of the Licensing Authority in the licensing process. The appeal options were
then set out to the Applicant.
What is somewhat unusual is that the letter states that there is a discretion where there has
been a delay on the part of the Licensing Authority. I do not see where this discretion exists
as there is nothing in the Act or policy directive to allow such a extension. The wording is
mandatory and therefore must be interpreted strictly.
It has been submitted by the Applicant that because there was a delay in the assessment of
the capacity of the Lady Jan, by the Respondents in their failure to measure her, and that
this happened during a period of time which was running against the Applicant that this
delay should have been taken in account so as not to prejudice the Applicant.
I do not agree with this contention. The Lady Jan may not have been assessed in good time
however it is clear that it was not this that caused the Applicant to miss the deadline of 31
December. As of 17 May there was nothing in the conduct of the Respondent that
contributed to the delay in the process. The Applicant still had seven months to put the
acquired capacity on the register. At that stage the capacity from both Iron Eagle and
Atlantic Drift were still vital and the Lady Jan had to be de registered. Therefore I do not
find the submission that it was this delay that caused the time limit to be complied with. I
find that on the balance of probabilities that the time limit was not complied with because
the Applicant did not believe it to be a strict time limit, which is not the case and the time
limit could not be complied with because in December 2005 (when the Iron Eagle capacity
was due to expire) the MFV Freebird was not in a position to receive the replacement
capacity because it did not meet other conditions of the licence offer due to the mechanical
problems. To use a colloquialism, the Applicant found himself in a “catch 22 situation”.
However, under the legislation it is the responsibility of the Applicant to acquire
replacement capacity and use it within the time as set out. The source of that capacity is
immaterial to the Respondents, as long as it is still vital when it was put back onto the
register. The fact that the Respondents were on notice of the problems that the Applicant
was experiencing did not put the time limits on hold. It is possible that when the Applicant
was informed that the de registration of the Lady Jan was put in abeyance that he believed
the time limits too were being suspended and while I cannot say for certain whether this
was the case, the fact that he made little contact with the Respondent after this point would
tend to support this explanation. If this was the Applicants belief, unfortunately for him it
was an erroneous one.
Under the 2003 Act and under Policy Directive 2/2003 there is no provision for hardship or
an extension of time. The scheme operates on a strict basis that there are two years to
register the replacement capacity and thereafter it expires. It seems that there is no relief
available to someone in the position of the Applicant who has invested in replacement
capacity but cannot transfer it onto a new vessel, because the licence offer conditions
attaching to the new vessel cannot be met, because in turn the mechanical difficulties are
ongoing and meanwhile the replacement capacity is becoming a non viable asset. Under the
operation of the Act and the Policy Directive the transfer of capacity process must dove tail
perfectly otherwise the investment is entirely lost.
By way of another example, to illustrate the harshness of this legislation, it would appear if
a vessel owner invests vast sums of money in acquiring capacity and intends transferring
that capacity onto a new vessel and one week before the capacity is due to expire a fire
damages the new boat, rendering it incapable of receiving the capacity, that the investment
is again entirely lost and the owner has no relief other than through an insurance policy.
I have great sympathy for this Applicant but am bound by the operation of the Act and the
Policy Directives and find that this appeal must fail.
18 August 2007
Emile Daly B.L.
Appeals Officer
Law Library
Four Courts
Dublin 7
The basis of the Applicants submission is that:
1. The Respondent was made aware of the problems that the Applicant