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