DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL

UNDER SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

APPELLANT: CASTLETOWN FISHERIES LIMITED

MFV DINISH D558

Having considered the notice of Appeal dated the 29th August 2008, correspondence on late grounds of appeal and the oral appeal heard in Cork on the 15th March 2011

DECISION: The appeal is refused.

BACKGROUND : The Policy Directive (2/2003), made under the Fisheries (Amendment) Act 2003, provides that ‘In future, capacity taken off the Fishing Boat Register must be re-introduced onto the Sea-Fishing Boat Register within two years from its removal from the fleet register otherwise the entitlement will be lost to its owner. ‘

The appellant had excess capacity of 399 GT and 895KW from a vessel the MFV DINISH D558, which it wished to transfer to another vessel the MFV Baqueiro. The capacity had to be brought back onto the fleet register by the 9th June 2008. The Licensing Authority wrote to it on the 12th June 2006 and the 28th April 2008 in this regard. The company was applying for a licence for the MFV Baqueiro which would use the excess capacity from the Dinish. It was a requirement of the licence that the manning regulations had to be complied with and there was a one year period to meet same.

On the 30th April 2008, the appellant sought an injunction and judicial review from the High Court 2008 No. 496 JR, challenging the issue of crew qualifications. I understand that the relief did not include a challenge to the certificate of compliance being ultra vires the 2002 safety regulations, as was argued in the later Skellig Fisheries Ltd V Minister for Transport.

APPEAL GROUNDS: The company could not transfer its unassigned excess capacity because of the stance the Department of the Marine took on crew qualifications and the MSO would not issue a certificate of competency because it did not recognize the Spanish qualification of the crew, for the purposes of the Merchant Shipping (Recognition of British certificates of Competency) Order 1995 (SI 228 1995) of manning and therefore the company could not within the relevant two year period use the tonnage.

OBJECTIONS:

(i)  The Register General and Mr John Kinsella BL objected to the proposals to amend or add to the grounds of appeal to allow a ground that the Marine Survey Office would not issue a certificate of compliance on the grounds of manning and therefore the tonnage to the credit of the vessel was lost. This as a result of the later Skellig Fish Limited V Minister for Transport case. I considered same but as set out previously on the 20th November 2008 to the appellants solicitors, I did not believe I had jurisdiction as I am a creature of statute and limited by Section 7 (4) and 7 (5) Fisheries Amendment Act 2003 which prevents me from accepting further grounds of appeal.

(ii)  The Register General and Mr John Kinsella BL also objected to me hearing the appeal, on the basis that the appeal was late but I rejected same.

(iii)  The Register General and Mr John Kinsella BL also objected to me hearing the appeal, on the basis that there was no decision of the licensing authority being appealed. However, I have decided on multiple other appeals relating to lost tonnage, that there are decisions that are appealable and that I had jurisdiction. Technically, isolating an express decision can be problematic, but certainly where a party cannot assign its tonnage because of an inability to meet a condition of a licence, I believe points to a grounding decision which gives me jurisdiction.

(iv)  There was also an objection under Section 10 of the Fisheries (Amendment) Act 2003, when solicitor Mr Dermot Conway produced a set of outline submissions on the basis that this was the making of submissions in breach of Section 10 of the Act. Mr Conway argued that Section 12 permitted such submissions. Whilst I do not necessarily agree, with the licensing authority, as such submissions are helpful, I did not accept same.

LAW

In previous cases, I have been inclined to only grant appeals where the Licensing authority has been at fault with poor communication or where a state entity effectively has prevented the appellants from fulfilling a licence condition e.g. the Marine Survey Office.

I am helped in this case with being supplied with the judicial review papers dealing with the recognition of the Spanish qualification of the crew, for the purposes of the Merchant Shipping (Recognition of British certificates of Competency) Order 1995 (SI 228 1995) and also with the comprehensive decision of the High Court of Judge O’Neill 2010 IEHC 190 delivered on the 20th May 2010, on the Skellig Fisheries case which in turn referred to the Castletown Fisheries matter at 7.13. I also have the Castletown Fisheries judgment of Judge O’Neill dated the 15th May 2009

It was successfully argued on behalf of Skellig Fish Limited, that the specific manning requirements which culminate in a certificate of compliance, relating to the competency of officers and crew were ultra vires the Minister for transport and were not part of the Council Directive 97/70/EC relating to safety for vessels over 24 metres. However, the appellant in the Castletown case failed in their action and the particular argument on equivalence of Spanish qualifications was rejected by the High Court. The issue of crew qualifications that succeeded in Skellig was not before the court in Castletown.

I hold therefore that as the condition was intra vires the Marine Survey Office under the auspices of the Minister for Marine at the time, then the appellant is not entitled to succeed in their appeal, as there was no wrongful act by an emanation of the State that prevented the appellant from meeting the licence requirements and therefore the tonnage is spent.

______

Michael Vallely BL

Appeals Officer,

Law Library,

Four Courts,

Dublin 7

29th March 2011

·  For future appeals, if the Licensing Authority has objections to make as to jurisdiction then it should be flagged in advance.