Sea-Fishing Boat Licence Appeal

SEA-FISHING BOAT LICENCE APPEAL

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

IUDA NAOFA LIMITED, MARTIN CONNEELY and

MAIRTIN EANNA O CONGHAILE

Appellants

-and-

THE LICENSING AUTHORITY IN RELATION TO SEA-FISHING BOATS

Respondent

Determination of Sea Fishing Boat Licensing Appeal under section 16 of the Fisheries Amendment Act 2003.

Appellant: Mairtin Conneely and Mairtin Eanna O’Conghaile of Iuda Naofa Ltd. Kilmurvey, Inismor, Aran Islands, Co. Galway.

Fishing Vessel: MFV Carmarose

Issues: Whether conditions on licence offer dated 20 January 2015 are confirmed

Whether a case can be stated to the High Court

Oral Hearing was held on 10 August 2015 in the Harbour Offices, Galway City. Those present were:

John Kiely B.L and Michael Clancy B.L. instructed by Michelle Scarry, Solicitor, Deirdre Ni Chonghaile, Mairtin Eanna O’Conghaile, Mairtin Conneely (Appellants), Sean McNelin (Marine Surveyor) Deirdre Kelleher (Deputy Registrar of Licensing.Authority), Kevin Moriarty (Registrar of Licensing Authority) and Conor O’Mahony (Legal Counsel for Licensing Authority)

Decision of Appeals Officer: The Appeal is refused, the conditions on the licence are confirmed and the application to state a case is refused.

Introduction

1. The appeal, dated 16th February 2015 relates to the offer of a Sea Fishing Boat Licence for the Polyvalent Fleet Segment in respect of the MFV “Carmarose” from the Licensing Authority to the Appellant dated 20 January 2015. The Appellant appealed the imposition of conditions (iv) (v) and vi) of the licence offer. For the sake of clarity these conditions are set out below:

Condition (iv)

“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 be provided on a 1:1 basis from the relevant fleet sub-segment in accordance with Ministerial Policy Directive 1/2006, as amended by Policy Directive 1/2011…………Where a vessel is greater than or equal to 20 metres in Length Overall (LOA) it will be precluded from fishing for herring unless the total gross tonnage provided satisfies the requirements for inclusion in the Celtic Sea Herring Polyvalent or the North West Herring Polyvalent ring-fenced portions as set out in Ministerial Policy Directive 1 of 2012……………Where a vessel is greater than or equal to 18 metres in Length Overall (LOA) it will be precluded from fishing for mackerel unless the total replacement capacity provided satisfies the requirements for inclusion in Tier 1 or Tier 2 as set out in Ministerial Policy Directive 1 of 2011…………I note that you intend to use capacity from the MFV “Iuda Naofa” SO679 and the MFV “Paraic Seosamh” WD194 as replacement capacity and that applications to de-register these vessels have been received. Please note the following

· The gross tonnage of the MFV “Iuda Noafa” SO679 is included in the North West and Celtic Sea Herring ring-fenced portions and the capacity of the MFV “Iuda Naofa” SO679 is included in Tier 1

· The gross tonnage of the MFV “Paraic Seosamh WD194 is not included in the North West or Celtic Sea Herring ring-fenced portions sand the capacity of the MFV “Paraic Seosamh” WD194 is not included in Tier 1 or Tier 2”

Condition (v)

“The vessel will be precluded from fishing for herring unless it qualifies for inclusion in either the Celtic Sea Herring Polyvalent or the North West Herring Polyvalent ring-fenced portions……”

Condition (vi)

“This vessel will be precluded from fishing for mackerel unless it has been placed in Tier 1 or Tier 2 (see replacement capacity condition)”

The Appellants Grounds of Appeal

2. The Appellants submitted a notice of appeal by way of letter dated 16h February 2015 and legal submissions which were received by this Appeals Officer in July 2015. Their appeal points summarized, are as follows:

A. The Appellants contend that they obtained Tier 1 status in respect of Mackerel fishing and they obtained ring-fenced polyvalent status in respect of Herring fishing in both the Celtic Sea and the North West herring fishing areas for the vessel the MFV “Iuda Naofa.”

B. The Appellants state that due to the deterioration of the MFV “Iuda Naofa”, which was constructed in 1978 that the Appellants had, from 2013 onwards, attempted to source a newer and safer vessel, onto which they could transfer the capacity of the MFV “Iuda Naofa”, which would thereafter be de-registered.

C. In or around late 2014/2015, they found a new vessel, the MFV “Carmarose”, which is the subject of this appeal. They bought this vessel and subsequently applied for a fishing licence. The MFV “Iuda Naofa” sank off the Butt of Lewis, Scotland 20th January 2015.

D. The Appellants state that the MFV “Carmarose” was registered as a polyvalent trawler having a LOA of 27 metres with a capacity of 256GT and 670.6kW and, unlike the MFV “Iuda Naofa”, is fully enclosed.

E. However the capacity of the MFV “Iuda Naofa” was 198GT and 492.43 kW and was 24.99 m in length. So the proposed replacement vessel, MFV “Carmarose” was greater in length, capacity and engine power than the MFV “Iuda Naofa”, by approximately 20%.

F. The Appellants state that in order to secure a licence for this vessel they are required to procure extra tonnage and kilowatts, to make up the difference between the capacity of the MFV “Carmarose” and the MFV” Iuda Naofa” or in the alternative reduce the Gross Tonnage of the vessel by approximately 20% which would necessitate significant modifications to the vessel. The Appellants contend that the modifications that would be necessary to implement would be not feasible from a cost point of view and would render the vessel to be less sea worthy.

G. The Appellants proposed to procure the balance of the capacity required from another vessel, the MFV “Paraic Seosamh”, registration WD194, which is registered however as a polyvalent (non-pelagic) vessel. This vessel has a LOA of 19.23 metres with a capacity of 66 GT and 236.58 kW. The Appellants contended that that the combined capacity of the two vessels was sufficient to match, replace and slightly exceed the capacity of the appellants new vessel thereby complying with the minimum 1:1 ratio or 100% replacement capacity requirements as prescribed in the policy directives. However the difference was that capacity that attached to the MFV “Paraic Seosamh” was for non-pelagic fish only and did not hold a track record in Tier 1 or Tier 2 status

H. It was on this basis that the Respondents denied the capacity of the MFV “Paraic Seosamh” could be used to increase the necessary differential in capacity that was missing from the MFV “Carmarose”. Without having pelagic capacity to transfer to the MFV “Carmarose”, the vessel could not be used to fish in the pelagic segment.

I. The Appellants states that the preclusion from procuring capacity from a non-pelagic de-registered vessel effects an arbitrary discrimination on the Appellants in the unique circumstances of their case and it is an unconstitutional attack on the property rights of the Appellants, and it offends Irish and EU legislation.

J. The Appellants submit that the policy directives which the Minister for Agriculture, Food and the Marine introduced which has resulted in the licence offer, made to the Appellant namely, Policy Directive 1/2006, Policy Directive 1/2011 and Policy Directive 1/2012 should be interpreted in a purposive manner the effect of which would allow the Appellants to use the purchased capacity of the MFV “Paraic Seosamh” in the pelagic segment. The Appellants seek to rely on Faherty v The Registrar General of Fishing Boats[1] as an authority for this argument. They also point to different approach by the Minister for Agriculture, Food and the Marine in respect of another vessel, the MFV “Star of the Sea”.

The Licensing Authority Response

A. S 6 (3) of the Fisheries (Amendment) Act 2003 (the Act) states:

“(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.

B. It is submitted that the Appeals Officer is subject to policy directives in relation to sea-fishing boat licensing as the Minister may give, including policy directives 1/2006, 1/2011 and 1/2012 and cannot look behind those directives but rather must apply these directives in accordance with the plain meaning of the words used by the Minister in those directives.

C. S 3 of the Act sets out the powers of the Licensing Authority. S 3 (2) of the Act states:

“The licensing authority shall be independent in the exercise of his or her functions under this Part subject to-

(b) Such policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time”

D. S 2 of the Act defines licence as: “licence in Parts 2 and 3 of this Act, means a sea-fishing boat licence granted under section 222B(3) of the Principal Act”

E. The Respondent contends that the only decision the licensing authority may make is in relation to sea-fishing boat licences which are subject to the law for the time being in force and subject to policy directives in relation to sea-fishing boat licensing as the Minister may give including Policy Directives 1/2006, 1/2011 and 1/2012. The Licensing Authority is independent of the Minister and therefore, it is submitted, cannot attempt to look behind those policy directives issued by the Minister but rather must apply these directives in accordance with the plain meaning of the words used by the Minister in those directives as the intention of the Minister regarding those directives is reflected in the clear and concise wording of those directives.

F. The Respondent contends that Ministerial Policy Directives 2/2003, as amended by Ministerial Policy Directives 1/2006 and 1/2011, provides fleet segmentation/sub-segmentation rules. As directed the Irish fishing fleet comprises five ring-fenced Segments (i.e. Aquaculture, Specific, Polyvalent, Beam Trawl and Refrigerated Sea Water (RSW) Pelagic). The Polyvalent Segment and Specific Segment are broken into four and two sub-segments respectively. Fleet segmentation rules prohibit the transfer of capacity between Segments/Sub-segments.

G. The Polyvalent Segment of the fleet is divided into four Sub-segments, namely the Polyvalent [Potting] Sub-segment, the Polyvalent [Scallop] Sub-segment, the Polyvalent [<18 metres length overall] Sub-segment and the Polyvalent [≥18 metres length overall] Sub-segment.

H. They contend that as the MFV “Iuda Naofa” (198GT & 492.43kW) and the MFV “Paraic Seosamh” (66GT & 236.58kW) are in the Polyvalent [≥18 metres length overall] Sub-segment and the MFV “Carmarose” (256GT & 670.60kW) is also ≥18 metres length overall, there is no impediment under fleet segmentation rules to the capacity of the first two named vessels being combined and assigned to the third named vessel for the purpose of licensing it in the Polyvalent [≥18 metres length overall] Sub-segment. As such the Respondent contends that fleet segmentation/sub-segmentation rules are not at issue under this appeal.

I. The Respondent submits that fishing capacity, in the form of gross tonnage and kW engine power, is not an asset owned by the Department or by the Licensing Authority. It is a privately owned tradable asset that, with certain exceptions, may be sold, traded or realised as a financial asset on the open market. Capacity is provided by licence applicants at a ratio of 1:1 as part of the licensing process in accordance with fleet segmentation rules. The Respondent submits that there is no discretion available to the Licensing Authority or the Appeals Officer on the issue of replacement capacity. They contend that to find otherwise would to create a back door whereby on register capacity could be increased, which was not the intention of the legislature.

J. Fishing Capacity assigned to a licensed vessel in accordance with fleet segmentation rules determines what fishing activity can be undertaken, including what species of fish may be targeted within a Segment/Sub-segment.

K. Current mackerel and herring policies as set out respectively in Ministerial Policy Directives 1/2011 (as amended) and 1/2012 (as amended) specify the 100% capacity qualification requirements in order for Polyvalent vessels to fish for these two pelagic species pursuant to the issue of a relevant authorisation by the Department.

L. Mackerel policy specifies that the Department shall determine and notify the independent Licensing Authority as to which vessels have “on register” capacity and what amount of “off-register capacity” in the form of gross tonnage and kilowatts have the required mackerel fishing track record to be licensed in either Tier 1 or Tier 2.

M. Similarly, herring policy specifies that the Department shall determine and notify the independent Licensing Authority of which vessels have “on register” gross tonnage only and what amount of “off-register” gross tonnes have the required herring fishing track record to be licensed in the Celtic Sea Herring and/or North West Herring Polyvalent portions.

N. The individual policy directives specify that the 100% capacity requirements as outlined (i.e. 100% gross tonnes and kilowatts with the required mackerel track record and 100% gross tonnes with the required herring track record) must be maintained in order for a vessel to fish for the relevant pelagic species pursuant to the issue of a relevant authorisation by the Department.

O. These individual policies also require a licence mackerel preclusion for ≥18 metre length overall vessels and a licence herring preclusion for ≥20 metre vessels which do not meet the required 100% capacity requirements. The Appellant contended on this point that the track record should attach to the vessel owner, but the Respondent responded that the policy directive is clear, it is the capacity and not the owner that the track record attaches to.