Determination of Sea Fishing Boat Licensing Appeal under section 16 of the Fisheries Amendment Act 2003.
Appellant: John O’Brien, Scrahannaure, Sneem, CountyKerry
Fishing Vessel: MFV Sherkey Star t401; Transfer of Capacity from T401 to T 501. Surplus Capacity of 0.57 GT.
Law: Operation of Policy Directive 2 of 2003
Oral Hearing was held on 1 November 2013 in Government Offices in Killarney, Co. Kerry at 11 am. Those present were Paschal Hayes, Kevin Moriarty and John O’Brien.
Decision of Appeals Officer: The Appeal is refused.
Reason for the Decision
Policy Directive 2 of 2003 made under the Fisheries Amendment Act 2003 provides 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
After the Appellant took MFV Sherkey Star, T401 off register he transferred most of the capacity onto his replacement vessel, MFV Sherkey Star T501. There was surplus capcity remaining of 0.57 GT. The Appellant intended to use the surplus capacity of 0.57 GT on a vessel Gleesk Breeze, an open punt, to assist him in his fishing business. However when he sought to register the surplus capacity he was informed that the capacity had been lost because of the operation of the two year rule under policy directive 2/2003. He was informed that he was written to about this by way of letter dated 30 November 2005. The Appellant was adamant that he did not receive the letter. At the hearing he said that had he received the letter, he would immediately have brought it to the BIM representative and dealt with it. He said that he could not afford to lose any capacity on a vessel. He also stated that it was much more likely that the letter was not sent and that several letters that apparently had been sent by the Department around that time were never sent and that he had to telephone the Department on several occasions asking them to re- send letters that had apparently been sent to him but had never arrived. He said that in his view the Department, at that time was “a disaster to deal with” but he accepted that, since the move to Clonakilty, things had much improved.
The witnesses from the Licensing Authoritystated that it must be assumed that the letter did issue. The letter was signed by Lisa Walsh who worked in the Dublin Office of the Department at that time. A copy of this letter is on the Departmental File and was addressed to the Appellant at his correct address. The Appellant was clear in his memory that he did not receive this letter however he was unclear if he received some other letters written to him in 2005 and 2006. He said that he could not recall receiving these letters either. Paschal Hayes stated that he must have received these other letters as his non-operative licence would not have issued if he had not received these other letters. Therefore the suggestion was that the Appellant’s memory of receipt of letters was not fully reliable.
I do not believe that the Appellant’s memory is unreliable however in the conflict between whether the letter was sent and whether it was not, I find that it is more likely to be the case that the letter was sent. There is no obligation on the Licensing Authority to send this letter by way of Registered Post or to otherwise prove receipt, if it is likely, on the balance of probabilities, that the Licensing Authority sent the letter then this means that the duty to inform an Appellant has been discharged.
Therefore I must hold that the Appellant was put on notice of the operation of the two year tonnage rule as per Policy Directive 2/2003.
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Emile Daly
Appeals Officer
Law Library
Four Courts
Dublin 7