DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL
UNDER SECTION 16 OF THE FISHERERIES (AMENDMENT) ACT 2003
In relation to vessel MFV Rose of Sharon II
Mr Michael Kirwan Jnr, Harbour Road, Clogherhead, Co. Louth / AppellantAnd
The Licensing Authority in Relation to Sea Fishing Boats / Respondents
Jurisdiction
This appeal is limited to jurisdiction granted to an Appeals Officer under section 6 (3) and (4) of the Fisheries (Amendment) Act 2003
For the purpose of clarity, I will set this out:
Section 6 (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.
Section 6 (4)
A policy directive given under subsection 3(b) may require certain prohibitions or conditions to be imposed in relation to sea-fishing for the purposes of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species.
Policy Directive 2 of 2003 Fisheries Amendment Act 2003 states 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
There is no factual dispute between the parties:
The Appellant was aware of the operation of the two year rule and had used it before, taking boats on and off the register, in order to retain capacity.
Another expiration date (in relation to the capacity of MFV Regina Ponti) had been 29 May 2010 and as a result of this, the Appellant had mistakenly retained that date in his mind as being the operative date for the commencement of the two year rule. However the capacity of MFV Rose of Sharon II was de-registered on 5 March 2010. This date was the commencement date of the two year rule for this vessel’s capacity. Therefore the date for compliance to bring this capacity back on register was 4 March 2012.
The Respondent issued a letter dated 5 March 2010 which stated the capacity would have to be brought back on register on 4 March 2010, otherwise it will expire.
There was no further communication, by way of letter, telephone or e mail, in relation to capacity, between the parties until the capacity had expired.
There was a request by the Appellant, via his former solicitor, Niall Collins, for a certificate of registration for the Rose of Sharon II. This request and reply was by e mail in February 2012, and there was no mention then by the Respondent as to the imminent expiry date of the capacity, some two and half weeks later.
Appellant’s submission
1. In light of the impending expiry date, and the fact that there was e mail communication between the parties at this crucial time meant that the Respondent should have alerted the Appellant of the fact that the capacity was about to expire
2. Two years is a long period not to receive a reminder from a public body, especially when the loss caused is so great. Even under the National Car Testing and the Motor Taxation expiry dates, those affected are reminded during the time coming up to the expiry date.
3. The Respondent’s failure to remind him during the last e mail communication, constitutes a contribution by the Respondent to the fact that the date was not complied with
4. The fact that the Appellant was diligent in all his affairs, and this fact being known to the Respondent is demonstrated by the fact that as soon as he became aware of the expiry, he contacted the Respondent immediately to attempt to rectify the problem
5. The Appellant was moving house around the time of the expiration date, which was the reason why he made the mistake that he did.
6. The circumstances of the case are similar to another case, that of John Leonard, in which this Appeals Officer found in favour of the Appellant
Respondent’s submission
1. The Respondents claims that Policy Directive 2/2003 applies and that this is strictly enforced. The Licensing Authority has no discretion but to apply the terms of this Policy Directive and as such the duty that exists upon them is a duty to inform any claimant of the fact of the Policy Directive and once they have informed any claimant of the facts of the existence of the Policy Directive their duty is at an end. The Respondents denies that once having informed a claimant of the expiry date of the replacement capacity that they have no ongoing obligation to either progress an application or to keep informed a claimant as to the time limit operating against them as time proceeds.
2. The Respondents submits that there may be many claimants that initiate a claim for a sea boat licence who do not progress the application and the capacity fails after the two years and nothing further occurs. The Respondents says that they do not have either the funding or jurisdiction to have a greater role other than to indicate to the claimant that the Policy Directive is applying against them and the date upon which the capacity will expire.
3. The time limit under Policy Directive 2-2003 is fixed by law and there is no discretion to waive that provision.
4. The letter of 4 March 2010 is clear, the date for expiry of the capacity of the MFV Rose of Sharon II is 5 March 2012.
5. The request for the registration certificate would not have required a perusal of the file. Rather the agent could merely have accessed the certificate on the internal computer filing system, so the impending expiry date would not have been obvious from this request.
Decision
There is no doubt that one must have great sympathy for the Appellant. He was diligent in all his dealings, he had difficulty obtaining funding from lending institutions at a time where such funding has been so difficult to obtain and yet still managed to achieve that. Furthermore, he was moving house at the time of the expiry date. Finally he has had to purchase replacement capacity at the cost to him of €46,000.00. All these aspects of the case would be matters that would be called into account, if this Appeals Officer had the discretion to so do.
In other appeals, I have stately that the time limit can only not be adhered to in circumstances where the Respondents themselves have been, in some way, the author of a delay or lapse of time. The basis that I have come to those decisions is that to otherwise do would be in breach of fair procedures and would be open to challenge. In the John Leonard case, the Appellant was living remotely, was not part of a fishing organisation such as BIM. Further he was not knowledgeable of Policy Directive 2-3, unlike this Appellant. Most significantly in the John Leonard case, the conversation between his solicitor and the Respondent did concern the operation of time limits (albeit licence as opposed to capacity time limits) and that request would have required a consultation of the file, as opposed to what happened in the present case.
To depart from anything other than an ordinary application of Policy Directive 2- 3 the facts would need to be particular and, as compelling and as candid as the Appellant is, the facts of this case, are not. I have no discretion under the law as it stands to find otherwise.
For reasons cited above I find this appeal fails.
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Emile Daly B.L.
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