DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL

UNDER SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

APPELLANT: GERARD DIVER STANDING STONE DRUMAWEIR GREENCASTLE COUNTY DONEGAL

VESSEL: MFV St Christopher

Having considered the notice of Appeal, with all supporting documentation, and the evidence given to the oral hearing in Four Courts Dublin on the 28th February 2007 and the representations made by the Appellant and Mr Seamus Bovaird.

DECISION: The appeal is allowed.

REASON FOR DECISION: 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. ‘

To bring back capacity onto the Register the Department of the Marine requires that certain steps must be taken including inter alia :

  • The applicant must have complied with all of the conditions of a licence offer including replacement capacity and safety requirements
  • A non-operative licence is issued to enable the vessel to be registered
  • The applicant has applied for registration to a local registrar of shipping using the blue form
  • The blue form is returned to the Licensing Authority by the local registrar and the vessel is approved by the Registrar General for registration

The appellant had appealed the determination by the Department that 1.05 GT capacity which remained credited to the appellants name, following the assigning of existing capacity from an older vessel known as the St Christopher to a new vessel of the same name, had expired under the two year rule introduced by Policy Directive 2/2003 on the 16th September 2006. It appears the appellant had previously been assigned 2.68 G T and 9.70 Kw from a vessel owned by his brother the St Christopher and which was decommissioned. The appellant applied for and was granted a new licence for a new vessel also entitled St Christopher in May 2005. One of the conditions which attached to the offer of licence was the appellant acquire a further 1.5 kilowatts which he acquired from the vessel MV Cally Marie with in March 2005. The 1.05 G T remained and the appellant approached a broker in September 2006 with a view to disposing of the 1.05 G T and when enquiries were then made with the department it transpired the original St Christopher had been removed from the Sea Fishing Register on the 17th September 2004 and the remaining capacity had expired on 16th September 2006.

It appears the appellant was never notified formally of the removal of the vessel from the Register on the 17th September 2004 and a Certificate of Closure has not to date issued in respect of the de-registering of the vessel as is the normal practice. This has not been disputed by the department nor is there any such Certificate on the appellants file made available by the department. By letter of the 17th September 2004 the Department wrote to Mr Michael Diver, the owner of the decommissioned vessel St Christopher approving the assignment to the appellant of the Gross Tonnes and Kilowatts from that vessel. The said letter expressly stated, “ the process will only be complete following the issue of a Closure Certificate for the Vessel”.

A letter of the 21st December 2004 from the department to the appellant stated:

“ The MFV St Christopher has been approved for de-registration and a Closure Certificate will issue shortly”. A further letter of the 15th March 2005 issued to the appellant approving the assignment to him of 1.50 kilowatts from the MFV Cally Marie and also stating, “Under current licencing policy this capacity must be re-introduced onto the Fishing Boat Register within two years from the date that the MFV “Cally Marie” was removed from the Register (which was 17 May 2004) otherwise your entitlement to it will be lost”.

No letter in such clear unequivocal terms informing of the date of de-registration of the old St Christopher issued and it appears from submissions made by Mr Bovard in the course of this appeal and accepted by the department that the practice of de-registration and issue of Closure Certificates has since been updated and computerised with a letter informing the owner in clear terms of the de-registration and the running of the two year cut off period from the date of such de-registration and a Certificate of Closure now issuing automatically when such application is approved.

Having regard to the fact no certificate of closure nor letter informing the appellant of the particular date of de-registration of the old St Christopher issued and given the ambigouty evident in the letters of the 17th September 2004 and the 21st December 2004 and contrasted with the expressed references to the de-registration date and two year time period in the letter of the 15th March 2005 regarding another vessel, there is no evidence of when the appellant could have been deemed to be on clear notice of the de-registration of the vessel and the consequent two year cut off date and for these reasons this is an appropriate case for the extension of time to allow for the assignment of the remaining tonnage of the appellant.

The updating of the Department of Marine information system is welcomed.

______

Michael Vallely BL

Appeals Officer,

Law Library,

Four Courts,

Dublin 7

6th March 2007