DETERMINATION OF SEA-FISHING BOAT LICENSING APPEAL

UNDER SECTION 16 OF THE FISHERIES (AMENDMENT) ACT 2003

APPELLANT: Mr Brendan Heneghan, Lighthouse Road, Blacksod, Ballina, Co. Mayo.

This appeal was heard on the 29th January 2009 and in attendance was the appellant, his sister Ms Barbara Heneghan, the Register General of Sea boat licensing and the Deputy Register General.

Various correspondence was before me including :

A. Letter Date: 11th June, 2008,

From Mr. Brendan Heneghan to Mr. Michael Vallely:

Brendan Heneghan wrote saying that he wished to dispute the removal of registration of the tonnage on the basis that he was a young fisherman who had invested heavily both financially and training in a fishing career.

He lists his qualifications and enclosed certificates of his qualifications:

1.VHF certificate of Competency;

2.Radio Operator short range cert;

3.First Aid Cert;

4.Cert No. MR099615 from Marine Engineering training;

5.Cert No. 004273 from Marine Engineering training;

6.Manual Handling operations cert;

7.Slinging, Safety and Awareness Cert;

8.Arc Welding Cert;

9.Cert MC115840 from Marine Engineering Training

He also enclosed copies of following bank drafts:

  1. 18 ft currach complete with 4 oars with cost of £1,070
  2. Outboard engine:€ 2,000
  3. Tonnage:€4,760

B. Letter from Mr. Vallely to Mr. Heneghan dated 11th June, 2008.

Mr. Vallely informs Mr. Heneghan that he is obliged under Section 15 of the Fisheries Amendment Act 2003, to give a copy of any document received by Mr. V with Mr. H’s appeal. Mr. V sent Mr. H an application from the Dept of A, F and F. and asked Mr. H to reply within 14 days.

C.Letter dated 29th May, 2008 received from Mr. Brendan Linehan, Deputy Registrar General of Fishing Boats in Dept. of A, F and F enclosing relevant paper work and informing Mr. H that it is the view of the Licensing Authority that the time limit of one month for appeal has expired since the 3rd Jan 2008.

  1. Letter dated 27th May, 2008 from Mr. Vallely to Mr. Linehan enclosing Mr. Heneghan’s application for an appeal under section 7 of the Fisheries (Amendment) Act 2003. Sent in accordance with section 9 of the Fisheries (Amendment) Act 2003.

E. Mr. Heneghan’s Notice of Appeal (dated 17th May, 2008) under section 7 of the F(A) Act 2003 which says applicant wishes to appeal the expiry of his capacity for 1.14GT on the MVF “Le Mari” D 473, purchased by me on the 28th May 2002 because he was not aware of the change in legislation requiring the tonnage to be assigned before 31/12/2005.

F. Letter dated 17th April, 2008. where Mr. Vallely writes to Mr. Linehan enclosing Mr. Heneghan’s letter of the 14th 12th ?? February 2008 and informing Mr. Linehan that there is no appeal before him and that he might deal with the matters raised in the letter.

G. Letter dated 12th February, 2008 From Mr. Heneghan to Mr. Vallely.

H. Letter dated 16th January, 2008 to Paschal Hayes

  • In 2002 purchased 1GR tonne 4Kws which he purchased.
  • Also that he received letter Dept of A, F and F that tonnage now assigned
  • In 2001 purchased Currant from Patten Boat Builders at cost of £ 1070, spent €2,000 on an outboard engine for Currach after obtaining credit union loan.
  • From 2001 to 2007, Mr. Heneghan repaid credit union loans with a view to getting his Currant surveyed so he could get his tonnage transferred to it. When he contacted the Dept of A, F and F to do this, he was informed by a Miss Majella Deasy that his tonnage had been removed from the system.
  • States that when he purchased the tonnage, he had not been advised of any time limit and he did receive a letter confirming that he was owner of the tonnage.
  • States he was very dismayed that after 3 years in Fisheries College and investing money in equipment that his tonnage was taken away from him with no advanced warning.
  • When he communicated this to the Fishing Boat section of the Department, he was informed that the change of legislation was advertised, however Mr. Heneghan remained unaware of this change.

I Letter dated the 25th, April 2008 from Mr. Linehan in the Dept of A, F and F Fishing Boat section informing Mr. Heneghan that he had not followed the correct procedure for lodging an appeal and accordingly Mr. Vallely did not recognise letter as such. Mr. Linehan advises Mr. Heneghan to follow procedure.

J Letter dated the 3rd December, 2007 from Mr. Linehan to Mr. Heneghan informing him:

1.Letter concerns expiry of 1.14 GT and 4Kw on the MFV “Le Marai” D 473 purchased by him on the 28th May, 2002 from Mr. Kevin Heaney.

2.That in accordance with the Fisheries (Amendment) Act 2003, the Minister for C, M and NR issued a Policy Directive (2/2003) to the Licensing Authority for Sea Fishing Boats in November 2003. This Policy Directive specified amongst other things that “In future capacity taken off the Fishing Boat Register must be re-introduced onto the Sea-Fishing Boat Register within 2 years of its removal from the fleet register otherwise the entitlement will be lost to its owner. The two year rule will also apply to all existing “off register” capacity from 1/1/04.”

3.To bring capacity back onto the Register requires that all of the following steps be completed within the 2 year deadline:

i.the applicant has complied with all of the conditions of a licence offer including replacement capacity and safety requirements;

ii.a non-operative licence is issued to enable the vessel to be registered;

  1. 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.

4.Says that Policy Directive was published in Iris Oifiguil and reminder notices were published in the Irish Independent of the 25th November, 2005 and in the Irish Skipper and Marine Times.

5.Informs Mr. Heneghan that the capacity of 1.14 GT and 4Kw on the MFV “Le Marai” in Mr. Heneghan’s name has expired as it was not brought back onto the Fishing Boat register by the 31st December, 2005. The legislation does not give power to the Licensing Authority to vary the requirements of a Policy Directive, such as to extend the two-year period of validity of off-register capacity. The Licensing Authority, therefore cannot accept the 1.14 GT and 4Kw as replacement capacity for the introduction of a vessel into the Irish Fishing Fleet.

  1. Outlines Appeal option under Section 7 of the Fisheries (Amendment) Act 2003 and that it must be made by way of Notice of Appeal form.
  1. Outlines how in Section 8 of said Act, parties may request an oral hearing.

K Letter dated the 22nd January, 2008 from Mr. Paschal Hayes to Mr. Heneghan, informing him that:

  • In accordance with Policy Directive (2/2003), rules regarding the expiration of off-register capacity were introduced by this Directive.
  • Directive provided that capacity that was off register on the date of the Directive 17th November, 2003 would not be acceptable as replacement capacity if still off register on 1st January, 2006. The Policy also stipulated that capacity be removed from the Register after that date must be re-introduced onto the register within two years of its removal from the register, otherwise the entitlement will be lost to the owner. The two year rule was introduced to assist the Licensing Authority meet its obligations to manage fleet capacity targets set down in EU fleet policy.
  • Policy Directive published in Iris Oifiguil etc.
  • Legislation does not empower the Licensing Authority to vary the requirements of a Policy Directive e.g. to extend the two year period of validity of off-register capacity.
  • Says that Mr. Heneghan’s capacity should have been brought back onto the Fishing Boat Register by the 31st December 2005 in order to comply with the Directive.

The Department indicated that they would not be pursuing the question of time limits with regard to the processing of the appeal.

REASONS FOR DECISION

Evidence was given that the appellant had some literacy isues and I

established that he had some difficulty comprehending the meaning of

documents.

Department laid out their side i.e. spoke of the contents of various letters. Tolf of how the Policy Directive in question was effective from November 2002 and the time limit for assignment of tonnage was 31st December 2005. I assume this is based on the two year rule applying to all off register capacity from 1st January 2004.

None of what the department outlined was disputed by the Heneghans and they exhibited the Assignment Note confirmed as dated the 9th May, 2002. There was some confusion as to this date as it was initially inputted incorrectly.

The Heneghans submitted that there had been no communication concerning capacity between the Department and the Heneghans between June 2002 and December 2007.

The Heneghans outlined that although information concerning the Policy Directive was published in Iris Oifiguil, the Irish Independent and the Irish Marine Times, Skipper etc around November 2005, they were not on notice of the Directive.

Mr. Heneghan was in Fisheries Training College when communications regarding the Directive were published. At no time when he was in Fisheries College were the implications of the Directive communicated to him. At no time when Fishing with his father and other members of the Blacksod Fishing community, were any details communicated to him. Mr. Heneghan’s father is a lighthouse keeper and Fisherman in Blacksod.

Mr. Heneghan accepts that it is important for fishermen to keep up to date with developments in the Industry, but in these circumstances, no one in his college in Greencastle or immediate community communicated to him about the Directive and the assignment of his tonnage.

Up to 2007, Mr. Heneghan continued to invest in equipment and training as regards his fishing career and at no time was he aware of the change in the law.

In 2007, when was on notice of the change in the Law, Mr. Heneghan wrote in panic to local Fianna Fail TD-Dara Calleary who made representations to the Junior Minister in the Dept of the Marine i.e. John Browne.

Paschal Hayes speaking for the Dept. reiterated that the Dept communicated the change in the law through the various publication channels i.e. Iris Oifiguil, Irish Marine Times etc.

Barbara Heneghan spoke again of Mr. Heneghan’s literacy problems and that how he is very good at technical and practical work, literacy skills are not his strong point.

Barbara Heneghan also spoke that how in her opinion it is unfair that just because a person does not buy a particular publication in a month, that the result is that money is taken away from him.

Barbara also spoke of how their mother will not have certain publications in their house.

The family never purchase Iris Oifiguil.

However now, the appellant does buy the Irish Marine Times and Skipper every month.

It appears to me that one of the issues is whether the communications carried out by the Department, were sufficient to inform the appellant as to the 'use it or lose it rule'. I also note that this was one of the old cases in the Department and that there were no recent live communications between them and the appellant that may have contained an express warning that the tonnage would be lost, which is now routinely and correctly stated in correspondence between the department and fishermen which is a commendable practice.

The appellant is also in further difficulty in that ignorance of the law is no defence and that even where there may be literacy problems, he is not excluded from the application of the law.

I am obliged under Section 6 (3) (b) of the Fisheries (Amendment) Act 2003, to heed policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time. However, I must also apply the law for the time being in force generally, and also under Section 6 (3) (a).

There has to be a justice in every case and I believe that the combination of the fact that the particular tonnage in question was acquired previous to the directive in dates back to May 2002, the tonnage directive being issued in November 2003, with the fact that there was no express communication warning of its effect (albeit the opportunity did not arise) and I cannot blind myself to the obvious comprehension difficulties that the appellant has even if a publication was put before him. I note the quantum of the tonnage in issue also.

The Department does routinely now inform fishermen who are transferring capacity from one vessel to another of the two year rule and in such cases, any appeals tend to fail but this is not the case here.

On balance and with certain reservations I hold that the appellant should succeed in the appeal.

Michael Vallely BL

Law Library,

Four Courts,

Dublin 7

27th February 2009