Fisheries (Amendment) Act , 1994

PART I Preliminary and General

1 Short title, commencement, construction and collective citation.

1.—(1) This Act may be cited as the Fisheries (Amendment) Act, 1994.

(2) This Act shall come into operation on such day as the Minister shall by order appoint.

(3) The Fisheries Acts, 1959 to 1991 and this Act may be cited together as the Fisheries Acts, 1959 to 1994 and shall be construed together as one.

(4) The Mercantile Marine Acts, 1955 to 1983 and section 3 may be cited together as one, and the Act of 1955 and section 3 shall be construed together as one.

(5) The Merchant Shipping Acts, 1894 to 1992 and section 4 may be cited as the Merchant Shipping Acts, 1894 to 1994.

2 Interpretation.

2.—(1) In this Act—

“the Principal Act” means the Fisheries (Consolidation) Act, 1959;

“the Act of 1955” means the Mercantile Marine Act, 1955;

“the Act of 1962” means the Fisheries (Amendment) Act, 1962;

“the Act of 1978” means the Fisheries (Amendment) Act, 1978;

“the Act of 1983” means the Fisheries (Amendment) Act, 1983;

“Member State” means a Member State of the European Communities;

“undertaking” means the whole or any part of a business enterprise, institution, association or public authority.

(2) In this Act, a reference to a Part or section is to a Part or section of this Act, unless it is indicated that reference to some other enactment is intended.

(3) In this Act, a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(4) In this Act, a reference to any enactment includes a reference to that enactment as amended by any other enactment including this Act.

PART II Provisions Relating to Fishing Generally

3 Persons qualified to own registered sea fishing ships.

3.—(1) Section 16 of the Act of 1955 shall not apply to sea fishing ships.

(2) Subject to section 19 of the Act of 1955 respecting reciprocating states, the following shall alone be qualified to own a registered sea fishing ship or a share therein—

(a) the Government;

(b) a Minister of the Government;

(c) a national of a Member State; or

(d) a body corporate established under and subject to the law of a Member State and having its principal place of business in a Member State.

(3) Every ship to which the provisions of subsection (2) apply, shall be registered under the Act of 1955 unless the ship is exempt under section 18 (2) of that Act from the obligation to register under that Act.

4 Amendment of section 373 of Act of 1894.

4.—Section 373 of the Merchant Shipping Act, 1894, is hereby amended by the substitution of the following subsection for subsection (5) thereof:

“(5) The Minister for the Marine may make regulations for carrying into effect and enforcing the entry of fishing boats in the fishing boat register, and any convention with a foreign country relative to the registry, lettering and numbering of fishing boats, which is for the time being in force by virtue of any statute, and may by such regulations—

(a) adopt any existing system of registry or lettering and numbering of boats, and provide for bringing any such system into conformity with the requirements of this Act and of any such convention, and the regulations; and

(b) define the boats or classes of boats to which the regulations or any of them are to apply, and provide for the exemption of any boats or classes of boats from the provisions of this section, and from the regulations or any of them; and

(c) apply to the entry of fishing boats in the fishing boat register and their removal therefrom and to all matters incidental thereto, such (if any) of the enactments contained in this or any other Act relating to the registry of Irish ships, and with such modifications and alterations as may be found desirable; and

(d) impose a fine not exceeding one thousand pounds for a breach of any such regulations which cannot be punished by the application of any of those enactments.”.

5 Amendment of section 222B (3) of Principal Act.

5.—Section 222B of the Principal Act (inserted by section 2 of the Act of 1983) is hereby amended by the substitution of the following subsection for subsection (3) thereof:

“(3) (a) The Minister may grant licences for the purposes of this section.

(b) An application for a licence shall be made to the Minister and shall be in such form and contain such particulars as the Minister may prescribe, and be made by or on behalf of the owner of the boat in respect of which the application is made.

(c) Where an application is made for a licence, the Minister may, subject to subsection (4) (a) of this section, allow or refuse the application.

(d) In deciding on the grant or refusal of a licence or the attachment of conditions to licences the Minister may take account of economic benefits which the operation of a boat would be likely to contribute to the coastal communities and regions which the quotas within the meaning of Council Regulation No. 3760/92 (EEC) of 20 December, 1992 [^(1)] are designed to benefit, including—

(i) the projected annual number of landings at Irish ports;

(ii) the projected annual tonnage and value of fish landed in the State;

(iii) the projected annual level of expenditure in the State on wages, fuel, supplies, equipment and services; and

(iv) the projected annual level of social security and tax payments in the State in respect of employees and the operation of the boat;

and the general sea-worthiness of the boat, the protection, conservation and rational exploitation of fish stocks, and requirements of the common fisheries policy of the European Union.

(e) Licences may, subject to paragraph (f) of this subsection, be granted by an officer of the Minister authorised for that purpose by the Minister and references to the Minister in paragraphs (a), (c) and (d) of this subsection and subsections (2), (4) (a) and (5) of this section shall be construed as including references to such officer.

(f) Where an officer is authorised in accordance with paragraph (e) of this subsection to grant a licence the officer shall, in the discharge of this function, have regard to such considerations of policy as the Minister may direct.”.

6 Amendment of section 222B (4) of Principal Act.

6.—Section 222B (4) of the Principal Act (inserted by section 2 of the Act of 1983) is hereby amended by the substitution of the following paragraph for paragraph (a) thereof:

“(a) the Minister shall not grant a licence for the purposes of this section unless the sea fishing boat in relation to which the licence is granted is wholly owned by a national of a Member State or a body corporate established under and subject to the law of a Member State and having its principal place of business in a Member State.”.

7 Amendment of section 222B (6) of Principal Act.

7.—Section 222B of the Principal Act (inserted by section 2 of the Act of 1983) is hereby amended by the substitution of the following subsection for subsection (6) thereof:

“(6) Without prejudice to the generality of subsection (3) (c) of this section, where the Minister receives an application for a licence for the purposes of this section and—

(a) the application relates to a sea-fishing boat which is owned by a body corporate and the Minister (or an officer authorised in accordance with subsection (3) (e) of this section) is not satisfied that the body corporate is under the control of, beneficially owned by or under the control of and beneficially owned by a person or persons who, or, as may be appropriate, each of whom, is either a qualified individual or a qualified body, or

(b) the Minister (or an officer authorised in accordance with subsection (3) (e) of this section) is satisfied that the applicant has previously used or attempted to use a sea-fishing boat for sea-fishing in contravention of, or that he has fished for sea-fish or has attempted so to fish contrary to subsection (2) of this section,

he may refuse the application.”.

8 Amendment of section 231 (1) of Principal Act.

8.—Section 231 (1) of the Principal Act is hereby amended by the substitution of the following paragraphs for paragraphs (e) and (f) thereof:

“(e) to take, remove, detain in his custody any sea-fish (either together with or without any package in which the same may be contained) found in the course of the exercise of any of the powers conferred by this section in respect of which an offence under this Act is being or is suspected of being committed;

(f) to take, remove and detain in his custody any net or other instrument used in fishing or any article which is liable or is believed to be liable to forfeiture under this Act;”.

9 Provision of information relating to the catching or sale of fish.

9.—Section 231 (1) of the Principal Act is hereby amended by the insertion of the following paragraphs after paragraph (g) thereof:

“(h) to require the owner of or any person connected with—

(i) any premises referred to in subparagraphs (i) and (ii) of paragraph (b);

(ii) any pier, quay, wharf, jetty, dock or dock premises referred to in subparagraph (iii) of paragraph (b); or

(iii) any ship, boat, railway wagon, lorry, cart or other vessel or vehicle referred to in subparagraph (iv) of paragraph (b),

to give to him such information and to produce to him such records including computer records and other documents within the power or procurement of that person as he may reasonably require relating to the catching or sale of fish;

(i) to examine and take copies of, or extracts from, any records including computer records or other documents relating to the catching or sale of fish.”.

10 Amendment of section 233 (1) (g) of Principal Act.

10.—Section 233 (1) (g) of the Principal Act (as inserted by section 11 of the Act of 1978) is hereby amended by the substitution of the following subparagraph for subparagraph (i) thereof:

“(i) if the boat is not in a port, take the boat and all persons on board to the nearest or most convenient port, and pending the taking of the steps required by section 233A or 234, as may be appropriate, detain the boat and the persons on board, and”.

11 Detention of boats and persons on board when offence suspected.

11.—Section 233A of the Principal Act (inserted by section 12 of the Act of 1978) is hereby amended by the substitution of the following section for section 233A thereof:

“233A.—(1) Where a sea fisheries protection officer has, in the exercise of the powers conferred on him by section 233, detained a boat and the persons on board the boat at a port, any sea fisheries protection officer who suspects that a person on board the boat has committed an offence under a provision of Chapter II or III of this Part shall (unless he is proceeding under section 234), as soon as may be, apply to a judge of the District Court for an order authorising the continued detention of the boat and those persons, and the said judge may grant an order authorising such detention for a period of 48 hours if he is satisfied that the applicant sea fisheries protection officer has such a suspicion as aforementioned.

(2) Upon the expiration of the period of 48 hours—

(a) the boat shall be released unless an order providing for its further detention has been made under section 234 before the expiration of the said period of 48 hours, and

(b) each person on board the boat shall be released unless an order providing for his further detention has been made under the said section before the expiration of the said period.”.

12 Amendment of section 234 of Principal Act.

12.—Section 234 of the Principal Act (inserted by the Act of 1978) is hereby amended by the substitution of the following subsection for subsection (1) thereof:

“234.—(1) Where a sea fisheries protection officer has in exercise of the powers conferred on him by section 233 detained a boat and the persons on board the boat at a port, any sea fisheries protection officer shall, as soon as may be, bring the master of the boat and any other persons on board the boat against whom proceedings for an offence under a provision of Chapter II or III of this Part have been or are about to be instituted before a judge of the District Court and thereupon the said judge shall, if he is satisfied that such proceedings have been or are about to be instituted against the master and those other persons or any one or more of them, by order directed to a sea fisheries protection officer require such officer to detain at a specified port in the State the boat and each person (including the master) aforesaid in respect of whom he is so satisfied until such proceedings have been adjudicated upon by a judge of the District Court under section 8 or 13 of the Criminal Procedure Act, 1967, or under section 2 (2) of the Fisheries (Amendment) Act, 1978, or otherwise in the exercise of his summary jurisdiction.”.

13 Amendment of section 302 of Principal Act.

13.—Section 302 of the Principal Act (inserted by the Act of 1962) is hereby amended by the substitution of “Act” for “Part” in each place that it occurs therein.

14 Forfeiture of boats used in the commission of certain offences.

14.—The Act of 1978 is hereby amended by the substitution of the following section for section 4 (as amended by section 7 of the Act of 1983) thereof:

“4.—(1) Where on conviction on indictment of a person for an offence under any of the following sections of the Principal Act, that is to say, sections 221, 222, 222A, 222B, 222C, 223, 223A, 224B, 226 and 227—

(a) that offence (or that offence when taken in conjunction with any other offence or offences, under any of those sections, of which that person has been so convicted) is considered by the Court to constitute a serious abuse of measures prescribed and adopted under section 223A (1) (inserted by section 4 of the Act of 1983), or

(b) (i) the conviction is a second or subsequent conviction on indictment for an offence under any of those sections committed on board the same boat within three years of the date of the commission of the previous offence and whether the person convicted is or is not the same person on each occasion, and

(ii) the boat is at the time of the commission of the offence owned or part owned by a person who was the owner or part owner of the boat on the occasion of the commission of any of the previous offences referred to in subparagraph (i),

the Court may, at its discretion, in addition to any other fines and forfeitures to which the person may be liable, order the boat to be forfeited.

(2) Where—

(a) the conviction is a second or subsequent conviction on indictment for an offence under one of the sections mentioned in subsection (1) committed on board the same boat and the date of the second or subsequent offence is within three years of the date of commission of the previous offence and whether the person convicted is or is not the same person on each occasion, and

(b) the ownership has changed between the commission of the first and second or subsequent offences, then if the Court is satisfied that there are reasonable grounds for believing that the change of ownership has been effected in order to evade a possible forfeiture of the boat upon a subsequent conviction the onus shall be on the owner to furnish to the Court sufficient evidence showing, to the satisfaction of the Court, that—

(i) neither the legal or beneficial ownership of nor any legal or beneficial interest in the boat remains with the owner or a part owner of the boat at the time of the previous offence, and

(ii) the sale, assignment or transfer of the boat was done in good faith and for valuable consideration reflecting the market price or worth of the boat for the period in which it was acquired,

and where such evidence fails to satisfy the Court,

the Court may, at its discretion, in addition to any other fines and forfeitures to which the person may be liable, order the boat to be forfeited.

(3) For the purposes of this section owner and part owner shall include a person who, although no longer the legal owner or part owner, handles, manages or carries on the operation of the boat.

(4) The Court shall not order any boat to be forfeited pursuant to subsection (1) or (2) if a person claiming to be the owner of or otherwise interested in it applies to be heard before the Court to show cause why the order should not be made.

(5) The Court in ordering the forfeiture of a boat under this section may, if a mortgagee or chargeholder satisfies the Court that he granted a mortgage or charge in respect of the boat to its owner or owners in good faith, order that the boat be sold and that some or all of the proceeds be paid to the mortgagee or chargeholder to meet the outstanding mortgage or charge.”.

15 Offences.

15.—(1) In this section “officer to whom this section applies” means an officer of the Minister, a sea fisheries protection officer, an authorised person or an authorised officer as defined for the purposes of any section of the Principal Act.

(2) Any person who assaults an officer to whom this section applies in the exercise of any power conferred on that officer by any provision of the Principal Act shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both;

(b) on conviction on indictment, to a fine of such amount as the Court may impose or to imprisonment for a term not exceeding 5 years, or to both.

(3) Any person who, contrary to any provision of this Act, obstructs or impedes an officer to whom this section applies in the exercise of any power conferred on that officer by any provision of the Principal Act or refuses or neglects to comply with any requisition or direction lawfully made or given by that officer in pursuance of any such provision shall, in lieu of the punishment applied in respect of that contravention by any such provision, be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months, or to both.

16 Amendment of Tables to section 2 of Act of 1978.

16.—Section 2 of the Act of 1978 is hereby amended by—

(a) the substitution of the following for the matter set out at reference number 4 of Table I thereto:

“