DPP v McLoughlin

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 25 February 1986
• Neutral Citation: 1986 WJSC-HC 530
• Court: High Court
• Docket Number: [1985 No. 753 SS],Record No. 953 SS/1985
• Date: 25 February 1986

DPP v. MCLOUGHLIN

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE COLLECTOR GENERAL

COMPLAINANTS

AND

MARTIN McLOUGHLIN

DEFENDANT

1986 WJSC-HC 530

Record No. 953 SS/1985

THE HIGH COURT

Synopsis:

FISHERIES

Employment

Crew - Engagement - Remuneration - Whether employed by skipper - Distinct engagement for each voyage - Net profits of voyage shared by skipper and crew - Crew member not entitled to remuneration apart from share of profits (if any) - Crew member not obliged to pay part of any loss - Held that skipper was not the employer of crew member - Skipper not liable for breach of Income Tax (Employment) Regulations, 1960 - (1985/753 SS - Costello J. - 25/2/86) - [1986] IR 355 - [1986] ILRM 493

|Director of Public Prosecutions v. McLoughlin|

EMPLOYMENT

Partnership

Distinction - Trawlermen - Skipper and crew - Joint venture - Crew not employed by skipper - ~See~ Revenue, income tax - (1985/753 SS - Costello J. - 25/2/86) - [1986] IR 355 - [1986] ILRM 493

|Director of Public Prosecutions v. McLoughlin|

REVENUE

Income tax

Employer - Statutory obligations - Sea-fishing trawler - Skipper and crew - Whether skipper the employer of crew - Crew engaged by skipper - Distinct engagement for each voyage - Net profits of voyage shared by skipper and crew - Crew member not entitled to remuneration apart from share of profits (if any) - Crew member not obliged to pay part of any loss - Held that skipper was not the employer of crew member - Skipper not liable for breach of Income Tax (Employment) Regulations, 1960 - (1985/753 SS - Costello J. - 25/2/86) - [1986] IR 355 - [1986] ILRM 493

|Director of Public Prosecutions v. McLoughlin|

WORDS AND PHRASES

"Employer"

Trawlermen - Skipper and crew - Joint venture - Profits of voyage shared - Crew engaged by skipper - Held that skipper not employer of crew for purpose of Income Tax (Employment) Regulations, 1960 - (1985/753 SS - Costello J. - 25/2/86) - [1986] IR 355 - [1986] ILRM 493

|Director of Public Prosecutions v. McLoughlin|

Citations:

CHITTY ON CONTRACTS 24ED V2 PARA 3501

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

COX V HICKMAN 8 HL 268

FINANCE ACT (NO 2) 1959 PART II

INCOME TAX (EMPLOYMENTS) REGS 1960 SI 28/1960

INCOME TAX (EMPLOYMENTS) REGS 1960 SI 28/1960 ART 2(1)

INCOME TAX ACT 1967 PART V

LINDLEY PARTNERSHIP 14ED P70

MAIRE V WOOD & ORS 1958 SLT 326

MARK FISHING CO V UNITED FISHERMEN & ALLIED WORKERS UNION 24 DLR 3 585

PARKER V WALKER & ORS 1961 SLT 252

PARTNERSHIP ACT 1890

PARTNERSHIP ACT 1890 S2(2)

PARTNERSHIP ACT 1890 S2(3)

SOCIAL WELFARE (COLLECTION OF EMPL CONTRIBS BY COLLECTOR GENERAL) REGS 1979 SI 77/1979

1 Judgment of Mr. Justice Costello delivered the 25th day of February 1986Mary P. O'Donoghue Registrar.

2 Martin McLoughlin is the skipper of a seventy foot fishing trawler "The Star of Nazareth" which he owns and operates from the port of Howth. Normally the crew consists of five persons including himself and because the Director of Public Prosecutions was satisfied that he was the "employer" of the rest of the crew and had failed to comply with the Statutory Obligations imposed on "employers" to send to the Collector General the statement, declaration and certificates required by the Income Tax (Employment) Regulations 1960 (S.I. No. 28 1960) and those required by the Social Welfare (Collection of Employment Contribution by the Collector General) Regulations 1979 (S.I. No. 77 of 1979) he caused two summonses to be issued against him alleging that offences under the relevant statutory provisions had occurred. These summonses were heard in the Dublin District Court on the 14th of November, 1985 and the learned District Justice, having found the facts relevant to the complaints, has stated a case under Section 52 of the Courts (Supplemental Provisions) Act 1961for the opinion of the Court on two questions of law;

3 (a) as to whether on the facts an employer/employee relationship based on a contract of service existed between Mr. McLoughlin (the Defendant) and the other crew members, and

4 (b) if it does not, is the Defendant, then, not guilty of the offences with which he has been charged.

5 Counsel are agreed that what I have to decide is whether a partnership relationship or an employer/employee relationship existed between the Defendant and the other members of the crew, and it is accepted that if the Defendant and his fellow crew members can properly be regarded as partners then no offences in respect of either complaint has been established.

6 The facts relevant to the issue which I have to decide are as follows. Normally the Defendant's vessel carries a crew of up to five persons comprising two navigators (one of whom is the Defendant himself) and three deck-hands. The Defendant himself engages the crew before setting out on each fishing expedition. Crew members tend to turn up regularly but each member of the crew on each voyage is a casual member, there being no contract between the Defendant and any other members of the crew that he will engage them again after the end of each expedition. The crew are consulted before a new crew member is taken on. Generally the vessel goes to sea on a Monday at 11.00 a.m. arriving back to Howth on a Wednesday morning at about 5.00 a.m. These figures are only approximate and are subject to all the vicissitudes attendant on the type of work in which the vessel was engaged. The catch is sent to the Dublin market. The Defendant telephones the market and he will be informed of the value of the catch and a cheque will be sent to him from the market for distribution of the proceeds of the catch in the following manner.

7 There is no agreement that any member of the crew will be paid any wage for the service he renders, remuneration being based on a sharing agreement and being entirely dependent on the size of the catch. The division of the proceeds is based partly on custom and partly on agreement. When there is a crew of five (being four crew members and the Defendant acting as skipper) the net proceeds from the catch are divided into eleven shares. The expenses of the trip (i.e. the cost of oil, ice, food, rent of navigation aids, gas and water) are deducted from the gross proceeds and 5½ shares of the balance are by custom allotted to the boat (to cover the cost of payment of the mortgage, general maintenance, and the B.I.M. Insurance Policy). 5½ shares are allotted to the crew (including the Defendant). The division of the crew's 5½ share is determined by the crew themselves in consultation with the Defendant. If a crew included an inexperienced young boy or if a crew man was sick throughout the trip he might be allotted only a half or a quarter share. The catch must be in the Dublin...