Faherty v Registrar General of Fishing Boats

• Jurisdiction: Ireland
• Judgment Date: 29 June 2010
• Neutral Citation: [2010] IEHC 244
• Date: 29 June 2010
• Docket Number: 2010 522 SS
• Court: High Court

[2010] IEHC 244

THE HIGH COURT

2010 522 SS

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 18 OF THE FISHERIES (AMENDMENT) ACT 2003

BETWEEN

MICHAEL FAHERTY

APPLICANT

AND

THE REGISTRAR GENERAL OF FISHING BOATS

RESPONDENT

Abstract:

Statutory interpretation - Policy Directives - Fisheries - Licensing - Principles to be applied - Legal status of policy directives - How policy directives to be interpreted - Literal approach - Intention of policy maker - Whether policy directive subject to Interpretation Act - Words and phrases - "Modification" - Whether modification to vessel - Interpretation Act 2005, sections 2, 5.

Facts under s. 3 of the Fisheries (Amendment) Act 2003, the Minister for Communications is entitled to make policy directives for the management of the Irish fleet which have a similar status to a statutory instrument. In issuing these directives, the Minister is pursuing both European Union and national policy as to the conservation and proper management of fish stocks. Paragraph D of Policy Directive 3/2004 states:- "In relation to para (f) of Policy Directive 2/2003, any vessels which have been equipped with pelagic wet storage capacity (tanks) but which do not have licence or a licence offer from the Licensing Authority at the date of this Directive, shall not be granted a licence to fish in the polyvalent segment of the fleet, other than as a replacement for vessels in the existing ring-fenced pelagic wet storage capacity sub-segment. Such vessels may not be licensed the polyvalent segment as dry hold vessels as a result of modification to their wet storage capacity (tanks). The renewal of existing licences will not be affected by this provision. This provision does not impact on the position, as set out in para. F of the Policy Directive 2/2003, with regard to licensed vessels which do not have a licence with approved pelagic wet storage capacity and which continued to have such capacity. Such vessels are still only allowed to continue to operate with wet storage capacity for the period of their current sea-fishing boat licence, as stipulated in para. F of Policy Directive 2/2003. Section 2(1) of the Interpretation Act 2005 provides, inter alia, that "'statutory instrument' means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act…" The appeals officer stated a case to the High Court for its response on a question of the proper approach to interpreting various Policy Directives issued by the Minister for the Marine.

Held by Mr. Justice Charleton in answering the questions posed as follows:-

1. Was the appellant's vessel subject to Policy Directive 2/2003 para. F and Policy Directive 3/2004 para. D issued under the Fisheries (Amendment) Act 2003? The answer was that it was.

2. If the answer to question 1 was yes, was a policy directive subject to the Interpretation Act 2005? The answer to that was that it was clear from s. 2 of the Interpretation Act 2005, that the manner of interpreting those legal instruments was as provided for in s. 5 of the Interpretation Act 2005.

3. If the answer to question 2 was yes, could the appeals officer interpret the said paragraphs of the Policy Directive other than in a literal sense and proceed to the plain intention of the maker of the instrument in determining whether the vessel was subject to the restrictions of the said policy directive? The answer to that question was that in the unique circumstances of the history of the vessel it was not necessary to do violence to the language of the policy directives in order to allow the appeal. There had been no modification to the vessel. Policy Directive 3/2004 at para. D provided that: "any vessels which have been equipped with pelagic wet storage capacity tanks" but which were not then licensed as of the 21st December 2004, "may not be licensed in the polyvalent segment as dry hold vessels as a result of modification to their wet storage capacity (tanks)". If the intention of the Minister was to exclude any vessel which had ever carried a pelagic wet storage capacity tank, the wording used could have referred to "any vessels which have ever been equipped with pelagic wet storage capacity (tanks)". That wording was not used. The appeals officer should look to a construction which reflected the intention of the wording as ascertained from the instrument as a whole. The vessel did not retain many of the characteristics of vessels with wet storage capacity. Any lingering doubt could be removed by a licence condition.

4. If the answer to 3 was yes, did both the removal of most of the wet storage capacity (tanks) constitute a "modification" within the meaning of the policy directives. The answer to that was that, it did not. The wet storage capacity tanks had, in their entirety, been removed. That was the only evidence which had been before the appeals officer. That did not amount to a modification of the vessel. A modification would donate the making of a change which did not alter the essential nature or character of the vessel. In contrast, the tanks had been entirely removed. The vessel ceased to be what was modified into, namely a refrigerated sea water vessel, and became what it was prior to that modification, a dry storage fishing vessel. If one moved to a purposive interpretation, one was not entitled to do violence to the plain wording of Policy Directive 3/2004 D.

Reporter: P.C.

1 JUDGEMENT of Mr. Justice Charleton delivered the 29th day of June 2010

2 1. The MFV Sea Spray Junior was built in 1977. It is owned by Michael Faherty, the applicant who is from Inis Mr. It was registered in Ireland as a white fish trawler. It then had a capacity to hold 150m3 in dry stored fish boxes and in bulk. In 1984 the vessel was fitted with refrigerated sea water tanks and this reduced her capacity to 110m3. This reduction was accounted for, in part, by the necessity for a generator and freezing equipment. The difference between the two arrangements is that as she was configured from 1977 to 1984, fish caught by the vessel were loaded into boxes, covered in ice and then stored for a short time before returning to harbour. From 1984 the refrigerated sea water system allowed for longer periods at sea since the fish were immersed in extremely cold natural sea water and could, as I understand it, be unloaded more easily. In 2007 all of the refrigerated sea water tanks were removed, thus reverting the vessel to its original configuration. In this regard, the vessel is unique in Irish waters. It cannot be used by the applicant, to fish, however, because it does not have a licence. That process is on-going and, within that context, the licensing appeals officers, Mr. Michael Vallely, as asked a question to assist him with his determination.

The licensing regime

3 2. Under s. 3 of the Fisheries (Amendment) Act 2003, the Minister for Communications, Marine and Nature Resources is entitled to make policy directives for the management of the Irish fleet. These directives have a similar status to a statutory instrument. The case first made by the Minister and then laid before Houses of the Oireachtas. In issuing these directives, the minister is pursuing both European Union and National Policy as to the conservation and proper management of fish stocks within our national waters.

4 3. Two directives are relevant to this licence application. Under Policy Directive 2/2003, para. (A) provides:-

5 "The Irish fleet will comprise a polyvalent segment, a refrigerated sea water (RSW) pelagic segment, a beamer segment, a specific segment and an aquaculture segment. Other than as provided for hereunder the transfer of capacity as between segments of the fleet will be prohibited."

6 4. Up to the end of 2009, the refrigerated sea water pelagic segment of the Irish fleet contained 22 vessels. These were mostly engaged in fishing for herrings, mackerel, and blue whiting; which are all species that live in mid sea water levels in large shoals. Since the volume of catch is the key, to this classification, the fish are stored in the refrigerated sea water tanks. The need for capacity requires these to be large vessels. I do not have to look at the beam trawler segment or the specific segment, beyond noting that these contain respectively 13 and 157 vessels. The polyvalent segment numbered 1,829 vessels in 2009. These fishing boats are multi-purpose, including small in-shore vessels and medium to large off-shore vessels. They tend to target white fish species that live near the seabed as well as pelagic species. Unlike the refrigerated sea water pelagic segment, these vessels are not laid up most of the year, because white fish can be targeted in the off season for pelagic species.

7 5. In September 2004 the minister issued Policy Directive 3/2004. This supplemented what I have quoted from Directive 2/2003 and para. F thereof, which I also take into account. Paragraph D of Policy Directive 3/2004 states:-

8 "In relation to para (f) of Policy Directive 2/2003, any vessels which have been equipped with pelagic wet storage capacity (tanks) but which do not have licence or a licence offer from the Licensing Authority at the date of this Directive, shall not be granted a licence to fish in the polyvalent segment of the fleet, other than as a replacement for vessels in the existing ring-fenced pelagic wet storage capacity sub-segment. Such vessels may not be licensed the polyvalent segment as dry hold vessels as a result of modification to their wet storage capacity (tanks). The renewal of existing licences will not be affected by this provision. This provision does not impact on the position, as set out in para. F of the Policy Directive 2/2003, with regard to licensed vessels which do not have a licence with approved pelagic wet...