Fitzpatrick -v- Minister for Communications Marine & Natural Resources, [2006] IEHC 335 (2006)

Docket Number:2005 802 JR
Party Name:Fitzpatrick, Minister for Communications Marine & Natural Resources
Judge:Herbert J.
 
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Neutral Citation Number: [2006] IEHC 335The High CourtJudicial Review [2005 No 802 JR]BetweenJohn Joe Fitzpatrick Plaintiff AndThe Minister for Communications, Marine and Natural Resources Defendant Judgment of Mr. Justice Herbert delivered on the 9th day of November 2006By Order of this Court (Mr. Justice Hanna) made on 25th July 2005, the Applicant was granted leave to seek judicial review in the form of an order of Mandamus, directing the Respondent, by his officials, to deal with the Applicant as the Applicant owner in law (being in fact the charterer, manager and operator) of the M.V. "Galway Bay" on matters concerning the safety of the boat, and, in particular on matters concerning her survey and certification pursuant to the Merchant Shipping Act, 1992. Alternatively, an order of Mandamus directing the Respondent by his officials to deal with the Applicant as the authorised agent of the owners of the M.V. "Galway Bay" on matters concerning the safety of the boat and, in particular on matters concerning her survey and certification pursuant to the provisions of the Merchant Shipping Act 1992. The Applicant was further granted leave to pursue by way of judicial review, a claim for damages at the rate of in or about 4,300 per day, from 21st July 2005, the date of the alleged peremptory cancellation by the Respondent of the completion of the survey of the boat, to 25th July 2005, or such other date thereafter as the survey was actually completed, together with interest pursuant to the provisions of the Courts Act 1981 and, costs.Central to the matters at issue between the parties to this application for Judicial Review is the definition contained in s. 2 of the Merchant Shipping Act, 1992 of the word "owner". It is there defined, in relation to a vessel as meaning:-"the person registered under the Mercantile Marine Act, 1955, as its owner or, if no person is so registered, the person who owns the vessel, and includes any part-owner, charterer, manager or operator of the vessel." The following facts were admitted or proved by affidavit evidence. The Registered Owner of the passenger vessel "Galway Bay", whose port of registry is Galway, is O'Halloran Shipping Limited of Inisbofin, Co. Galway. The Bill of Sale from Island Ferries Teo., dated 1st March 2001, was Registered on 27th March 2001, at 3.27 pm. On 1st July 2005, the latest Passenger Ship Safety Certificate, in respect of M.V. "Galway Bay" was issued by the Respondent to O'Halloran Shipping Limited following upon a marine survey of the ship conducted on 2nd June 2005. This Certificate was valid until 26th April 2006. This Certificate covered only voyages between Cleggan and Inisbofin Island in weather conditions not exceeding Beaufort Force 8, and voyages between Cleggan and Inisturk, in fine weather only, between the months of April and October.On 2nd June 2005, the Applicant entered into some form of chartering, leasing or hiring agreement in respect of the M.V. "Galway Bay" with O'Halloran Shipping Limited. On 2nd June 2005, an application was made to Captain Neil Forde of the Marine Survey Office of the Respondent at Cork, for a change in the Passenger Ship Certificate to include regular plying between the Aran Islands, Doolin, Rossaveel, Galway, Liscannor and Ballyvaughan. This required a further marine survey to be carried out which the Applicant, Mr. Richard Grant of Lahinch, Co. Clare, a business partner of the Applicant in these proceedings, asked to be carried out as soon as possible at Doolin Pier. This application was made in the name of O'Halloran Shipping Limited, Cleggan, Galway.On 3rd June 2005, Captain Forde and Mr. Kieran Goulding on behalf of the Respondent, duly attended at Doolin pier to carry out the necessary marine survey. The ship was unable to come alongside the pier because...

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