Skellig Fish Ltd and Pesquerias Alonso Sociedad Anonima v Minister for Transport, Ireland and Attorney General

JurisdictionIreland
JudgeO'Neill J.
Judgment Date20 May 2010
Neutral Citation[2010] IEHC 190
CourtHigh Court
Date20 May 2010

[2010] IEHC 190

THE HIGH COURT

[No. 1320 J.R./2008]
Skellig Fish Ltd & Pesquerias Alonso Sociedad Anonima v Min for Transport & Ors
Skellig Fish Limited

and

Pesquerias Alonso Sociedad Anonima
Applicants

And

The Minister for Transport, Ireland

and

Attorney General
Respondents

TORREMOLINOS INTERNATIONAL CONVENTION FOR THE SAFETY OF FISHING VESSELS 1977

FISHING VESSEL (BASIC SAFETY TRAINING) REGS 2001 SI 587/2001

SEA FISHERIES ACT 1952 PART III

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) (AMDT) REGS 2000 SI 192/2000

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) REGS 1988 SI 289/1988 REG 3

EUROPEAN COMMUNITIES (SECOND GENERAL SYSTEM FOR THE RECOGNITION OF PROFESSIONAL EDUCATION AND TRAINING) REGS 1996 SI 135/1996

EEC DIR 97/70 ART 3

EEC DIR 97/70 ART 6

EUROPEAN COMMUNITIES (SAFETY OF FISHING VESSELS) REGS 2002 SI 417/2002

EUROPEAN COMMUNITIES (SAFETY OF FISHING VESSELS) (AMDT) REGS 2003 SI 72/2003

MERCHANT SHIPPING (CERTIFICATION OF SEAMEN) ACT 1979 S3

MERCHANT SHIPPING (CERTIFICATION OF SEAMEN) ACT 1979 S8

EEC DIR 2005/36

RECOGNITION OF PROFESSIONAL QUALIFICATIONS (DIRECTIVE 2005/36/EC) REGS 2008 SI 139/2008

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) REGS 1988 SI 289/1988 REG 10(1)

CASTLETOWN FISHERIES LTD & PESQUERA BAQUEIRO SA v MIN FOR TRANSPORT & ORS UNREP O'NEILL 15.5.2009 2009 IEHC 240

MERCHANT SHIPPING (RECOGNITION OF BRITISH CERTIFICATES OF COMPETENCY) ORDER 1995 SI 228/1995 ART 2

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) REGS 1988 SI 289/1988 REG 10(1)(A)

MERCHANT SHIPPING (CERTIFICATION OF SEAMEN) ACT 1979 S5

MERCHANT SHIPPING (CERTIFICATION OF SEAMEN) ACT 1979 S6

MERCHANT SHIPPING ACT 1894 S459(1)

MERCHANT SHIPPING ACT 1992 S26

MERCHANT SHIPPING ACT 1894 S459

EEC DIR 97/70 ART 3.2

EEC DIR 97/70 ART 5

FISHING VESSELS (SAFETY PROVISIONS) REGS 2002 SI 418/2002 REG 6(3)

EEC DIR 97/70 ANNEX V

MERCHANT SHIPPING (TRAINING AND CERTIFICATION) (STCW CONVENTION STATES) ORDER 1998 SI 555/1998

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) REGS 1988 SI 289/1988 REG 9(1)

FISHING VESSELS (CERTIFICATION OF DECK OFFICERS AND ENGINEER OFFICERS) REGS 1988 SI 289/1988 REG 2

MULDER v MIN VAN LANDBOUW EN VISSERIJ 1988 ECR 2321 1989 2 CMLR 1

SPAGL v HAUPTZOLLAMT ROSENHEIM 1990 ECR I-4539

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

R (BHATT MURPHY (A FIRM)) v INDEPENDENT ASSESSOR; R (NIAZI) v SECRETARY OF STATE FOR THE HOME DEPT 2008 EWCA CIV 755

LETT & CO LTD v WEXFORD BOROUGH CORP & ORS UNREP CLARKE 23.5.2007 2007/34/7055 2007 IEHC 195

PESCA VALENTIA LTD v MIN FOR FISHERIES & ORS (NO 2) 1990 2 IR 305

WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204

TARA PROSPECTING LTD & ANOR v MIN FOR ENERGY & ORS 1993 ILRM 771 1993/9/2705

ABRAHAMSON & ORS v LAW SOCIETY OF IRELAND & AG 1996 1 IR 403 1996 2 ILRM 481 1996/9/2635

CURRAN & ORS v MIN FOR EDUCATION & ORS UNREP DUNNE 31.7.2009 2009/11/2409 2009 IEHC 378

DUFF & ORS v MIN FOR AGRICULTURE & ORS (NO 2) 1997 2 IR 22

TREATY OF ROME ART 10

TREATY OF ROME ART 12

TREATY OF ROME ART 39

TREATY OF ROME ART 43

TREATY OF ROME ART 49

TREATY OF ROME ART 294

RSC O.84 r21

FISHERIES

Licences

Seamen - Manning regulations - Non-compliance of crew with manning regulations - Notice of prohibition - Power of detention - Safety standards - Certificate of compliance - Certificate of competency - Standard of competence - Standard of English language competency required -Legitimate expectation - Manning arrangements accommodated for 28 years - Public interest considerations - Principles of equality and effectiveness - Proportionality - Delay - Whether power to detain in respect of deficiency in manning - Whether decision not to lift notices of prohibition until vessels in compliance with manning regulations ultra vires - Whether Ireland adopting higher standard than other EU countries ultra vires - Whether law of legitimate expectation in EU context could apply where no EU law governing manning of vessels - Castletown Fisheries Ltd v Minister for Transport and Marine [2009] IEHC 240 followed - Mulder v Minister van Landbouw en Visserij [1988] ECR 2321; Spagl v Hauptzollamt Rosenheim [1990] ECR I-454; Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84; R (Niazi) v Secretary of State for the Home Department [2008] EWCA (Civ) 755; Lett & Co Ltd v Wexford Borough Council [2007] IEHC 195; Pesca Valentia Ltd v Minister for Fisheries and Forestry (No 2) [1990] 2 IR 305; Wiley v Renevue Commissioners [1994] 2 IR 160; Tara Prospecting v Minister for Energy [1993] ILRM 771; Abrahamson v Law Society of Ireland [1996] 1 IR 403; Curran v Minister for Education and Science [2009] 4 IR 300 and Duff v Minister for Agriculture (No 2) [1997] 2 IR 22 considered - Sea Fisheries Act 1952 (No 7) - Merchant Shipping (Certification of Seamen) Act 1979 (No 37), ss 3, 5, 6 and 8 - Merchant Shipping Act 1894, s 459(1) - Merchant Shipping Act 1992 (No 2) - Council Directive 97/70/EC, arts 3, 5 and 6 - Council Directive 2005/36/EC - Fishing Vessels (Certification of Deck Officers and Engineer Officers) Regulations 1988 (SI 289/1988) - Fishing Vessels (Safety Provisions) Regulations 2002 (SI 418/2002) - Fishing Vessels (Certification of Deck Officers and Engineer Officers) Regulations 2000 (SI 192/2000) - European Communities (Second General System for the Recognition of Professional Education and Training) Regulations 1996 (SI 135/1996) - Fishing Vessels (Basic Safety Training) Regulations 2001 (SI 587/2001) - European Communities (Safety of Fishing Vessels) Regulations 2002 (SI 417/2002) - European Communities (Safety of Fishing Vessels)(Amendment) Regulations 2003 (SI 72/2003) - Recognition of Professional Qualifications (Directive 2005/36/EC) Regulations 2008 (SI 139/2008) - Merchant Shipping (Recognition of British Certificates of Competency) Order 1995 (SI 228/1995), art 2 - Merchant Shipping (Training and Certification) (STCW Convention States) Order 1998 (SI 555/1988) - Treaty of Rome, arts 10, 12, 39, 43, 49 and 294 - Torremolinas International Convention for the Safety of Fishing Vessels 1977 - Torremolinas Protocol of 1993 - IMO International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel 1995 - IMO International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 - Rules of the Superior Courts 1986 (SI 15/1986) O 84, r 21 - Relief granted (2008/1320JR - O'Neill J - 20/5/2010) [2010] IEHC 190

Skellig Fish Ltd v Minister for Transport

Facts: The first named applicant was a company with two fishing boats which employed Spanish shippers, holding Spanish certificates of competency and also UK certificates of equivalent competency and it commenced a State sponsored joint venture in fishing with a Spanish registered company in 1981. A certificate of compliance had issued by the Irish authorities as to one ship lasting until the end of 2008. The first named applicant was then informed that the manning requirements for the Irish register had changed. A notice of prohibition on the ships then followed on the basis of the lack of a valid certificate of compliance. A 90% pass mark was required for deck officers in Ireland as opposed to 70% in the UK following an amendment to the 1988 Regulations in 2000. In a report in 2004, it was concluded that the vessel was not manned in accordance with the Irish regulations. In 2009, it was stated that certificates of compliance wouldissue as soon as the applicants could satisfy the Irish Manning Regulations of 1988, outlining specific incidents of safety concerns arising. The applicants sought inter alia a declaration that Spanish certificates of competency be treated as attainment of a standard of competency equivalent to the Irish standards required by Fishing Vessels (Certifications of Deck Officers and Engineer Officers) Regulations 1988 (manning regulations). The applicants sought by way of an amended statement of grounds an order quashing the notices of prohibition prohibiting fishing vessels from sailing until compliance with Irish national maritime legislation was achieved. The respondents opposed the amendment on grounds of delay.

Held by O'Neill J. that the respondents did not have a legal power to prohibit the applicants' vessels from sailing and to detain these vessels because of breaches of the manning regulations of 1988. The applicants had failed to demonstrate that the standard of English required by the first named respondent was ultra vires his powers. The law of legitimate expectations had no application here. The right of the applicants to sail under an Irish flag did not involve immunity from local regulation. The 90% pass mark even if high was not disproportionate to the objective to be attained of a safety of seafarers. The Court would extend time to enable amended grounds to be included in the judicial review applications. The applicants were entitled to have the prohibitions quashed by an order of certiorari.

Reporter: E.F.

1. Reliefs Sought
1

Leave was granted to the applicants by this Court (Peart J.) on the 24 th November, 2008, to seek the following reliefs by way of judicial review:-

1

An order of certiorari quashing the advice of the first named respondent contained in a letter dated the 30 th June, 2008, that a certificate of equivalent competency issued by the competent authority within the United Kingdom of Great Britain and Northern Ireland is not mentioned as being recognised in The Merchant Shipping (Recognition of British Certificates of Competency) Order, 1995.

2

A declaration that the Spanish certificates of competency of the first named applicant's deck officers and...

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