I move that the Committee agree with the Seanad in amendment No. 2.
Section 13: In page 16, lines 9 to 15 deleted, and the following substituted:
"(7) (a) A company may require—
(i) where the condition specified in paragraph (a) (i) or (b) of subsection (8) is satisfied, the owner or master of a ship,
or
(ii) where the condition specified in paragraph (a) (ii) of subsection (8) is satisfied, the agent for a ship,
being in either case a ship the navigation of which or the fact of its carrying goods or passengers or of any other circumstances referred to in subsection (1) that involve the ship will result, or results, in harbour charges being imposed by the company (whether on one or more than one occasion), to give to the company a bond, or such other type of security as the company specifies, for the payment of those charges.
(b) The amount of the bond or other security that a company may require to be given under this subsection (other than in relation to harbour charges imposed in respect of a ship referred to in subsection (8) (b) shall not exceed 25 per cent of—
(i) if the company has imposed harbour charges on the owner, master or agent concerned (`the person concerned') in each of two or more years prior to the making of the requirement, the average of the amount of harbour charges imposed by it on that person in such a year,
(ii) if the company has imposed harbour charges on the person concerned in only one such year, the amount of harbour charges imposed by it on that person in that year,
(iii) in any other case, the amount of harbour charges the company estimates it will impose on the person concerned in the period of 12 months commencing on the making of the requirement.
(8) The conditions referred to in subsection (7) are—
(a) that, before the making of the requirement referred to in that subsection—
(i) the owner or master concerned has failed to pay harbour charges imposed by the company or, on two or more occasions, has paid harbour charges imposed by the company to the company after the latest date stipulated by it for their payment,
or
(ii) in the case of the agent concerned, he or she has failed to pay moneys to the company which he or she has received from a person on account of harbour charges imposed on that person by the company or, on two or more occasions, has paid moneys so received by him or her to the company after the latest date stipulated by it for the payment of the harbour charges concerned,
(b) that—
(i) the ship concerned has not entered the company's harbour on any previous occasion and the company does not regard it as likely that it will enter its harbour again in the period of 12 months commencing on the entry concerned, and
(ii) the owner or master of the said ship has not retained an agent to act on his or her behalf for the purpose of paying any harbour charges that may be imposed by the company in the circumstances concerned.".
The Irish Ships Agents' Association objected to section 13 (7) of the Bill, as amended by the Select Committee on Enterprise and Economic Strategy. The association was of the view that the bonding provision, as provided for in section 13 (7), contravened the law of agency, and that the provision might also be contrary to EU competition law rules. Advice received by me from the Attorney General's office was to the effect that there was no valid legal basis to the objections raised by the association. Notwithstanding this, I undertook to reconsider the matter with a view to ensuring equity in relation to the provision — for example that ship owners, masters and agents are treated in the same manner — and limiting the bonding provision to cases where difficulties are being encountered.
The amendments I proposed were agreed to by the Seanad. The amendments, new subsections (7) and (8) provide that where there is an unsatisfactory record, for example where outstanding harbour dues are in arrears or where default in payment occurs, a company may require the owner or master of or the agent for a ship to give a bond or such other type of security as the company specifies to the company for the payment of those charges.
The amendments also provide that the bond or security, as the case may be, that may be sought by a port company shall not exceed 25 per cent of the annual harbour charges imposed by a company on the owner or master of a ship or the agent for a ship — subsection (7) (b) (i) and (ii).
The amendments also provide that in the case of a ship calling "once-off" to a port not operating through an agent and where there is no record, a company may seek such security from the owner or master of the ship in question in relation to the payment of harbour dues as it deems necessary. I confirm that the majority of agents — in excess of 90 per cent — pay their principle's charges in full and on time, and the amendment as now proposed will not penalise or place any burdens on them for so long as they continue to pay in full and on time. The amendments protect the port companies in relation to late payments and defaulters.
I also emphasise, in case there is any doubt on the matter, that the new subsections (7) and (8) do not make ships' agents liable for their principle's charges. These subsections provide — and I would draw particular attention to subsection (8) (a) (ii) — that where the owner or master has paid harbour charges to the agent and where the agent is late in handing these over to the port company or defaults in paying them over, and only in such circumstances, the port company may seek a bond or security from the agent concerned. The majority of ship's agents will not be affected by the new provisions. The amendments are acceptable to the Irish Ship Agents Association. I commend them to the House.