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Seanad Éireann debate -
Tuesday, 28 Jun 2005

Vol. 180 No. 26

Maritime Safety Bill 2004 [Seanad Bill amended by the Dáil]: Report and Final Stages.

I welcome the Minister of State at the Department of Communications, Marine and Natural Resources.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed groupings to the House. A Senator may contribute once on each grouping. I remind Senators that the only matters that may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

I thank the Senators for bringing forward their formal consideration of the Dáil amendments to this Bill. I have arranged for detailed explanatory notes on the amendments to be distributed and will be glad to answer any questions on them.

We debated the Bill here then referred it to the Dáil, after which it became necessary to amend it to overcome some difficulties that could otherwise have arisen. The core purpose of the Bill is to secure more reasonable use of inland and coastal waters and to safeguard human life and priceless natural and other heritage. If I did not introduce these amendments, however, all fishing vessels under 24 m would have required a certificate of compliance by 1 July under the Fisheries Act 2003. That would have caused serious problems for the industry and consequently I decided to introduce the amendments.

I would like to have addressed the issue of vessels over 24 m long but was not in a position to do so because that is covered by EU regulation and would not have been constitutionally possible. In addition, I received legal advice which overturned the general understanding of what constitutes the foreshore. We must address this matter immediately.

I propose to do so by confirming in legislation, provided this House passes it, that the general understanding that the foreshore runs to the limits of the territorial seas, namely, 12 nautical miles. The advice I received, however, is that the foreshore runs only to the low water mark, some yards from the coast. These amendments seek to confirm the understanding that has existed since 1933 when the foreshore legislation was introduced. In this Bill I wish to provide for validation of actions undertaken on the basis of that understanding. We have a responsibility to all those who have foreshore licences or leases and I am endeavouring to restore the status quo. This confirms people who hold licences or leases in their secure occupation of the areas concerned.

The Bill as initiated aimed at a more secure and reasonable use of inland waters. We have drafted these amendments which, with the co-operation of the Seanad, will resolve the difficulty about the certificates of compliance. I will introduce regulations to deal with these over the coming years.

Many people asked me what I was doing about jetskis. There is no question of my compromising on safety. Equally important is the question of extending the foreshore lease to the 12 nautical mile limit which was always understood to be the limit.

If Senators wish, I can go through the sections of the Bill. The earlier signature motion, which will come before the House later this afternoon, is necessary because of the urgency of having sections 53 and 55 and Part 6, inserted by the Dáil, made legally operational as quickly as possible ahead of the rest of the Bill. For convenience, I will deal with those provisions in dealing with what I describe as "Group 1". There are up to 77 amendments split into four groups. I have circulated all the information and will answer specific questions about any amendment or section.

Senators expressed much admiration on the Order of Business today for the way in which the Minister of State grouped the amendments and the accompanying explanations. The wish was expressed that all Ministers would do the same.

I thank the Minister of State for his explanation and for what he has done in connection with the Foreshore Acts. The difficulties involved came to my attention a few weeks ago and could have caused many problems in several areas. The Minister of State is well aware of one in particular. I thank him for moving so quickly to resolve these difficulties.

The amendments serve to make the legislation on licences issued since the first Foreshore Act retrospective. Does that pose any difficulty?

In regard to some of the earlier sections of the Bill there are a few references in the comprehensive briefing we received to the Landlord and Tenant (Ground Rents) Act. Can the Minister of State clarify that reference because I am intrigued as to how landlord and tenant legislation forms part of a discussion on legislation in the maritime area?

I welcome the Minister of State to the House and I concur with the Leader of the House in regard to the grouping of the amendments which make the legislation straightforward. Other Ministers could do likewise because it makes it easier to work with legislation.

Many small fishermen who operate one or two person boats have called for changes in the red tape and the constant bureaucratic difficulties and blockages they must overcome to acquire or renew licences. What commitment will the Minister of State give today to facilitate the small fisherman who wants to stay in business and operate at a lower level than the large fishers?

I commend the Minister of State and his officials for the extensive briefing notes made available to us in advance of today's final examination of the legislation. The briefing is essential and I wish that other Ministers would take it on board because without it we could not perform our role adequately in regard to such extensive amendments, although some are purely technical. There are 70 miscellaneous amendments and 14 new sections. That is a very extensive reworking of the Bill. On the other hand, the Minister of State has very much responded to matters raised with him and has at all times shown flexibility regarding this legislation, which has been vastly improved as a result. We will be considering only the groupings of amendments, but I specifically commend the Minister of State on amendment No. 26, which increases the maximum fine on conviction for taking or sending an unseaworthy vessel out to sea from €100,000 to €250,000. The level of fines is an indication of how we view the offence, and there are a fair number of amendments regarding unseaworthy vessels. This entire area clearly needed a great deal of work and the Minister has shown himself willing and able to respond in that regard. I recall, when this Bill originally came to us, that some concern was expressed regarding jet skis. The Minister has not only responded to that but to other issues too, making this fine legislation.

I do not wish to delay the legislation, but the Minister of State will be aware that, in certain areas, local farmers have foreshore rights to sand, gravel and seaweed. In many cases, those have not been exercised. When application has been made to extinguish foreshore rights, people turn up from God knows where to claim that they had such rights to sand, gravel and seaweed. Perhaps the Minister of State might clarify that this will not change the situation that has pertained. If it is proposed to extinguish a foreshore right, can that be done without paying compensation to those who wish to claim? Will the fact that there is now to be a six-mile extension give them extraordinarily expansive rights that they did not have before, when the foreshore was the line of demarcation between low tide and high tide or whatever the rule was?

Perhaps this is a matter for another Department on another day, but I would like to be clear on this. It has concerned us, especially along the Shannon Estuary, and it is becoming more important in view of efforts to create special areas of conservation around estuaries and so on where people such as landowners claim to have sand, gravel and seaweed rights. How will the change being made here affect what has traditionally happened when it is proposed for any purpose — for example, the building of the power station at Tarbert or that at Killiney — that foreshore rights be extinguished? Compensation had to be paid in the above cases to those who had established rights to sand and gravel through their titles and estate. I am thinking in particular of the ESB case. It was claimed that, since the board could not extinguish the foreshore rights, it could not pay adequate compensation. Will that procedure be changed by this legislation? I do not wish to delay the Bill, which is complex.

Perhaps I might respond to Senator Kenneally regarding retrospection. If this Bill is enacted as a result of an earlier signature by the President, we will revert to the position we were in for approximately 70 years. The advice of the Attorney General is that we are restoring the status quo. It confirms people who hold licences or leases in their secure occupation of the areas concerned and ensures this can now be regularised. I was first formally told of this on 16 June, and I was immediately extremely concerned and met the officials, who advised me. It was fortuitous that this Bill was going through the House and I was able to use it as a vehicle to address this matter. We would not have had as many amendments otherwise. Several amendments are typographical, but the majority result from the proposed insertion of new sections to deal with fishing vessels under 24m. and the foreshore. Part 6 specifically provides that the validation of foreshore licences and leases does not affect anyone’s constitutional rights.

Regarding Senator Daly's question on private property, the Bill will not change the position at all. If one has private property on the shoreline, it does not confer a right to bring in a bulldozer and take as much sand as one wishes. There is a responsibility for coastal protection. However, it does not change whatever rights are there, which will remain. I do not have any concerns in this area. It was sufficient for me to get this through and regularise what was there without having any concerns on other issues that might arise.

Regarding the increases in fines for owners of vessels or those responsible for their going to sea, it was welcomed in both Houses that we should increase them substantially. That has happened throughout the Bill and I hope that, if not this year, the Minister for Justice, Equality and Law Reform, Deputy McDowell, will introduce the fines Bill next year, which would ensure that fines could be increased in line with the CPI or some other index on an annual basis rather than become totally out of date. Senator McHugh referred to smaller vessels with one or two crew members. He would be thinking in particular of the new potting licences introduced last year; I am not sure how many have been issued. However, quite a few smaller fisherman were offered licences as a result of an application to us through BIM.

There will be a code of practice. I agree that we do not want red tape. We are talking about safety. Following my appointment to the Department, I met officials from BIM, the marine survey office and the Registrar General of Fishing Vessels. We issued cards indicating very clearly what we felt would be required to ensure such boats were made safe. Owing to the pressure on the surveyors in the marine survey office, we also have a list of private surveyors; I understand small boat owners have worked very closely with them.

In addition, because of our concerns for the safety of the smaller boats, we are providing grant aid of 40% for the purchase of safety equipment. I appreciate what the Senator said about red tape. As I said, we cannot compromise on safety, but we are also realists. I hope during the course of this year to have all those licences processed. The Senator might ask why we bother licensing them, since it is unnecessary. However, it means that, when they are licensed and registered, we can provide them with funding for safety equipment. If schemes are administered by BIM, people can avail themselves of funding for the notching of lobsters or whatever. It might be somewhat cumbersome and difficult for them at the moment, but it is short-term pain for long-term gain.

Perhaps the Minister of State might continue with the second group of amendments.

These amendments update for deterrent purposes in line with the rest of the Bill the penalties and other provisions of the 1947, 1979, 1992 and 2000 Merchant Shipping Acts and repeal additional enactments listed in the Schedule which are superseded by the Bill's provisions or are spent.

These amendments have been discussed in the Dáil and most found a general acceptance. The main concern of Members of my party when the Bill was debated in this House was that the enforcement of these laws will require substantial resources in terms of co-ordinating efforts between the Garda, harbour authorities and county councils. The latter may introduce by-laws and so on in this area. I wish to put on the record that we chose not to table a number of amendments during previous Stages of the Bill because their financial implications meant we did not believe they would be accepted.

Fine Gael does not have a problem with the second group of amendments. However, I draw the Minister of State's attention to the financial implications of all the regulations that are being introduced. How will this be financed and what commitment will be given by the Department of Finance in this regard?

I have similar concerns in regard to the extent of the regulations. Who will be responsible for the resulting financial?

I do not foresee any financial implications as a result of these provisions. Had I not introduced this group of amendments in regard to vessels below 24m, the financial implications for the owners of such vessels are too horrific to contemplate. In such circumstances, not one of those vessels would be able to go to sea after next Friday. We are all aware how long it takes to secure a certificate of compliance. This involves an initial application to the marine survey office after which the boat may have to be taken out of the water to be surveyed. This process can take a considerable time.

The industry will bear some costs in this regard but it has been aware of the implications of surveys for some time. The change in this area is a welcome development by the industry and it gives me time to deal with the issues involved by way of regulation. I wish to make abundantly clear that it is not a question of compromising on safety. Neither I nor any other Minister could contemplate that.

I ask the Minister of State to deal with the third group of amendments.

The third group consists of amendments Nos. 29, 31 to 36, inclusive, 43, 45, 54, 57, 65 and 71 to 73, inclusive, which relate to boats that are less than 15m. in length. These are the boats in respect of which a licence offer was made after 1 May 2004. These amendments fill major gaps in the law or strengthen existing provisions in the Bill as passed by Seanad Éireann or other Acts.

They include requirements for the weighing of certain goods vehicles before loading onto ships and provide for the outlawing of conduct endangering vessels, drunkenness of passengers and crew and unlawful interference with vessels. Amendment No. 54 refers to the nautical publications to be carried on board vessels while amendment No. 56 deals with access to and from ports and harbours. Amendment No. 57 empowers the Minister or other authorised persons to direct that vessels be moved in the interests of safety at sea. Suspensions or cancellations of the certificate of competency of the master or other crew members of a vessel not propelled by oars, on conviction of an offence under Part 3, are dealt with in amendment No. 65.

Will the Minister of State clarify whether the provisions regarding vessels less than 15 m refer also to jet skis? Are all mechanically propelled vehicles of less than 15m covered by these regulations?

The intention is that this will cover boats in general. I have already referred to the pressure under which the marine survey office and all the surveyors operate. Although jet skis are not yet registered, I propose to introduce a small vessels register, SVR, for this purpose as soon as possible. This can be done under existing legislation.

The Minister of State alluded to this during the previous debate in the House and I welcome his commitment in this regard. Most of those who own jet skis are dedicated to partaking of the sport they enjoy in a safe and responsible manner. There does not seem to be an affiliated grouping for the sport but many experienced jet skiers have called for strict regulation in terms of the purchase and licensing of jet skis. I welcome the Minister of State's intervention in this regard.

It is important to reassure the public that the majority of those who use jet skis are responsible people who wish to abide by the law, including the international laws of coastal zoning. I welcome any regulation that can be introduced to assist them in enjoying their chosen sport in a responsible manner. Jet skiing is a sport enjoyed by many hard-working people. However, there is also a reckless element engaged in the sport which includes those who put the lives of swimmers and others in danger. There must be regulation in regard to the purchase of jet skis and a proper licensing and age requirement. At present a 12 year old can buy a jet ski without any licence or certification. This is a matter that must be discussed.

I assume the regulations stipulate that all vehicles, heavy goods vehicles in particular, are weighed before they are put onboard vessels. A person attempting to distribute loads throughout a vessel needs to know the weight of each of them. I assume this is already happening and that what the Minister of State is attempting to do here is to bring clarity to the legislation in this regard.

Container traffic refers to goods carried by sea that are not loaded onboard a vessel by way of a goods vehicle. There is a significant amount of this traffic from various ports in this State to all parts of the world. Goods transported in this way are usually lifted from lorries and put onto the container ships which are particularly built for this purpose. In this regard, I understand there is no practice of weighing these containers before they are loaded onto the vessels. Will the Minister of State explain whether this issue is clarified in the legislation?

I have sought clarification on the issue of jet skis at various times during the debate on this legislation. Does the Bill allow for regulation in regard to age and licensing requirements for those participating in jet skiing? Alternatively, is it the case that any person of whatever age can simply decide to attach jet skis to a boat and proceed to froth the waters and cause disturbance? I have made this point on other Stages of this Bill. I am not a killjoy but there are a number of jet skis on inland waters such as Lough Ree which appear to be operated in a cavalier manner. I want to know whether the issues of age and licensing arrangements are addressed in this Bill. The Bill addresses safety, an issue which arises in this instance. If they are not at present covered, when will they be?

I join with others in welcoming these amendments. As an avid jet skier, I concur with Senators McHugh and Kenneally that the amendments bring clarity and will enhance safety for people who operate jet skis. I welcome any regulation which lays down clear parameters for people who would like to use and enjoy jet skis responsibly. It is positive and gets rid of any reckless behaviour, such as was referred to by the Leader in terms of Lough Ree. Over the years, a number of fatalities have occurred. As the Leader noted, while licensing and training may not form part of this legislation, they may be borne in mind in the future. A small vessel register would also be a positive measure.

Age might indeed be considered. I wish to add to Senator Kenneally's question. Does this Bill regulate the loading of containers or trucks? Vessels may be upset if ballast is poorly loaded but this would only be determined by looking inside containers.

Concerns existed around the coast over the proposal to transport disused nuclear vessels to Sellafield to be dismantled. At the time, the Naval Service and the Army kept the vessels in question under surveillance. I am not sure of the final outcome of this matter. Is there any way to strengthen the law so we will have more effective control over vessels which pass through our territorial seas? This is particularly pertinent for nuclear vessels, which are banned from our harbours, and may be done through the involvement of the European Community. A year ago, widespread anxiety existed with regard to this matter. It seems to have died away because the vessels did not come. The possibility remains that discarded vessels may be sent to harbours in the UK to be dismantled. We need to be vigilant on this matter and strong legislation is necessary to protect our coastlines and harbours.

I will first address the issue of weighing. A load on, load off container must be transported on a truck. Its weight may be calculated by means of simple mathematics. The truck, which is weighed on the way in and out, has a tare weight normally displayed on the fuel tank. From experience, we determined that the weight limit for every container should be 42 tonnes, which reduced the overall weight inside the container to 20 tonnes or lighter, depending upon what is being carried. The load may be heavy material, frozen fish or stone. That can happen. I do not anticipate any difficulties in this area.

As far as Sellafield is concerned, we all share the view that the only answer is to ensure that Sellafield is closed so we will not fear for the future. However, ships have rights of passage outside our territorial waters.

On the issues of jet skis and age, like the Leader, I am not a killjoy but want to be reasonable. Younger people may be more capable of operating jet skis. I want to examine the matter closely. It is not included in this Bill but section 47 will permit me to make provision for this issue in the future. It would take a lot of work to ensure that a process similar to car testing will apply for anybody who wants a jet ski. This Bill and the third group of amendments address conduct which endangers vessels, structures or individuals, regardless of age.

We will give powers to local authorities to introduce by-laws. While they do not have to do so at present, a suggestion was made that the introduction of by-laws be made compulsory. Who better to know than members of the local authorities? As I explained to both Houses, the function is reserved for the local authorities. Local authorities will have power, after consultation of at least one month and seven days, to introduce by-laws. I would not like to see a situation where each local authority has different types of by-laws because one might travel through counties Sligo, Donegal and Mayo. A consultation process has been carried out. A template will be developed to indicate the type of by-laws we want. It is a matter for the local authorities but we will assist them in that way.

Age is a matter to which we will give consideration. We were not able to do so with regard to this Bill because that may have consequences. However, section 47 gives me the power to address this issue. I have addressed, through that section, the issue of flotation devices and I will examine the issue of age.

I ask the Minister of State to address the fourth group of amendments.

The fourth group of amendments consists of amendments Nos. 6, 8 to 11, inclusive, 14 to 28, inclusive, 30, 37 to 42, inclusive, 44, 46 to 53, inclusive, 58 to 64, inclusive, 66 to 70, inclusive, and 74 to 77, inclusive. These are drafting amendments needed to clarify or correct the text for the internal consistency of the Bill and for consistency with other Acts which are to be cited when the Bill is enacted.

Do any Senators wish to comment? The Minister of State seems to have resolved everything.

Question put and agreed to.
Question, "That the Bill do now pass", put and agreed to.