Skip to main content
Normal View

SELECT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate -
Tuesday, 7 Jun 2005

Maritime Safety Bill 2004 [Seanad ]: Committee Stage.

As there is a large number of amendments, I ask members to attempt to conclude this part of the Bill by 12.55 p.m. in order that the Minister can make a statement on the situation with the scallop fishermen in Kilmore.

Section 1 agreed to.
SECTION 2.

As amendments Nos. 2 to 4, inclusive, are related to amendment No. 1, they will all be discussed together.

I move amendment No. 1:

In page 6, subsection (1), line 9, to delete "sea" and substitute "seas".

These are four drafting amendments to avoid legal doubt.

Will the Minister of State explain the implications of amendment No. 4?

Amendment No. 4 proposes to move the definition from section 5 to section 4. It is a drafting amendment to correct and define the reference to the territorial seas and inland waterways of the State in accordance with the Marine Jurisdiction Acts 1959 to 1998.

Why does the reference to inland waterways need to be deleted?

It will be contained in the new definition in section 4.

Amendment agreed to.

I move amendment No. 2:

In page 6, subsection (1), line 10, to delete "sea" and substitute "seas".

Amendment agreed to.

I move amendment No. 3:

In page 6, between lines 12 and 13, to insert the following:

"‘inland waters of the State' and ‘territorial seas of the State' have the meanings assigned to them in the Maritime Jurisdiction Act 1959 (as amended by the Maritime Jurisdiction (Amendment) Act 1988);"

Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 and 4 agreed to.
SECTION 5.

I move amendment No. 4:

In page 7, to delete lines 34 and 35.

Amendment agreed to.

I move amendment No. 5:

In page 8, line 1, to delete "with" and substitute "within".

This amendment is to correct a typographical error in paragraph (a).

Amendment agreed to.

I move amendment No. 6:

In page 8, between lines 28 and 29, to insert the following:

"‘vessels' includes all vessels in Irish waters and Irish vessels abroad be they commercial, recreational or fishing vessels and all vessels in Irish waters including foreign vessels;".

This amendment is important as it would specifically imply that laws laid out in this Bill must be abided by by foreign vessels in Irish waters. This would ensure greater care and safety on the part of foreign, as well as Irish, vessels, making the waters safer for everyone.

This amendment aims to ensure all vessels would be covered, including jet skis. Part 2 of the Bill relates only to the regulation or control of certain recreational craft of any origin in Irish waters.

Will the Minister of State agree that ethos of the Bill would be enhanced by the amendment?

The matter is covered in Part 3.

That is not specifically stated in Part 3.

It specifically covers jet skis. A more comprehensive provision is contained in later Parts.

I will take the Minister of State's word on it.

Amendment, by leave, withdrawn
Section 5, as amended, agreed to.
SECTION 6.

Amendments Nos. 7 to 12, inclusive, are related and will be discussed together.

I move amendment No. 7:

In page 8, subsection (1), line 30, to delete "may" and substitute "shall".

By-laws will be made for the regulation and control of the operation of craft. While the Bill regulates the use of recreational craft, it does not require it to be done. This amendment would ensure by-laws were made. On Second Stage Members spoke about the long campaigns conducted by colleagues, particularly by those on county councils. This amendment would ensure their campaigns would succeed.

Amendment No. 8 proposes to delete all words from and including "regulating" in line 30 down to and including "class" in line 31. The current drafting may be interpreted to limit the matters that can be dealt with in by-laws. There is a grammatical problem with lines 30 and 31 which refer to the operation of craft by a local authority, etc. This is ambiguous. In the Seanad the Minister of State stated the clause was necessary to define the scope of the powers available. However, the Labour Party does not believe this is correct as the scope is spelled out later in the section. This amendment should be accepted on the basis of better drafting.

Amendment No. 9 proposes to include in by-laws the licensing and registration of users of jet skis or other personal watercraft. There has been a long-standing campaign to regulate the use of small pleasure craft, particularly jet skis, in Baldoyle Bay and other parts of Dublin Bay. We have examined regulations in other jurisdictions and the dangers created for other water users. The 2003 Coast Guard report stated incidents involving recreational craft and the Coast Guard had significantly increased in recent years. In New South Wales, Australia an individual must have a personal watercraft driver's licence to operate a jet ski. A jet ski driver must pass a qualifying test to be issued with one. Therefore, minimum standard of safety rules could be obtained that would be practised by the jet ski driver. This is an opportunity for the Minister of State to introduce an important innovation in the use of these craft. While everyone welcomes the increasing availability and use of pleasure craft, it is important they are used safely.

Amendment No. 12 proposes to insert, between lines 13 and 14, the phrase "any such other matters as in the opinion of the authority concerned are ancillary or related to the foregoing matters". The Labour Party wants to ensure the by-laws regarding jet skis and other small pleasure craft are comprehensive. For example, a by-law prohibiting a person from being carried on a pleasure craft which is being unlawfully operated might be held to be outside the scope of the requirement that by-laws regulate the operation of craft. There is a good case to be made for a general catch-all clause to permit a local authority to provide for ancillary or incidental matters. The amendment would not give carte blanche to local authorities but merely additional flexibility. It seeks to give them greater powers to regulate these craft.

Amendment No. 10 is a drafting amendment which is required to make it clear that by-laws may provide for restrictions on the use of craft in certain waters or at certain times as opposed to an outright prohibition on their use, as the current wording provides. A by-law made under the legislation as currently framed would provide for an outright prohibition but that is not the intention. I do not think the House would be anxious to provide for such a prohibition.

Amendment No. 11 is also a drafting amendment which is required to make it clear that specified classes of craft, rather than all craft, may be prohibited from or restricted in using certain waters at certain times. Originally the legislation was all-embracing. This amendment is more restrictive and focused.

On amendment No. 7 tabled by Deputy Broughan, if we were to include the word "shall" rather than "may", it could be a waste of effort and resources to require each local authority to make by-laws in situations where there was no need for them. It is the members of local authorities who best understand their areas and they should be left with this discretion. It is also a matter for the relevant local authority to decide whether there is a need to make by-laws under section 6 of the Bill. The making of by-laws is a lengthy process involving public consultation and a waiting period before implementation of at least one month and seven days. It should be undertaken only if there is a clear need. Given the many important tasks local authorities must undertake, it would clearly be a waste of effort and resources to needlessly require them to make such by-laws. I do not want to impose this requirement on them as there may be no necessity for such by-laws in those local authority areas without waterways or lakes. We should leave the matter to their discretion. I have no doubt that any local authority which needs to make by-laws has full powers to do so under section 6 of the Bill. This is a clear advance on the current position. In the case of city and county councils, the making of by-laws is a matter for the elected representatives who will make them if there is a clear need to do so.

On amendment No. 8, the suggested deletion by Deputy Broughan would mean a lack of focus in the section, the sole purpose of which is the regulation and control of craft of a specified class. I refer to Bunreacht na hÉireann which states the power to make by-laws must be within specific parameters laid down by the Oireachtas. I am advised that there can be no open-ended power to make by-laws.

On amendment No. 9, the licensing or registering jet skis or other personal watercraft is a matter for navigational provisions rather than a piecemeal arrangement varying from one local authority to another. This would unduly interfere with the use of craft across local authority boundaries. The Deputies and I raised the question of establishing a small vessel register, to which I am committed. It would include jet skis and other personal watercraft. The matter is under consideration by the Department in terms of public consultation. I hope to establish a register in due course.

Amendment No. 12 would not accord with the constitutional provisions for secondary legislation and the Oireachtas as primary legislator to set the policies and principles and limits within which secondary legislation may be made. There can be no question of open-ended powers for relevant local authorities to make by-laws at will.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 8, subsection (1), between lines 39 and 40, to insert the following:

"(i) the licensing and registration of users of jet skis or other personal watercraft,".

Amendment put and declared lost.

I move amendment No. 10:

In page 8, subsection (1)(i), line 40, after "prohibition" to insert "or restriction".

Amendment agreed to.

I move amendment No. 11:

In page 8, subsection (1)(i), line 42, after "craft" to insert "or specified classes of craft".

Amendment agreed to.
Amendment No. 12 not moved.
Section 6, as amended, agreed to.
SECTION 7.

I move amendment No. 13:

In page 10, subsection (1)(d), line 11, to delete “7” and substitute “28”.

This amendment relates to the making and publication of by-laws. Submissions can be considered by the relevant local authority after a consultation period of not less than seven days after the expiry of the period for inspection of the draft. I want to extend this period, based on my experience with planning in the two local councils in my constituency, Dublin City Council and Fingal County Council. I always find that the consultation periods provided for are too short, making matters difficult for interested parties, public representatives in particular. On that basis I propose that the period be extended to 28 days.

I have a difficulty with this amendment as I am anxious that the period of time involved is kept to a minimum. I am not trying to stymie anyone submitting observations but section 7 allows a minimum period of five weeks — one month and seven days — for members of the public to comment on the by-laws proposed by each local authority. Having served on a local authority for a number of years, I believe this is a reasonable period, particularly if by-laws are to be made urgently. It would be a matter for a local authority to decide if a longer period was required. Therefore, there is some discretion. I fully understand that if by-laws are published at the end of July in any year, August would not be a great month in which to expect people to submit their views. We should, therefore, leave it to the discretion of the relevant local authority to decide if a longer period is required, as it sees fit. This could differ from one local authority to another. I hope this will be seen as an acceptable compromise.

Amendment, by leave, withdrawn.
Section 7 agreed to.
NEW SECTION.

I move amendment No. 14:

In page 11, before section 8, to insert the following new section:

"8.—Each coastal local authority shall have an agreed emergency fire plan to deal with emergency situations. The plan will include a mechanism for the Fire Officer to recoup costs for fighting fires on board vessels at sea, at ports and at harbours.".

As the Deputy will appreciate, every city and county council has in place a major emergency plan which is prepared and updated regularly with an input from the local authority fire service, the Health Service Executive and the Garda Síochána. The Fire Services Act 1981 empowers local authority fire services to charge fees for services but only some do so. I suggest this amendment is outside the scope of the Bill. Therefore, I cannot accept it.

While each local authority has an agreed emergency plan, there is no specific focus on ports and harbours. My amendment would allow for greater clarity in fighting fires on board vessels at sea and in putting in place a plan in port headquarters that would have to be followed in an emergency.

The fire service is a statutory authority and must do what it has to do. The amendment is outside the scope of the Bill. The emergency plan in each local authority area will cover the matters of concern to the Deputy.

Will the Minister of State have a working dialogue with the port authorities on displaying the fire plan for ports and harbours? To the best of my knowledge, I have not seen it displayed in Sligo.

I will certainly pursue that matter.

Amendment, by leave, withdrawn.
Section 8 agreed to.
Sections 9 to 13, inclusive, agreed to.
SECTION 14.

As amendments Nos. 16 and 17 are related to amendment No. 15 in the name of the Minister, it is proposed to discuss them together. Is that agreed? Agreed.

I move amendment No. 15:

In page 13, subsection (1), line 40, after "dangerous" to insert "navigation or".

Amendments Nos. 15 to 17, inclusive, are drafting amendments which are required for consistency with the titles of sections 22 and 23 and section 13(1) and (2) of the Bill. Section 22 refers to careless navigation or operation of vessels while section 23 deals with dangerous navigation or operation of vessels. These are drafting amendments which are required for consistency with the long title.

Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.

I move amendment No. 16:

In page 14, subsection (1) (a), line 9, after “careless” to insert “navigation or”.

Amendment agreed to.

I move amendment No. 17:

In page 14, subsection (1) (b), line 10, after “dangerous” to insert “navigation or”.

Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.

We now come to amendment No. 18 in the name of Deputy Perry. Amendments Nos. 27, 30, 31, 38, 42, 46, 47, 49 and 53 are cognate. They will all be discussed together.

I move amendment No. 18:

In page 15, between lines 23 and 24, to insert the following subsection:

"(3) Coast guards and other maritime officials shall have the power to detain a vessel until the Gardaí arrive in cases where subsection (1) has not been complied with.”.

This amendment would apply to prescriptive offences laid down in the Bill — the consumption of alcohol or drugs while in charge of a boat and behaviour which could be a menace to others. Those involved in such offences could leave the area before gardaí arrive. It is imperative, therefore, that this subsection is added to give Coast Guard and other maritime officials increased powers until gardaí arrive.

I have been advised that there is no need for any authorised person appointed by the Minister under section 35 to detain a vessel until a member of the Garda Síochána arrives. Part 3 of the Bill recognises the need for authorised persons to be able to act on their own on the spot as circumstances may warrant, subject to the caveat, expressly provided for in section 37, that any person arrested by them must be handed over to a member of the Garda Síochána as soon as it is possible to do so to be dealt with by the Garda Síochána according to law. There will be circumstances when a garda will not be available. If we were to accept the amendment, we would not be able to ensure the intention to act on the spot would be met.

Would it strengthen the role of authorised officers if they were given increased powers in their interpretation of the concept?

Would it be better if the authorised officers were specified in the Bill?

On a related question, does the Coast Guard not have the power to arrest under existing law? In all circumstances must the Coast Guard wait for the transfer of a person to the Garda Síochána?

The Coast Guard may detain the offender but must bring him or her ashore for a member of the Garda Síochána to arrest him or her. I am trying to flesh out the point made by Deputies Perry and Broughan on giving greater powers to authorised officers. I have been advised this could create a problem. It is a matter for the authorised officers to detain and then pass the offender on to the Garda Síochána.

Amendment, by leave, withdrawn.
Section 16 agreed to.
Sections 17 to 19, inclusive, agreed to.
NEW SECTIONS.

I move amendment No. 19:

In page 17, before section 20, but in Part 3, to insert the following new section:

"20.—(1) Persons shall—

(a) comply with direction given under this Act, and

(b) in complying with such directions, do so in a manner which avoids risk to human life.

(2) It is an offence to contravene subsection (1).”.

Will the Minister of State comment on this amendment?

I do not fully understand its purpose. The Bill makes specific provision in this regard. Sections 11 and 32 provide for penalties in the case of non-compliance with directions from persons of authority. The Deputy's intention is covered by the provisions of these sections.

I take the Minister of State's point.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 17, before section 20, but in Part 3, to insert the following new section:

"20.—The Act of 1992 is amended in section 2(1) by the insertion, in the definition of ‘vessel', after ‘navigation' of ‘and includes personal watercraft and recreational craft'.".

The purpose of this amendment is to ensure the 1992 Act would be amended to include personal watercraft and small recreational craft such as jet skis in the definition of "vessel".

The existing definition of "vessel" in section 2 of the Merchant Shipping Act 1992, as amended by section 44(1)(e) of the Merchant Shipping (Investigation of Marine Casualties) Act 2000, includes any ship or boat, any other vessel used in navigation and personal watercraft. I am advised that the addition of the words “and recreational craft” is unnecessary because the definition to which I referred is open-ended. The addition of the words “personal watercraft” in the 2000 Act may serve to illustrate that the inclusion of such specifics are not of value, given the already wide scope of the definition of “vessel” which is all-embracing. The Deputy’s amendment is, therefore, superfluous.

Amendment, by leave, withdrawn.
SECTION 20.

Amendments Nos. 21 to 23, inclusive, are related and will be discussed together.

I move amendment No. 21:

In page 17, lines 17 to 29, to delete subsections (1) and (2) and substitute the following:

"20.—(1) If a vessel, having regard to the nature of the service for which she is intended, goes out or attempts to go out to sea or into waters in such an unseaworthy state that the life of any person is likely to be or is endangered, then, the person in command or in charge, and the owner, of the vessel and any person sending her to sea, who knows or could have discovered by the exercise of ordinary care that the vessel is in such an unseaworthy state, is guilty of an offence.".

The purpose of these related drafting amendments is to make it clear that the prohibition on sailing unseaworthy vessels applies to the going out to sea or into waters with such vessels. This is the entire purpose of section 20. Amendment No. 22 serves to increase from €100,000 to €250,000 the maximum fine on conviction on indictment for taking or sending an unseaworthy vessel out to sea or into waters without good reason. Such an offence is graver than the other offences defined in the Bill, for which the maximum fine is set at a standard €100,000 on conviction on indictment. The maximum fine for a similar offence was set at £50,000, or €63,500, in section 4 of the Merchant Shipping Act 1981 which is comprehensively replaced by section 20 of this Bill. I am anxious to take this opportunity to increase the fines and send out a clear message regarding the gravity of such an offence.

I welcome these amendments which are obviously designed to strengthen the legal disincentives for those who may seek to get away with bad behaviour at sea. Will the Minister of State confirm that the new subsection will apply to a person who has hired a vessel? The existing subsection (2) is very clear in this regard in that line 25 contains the reference, "owner or hirer of the vessel". However, the proposed new subsection refers only to "the person in command or in charge, and the owner, of the vessel". Does this allow for a case where the person who has hired a vessel is not the same person in command or in charge of it?

This provision is all-embracing and includes the hirer, sailor, owner or agent.

Is the Minister of State satisfied that the apparently narrower prescription contained in the new subsection is superior to that contained in the existing subsections (1) and (2)?

I am advised this provision is all-embracing and will allow nobody to escape the stipulations of the section.

Amendment agreed to.

Will the Chairman agree to interrupt proceedings to allow the Minister of State to make an announcement of profound import?

Progress reported; Committee to sit again.
Top
Share