Amendments No. 4 and 5 will be taken together.
SECTION 9
I move amendment No. 4.
In page 11, between lines 13 and 14, to insert the following subsection:
"(3) The owner or occupier of lands shall have no liability in respect of personal injuries which may be sustained by persons passing or repassing over such lands pursuant to subsection (1).".
I have slight difficulty with Deputy Barrett's amendment. Perhaps he would withdraw it and to resubmit it on Report Stage.
There has been an ongoing dispute for a long time over the liability resting on the shoulders of occupiers and owners of land and people trespassing and crossing land and the subsequent liability that falls on the occupier and owner. For that reason Fine Gael produced a Private Members' Bill last June which, unfortunately, was voted down. It endeavoured to deal not just with this type of situation but also with problems relating to tourism in the sports of shooting and fishing. It also addressed the ongoing problem of owners and occupiers preventing people crossing their land beause they feared large claims being lodged which in many circumstances would be totally unjust.
Any reasonable person would see why the authorised officer, or those engaged in saving life, cargo or wrecks should have authority, where necessary, to cross lands which they may not own. I fail however to understand why in giving that authority, the liability should rest on the shoulders of the owner or occupier of the land when he or she could in no way be held responsible. Because of our failure to deal with the changes in the law and prevent liability attaching to the occupier or owner of lands, an amendment of this nature is necessary.
I am delighted to hear the Minister indicating that he is accepting the principle of the amendment. It may force the Government to eventually introduce their own legislation as they voted against our Private Members' Bill This problem is causing a great deal of hardship for many people and is costing this country large sums of money due to losses in tourism.
I listened to what the Minister had to say about my wording. I do not have any difficulty accepting a different wording which would be legally more accurate once the principle of my amendment is accepted. I am sure my colleagues agree that it is time we dealt with this problem and the unfair liability imposed on occupiers in respect of people trespassing on or crossing their land. We could begin the process of changing that by accepting an amendment to this legislation.
I support Deputy Barrett and would like to develop the point further. None of us wish to obstruct the operations necessary to deal with vessels in distress and I am sure that no landowner would wish to obstruct them in any way. We want to clarify where liability lies in the event of damage or injury being sustained and, specifically, that it does not lie with the landowner.
The doubt about liability could last for some time because section 9, as drafted, makes no distinction between the circumstances in which an emergency arises and the period after that which may, in some cases, be a long period during which the fallout of the emergency is dealt with. What seems to be envisaged in the section is that where a vessel goes onto the rocks or some such problem arises, there is a power which ensures that the necessary equipment can be brought on to the site to save the people, the vessel and the vessel's cargo.
There have been other cases — Deputy Deenihan mentioned one earlier — where the vessel or cargo in it was left for a long time. Obviously, the apparel of the vessel is left in place. It could happen that once the immediate emergency had passed, persons had been saved and provisions made to make the wreck and cargo secure, there could still be an ongoing need for persons and vehicles to pass and repass, as is stated in the Bill.
The doubts Deputy Barrett raised, and which our amendment is intended to address, could last for some time and could, indeed, exist in cases where there is no palpable emergency. For that reason it would be even more important that the doubt as to where liability for any damage or injury might lie should be resolved quickly and unambiguously in the Bill.
I support Deputy Barrett's amendment because it is extremely important in light of the difficulties we had with our Bill dealing with occupier's liability. There is a problem because if such an incident occurs, it will encourage people to visit the site to see what is happening. There is then a danger that owners of land could be made liable not only for the people working on the site but also the sightseers.
In light of the fact that our Bill was rejected some months ago and there is no other Bill on the Statute Book to deal with the problem, although it has been promised, it is important that Deputy Barrett's amendment be accepted.
I thought this was a repetition of what is in other legislation. Around our coast, there is a rather antiquated system of life-saving, using a four wheel vehicle which is towed by a tractor, loaded with three, four or six people and brought to wherever there is a difficulty. For purposes of practice they use lands near my town. This issue of crossing and recrossing land has been going on for the past 50 years.
These vehicles are still in use and the drivers of the ones I know of have had access over land for years. I do not know the efficacy of the use of these vehicles in life-saving when one considers helicopters and so on but there has never been any difficulty about them crossing lands. Could the Minister tell me whether these vehicles are part of life-saving initiatives or what their present status is? They certainly crossed lands over the years and I imagine still so. It is a breeches buoy type operation.
The method of life-saving outlined by Deputy Kavanagh is very antiquated. It was known as the rocker car. One of them operated in my area and has been out of commission for 50 years. In its place we have a very efficient and effective cliff rescue service which wants the Minister for the Marine to supply them with a rescue craft. I hope the Minister will meet that demand in the not too distant future. I congratulate Deputy Kavanagh for maintaining the rocket car because that will become a major tourist attraction in his area in the future.
We are discussing amendment No. 5 which states that: where any damage is sustained by any person or any cargo or articles of a vessel the owner or occupier of the land to which this section applies shall not be held liable for any such damage. If, where a landowner suffers damage, the owner of the ship is not in the position to pay damages, will the state compensate the landowner? We know of incidents where ships have been wrecked and their owners cannot be traced and more often than not the insurance company does not pay. What safeguards do landowners have in those circumstances? Will the Department of the Marine pay the compensation where the insurers of the ship concerned cannot be traced?
That is the point I wanted to make. The balance in the Act is very much in favour of the Minister in so far as he is entitled to appoint authorised officers and has the power of the Garda in relation to taking possession of the ship and its goods or contents. I sympathise with the proposed amendment.
The usual situation is that a portion of land belonging to a farmer — invariably a small farmer — will be occupied for days or weeks and he will be unable to use it. The land will be destroyed and damages may be in the region of £500 to £1,000 or £2,000 at the most. This section expects that small farmer to bring proceedings against the vessel, cargo or articles. I agreed with Deputy Sheehan that ascertaining ownership, insurance cover and so on often need the best experts in the Department of the Marine and can take up to two or three months.
The Minister has possession of articles under other provisions in this Bill and there must be fairer way to deal with this situation. The landowner could be indemnified by the Minister who could then claim over any other claims against ship owner of whom he has been notified. These claims may be determined by international or local arbitration. The farmer who is expected to allow access and usage of his land is being left out on a limb. Perhaps the Minister could consider a fairer balance on Report Stage because this involves very small claims for damage to land.
Deputy Kavanagh described privately to me how the rocket carrier works. I should say "flare carrier" as terming it a rocket launcher gives it a different meaning. It sounded like something one would see in a comic opera in the last century or something from the Keystone Cops. He said it is still used around the coast. At one time this rocket carrier was carried by horse and cart and is now carried by a tractor. In the day of helicopters, launches and fast transport, if that is true, the Minister should invite us to see what is on offer in terms of safety precautions and more efficient methods.
The Minister should not forget that the maritime museum in Cobh in his own constituency is a grim reminder of those who perished at sea. If the practice that Deputy Kavanagh and Deputy Sheehan described — they know more about it than I do — is still used, it should be abandoned immediately. It is a waste of time and money. It makes a laughing stock of us as it is totally archaic and has no place in the modern safety precautions for our maritime industry. I hope this is the last we will hear of this practice.
This section is specifically to facilitate any person giving assistance in saving lives or the cargo of a ship. The intention seems to be to deal with a situation where an ordinary citizen comes on the scene and is concerned to ensure that an emergency at sea is dealt with as quickly as possible. The purpose of the section is to facilitate access to property so that an ordinary citizen can lend assistance in emergency situations. That is the context in which we should be looking at these amendments.
If we are imposing a duty on the owner of the property to facilitate that citizen giving aid to the people in distress, we should not impose a further burden on the owner or occupier of the land. The Minister's amendment indicates that no liability in respect of personal injuries sustained by people passing over land should attach to the occupiers of the land. That is a highly commendable amendment. It is important because the owner of the land has a duty to facilitate a person but he should not have a duty in relation to personal injuries that occur as a result of that person entering his land.
The second amendment seems to deal with an ongoing situation whereby, over an extended period, the damage could be sustained by somebody passing over the land with cargo taken from the ship. I do not think that was the intention of the section in the first place because the section relates to a vessel in distress and what happens to a person taking it upon themselves to act in that situation. If it does extend to the situation where cargo and articles from the vessel would be taken over the land and a vehicle could be used, the same principle applies. If the owner is facilitating the transportation of goods from the ship, that owner should not be penalised and there should be an assurance to that effect in the section. The Minister's first amendment is essential and the spirit of the other amendment should also be recognised. The owner should be facilitated by the State rather than having to go to court to get damages.
Would I be right in saying that the Minister anticipates introducing another amendment on Report Stage in relation to this issue?
That depends on Deputy Barrett.
We will talk to Deputy Barrett in a moment. I share the concern about occupier's liability. The owner or occupier of land should not be liable in respect of personal injuries. One has to be specific as to who will be liable in the event of anything happening. This is one of the problems that has arisen in relation to the coastal and cliff services. Nobody wants to be liable yet people are risking their lives. I ask the Minister to be specific when introducing an amendment on this.
I share the views expressed by many of my colleagues about a farmer's ability to confront others where there would be a dispute about damage to land. I realise that the Department of the Marine are often hesitant in confronting these people because of financial implications. However, I assume that in the event of a dispute, the Department would be dealing with a multinational or an owner to address liability. The burden should not be on the owner or occupier, it should be added to Department of the Marine's claim against those liable.
I share Deputy Barrett's views on the amendment. I have no problem with the spirit of it, we are of the same frame of mind. The owner of the land should not be liable for any damage or personal injuries sustained by those passing across it. However, this occurs only in incidents of distress, it does not occur on an ongoing basis where work is being carried out on the vessel. The authority would only cross the land in incidents of distress while rendering assistance to such a vessel.
We agree the owner or occupier of the land to which this section applies should not be liable for damage to any cargo or articles of a vessel or personal injuries. However, the owner of the land may, begrudgingly or otherwise, deliberately damage the cargo or property from the vessel and under this amendment he would not be liable for damage caused. I will look at this amendment again to see if we can rephrase it to cover everything. If the Department removes the authority from an individual and allows authorised officers cross his land and damage is done to cargo or property from the vessel, the individual may ask who are these people and decide to push them off a cliff. He would not be liable due to the immunity given in this amendment.
Would he be liable under a different section? Is there a section dealing with taking unlawful possession of cargo and damaging it? Surely if the owner of the land maliciously damaged cargo or property from the wrecked ship, he would be liable under a different section.
He could claim immunity under that amendment, if accepted. While I accept the spirit of the amendment, it must be rephrased so that an individual who maliciously damages property will not be immune from liability. That is the problem.
The Minister's amendment only refers to personal injuries. It would be unfair in normal circumstances for the owner or occupier of the land to be held responsible for damage to cargo.
I agree.
I agree with the Minister's point, but in normal circumstances even if somebody else causes the damage, the owner would be liable because it is on his land.
I agree that he should be covered in that instance. However, a loophole exists where an individual may damage property maliciously and be immune from prosecution as a result of this legislation.
Would the Minister like me to resubmit the amendment on Report Stage?
That would be best. We will look at it again and maybe get together to rephrase it so that it will cover the spirit of our amendments. It would be dangerous to accept the amendment as drafted. We have no problem with personal injuries, but we do with cargo damage.
In order to speed up the process, I will resubmit an amendment on Report Stage because the Minister has accepted the spirit of the amendment.
Amendment agreed to.
Amendment No. 5 not moved.
Question proposed: "That section 9, as amended, stand part of the Bill."
The Minister did not answer my question about the cowboy ship owner who cannot be traced and the insurance agent——
That is not relevant to this section. Another section deals with serving notice on owners.
Who will compensate the landowner? Will the owner have to go through costly litigation only to find at the end of the day he will not get anything?
The Bill states that one must claim from the owner. At the same time, the Department would do everything in its power to identify the owner so that the landowner would not be out of pocket for any damage to his property.
For 13 years the Department has tried to identify the owner of the Bardini Reefer in Castletownbere, the wreck is still there. The same applies to the landowner. Who will compensate him? Will the Department foot the bill?
In fairness to Deputy Sheehan, while subsection (2) relates to the problem raised, subsection (3) states:
Where the owner or occupier of any land ——
(a) impedes or hinders any person in the exercise of any rights given by this section,
(b) impedes or hinders the deposit of any cargo or other article recovered from the vessel. . .
The owner cannot hinder the deposit of any article or cargo left on the land. Surely a provision could be included on Report Stage that in respect of damage caused to the owner of the land, he could either seek recovery from the owner of the cargo or a first charge on the cargo in relation to the damage caused. In other words, it is one way traffic which could be overcome if the land owner or occupier is given a first charge on the cargo if it is not recovered.
The Minister has indicated that he will consider this before Report Stage.
I thought the Minister said "no".
The State will not pay, but subsection 2 states:
Any damage sustained by an owner or occupier, as a consequence of the exercise of the rights given by this section, shall be a charge on the vessel, cargo, or articles in respect of or by which damage is occasioned, and the amount payable in respect of the damage shall, in case of dispute, be determined and shall, in default of payment, be recoverable in the same manner as the amount of salvage is determined or recoverable. That covers the Deputy's point.
In the case of the Bardini Reefer we are unable to identify the owner or the insurance company.
That is a separate issue because no damage as such has been caused to the landowner.
If damage is done to a landowner, who will compensate him?
A provision in the Bill ensures that he will receive compensation from the sale of the cargo and the salvage of the ship.
Is that agreed?
That provision is in the Bill. The scrap value of the ship will be held and the first charge would go to those claiming compensation.
Is the Deputy claiming ownership of land on which the Bardini Reefer is located?
The ship is in the jurisdiction of the Castletownbere harbour master and I had to fight hard to give him that jurisdiction.
Question put and agreed to.
Section 10 agreed to.