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Select Sub-Committee on Transport, Tourism and Sport debate -
Thursday, 23 Oct 2014

Merchant Shipping (Registration of Ships) Bill 2013: Committee Stage

The purpose of the Bill is to revise the law on the registration, national character, mortgage, sale, transfer, ownership and measurement of Irish ships, to repeal the Mercantile Marine Act 1955, to amend certain enactments in this regard, to amend the definition of "Safety Convention" in the Merchant Shipping (Safety Convention) Act 1952 and to provide for connected matters.

I welcome the Minister for Transport, Tourism and Sport, Deputy Paschal Donohoe, and his officials. As a number of amendments are related, they will be grouped together.

I ask that all mobile telephones be switched off.

Sections 1 to 8, inclusive, agreed to.
SECTION 9

I move amendment No. 1:

In page 13, line 21, to delete “section 18(8)” and substitute “section 18(10)”.

The Chairman has outlined the objective of the Bill, which is to deliver a more effective register of Irish vessels. By so doing we will create an environment in which our law can be better applied in respect of issues such as safety at sea and pollution.

The section provides for the establishment of a new Irish register of ships. The register will consist of different parts for the different types of ships and for the different registration purposes. The types and particulars of ships to be registered will be registered on each part of the register and will be prescribed via regulations.

Section 9(9) confirms that registration on the register may be granted for an initial period of up to five years and may be subject to ongoing compliance with registration requirements or conditions attached to registration which are provided for in section 18(10) and not in section 18(8).

The amendment is designed to correct that and draws the Bill's reference to the correct subsection.

Amendment agreed to.
Section 9, as amended, agreed to.
Sections 10 to 22, inclusive, agreed to.
SECTION 23

Amendments Nos. 2 to 4, inclusive, and 15 are related and may be discussed together.

I move amendment No. 2:

In page 27, lines 10 to 12, to delete all words from and including "ship." in line 10 down to and including "offence." in line 12 and substitute the following:

"ship to which it relates.

(9) Where the is a failure to comply with subsection (8), the owner or master of the ship concerned commits an offence and is liable on summary

conviction to a class C fine.".

Amendments Nos. 2 to 4, inclusive, and 15 relate to section 23 which deals with the issue of temporary registration of recreational craft under 24 m in load line length. Section 24 deals with the issue of visitor registration; section 28 with the certificate of registry and section 64, summary penalties.

Amendment No. 2 proposes technical amendments to section 23(8) and (9). The amendment to subsection (8) makes it clear that the certificate of registry of temporary registration must be carried on board a ship to which the certificate relates. When a vessel is temporarily in Irish waters and its owner has registered it in the register that the Bill is enabling and updating, the amendment makes it clear that the certificate must be carried on board the ship and that it must refer to the ship for which it has been granted. The wording of subsection (9) is being revised in the interests of clarification to provide that the penalty on summary conviction is a class C fine, that is, a fine not exceeding €2,500. This approach is consistent with the provisions in relation to non-compliance with the certificate of registry requirements generally, as contained in section 28(12) of the Bill which also provides for a class C fine on summary conviction. For all of the potential convictions in respect of the temporary registration of craft, we are ensuring a similar sanction will apply, that is, a class C fine.

Section 23 allows qualified persons who normally live on the ship and purchase a recreational craft under 24 m in length outside the State to register the recreational craft on a temporary basis for the purposes of bringing it from abroad to a port in the State. This provides a facility for ship owners as they may be required to be registered when operating in certain waters. Subsection (8) requires that the certificate be carried on the ship at all times. Subsection (9) provides that where this does not happen, the owner or master of the ship will be held responsible for the offence.

Amendment No. 3 refers to section 24(6) and clarifies that the penalty for an offence in this area is a class C fine. Amendment No. 15 amends section 64 to add references to section 20(9), section 23(9) and section 24(6) to the saver provision. This provides that, except when provided otherwise in particular sections of the Bill, summary conviction for an offence under the Bill will result in a class A fine. These sections listed in brackets in section 64 provide for fines other than a class A fine. They provide for class C or D fines, €2,500 or €1,000, respectively, on conviction or higher fines on indictment. Amendment No. 15 adds references to sections 23(9) and 24(6) which provides for a class C fine on summary conviction and a fine not exceeding €50,000 on conviction on indictment.

Amendment No. 4 is a technical amendment which reinforces the meaning of the word "ship" in section 28(2) to make it clear that it is the owner of the vessel or ship, in respect of which the certificate of registry has been granted, who may apply to the Minister for an extension of the certificate concerned.

Amendment agreed to.
Section 23, as amended, agreed to.
SECTION 24

I move amendment No. 3:

In page 28, to delete lines 1 and 2 and substitute the following:

"(6) Where there is a failure to comply with subsection (5), the owner or master of the ship concerned commits an offence and is liable on summary

conviction to a class C fine.".

Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 to 27, inclusive, agreed to.
SECTION 28

I move amendment No. 4:

In page 30, line 29, after "ship" to insert "to which it relates".

Amendment agreed to.

Amendments Nos. 5 to 7, inclusive, and 16 are related and may be discussed together.

I move amendment No. 5:

In page 31, between lines 2 and 3, to insert the following:

"(5) Where there is a failure to comply with subsection (4)(a), the owner or master of the ship concerned commits an offence.".

These amendments to section 28 are of a technical nature. Section 28 provides for the issuing of a certificate of registry by the Minister when a ship is registered in the Irish register of ships. Provision is made for different types of certificate of registry for different purposes, as well as for duplicates and replacement certificates. The section also imposes requirements in relation to the carriage of the certificate of registry on the ship and provides for offences relating to the use of the certificate. I am proposing in amendment No. 5 to insert a new subsection (5) and a specific offence provision where there is a failure to comply with the general requirement in subsection (4)(a) to carry a certificate of registry on board a ship at all times. The amendment clarifies that where this requirement is not complied with, the owner or master of the ship concerned will be held responsible for the offence. The related amendment No. 6 amends the existing subsection (6) to ensure a specific offence provision for non-compliance with subsection (4)(b) and (c) and the renumbered subsection (6) is contained in the Bill.

Amendment No. 7 is a further consequential technical amendment to the existing subsection (12) to include a reference to the new subsection (5) which will be inserted as a consequence of amendment No. 5 and make it clear that a person who fails to comply with the requirements of the subsections listed is liable on summary conviction to a class C fine.

Section 65 allows for the prosecution of both the owner and the master of a ship in the case of specified offences under the Bill where it is shown that the owner or the master, as the case may be, consented to, approved or connived in the commission of the offence.

Amendment No. 16 arises from the insertion of subsection (5) in section 28 and will add a reference to an offence under section 28(5) to the list of offences for the purposes of section 65.

The offence in section 28(5) relates to failure by the owner or master of a ship to comply with the general requirement to carry a certificate of registry on board the ship at all times. The inclusion of a reference to section 28(5) in the list of specified offences in section 65 brings consistency to the section, which already includes a reference to sections 23(9) and 24(6) where offences relate to failure by the owner or master of a ship to carry the certificate of temporary registration or a visitor registration, respectively, on board the ship at all times.

Amendment agreed to.

I move amendment No. 6:

In page 31, line 5, to delete “subsection (4)” and substitute “subsection (4)(b) or (c)”.

Amendment agreed to.

I move amendment No. 7:

In page 31, line 39, to delete “subsection (6)” and substitute “subsection (5), (6)”.

Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30
Question proposed: "That section 30 stand part of the Bill."

The ports of registration lists must be expanded. Fishing vessels should be able to register in their home ports and I will seek an amendment to provide for that. It would be easier administratively and more convenient. It should also allow for fishermen to have boats with the letters of their home ports on the-----

There is no amendment tabled by the Deputy but he has the opportunity to table one on Report Stage if he wishes. The Deputy will be aware that the existing ports of registry are Arklow, Cork, Drogheda, Dublin, Dundalk, Galway, Limerick, Skibbereen, Sligo, Tralee, Waterford, Westport and Wexford. Historically, these ports have been chosen because they were the locations of local registers and currently these 13 ports are designated in accordance with the Mercantile Marine Act 1955. That is the current position. If the Deputy wishes to table an amendment on Report Stage, we can discuss it further.

Question put and agreed to.
SECTION 31
Question proposed: "That section 31 stand part of the Bill."

I wish to discuss the possibility of other amendments. Logically, they would go between sections 30 and 31, but I can discuss it at the end of this debate because it is not an amendment to any of the existing sections.

If the Deputy wishes to raise it now-----

I can raise it at the end of the debate, if you prefer. It refers to the registration of ships generally. On Second Stage, I raised the issue of being able to register maritime liens and particularly liens for judgments which have not been satisfied. I am referring, for example, to the following: judgments for claims for wages and sums due to the master's officers and other members of the vessel's complement; claims in respect of loss of life or personal injury; claims for reward for salvage; claims for port canal and other waterway dues and pilotage dues; and claims based on tort arising out of physical loss or damage caused by the operation of the vessel. These specific liens are listed in the International Convention on Maritime Liens and Mortgages 1993, which I raised on Second Stage.

If a new register is being established, and I greatly welcome that it is, it would appear to be logical to be able to register these liens. After all, it is merely enforcing the judgments that people would obtain for any of the above reasons, including claims for wages. I would welcome the insertion of a section which includes the possibility to register such judgments.

There should be a specific provision whereby a ship could not be deregistered without having satisfied those liens. Obviously, to register a ship somewhere else, a person would have to have a certificate of deregistration from the place where it was registered previously, such as Ireland. It would be logical that one would have to satisfy the lien before one could deregister the ship.

I wish to raise that point at this stage because if I do not raise it now, I cannot table such amendments on Report Stage.

Now that the point has been raised an amendment can be tabled on Report Stage in that regard. As the Deputy said, he raised the issue of liens and including it in this Bill on Second Stage. Much of this relates to the International Convention on Maritime Liens and Mortgages 1993, which we have not ratified. Few countries have ratified it due to its complexity. It is such a big area that it would be difficult to contain it within the parameters of this Bill. That said, if there is a facet of that convention or a perspective of the Deputy's that he believes could be addressed, he could share it with me as a draft amendment and I will engage with him then.

I welcome that. I am not necessarily advocating that Ireland accede to the convention at this stage but that some provision be included in the Bill whereby if there is a judgment for non-payment of wages or for any of the issues I mentioned, it could be registered as a lien on the register and that the register be public. It is important that people be able to see what judgments are registered, just as the land registry is public. I note from the correspondence I have received and from what the Minister said on Second Stage that it is envisaged that the register will be public.

Not all aspects of it will be public, but in general it will be public. It would be useful for the Minister to state the general principle that it will be publicly available, although parts of it will not be publicly available, and that people can register judgments. My particular concern would be non-payment of wages. To the best of my knowledge we do not have outstanding cases on this issue, but it would be horrible if Ireland became a state where people did not have to satisfy court judgments on payment of wages. These are the aspects of the convention. In addition, one should not be able to deregister without satisfying them. These are the issues I will raise with the Minister and I thank you, Chairman, for the opportunity to raise them now.

I will respond briefly on the two points the Deputy raised. Nothing I say here prohibits him from tabling an amendment on Report Stage, but I will outline my current assessment of the issue.

The Deputy's point about public access to the register is correct. Many aspects of the register, which will have different sub-registers below it, will be available for public access. It will also be possible to obtain a certified copy of particulars entered in a register book on the registry of a ship and to view or obtain copies of transcripts of registry for any registered ship at the general register and record office. There might well be other aspects of it that are not available for public view, but many of the areas that would be of most interest to the public will be available for public access.

The Deputy might be considering a potential amendment relating to the issue of judgments against ships and so forth.

I draw the committee's attention to section 53 which provides the power for the High Court, on the application of an interested person, to make an order prohibiting any dealing with a registered ship or a share in a registered ship for a specific period and on terms and conditions that it decides.

Under section 53(2), a court order is binding when served on the Minister. This means that a ship cannot be removed from the Irish register of ships while the order is in force. I realise this does not address entirely the point the Deputy has made, but I am seeking to emphasise that, in circumstances in which an appeal is made to the High Court, the owner of the vessel is prohibited from doing certain things.

I accept that. When a person obtains a judgment, he or she has it. I would prefer, however, if it was automatic that a person could enter a judgment in the registry. In that way it would be automatic that the boat could not be de-registered before the judgment was satisfied. It is cumbersome and very expensive to go to the High Court. While it is good that the provision is in place, I would prefer if the onus was the other way around and that a person did not have to go to the High Court to stop someone de-registering a boat without having satisfied the judgment. I am not suggesting we get rid of the power to go to the High Court. For example, if a case was pending, a person could seek a declaration from the High Court that a ship could not be de-registered on that basis. However, it seems onerous that an owner, having obtained a judgment, then has to go back to the High Court at some further point to seek a further order. I am pleased section 52 is in place, but this is an addition I am proposing by way of an amendment.

There is also the issue of the register being public. It is welcome that the intention is to keep it public. I do not mean this in the case of the Minister specifically, but sometimes I wonder why Ministers say they never intend to use certain provisions. Numerous Ministers have come before us to obtain powers in legislation and said they would never use a given provision. If a Minister does not intend to use them, why does he or she need them in legislation? If the intention is to have the register public, why not insert that in the legislation and say elements of the register shall be public?

The Deputy's core point relates to the capacity not to have some of it in the public domain. The two key reasons are security and data protection and each requires that the information on the register not to be publicly available or instantly available to the public. They are the core reasons certain information is not immediately available to the public.

I realise I have not made myself clear enough. I have no problem with having the capacity in legislation to provide that elements of the register will not be public. The reasons the Minister has outlined are entirely sensible. However, I am keen to see outlined in legislation the general principle that much of it shall be public because that much is not entirely clear, although it is implicit. The intention is that much of it will be public, but I am advocating that this should be stated, subject to the stipulation that not all of it will be public for the reasons the Minister has outlined and any other reason which might be legislated for in secondary legislation.

Question put and agreed to.
Sections 32 to 48, inclusive, agreed to.
SECTION 49

Amendments Nos. 8 to 13, inclusive, are related and will be discussed together.

I move amendment No. 8:

In page 42, line 20, after “sale” to insert “or by means of such other document of transfer as may be prescribed”.

The current wording of section 49 does not allow for circumstances where a bill of sale is not produced during the transfer of a ship, nor does it allow for the acceptance of a description of a ship based on a declaration of measurement, as proposed in the case of registration in certain parts of the register. In the case of some smaller ships, for the purposes of registration in certain parts of the register, the owner may have difficulty in producing an actual bill of sale and it is proposed to accept a declaration of ownership. The specific requirements and detail will be set out in the regulations to be made under the Bill.

Amendment No. 8, as drafted, inserts the words "or by means of such other document of transfer as may be prescribed". This means that if a given vessel is below a particular size or if, for some other reason, the owner does not have the bill of sale, the thrust of the amendments is to allow the Minister to say he will prescribe the details of another document to take the place of the bill of sale. The idea is to ensure everyone who wants to participate in the register will have the ability to do so and will not be prohibited from so doing because of the absence of a bill of sale. The amendment is proposed to recognise the fact that there will be exceptions to the requirement to have a bill of sale. It will allow for the acceptance of alternative documents, for example, a declaration of ownership. The details of such documents will be set out by ministerial regulations.

Amendment No. 13 arises as a consequence of amendment No. 8. To remove any doubt, it confirms that any reference in section 49 to a bill of sale includes a reference to any document of transfer prescribed under section 49(1). If the Minister of the day states an alternative document may be used, amendment No. 13 seeks to ensure the entire section is consistent.

Section 49(2) establishes requirements for a bill of sale which must contain a description of the ship that is consistent with its measurement particulars. This usually involves consistency with the certificate of measurement for the ship. However, it is proposed to allow for declarations of measurement in the case of some smaller ships to be registered in certain parts of the register. This will remove the expense of a formal survey of the measurement of certain smaller ships. As is the case with the bill of sale or a declaration of ownership, the specific detail and requirements will be set out in regulations to be issued by the Department.

Amendment No. 10 amends the wording of section 49(2) to recognise that the description of a ship may, in certain prescribed circumstances, be set out in a declaration of measurement rather than in a certificate of measurement.

Amendments Nos. 9, 11 and 12 are technical in nature. Amendment No. 9 amends section 49(2) to clarify that the requirements in respect of a bill of sale or other document of transfer apply equally to such documents in respect of a share in a ship.

Amendment No. 11 corrects the placing of the last comma on line 24 of subsection (2). Amendment No. 12 corrects the wording on line 26 at the beginning of subsection (3) by replacing the word "therein" with the words "in it" and the word "subsection" with "subsections".

Amendment agreed to.

I move amendment No. 9:

In page 42, line 21, after "ship" where it firstly occurs to insert "or a share in it".

Amendment agreed to.

I move amendment No. 10:

In page 42, line 23, after "section 20(2)," to insert the following:

"or in certain prescribed circumstances, a declaration for the purpose of measurement, as appropriate, ".

Amendment agreed to.

I move amendment No. 11:

In page 42, line 24, to delete "attested, by" and substitute "attested by,".

Amendment agreed to.

I move amendment No. 12:

In page 42, line 26, to delete "therein is transferred in accordance with subsection" and substitute "in it is transferred in accordance with subsections".

Amendment agreed to.

I move amendment No. 13:

In page 43, between lines 2 and 3, to insert the following:

"(6) In this section a reference to a bill of sale in subsections (2), (4) and (5) includes a reference to any document of transfer prescribed under subsection (1).".

Amendment agreed to.
Section 49, as amended, agreed to.
Section 50 agreed to.
SECTION 51

I move amendment No. 14:

In page 43, line 39, to delete "refuse" and substitute "refuses".

This is a textual amendment that corrects the wording of subsection (4)(b) by replacing the word "refuse" with "refuses".

Amendment agreed to.
Section 51, as amended, agreed to.
Sections 52 to 54, inclusive, agreed to.
SECTION 55
Question proposed: "That section 55 stand part of the Bill."

Section 55 which deals with the prioritisation of registered mortgages states: "Where two or more mortgages are registered on the Register in respect of the same ship or share, the priority of the mortgagees between themselves shall, subject to section 56, be determined by the order in which the mortgages were registered". I have no difficulty with this provision. However, I have mentioned the issue of registering liens in respect of judgments for unpaid wages and so on. My view is that such liens should take precedence over mortgages. I am flagging the issue at this point and I am interested in hearing the Minister's views.

This refers back to the discussion we had concerning the 1993 convention. Under that agreement, a maritime lien has priority over a registered mortgage and is extinguished after one year, unless the ship is arrested or seized, which would lead to a forced sale. I understand why the Deputy is raising this issue. It emanates from the 1993 convention which is not registered in this jurisdiction. I look forward to the Deputy's amendment on Report Stage to see how we might incorporate the convention, or even some of it, in the Bill. I will consider any proposal he brings forward.

My concern is less about incorporating the convention and more about ensuring there is an effective domestic enforcement mechanism where a judgment is obtained in respect of, for instance, unpaid wages, personal injuries or loss of life. I look forward to discussing the matter further with the Minister in advance of Report Stage.

Much of what the Deputy is referring to should be happening through our legal and courts system in the first place. Where, for example, a person has a particular concern about a safety matter and the ship in question is registered under the Irish flag, the body of law of the State will apply. If there is any breach of that law, it will become a matter of enforcement that must ultimately be adjudicated upon in the courts system. To clarify, is it the Deputy's concern that this is not happening?

No, but I would like to ensure there is a very simple mechanism in place to deal with such matters rather than having to go through the courts system. I have no doubt that the current system works, but some of the mechanisms relating to maritime law are very complex and it is very expensive to have such matters dealt with in the High Court. It seems to be a very cumbersome procedure for something as basic as a judgment on the non-payment of wages, for instance. In Mrs. Airey's case, when she wanted a separation and to be looked after, it was theoretically possible to take action because she had lots of money and lots of time in which to do so. If a person does not have these advantages, he or she may find the courts system is not as accessible as those of other states.

I understand from where the Deputy is coming. It is important to bear in mind, however, that, ultimately, any such breach is a breach of the law. The best place - sometimes the only place - in which such matters can be adjudicated upon is a court of law.

I absolutely agree. My concern is to ensure that once a judgment of a court has been obtained, certain protections will apply. I am not proposing that it should be for the register of ships to decide whether the law has been broken. I am proposing that once one a judgment issues, certain protections should come into play to ensure the enforcement of the judgment. That is my concern.

Question put and agreed to.
Sections 56 to 63, inclusive, agreed to.
SECTION 64

I move amendment No. 15:

In page 47, line 5, to delete "section 22(9)" and substitute "under section 20(9), 22(9), 23(9), 24(6)".

Amendment agreed to.
Section 64, as amended, agreed to.
SECTION 65

I move amendment No. 16:

In page 47, line 9, after "27(2)" to insert ", 28(5)".

Amendment agreed to.
Section 65, as amended, agreed to.
Sections 66 to 69, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
Title agreed to.

I thank the Minister and his officials for attending. I also thank members of the committee for considering the Bill.

Bill reported with amendments.
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