I will continue my discussion with Senator O'Toole on how sea pollution was the cause of depopulation of the Blaskets later. I concur with him on the tragedy of the depopulation of our small island communities around our coasts. Many of them were depopulated before pollution of the seas became a big issue but this point is well made nonetheless.
This Bill must be given a general welcome. I suspect like all maritime or marine Bills it was an extremely difficult Bill to draft and even as it stands it is a legal minefield because that is usually the case when international maritime regulations are involved.
The Bill as we know ratifies what we refer to as MARPOL 1973-78 and accedes to the 1973 Protocol relating to Intervention on the High Seas in cases of Marine Pollution by Substances other than Oil. I would like to ask a question I asked four years ago when I spoke in the Dáil on the Second Stage of the Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987. What has happened to the Civil Liability Convention, 1984? Why is it not before us now to ratify? In 1987 we ratified the Civil Liability Convention, 1969. That took 18 years to make it to these Houses to be ratified. In 1987 we surely could have ratified the 1984 convention. We had the exact type of legislation that would have enabled us to do it, the Oil Pollution of the Sea (Civil Liability and Compensation) Bill at the time. I would have thought this legislation would have lent itself to ratifying the 1984 convention, particularly when this Bill amends portions of the 1987 Bill. I cannot understand why the Minister has reneged on bringing forward the Civil Liability Convention, 1984 which has major implications for this Bill, the 1987 Bill and the whole area of responsibility in relation to damage from ships and oil pollution, etc. I would like an explanation from the Minister.
I checked with the Department this morning when I was trying to refresh my memory on this lest the 1984 convention had slipped through the Houses between 1987 and now, and I was reliably told — I would take anything from Minister Wilson's office as being reliable — that it is in the queue to get into the Dáil. In 1987, I was told it was in the pipeline. Four years later it is in the queue. I would accept that if we did not have this legislation which would have allowed that convention to be ratified because it deals with other matters immediately pertaining to it. It was a major omission on the Minister's part not to use this legislation to ratify the Civil Liability Convention, 1984, given the implications of not doing so. I look forward with interest to the Minister's response to that point.
This Bill ratifies a convention. I would like an assurance from the Minister that the wording in the Bill is exactly similar to the convention it purports to ratify. There were major criticisms of the Oil Pollution of the Sea (Civil Liability and Compensation) Bill, 1987 and the conventions that were ratified therein because the parliamentary draftsman or the Minister decided to word the ratification of the conventions in the Bill differently from the exact wording that was in the conventions at the time. The maritime legal experts pointed out the enormous dangers they are in doing so.
Not having read the detail and the exact wording of the conventions involved in the Bill before us — one would want to have very little else to do for a long time to digest the words used in that — I would like an assurance from the Minister that the words used in relation to the conventions we are discussing here today are the exact words in the original convention documents. We do not want to create a legal minefield that would take years and years of haggling and hassling through the courts of this land and elsewhere to sort out. The only people who would benefit would be the legal profession and not those we are trying to protect under this Bill.
I welcome the Bill but I am concerned about the definition of "owner" in the Bill. I say this because there were major problems with the definition of "owner" when the Amoco Cadiz incident was being processed. The word “owner” is defined little bit better than it was in the 1987 Bill. I spoke on the Second Stage debate in 1987 on that Bill and recalled the Amoco Cadiz disaster. When the matter of damages was being considered it was discovered there was a parent company involved. There was also an operating company and finally the ship had been chartered out to a seperate company again. In terms of the operators of the ship or those responsible for any disaster there was a pick of four different companies from which to decide who was responsible or liable at the time.
I would like an assurance that this Bill, taking as an example the Amoco Cadiz story, would cover the four possible definitions of “owner” as was determined in the courts in the case of the Amoco Cadiz. It goes further than the 1987 Bill but I am not sure that we really tie down the case that was exposed in terms of the different levels of ownership in the Amoco Cadiz case and the disaster that happened at the time. Basically we do not want anybody, owner, skipper, parent company, operating company, charter company or flag of convenience outfit to slide out from their responsibilities because of some legal wrangle over the definition of “owner”. I am sure the Minister agrees with me and I look forward to his assurances as to the interpretation of “owner” as defined in the definition section of this Bill.
I ask the Minister to look at the definition of "ship". I have no difficulty with what is in the Bill; it is what is not in it that causes me concern. It was an education for me to realise how far fish farming and aquaculture had developed in terms of the structures in which the different species being farmed are contained. Effectively the structures used in our socalled fish farms are all but ships given the definition used here for "ship". I understand — I am subject to correction if my understanding is wrong — that aquaculture and fish farming is not included in this Bill. Any pollution, effluent or garbage discharged from the activities of fish farming into our waters are not included in this Bill. If my interpretation is correct it is an enormous omission. Some years ago when talking about fish farming we were talking about an area of sea which was coralled, maybe netted or staked in, and the operation was contained therein. Some of what passes for fish farms today are effectively boats. They are big, wooden solid structures of one kind or another that are permanently anchored or moored off our coast. They would seem to come under the term "ship" as defined. I await with interest the Minister's reasoning as to why, given the difficulties alleged to have arisen by pollution from our intensive fish farming operations, they are not contained in the Bill. In fact, it is an important issue. It is important both to the success of fish farming and to the prevention of pollution of our seas. A section dealing with fish farms is needed.
May I ask the Minister whether dredging of our harbours, given that the Bill refers to the prohibition and discharge of oil and other substances — the definition of other substances is oil, oily mixtures, noxious liquid substances, harmful substances, sewage or garbage — is covered in the Bill? Is dredging, particularly the dredging of our estuaries which is quite a common occurrence, and the dumping of the dredged spoil on to banks in shallow waters around our coast, covered in the Bill?
I would like to refer to a report prepared by the county councils of Carlow, Kilkenny, Tipperary, Waterford and Wexford on the water quality management plan for the Suir, Barrow and Nore estuaries. This is but one of the many excellent water quality management plans the Department of the Environment are requiring local authorities to prepare. I would like to put on record the views of local authorities on dredging and the implications of it. Paragraph 730 of the report states:
In view of the importance of shipping to the local population centres and the susceptibility of the estuary to sedimentation it is envisaged that major dredging operations will be necessary at intervals in certain areas.
It mentions particularly Cheekpoint and the Barrow estuary between New Ross and Cheekpoint. The report continues:
While such operations will present some direct qualitative impact on estuarine waters, dredging may also have an effect in dynamic terms since it can mask a national cycle of events which could otherwise have taken place or induce uncharacteristic behaviour patterns.
Any given regime will tend towards a state of equilibrium in relation to the natural sedimentation and erosion processes. In this complex channelised estuary there is a degree of associated instability and a suddening deepening ...
I translate "sudden deepening" to mean "dredging"
...or enlargement of a channel within a reach will at once produce local changes in velocity and flow patterns together with a completely new pattern of accretion and erosion. This will be reflected in turn by variations in the sediment transport quantities which will affect areas upstream and downstream of that originally altered. The minute clay particles which constitute mud flocs provide large surface areas for rapid absorption of organic pollutants and there may be a built up of high concentrations of such pollutants in mud shoals even through the concentrations in the water above is well within permissible limits.
The report continues:
Dynamic changes brought about by dredging may result in the release of anaerobic matter into suspension and increase the consumption of dissolved oxygen. Obviously any major dredging operation has the allied problem of ensuring that spoil grounds do not constitute to any deterioration in present conditions.
In fact from this area of our coast the dredge or spoil is dumped on the bank flats between New Ross and Ferrypoint in the Barrow estuary. Fairly large scale dredging was, in fact, carried out in the sixties at New Ross. The report continues:
——at present dredgings from Waterford Harbour are dumped in the deep sections of the King's Channel — the amount dumped there in 1984 totalled 29,000 tonnes.
The dredging operations going on around our coast and in our estuaries for very good reasons could have a major impact on sea pollution generally if they are not tightly controlled within the ambit of this Bill. I would like assurances from the Minister that these operations, necessary and all as they may be, come within the control of this Bill.
The report continues:
This would appear to be a satisfactory dumping area the King's Channel in view of the depth of water available and the weak currents in this reach. These dredgings contained small but measureable amounts of List 1 substances (mercury, cadmium and organhalogens) and of all the metals for which standards have been set... including arsenic and nickel.
The local authorities are admitting that these are the type of toxins they are dredging from our estuaries, from the mouth of our rivers and harbours and dumping further out on the mud flats. The report adds:
Continued monitoring and analysis of such dredgings is necessary to quantify the various constituents and to determine whether the source is polluted.
Before they know whether the source is polluted they are, in fact, dumping the spoil of the dredging out further at sea. The report continues:
Care must be taken not to apply large quantities of metals particularly, or other contaminants to the estuarine bed where their fate is still largely unknown.
And so say all of us. I make the point rather strongly in relation to the dredging procedures around our coast. I do not think any of us have given sufficient attention to this procedure that has developed as very necessary from the local authorities' viewpoint and from the viewpoint of the management of the harbours and allowing shipping channels in and out of the harbours. However, from a sea pollution point of view, and from a marine aspect, I am not so sure that the activities have been properly monitored and that we know what pollutants are being dumped out to sea.
On this point section 36 deals with the amendment to the Continental Shelf Act, 1968. Apparently, the continental shelf which is responsible for so much good around our country and has had such an impact on our climate, water temperatures and the flora and fauna of our coastal waters, has been taking quite a battering for all sorts of reasons, not least because successive Governments have failed to provide the capital necessary for a primary and secondary and, indeed, tertiary treatment of sewage as well as industrial and farm effluent from the land source.
Indeed, local authorities we must remind ourselves are responsible for managing the waste created not only by the human population but by the animal population and from the industrialised and commercial sectors. Section 36 states that the Minister for Energy, in consultation with the Minister for the Marine, may make regulations prohibiting or regulating the discharge of any oil, oily mixture, noxious liquid substance, harmful substance, sewage or garbage. I know the word is "may". We have had many a debate in the House about that word, "the Minister may" do this or that, and not the Minister "shall" do this or that.
As it was important enough to put this in the Bill, I assume the Minister in certain circumstances will be making regulations which will protect our continental shelf. We must ask the Minister to indicate whether increased moneys will be made available to speed up the provision of treatment plants that are needed in so many areas around our coast. At the moment a multi-million pound water treatment programme plant is being installed in Wexford. We have just finished one in Enniscorthy and I imagine some of my colleagues from other areas around the country will be able to indicate in their maritime constituencies the progress that has been made. It has never appeared to be politically popular to put much money into the provision of sewage treatment plants; it has been low on the political agenda of successive Governments. I am not making a political point, because all Governments in the last 20 or 30 years have been too slow to put in the proper treatment plants for sewage and, indeed, other effluent from our centres of population.
How, under section 36, does the Minister intend to direct the local authorities who will have to continue emitting raw sewage and not properly treated industrial effluent until the Government provide the funds for the treatment plants? I would be very interested to know the implications of section 36 for our local authorities. Section 7 (1) (a) refers to emissions from a pipeline. Untreated sewage and other effluents go into our waters around our coast from pipelines. This is a very important section that will impact heavily on local authorities. Can I take it to mean, in fact, that we will speed up our sanitary services programme, particularly in the maritime counties and in all our counties, because inland waters suffer proportionately just as badly because the dilution effect there is less than in the coast? Can we take it that there is a message in amending the Continental Shelf Act that the Minister intends to pursue local authorities and that before he does that he will, in fact, ensure that they have the wherewithal to provide the necessary treatment before any effluent is discharged into our coastal waters?
On coastal waters and on the harbour dredging — before I leave this particular point — could I ask where this Bill marries with the Marine Institute Bill, and that marries with the Environmental Protection Agency Bill and who, in fact, has the responsibility for the protection of estuarine waters? I welcomed all the three Bills and have spoken on all of them in the House. There is an area of confusion as to who has responsibility for the protection of the environment in our estuaries. Certainly at the Environmental Protection Agency Bill stage — and it is not that long gone through this House — we did not get a satisfactory answer from the Minister and I put this point. When I spoke on the Marine Institute Bill, the confusion had just become apparent to us at that stage because of the claims in that Bill to be responsible for our estuaries out to a certain point. In this Bill I take it that from the coast out at different points, in fact, pollution matters and breaches of same are going to be dealt with under this particular Act. I would like to know how those three measures and to a certain extent the Radiological Protection Act, which set up the radiological protection agency in terms of nuclear and radioactive discharges, fit with the other three? We seem to have four pieces of legislation, all with vague responsibilities for our estuary waters and our immediate coastal waters, but it is none too clear where the ultimate responsibility lies. I would appreciate very much if that matter could be clarified.
I would like also to refer to the whole vexed area of limitation and liability for pollution damage. I know oil pollution is not the only issue dealt with in this. It is the total gamut of sea pollution. Other speakers have dealt very eloquently with the need to protect our coastline and the importance of our beaches and our marine environment generally. I would totally concur with what they said there. To go back to the oil pollution, which I suppose is the most technical and legally difficult area, there are a few questions I would like to ask. As the Minister is aware, the right to limit liability is given to ship owners because of the enormous risks which shipowners are exposed to in the modern world. You are into multi-million pound claims not only in terms of the value of the ship but the potential damage that can be done particularly with the bulk carriers which Professor Conroy referred to earlier.
Ship owners insure their liability in mutual protection and indemnity associations known to us generally as the P and I clubs. The London P and I clubs between them insure more than 90 per cent of the world's tonnage each year and bear the first £750,000 of any claim against any of their members. Claims are then pooled between the clubs up to about the £12 million mark and that relates to the £10 million fine that the Minister refers to later on in the penalty section of the Bill. After the £12 million cut off, the excess of any one claim falls on reinsurance underwriters with whom the London group of P and I clubs have placed their insurance. The London group of the P and I clubs are now insured for £1,000 million in excess of the £12 million for any one claim. That indicates the multi-million pound risk industry that we are talking about when we talk about oil pollution generally and the complications in this area. So great are the risks to which ship owners are exposed that the professional managers of these P and I clubs are discussing whether they can continue to offer unlimited cover, which has always been a feature of P and I. These managers seriously believe that there is a danger that some day they will be faced with a claim which will go through the present limits of cover and the present limits at the moment are over £1,000 million. The mind boggles. It is hard to even comprehend the implications of it.
The limitation of a ship owner's liability has to be considered against this background and the right to limit liability should be virtually unbreakable to provide the element of certainty which is necessary when attempting to negotiate adequate reinsurance cover. Generally, the test which is applied for entitlement to limit liability is the absence of any actual fault or privity. I think the Minister is probably well aware of these arguments in maritime legal circles. As the legal profession has confirmed to the Minister, these words have been fruitful causes of litigation for many years, the absence of actual fault or privity. If limitation on liability is accepted in principle, which I feel it is, the right to limit should be more or less unbreakable to ensure that certain risks are, in fact, insurable in terms of oil pollution damage generally — of all sea pollution damage, but particularly oil pollution damage. For that reason the more modern tests applied in recent conventions is that the entitlement to limit liability should be contingent on the ship owner and that he or she did not commit an act or omission with the intent of causing the damage which gives rise to the liability, nor that he or she acted recklessly or with the knowledge that such damage probably would result.
Perhaps a lot of these issues will be cleared with the limitation convention of 1976 when that comes up for ratification. I would ask the Minister, along with the point I made earlier on about the civil liability convention of 1984, as to what is happening the limitation convention of 1976? It is most important in this particular area in terms of the right to limit liability, in terms of proper insurance cover and in terms of being able to enforce the polluter-pays principle if people are properly insured when we are into this vitally important area. We need only look at the damage that has been done to our coastline over the years in various catastrophic incidents and look at the Alaskan and the Amoco Cadiz and the others to realise just what damage can happen. I ask the Minister to indicate to me what is happening the limitation convention of 1976, and how he feels it could impact on this most important area of the serious risk of multi-million pound claims for oil pollution damages generally?
One section of the Bill deals with powers of detention of ships if certain regulations are not met and if certificates cannot be issued in terms of faulty equipment or, indeed, of the structure of the ship itself. Again, in maritime legal circles there are major concerns about the powers of detention both in the Oil Pollution Act as it now is and, indeed, as proposed in this Sea Pollution Bill, 1990. The powers of detention appear to usurp the role of the Admiralty Marshal. We are into the whole area of the international maritime organisation and, apparently, the IMO could find us in breach of the civil liability convention which, to my knowledge, does not contain this detention power. I also understand that the equivalent UK legislation — particularly in relation to the Oil Pollution Act but also in terms of sea pollution — does not contain the detention powers as we have taken them unto ourselves in this Act. I do not criticise the Minister for doing that but I would like assurances that the procedures being used to introduce detention of ships on our coasts for civil breaches will stand up in courts of law. I have no argument with criminal breaches or criminal problems. They should be detained, and anything possible thrown at them. In terms of the civil breaches I seriously question whether the powers of detention under this particular Bill will stand up in courts of law. Other nations, for whatever reason, have decided not to proceed in the manner we have here in relation to this particular issue.
I would like to refer to the Second Schedule for a moment. One of the main purposes of the Oil Pollution Act, in fact, was to ensure the compulsory insurance of any oil tankers in our waters. We can have no argument with that. If in such a case the tanker is insured and an oil pollution accident occurs, could the Minister say in which circumstances an inspector or harbourmaster would be entitled to detain the ship? If there is limited liability and if they have proper insurance cover, if they discharge their responsibilities to the extent of their liability and according to their insurance cover, why or how could a ship be detained? Effectively, a ship could be detained indefinitely under these provisions as the procedure for court determination of the entitlement to limit liability could, in fact, last for months under this particular section, if that was going to be contested. According to section 13 (2) of the Oil Pollution Act, which forms part of the Second Schedule of this Bill, the ship could never be released but left to rot in port. This is the view of the maritime legal people.
We need to look much more closely at what we are proposing in this particular area. Where a court has determined that a person who has incurred a liability for pollution damage is entitled to limit his liability or that such a person has paid into court a sum of not less than the amount determined by the court to be limited liability — in other words, if the polluter concerned has discharged his applications in terms for paying for any damages done — surely he or she, the owner, would be entitled to have the ship released even if he or she could not prove he was entitled to the limited liability, if they have completed their obligations.
Again, I point to the civil liability convention of 1984, which will impact on this particular area. I think without that convention being ratified we are in extremely difficult legal waters in trying to pursue our powers in claiming a detention of ships when they are in breach in civil cases.
Again, in criminal cases, I have no argument with what is being proposed there. Could there be any confusion between the definition in role of harbourmasters and inspectors in this legislation? We have been over this before in different areas, but the last Bill was very ambiguous in this area. The marine lawyers were delighted with the opportunities that are there for them if they are ever challenged or have to take a case in this area. Given the role we entrust to harbourmasters and inspectors, I do think there is an ambiguity in the terms of reference. Even in this Bill to a certain extent, I think you can interpose the word "inspector" for "harbourmaster" in many of the sections. Could I have an assurance from the Minister that this will not cause problems?
There are excellent sections in the Bill providing facilities for the disposal of waste, garbage, oil, sludge, etc., in our ports and harbours. I have major concern about entrusting any further responsibilities to local authorities without indicating how they are going to pay for them.
We have had a lot of legislation that reads well and sounds well, but which ultimately passes the buck to local authorities to implement. Local authorities are no longer financially autonomous since the removal of rates. I do not have to tell the Minister that with the block system there will be little left for providing disposal facilities in Kilmore Quay, Wexford Harbour, Duncannon Port, Cahore or Courtown and all the many ports we are so pleased to have along the Wexford coast, for example, but for which we cannot afford even minimal maintenance at the moment. We are already letting down the seafaring community in terms of our ability as a local authority.
I do not think that the maritime constituencies can be asked to accept more responsibilities which this Bill imposes on them, unless the Minister provides the wherewithal for them to deliver. I know the Minister makes provision in the Bill for allowing charges for different breaches of the regulation. I hope the "polluter pays" principle is clearly underlined in the Bill, but I do not think it is strong enough. It needs to be beefed up so that there is no doubt that those who damage and pollute our seas and our coastline will pay, and the moneys will go to the Central Exchequer.
The local authorities need proper funding to provide disposal facilities at our ports and harbours that are under the authority of local authorities at the moment. Iarnród Éireann's only port is Rosslare port and it will be up to them to provide the wherewithal for disposal facilities in their port. I am not too sure if there are any Office of Public Works ports. I thought they had all been handed over to the Department of the Marine, but I stand to be corrected on that. Office of Public Works ports are referred to in the Bill. The biggest end of the responsibility will be with the Department of the Marine to provide these facilities. I do not think local authorities can be expected to provide the type of facilities we must insist on to keep our seas clean from the seafaring and fishing community, and the oil tankers particularly. With modern technology, those at sea for days will have a natural collection of refuse, garbage and effluent of one kind or another. Assuming they have the proper containers to store it for a limited period, when they berth, when they moor, there must be facilities for them to empty the containers and rid themselves of their waste, effluent and garbage generally. How that will be provided for the small ports when some of our large fishing vessels tie up there I do not know. The Minister must stand behind the local authority or the Bill will not be effective.
What is the position in relation to this Bill and the Oslo Convention? How do they marry? I will not go into detail on that. The Minister is in a much better position to detail to me the relationship between the Oslo Convention and this Bill. I imagine it is a very close one and it will be all the better for that. Why, under section 4, in peace time, are warships excluded from the Bill? We can all accept that during war and during troubled times we are not going to get into the nitty gritty about warships and throwing the odd bit of effluent over the side. I wish they would not, but one can assume it will happen. But in peace time, why should warships be treated any differently to the rest of shipping traffic in our very busy waters around this small island? I do not think that is acceptable.
Are fishing protection vessels warships? Are they excluded? I hope not. I hope, in fact, that the vessels of State and the vessels that are protecting our coastline should be leading by example and that they are included. Could we hear from the Minister what the status of fishery protection vessels are under this legislation? How are radioactive discharges into our sea being treated under this Bill? Will they be treated with the seriousness that is necessary? Are the Minister and his Cabinet colleagues pursuing a policy of zero radioactive discharges as the technologies become available to retrofit in the case of plants which are emitting radioactive discharges at the moment?
With reference to Abbotstown and the fisheries research centre, is there a commitment anywhere in this Bill to ensure permanent staffing at the levels commensurate with the island nation and the important seas around our coast? I know they are getting £2 million for contract staff work in the next year, but we seriously need permanent staff at Abbotstown to make it the institution we would all like it to be.
Finally, I think the wonders, the mysteries and the beauty of marine life enthrals and fascinates us all in different ways. During the week I was looking at a wonderful programme on the Great Barrier Coral Reef and the flora and fauna there. As other speakers have very eloquently state, there is a particular onus on us as legislators to protect the enormous marine resources around our coast so that they can be sensitively exploited and we leave them in a better condition for the next generation than we inherited.
I welcome the Bill although I have some major concerns about the legal implications of the sections I have outlined and I look forward to the Minister's response to same.
