Amendments Nos. 5, 6, 7, 10, 11, 12 and 13 are consequential on amendment No. 14. Therefore, amendments Nos. 5, 6, 7, 10, 11, 12, 13 and 14 together by agreement.
SECTION 13.
I move amendment No. 5:
In page 14, subsection (1) (a), line 38, to delete ",or the agent for, ".
Amendment No. 5 deletes ", or the agent for," in page 14. Amendments Nos. 6, 7, 10, 11 and 12 involve a similar deletion in page 15, lines 1 and 2, line 4, line 9, lines 18 and 26 respectively.
This Irish Ship Agents' Association has strongly objected to section 13 of the Bill, which for the first time in harbours legislation extends liability for payment of harbour charges to ships' agents. The association pointed out that an agent cannot be held liable under the normal laws of agency practice for the payment of charges by his principal. The association also indicated that they were so concerned about the provision in the Bill making them liable for harbour charges that they were considering seeking a court ruling in the matter. I am aware that the association has also been in touch with the Chairman of this committee on the issue.
In the light of the concerns expressed by the Irish Ship Agents' Association and following consultations with the Attorney General's office, I now propose the deletion of ", or the agent for," from section 13 (1) (a), 13 (1) (b) and 13 (1) (c) and ", or agent for, " from section 13 (2) (a), 13 (2) (b) and 13 (2) (c).
This amendment was discussed briefly by the Irish Port Authorities Association, who agreed to it but suggested that a bonding arrangement be inserted in its place. The IPAA pointed out that 90 to 95 per cent of all ships' agents pay their principal's charges in full and on time. However, a small number default from time to time. The bonding amendment now proposed, i.e. the new subsection 7, will empower the port companies to seek some from of security from ships' agents in relation to harbour charges if they so desire. It is an enabling provision only. I am confident the deletion of ",or agent for," and the insertion of the bonding amendment will allay the concerns of both the Irish Ship Agents' Association and the Irish Port Authorities Association.
Amendment No. 13 is a consequential one. Section 13 (5) (a) provides that without prejudice to section 14, which deals with the detention and sale of ships or goods for unpaid harbour charges, harbour charges will be recoverable by a port company from the person or persons on whom they have been imposed as a simple contract debt in any court of competent jurisdiction.
Section 13 (5) (b) provides that any reference to harbour charges in subsection (5 (a) includes a reference to any balance of an amount of harbour charges remaining due to a company after it has sold a ship, goods, equipment or stores under section 14 to satisfy those charges. I now propose the insertion of "or has received any payment on foot of any bond or other security concerned referred to in subsection (7)", after "those charges" on line 47. Simply put, this means that if a bond given by a ship's agent does not meet the harbour charges due in full, the port company may seek to recover the balance due from the person or persons on whom they have been imposed, i.e. those mentioned in section 13 (1), as a simple contract debt in any court of competent jurisdiction.
I recommend those amendments to the committee.
I welcome the amendment to what was originally proposed because we were all getting representations from the Irish Ship Agents' Association with regards to their concerns. The agency business is competitive and they saw this as an extra imposition. As they act for the ship owners and masters and are the principals involved, it is only right. They had a worthwhile case and I recognise the Minister has acceded to what appears to be a sensible way to appraoch this situation.
I also welcome the change of heart by the Minister. As he knows, this provision was not recommended in the Murphy report and it is not part of the Harbours Act, 1946. To hold an agent responsible for these charges seems to defy all the laws of contract and agency. Good sense has prevailed. Clearly some features to these relationships in the past, where losses may have been incurred, may have led people to feel this was one way to do it. Following representations from the ship agents, I investigated a number of harbour boards and it seems that while some of them might like to see this provision included in a small number of cases, the vast majority found that the relationship was working quite well on the basis of the old Act. It is a welcome change.
It also means, of course, that the Minister, in adopting this change, is open to further amendments. I would not like to think that he is just doing it because he is afraid of a court action. It was the right thing to do regardless of whether he was threatened with court proceedings.
Amendment agreed to.
I move amendment No 6:
In page 15, subsection (1) (b), lines 1 and 2, to delete ", or the agent for,".
Amendment agreed to
I move amendment No 7:
In page 15, subsection (1) (c), line 4, to delete ", or the agent for,".
Amendment agreed to.
Amendment No. 8. Amendment No. 15 is an alternative. Amendments Nos. 8 and 15 together by agreement.
I move amendment No. 8:
In page 15, subsection (1), between lines 7 and 8, to insert the following:
"Provided that no charge shall be imposed under paragraph (a) of this subsection on a ship which enters within, uses any anchorage in, or plies within the harbour of Shannon Port Company for the purposes of entering or leaving the harbour of Foynes Port Company.
This amendment arises for the Foynes Port Company in the context of the jurisdiction on the Shannon estuary. It also would be important for New Ross and, perhaps, other harbours whose jurisdictional problems I have not had an opportunity to hear. It is self-explanatory. It is a sensible provision and I think the Minister is moving in that direction.
I welcome amendment No. 15 in the name of the Minister. What about anchoring because of weather? Where a ship leaves harbour and must anchor for what may be a considerable duration, will the Minister's amendment cover that eventuality?
I am pleased to see the amendment in the name of Deputy Smith. If that encouraged the Minister to change his tune, so be it.
As Deputy Smith rightly said, apart from affecting Foynes Port Company, it would also affect New Ross port company, who from time to time would have ships anchored in the estuary which is under the jurisdiction of Waterford harbour commissioners. If you were to take it to its logical conclusion, with competition certain harbour commissioners and new port companies might impose charges in that area which would render it very difficult for us to operate. I do not suppose that would ever happen, particularly in Waterford, but in any event, I am pleased to see it written here. In relation to the harbour charges mentioned, the amendment states that the said company may not impose any harbour charges in respect of such entry or anchoring by that ship. Does that include pilotage charges through those waters?
The purpose of amendment No. 15 is to cater for a situation where a ship bound for its port of destination has to traverse or anchor in the harbour of another port company, and to ensure that the ship in question does not become liable to pay harbour charges in respect of the traversing or anchoring in the harbour of another port company, that is, become liable to pay harbour charges to two port companies. A situation such as this would arise in the case of ships bound for New Ross port. They have to traverse and sometimes anchor in the area of jurisdiction of the Waterford port company. The same applies to ships bound for Foynes harbour. They have to traverse and sometimes anchor in the area of jurisdiction of the Shannon port company. It would be unfair and unreasonable to require the ships in question to pay harbour charges to two port companies. Such an imposition would place the ports of New Ross and Foynes at a competitive disadvantage. A similar exemption is contained in section 102 (6) of the Harbours Act, 1946. It should have been in the Harbours Bill, but because of an oversight it was omitted. The amendment proposed is to rectify this situation. I recommend the amendment, which covers the situation generally rather than just Foynes. It covers the type of situation raised by Deputy Finucane. It does not cover pilotage charges, as I am sure Deputy Byrne well knows.
I have one question which may not relate to this. Does Dún Laoghaire pay dues to Dublin port? Is there a saving here of £250,000 for Dún Laoghaire?
No.
There is some old provision where they pay dues to Dublin port.
Dún Laoghaire is unique. The only dues that I am aware of that Dún Laoghaire pay to Dublin are pilotage.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 15, subsection (1), between lines 7 and 8, to insert the following:
"(e) any vessel or person for whom any service, including pilotage, is performed.".
The purpose of this amendment is to ensure that harbour charges include pilotage charges because section 14, provides for the detention or sale of a ship or goods for unpaid harbour charges and the inclusion of this additional subsection would make it clear that this also includes non-payment of pilotage charges. I would like to hear the Minister's views on whether he considers my amendment necessary.
The imposition of harbour charges in respect of the provision of any service by a port company to any person is provided for in section 13 (1) (d). The provision of pilotage services and the imposition of charges, therefore, is dealt with in detail in Part IV of the Bill. In these circumstances I do not consider the amendment proposed by Deputy Molloy to be necessary.
I know that pilotage charges are covered in Part IV of the Bill but I am seeking to establish if the Minister is satisfied that the provisions of section 14 apply in relation to default in regard to payment of pilotage charges.
No. The question of pilotage charges, including defaulting on the payment of pilotage charges is dealt with in Part IV which we will reach in due course.
My question is whether provisions of section 14, which refers to a default in payment of harbour charges which were imposed under section 13 (1) and section 13 (1) do not specifically refer to pilotage charges but to services or facilities performed or provided. Does that include pilotage charges?
It does not as pilotage is dealt with separately in Part IV.
The Minister is saying that if a ship owner fails to pay the pilotage charges, the harbour company cannot move against them by way of section 14, detention of the ship.
Not by way of section 14. There are separate means open under Part IV of the Bill.
Why is the Minister making the distinction between pilotage charges and other services which are provided to a boat owner or master which are not paid for?
As Deputy Molloy will be aware, pilotage is an area which up to now was dealt with by separate legislation. Part IV of the Bill effectively consolidates and updates the pilotage legislation. We have dealt with the whole question of charging for pilotage services and the question of what happens in the event of a default of pilotage in Part IV.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 15, subsection (2) (a), line 9, to delete " ,or agent for,".
Amendment agreed to.
I move amendment No. 11:
In page 15, subsection (2) (b), line 18, to delete ", or agent for,".
Amendment agreed to.
I move amendment No. 12:
In page 15, subsection (2) (c), line 26, to delete ", or agent for,".
Amendment agreed to.
I move amendment No. 13:
In page 15, subsection (5) (b), line 47, after "charges" to insert "or has received any payment on foot of any bond or other security concerned referred to in subsection (7)".
Amendment agreed to.
I move amendment No.14:
In page 15, after line 52, to insert the following subsection:
"(7) A company may require an agent for a ship, the navigation of which or the fact of its carrying goods or passengers or by reason of any other circumstances referred to in subsection (1) that involve the ship will result, or results, in harbour charges being imposed by the company on any person, to give a bond or such other type of security as the company specifies to the company for the payment of those changes.".
Amendment agreed to.
I move amendment No. 15:
In page 15, after line 52, to insert the following subsection:
"(8) If by reason of the situation of any harbour it is necessary for a ship proceeding to such a harbour to enter or anchor within the harbour of another company, then where a ship enters or anchors within the harbour of such a company for the purpose, and the purpose only, of proceeding to the first-mentioned harbour, the said company may not impose any harboure charges in respect of such entry or anchoring by that ship.".
Amendment agreed to.
Section 13, as amended, agreed to.
Section 14 agreed to.