Shipping (Registration) (Amendment) (Jersey) Regulations 201-
Report
Background
Regulation 5 of the Shipping (Registration) (Jersey) Regulations 2004 provide the basic rules of ownership under which a fishing vessel can be registered in Jersey.
In particular the Registrar must not register a fishing vessel unless it is managed and its operations are controlled and directed from within Jersey. This should have provided a strong and genuine connexion with the Island and for the management of the vessel to be by individuals living in the Island before registration could be allowed. This would, it was hoped, make compliance with modern and appropriate standards and if necessary, prosecution, easier to achieve. It was also intended to assist in ensuring that any economic benefit accruing to the owners could also accrue to the Island.
To some extent this worked and a number of vessels not based in Jersey and with no strong link with the Island, had their registration terminated in 2004 on the coming into force of the current Regulations. However, issues of interpretation of the rules have continued with two recent cases causing problems.
It has become apparent that where ownership rests with a company incorporated in Jersey, all the owners can be resident abroad and management can be conducted on the basis of visits ‘as and when required’. Additionally, the role and responsibilities of a local operator are not sufficiently explicit within the Regulation and can result in a rather tenuous association.
It would appear that these points may have resulted in fishing vessels having merely technical links with the Island rather than those within the spirit and intent of the Regulation.
Legal Advice
Written advice was obtained from the Law Officers as to both the interpretation of the current Regulation and the material changes needed to improve the situation.
Proposed Changes
The fundamental change is to strengthen the use of the role of a managing owner (who must be an individual resident in the Island), instead of expressions such as ‘manager’ or ‘operator’. The concept is already used in the Regulations elsewhere but is not a mandatory requirement for all forms of ownership.
The relevant amendments are at Regulation 3, amending Regulation 5(5) and 5(6).
Importantly, for a very substantial majority of owners where they fish from a Jersey harbour and own their own vessel, the change will be very simple. The Registrar will automatically identify them as the managing owner and the fisherman will not have to take any action.
Where ownership is shared, the managing owner must be clearly authorised and identified. He will be a resident of the Island and must satisfy the Registrar that operational control is carried out from within the Island. The signing of a declaration to that effect will be required and the Registrar may make further enquiries to verify the situation.
Where the managing owner is not the sole owner, he will still have responsibility for compliance with safety legislation and could be held culpable. This responsibility will be made explicit in new safety training and safety provisions legislation for which law drafting time has been allocated.
In the case of company owned-vessels the managing owner must be a director, manager or other similar officer. This terminology reflects the legal responsibility of such an individual as already defined in the Primary Law regarding offences by officers of bodies corporate (Article 175). In this way, it will no longer be adequate for a company to be named as the manager or operator without also identifying a specific individual.
These changes are achieved by a substantial re-writing of the current Regulation 5. Changes to other Regulations are consequential only and have no substantive effect on registration eligibility.
Consultation and involvement of the Fishing Industry
Correspondence and a formal meeting took place between a cross section of parties during 2009. These included representatives from both the Jersey Fishermen’s Association and the Fisheries section at the Planning and Environment department. These discussions particularly looked at the issues surrounding one particular case that had arisen concerning the degree with which the fishing vessel was genuinely being managed from within the Island.
It is important to note that some of the industry might wish more could be done to improve the economic and conservatory issues that have arise when considering fishing vessels which may not seem to have strong links with the Island. These matters are not within the remit of the Registrar of Shipping. It is nevertheless believed that indirectly the amendments proposed here will indeed strengthen the economic benefits and prevent exploitation of the Jersey fish stock by those who do not live in the Island.
During drafting of these proposed changes dialogue has continued. Consultation took place with the Marine Resources Panel in November 2010. Discussion has continued through the Chairmanship of the Jersey Fishermen’s Association and with individual fishermen who expressed concerns as how to manage the amendments.
According to current records there are just seven vessels which are in company ownership, where specific action (such as making a formal resolution of the company) may be needed. A further six vessel are recorded as in joint ownership and where it is not already clear from existing records, the change will mean their owners will need to clarify who is the managing owner.
It may seem disproportionate[1] to be doing anything at all for such a handful of vessels. However, the impact of getting it wrong in terms of safety, legal compliance and international reputation cannot be ignored.
To assist those with company ownership in particular, an explanatory memo was sent to those concerned and to the Chairman of the Jersey Fishermen’s Association. Advice and assistance will be made available whenever a fishing vessel is due for registration or re-registration.
Transitional Provisions and Commencement
These have been written to allow a two-stage process.
In the first place, if the States approve the amendments, there will be a three-month period before they come into force. This interim period will ensure that any prospective new owner or an existing owner applying to register or re-register his fishing vessel has time to make the appropriate arrangements, such as agreeing with other owners as to who to appoint as managing owner or getting a Resolution from a meeting of principles in the case of a company-owned vessel.
For those not currently applying to register or re-register, they will have no need to make any change until registration expires at the end of its normal five-year term or is cancelled for other reasons. This is a specific concession made as a result of consultation and will ease transition.
Resource Implications
There are no additional staff, IT, financial, property or other resources requirements for the States. The Registrar’s team will have some initial implementation and communication tasks but these can be managed internally.
Conclusions
These amendments are important in making sure that all Jersey fishing vessel owners and operators have a substantive link with the Island and are genuinely committed to maritime safety standards. Fishing is a dangerous occupation. For that reason alone, the Island must protect its reputation for being able to have effective legal control over its fleet and is not unreasonably left open to criticism.
The States are recommended to endorse the changes.
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