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14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report (Section 5. The Department's Files and Key Records)

5.1   During the preliminary examination process a number of issues emerged based on consideration of a number of key records on the Department’s files which were created during the gestation of the Lost At Sea Scheme. These records formed the backdrop to my Office’s approach to the interviews with the persons who were central to the formulation of the Scheme. I will outline hereunder the details of those records chronologically.

5.2    Submission of 19 July 2000

A Departmental official, Mr Donegan, wrote a submission dated 19 July 2000 which indicated that the submission was prepared following his having been contacted by Minister Fahey on behalf of a constituent, Mr Tony Faherty, regarding, inter alia, the possibility of replacement capacity being granted to Mr Faherty in connection with a vessel named the Joan Patricia which sank in 1983 and, as such, was not entered on the Register which was established in 1990 for existing fishing boats at the time. The submission indicated that the issue was a recurring one and that the official was aware of ten other similar cases which he listed in his note. The submission also indicated that in one of those other cases, involving a vessel named the Kreis an Avel, the Department had been challenged in the courts and was defending its position not to grant permission to provide replacement capacity for boats which had sunk. The submission warned that a concession in the case of the Joan Patricia would “open the floodgates to other claims.”

5.3   Memo of 22 September 2000

A memo on file dated 22 September 2000 was created by an official in Marine Safety Division of the Department and was headed Request from Sea Fisheries Division - Fishing Vessel Sunk 1980-2000. The memo outlines the outcome of a review of  certain files held by Marine Safety Division. The memo indicated that there were over 500 files which had been opened and over 120 related to incidents involving fishing vessels. The memo also indicated that it was clear that over 20 files related to foundering or sinking of fishing vessels. However, in the majority of cases the titles of the files did not specify the nature of the incident. The memo went on to state that the provision of more accurate and detailed information for Sea Fisheries Division would require that all the 120 files would need to be reviewed individually but most of them were in one or more storage areas throughout the building. The official concluded the memo by indicating that “my best guess is that this task would take some time to complete.” In a hand-written footnote on the memo, dated 22 September 2000, a more senior official in the Marine Safety Division wrote to Mr Joe Ryan of the Sea Fisheries Division indicating that “the information required is not readily to hand” and it would take some time to review the casualty files. The note also suggested that it was possible, though unlikely, that there could have been vessels which could have sunk unknown to the Department, particularly if the incident went unreported.

5.4   Memo of 10 November 2000

On 10 November 2000 Mr Joe Ryan of Sea Fisheries Division sent a detailed note to Ms Sarah White, Assistant Secretary and the Rúnai Aire (Private Secretary to the Minister). This note was titled “Messrs T. Faherty and P. Mullen - Claim for fishing vessel capacity”. In this note he outlined the Department’s long standing policy of resisting claims for replacement capacity in the cases cited and in other similar cases. He set out the EU context of the policy and how persons placed on the Register on 1 May 1990 had to apply to the Department for registration at the time. He indicated that the policy in place since 1990 was to allow replacement capacity only in respect of fishing vessels duly registered at the time. The note indicated that a concession in these cases would have implications for a court case which was on-going at the time against the Department involving a fishing vessel called Kreis An Avel. The note also stated, inter alia, that;

“Any concession to the owners of lost or sunk vessels could be expected to lead to demands from owners of other fishing vessels which were not for various reasons (inactivity, unseaworthiness, late application etc.) put on the new Register. Such approaches would be difficult to refuse, as these owners could claim to have as good a case as owners of vessels which no longer existed when the new Register came into operation.”

Memo of 11 November 2000

In a hand-written footnote to Mr Ryan’s memo dated 11 November 2000 and addressed to Minister Fahey, Ms Sarah White, Assistant Secretary, agreed with Mr Ryan’s stance and stated, inter alia;

“The overriding problem is where would it stop. In addition to the 6 others we know about (& I’m not sure how well supported those cases are) plus the vessel involved in the High Court case, you can safely assume that there will be any number of individuals clamouring for the same treatment.”

In concluding her note, Ms White suggested that the matter should be discussed before a final decision was made.

In a further hand-written footnote subsequent, to Ms White’s note Minister Fahey indicated to Ms White that;

“I want to see how we can ringfence the 6 to 8 genuine cases including those before the High Court (if they are in the genuine category) and what the implications are for the *MAPGs (*Multi-Annual Guidance Programme). I want to licence those boats if we can do this."

In a further hand-written footnote addressed to Joe Ryan and dated 14 November 2000 Ms White instructed Mr Joe Ryan to

“review urgently the scope for ringfencing...”

5.5   Memo of 12 December 2000

On 12 December 2000, Mr Joe Ryan sent a memo to the Secretary General entitled Capacity of Lost Fishing Boats. The memo referred at the outset to “recent discussions” about the matter. The memo went on to outline the Department’s long standing policy in relation to the matter but indicated that the matter had been reviewed “in light of the Minister’s views on the matter.” The memo went on to express “serious concerns about possible repercussions” but suggested how a scheme might be produced based on a number of criteria. The criteria suggested in the memo were as follows;

1. “The vessel concerned is established, to the satisfaction of the Department, to have been lost at sea after 1st January 1980.
2. the vessel is established to the Department’s satisfaction to have been actively engaged in sea fishing until it was lost at sea; and
3. the owner of the vessel was unable, for reasons which are accepted by the Department as being bona fide, to acquire a replacement vessel before the inception of the new registration system.”

The memo went on to state, inter alia, that;

“If these criteria are agreed, we can correspond with the owners in respect of known cases on hand".

It was also suggested that there be consultation with the industry/representative organisations so that any others in similar circumstances could put their case to the Department. The memo went on to say that

“We know of around 10 cases of boats which sank between 1980 and 1989.”

It warned however, that

“it is possible that the owners of other lost vessels will present themselves when the policy change becomes known.”

The memo concluded with a reference to the on-going High Court case involving the Kreis An Avel and suggested that the owners might make a case for consideration under the suggested criteria.

5.6   Memo of 18 December 2000

In a short covering note dated 18 December 2000 with an attachment, Mr Joe Ryan of Sea Fisheries Division submitted a draft Lost at Sea Scheme to the then Secretary General, Mr Tom Carroll. Referring to the criteria in the draft Scheme he indicated in the covering note, inter alia, that; “These are along the lines discussed last week, and are designed to address any genuine cases of hardship while averting the serious consequences which could follow if lost or inactive boats generally became acceptable as replacement capacity.”

5.7  Memo of 19 December 2000

On 19 December 2000, in a hand-written covering note addressed to Mr Tom Carroll, Secretary General, Mr Joe Ryan  referred to a revised document which he attached “as discussed.” In a further (undated) hand-written note, the Secretary General referred to suggested amendments to the document. Attached was a draft scheme with a series of hand-written amendments to a number of sections.

5.8   Memo of 21 December 2000

On 21 December 2000, Mr Joe Ryan sent a short covering note to Ms Josephine Kelly, Principal Officer (who was moving in to the Division to take over Mr Ryan’s position) with an attached updated draft scheme taking on board Mr Carroll’s amendments. He indicated in his note that the scheme was designed to deal with “hardship cases”. He also indicated that papers relating to Mr Faherty and Mr Mullen were forwarded to the Minister’s Office with a submission on the matter.

5.9    Amendments to the Draft Scheme

A number of the amendments made to the draft scheme by Mr Carroll served to make it more restrictive while a number of others were relatively minor in nature. Leaving aside the separate issue of the Byrne family’s application being received after the closing date, one of the amendments was particularly relevant to the Department’s consideration of the application subsequently submitted by the family. This was an amendment to Section (c) which was as follows;

Original Draft

“(c) the boat in question is shown, by reference to logsheet returns or other appropriate records, to have been in active and continuous use by the person concerned for sea fishing until its loss at sea.”

Revised Draft (amendments in bold)

“(c) the boat in question is shown, by reference to logsheet returns or other appropriate records, to have been in active and continuous use for a considerable period of years by the person concerned for sea fishing of a category now covered by the replacement policy rules, until its loss at sea.”

The full final Scheme (as published) is attached as Appendix 1. When it came to vetting individual applications the Department interpreted “a considerable period of years” as meaning a minimum of two years (see paragraph 2.4 above).

5.10   Memo entitled “Sunken Boats Capacity”

There is a detailed note on file which is undated and unsigned, but appears to have been drawn up around December 2000/January 2001 and entitled “Sunken Boats Capacity”. This note sets out strong objections to the idea of any concessions to owners of sunken boats who were seeking replacement capacity. The full text of the note is attached as Appendix 3. The note concludes by stating; “Piecemeal changes in policy in response to special pleadings from individuals where these changes would run totally contrary to policy objective, give large unrequited gains to these individuals and open up equally “meritorious” claims, cannot be recommended.” In a hand-written footnote to this memo dated 30 January 2001 Minister Fahey states “Go ahead with Proposals subject to conditions laid down in  most recent memo subject to PO’s agreement that there are no further cases in addition to those we are aware.”

5.11   Minister’s Letter of 2 February 2001

On 2 February 2001, Minister Fahey wrote to a number of fishing organisations indicating that he was proposing to introduce a “limited and fully ringfenced concession” in relation to the use of capacity of boats lost at sea before the 1989 Register came in to being. In the letter the Minister expressed the view that given the proposed criteria, he anticipated that only a very small number of vessels would qualify under the scheme. He sought the views of the fishing organisations on his proposed scheme.

5.12   Memos of 2 February 2001

There were two separate memos on the Department’s files which appear to have been drafted by Mr Paddy Mullen and Mr Tony Faherty setting out the background to their involvement with their fishing boats which were lost at sea. The two boats were the Spes Nova, and the Joan Patricia. These memos are dated 2 February 2001 and are titled “Use of capacity as “replacement capacity” for licensing purposes”. The memos deal with a number of matters relating to the two boats under a number of headings e.g. Owner and Skipper, Loss of Boat Verified, Continuous Use for Fishing in Appropriate Category etc. These headings correspond with the various elements of the Lost at Sea Scheme eligibility criteria which were subsequently published (see Appendix 1).

5.13   Note of Meeting of 5 February 2001

There is a further undated and unsigned memo relating to a meeting held in Galway on 5 February 2001, between Mr Paddy Mullen and Mr Tony Faherty and Minister Fahey. The memo is titled “Questions Needing Clarification Re: Paddy Mullen and Tony Faherty and Replacement Tonnage” and teases out a number of issues in relation to their possible eligibility under the Lost at Sea Scheme as it was drafted at the time. Examples of the issues contained in the memo are as follows;

“1. Replacement Capacity Condition

Will the Minister and his department object if the replacement capacity for the lost boat is distributed between two boats, both owned by the applicant, or by the applicant and his immediate relation?...

4. The 10-year condition

In relation to the proposed 10-year condition, the possibility of borrowing money from financial institutions using the tonnage and the boat as part mortgage is creating difficulties. The Minister mentioned that, if this turned out to be a problem, there might be other ways of addressing the situation. Could the Minister have documented what these other ways might be?"

In a hand-written footnote to this memo Minister Fahey asks his officials for clarification on the issues raised in the memo.

5.14   Memo of 19 April 2001

Ms Josephine Kelly, Sea Fisheries Administration Division, sent a memo dated 19 April 2001 to Ms Sarah White, Assistant Secretary and to the Runai Aire (Private Secretary to the Minister) in relation to the feedback from industry representatives who were asked to comment on the terms of the proposed Lost At Sea Scheme ( see 5.11 above). The memo indicated that there was some resistance among industry representatives to the idea of the Scheme. Two groups indicated that “the proposal involving giving the free capacity will cause major difficulties and point out that some individuals will get tonnage at no cost while most pay £4,000 per tonne. Some groups supported the proposed scheme.” The memo indicated that the representative organisations did not indicate the likely number of vessels which would qualify under the Scheme. The memo pointed out that phone calls had been received in the Division from individual fishermen who were interested in the Scheme while others rang to complain “that this is a back door opportunity targeted at particular individuals while the majority of fishermen are required to pay for tonnage.” The memo suggested that in the event of a Scheme being implemented, all individuals who had sought credit for vessels lost at sea would have to be written to and asked to formally establish their eligibility. In this regard, the memo indicated that “At present, the Division has 16 requests from fishermen seeking capacity credit on the basis of vessels lost at sea. On the basis of the information currently available to the Division, some clearly will not meet the conditions of the Scheme.”

5.15   Memo of 8 May 2001

In a hand-written footnote to the foregoing memo, dated 8 May 2001 and addressed to the Minister by Ms Sarah White, Assistant Secretary, it was noted that some groups were opposing the proposed Scheme and indicated that “while designed to ensure against opportunism as opposed to the genuine cases, runs a strong risk of challenge from a variety of interests. You may wish to discuss prior to making a final decision.”

5.16   Minister’s Approval of Scheme

A subsequent hand-written note dated 17 May 2001 by Ms Josephine Kelly, Sea Fisheries Administration Division,  indicated that the Minister had approved the Scheme subject to amendments. The revisions made by the Minister to the draft Scheme were as follows;

Original Draft

The capacity of a fishing vessel lost at sea will be accepted as “replacement capacity” for licensing purposes only  if it is to be used for the purposes of sustaining or maintaining a family tradition of sea fishing. Any capacity accepted as “replacement capacity” must, therefore, be used as an owner/skipper by the persons who owned the lost vessel or by their immediate relations for the purposes of introducing a replacement for the lost vessel. Any capacity from a lost vessel so used may not be sold or otherwise disposed of for a period of 10 years.

Revised Draft

The capacity of a fishing vessel lost at sea will be accepted as replacement capacity for licensing purposes only if it is to be used for the purposes of sustaining or maintaining a family tradition of sea fishing. Any capacity accepted as replacement capacity must therefore be used for the purposes of introducing a replacement for the lost vessel which will be owned and skippered by the applicant or by an immediate relation of the applicant. Any capacity from a lost vessel so used may not be sold or otherwise disposed of.

New Section (g) Inserted

(g)  the applicant did not receive any financial benefit from the loss.

The full final version of the Lost at Sea Scheme as published is attached as Appendix 1.

5.17   Memo of 31 May 2001

On 31 May 2001, Ms Josephine Kelly, Sea Fisheries Administration Division, sent a memo to Ms Sarah White, Assistant Secretary, and to the Runaí Aire, Private Secretary to the Minister, attaching a copy of the updated amended Scheme along with a letter for the Minister’s signature to issue to the representative organisations, informing them of the Scheme. A table was attached giving details of 16 owners who had requested replacement capacity, about whom the Division was aware and also giving  details about their vessels. Draft letters were also attached for the Minister’s signature to issue to Mr Paddy Mullen and Mr Tony Faherty informing them about the launch of the Scheme. A closing date of 31 December 2001 was set down for the Scheme.

5.18  A subsequent memo on file indicated that following the receipt and vetting of applications there was a total of six successful applications out of a total of 67 received. The vessels which were successful were MFV Fidawn, MFV Joan Patricia, MFV Spes Nova, MFV Kreis an Avel (in respect of one joint owner only), MFV Sea Hunter II and MFV Rising Sea (one joint owner only).

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