Harbours

Overview

The Harbours Act 1946 and 1996 make provisions in relation to harbours. The Harbours Act 1996 provides for harbour companies in the case of certain harbours.

The Harbours Act provides for the establishment of harbour authorities to take over the pre-existing functions of Harbour Commissioners in respect of the principal harbours in the State. They included in particular, the Dublin Port and Docks Board, the Harbour Commissioners in Limerick, Cork, Waterford, Wicklow, Wexford, Westport, Tralee, Sligo, New Ross, Kinsale, Kilrush, Foynes, Dundalk, Drogheda, Dingle, Buncrana, Baltimore and Skibbereen, Arklow, Ballyshannon and Annagassan.

Some of these bodies were transferred to Dublin Port Company in the case of Dublin, and in other cases, new harbour companies and authorities have been established.

Harbour Authorities

Members are both elected and nominated to the harbour authority. Harbour authorities are made up of nominees of the relevant local authority, Chamber of Commerce, members of certain organisations, persons appointed by the Minister and persons elected.

The various nominating bodies are intended to represent various interests. Elections are held for the purpose of the elected members. There are procedures for nomination and election as well as casual vacancies.

Harbour authorities must elect a chairman and vice chairman. They may appoint committees of their members. Authorities may appoint officers and employees. Each appoints a general manager and secretary. The offices have a similar basis to local authority officers. The secretary and chief executive have a right to attend meetings.

Functions

A harbour authority has the power to take all measures for the management, control, and operation of the harbour. It must provide reasonable facilities and accommodation for vessels, goods and passengers.

They may make changes as they consider proper for the use of facilities and accommodation. Harbour authorities may undertake warehousing of goods and act as warehouse keepers.

Harbour authorities may provide tenders, dredgers, lifeboats, lighters, tugs, boats, vessel cranes, weighing and measuring appliances and other equipment as they require. They may provide sheds, transit sheds, silos, stores and other structures. They shall provide fire equipment. They may provide ballast and charge for it.

They may issue licences to lighters, ferry boats and small boats proposing to ply for hire in the harbour. Plying such boats for hire without a license is an offence.

Parts of the harbour may be appropriated for the exclusive use of any person, trade or class of vessel. This may include, in particular, a dock, wharf, jetty, boat slip, plant or equipment.

Harbour Facilities

Harbour authorities may drain their docks as they are required to give notice in a prescribed form. Harbour authorities have the power to remove any articles or obstructions within the harbour. The expense of removal may be charged to the owner. The articles may be sold to the purpose of realising the cost of removal. They may also be destroyed. Obstructions may include laid-up vessels, wrecked or derelict vessels and float of timber.

Harbour authorities will provide buoys and lights of such kind as may be directed by the general lighthouse authorities. They must maintain life buoys and lines and other equipment, including measuring equipment, as may be directed by the Department of the Marine. They may be directed to provide meteorological measuring equipment and observation.

Harbour authorities must provide accommodation for the Revenue Commissioners for use in connection with their functions. No charge is to be made.

Bye-Laws

Harbour authorities have powers to make byelaws for the governance and goods order of the harbour. The Department may require that byelaws be made for a particular matter. Byelaws must be submitted to the Department for approval. Contravention of a byelaw is an offence which may be prosecuted summarily.

The procedures regarding the adoption of the byelaws. Notice of intention to make byelaws must be advertised by notice. Certain byelaws require consultation with the Revenue Commissioners. The byelaws must be displayed and made available for purchase.

There are special provisions authorising whereby harbour authorities may be authorised to undertake works.  The harbour works authority may authorise the harbour authority to construct, reconstruct, extend or remove any docks, quays, jetties, piers, railways, tramways, et cetera.  It may authorise the compulsory acquisition of the land as may be specified.  It may  authorise transfer of lands.

The order is made by the Department on the application of the harbour authority. When compulsory acquisition is proposed, the order is to provide for compensation to persons whose land is acquired.

After the provisional order is made, a copy is deposited with the county registrar, and its details are published in newspapers.  During this period, objections and observations may be received and forwarded to the Minister.  The Minister may vary or annul the harbour order.

Leases

There are certain restrictions on obtaining statutory rights and renewal of leases within the bounds of a harbour. Certain Landlord and Tenant act rights, which generally apply are restricted in the case of leases within harbours.  Any restriction on carrying out shipping business or other business or trade incidental to it, is deemed void.

A person who wishes to obtain a lease for premises for carrying on a shipping business or incidental business to apply to the Circuit Court for a lease.  If the court is satisfied that it is reasonable and proper for a lease to be made, it may direct the making of the lease.

The provision does not apply to a state authority, private residence or harbour authority.  However, subject to this, it applies to lands or premises which are not being put to some bona fide use within the limit of one-quarter mile of a harbour. A party may be directed to enter a lease in these terms.

Roads within the harbour may be maintained by the harbour authority instead of the road authority. The harbour authority may exercise certain policing powers themselves.

Port Companies

The Harbours Act 1996 provided for the management of certain harbours to be passed to newly incorporated companies. The port company’s duty is to upgrade the harbour in a cost-effective, efficient manner, generating their own capital.

Port companies may charge harbour charges on ships entering the harbour using the quays, anchorage or moorings or plying within the harbour.  They may also charge owners, consignors, consignees and other persons for whom services are provided.  Different rates of charges may be imposed by the company in different circumstances.  Harbour charges are recoverable as a debt. The evasion of harbour charges is an offence.

Security may be required for harbour charges. Ships and goods may be detained in much the same manner as under the   Harbours Act in respect of unpaid harbour charges.

There are revised provisions in respect of compulsory acquisition of land by harbour companies.

Port Company Governance

The directors of the company are to be appointed by the Minister for Finance for a five-year period. The Minister for Finance may guarantee borrowings at port companies.  The Minister may make available capital monies for financing capital works.

Harbour companies are obliged to report to the Minister annually.  The Minister may require performance audits.  The port companies are to be under the management of a chief executive.  The chief executive is to be a director.  The chief executive is to be retained on such terms as may be determined by the Minister with the approval of the Minister for Finance.

Functioning

Generally, the existing legislation in respect of harbours are applicable to harbour companies.

The 1996 Act repeats much of the above powers of the harbourmasters in relation to giving directions, ship statements, powers to inspect documents, restriction on goods within the harbour, obstruction of harbour officers, and appointment of harbour police.

The legislation allows for harbours to be established in respect of the following.

Arklow, Cork, Drogheda, Dundalk, Dublin, Dun Laoghaire, Foynes, Galway, New Ross, Shannon, Waterford, Wicklow.

The legislation defines the limits of the harbours and pilotage districts.

Duties & fees

Lighthouse authorities levy light dues in relation to ships by way of a periodic payment.  The scale of light dues is prescribed from time to time. The general lighthouse authority or its collector may invoice the same to the registered owners in the registrar of ships.

Annual flat fees are payable in respect of tug and pleasure craft.  There is a range of exemptions, including for certain light ships, state-owned ships, small tugs, non-profit sea fishing, harbour maintenance, pollution control, and ships navigating within the limits of a harbour authority.

Local Marine Boards

The Merchant Shipping Act constituted local marine boards under the supervision of the government Department.  They were obliged to account to the Department in relation to their proceedings. Officers of the mercantile marine boards were appointed centrally.  The surveyor of ships may be appointed as a ship surveyor or engineer surveyor or both.

Harbours Act 2015

The primary purpose of the Act is to provide a legislative basis to the 2013 National Ports Policy recommendation that control of the five designated Ports of Regional Significance (Drogheda, Dún Laoghaire, Galway, New Ross and Wicklow is transferred to more appropriate local authority-led governance structures.

The Act provides for two possible transfer options –

• A Ministerial power to transfer the shareholding of the companies to a relevant local authority and provide for certain matters relating to the future administration of any such company;
• A Ministerial power to dissolve the companies and transfer all assets, liabilities and employees to a relevant local authority;

Furthermore, the Act will also –

• Amend the Harbours Acts 1996;
• Amend the Merchant Shipping Act 1992; and
• Amend the Fishery Harbour Centres Act

The ‘Minister’ means the Minister for Transport, Tourism and Sport;

Substituted Provisions

The 2015 Act repeals the Harbours Acts 1946 and 1947. These Acts relate to the administration and operation of what were known as ‘harbour authorities’. With the enactment of the Harbours Act 1996, a process commenced which resulted in the dissolution of all ‘harbour authorities’ through their corporatisation as port companies, transfer to local authority / port company control or designation as a fishery harbour centre.

Each change in status resulted in the repeal of the Harbours Act 1946 with respect to individual harbours. Therefore a ‘harbour authority’ as provided for, and administered by, the Harbours Acts 1946 and 1947 no longer exists.

Part 2 of the 2015 Act provides for the first of the two transfer options – transfer of shareholding of a port company – which allows for a Ministerial order to transfer the current Ministerial shareholding in a port company to a relevant local authority. Provision is also made to amend certain sections of the Harbours Act 1996 to reflect the new local authority shareholding in the administration of the transferred companies.

Shareholding of company

The first of the two possible transfer options provides for a Ministerial order, made with the consent of the M/Public Expenditure and Reform and the M/ Environment, Community and Local Government, to transfer the shares held in any port company listed in Schedule 1 of the Act (Drogheda, DúnnLaoghaire, Galway, New Ross and Wicklow to a local authority named in the order on the day named in the order. The transfer shall not be subject to any payment by the local authority.

The 2015 Act establishes a new power in respect of the share capital of any transferred company. A local authority chief executive may, subject to the consent of the elected council and the Minister (given after consultation with the M/Environment, Community and Local Government and the M/Public Expenditure and Reform, dispose of shares in any transferred company. Any disposal can only be up to a maximum of 49% of the share capital in a transferred company.

The Minister retains power of policy direction to a transferred company in respect of issues relating to National Ports Policy. Any such direction can only issue after consultation with the M/ Environment, Community and Local Government and the local authority chief executive concerned.

Non-application of certain provisions

The 2015 Act lists 17 sections of the Harbours Act 1996 which no longer apply to a transferred company. The Fifth Schedule to the Harbours Act 1996 will also no longer apply to a transferred company. All other sections of the Harbours Act 1996 will continue to apply to a transferred company.

These sections relate to the administration of companies and detail the approval or consent function of the shareholder under certain circumstances. As the shareholding will now vest in the relevant local authority instead of the Minister, these sections should no longer apply and sections 13 to 27 and Schedule 3 of the Act provide for an amended version of the relevant sections of the original Act to apply to any transferred company.

List of sections of the Harbours Act 1996 which will no longer apply

• form of memorandum of association: now s13 of Act
• commercial activities outside harbour limits: now s15 of Act
• Provisions with respect of sale of land : now s16 of Act
• Articles of association: now s13 of Act
• restriction on alteration of Memorandum & Articles of Association: now s14 of Act
• Payment of dividends: now s17 of Act
• Power to borrow: now s18 of Act
• Accounts and audits: now s19 of Act
• Annual reports etc.: now s20 of Act
• Performance audits: now s21 of Act
• Employee, local authority and other directors: now s22 of Act
• Disclosure by directors of certain interests: now s24 of Act
• Chief Executive: now s25 of Act
• CEO to be director: now s25 of Act
• Superannuation schemes: now s26 of Act
• Existing superannuation schemes: now s26 of Act
• General Ministerial powers: now s10 and s27 of Act
• Fifth Schedule (Election of employee directors: now Schedule 3 of Act

Chairperson and directors of transferred company

• Directors will be appointed by the local authority chief executive for a maximum period of 5 years (subsection 2(b;
• The appointment process generally must adhere to any Government or nationally agreed guidelines on appointments to State boards (i.e. the new D/PER system launched in February 2015
• A prospective Chairperson shall, if invited, appear before the elected members of the local authority prior to formal appointment (unless that appointment is for one year or less
• Overall term limits of 10 years for directors
• Statutory skillsets – each board must comprise a director with experience and competence in maritime transport services, a director with experience and expertise in financial matters, a director with experience and expertise in legal matters and a director with experience and expertise in trade and commerce (subsection 7(a;

The 2015 Act  lists other skills that a local authority chief executive may have regard to when considering appointments;

• A director must be appointed to represent employee interests or if the total number of employees is greater than 30 then it outlines the procedure to follow to elect an employee director
• Gender balance –  states that a local authority chief executive shall as far as practicable, ensure an equitable balance between men and women on a board;
• The remuneration and expenses of directors shall be determined by the local authority chief executive with the consent of M/Public Expenditure and Reform.
• Commercial port users are prohibited from being appointed to the board

Accountability  to Local Authority

If invited by the elected members of the relevant local authority, the chairperson and CEO of a transferred company shall appear before them and give an account for the administration of the transferred company.

Any account shall, subject to preserving confidentiality relating to commercially sensitive information, relate to the functions of the transferred company as set out in the 2015  Act and the Harbours Act 1996. No invitation to appear can be issued within six months of the last invitation.

The 2015 Act grants a power to the local authority chief executive to remove a director from the board of a transferred company if that director fails to disclose his/her outside interest in an issue under discussion at a board meeting and absent him/herself etc..

Chief executive

A chief executive of a transferred company shall be appointed by the directors of the company after consultation with the local authority chief executive. The terms and conditions of employment of a chief executive of a transferred company shall be determined by the directors of the transferred company with the consent of the local authority chief executive given with the approval of the M/Public Expenditure and Reform.

A person who is a chief executive of a port company on the day of its transfer to local authority shareholding shall continue to hold office.

General policy power of direction

The local authority chief executive has the power to issue a direction relating to a general policy of the local authority to a transferred company. The power is a general power of policy direction only and expressly precludes a direction from requiring a company to act in a particular manner in a given instance.

Part 3 of the 2015 Act provides for the second transfer option – transfer and dissolution of a port company – which dissolves the current company and transfers all functions, property, rights and liabilities to a relevant local authority. Provision to draw up final accounts for the dissolved company is also included.

Transfer and dissolution of company

The 2015 Act provides the second of the two possible transfer options; It provides for a Ministerial order, made with the consent of the M/Public Expenditure and Reform and the M/Environment, Community and Local Government, to dissolve the port company named in the order and transfer the harbour to the local authority named in the order on the day specified in the order.

The section continues to enforce any bylaws made by the port company prior to dissolution, which can then be amended by the local authority in the future.

Harbour and pilotage limits

The 2015 Act  continues the harbour and pilotage limits of any dissolved company as set out in the Third Schedule to the Harbours Act 1996. The section also provides that, where applicable, the local authority shall be the body responsible for organising pilotage under section 56 of the Harbours Act 1996 and Part IV of that Act generally.

Bantry Bay Harbour and Dundalk Harbour

Part 4 of the 2015 Act contains two enabling provisions designed to allow the possible future transfer of Bantry Bay Harbour to the control of Cork County Council and Dundalk Port to the control of Louth County Council if that is considered appropriate at some future date. It also contains a section relating to pilotage within Dundalk Harbour.

Future transfer of Bantry Bay harbour

The 2015 Act provides for a possible future transfer of control of Bantry Bay harbour from the Port of Cork Company to Cork County Council. Any transfer order can only be made with the consent of the M/Environment, Community and Local Government and after consultation with the Port of Cork Company..

Dundalk harbour

The 2015 Act provides for a possible future transfer of control of Dundalk Port from Dublin Port Company to Louth County Council. Any transfer order can only be made with the consent of the M/Environment, Community and Local Government and after consultation with Dublin Port Company..

The 2015 Act formally re-establishes a separate pilotage district for Dundalk harbour as per its pre-2011 limits, which are set out in Part II of the Third Schedule to the Harbours Act 1996. Upon the dissolution of Dundalk Port Company and transfer of its functions to Dublin Port Company, the pilotage limits of Dublin were re-ordered to include Dundalk’s; however, at a practical level, it is more appropriate to re-establish Dundalk as a separate pilotage district with Dublin as the authority responsible for the organisation of pilotage.

The 2015 Act provides for a number of largely technical amendments to the existing Harbours Act 1996.

Boards

The 2015 Act codifies board-related provisions. The new elements it introduces to the existing corporate governance structure are –

• A prospective Chairperson must appear before the joint Oireachtas Committee prior to appointment (unless that appointment is for one year or less
• Term limits of 10 years for directors
• Statutory skillsets – each board must comprise a director with experience and competence in maritime transport services, a director with experience and expertise in financial matters, a director with experience and expertise in legal matters and a director with experience and expertise in trade and commerce

The Act  lists other skills that a Minister may have regard to when considering appointments;

• Gender balance –a Minister shall as far as practicable, ensure an equitable balance between men and women on a board;
• New Guidelines on Board Appointments –requires the selection process generally to adhere to any Government or nationally agreed guidelines on appointments to State boards.

The amendments will not affect the balance of term of office of any existing director.

Accountability to  Committees

If invited, a chairperson and CEO shall appear before the Joint Oireachtas Committee to give an account of the administration of the company. Any account shall, subject to preserving confidentiality relating to commercially sensitive information, relate to the functions of the company.

The 2015 Act provides  a Ministerial power to transfer functions of one port company to another or to amalgamate port companies. This is to ensure that any such order proposed to involve a transferred port company can only be made with the consent of the M/Environment, Community and Local Government after consultation with the local authority chief executive concerned.

The 2015 Act provides a Ministerial power to alter the limits of a harbour under the control of a local authority. It provides the necessary principles and inserts the necessary principles and policies, which are identical to those previously inserted into section 9 of the n relation to alteration of a port company’s harbour limits.

The 2015 Act confirms that harbour masters at the Fishery Harbour Centres can exercise the powers of harbour masters under relevant legislation and to clarify the fixed payment notice provisions under the Act.

Fishery Harbour Amendment

The Fisheries Harbour Act is amended by increasing maximum fines to €3000 from £500 in respect of breach of bye-laws.  Similar amendments are made in respect of the Merchant Shipping Act provisions in relation to summary offenses for contravention of safety regulations for pleasure craft.

There are provisions for increases of fixed penalty payments to €150 from £100 under the 1992 Act.  There is also provision for increase of penalties from £2,500 to €2000 and to three months imprisonment from one month in respect of careless operation of a prescribed vehicle or prescribed class of mechanically propelled pleasure craft.

The maximum fines for conviction on indictment and summary conviction, respectively, for the offence of dangerous operations in the Irish waters of a prescribed vehicle or vessels of a prescribed class are increased, while the maximum imprisonment period is reduced to six months.

The Harbours Act is amended by providing for an increase in penalties and greater provision for on-the-spot fines.  The Fishery Harbours Act.