Friday, June 15, 2012

The Eihatsu Maru Did Not Require a Foreign Fishing Vessel Licence? Really?

The Department of Fisheries' Lionel Adendorff issued a bizarre statement on 14 June 2012 stating that "[f]ollowing recent highly irresponsible untruths and misrepresentations concerning the tuna longliner, the Eihatsu Maru, the Chinese-owned fishing vessel that ran aground in Cape Town last month, the Department of Agriculture, Forestry and Fisheries would like to state for the record that vessel did not require or was not issued with a foreign fishing vessel licence in accordance with Section 39 of the Marine Living Resources Act of 1998 (MLRA), as it was not, as a prerequisite of this section,  “used for fishing or related activities in South African waters”.

Adendorff continues to state that an application for a "permit to enter South African waters was received, processed and granted to allow the Eihatsu Maru to use port facilities; bunkering, stocking up on supplies and discharging of cargo, and it was valid from 8th of May until the 8th of June. An extension, that will expire in July, was also granted. DAFF is not responsible for the implementation of the Wreck and Salvage Act of 1996 (WSA) and can therefore not be held responsible for any salvage operations or its related costs.

It is therefore clear that those who mislead the public and confuse matters have no or little understanding of the MLRA or even the WSA and while this lack of knowledge is aimed at tarnishing the integrity and reputation of DAFF or its Ministry, it is rather a reflection of those who spread these fallacies."

As Feike issued the statement on our BLOG, he is clearly referring to us in this regard and that we have no understanding of the MLRA. 

As the Business Day editorial states today, Mr Adendorff's statement (with regard to another foolish statement by him) can only be described as "breathtaking in its stupidity" but also an indication of just how the provisions of the MLRA are being violated and misapplied by the Fisheries Department. 

Ok, lets breathe a bit here and acknowledge what Mr Adendorff admits to in his statement: 

1. He confirms that the Eihatsu Maru is a fishing vessel. No dispute here so the MLRA is applicable.  
2. That the MLRA is applicable to the vessel is confirmed by the fact that he states a "permit to enter South African waters ... was granted". It is not clear in terms what provision of the MLRA a "permit" was issued to a foreign fishing vessel.
3. He further confirms that the permit was granted to allow the vessel to use "port facilities; bunkering, stocking up on supplies and discharging of cargo." Now, this is the crucial admission also because cargo refers to the many tons of tuna being transported by the vessel, presumably harvested on the High Seas. 

Ok, Mr Adendorff, this is where the reliance on a half decent lawyer would have prevented you making an absolute twit of yourself. The guy that edits this BLOG is a half decent lawyer who knows a little bit about the MLRA having provided half decent advice to a previous fisheries minister...So Mr Adendorff, its looking really bad for you.

How bad? Well Mr Adendorff not only confirms that the DAFF lacks even bad legal advisers, they confirm that they have just been allowing foreign fishing vessels into SA waters illegally! 

Back to the law. Right, what does Section 39 say? Section 39 (which is under "Part 6: Foreign Fishing" of the MLRA) states that - 

Foreign fishing vessel licences 
39. (1) No foreign fishing vessel shall be used for fishing or related activities in South African waters unless a foreign fishing vessel licence has been issued to such vessel.

So its very clear. A section 39 license MUST be issued to any foreign fishing vessel (ie the Eihatsu Maru) that is to be used for fishing or related activities in South African waters. Now Mr Adendorff states that the vessel was not being used for "fishing". Ok, let's accept that.

But Mr Adendorff states that the vessel had entered SA waters because it wanted to " use port facilities; bunkering, stocking up on supplies and discharging of cargo."

So any half decent lawyer would then run his (or her) fingers through the definition section of the MLRA and look up what "related activities" is defined by law to mean. (Not looking very good for Mr Adendorff; not looking good at all.)

Found the definition for "related activities"! Its states (full definition)

‘related activities’’ include— 
(a) storing, buying, selling, transshipping, processing or transporting of fish
or any fish product taken from South African waters up to the time it isfirst landed or in the course of high seas fishing; 
(b) on-shore storing, buying, selling or processing of fish or any fish product
from the time it is first landed; 
(c) refuelling or supplying fishing vessels, selling or supplying fishing
equipment or performing any other act in support of fishing; 
(d) exporting and importing fish or any fish product; or  
(e) engaging in the business of providing agency, consultancy or other
similar services for and in relation to fishing or a related activity.

So, based on Mr Adendorff's admissions, Section 39 certainly applies because - 

1. The Eihatsu Maru is a foreign fishing vessel;
2. The vessel wanted to use SA port facilities for bunkering and stocking up on supplies (para (c) of definition); 
3. The vessel wanted to discharge its cargo of fish (para (a) - transshipping, processing and transporting of fish taken in the course of (presumably) high seas fishing); and
4. We can assume that because it wanted to discharge its fish, it wanted to to store, sell or process the fish (para (b) of the definition). 

So, Mr Adendorff, it does not look like we published anything that was "highly irresponsible untruths and misrepresentations". 

In fact, Mr Adendorff, you have now confirmed that the Fisheries Department has been allowing foreign fishing vessels into South African waters in clear violation of section 39 of the MLRA. And further, that your department's incompetence and lack of understanding of our fisheries laws has now forced tax payers to incur unnecessary costs because had you issued the correct licence and adhered to the provisions under section 39 of the MLRA to the Eihatsu Maru the Fisheries Department could have called on the guarantees that ought to have been provided or claimed from the vessel's insurer. 

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