Pier and Harbour Provisional Order Confirmation (No. 2) Act, 1940

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SCHEDULE.

TRALEE AND FENIT PIER AND HARBOUR ORDER, 1939.

ORDER FOR EMPOWERING THE TRALEE AND FENIT PIER AND HARBOUR COMMISSIONERS TO CONSTRUCT AND MAINTAIN NEW WORKS AT FENIT HARBOUR IN THE COUNTY OF KERRY AND FOR OTHER PURPOSES.

ARRANGEMENT OF SECTIONS.

Schedule.

Short title.

1. This Order may be cited as The Tralee and Fenit Pier and Harbour Order, 1939, and this Order and the Tralee and Fenit Pier and Harbour Orders, 1880, 1888, 1907, 1909 and 1920 (in this Order referred to as the Tralee and Fenit Pier and Harbour Orders, 1880 to 1920), may be cited as the Tralee and Fenit Pier and Harbour Orders, 1880 to 1939, and said Orders are to be incorporated with this Order and are to be read therewith.

Commencement.

2. This Order shall come into force upon the day when the Act confirming this Order shall become law and which day is in this Order referred to as “the commencement of this Order.”

Interpretation.

3. In this Order unless the subject or context otherwise requires the following expressions shall have the meanings hereinafter assigned to them, that is to say:—

“the Commissioners” means—the Tralee and Fenit Pier and Harbour Commissioners.

“the existing harbour” means—the Tralee and Fenit pier and harbour as existing at the commencement of this Order.

“the Council” means—the County Council of the County of Kerry.

“the harbour” means and includes the existing harbour and the lands, works and premises acquired or constructed under the provisions of this Order and the conveniences connected therewith.

“the pier” means—the existing pier at Fenit with the added works authorised by this Order.

“the Minister” means—the Minister for Industry and Commerce.

Power to construct works.

4. Subject to the provisions of this Order and subject also to such alterations (if any) in the plans, sections and in the lines and levels shown on the plans deposited with reference to this Order as may be deemed expedient by the Minister, the Commissioners may construct and maintain in the harbour and tidal waters of Fenit and in the extra parochial places thereof and at Samphire Island in the townland or extra parochial places of Fenit Without in the Parish of Fenit in the Barony of Trughenackmy and County of Kerry the works authorised by this Order as hereinafter described and shall be the undertakers of the said works.

Description of works.

5. The works authorised by this Order are as follows:—

Work No. 1—A new viaduct (open work) 1 furlong 3.4 chains or thereabouts in length in substitution of the existing viaduct and commencing at the northern end of the existing west quay and terminating at the southern end of the existing Fenit (northern) causeway with line of rails laid thereon so placed that the upper surface of any such rails shall be level with the finished surface of the said new viaduct.

Work No. 2—The widening of the entire eastern side of existing northern causeway 7 chains or thereabouts in length.

Work No. 3—The widening (open work) of the northern side of the existing southern main pier for its entire length of 1 furlong 1.37 chains or thereabouts and the provision thereon of crane tracks, railway lines, switches and crossings so placed that the upper surface of any such crane tracks, railway lines, switches and crossings shall be level with the finished surface of the said work.

Work No. 4—The construction of a roadway over the entire pier or any part thereof with the finished surface of said road not lower than the upper surface of any rail or rails laid in, on, upon or through said pier or any part thereof.

Power to deviate.

6. In executing the works authorised by this Order the Commissioners may, with the consent in writing of the Minister, deviate laterally to any extent within the limits of deviation marked on the deposited plans and may, with the like consent, deviate vertically from the levels of those works as shown on the deposited sections to any extent.

Time limited for works.

7. The works authorised by this Order shall be completed within 5 years from the commencement of this Order. Subject to the provisions of this Order, if the specified works are not completed within 5 years from the commencement of this Order then, on the expiration of that period, the power by this Order granted to the Commissioners for making and completing the specified works or otherwise in relation thereto shall cease except as to so much thereof as is then completed, but nothing herein contained shall restrict the Commissioners from maintaining, using, altering, replacing, relaying or removing any of the specified works by this Order authorised at any time and from time to time as occasion requires.

Limits of Order.

8. The limits within which the Commissioners shall have authority and within which the power of the harbour master may be exercised and which shall be deemed to be the limits to which this Order and the power to make bye laws and to levy and collect rates, tolls and charges extend shall be the harbour as defined by this Order.

Protection of telegraphs.

9. Nothing in this Order contained shall authorise any interference with any telegraphic lines of the Minister for Posts and Telegraphs as defined by the Telegraph Acts, 1863 to 1928, or other property of the Minister for Posts and Telegraphs or any of the rights of the Minister for Posts and Telegraphs under the said Acts.

Working agreements.

10. The provisions of section 11 of the Tralee and Fenit Pier and Harbour Order, 1888, shall extend to the works authorised by this Order.

Power to borrow.

11. The Commissioners may with the consent in writing of the Minister first had and obtained, from, time to time borrow on mortgage or bond such moneys not exceeding in the whole the sum of £28,000 as may be required for the purposes of this Order on the security of the rates, dues, tolls, and charges authorised by the Tralee and Fenit Pier and Harbour Orders, 1880 to 1920, and this Order.

Form of mortgage and transfer of mortgage.

12. Notwithstanding anything in the Commissioners Clauses Act, 1847, contained, a mortgage to be made by the Commissioners under this Order may be made in such form and subject to such terms and conditions as the Commissioners may, with the approval of the Minister, agree upon with the lender; and a transfer of any such mortgage may be in any form usual or necessary for effectually transferring the right and interest of the person entitled to such mortgage to the person to whom it is intended to transfer the same.

Priority of mortgages.

13. The provision contained in section 75 of the Commissioners Clauses Act, 1847, with respect to the priority of mortgages shall not apply to any mortgages to be made by the Commissioners.

Application of moneys borrowed.

14. All moneys borrowed by the Commissioners under this Order shall be applied in or towards the purposes of this Order and not otherwise.

Payment of moneys borrowed.

15. The Commissioners shall pay off all moneys borrowed by them under this Order in manner following:—

(a) in the case of any moneys advanced to the Commissioners out of public funds, within such a period, upon such terms and conditions, and in such manner as the Minister, with the approval of the Minister for Finance, may direct; and

(b) in the case of any other moneys advanced, within such a period, upon such terms and conditions, and in such manner as the Minister may direct.

Protection of lenders.

16. (1) Any person advancing money to the Commissioners shall not be bound to require any further or other evidence of the power of the Commissioners to borrow the money advanced by such person than such as is afforded:—

(a) by a certificate signed by the Clerk or Secretary to the Commissioners and two of the Commissioners that the Commissioners are not exceeding the powers of borrowing conferred on them by this Order;

(b) by inspection of the Register of Mortgages by section 76 of the Commissioners Clauses Act, 1847, required to be kept by the Commissioners.

(2) Where a loan has been granted to the Commissioners on the security of a mortgage of the rates, tolls, dues and charges of the Commissioners and has been expended upon the works authorised by this Order, or for the benefit of the Commissioners' harbour and undertaking, the mortgage of the rates, tolls, dues and charges shall be valid and may be enforced notwithstanding any defect in the power or title of the Commissioners and in particular the lender may, although the Commissioners were not legally constituted, or are dissolved, or are otherwise incapable and always were incapable of making, levying or mortgaging such rates, tolls, dues and charges, have the same power of making and levying and enforcing the making or levying the said rates, tolls, dues and charges for the purpose of repaying such loan and interest and all other sums due under the mortgage as if the Commissioners had been duly constituted and were not dissolved and had full power to make, levy and mortgage such rates, tolls, dues and charges.

Power to Council to exercise power of rating authority under the Public Works Loans Act, 1882.

17. (1) The Council being a rating authority as defined by section 7 of the Public Works Loans Act, 1882 , as extended by section 4 of the Public Works Loans Act, 1887 , may, subject to the provisions of this Order, for the purpose of aiding the Commissioners in borrowing in the manner specified in the said section 7 any money authorised by this Order to be borrowed, or any part thereof, exercise the powers of guarantee specified in the said section 7.

(2) The Council shall not exercise the power of guaranteeing as aforesaid save in pursuance of a special resolution to that effect, such special resolution to be passed at one meeting of the Council and published once at least in two successive weeks in a local newspaper circulating in the County Kerry and confirmed at a second meeting of the Council to be held not less than fourteen days after the first publication of such resolution and not less than three months after the meeting at which the resolution was passed.

(3) In the event of a special resolution being duly passed, published and confirmed as aforesaid, the principal and interest of any loan raised by the Commissioners under this Order and in pursuance of and in accordance with such resolution shall be charged by way of guarantee on the rates under the control of the Council.

(4) If in any year, so long as any guarantee of the Council under this Order is in force, the harbour revenue is insufficient to provide for the repayment in the manner to be directed under section 15 of this Order relating to payment of moneys borrowed of any loan to which such guarantee relates, the Commissioners shall by writing under the hand of their Clerk or Secretary claim payment from the Council of such sum as they shall deem to be the amount of such deficiency. Such amount when paid to the Commissioners shall be applied by them in meeting the actual deficiency and for no other purpose, and if there is any surplus of such amount after paying the actual deficiency such surplus shall be repaid to the Council.

(5) If the Council make default in fulfilling their guarantee in the manner by this Order provided the Commissioners may recover the amount due thereunder as a simple contract debt in any court of competent jurisdiction or the Minister may, either on the application of the Commissioners or without such application, order the Council to remedy their default and such order may on the application of the Minister or of the Commissioners be made a rule of the High Court.

(6) All sums paid by the Council to the Commissioners in fulfilment of their guarantee shall be repaid by the Commissioners to the Council with interest at the rate of three and a half per cent. per annum from the date of payment as soon as the resources of the Commissioners will admit, and any doubt or difference as to the time or amount of any such payment shall on the application of the Council be settled by an arbitrator to be appointed by the Minister. Any sum which an arbitrator so appointed shall find to be due and payable from the Commissioners to the Council may be recovered by the Council from the Commissioners as a simple contract debt in any court of competent jurisdiction and the award of the arbitrator duly signed and published by him shall be conclusive proof in any court that such sum is due and payable to the Council by the Commissioners.

(7) All the money repaid by the Commissioners pursuant to the foregoing sub-section shall be carried to the credit of the fund or rate out of which any payments have been made by the Council on account of their guarantee.

(8) The Council shall raise equally over the whole of the County of Kerry, by means of the poor rate, but as a separate item thereof, any sums from time to time required for the fulfilment of their guarantee.

Reserve Fund.

18. The Commissioners may at any time and from time to time with the consent of the Minister and subject to such conditions as he may think fit to impose

(a) establish for a specified purpose a depreciation contingency or other reserve fund not exceeding £10,000;

(b) subject to the provisions of section 20 of this Order appropriate and set aside amounts to any such fund;

(c) invest the moneys lying in any such fund in securities in which trust moneys may be invested or place such moneys on deposit at any Bank carrying on business in Éire;

(d) invest or place on deposit with any such Bank the interest or dividends arising from any such investment or bank deposit as and when received so as to allow of same accumulating in such fund at compound interest or credit same to the income of the Commissioners or otherwise;

(e) apply the whole or any portion of any investments or moneys in such fund to the purpose for which such fund was established.

Priorities of money due under proposed guarantee.

19. The obligation of the Commissioners to repay to the Council any sums now due or hereafter to become due by way of principal or interest under or by virtue of a certain indenture of mortgage dated the 9th day of March, 1883, made between the Commissioners of the one part and Robert John Fitzgerald, Secretary of the Grand Jury of the County of Kerry, of the other part or under or by virtue of a consent dated the 16th day of November, 1925, entered into between the Council and the Commissioners for the settlement of an action entitled “Saorstát Eireann, High Court of Justice, Record No. 1917/814, Between the County Council of the County of Kerry, Plaintiffs and the Tralee and Fenit Pier and Harbour Commissioners Defendants” which consent was made a rule of court on the 8th day of December, 1925, shall from the commencement of this Order be postponed to the obligation of the Commissioners to repay any sums which may be borrowed by the Commissioners under and by virtue of the provisions of section 11 of this Order.

Order of application of revenue.

20. Notwithstanding anything contained in any existing Acts or Orders, the Revenue accruing to the Commissioners shall be applied by the Commissioners for the purposes and in the order following and not otherwise:

(1) in the payment of the costs of and connected with the preparation and making of this Order;

(2) in payment of the expenses properly chargeable to revenue of the maintenance repair and management of the works and property vested in them or under their control;

(3) in payment of the interest and repayment of the capital of any sums borrowed by them under the powers and provisions of this Order;

(4) in the formation of any depreciation contingency or other reserve fund as provided for by section 18 of this Order;

(5) in repayment to the Council of any sums which the Council may have paid under the guarantee provided for by section 17 of this Order;

(6) in repayment to the Council of any sums due for interest or principal under and by virtue of the said indenture of mortgage dated the 9th day of March, 1883, and made between the Commissioners of the one part and Robert John Fitzgerald, Secretary of the Grand Jury of the County of Kerry, of the other part and under and by virtue of a judgment dated the 27th day of April, 1920, which judgment was affirmed by the Court of Appeal in Ireland on the 3rd day of November, 1920, in an action entitled “In the High Court of Justice in Ireland Chancery Division Mr. Justice Barton between the County Council of the County of Kerry Plaintiffs and The Tralee and Fenit Pier and Harbour Commissioners, Defendants (Record No. 1917/814)” and under and by virtue of the Order on consent made in said action and referred to in section 19 of this Order and all consequential orders duly made and perfected pursuant to such judgment;

(7) in payment of any interest and repayment of any principal in respect of any of the loans which may be due for the time being by the Commissioners to any person or body;

(8) to such further or other purposes as the Minister may direct,

Existing rates apply to the new works.

21. Subject to the provisions of this Order, the works authorised by this Order shall for the purpose of the rates, tolls, dues, duties and charges which may be demanded and received by the Commissioners and for all other purposes be part of the harbour and undertaking of the Commissioners under the Tralee and Fenit Pier and Harbour Orders, 1880 to 1920, and the powers and provisions of the said orders as amended by this Order shall extend and apply to the works authorised by this Order.

Alteration of tonnage duties and rates on goods.

22. The tonnage duties, the duties for boats exclusive of their cargoes, the rates on goods, passengers and ballast and the rates for the use of cranes, weighing machines and sheds authorised by the Tralee and Fenit Pier and Harbour Orders, 1880 to 1920, shall be modified to the extent and in the manner as specified in the Schedule to this Order.

Customs officers.

23. Customs officers, officers of the Department of Industry and Commerce and of the Department of Agriculture and members of the Gárda Síochána acting in the exercise of their duties shall have at all times free ingress passage and egress to, along and from the harbour and works without payment.

Consent of the Minister to certain works.

24. (1) Where any of the works authorised by this Order is to be constructed, on, over, or under tidal lands below high water mark of ordinary spring tides, the construction thereof shall be subject to the consent of the Minister and every such work to be so constructed as aforesaid shall be constructed in accordance with such plans and sections as the Minister may approve and subject to such restrictions (if any) and regulations as the Minister shall, prior to the commencement of the work, prescribe.

(2) Every alteration in or extension of any such work as aforesaid shall be subject to the consent of the Minister, and shall be made in accordance with plans and sections approved by him.

(3) Where any such work as aforesaid:—

(a) is commenced without the consent of the Minister, or

(b) is constructed in a manner not in accordance in all respects with the plans and sections approved by the Minister for the construction of that work, or

(c) is altered or extended in a manner not in accordance in all respects with the plans and sections approved by the Minister for the alteration or extension of such work,

the Minister may, at the cost of the Commissioners, remove such work or any part thereof or any extension thereof so made as aforesaid and the amount of such cost shall be a debt due by the Commissioners to the Minister and shall be recoverable by him as a simple contract debt in any Court of competent jurisdiction.

Penalty for obstructing works.

25. Any person who wilfully obstructs any person acting under the authority of the Commissioners in setting out the lines of the works authorised by this Order, or who pulls up or removes any poles or stakes driven into the ground for the purpose of setting out the lines of those works shall be guilty of an offence under this section and on summary conviction thereof shall be liable to a penalty not exceeding five pounds.

Contracts.

26. Section 57 of the Commissioners Clauses Act, 1847, with respect to contracts to the amount of one hundred pounds or upwards, as incorporated with this Order, shall be read and construed as if the words “One hundred pounds” therein contained had been deleted and there had been inserted in lieu thereof the words “two hundred and fifty pounds” and the said section, as so incorporated, shall have effect accordingly.

Duty of Commissioners to exhibit lights during construction of works.

27. (1) It shall be the duty of the Commissioners during the whole time of constructing, altering or extending any of the works authorised by this Order below high water-mark, to exhibit and keep burning at their own expense at or near any such work in course of construction, alteration or extension, every night from sunset to sunrise such lights (if any) and to take such steps for the prevention of danger to navigation as the Commissioners of Irish Lights or other the general lighthouse authority for the time being may from time to time require or approve.

(2) It shall be the duty of the Commissioners to exhibit and keep burning at their own expense at the outer extremity of every work (when completed) authorised by this Order every night from sunset to sunrise such lights (if any) and to take such other steps for the prevention of danger to navigation as the Commissioners of Irish Lights or other the general lighthouse authority for the time being may from time to time require or approve.

(3) If and whenever the Commissioners fail to comply with any of the provisions of this section they shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and, in the case of a continuing offence, to a further fine not exceeding five pounds for each day on which such offence is continued.

Provision against danger to navigation.

28. If any work or part of any work authorised by this Order is injured or destroyed or falls into decay, the Commissioners shall lay down buoys, exhibit such lights, or take such other means for preventing, so far as may be, danger to navigation as shall from time to time be directed by the Commissioners of Irish Lights or other the general lighthouse authority for the time being and shall apply to such authority for directions as to the means to be taken, and if the Commissioners shall omit so to apply or refuse or neglect to take the means so directed, they shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and, in the case of a continuing offence, to a further fine not exceeding five pounds for every day on which such omission, refusal or neglect continues.

Certain lands reclaimed to belong to the State.

29. If in the course or by means of the execution of any work authorised by this Order any part of the shores or bed of the harbour or of the sea beyond the limits of the harbour which by Article 10 of the Constitution belong to the State shall be inned, gained or reclaimed from the water, the Commissioners shall not have or exercise any right thereon or in respect thereof, but such inning, gaining, or reclamation of lands so belonging to the State shall enure absolutely for the benefit of the State, and it shall not be lawful for the Commissioners to enter upon or interfere with the lands so inned, gained or reclaimed save in pursuance of a lease or licence under the law for the time being relating to State lands or foreshore.

Certificate of completion of authorised works.

30. For the purpose of evidence of the completion of the works authorised by this Order, a certificate under the Seal of the Minister shall be substituted for the certificate under the hand of the Chairman of the Quarter Sessions under section 26 of the Harbours Docks and Piers Clauses Act, 1847 .

Rates may be levied though works not complete.

31. If it is at any time certified in writing under the hand of an Officer to be appointed for the purpose by the Minister, but to be paid by the Commissioners, that the works authorised by this Order have been so far completed as to afford accommodation for the shipping and unshipping of goods by means of such works the Commissioners may, notwithstanding section 25 of the Harbours Docks and Piers Clauses Act, 1847 , and although the whole of the works authorised by this Order have not then been completed, demand, recover and receive such of the rates or such proportion of all or any of the rates specified in the Schedule to this Order as shall in the opinion of the Minister be commensurate with the accommodation afforded.

Exemptions and savings for Government Departments.

32. Sections 28 and 99 of the Harbours Docks and Piers Clauses Act, 1847 , as incorporated with this Order, shall apply to and for the benefit of any government department in the same manner as they apply to and for the benefit of the government departments specially named in those sections.

Life saving apparatus.

33. The Commissioners shall at all times keep a sufficient number of lifebuoys and lines in good order and fit and ready for use at reasonable distances, and in accordance with any requirements which may be made by the Minister, along the premises and works belonging to them.

Saving rights of the State

34. Nothing in this Order shall affect any property real or personal vested in the State or in any Minister of State or in any board or body exercising any functions of government or public administration or be construed to restrict or prejudice the rights of the State or any right, power, privilege or duty vested by law in any Minister of State or any officer of the State, and in particular any powers of creating, constructing, altering or extending any works on any such property as aforesaid, shall not be construed to confer on the Commissioners any rights of entry into or any estate or interest in any such property, but this section shall not operate to prevent the exercise in accordance with this Order by the Commissioners of such powers if and when such right of entry as aforesaid has been duly obtained according to law by the Commissioners.

Cables, pipes or wires under or across tidal waters.

35. Notwithstanding anything contained in this Order, any cables, pipes or wires to be laid or placed by the Commissioners under or across any tidal water shall be laid or placed at such depth under or at such height over such tidal water as the Minister may require.

Costs of Order

36. All costs, charges, fees and expenses of or incidental to preparing and obtaining this Order or otherwise incurred in relation thereto shall be paid by the Commissioners out of any of their funds.

Schedule Referred to in the Foregoing Order.

The Tonnage Duties, the Duties for boats exclusive of their cargoes, the rates on goods, passengers and ballast and the rates for use of cranes, weighing machines and sheds shall be those respectively authorised by the Tralee and Fenit Pier and Harbour Orders, 1880 to 1920, save that so much of Part 1 of the Tralee and Fenit Pier and Harbour Order, 1920, as provides, in the case of certain vessels engaged in regular trade, for payment of one-half of the tonnage duties specified in the said Part 1 shall cease to have effect.