S.I. No. 212/1996 - Harbour Authority (Mortgage) (Amendment) Regulations, 1996.

S.I. No. 212 of 1996.

HARBOUR AUTHORITY (MORTGAGE) (AMENDMENT) REGULATIONS, 1996.

I, SEAN BARRETT, Minister for the Marine, in exercise of the powers conferred on me by section 126 of the Harbours Act, 1946 (No. 9 of 1946), and the Communications (Transfer of Departmental Administration and Ministerial Functions) Order, 1987 ( S.I. No. 91 of 1987 ), hereby make the following Regulations:

1. These Regulations may be cited as the Harbour Authority (Mortgage) (Amendment) Regulations, 1996.

2. (1) in these Regulations—

"the Minister" means the Minister for the Marine;

"the 1949 Regulations" means the Harbour Authority (Mortgage) Regulations, 1949 ( S.I. No. 56 of 1949 ).

"ship" means an Irish ship within the meaning of section 9 of the Mercantile Marine Act, 1955 (No. 29 of 1955) or a registered ship within the meaning of that Act.

(2) These Regulations apply to mortgages made under the Harbours Act, 1946 , (No. 9 of the 1946), by a harbour authority.

3. Regulations 3, 8, 9 and 11 of, and the schedule to, the 1949 Regulations are hereby revoked.

4. Subject to Regulation 5, the following provisions shall apply to mortgages to which these Regulations apply:

(a) in the case of a mortgage secured on the land or any part of the land of the harbour authority—

(i) it shall be by deed,

(ii) it shall be in the form specified in the First Schedule hereto, or to the like effect,

(iii) the mortgagee thereunder shall have all such powers as are specified in the mortgage and, save as otherwise expressly provided therein, shall have all such powers as are implied therein under or by virtue of the Conveyancing Acts, 1881 to 1911, and

(iv) it shall be sealed with the common seal of the harbour authority;

(b) in the case of a mortgage secured on or over a ship or a share therein

(i) subject to subparagraph (iii), it shall be in the form of mortgage for the time being authorised under section 50 of the Mercantile Marine Act, 1955 ,

(ii) it shall be sealed with the common seal of the harbour authority,

(iii) it may contain provisions conferring on the mortgagee an express power—

(I) to dispose of the ship or the share therein and to give effectual receipts for the purchase money, and

(II) to appoint a receiver,

(iv) the mortgagee shall neither exercise the power of sale nor the power of appointing a receiver referred to in subparagraph (iii) unless—

(I) in complying with the terms of mortgage, default shall have been made by the harbour authority concerned,

(II) notice in writing of the default, specifying that default and the amount then due on foot of the mortgage shall have been served on the harbour authority concerned and on the Minister, and

(III) the period of one month shall have expired after the date of the service of the said notice on the Minister and in the case of the Minister that notice shall be served by sending it to the Minister by prepaid registered post,

(v) a receiver appointed under a power in the mortgage—

(I) shall be, or shall be deemed to be, the agent of the harbour authority concerned who shall be responsible for the acts and defaults of the receiver,

(II) shall be entitled to retain out of any monies received by him, for his remuneration and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent. on the gross amount of all monies received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per cent. on that gross amount,

(III) shall have power to manage and operate the ship and the business of the ship,

(IV) shall have power to charter the ship on such terms as to the receiver shall seem just and expedient, and to receive the income of the ship and to give effectual receipts for all monies receivable out of or in respect of the ship,

(V) shall insure the ship and keep the ship insured in the full replacement value thereof with an insurance office of repute empowered to carry on a business in Ireland, in the name of the harbour authority concerned,and cause the interest of the mortgagee to be noted on the policy, and pay all premiums necessary for that purpose,

(VI) shall repair and keep the ship and all its fixtures, fittings and equipment in good order, repair and condition,

(VII) shall pay all rents, taxes, mooring charges and other outgoings payable out of or in respect of the ship,

(VIII) shall pay the balance of the income and all other monies receivable out or in respect of the ship in or towards satisfaction of the principal monies and interest due to the mortgagee under the mortgage,

(vi) the provisions of Regulation 4 (1) of the 1949 Regulations shall not apply to the mortgage and the 1949 Regulations are, in this regard, hereby amended,

(vii) where there are more mortgages than one registered under Regulation 5 of the 1949 Regulations in respect of the same ship or share, the mortgagees shall, notwithstanding any express, implied or constructive notice, be entitled in priority, one over the other, according to the date at which each mortgage is recorded in the register book, and not according to the date of each mortgage itself,

(viii) where there are more persons than one registered as mortgagees of the same ship or share, a subsequent mortgagee shall not, except under the order of a court of competent jurisdiction, sell the ship or share without the concurrence of every prior mortgagee;

(c) in the case of a mortgage secured on a chattel

(i) it shall be by deed;

(ii) it shall be in the form specified in the Second Schedule hereto, or to the like effect, and

(iii) it shall be sealed with the common seal of the harbour authority.

5. Notwithstanding Regulation 4 of these Regulations, a mortgage secured on any of the assets (including lands, vessels and chattels) of the harbour authority concerned or any part thereof may, subject to the following requirements, be in such form as may, on application in writing being made by the harbour authority in that behalf to the Minister in any particular transaction or transactions, be approved of by the Minister:—

(a) the mortgage shall be by deed,

(b) it shall state the consideration, the rate of interest payable, the provisions, if any, for the variation of the rate of interest/amount secured by the mortgage and the property the subject matter of the mortgage and the provisions for repayment of the loan and interest,

(c) it shall contain a provision that any power of sale conferred on the mortgagee under or pursuant thereto shall not be exercised until 1 month after the date of service on the harbour authority concerned and the Minister of a notice in writing specifying the default and the amount then due on foot of the mortgage,

(d) before the execution of the mortgage by the harbour authority the mortgage must be approved of in writing by the Minister, which approval shall be sufficiently signified if evidenced by a certificate from an officer of the Department of the Marine authorised by the Minister in that behalf and it shall not be necessary for the Minister to join in the mortgage for the purpose of signifying his approval thereof.

6. Regulation 5 of the 1949 Regulations is hereby amended—

(a) in paragraph (1), by the substitution for "in the form set out in Part 11 of the Schedule hereto" of the following:

"which shall contain a statement of the following:

(i) the date of the mortgage,

(ii) the name of the mortgagee,

(iii) the amount secured by the mortgage,

(iv) the rate of interest payable and whether the said rate of interest is variable,

(v) the date for repayment of the loan and interest and, if the loan and interest are repayable by instalments, the frequency of such repayments,

(vi) whether the loan and interest are repayable on demand

(vii) the property mortgaged, and

(viii) whether there has been a transfer of the mortgage from the original mortgagee and, if so, the date of such transfer and the name of the transferee."

and

(b) in paragraph (2), by the substitution for "in the form" of "in paragraph (1)."

7. Regulation 6 of the 1949 Regulations is hereby amended—

(a) by the deletion of paragraph (3) thereof, and

(b) in paragraph (5) by the substitution for "five shillings" of "£2".

FIRST SCHEDULE.

THIS INDENTURE OF MORTGAGE AND CHARGE made the  day of    One Thousand Nine Hundred and Ninety Six made between     ,     having its registered office at   ,  Harbour Authority, (hereinafter called "the Authority", which expression shall, where the context so admits or requires, include its successors and assigns) of the First Part and    having its registered office at (hereinafter called "the Mortgagee", which expression shall, where the context so admits or requires, include its successors and assigns) of the Second Part.

WHEREAS:—

A. In these Presents, and the several Schedules hereto, the following words shall, where the context so admits or requires, bear the following meanings:—

(a) "The Mortgaged Property" means the hereditaments and premises specified in Appendix I hereto, with any buildings now or hereafter erected or in the course of erection thereon;

(b) "The Principal Sum" means the sum of money specified in Appendix II hereto now advanced by the Mortgagee to the Authority, together with all sums paid by the Mortgagee in respect of this security pursuant to the powers herein contained and which may from time to time be outstanding hereunder.

(c) "The Appropriate Rate" means the rate of interest payable from time to time by the Authority on the principal sum to the Mortgagee; the rate of interest to be initially charged by the Mortgagee is specified in Appendix III hereto, but is subject to variation in the manner specified in Appendix IV.

(d) "Month" means calendar month.

B. The Authority is absolutely entitled to the Mortgaged Property for all the estate and interest specified in Appendix I hereto, and insofar as the same consists of registered land the Authority is the Registered Owner thereof or is the person entitled to be registered as owner thereof, subject, in all cases, to such yearly rents, if any, and to such encumbrances, if any, as are specified in Appendix I hereto, but otherwise free from encumbrances.

C. The Mortgagee has agreed to advance the sum specified in Appendix II hereto to the Authority and may hereafter, at the request of the Authority, make further advances to the Authority (but not so as to imply any obligation not otherwise subsisting on the mortgagee to pay any such further advance) upon having such security as is hereinafter contained.

NOW THIS INDENTURE WITNESSETH as follows:—

1. In consideration of the payment by the Mortgagee to the Authority of the sum of money specified in Appendix II hereto (the receipt and payment whereof the Authority doth hereby acknowledge) the Authority hereby covenants with the Mortgagee to pay to the Mortgagee the said sum of money together with interest thereon at the appropriate rate at the times and in the manner specified in the Second Schedule hereto ar at such times and in such other manner as may from time to time be agreed by the Mortgagee with the Authority. The date for repayment and for payments of interest currently agreed by the authority with the Mortgagee are those specified in the Second Schedule hereto.

2. (a) The Authority, as Beneficial Owner, hereby Grants and Conveys unto the Mortgagee ALL THAT the unregistered lands of freehold tenure, if any, specified in the First Schedule hereto TO HOLD the same unto the Mortgagee in fee simple subject to the proviso for redemption hereinafter contained, and likewise as Beneficial Owner hereby Demises unto the Mortgage ALL

THAT the unregistered lands of leasehold tenure, if any, specified in Appendix I hereto TO HOLD the same unto the Mortgagee henceforth for all the residue, or respective residues, now unexpired of the term or terms of years grants by the Lease or Leases specified in Appendix I hereto save the last three days of each such term, but subject to the proviso for redemption hereinafter contained PROVIDED that if the Authority shall in accordance with the provisions hereof pay to the Mortgagee all monies for the time being owing on this security then and in any such case the Mortgagee will at any time thereafter at the request and cost of the Authority duly discharge this security.

(ii) The Authority hereby declared that it shall henceforth stand possessed of the reversion or respective reversions hereby reserved in respect of such of the unregistered lands specified in Appendix I hereto as are of leasehold tenure in trust for the Mortgagee subject to such equity of redemption if any, as may for the time being be subsisting therein by virtue of these Presents and to dispose thereof as the Mortgagee shall direct and authorises the Mortgagee to appoint a new Trustee or new Trustees of the said reversion or reversions and in particular at any time or times to appoint such new Trustee or new Trustees in place of the Authority or any Trustee or Trustees appointed under this power as if he or they were incapable of acting in the trust thereof hereby declared and the Authority irrevocably appoints the Secretary for the time being of the Mortgagee the Attorney of the Authority in its name or on its behalf at any time to assign the same reversion to the Mortgagee or as the Mortgagee may think fit subject to such equity of redemption, if any, as may be subsisting for the time being as aforesaid and to do and execute all deeds, instruments, acts and things necessary or proper for that purpose.

(b) The Authority as Beneficial Owner hereby Charges ALL THAT AND THOSE the registered lands, if any, specified in Appendix I hereto with payment of the principal sum, interest and other monies hereby covenanted to be paid or otherwise expressed to be charged on the Mortgaged Property and hereby Consents to the registration of such Charge as a burden on the Folio or Folios specified in Appendix I.

3. The Authority, for itself, its successors and assigns hereby Covenants with the Mortgagee, to the intent that these covenants shall be binding and subsisting so long as any monies remain owing by the Authority to the Mortgagee:—

(a) To keep the Mortgaged Property, including all conduits, drains, pipes, wires and installations and connections in or serving the same, in good and substantial order repair and condition.

(b) During the continuance of this security, to insure and keep the Mortgaged Property insured against loss or damage by fire and other usual perils, under a comprehensive policy, in the full reinstatement or cost thereof, including a sum to cover professional fees in the event of fire, in an Insurance Office of repute empowered to carry on business in Ireland, in the joint names of the Authority and the Mortgagee, and to duly and punctually pay all premiums and monies necessary for effecting and keeping up such insurance when the same shall become due, or within one week thereafter, and upon being called so to do by the Mortgagee to produce to the Mortgagee the policy or policies of such insurance and the receipts for the payment of all premiums, and if the Authority shall fail or neglect to perform its obligations under this clause the Mortgagee may insure the Mortgaged Property, and the sums paid by the Mortgagee for that purpose shall be properly recoverable from the Authority.

(c) Duly and punctually to pay all rates and charges now, or at any time hereafter, to be charged upon or payable in respect of the Mortgaged property, or any part thereof, and duly and punctually to pay the rent, if any, reserved and to perform and observe the covenants on the part of the Grantee or Lessee and conditions contained in the Grant of Lease, if any, under which the authority holds the Mortgaged Property or any part thereof, and on request being made by the Mortgagee in that behalf to deliver the receipts for every such payment to the Mortgagee, and if the Authority shall at any time make default in payment of the said rates or charges or rent, or any part thereof, or in performance and observance of the said covenants and conditions, it shall be lawful for the Mortgagee to pay the same and to do such things as may be necessary to comply with such covenants and conditions, and any such monies so expended by the Mortgagee shall be properly recoverable from the Authority.

(d) To pay the Mortgagee all monies hereby secured, with interest at the appropriate rate.

Provided that if the authority shall commit or suffer any breach of the foregoing covenants, then all and every the powers and remedies conferred on Mortgagees by the Conveyancing Acts, 1881-1911 shall, subject to the proviso hereinafter contained, immediately become exercisable by the Mortgagee.

4. IT IS HEREBY AGREED AND DECLARED by and between the Authority and the Mortgagee as follows:—

(a) The restriction imposed on the right of consolidation or mortgages contained in Section 17 of the Conveyancing Act, 1881 shall not apply to this security.

(b) The Mortgagee shall not exercise the power of sale conferred by the Conveyancing Act, 1881 until the Authority has made default hereunder, and the Mortgagee has served notice in writing by registered post on the Authority and on the Minister for the Marine or the Minister then exercising the powers and functions now exercised by the Minister for the Marine, at his Principal Office, specifying the breach by the Authority and specifying the balance of the principal sum then due by the Authority to the Mortgagee and specifying the amount which is then required to discharge this Mortgage and what further sum would be required on the expiration of one month from the date of service of the said notice to then discharge this Mortgage, and one calendar month has elapsed from and after the date of service of the Notices aforesaid, and monies hereby secured remain owing to the Mortgagee; the provisions of Section 20 of the Conveyancing Act, 1881 shall not apply hereto.

(c) The Authority shall be entitled to remain in occupation and possession of the Mortgaged Property unless and until a default has been made by the Authority hereunder.

(d) The Mortgagee shall be entitled, from time to time, to vary the appropriate rate in accordance with that specified in Appendix IV hereto; any increase in the appropriate rate shall take effect after service by the Mortgagee on the Authority, of notice in writing and in the case of a decrease in the appropriate rate from the date specified in the notice of reduction. In the event of any dispute arising between the Authority and the Mortgagee as to whether any increase in the interest rate specified in a notice of increase of the interest rate served by the Mortgagee is excessive, the dispute, if any, shall be referred to the Arbitration of a person to be appointed by the then Minister for Finance, whose finding shall be binding on the parties.

(e) The Authority shall, at any time, be entitled to redeem this Mortgage without premium or penalty by giving to the Mortgagee one month's notice in writing and paying and discharging, on the expiration of the said period of one month, all monies then due to the Mortgagee and hereby secured.

(f) The Authority, insofar as it may lawfully do so, hereby irrevocably appoints any Receiver appointed by the Mortgagee hereunder to be the Attorney of the Authority for the Authority and in its name and on its behalf and as its act and deed to execute, seal or otherwise perfect any deed or assurance, agreement, instrument, or act which may be required or may be deemed proper for the purposes of carrying out any of the powers conferred on a Receiver by the Conveyancing Act, 1881-1911.

(g) Any notice required or authorised by these presents, or by statute to be given or to be served on the Authority or the Minister for the Marine, or any Minister, shall be in writing and shall be sufficiently served if it is served in any manner in which a notice may be served on a Mortgagor under Section 67 of the Conveyancing Act, 1881, or if it is sent by registered post to the Principal Office of the Authority or, in the case of a notice to be served on a Minister, if it is sent by registered post to his principal office, the same shall be deemed to have been delivered on the date on which the same was sent.

5. The address of the Mortgagee in the State for service of notice, and its descripton are

6. IT IS HEREBY CERTIFIED by the Mortgagee that such consent, if any, as is necessary under Section 45 of the Land Act, 1965 has been obtained to this transaction, and that any conditions attaching thereto have been complied with.

IN WITNESS whereof the parties aforesaid have caused their respective Common Seals to be affixed hereto the day and year first herein WRITTEN.

APPENDIX I

MORTGAGED PROPERTY:

ALL THAT AND THOSE

HELD

APPENDIX II

APPENDIX III

INITIAL RATE OF INTEREST:

The rate of  % per annum.

APPENDIX IV

PRESENT when the Common Seal

of

was affixed hereto:—

PRESENT when the Common Seal

of

was affixed hereto:—

SECOND SCHEDULE

THIS INDENTURE made the    day of    One Thousand Nine Hundred and BETWEEN  having its registered office at , Harbour Authority, (hereinafter called the "Authority", which expression shall, where the context so admits or requires, includes its successors and assigns) of the one part and  having its registered office at     (hereinafter called the "Mortgagee") of the Other Part.

WITNESSETH that in consideration of the sum of IR£   now paid to the Authority by the Mortgagee (the receipt and payment whereof the Authority hereby acknowledges), the Authority hereby assigns unto the Mortgagee ALL AND SINGULAR the chattels and things specified in Appendix I hereto and now at or on the Authority's premises at       (hereinafter called "the Harbour") TO HOLD the same and every part thereof, unto the Mortgagee, its successors and assigns by way of security for payment of the said sum of IR£  , and interest thereon at the rate of   % per annum, which said rate of interest is subject to variations in manner specified in Appendix II, and which said rate of interest applicable from time to time is hereinafter referred to as "the appropriate rate".

B. The Authority, for itself, its successors and assigns, hereby COVENANTS with the Mortgagee, its successors and assigns as follows:—

(1) To pay to the Mortgagee on the   day of 19  , the said sum of IR£   (hereinafter called "the principal sum"), and in the meantime, to pay interest on the principal sum; at the appropriate rate by monthly payments, payable on the  day of each month, the first payment to be made on the  day of 19 .

(2) In the event of payment of the principal sum not having been made by the Authority to the Mortgagee on the said day of 19 , to pay to the Mortgagee, on demand in writing from the Mortgagee, the said principal sum or the balance then outstanding as the case may be, and pending such demand, to pay the same by  monthly instalments, together with interest on the balance outstanding for the time being of the principal sum at the appropriate rate, such monthly payments to be paid on the  day of each month.

(3) To insure, and keep the said chattels insured in the full replacement value thereof in an insurance office of repute empowered to carry on business in Ireland, in the joint names of the Authority and the Mortgagee, and to pay all premiums necessary for that purpose within fourteen days of the same becoming due, and upon request from the Mortgagee, to produce to the Mortgagee or its agent, the said policy of insurance and the receipt for the payment of the last premium payable in respect thereof.

(4) To repair and keep the said Chattels in good order repair and condition, and properly maintained.

C. It is hereby agreed that the Mortgagee may vary the Appropriate Rate from time to time in the manner specified in Appendix II any increase or reduction in the appropriate rate shall take effect, in the case of an increase in the appropriate rate, from the gale day next succeeding one calendar month after service by the Mortgagee on the Authority of notice in writing of the increase in the appropriate rate and in the case of a decrease in the appropriate rate, from the date specified in the notice of reduction served by the Mortgagee on the Authority, which date shall not be later than fourteen days after the date of service of the said notice of decrease, and in the event of no date being specified in the said notice of decrease, or being a date subsequent to the date that is fourteen days after the date of service of the notice of decrease, from the date of service of the Notice to decrease itself. In the event of any dispute arising between the Authority and the Mortgagee as to whether any increase in the interest rate specified in a notice of increase of the interest rate served by the Mortgagee is excessive the dispute, if any, shall be referred to the Arbitration of a person to be appointed by the then Minister for Finance, whose findings and decision shall be binding on the parties.

D. PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED by and between the Authority and the Mortgagee that if the Authority shall make default in payment of the said principal sum, or interest hereby secured, at the times herein respectively provided for payment thereof, or if the Authority shall fraudulently either remove or suffer the said chattels, or any part thereof, to be removed from the Harbour, or if execution shall have been levied against the goods of the Authority under any Judgement at law, and in any such case, it shall be lawful for the Mortgagee, its successors and assigns, and the Authority doth hereby expressly authorise and licence the mortgagee, by itself, its servants or agents, to enter in and upon the Harbour and to seize and take possession of the said chattels, and after the expiration of one calendar month after service by the mortgagee on the Minister for the Marine, or the Minister then carrying out the duties and functions now carried out by the Minister for the Marine, and on the Authority, of notice in writing of the default by the Authority and specifying the amount then due by the Authority to the Mortgagee, it shall be lawful for the Mortgagee, if the default shall not have been made good within the said period of one calendar month aforesaid, to sell the said goods and chattels.

E. The proceeds of sale shall be applied by the Mortgagee firstly in defraying the costs of sale, and secondly in discharge of any part of the principal sum and interest then due to it, and the balance shall be paid to the Authority.

F. Provided Always that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the Mortgagee for any cause other than those specified in Section 7 of the Bills of Sale (Ireland) Act, 1879, Amendment Act, 1883.

IN WITNESS whereof the parties aforesaid have caused their respective Common Seals to be affixed hereto the day and year first herein WRITTEN.

APPENDIX I

INVENTORY OF CHATTELS:

APPENDIX II

INTEREST RATE VARIATION

PRESENT when the Common Seal

of

was affixed hereto:—

PRESENT when the Common Seal

of

was affixed hereto:—

GIVEN under my Official Seal, this 11th day of July, 1996.

SEAN BARRETT,

Minister for the Marine.

EXPLANATORY NOTE.

The Regulations relate to a mortgage to facilitate the purchase of a tug by Dublin Port and Docks Board.