S.I. No. 552/1998 - Merchant Shipping (Certification of Seamen) Act, 1979 (Section 9 Inquiries) Regulations, 1998

S.I. No. 552 of 1998.

MERCHANT SHIPPING (CERTIFICATION OF SEAMEN) ACT, 1979 (SECTION 9 INQUIRIES) REGULATIONS, 1998

I, MICHAEL WOODS, Minister for the Marine and Natural Resources in exercise of the powers conferred on me by section 9 (2) of the Merchant Shipping (Certification of Seamen) Act, 1979 (No. 37 of 1979) and the Ministers and Secretaries (Amendment) Act, 1983 (No. 40 of 1983) and the Marine (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 301 of 1997 ), hereby make the following regulations:

1 Citation and commencement.

1. These Regulations may be cited as the Merchant Shipping (Certification of Seamen) Act, 1979 (Section 9 Inquiries) Regulations, 1998.

2 Interpretation.

2. (1) In these Regulations, except where the context otherwise requires-

  "the Act of 1979" means the Merchant Shipping (Certification of Seamen) Act 1979 ;

  "Minister" means the Minister for the Marine and Natural Resources;

  "notice of inquiry" has the meaning assigned to it by Regulation 4;

  "officer" means an officer holding a certificate of competency duly issued by the Minister under the Act of 1979, to which section 3 of that Act relates and includes a master, skipper, mate, second hand, deck officer, marine engineer officer, radio officer and doctor;

  " person appointed" means the person or persons appointed by the Minister to hold a section 9 inquiry;

  "a section 9 inquiry" means an inquiry under section 9 of the Act of 1979.

 (2) Any period of time specified in these Regulations by reference to days shall be exclusive of the first day but inclusive of the last day, except where the last day and any immediately following day falls on a Saturday, Sunday, Christmas Day, Good Friday or public holiday (within the meaning of the Holidays (Employees) Act, 1973 ), in which case the time shall be reckoned exclusive of such day or days also, as the case may be.

3 Application.

3. These Regulations apply to any section 9 inquiry.

4 Notice of Inquiry.

4. (1) Where the Minister causes a section 9 inquiry to be held, he or she shall cause a notice, in these Regulations referred to as a "notice of inquiry" to be served on the officer concerned who shall be made a party to the inquiry.

 (2) Service of a notice of inquiry shall be effected either by serving it, at least 30 days before the date fixed for the inquiry, on the officer concerned personally or by sending the notice to the officer's last known address by registered post or by the recorded delivery service.

 (3) The notice of inquiry shall include-

 (a) the basis for the Minister's decision under section 9 (1) to hold the inquiry into the fitness or conduct of the officer concerned, and the decision of the Minister;

 (b) the allegations against the officer concerned regarding his or her conduct or fitness to which paragraph (a), (b) or (c) of subsection (1) of section 9 relates;

 (c) the time and date when and the place where the inquiry is to be held; and

 (d) the officer's rights as set out in paragraph (2) and (3) of Regulation 7 of these Regulations.

5 Appointment of persons to hold inquiry and assessors.

5. (1) Every person appointed under section 9 (1) of the Act of 1979 to hold an inquiry shall be either-

 (a) a barrister or solicitor of not less than ten years' standing who has been in practice as such not less than three years before the date of his or her appointment; or

 (b) a person who is a judge of the Supreme Court, High Court or Circuit Court or who was such a judge not less than three years before the date of his or her appointment.

 (2) Where an assessor or assessors are required to assist the person or persons conducting the inquiry, the Minister shall appoint one or more assessors, at least one of whom shall, whenever possible, have experience in the same capacity and in the same type of ship as the officer concerned.

6 Holding of the inquiry.

6. (1) at the time and the place appointed for holding the inquiry the person or persons appointed to hold the inquiry may proceed with the inquiry in the absence of-

 (a) the officer to whom the notice of inquiry relates,

 (b) any other party to whom the notice of inquiry relates, or

 (c) any person who has applied to become a party, or

  but only where the person or persons holding the inquiry are satisfied that the officer concerned has been served in accordance with the requirements of Regulation 4 (2).

 (2) Any other person, not being the officer concerned, may, with the leave of the person or persons appointed to hold the inquiry, become a party to the inquiry.

 (3) the inquiry shall be held in public, save to the extent to which the person or persons appointed to hold it, are properly satisfied that in the interest of justice, or for other good and sufficient reason in the public interest, any part of the evidence or any argument relating thereto should be held in private.

7 Procedure at inquiry.

7. (1) Any party to an inquiry shall have the right, in person or by a representative, to make an opening statement, call witnesses, cross-examine witnesses called by other parties, tender other evidence and address the person or persons appointed to hold the inquiry.

 (2) If a party to an inquiry does not appear in person and is not represented at the inquiry by another person, he or she may make representations in writing to the person or persons appointed to hold the inquiry and such written representations shall be read out at the inquiry by or on behalf of the person or persons so appointed.

 (3) without prejudice to the admission of documents as secondary evidence allowed by statute or otherwise, affidavits, depositions, statutory declarations and other written evidence shall, unless the person or persons appointed to hold the inquiry consider it unjust in the circumstances, be accepted as evidence at the inquiry.

 (4) The person or persons appointed to hold an inquiry may postpone or adjourn the hearing of the inquiry for such period as they think fit either of their own motion or upon the application of any party.

8 Decision to cancel or suspend certificate.

8. (1) As soon as practicable after the conclusion of an inquiry, the person or persons appointed to hold the inquiry shall, in addition to complying with section 9 (3) (a) of the Act of 1979, announce in public any decision to cancel or suspend any certificate under the act of 1979 held by the officer in relation to whom the inquiry was held and communicate that decision to the Minister forthwith.

 (2) Where the officer in respect of whom the inquiry was held was neither present nor duly represented when the decision of the person or persons holding the inquiry was announced, the Minister shall cause a copy of that decision in writing to be sent to the officer.

9 Report to Minister.

9. In respect of the report provided for by section 9 (3) (a) of the Act of 1979 of the person or persons holding an inquiry, every assessor appointed to assist that person or persons shall either sign the report with or without reservations, or state in writing his or her dissent therefrom and his or her reasons for such dissent, and such reservations or dissent and reasons (if any) shall be forwarded to the Minister with the report.

10 Copy of report.

10. The Minister shall make a copy of the report available to the officer concerned and, upon request to the Minister, to any party to the inquiry.

GIVEN UNDER MY OFFICIAL SEAL, this 30 th day of December, 1998.

Michael Woods

 Minister for the Marine and Natural Resources

EXPLANATORY NOTE

This Statutory Instrument sets out the terms of reference of an inquiry and also gives the powers to suspend or cancel a certificate issued under the 1979 Act.