NOTE ON SECTION 7 OF THE SEA FISHERIES (SHELLFISH) ACT 1967

This note is prepared by Peter Scott, shellfish law specialist with Harrison Clark Rickerbys. It considers concerns with regard to prospective liabilities of third parties to the grantees of a several order for shellfish applied for under section 1 of the Sea Fisheries (Shellfish) Act 1967 arising from the provisions of section 7 of the 1967 Act.

These concerns fall into a number of areas, including damage by vessels in the course of navigation, fishing vessels’ gear, and potential blinding of shellfish beds by dredged material returned under statutory authority to the water column.

Section 7 of the 1967 Act establishes a generally prosecutable criminal offence and a tort of breach of statutory duty in relation to a number of operations causing damage to shellfish or shellfish fisheries, subject to a number of exceptions. The relevant sub-sections are 7(4) and (5) which as amended by the Marine & Coastal Access Act 2009 read as follows:-

“(4)Subject to subsection (5) of this section, if within the limits of the area of the fishery with respect to which the right of several fishery is conferred or in any part of that area described for the purposes of this subsection in the order, or within the limits of any such private shellfish bed, any person other than the grantees or an agent or employee of theirs or, as the case may be, the owner or an agent or employee of his knowingly does any of the following things, namely—

(a)uses any implement of fishing except—

(i)a line and hook; or

(ii)a net adapted solely for catching floating fish and so used as not to disturb or injure in any manner shellfish of the description in question or any bed therefor or the fishery therefor; or

(iii)in the case of several fishery, an implement of a type specified in the order and so used as not to disturb or injure in any manner shellfish of the description in question.

(b)dredges for any ballast or other substance except under a lawful authority for improving the navigation;

(c)deposits any ballast, rubbish or other substance;

(d)places any implement, apparatus or thing prejudicial or likely to be prejudicial to any such shellfish, bed or fishery except for a lawful purpose of navigation or anchorage;

(e)disturbs or injures in any manner, except for a lawful purpose of navigation or anchorage, any such shellfish, bed or fishery; he shall be guilty of an offence and liable on summary conviction to a fine not exceeding, in the case of a first offence, level 3 on the standard scale, or, in the case of a second offence, level 3 on the standard scale, or, in the case of a third or subsequent offence, level 3 on the standard scale, and shall also be liable

1 to make full compensation to the grantees or, as the case may be, owner for all damage sustained by them or him by reason of the unlawful act; and such compensation in default of payment may be recovered from him by the grantees or owner as the case may be by proceedings in any court of competent jurisdiction whether he has been prosecuted for or convicted of the offence in question or not.

(5)Nothing in subsection (4) of this section shall make it unlawful for any person to do any of the things therein mentioned—

(a)in the case of a right of several fishery granted by an order under section 1 of this Act, if at the time of his doing that thing the limits of the area of the fishery within which that right is exercisable or of the part of that area described for the purposes of the said subsection (4) in the order are not sufficiently marked out in manner prescribed by or under the order or if notice of those limits has not been given to that person in manner so prescribed;

(b)in the case of a private shellfish bed owned by any person independently of this Act, if the bed is not sufficiently marked out and known as such.

(6)In this section “the grantees” means the persons for the time being entitled to the right of several fishery conferred by the order under section 1 of this Act.” The relevant operations are considered alongside the exceptions relevant to those operations.

Navigation

The exercise of the public right of navigation is expressed by section 7 to be unrestricted by the order. TWL Mistley (representation 171) state: “In the event of limitations to free movements within the existing parameters in the river and its estuary, areas of the river may become more congested, particularly with smaller leisure craft, which may have both operational and safety implications. This would not be acceptable.” There is no restriction on navigation.

Concerns have been expressed in relation to the potential for claim under section 7 in relation to wash from propulsion units of vessels (e.g. TWL representation 171 para 2). Section 7(4)(e) creates a liability in relation to a person who “disturbs or injures in any manner, except for a lawful purpose of navigation or anchorage, any such shellfish, bed or fishery”. The question then arises as to what constitutes a lawful purpose of navigation or anchorage.

William Gann v The Free Fishers of Whitstable 11 E.R.1305 establishes that a vessel may, as matter of choice, anchor within the area granted by the Crown as an exclusive fishery for oysters. It was held that a claim for a payment for anchorage could not be made on the basis of the plaintiff’s claimed ownership of the soil. The judgement then considers the extent to which the right of anchorage might be abrogated by the grant of a fishery. Lord Westbury stated: “The case appears to

2 me to depend on principles which have long been settled….. The right to anchor is a necessary part of the right of navigation because it is essential for the full enjoyment of that right. If the Crown therefore grants part of the bed or soil of an estuary or navigable river, the grantee takes subject to the public right, and he cannot in respect of his ownership of the soil make any claim or demand, even if it be expressly granted to him, which in any way interferes with the enjoyment of the public right…..The present fishery of the Respondents must be taken to have been [granted by the Crown to a subject]. And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation……the grant by the Crown of any part of the bed or soil of this estuary below low-water mark, whether for a fishery or not, must by the common law have been subject to the public right of navigation, of which the right to anchor is an essential part.”

The disturbance of sediment during the course of navigation by a vessel is a necessary consequence of navigation when a vessel navigates in shallow water, and therefore there is no liability under section 7 for any damage caused by such a vessel navigating notwithstanding any damage to the mussel beds, whether or not the vessel is navigating in or (as per Hutchison Ports comments in representation 108 and TWL representations 171 para 2) adjacent to it. Port authorities in relation to European marine sites do have obligations under the transposition of the Birds and Habitats Directives, as was illustrated in the case of R (Akester) v DEFRA [2010] Env LR 33 in respect of the harbour authority for Lymington pier (which was the same company as the ferry operator rather than the harbour authority for Lymington river).

The question of anchoring in a several fishery was addressed by A L Smith LJ in Attorney-General (Moore) v Wright [1897] 2 QB 318 “The defendant is the lessee of the owner of the several fishery opposite to the town of Leigh, who is therefore prima facie owner of the soil underneath such fishery. Now take it for the purposes of today that he is owner of the soil at the locus in quo. Is he absolute owner, or is he owner subject to certain rights? It is beyond all question that he is owner subject to the common law right of all Her Majesty’s subjects, and of all frequenting the sea, to pass and repass and navigate over the place in question, and, as incident to that navigation, to anchor in the ordinary mode of navigation.” It is this general right of all using the sea that is referred to in section 7 as forming an exception to the general principle that damage to the shellfish bed protected

3 by a several order, or the use of instruments capable of causing such damage, constitutes an offence and a breach of statutory duty.

The concerns expressed by Harwich Haven Authority (representation 98 paras 1 and 5) that anchoring in the mussel areas will be restricted therefore do not apply because the general right of navigation includes this. Similarly with regard to dragging anchors, the securing of a vessel with an anchor applies in whatever location the vessel is found, and there appears to be no distinction in law in theory between a vessel which anchors in one location followed by another location and a vessel whose anchor drags between the same location under conditions for example of strong winds. Such a situation is typical of an emergency not least because the vessel presents a danger to other vessels. In some circumstances marine safety requires or advises controlled dragging of an anchor rather than weighing anchor and reanchoring or abandoning the anchor concerned. This scenario is therefore within the public right of navigation, and immune from action. HHA’s paragraph 2 and Hutchison Ports (representation 108) refer.

It is suggested that the order would restrict the ability of the Haven Authority to establish new fixed moorings within the mussel trial areas (paragraph 1). With one possible qualification, this is correct to the extent that the agreement of the holder of the several order would be required to instal new fixed moorings, as the establishment of such moorings is not part of the general right of navigation – they can only be authorised by grant, implied grant, or sometimes custom. (A-G v Wright). The most relevant case is perhaps Fowley Marine v Gafford [1968] 2QB 618. This related to oyster grounds at Emsworth. The claimant to the oyster ground sued the defendant in relation to a permanent mooring of two anchors and chain installed with permission of a predecessor in title. At trial the defendant maintained a right to maintain it as an incident to the public right of navigation but did not proceed with that in the Court of Appeal. Megaw J at first instance was very specific: “I hold that there is no common law right to lay or maintain permanent moorings in another person's land without his permission. Such a right may, of course, arise from custom or may be given by statute. Whether there is here such a customary right I shall consider later, when I deal with the fifth issue. On the first issue, the defendant fails. I reach this conclusion with satisfaction. To my mind it would be little less than fantastic that, in the absence of statute or proved local custom, the law should allow anyone navigating a ship or vessel, including every amateur yachtsman, to place bulky objects

4 on another's land, without permission, and to retain them there, presumably for ever, as being "an ordinary incident of navigation."

It was held that giving permission for such moorings did not part with possession of the ground but was evidence of title. In many instances, however, there is a statutory power on the part of the harbour authority to establish fixed moorings. In that case that statutory power will be overriding.

As to the grounding of vessels, the most relevant authority is The Bien [1911] P 40. A Norwegian brig had foundered in the Medway, and the owners under the direction of the harbour master raised it and moved it to a position where it grounded on an oyster bed. It moved several times on the tide and caused significant damage.

In the judgment it was noted that “It is undoubtedly and undeniably a fishery, vested by statute in the persons who leased it to the plaintiff, and I am satisfied that it was a fishery in fact as well as in name.” Hence it must be inferred that this fishery is one subject to the protection of the provisions of section 53 of the Sea Fisheries Act 1868 which are in the same terms as section 7.

The judge held that the harbourmaster was guilty of negligence in that he had special notice of the fishery and could readily have put the vessel on ground which was not a fishery.

The action of grounding a ship is perhaps the aspect of navigation most capable of damaging a shellfish bed. The leading cases are Mayor of Colchester v Brooke and The Swift 85 LT 346. Express reference was made to section 53 of the 1868 Act. The President, having concluded that the Act definitely applied, noted that it was subject to the right of navigation, and continued: “Indeed, one may go one step further, because if it can be shown that in the ordinary course of navigation it was necessary or proper to touch the soil, whether with the vessel herself or by anchors, in that case there would be such a right of grounding or anchoring, notwithstanding the ownership in the soil or in the oysters upon it.” Therefore the concern expressed by Harwich Harbour Authority (representation 98 paragraph 2) in relation to a vessel losing steerage does not apply.

5 Dredging

No concern at this time is raised with regard to dredging within the area of the proposed order. The concerns are in relation to dredging for navigational purposes adjacent to the proposed order sites, and in relation to the discharge of dredged material into the water column within the estuary, which may subsequently settle within the order sites.

It must be understood that section 7 only applies to acts “within the limits of the area of the fishery with respect to which the right of several fishery is conferred”. Hence the execution of dredging outwith the order area is prima facie not a breach of the section. However the prohibition of dredging even within the designated area is qualified: “(b) dredges for any ballast or other substance except under a lawful authority for improving the navigation”. Hence where there is statutory authority for dredging, that authority will be exercisable notwithstanding the grant of the several order and any consequent damage to the stock or the fishery, and the concern expressed by Harwich Harbour Authority (representation 98) at paragraph 7 does not apply because of the statutory consents obtained which are referred to there. TWL (representation 171 para 4) refer to precisely the same consents.

One case which is informative with regard to damage to shellfish caused by the deposit of dredged spoil is that of Seasalter Shellfish Ltd v Canterbury City Council 1986 WL 1255540. In this case the damage was caused to oyster spat within a hatchery by way of an abstraction of seawater. The relevant facts as found were that the harbour authority excavated anaerobic mud from west of the east pier and deposited above and below mean high water springs. A causal connection was established between the deposits of the dredgings and substantial losses of oyster larvae and spat of the plaintiffs. The judge at first instance made findings that it was reasonably foreseeable to a person in the position of the defendants that the deposit of anaerobic contaminated clay or mud on the shore near the plaintiffs’ sea water intake and wholly or partly below mean high water would be likely to injure larvae and spat within the plaintiffs’ oyster hatchery, and that the defendants had no statutory authority to deposit material dredged from Whitstable Harbour.

6 The appeal was against a finding against the plaintiffs in respect of causation, and failed. Nevertheless it does appear that (a) in principle liability for damage to a shellfishery by the deposit of contaminated spoil within an estuary can arise (b) a statutory authority may have a duty of care to the owner of a shellfishery but (c) statutory authority would be a complete defence to any claim.

Given therefore that both dredging for recharge and the release of sediment into the water column in the Stour are both covered by statutory consents, statutory authority applies, and there is no reason for the statutory authorities in respect of the harbours within the estuary to be concerned with regard to the possibility of claim. It should also be noted that in relation to dispersed sediments (as opposed to the Whitstable case where the dredgings were physically deposited upon the foreshore) to establish a causal connection between any specific alleged damage and any specific dredging operation would be extremely difficult if not virtually impossible. TWL’s representation 171 para 6 makes clear that the sediments removed in maintenance dredging of the berths or navigable channel are not dumped but dispersed in the water column from the locations in which they arise.

However, for the better reassurance of statutory undertakers DEFRA has agreed to the inclusion of a further provision in the proposed order in the following terms:

Statutory undertakers

1.—(1) Nothing in this Order prejudicially affects the lawful activities of a statutory undertaker in exercising that undertaker’s statutory functions or authority.

(1) In paragraph 1 “statutory undertaker” has the meaning given in section 262(1) of the Town and Country Planning Act 1990([1]) and article 1(2) of the Town and Country Planning (General Permitted Development) Order 1995([2]) and includes—

(a) a person running a telecommunications code system, as defined in paragraph 1(1) of Schedule 4 to the Telecommunications Act 1984([3]); and

(b) any person or body carrying out coast protection work within the meaning of the Coast Protection Act 1949([4]) in accordance with any consent or approval under that Act.

Pollution

Concerns have been raised (e.g. by Harwich Haven Authority representation 98) that the owner of the shellfish beds if confirmed could have a right of action in relation to pollution of them by vessels

7 navigating the Stour or the Orwell. Civil liability in relation to any such loss can only be based upon an action in negligence, and the claimant cannot rely on res ipsa loquitur to put the burden of proof on the master or owner of the ship concerned. Furthermore, necessity would be a defence (Esso Petroleum Co Ltd v Southport Corporation HL [1956] AC 218). The concern expressed by Harwich Haven Authority (representation 98 para 2) in relation to accidental damage in the event of an oil spill therefore does not apply.

Cases specifically referring to sewage pollution have been the cases most frequently associated with the predecessor of section 7, which arose from concerns in relation to bacterial contamination of shellfish in the period from 1900 to 1910. The leading cases were Foster v Warblington Urban Council [1906] KB 648 Owen v Faversham Corporation [1908] 73 JP 33 and Hobart v Southend-on- Sea Corporation 75 LJKB 305. These were actions in nuisance. In Foster there was a direct discharge of sewage into oyster ponds on the foreshore claimed by the plaintiff. This was a distinction drawn by the defendants in Hobart, where the discharges were some distance from the fishery. The plaintiffs relied upon section 53 not so much to rest the claim on it, but to negative the claim that the discharge of sewage by the defendant so as to damage the shellfish bed was either lawful or authorised by statute.

No concerns have been expressed in relation to potential claims against dischargers of pollution into the estuary.

Non-native species

Harwich Harbour Authority (representation 98) raise at paragraph 3 an issue with regard to ballast water management and non-native species. A similar issue is raised by TWL (representation 171) at paragraph 2). The suggestion appears to be that the mussel beds could be adversely affected by the introduction of non-native species by commercial vessels using the port in international trade not complying with ballast water regulations in relation to exchange of water at sea. While section 7 presumably does include within its scope a potential claim against a third party for introduction of alien predator species on to a shellfish bed (which would appear very difficult to prove) there appears to be no precedent for any such claim in respect on any alien species in England or in the United States, where there has been some academic discussion of the possibility of such claims in

8 tort, even in relation to Japanese knotweed. it is difficult to see that the presence of shellfish beds in the Stour could or should deter any commercial traffic from using the Stour and Orwell ports on account of any such risk.

Conclusions

Full consideration of the potential implications of the rights of the grantee of the proposed order in relation to mussel fishery in the estuary of the River Stour suggests that current lawful activities should not be prejudiced in any way by the grant of the order and that there is no legal basis for the apprehensions on the part of the harbour authority and operators that the commercial operation of the ports of Harwich or Mistley could be affected. The renewal of the order if applied for allows ample opportunity for any such body to make representations that its future requirements as then identified suggest the exclusion of some part of parts of the fishery from an extended several order if the trial is successfully concluded, and for the decision-maker to act appropriately after balancing those concerns with the benefits of renewal of the order.

1st December 2015

Peter Scott Harrison Clark Rickerbys 5 Deansway Worcester WR1 2JG [email protected]

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