No. 27/1949:

FISHERIES (STATUTE LAW REVISION) ACT, 1949

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY AND GENERAL

1 Short title and collective citation.

2 Commencement.

3 Interpretation.

4 Interpretation of expressions "fixed net," and "fixed engine" in the Acts.

5 Repeals.

PART II MISCELLANEOUS POWERS AND DUTIES OF THE MINISTER

6 Amendment and revocation of certain definitions.

7 Amendment of section 28 of the Act of 1925.

8 Power of Minister to grant exemption permits for the purposes of artificial propagation, etc.

PART III BOARDS OF CONSERVATORS

9 Right to vote at elections of conservators.

PART IV LICENCES FOR FISHING FOR SALMON, TROUT AND EELS

10 Rescinding of resolution under section 12 (2) of the Act of 1925.

11 Licences for certain fishing engines to be issued in electoral divisions in which engines situate.

12 Amendment of section 23 of the Shannon Fisheries Act, 1935.

PART V REGULATIONS AS TO NETS

13 Salmon nets not to be used at mouths of narrow rivers or within half a mile seaward or inwards of mouths of rivers.

PART VI FIXED ENGINES, FISHING WEIRS, FISHING MILL DAMS AND OTHER OBSTRUCTIONS TO THE PASSAGE OF FISH

14 Amendment of section 33 of the Act of 1939.

15 Amendment of section 34 of the Act of 1939.

16 Amendment of section 29 of the Act of 1939.

17 Penalties for fishing in or near free gaps in fishing weirs and obstructing free gaps.

18 Rules as to boxes in salmon fishing weirs and fishing mill dame.

19 Construction of guiding walls appurtenant to fishing weirs and fishing mill damps.

20 Amendment of section 30 of the Act of 1939.

21 Amendment of section 64 of the Act of 1842.

22 Provisions in relation to wheel sluices, etc., of mills, etc., deriving waters from salmon rivers.

PART VII RESTRICTIONS AS TO TIMES Or FISHING FOR SALMON, TROUT, POLLEN AND EELS

23 Amendment of section 2 (2) of the Act of 1924.

24 Dismantlement of fixed engines during the annual close season for salmon and trout.

25 Dismantlement of salmon fishing weirs and fishing mill dams during the annual close season for salmon and trout.

26 Amendment of section 28 of the Act of 1939.

PART VIII MISCELLANEOUS PROVISIONS IN RELATION TO SALMON AND FRESHWATER FISHERIES

27 Penalty for failure to comply with section 21 (1) of the Act of 1925.

28 Amendment of section 70 of the Act of 1842.

29 Protection of waters from pollution.

30 Amendment section 38 of the Act of 1939.

PART IX TRANSFER TO MINISTER OF CERTAIN FISHERIES AND PROVISIONS IN RELATION TO FISHERIES SO TRANSFERRED

31 Amendment of section 58 of the Act of 1939.

32 Amendment of section 67 of the Act of 1939.

33 Amendment of section 87 of the Act of 193.

PART X SEA FISHERIES

34 Amendment of section 6 of the Sea Fisheries Protection Act, 1933.

PART XI POWERS OF WATER KEEPERS, ETC, FOR ENFORCEMENT OF THE ACTS

35 Amendment of section 13 of the Act of 1949.

36 Amendment of section 87 of the Act of 1842.

37 Amendment of section 10 of the Fisheries (Ireland) Act, 1845.

38 Amendment of section 24 of the Act of 1925.

39 Amendment of section 29 of the Act of 1848.

PART XII LEGAL PROCEDURE AND EVIDENCE

40 Trial of offence under the Sea Fisheries Protection Act, 1933 and the Sea fisheries (Protection of Immature Fish) Act, 1937.

41 Offences by bodies corporate.

42 Prosecution by Minister of offences under the Acts and this Act.

43 Evidence of amount of expenses incurred by the Minister.

PART XIII MISCELLANEOUS PROVISIONS

44 Construction of references to the salmon fisheries enactments in Part IV of the Act of 1949.

45 Construction of Fisheries (Oyster, Crab and Lobster) Act 1877.

46 Continuance of bye-laws under Steam-Trawling (Ireland) Act, 1980.

SCHEDULE

AN ACT TO FACILITATE THE INTENDED CONSOLIDATION OF THE ENACTMENTS RELATING TO FISHERIES BY REVISING AND CLARIFYING CERTAIN OF THE SAID ENACTMENTS AND REPEALING CERTAIN OF THE SAID ENACTMENTS WHICH HAVE CEASED TO BE IN FORCE OR HAVE BECOME UNNECESSARY AND TO AMEND THE SAID ENACTMENTS IN CERTAIN RESPECTS.

[17th November, 1949.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

PART I PRELIMINARY AND GENERAL

1.—(1) This Act may be cited as the Fisheries (Statute Law Revision) Act, 1949 .

(2) This Act shall be included in the Acts which may be cited together as the Fisheries Acts 1842 to 1949.

2.—This Act shall come into operation on such day as shall be fixed by order of the Minister either generally or with reference to any particular Part or provision and different days may be so fixed for different Parts and different provisions of this Act.

3.—(1) In this Act—

the expression "the Acts" means the Fisheries Acts, 1842 to 1944 and includes the Fisheries (Oyster, Crab and Lobster) Act, 1877 and the Act of 1949;

the expression "the Act of 1842" means the Fisheries (Ireland) Act, 1842;

the expression "the Act of 1848" means the Fisheries (Ireland) Act, 1848;

the expression "the Act of 1850" means the Fisheries (Ireland) Act, 1850;

the expression "the Act of 1863" means the Salmon Fishery (Ireland) Act, 1863;

the expression "the Act of 1924" means the Fisheries Act, 1924 (No. 6 of 1924);

the expression "the Act of 1925" means the Fisheries Act, 1925 (No. 32 of 1925);

the expression "the Act of 1939" means the Fisheries Act, 1939 (No. 17 of 1939);

the expression "the Act of 1949" means the Fisheries (Amendment) Act, 1949 (No. 18 of 1949);

the expression "bag net" includes a fixed engine of similar construction to a bag net;

the word "box", in relation to a fishing weir or a fishing mill dam, includes a crib or cruive;

the word "dam" means any dam, weir, dyke, sluice, embankment or other structure built or placed in or in connection with any river for or in connection with the sustaining of water for any purpose;

the expression "fish pass" means a channel for the free run or migration of fish in, over or in connection with an obstruction in a river, lake or watercourse and includes a fish ladder or any other contrivance which facilitates the passage of fish;

the expression "fishing engine" means any engine, net or other instrument whatsoever capable of being used for the taking of fish;

the expression "fishing weir" means any erection, structure or obstruction, which—

( a ) is fixed to the soil across or partly across a river,

( b ) is used solely for the purpose of taking or facilitating the taking of fish,

( c ) incorporates one or more openings wherein fish may be taken, and

( d ) is not a head weir;

the expression "fixed engine" means any engine, being—

( a ) a stake net, or

( b ) a bag net, or

( c ) a fixed draft net, or

( d ) a head weir, or

( e ) any net, implement, engine or device, fixed to the soil or secured by anchors or held by hand or made stationary in any other way and used solely for the purpose of taking or facilitating the taking of fish, not being a fishing weir or a fishing mill dam;

the expression "free gap" means a free gap in a fishing weir in accordance with section 9 of the Act of 1863;

the expression "head weir" means the fixed engine commonly called a head weir or an ebb and flow weir;

the word "heck" means a grating mounted at the upstream end of a box in a fishing weir or fishing mill dam and so constructed as to prevent the passage of fish without obstructing the flow of water;

the word "inscales" means a pair of gratings mounted at the downstream end of a box in a fishing weir or fishing mill dam and converging towards the centre in the upstream direction to form between the upstream ends a vertical gap, the effect of the arrangement being to permit the passage of fish into the box and hinder their escape therefrom;

the expression "the Minister" means the Minister for Agriculture;

the expression "salmon river" means any river frequented by salmon;

the expression "stake net" includes a stake weir and any fixed engine of similar construction to a stake net.

(2) References in this Act to any enactment shall be construed as references to that enactment as amended by any subsequent enactment.

(3) This Act shall be construed as one with the Acts.

4.—For the avoidance of doubts it is hereby declared that, notwithstanding anything contained in section 1 of the Act of 1850, the expressions "fixed net" and "fixed engine", where they occur in the Acts, shall be construed as excluding and as having always excluded a fishing weir and a fishing mill dam.

5.—The enactment specified in column (2) of the Schedule to this Act are hereby repealed to the extent mentioned in column (3) of the said Schedule.

PART II MISCELLANEOUS POWERS AND DUTIES OF THE MINISTER

6.—(1) The Minister may by order amend or revoke any definition made under any of the following enactments—

( a ) sections 22 and 27 of the Act of 1842,

( b ) section 9 of the Fisheries (Ireland) Act, 1845,

( c ) sections 21 and 44 of the Act of 1850,

( d ) section 17 of the Act of 1863, and

( e ) section 10 of the Fisheries (Ireland) Act, 1869.

(2) The provisions of subsections (2), (3), (4) and (5) of section 28 of the Act of 1925 as amended by section 10 of the Courts of Justice Act, 1936 (No. 48 of 1936), shall apply in respect of any order made under subsection (1) of this section.

7.—In subsection (4) of section 28 of the Act of 1925, the words "twenty-eight days" shall be substituted for the words "one fortnight".

8.—(1) The Minister may, whenever and so often as he thinks fit, by permit in writing and subject to such conditions as he may specify in the permit authorise any named person to do at any season of the year all or any of the following things—

( a ) to catch or attempt to catch and to have in his possession any specified kind of fish for the purpose of artificial propagation, transplantation, the stocking, restocking or improvement of any fishery or for any scientific purpose and for the purpose of so catching to have in his possession, erect and use any net, trap or other engine of a specified kind,

( b ) to buy or sell ova and fry of any specified kind of fish for the purpose of stocking or restocking or any scientific purpose.

(2) A permit under subsection (1) of this section shall not authorise anything to be done in relation to a several fishery otherwise than with the consent of the owner thereof.

(3) Notwithstanding anything contained in the Acts, a person to whom a permit is granted under subsection (1) of this section and any other person acting under the directions of such first-mentioned person may, subject to the conditions specified in the permit, do any of the things authorised by the permit.

PART III BOARDS OF CONSERVATORS

9.—(1) ( a ) No person shall be entitled to vote at an election of conservators in respect of the licence duty on a fishing engine, except the person whose name is contained in the licence issued in respect of such fishing engine.

( b ) Paragraph (a) of this subsection shall not be construed as affecting section 93 of the Act of 1939.

(2) The holder of a fishing licence issued by a board of conservators for a fishery district shall not be entitled to vote in respect of the licence duty on the engine to which such licence relates at an election of conservators for an electoral division of such fishery district other than the electoral division specified in such licence.

(3) Any person who is, by virtue of section 14 of the Act of 1939, entitled to vote at an election of conservators for an electoral division to be held in a particular year shall—

( a ) be deemed, for the purpose of the choosing of the chairman to preside at the meeting for such election, a person who has paid licence duty for such year in such electoral division, and

( b )-be eligible to be chosen as chairman of such meeting.

PART IV LICENCES FOR FISHING FOR SALMON, TROUT AND EELS

10.—A board of conservators may by resolution rescind any resolution passed by them under subsection (2) of section 12 of the Act of 1925, and such first-mentioned resolution shall come into operation on the expiration of the year during which it was passed.

11.—Where an application is made to a board of conservators for a licence for a fishing engine (being a fixed engine, a box in a fishing weir or a fishing mill dam or an eye, gap or basket for taking eels in or on a fishing weir or a fishing mill dam) such licence shall be issued in the electoral division in which such engine is situate.

12.—There shall be inserted at the end of section 23 of the Shannon Fisheries Act, 1935 (No. 4 of 1935), the following subsection—

"(3) Where a person is convicted of an offence under the Fisheries Acts, 1842 to 1949, or this Act or any instrument made therunder, such person shall not be entitled to any preferential right to obtain a licence under this section."

PART V REGULATIONS AS TO NETS

13.—(1) It shall not be lawful for any person (other than the owner of a several fishery within the limits thereof) to shoot, draw, or use any net for taking salmon at the mouth of any river or within half a mile seaward, or half a mile inwards or along the coast from the mouth of any river.

(2) It shall not be lawful for any person (other than the owner of a several fishery in the whole of a river and its tributaries within the limits of such several fishery) to shoot, draw, or stretch any net entirely across the mouth or across any other part of a river.

(3) If any person contravenes any of the preceding subsections of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than one pound and not more than ten pounds and a further fine of five shillings for every fish taken by means of any net used in the commission of the offence.

(4) Where a person is convicted of an offence under this section every net in respect of which the Offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(5) Where the mouth of any tributary river has been defined under section 21 of the Act of 1850 references in the preceding subsection of this section to the mouth of any river shall be construed as including references to the mouth of such tributary river.

PART VI FIXED ENGINES, FISHING WEIRS, FISHING MILL DAMS AND OTHER OBSTRUCTIONS TO THE PASSAGE OF FISH

14.—Section 33 of the Act of 1939 is hereby amended in the following respects—

( a ) the following subsection shall be substituted for subsection (1)—

"(1) It shall not be lawful for any person (other than the Electricity Supply Board in respect of a fishing weir erected for the capture of eels) to erect in the freshwater portion of any river or lake any fishing weir, fishing mill dam or fixed engine ";

( b ) in subsections (2) and (3) the words "fishing weir, fishing mill dam or fixed engine" shall be substituted for the words "weir or other fixed engine" where the latter words occur.

15.—(1) Section 34 of the Act of 1939 is hereby amended in the following respects—

( a ) the following subsection shall be substituted for subsection (1)—

"(1) It shall not be lawful for any person to use in the freshwater portion of any river or in any lake any fishing weir, fishing mill dam or fixed engine, unless such fishing weir, fishing mill dam or fixed engine was in existence and was lawfully used during the open season of one or more of the three years 1936, 1937 and 1938.";

( b ) in subsections (2) and (3) the words "fishing weir, fishing mill dam or fixed engine" shall be substituted for the words "weir or other fixed engine" wherever the latter words occur.

(2) Nothing in section 34 of the Act of 1939 shall apply to the use by the Electricity Supply Board of a fishing weir erected by the said Board for the capture of eels.

16.—Subsection (3) of section 29 of the Act of 1939 is hereby amended by the deletion of the words "Where a notice has been served under subsection (1) of this section on the occupier of a fishing weir, and such occupier has not complied with the requirements of such notice, the following provisions shall have effect, that is to say:—" and the substitution in lieu thereof of the following—

"Where—

(i) a notice has been served under subsection (1) of this section on the occupier of a fishing weir, and

(ii) either—

(I) such occupier has not duly made, in relation to the notice, an application under subsection (2) of this section, or

(II) such occupier has duly made, in relation to the notice, an application under the said subsection, but the application has been refused, and

(iii) such occupier has not complied with the requirements of the notice,

the following provisions shall have effect, that is to say:—".

17.—(1) If any person—

( a ) uses any fishing engine in a free gap, or

( b ) uses any fishing engine (not being a rod and line) within fifty yards above or below any part of a fishing weir, or

( c ) places any obstruction in the free gap of a fishing weir, or

( d ) uses any contrivance or does any act whereby fish may be scared, deterred or in any way prevented from freely entering and passing up and down a free gap at all periods of the year, or

( e ) places any bridge, board, cloth or any other thing whatsoever in, over or across a free gap in a fishing weir, except a temporary bridge or board during the time only when the persons engaged in the fishing of the said weir are passing over the free gap,

such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to—

(i) in the case of a first offence under this section, a fine of not less than five pounds and not more than twenty pounds, and,

(ii) in the case of a second or any subsequent offence under this section a fine of not less than ten pounds and not more than fifty pounds.

(2) Where—

( a ) the owner or occupier of a fishing weir is charged under subsection (1) of this section with the offence of placing an obstruction in the free gap in such fishing weir, and

( b ) it is proved that such obstruction was placed in such free gap,

it shall be presumed, until the contrary is shown, that such obstruction was placed in such free gap by him.

(3) Where a person is convicted of the offence of placing an obstruction in the free gap in a fishing weir, the Minister may cause such obstruction to be removed and any expenses incurred by the Minister under this subsection shall be a debt due by such person to the Minister and may be recovered as a simple contract debt in any court of competent jurisdiction.

18.—(1) In this section the expression "salmon weir" means any weir being—

( a ) a fishing weir used for taking salmon, or

( b ) a fishing mill dam used for taking salmon.

(2) The following rules shall be observed in relation to the construction and use of boxes in salmon weirs—

( a ) the surface of the floor of the box shall be level with the natural bed of the river,

( b ) the inscales and the heck of the box shall be capable of being removed and opened up,

( c ) the bars of the heck of the box shall be placed perpendicularly,

( d ) the inscales and the heck of the box shall be so constructed that no bar or part of a bar is nearer to any other bar or part of a bar than two inches,

( e ) the box shall not be built over or in any other manner hidden from public inspection.

(3) Where the Minister is satisfied that sea trout form the principal part of the fish caught in a salmon weir, he may, if he thinks fit, by order declare that paragraph (d) of subsection (2) of this section shall, in relation to such salmon weir, have effect as if the words "one and a quarter inches" were substituted for it two inches"

(4) If any person uses or constructs any box in a salmon weir in contravention of subsection (2) of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(5) Where a person is convicted of an offence under this section in relation to any box in a salmon weir, the Minister may cause the parts of the said box in respect of which the offence was committed to be removed and may recover the expenses incurred in such removal from such person as a simple contract debt in any court of competent jurisdiction.

19.—(1) In this section, the expression "guiding wall" means any spur or tail wall, leader or outrigger.

(2) ( a ) There shall not be attached to any fishing weir or fishing mill dam in a river any guiding wall (other than one connecting the boxes of such fishing weir or fishing mill dam with the bank of the river) of greater length than twenty feet measured from the upstream or downstream face of such fishing weir or fishing mill dam along the centre line of such guiding wall.

( b ) There shall not be attached to any fishing weir any guiding wall which has the effect of narrowing up or preventing the ingress and discharge of water through or from the free gap in such fishing weir.

( c ) If any fishing weir or fishing mill dam has any guiding wall in contravention of paragraph (a) of this subsection or any fishing weir has any guiding wall in contravention of paragraph (b) of this subsection, the following provisions shall apply—

(i) the occupier thereof shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and also a further fine not exceeding five pounds for every day during which such guiding wall is allowed to remain;

(ii) the Minister may cause such guiding wall to be altered or removed and, if he does so, the expenses incurred by him in so doing shall be recoverable from such occupier as a simple contract debt in any court of competent jurisdiction.

(3) If the occupier of a fishing weir or fishing mill dam in a river makes such use of any island or natural obstruction in the river as secures to him the advantage he would have obtained by attaching to such fishing weir or fishing mill dam a guiding wall contravening paragraph (a) of subsection (2) of this section, he shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds and a further fine not exceeding five pounds for every day on which he makes use of such island or natural obstruction.

(4) If any fishing mill dam is used partly for the purpose of sustaining water for a mill or factory or for navigation, nothing contained in this section shall be construed to extend to such fishing mill dam so as to affect injuriously the necessary supply of water to such mill, factory or navigation.

20.—Section 30 of the Act of 1939 is hereby amended as follows:—

( a ) there shall be inserted in subparagraph (iii) of paragraph (b) of subsection (2) and before clause (II), the following clause—

"(Ia) if the person investigating the matter agrees with the report, the Minister shall serve on such occupier a statement informing him accordingly, and such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of one month commencing on the day on which such statement was served.";

( b ) there shall be inserted in paragraph (b) of subsection (2), the following subparagraph—

"(iv) if an objection is not so sent to the Minister, such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of six weeks commencing on the date on which a copy of the report was served on such occupier.";

( c ) by the insertion of the following new subsection—

"(3A) Where a notice served under subsection (1) of this section has been withdrawn under subsection (2) of this section, such notice shall be deemed not to have been served.".

21.—In section 64 of the Act of 1842, there shall be substituted for the words "any obstacle or contrivance of any nature or kind soever in or near thereto in order to deter or prevent fish" the words "any obstruction, use any contrivance or do any act whereby fish may be scared, deterred or in any way prevented".

22.—(1) In this section—

the word "mill" includes any factory, machine, building or other work by or for which water is taken or used for any purpose, but does not include any work for the generation, by means of by hydraulic power, of electricity, for distribution and supply to the public;

the expression "wheel sluices", in relation to a mill, means the sluices which admit water to the wheels of such mill.

(2) The following provisions shall apply in relation to every mill which derives its supply of water from a salmon river—

( a ) in case there is a fish pass in the dam belonging to the mill, the wheel sluices and the waste gates or over-falls shall be kept shut,—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p. m. on Saturday and the hour of 6 o'clock a.m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

( b ) in case there is no fish pass in the dam belonging to the mill and the waste gate on the upstream side of the wheel sluices is erected in a channel suitable for the passage of fish, the wheel sluices shall be kept shut and the said waste gate kept open—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p. m. on Saturday and the hour of 6 o'clock a. m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

( c ) if the provisions of paragraph (a) or paragraph (b) of this subsection are not complied with, the occupier of the mill shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than three pounds and not more than ten pounds.

(3) Where the occupier of a mill is charged with an offence under this section, it shall be a good efence to prove that compliance with paragraph (a) or paragraph (b) (whichever is applicable) of subsection (2) of this section would in any way have injuriously interfered with the machinery or water power of the mill.

PART VII RESTRICTIONS AS TO TIMES Or FISHING FOR SALMON, TROUT, POLLEN AND EELS

23.—Where—

( a ) a person is charged with an offence under subsection (2) of section 2 of the Act of 1924, in relation to a salmon or trout, and

( b ) such person proves that the salmon or trout was caught by rod and line in a particular place and at a particular time, and

( c ) the capture of salmon or trout by rod and line in that place and at that time was lawful,

the charge against such person shall be dismissed.

24.—(1) During the annual close season for salmon and trout—

( a ) every bag net and stake net shall be removed from the poles or fixtures to which it is attached and carried away,

( b ) there shall be made and maintained in every fixed engine (other than a bag net or a stake net) a clear opening of four feet in width in the heads, traps, eyes or gaps from the top to the bottom thereof so as to allow the free passage of all fish through them and effectually to prevent the taking of fish therein.

(2) If in respect of any fixed engine the provisions of subsection (1) of this section are not complied with, the occupier thereof shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds and, in the case of a continuing offence, a further fine not exceeding five pounds for every day during which the offence is continued.

(3) Where a person is convicted of an offence under this section, the fixed engine in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(4) Nothing in subsection (2) of this section shall be construed as rendering liable to any penalty any person who was prevented by floods, storm or stress of weather from removing the things mentioned in paragraph (a) of subsection (1) of this section during the continuance of such prevention.

(5) Where the predecessor in title of any person was on the 10th day of August, 1842, lawfully entitled by charter or prescriptive right to use any fixed engine in the tideway of a river for the purpose of catching white sea fish, the provisions of subsection (1) of this section shall not apply in respect of such fixed engine if it is used for the said purpose and no other.

25.—(1) In this section

the expression "salmon weir" means any weir being—

( a ) a fishing weir for taking salmon, or

( b ) a fishing mill dam for taking salmon;

the expression "moveable parts" means, in relation to a salmon weir,—

( a ) the inscales and heck of every box in such salmon weir, and

( b ) all other fittings and articles used in connection with the boxes in such salmon weir which are capable of removal;

the expression "the annual close season" means the annual close season for salmon and trout.

(2) Within thirty-six hours of the commencement of the annual close season, all the moveable parts of a salmon weir shall be removed and carried away therefrom.

(3) The moveable parts of a salmon weir shall not be placed therein or thereon earlier than thirty-six hours before the expiration of the annual close season.

(4) During the annual close season (except the first and the last thirty-six hours thereof) the moveable parts of a salmon weir shall not be allowed to remain therein or thereon.

(5) If in respect of any salmon weir the provisions of subsection (2), (3) or (4) of this section are contravened (by act or omission) the occupier thereof shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds and, in the case of a continuing offence, a further fine not exceeding five pounds for every day during which the offence is continued.

(6) Where the occupier of a salmon weir is convicted of an offence under this section, every moveable part in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(7) Nothing in subsection (5) of this section shall be construed as rendering liable to any penalty any occupier of a salmon weir who was prevented by floods, storm or stress of weather from complying with subsection (2) of this section during the continuance of such prevention.

(8) Where the occupier of a salmon weir is convicted of an offence under this section—

( a ) the Minister may cause to be removed from such salmon weir the moveable parts in respect of which such offence was committed,

( b ) where the Minister removes the said moveable parts he shall be entitled to recover as a simple contract debt in any court of competent jurisdiction from the said occupier the expenses incurred in so doing.

(9) Where—

( a ) the predecessor in title of an owner of a salmon weir was, on the 10th day of August, 1842, entitled by patent, charter or otherwise to a right of fishing for eels therein, and

( b ) the said predecessor exercised such right before the said date,

the owner of such salmon weir shall not be liable to any penalty under subsection (5) of this section by reason of his placing, hanging or using eel nets or other engines for taking eels in the eyes or gaps of such salmon weir, if such eel nets or engines are used only in conformity with the Acts and are hung only in four-fifths in number of the eyes or gaps of such salmon weir, and the other one-fifth of such eyes or gaps, in addition to the free gap (if any) therein, are kept free and unobstructed for the free passage of fish, but this provision shall not exempt such owner from liability under section 2 of the Act of 1924 if any salmon or trout are taken in such salmon weir during the annual close season.

26.—(1) Section 28 of the Act of 1939 shall not apply to an offence under section 46 of the Act of 1850, consisting of the failure of any person occupying or using any fishing weir, fishing mill dam or fixed engine to open or remove it as required by section 40 of the Act of 1842.

(2) In subsection (2) of section 28 of the Act of 1939, there shall be substituted for paragraphs (i) (ii) and (iii) the following paragraphs—

"(i) that he used due diligence to prevent such commission and the offence was committed without his consent, connivance or wilful default, and

(ii) that on being charged with the offence he gave the person charging him all information in his power with respect to the person who commited the offence."

PART VIII MISCELLANEOUS PROVISIONS IN RELATION TO SALMON AND FRESHWATER FISHERIES

27.—If any person, who is the holder of a licence or a renewal of a licence issued under section 17 of the Act of 1925 or section 4,4, of the Act of 1939, fails to comply with subsection (1) of section 21 of the Act of 1925, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.

28.—Section 70 of the Act of 1842 is hereby amended by the deletion of the words "save the proprietor of a several fishery, or any person duly authorised by him in writing, within the limits thereof".

29.—(1) In this section—

the expression "deleterious matter" means any deleterious or poisonous matter;

the expression "deleterious liquid" means any deleterious or poisonous liquid or washings or drainage from any deleterious or poisonous matter;

the word "waters" means any river, lake or watercourse.

(2) Where any receptacle used for containing or conveying any deleterious matter is within thirty yards of any waters—

( a ) the owner of that receptacle shall provide and maintain such means (in this subsection referred to as suitable means) as will effectively prevent the passage of any deleterious liquid from that receptacle into such waters,

( b ) if the owner thereof fails to carry out the duty imposed on him by paragraph (a) of this subsection, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds for each day during which such failure continues,

( c ) where the Minister is satisfied that suitable means have been provided in relation to that receptacle, he may, on the application of the owner thereof, issue to him a certificate (which shall remain in force for such period as may be specified therein) and such certificate shall specify the suitable means and the manner in which they are to be used,

( d ) if—

(i) the owner thereof is charged with an offence under this section in relation to that receptacle, and

(ii) he proves that a certificate in respect of that receptacle was issued under paragraph (c) of this subsection and that since the issue of the certificate the suitable means specified therein remained available and had been used in the manner specified therein, and

(iii) the certificate was in force on the date on which the offence is alleged to have been committed,

then, the charge shall be dismissed.

30.—Where—

( a ) a person is charged with an offence under section 38 of the Act of 1939 in relation to a salmon or trout, and

( b ) such person proves that the salmon or trout was caught by rod and line at a particular place and at a particular time and

( c ) the capture of salmon or trout by rod and line in that place and at that time was lawful,

the charge against such person shall be dismissed.

PART IX TRANSFER TO MINISTER OF CERTAIN FISHERIES AND PROVISIONS IN RELATION TO FISHERIES SO TRANSFERRED

31.—In the definition (contained in subsection (1) of section 58 of the Act of 1939) of the expression "transferable fishery"; the words "or which the Electricity Supply Board is authorised by law to acquire" shall be deleted.

32.—In subsection (4) of section 67 of the Act of 1939, the following paragraph shall be inserted in lieu of paragraph (b)—

"( b ) the proprietor of such fishery had at the vesting date the exclusive right of catching salmon in the whole of such river including all tributary rivers and lakes upon its course, and"

33.— In subsection (4) of section 87 of the Act of 1939, the words "separate from such dwelling house" shall be substituted for the words "separated from"

PART X SEA FISHERIES

34.—In section 6 of the Sea Fisheries Protection Act, 1933 (No. 53 of 1933), the following paragraph shall be substituted for paragraph (b)—

"(b) every member of the Defence Force (not below the rank of sergeant or the rating of petty officer for the time being serving on board any ship or vessel belonging to, or employed in the servie of, the State;".

PART XI POWERS OF WATER KEEPERS, ETC, FOR ENFORCEMENT OF THE ACTS

35.—In section 13 of the Act of 1949 there shall be inserted after the words "the Acts" the words " (other than the Sea Fisheries Protection Act, 1933 (No. 53 of 1933) and the Sea Fisheries (Protection of Immature Fish) Act, 1937 (No. 33 of 1937))".

36.—Where a person (in this section referred to as the offender) is apprehended under section 87 of the Act of 1842, the person apprehending the offender shall forthwith deliver him into the custody of a member of the Garda Síochána to be dealt with according to law.

37.—Section 10 of the Fisheries (Ireland) Act, 1845, shall have effect as if the reference therein to a free gap through or over any fishing or other weir included a reference to a fish pass.

38.—Paragraph (b) of subsection (1) of section 24 of the Act of 1925 is hereby amended by the insertion—

( a ) in subparagraph (iv) of the word "aerodrome" before the word "pier", and

( b ) in subparagraph (v) of the word "aircraft" before the words "railway wagon".

39.—A person who, when the production of his ordinary licence is lawfullly demanded of him under section 29 of the Act of 1848, does not produce such licence because he is not the holder of an ordinary licence, shall be deemed to fail to produce such licence within the meaning of the said section 29.

PART XII LEGAL PROCEDURE AND EVIDENCE

40.—(1) In this section—

the expression "the Act of 1933" means the Sea Fisheries Protection Act, 1933 (No. 53 of 1933), the expression "the Act of 1937" means the Sea Fisheries (Protection of Immature Fish) Act, 1937 . (No. 33 of 1937).

(2) Where—

( a ) a sea fisheries protection officer has in exercise of the powers conferred on him by section 7 of the Act of 1933 taken a boat and the persons on board it to a port in the State, and

( b ) any person (being one of the said persons) is alleged to have committed an offence under any section of the Act of 1933,

such offence may be brought before and heard and disposed of by a District Justice for the time being assigned to the District in which such port is situate.

(3) Where—

( a ) a sea fisheries protection officer has, in exercise of the powers conferred on him by section 7 of the Act of 1933 as applied by section 8 of the Act of 1937, taken a boat and the persons on board it to a port in the State, and

( b ) any person (being one of the said persons) is alleged to have committed an offence under any section of the Act of 1937,

such offence may be brought before and heard and determined by a District Justice for the time being assigned to the District in which such port is situate.

(4) Subsections (2) and (3) of this section shall not be construed as affecting section 79 of the Courts of Justice Act, 1924 (No. 10 of 1924).

41.—Where an offence under any section or subsection of the Acts or this Act or any instrument made thereunder was committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of such body corporate, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly.

42.—An offence under any section or subsection of the Acts or this Act or any instrument made thereunder may be prosecuted by the Minister.

43.—(1) Where the Minister is entitled under any enactment to which this section applies to recover any expenses, a certificate sealed with the official seal of the Minister and certifying the amount of such expenses shall be prima facie evidence of the amount of such expenses.

(2) This section applies to the following enactments.—

( a ) sections 29, 30, 31 and 33 of the Act of 1939, and

( b ) section 17, 18, 19 and 25 of this Act.

PART XIII MISCELLANEOUS PROVISIONS

44.—References, in Part IV of the Act of 1949, to the salmon fisheries enactments shall be construed as including references to this Act.

45.—The Fisheries (Oyster, Crab and Lobster) Act, 1877, shall be construed as one with the Fisheries Acts, 1842 to 1944, the Act of 1949 and this Act.

46.—(1) Notwithstanding the repeal, effected by this Act, of the Steam Trawling (Ireland) Act, 1889, every bye-law, made under the last-mentioned Act and in force immediately before the commencement of this section, shall continue in force.

(2) Any bye-law continued in force by section (1) of this section shall be deemed to be a bye-law made under section 4 of the Sea Fisheries Protection Act, 1933 (No. 53 of 1933), and the Act (including the penal provisions thereof) shall apply accordingly.

Section 5.

SCHEDULE

ENACTMENTS REPEALED