Fisheries Act 1972

[12 May 1972]

[preamble and words of enactment omitted]

Interpretation

1 In this Act, unless the context otherwise requires, —

"charter fishing vessel" means a vessel which is available for hire or charter for the purpose of engaging in fishing on terms in cluding the employment of the services of the operator of the vessel;

"court" means court of summary jurisdiction;

"exclusive economic zone" means the territorial waters of Bermuda together with the zone contiguous to the said waters which was proclaimed as an exclusive economic zone for Bermuda by a Proclamation made by the Governor to come into operation on the date on which the Fisheries Amendment Act 1996 comes into operation;

"fish" means fish of any kind found in the sea and includes tur tles, crabs, crayfish, lobsters, shell-fish, shells, corals, seafans, and marine animals of all descriptions, whether alive or dead;

"fishing vessel" means a vessel of whatever size used by any per son in fishing for reward or financial gain and includes a charter fishing vessel;

"licence" means a licence issued by the Minister;

"the Minister" means the Minister charged with responsibility for fisheries;

"protected area" means an area declared by the Minister to be a protected area under section 4;

"taking" in relation to any fish includes capturing, killing and de stroying as well as attempting to capture, kill, and destroy any such fish;

"vessel" includes any ship, yacht, boat, lighter or other craft of any description used for transport by water.

[Section 1 amended by 1996:10 effective 11 June 1996]

Persons who are fisheries inspectors

2 Every officer of the Department of Agriculture, Fisheries and Parks appointed for the purpose by the Minister by instrument in writing, every commissioned officer of Her Majesty's Royal Navy, every customs officer and every police officer shall be a fisheries inspector for the purposes of this Act and shall have and may exercise the functions assigned to a fisheries inspector by or under this Act.

[section 2 amended by 1991:99 effective 1 April 1991]

Marine Resources Board

3 (1) The Minister shall by notice published in the Gazette appoint annually a body to be called the Marine Resources Board (hereinafter referred to as "the Board") which shall, subject to any general directions of the Minister, exercise the powers and discharge the functions assigned to it by this Act or any regulations made thereunder, by any other statutory provision or by the Minister.

(2) The Board shall advise the Minister on matters relating to this Act and to the protection and use of marine natural resources and of the environment in which the marine natural resources live and grow.

(3) The Statutory Instruments Act 1977 [title 1 item 3] shall not apply to a notice mentioned in subsection (1).

(4) The provisions of the Third Schedule shall have effect with respect to the constitution and operation of the Board and otherwise in relation thereto.

[section 3 repealed and replaced by 1991:99 effective 1 January 1992]

3A [repealed by 1991:99]

Minister may declare protected areas within exclusive fishing zone

4 (1) The Minister may by order declare any area of the waters within the exclusive economic zone to be a protected area for the purposes of this Act.

(2) Any order made under this section may prohibit the taking of fish within the protected area, or of such fish as may be specified in the order, either absolutely or during such periods or times as may be specified in the order, by any person otherwise than under the authority of and in accordance with the terms and conditions of a licence in that behalf granted to that person for the purpose.

(3) Any person who takes any fish in a protected area and the master or other person in charge of any vessel who suffers or permits any person on board that vessel to take any fish in a protected area in contravention of any order made under this section in respect of such area or of any term or condition attached to a licence granted under this section shall each commit an offence:

Punishment on summary conviction: subject to section 14, imprison ment for one year or a fine of $5,000 or both such imprisonment and fine, and any fish so taken and any vessel, instrument and equipment used in such taking shall be liable to forfeiture.

(4) Where any person is found within a protected area in pos session of any fish the taking of which within that area is prohibited by an order made under this section he shall be deemed, until the contrary is proved, to have taken that fish within that area.

[Section 4 amended by 1996:10 effective 11 June 1996]

Minister may prohibit taking of certain fish and use of certain methods of taking fish

5 (1) The Minister may by order prohibit —

(a) the taking, selling, purchasing or possession of any species or kind of fish specified in the order (whether by reference to size or weight or otherwise) absolutely or during such period or periods as may be so specified;

(b) the taking of any fish by any method specified in the or der; and

anywhere within the exclusive economic zone and whether within a pro tected area or otherwise.

(2) Any person who takes any fish in contravention of an order made under this section, and the master or other person in charge of any vessel who suffers or permits the vessel or any person belonging to the vessel to be employed in so taking or to so take any fish, shall each commit an offence:

[Section 5 amended by 1996:10 effective 11 June 1996]

Licence required to import or export certain fish

6 (1) No person shall import or export any fish to which this sec tion applies into or from Bermuda otherwise than under the authority of, and in accordance with the terms and conditions of, a licence in that be half granted to that person for the purpose.

(2) The fish to which this section applies are —

(a) in relation to importation, any living fish, and any fish, living or dead, specified in an order made under section 5(1)(a), other than living fish of such species as the Min ister may except by notice published in the Gazette;

(b) in relation to exportation, any fish, whether living or dead, other than fish retained as a trophy or souvenir.

(3) Any person who imports or exports any fish in contraven tion of this section or of any term or condition attached to a licence thereunder commits an offence:

(4) Any fish taken in the waters adjacent to Bermuda and landed in Bermuda shall not for the purposes of this section be deemed to be imported into Bermuda.

Foreign fishing vessels

7 (1) Subject to this section, where any person on board a foreign vessel takes any fish within the exclusive economic zone then that person and also the master or other person in charge of the vessel shall each commit an offence:

Punishment on summary conviction: subject to section 14, a fine of $150,000 and the vessel used in such taking and the fish on board shall be liable to forfeiture.

(2) Notwithstanding anything to the contrary, a taking by a person on board a foreign vessel shall be deemed not to be in contra vention of subsection (1) if such taking was made —

(a) for commercial or scientific research purposes under the authority of, and in accordance with the terms and con ditions of, a licence in that behalf granted to the person operating the vessel; or

(b) for sporting purposes, after the vessel has first made entry in respect of the voyage on which it is engaged at a port of entry in Bermuda and may also seize the vessel's log or any other document and such log or other docu ment may be used in evidence.

(3) In this section "foreign" in relation to a fishing vessel means not bona fide owned by a person who possesses Bermudian status within the meaning of the Bermuda Immigration and Protection Act 1956 [title 5 item 16].

[Section 7 amended by 1996:10 effective 11 June 1996]

Fisheries inspector may stop and search vessel; arrest

8 (1) A fisheries inspector may at any time stop, go on board and search any vessel within the exclusive economic zone, and if he has reason to suspect that any person on board such vessel has contravened any of the provisions of this Act or any regulations made thereunder he may without summons, warrant, or other process seize the vessel and detain it and any person found on board.

(2) A fisheries inspector may at any time without summons, warrant or other process seize and detain any vessel or thing which is li able to forfeiture under this Act or which he has reasonable grounds to believe is so liable.

(3) Any fisheries inspector and any person whom he may call to his assistance may arrest and retain without warrant any person whom such inspector has reason to suspect has committed or permitted any offence against this Act or any regulations made thereunder.

(4) Any person who resists or obstructs any fisheries inspector in the exercise of any of his powers conferred by this section commits an offence:

Punishment on summary conviction: a fine of $300, and such person may be detained by the fisheries inspector.

(5) Where any vessel or thing is seized or detained or any per son is detained under this section by a fisheries inspector, the inspector shall take such vessel, thing or person as soon as may be to the nearest or most convenient place in Bermuda and there deliver it or him into the custody of the most senior police officer there available.

[Section 8 amended by 1996:10 effective 11 June 1996]

Persons in custody

9 Where on delivering any person into the custody of a police offi cer in accordance with section 8—

(a) the fisheries inspector makes a complaint to such officer that such person has committed an offence against this Act or any regulations made thereunder, the police offi cer shall as soon as may be cause such person to be brought before a court to be dealt with according to law; or

(b) the fisheries inspector does not make any such com- plaint, the police officer shall forthwith release such per-son.

Detention of vessel

10 (1) Where any vessel other than a foreign vessel or thing is delivered into the custody of a police officer at any place by a fisheries inspector in accordance with section 8, such vessel or thing shall be detained in the custody of the Commissioner of Police to the order of the Minister at that place or at such other place as the Minister may direct until the same shall be for feited or released in accordance with this section, as the case may be.

(1A) Where a foreign vessel is delivered into the custody of a police officer at any place by a fisheries inspector in accordance with section 8, that vessel shall be detained in the custody of the Commissioner of Police to the order of the Minister at that place or at such other place as the Minister may direct and the provisions of section 10A shall apply.

(2) Any vessel or thing detained under subsection (1) shall be released upon demand to the owner or his duly accredited agent —

(a) within the period of seven days next following the date of delivery of the vessel or thing to the police officer, if no proceedings are instituted within that period against the master or other person in charge of the vessel or thing in respect of an offence against this Act; or

(b) in any case where such proceedings are instituted as aforesaid and the vessel or thing is not liable or ordered to be forfeited under this Act, upon the final determina tion of the proceedings and the payment of any fine or fines imposed by the court in such proceedings within the time prescribed by the court for such payment.

(3) Any vessel or thing detained under subsection (1) shall be subject to a lien in favour of Her Majesty for the amount of any fine im posed by the court upon the master or other person in charge thereof in any proceedings in respect of an offence against this Act or any regula tions made thereunder, and if such fine shall not have been paid by the due date for payment thereof the Minister may, at any time thereafter, subject as in this subsection provided, after first serving upon the owner or the master or other person in charge of the vessel or thing at the time of its seizure notice in writing of his intention so to do, sell the vessel or thing by public auction and deduct the amount of the fine or fines un paid and the expenses incurred in selling the vessel or thing from the proceeds of the sale and pay the balance to the Accountant General, to be held by the Accountant General and paid by him to such person as shall satisfy him that he is entitled thereto:

Provided that if within the period of fourteen days next following the date of service of a notice made under this subsection upon the owner, master or other person in charge of a vessel or thing, such owner, master or other person pays to the court the amount of any fine or fines unpaid, and pays to the Minister the amount of any expenses incurred by the Minister in respect of the proposed sale, the Minister shall not of fer such vessel or thing for sale but shall release the vessel or thing to such owner, master or other person.

(4) No action shall lie at the suit of any person against the Ac countant General in respect of the payment by him in good faith of any moneys under subsection (3) to any person appearing to him to be enti tled to the same.

[Section 10 amended by 1996:10 effective 11 June 1996]

Owner of foreign vessel may enter into bond, etc.

10A (1) In the case of a foreign vessel referred to in section 10(1A), where—

(a) within the period of seven days next following the date of delivery of the vessel to the police officer, no proceedings are instituted against the master or other person in charge of the vessel, the vessel shall be released upon demand to the owner or his duly accredited agent; or

(b) such proceedings are instituted and the owner of the vessel, enters into a bond, with two sureties approved by the court, or gives such other security as the court considers appropriate, in treble the amount of any fine or fines which may be imposed by the court upon the final determination of such proceedings, the vessel shall be released upon demand to the owner or his duly accredited agent.

(2) The court shall, in addition to any fine which it may impose, make an order for the recovery of any costs incurred consequent on the detention of the vessel and the bond or other security shall have effect in respect of such costs.

(3) Where proceedings are instituted and the owner of the vessel fails or refuses to enter into a bond or to give other security in accordance with subsection (1), then, the provisions of section 10(3) and (4) shall have effect in respect of the foreign vessel.

[Section 10A inserted by 1996:10 effective 11 June 1996]

Forfeiture; First Schedule

11 (1) The First Schedule shall have effect for the purpose of for feitures, and proceedings for the condemnation of any vessel or thing as being forfeited, under this Act.

(2) Subject to the First Schedule, any vessel or thing seized or detained under this Act as being liable to forfeiture shall, if condemned or deemed to have been condemned as forfeited, be disposed of in such manner the Minister may direct.

Offence outside territorial waters but within exclusive economic zone

12 Where any offence against any of the provisions of this Act or of any regulation made thereunder is committed at some place on the water within the exclusive economic zone but outside the limits of territorial wa ters, the place of the commission of the offence shall for the purposes of the jurisdiction of any court be deemed to be the place in Bermuda where the offender is found or to which he is first brought after the commission of the offence.

[Section 12 amended by 1996:10 effective 11 June 1996]

Minister may make regulations

13 (1) The Minister may make regulations for the promotion, de velopment, improvement and protection of the fisheries and fishing in dustry of Bermuda and, without prejudice to the generality of the fore going words, may make regulations —

(a) for the registration and licensing of fishing vessels and for the registration of fishermen;

(b) for the issue of licences, their terms and conditions and for the transfer, amendment and revocation of licences;

(c) for prohibiting or regulating the taking, sale, purchase, storing or possession of specified fish, absolutely, or during specified periods or times or for purposes other than specified purposes;

(d) for prohibiting or regulating specified means or methods of taking fish or specified fish;

(e) for prohibiting or regulating any act which is likely to result in the wholesale destruction of fish;

(f) for the establishment, regulation and control of fish nurseries, aquaculture operations and preserves;

(g) controlling or regulating the use of any tank, fish pond, enclosure, cold storage plant or apparatus for the con servation of fish which has been committed to the charge of the Minister;

(h) providing for the regulation of the sale of any fish to the public and for the inspection, grading, packing, and storage of any fish intended for human consumption;

(i) for the inspection of any premises, land, vessel, vehicle, fish pot or fishing net, and for the seizure and examina tion of any fish, fish pot, fishing net or other thing and for the forfeiture and disposal of any fish, fish pot, fish ing net or other thing used or possessed in contraven tion of the regulations; and

(j) generally for the better carrying out of this Act.

(2) Regulations made by the Minister under this section shall apply generally to the waters within the exclusive economic zone except where it is expressly provided that any such regulation shall apply only in respect of any specified area of water, foreshore, coastal land, sea bed, or land under water.

(3) Regulations made by the Minister under this section may provide for the punishment of persons guilty of offences against the reg ulations, so, however, that no punishment shall, subject to section 14, exceed five thousand dollars or a term of imprisonment of one year or both such fine and imprisonment.

(3A) Any vessel, instrument or equipment used in contravention of this Act or any regulations made thereunder shall be liable to seizure and forfeiture.

(4) In this section "specified" means specified in the regula tions.

[Section 13 amended by 1996:10 effective 11 June 1996]

Penalty for subsequent conviction of same offence

14 (1) If any person, having been convicted of an offence against any provision of this Act or of any Regulations made thereunder, is convicted of a further offence against that provision, then, notwithstanding anything to the contrary, he shall be liable upon conviction of such further offence—

(a) in the case of a person referred to in section 7, to a double fine; and

(b) in any other case—

Court Proceedings for Condemnation

8 Proceedings for condemnation shall be civil proceedings and shall be instituted in the Supreme Court by motion.

9 (1) In any such proceedings —

(a) the claimant or his attorney shall make oath that the thing seized was, or was to the best of his knowledge and belief, the property of the claimant at the time of the seizure; and

(b) the claimant shall give such security for the costs of the proceedings as may be determined by the Court.

(2) If any requirement of sub-paragraph (1) is not complied with the Court shall give judgment for the Attorney-General.

10 Where an appeal has been made against the decision of the Court in any proceedings for the condemnation of any thing, that thing shall, pending the final determination of the matter, be left in the cus tody of the Commissioner of Police.

Provision as to Proof

11 In any proceedings arising out of the seizure of any thing, the fact, form and manner of the seizure shall be taken to have been as set forth in the process without further evidence thereof, unless the contrary is proved.

12 In any proceedings, the condemnation by the Supreme Court of any thing as forfeited may be proved by the production either of the order or certificate of condemnation or of a certified copy thereof purporting to be signed by the Registrar.

Special provisions as to certain claimants

13 For the purposes of any claim to, or proceedings for the condem nation of, anything, where that thing is at the time of seizure the prop erty of a body corporate, of two or more partners or of any number of persons exceeding five, the oath required by this Schedule to be taken and any other thing required by this Schedule or by any rules of the Supreme Court to be done by, or by any person authorized by, the claimant or owner may be taken or done by, or by any other person au thorized by, the following persons respectively—

(a) where the owner is a body corporate, the secretary or some duly authorized officer of that body;

(b) where the owners are in partnership, any one of those owners;

(c) where the owners are any number of persons exceeding five not being in partnership, any two of those persons on behalf of themselves and their co-owners.

Power to deal with seizures before condemnation, etc.

14 Where anything has been seized as liable to forfeiture the Min ister may at any time if he sees fit and notwithstanding that the thing has not yet been condemned, or is not yet deemed to have been con demned, as forfeited—

(a) to deliver it up to any claimant upon his paying to the Accountant General such sum as the Minister thinks proper, being a sum not exceeding that which in the Minister's opinion represent the value of the thing, in cluding any duty chargeable thereon which has not been paid; or

(b) if the thing seized is a living creature or is in the opinion of the Minister of a perishable nature, sell or destroy it or release it into the sea.

15 (1) If, where any thing is delivered up, sold, destroyed or re leased as aforesaid, it is held in proceedings taken under this Schedule that the thing was not liable to forfeiture at the time of its seizure, the Minister shall on demand by the claimant tender to him —

(a) an amount equal to any sum paid by him under sub-paragraph (a) of paragraph 14; or

(b) where the Minister has sold the thing, an amount equal to the proceeds of sale; or

(c) where the Minister has destroyed or released the thing, an amount equal to the market value of the thing at the time of its seizure:

Provided that where the said amount includes any sum on ac count of any duty chargeable on the thing which had not been paid be fore its seizure the Minister, may deduct as much of that amount as rep resents that duty.

(2) If the claimant accepts any amount tendered to him under

Bermuda Consolidated Legislation

Fisheries Act 1972