Fisheries Ordinance

1990 Ed.] Fisheries CAP.45 LAWS OF TUVALU REVISED EDITION 1990 CHAPTER 45 FISHERIES ARRANGEMENT OF SECTIONS Section PART 1 GENERAL 1. Short title 2. Interpretation 3. Promotion of fisheries PART II LICENSING 4. Licensing of local fishing vessels 5. Entry and fishing by foreign vessels within the fishery limits 5A. Licensing under agreements and treaties 6. Fish processing establishment 7. Cancellation and suspension of licences and permits PART III POWERS OF AUTHORBED OFFICERS 8. Power to stop, board, search vessels, etc. 9. Powers of an authorised officer where he reasonably believes an offence committed 10. Obstruction etc. of authorised officers 11. Authorised officers to declare office etc. 12. Non-liability of authorised officers PART IV ADDITIONAL OFFENCES AND LEGAL PROCEEDING 13. Throwing overboard or destroying incriminating evidence 14. Fishing with explosives, poison and other noxious substances 14A. Driftnet fishing 15. Forfeiture of gear, fish and vessels 16. Presumption 17. Jurisdiction of the courts 18. Disposal of seized goods 2 CAP.45 Fisheries [1990 Ed PART V MISCELLANEOUS Section 19. Fishing for scientific purposes 20. Power of the Minister to enter into agreements 21. Rewards 22. Regulations 1 of 1978 4 of 1987 5 of 1990 An Ordinance to make provision for the promotion and regulation of fishing and fisheries industries in Tuvalu and its fishery limits. Commencement: 1st July 1978 L.N. 3/78 L.N. 17/90 PART I GENERAL Short title 1. This Ordinance may be cited as the Fisheries Ordinance. Interpretation 2. In this Ordinance, unless the context otherwise requires "authorised officer" means any fisheries officer, licensing officer, police officer or officer as defined in the Customs Ordinance, the master of any Government vessel and any other person appointed by the Minister to be an authorised officer for the purposes of this Ordinance; "driftnet" means a gillnet or other net or a combination of nets which is more than 2.5 kilometres in length the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water; "driftnet fishing activities" means: (i) catching, taking or harvesting fish with the use of a driftnet; (ii) attempting to catch, take or harvest fish with the use of a driftnet; (iii) engaging in any other activity which can reasonably be expected to result in the catching, taking or harvesting of fish with the use of a driftnet, including searching for and locating fish to be taken by that method; (iv) any operations at sea in support of, or in preparation for any activity described in this paragraph, including Operations of Placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; (v) aircraft use, relating to the other activities described in this definition, except for flights in emergencies involving the health or safety of crew members or the safety of a vessel; or (vi) transporting, transhipping and processing any driftnet catch, and co operation in the provision of food, fuel and other supplies for vessel equipped for or engaged in driftnet fishing. "fish’ when used as a noun means any aquatic animal, whether piscine or not, and 3 1990 Ed.] Fisheries CAP.45 includes shell fish, crustaceans, sponges, holothurians (beche-de-mer), sea urchins, and turtles and their eggs; "fish" when used as a verb means attract, pursue, catch, take or kill fish by any method; "fish processing establishment" means any land, vessel or other place on or in which fish are processed for sale outside Tuvalu but does not include any vessel on which fish caught off such vessel are gutted, salted, iced, chilled or Frozen for the sole purpose of preserving such fish; "fish product" means any product of fish processing; "fishery limits" means such fishery limits of Tuvalu as may be defined from time to time by the Governor-General by proclamation: Provided that if fishery limits are not so defined the phrase means the outer limits of the territorial waters; "fishing vessel” means any vessel used or adapted for use for paddling canoe of native design or a boat, punt or barge having an overall length of less than 7 metres, whether powered by an engine or not; "foreign fishing vessel" means any fishing vessel that is not a local fishing vessel; "licensing officer" means a licensing officer appointed under section 3 (2) and includes the Fisheries Officer; "local fishing vessel" means any fishing vessel (a) owned by one or more persons resident and domiciled in Tuvalu; or (b) owned by any company or fisheries cooperative society registered or incorporated under the laws of Tuvalu, and having its principal place of business in Tuvalu; "operate" in relation to a vessel means to be the master or owner or charterer of the vessel and in relation to a fish processing establishment means to own or to be in charge of the fish processing establishment and, where the fish processing establishment is a vessel, means to be the master or owner or charterer thereof; "processing" in relation to fish, includes preserving or preparing fish or producing any substance or article from fish by any method; "territorial waters" means that part of the sea adjacent to the coast of any island of Tuvalu which is within 3 geographical miles measured from the low water mark of the seaward side of the reef fronting such coast, or, when a reef is not present, from the low water mark of the coast itself. 3. (1) The Minister may take such measures as he shall see fit to promote the development of fishing and fisheries in Tuvalu to ensure that the fisheries resources of Promotion of fisheries Tuvalu are exploited to the full for the benefit of Tuvalu. (2) The Minister may appoint a Fisheries Officer and such fisheries assistants and licensing officers as he may consider necessary for carrying out the purposes and provisions of this Ordinance. PART II LICENSING 4. (l) Subject to any direction given by the Minister a licensing officer may, upon written application in the prescribed form and upon payment of the prescribed Licensing of local fishing 4 CAP.45 Fisheries [1990 Ed vessels fee, grant a licence in the prescribed form in respect of any local fishing vessel: Cap.89 Provided that no licence shall be granted to any local fishing vessel which is a vessel to which section 15 (1) of the Shipping Ordinance applies unless there is subsisting a valid and unexpired certificate of seaworthiness issued in respect of that fishing vessel under section 13 of that Ordinance. (2) A licence granted under subsection (1) – (a) shall not except with the prior written approval of the Minister endorsed on the licence, extend beyond 1 year from the date of issue thereof; (b) shall be personal to the holder; (c) shall not be transferable; (d) shall be subject to such conditions as may be prescribed and to such further conditions as the licensing officer shall think fit to endorse thereon; and (e) shall not, except with the prior written approval of the Minister endorsed on the licence, confer on the licensee any exclusive right to fish. (3) It shall be a condition of every licence granted under sub-section (1) that there shall be marked and kept marked on the vessel in respect of which the licence is granted such letters and numbers identification as may be assigned to that, vessel by the licensing officer, in such manner as he may specify or as may be prescribed. (4) Any person who operates or causes or allows to be operated any local fishing vessel within the fishery limits or in the lagoon or inland waters of Tuvalu except under a valid licence granted under this section in respect of that vessel and in accordance with the conditions of such licence shall be liable on conviction to a fine of $200 and to imprisonment for 6 months. Entry and fishing by foreign vessel within the fishery limits 5. (1) No foreign fishing vessel shall— (a) enter within the fishery limits except for a purpose recognised by international law; (b) fish or attempt to fish within the fishery limits; (c) load, unload or tranship any fish within the fishery limits; (d) load or unload any fuel or supplies within the fishery limits; unless authorised to do so under a permit granted under the Ordinance. (2) A foreign fishing vessel entering the fishery limits for a purpose recognised by international law without a permit granted under this Ordinance shall return outside those limits as soon as that purpose for which it entered them has been fulfilled. (3) The Fisheries Officer may, with the approval of the Minister, grant a permit, in the prescribed form in respect of any foreign fishing vessel, authorising such vessel to do such of the things described in subsection (1) as may be provided for in the permit. (4) A permit granted by the Fisheries Officer under this section shall be subject to— (a) such conditions as may be prescribed, and to such further conditions as may be endorsed upon the permit by the Fisheries Officer, and 5 1990 Ed.] Fisheries CAP.45 (b) to the payment of such fees and royalties as may be determined by the Fisheries Officer with the approval of the Minister. (5) A permit granted by the Fisheries Officer under this section shall not confer any exclusive right to fish unless the permit expressly so provides. (6) The fishing gear of any foreign fishing vessel which is prohibited. by this section from fishing within the fishing limits shall, while the vessel is within those limits, be stowed in-such manner as may be prescribed. (7) Where any foreign fishing vessel contravenes any of the provisions of this section, the master, owner and charterer, if any, of such vessel shall each be liable, on conviction— (a) in the case of a contravention of subsection (I), to a fine of $100,000; and (b) in the case of a contravention of subsection (2) or subsection (6), to a fine of $25,000. (8) Where any foreign fishing vessel contravenes any of the conditions of a permit granted under this section, the master, owner and charterer, if any, of such vessel shah each be liable on conviction to a fine of $25,000. deemed to be a permit granted under section 5(3) of this Act. 5A (1) Without prejudice to section S(3), to enable effect to he under given to an agreement or an international or bilateral treaty relating to fishing by foreign fishing vessels and to which the Government of Tuvalu is a party, the Minister may by order provide that a fishing licence issued in pursuance of the agreement or treaty shall be Licensing under agreements and treaties (2) The agreement or treaty shall be designated in the order. (3) The order shall provide for the manner and circumstances of the issue of fishing licences to which it applies and, without limiting this generality, may provide for those fishing licences to be — (a) issued by the Fisheries Officer or by a licensing officer or by some other authority outside Tuvalu and specified in the order; (b) of any type or kind specified in the order including, without limiting this generality (i) regional fishing licences valid also for countries other than Tuvalu; (ii) block licences for more than one fishing vessel, either named or un-named; (iii) transferable licences, for fishing vessels either named or un named; and (iv) licences restricted to specified types or methods or fishing; (c) in such form as is specified in or under the order; (d) transferred in such manner and circumstances as are specified in or under the order. (4) The order may also provide for the circumstances in which a fishing licence to which it applies may or shall be deemed in respect of Tuvalu to be suspended or cancelled as a permit referred to in sub-section (1) wholly, partly or in respect of one or more particular foreign fishing vessels. (5) The order may provide for the application or disapplication, as the case may be, of the whole or any part of regulations made under this Act to foreign fishing vessels to which an agreement or treaty designated in the order applies. 6 CAP.45 Fisheries [1990 Ed (6) A fishing licence referred to in subsection (1) – (a) may authorise one or more foreign fishing vessels to do such of the things described in section 5(10 as may be provided for in the licences; and (b) shall be subject to such conditions as are specified in or under the order or the licence. (7) Notwithstanding any other written law or the powers of any court in accordance with an agreement or treaty designated in it, the order may provide that in respect of a foreign fishing vessel authorised by or under a fishing licence referred to in subsection (1) or to which an agreement or treaty designated in the order applies— (a) where the master, owner, charterer or any member of the crew of the fishing vessel is in pre-trial custody in respect of any offence which amounts to a breath of the agreement or treaty, he shall be promptly released if he enters into a bond or recognisance with or without sureties for a reasonable amount to appear before the appropriate court at a stated time and place and subject to such conditions as are stated in the bond or recognisance: (b) where the fishing vessel (together with its equipment, stores and cargo) is seized in respect of an offence which amounts to a breach of the agreement or treaty, it shall be promptly released if the master, owner, charterer or another person enters into a reasonable bond or other security for a reasonable amount for the vessel to be delivered back to the custody of an authorised officer at a stated time and place, and the release of the vessel time and place, and the released of the vessel shall be subject to such conditions as are stated in the bond; (c) the master, owners, charterer or any member of the crew of the fishing vessel shall not be liable to imprisonment on conviction for an offence under this Act, the order or regulations made under this Act is the offence is a fishing violation. (8) The order may provide for the authorising, in respect of Tuvalu, of observers of the foreign fishing vessels in accordance with the agreement or treaty designated in the order, whether or not the observers are authorised officers or licensing officers under this Act or public officers of Tuvalu. (9) The order may make such other provisions not inconsistent with the Constitution or this or any other Act as are necessary or expedient for the better carrying out of the obligations or Tuvalu under an agreement or treaty designated in the order. (10) The contravention by a foreign fishing vessel, to which an agreement or treaty designated in an order under subsection (1) applies, or any provision of the order, or in respect of Tuvalu, of any provision of the agreement or treaty, or of any condition of a fishing licence referred to in subsection (1) shall be deemed to be a contravention of the conditions of a permit in terms or section 5(8) except to the extent that it is a contravention of section 5(1), (2) or (6) Fish processing establishment 6. (1) The Fisheries Officer may with the approval of the Minister and on payment of the prescribed fee grant to any person a licence in the prescribed form to operate a fish processing establishment subject to such conditions as may from time to time be prescribed and to such further conditions as may be endorsed upon the licence by the Fisheries Officer. 7 1990 Ed.] Fisheries CAP.45 (2) Any person who operates or causes or allows, to be operated any fish processing establishment except under a valid licence granted under this section in respect of that fish processing establishment and in accordance with the conditions of such licence shall be liable on conviction to a fine of $200 and to imprisonment for 6 months. 7. (1) Where any of the conditions of any licence or permit is contravened the Fisheries Officer may cancel the licence or permit, or suspend such licence or permit for such period as he may think fit. Cancellation and suspension of licences and permits (2) Any person aggrieved by the refusal of any licensing officer to issue any licence granted under this Ordinance, or by the cancellation or suspension of any licence or permit granted under this Ordinance may appeal against such refusal, cancellation or suspension to the Minister, whose decision shall be final. PART III POWERS OF AUTHORISED OFFICERS 8. For purposes of ascertaining whether there is, or has been, any contravention of the provisions of this Ordinance any authorised officer may— (a) at all reasonable hours enter any fish-processing establishment and any Power to stop, board, search vessels, etc. premises other than premises used exclusively as a dwelling-house; (b) stop, board and search— (i) any foreign or local fishing vessel within the fishery limits; or (ii) any local fishing vessel, outside the fishery limits; (c) stop and search any vehicle transporting, or reasonably suspected or transporting, fish or fish products; (d) make such examination and inquiry as may appear necessary to him concerning any premises, fish processing establishment, vessel or vehicle in relation to which any of the powers conferred by this section have been, or may be, exercised and take samples or any fish, or fish products, found therein; (e) require any person to produce his licence or his authority if it appears to the authorised officer that such person is doing any act for which a licence or other authority is required under this Ordinance. 9. (1) Where he has reasonable grounds for believing that an offence against the provisions of this Ordinance has been committed, any authorised officer, without a warrant, and with such assistance as he may consider necessary may— (a) following hot pursuit as recognised by international law and commenced within the fishery limits, stop, board and search outside the fishery limits any foreign fishing vessel which he believes has been Powers of an authorised officer where he reasonably believes an offence committed used in the commission of that offence within the fishery limits, or in relation to which he believes such offence has been committed, and bring such vessel and all persons and things on board it within the fishery limits; (b) within the fishery limits— (i) arrest any person whom he believes has committed such offence and, if the authorised officer making such arrest is not a police officer, he shall without necessary delay made over such person to a police officer, or in the absence or a police officer, shall 8 CAP.45 Fisheries [1990 Ed take such person to the nearest police station; (ii) in the case of an offence against sections 5 (1), 13 or 14 (1), seize any vessel (together with its equipment, stores and cargo) which he believes has been used in the commission of such offence or in respect of which he believes such offence has been committed; (iii) seize any fishing gear, instruments or appliances which he believes have been used in the commission of such offence; (iv) seize any fish which believes have been taken or fish products produced in the commission of such offence; or (v) seize any explosive, poison or other noxious substance which he believes has been used, carried possessed or controlled in contravention of section 14. (2) After any vessel has been stopped under the provision of this section any authorised officer may exercise concerning it, or in relation to any fish or fish products therein, any of the powers conferred by paragraph (d) of section 8. (3) A written receipt shall be given for any thing seized under subsection (1) by the authorised officer concerned to the person from whom the seizure is made. Obstruction, etc. of authorised officers 10. Any person who— (a) willfully obstructs any authorised officer in the exercise of any of his powers under this Ordinance; or (b) fails to comply with any lawful requirements imposed or to answer any lawful enquiry made by any authorised officer under this Ordinance, including enquiries as to the source of supply of fish; shall be liable on conviction to a fine of $200 and to imprisonment for 6 months, and if the obstruction or non-compliance takes place on board or alongside a vessel, the master of the vessel shall be liable on conviction to a like penalty. Authorised officers to declare office etc. 11. Any authorised officer acting in the exercise of his powers under this Ordinance shall, on demand, produce such document of identification or other evidence as may be reasonably sufficient to show that he is an authorised officer for the purpose of this Ordinance. Non-liability of authorised officers 12. No authorised officer shall be personally liable in respect of any act done or omitted to be done by him in good faith in the execution or purported execution of his powers and duties under this Ordinance. PART IV ADDITIONAL OFFENCES AND LEGAL PROCEEDINGS Throwing overboard or destroying incriminating evidence 13. Any person who, being on board any vessel being pursued or about to be boarded by any authorised officer, throws overboard or destroys any fish, fishing gear, explosive, poison, noxious substance or any other thing whatsoever, with intent to avoid the seizure of such fish, fishing gear, explosive, poison, noxious substance or thing, or the detection of any offence against this Ordinance, shall be liable on conviction to a fine or $400 and to imprisonment for 1 year. Fishing with explosives, poison and other noxious 14. (1) Any person who— (a) permits to be used, used or attempts to use any explosive, or any poison or other noxious substance, for the purpose of killing, 9 1990 Ed.] Fisheries CAP.45 stunning, disabling or catching fish or in any way rendering fish more easily caught; or substances (b) carries or has in his possession or control any explosive, poison or other noxious substance in circumstances which raise a reasonable presumption that such an explosive, poison or other noxious substance is intended to be used for any of the aforesaid purposes, shall be liable on conviction to a fine of $200 and to imprisonment for 6 months. (2) Any person who, knowing or having reasonable cause to believe that any fish has been taken in contravention of the provisions of this section, without lawful excuse, receives or is found in possession of such fish shall be liable on conviction— (a) where the circumstances of such receipt or possession raise a reasonable presumption that the fish is intended to be sold in the course of business, to a fine of $200 and to imprisonment for 6 months; or (b) where no such presumption arises, to a fine of $50 and to imprisonment for 2 months. 14A. (1) Any person who within the fishery limits engages or attempts to engage in any of the driftnet fishing activities shall be liable on conviction to a fine of up to $100,000 and to imprisonment for up to two years. Driftnet fishing (2) Where any foreign or local fishing vessel within the fishery limits engages or attempts to engage in any of the driftnet fishing activities, the master, owner and charterer, if any, of such vessel shall be liable on conviction to a fine of up to $100,000. 15. Where any person is convicted of an offence against this Ordinance the court may, in addition to any other penalty it may and impose, order that any fish caught or fish product produced in the commission of such offence or the proceeds of sale of Forfeiture of gear, fish and vessels such fish product, and any fishing gear, instruments or appliances and, in the case of any offence under section 5 (l), section 13 or section 14 (1) any vessel (together with its equipment, stores and cargo) used in the commission of such offence or in respect of which such offence has been committed, shall be forfeited to the Government, and if so forfeited such property shall be disposed of in such manner as the Minister may direct. 16. All fish found on board any vessel used in the commission of an offence Presumption against the provisions of this Ordinance or in respect of which any such offence has been committed, shall, unless the contrary is proved, be presumed to have been caught in the commission of such offence. 17. Proceedings for any offence under this Ordinance shall be by way of summary trial before the Senior Magistrate: Jurisdiction of the courts Provided that proceedings for an offence under section 22 may be before any court having jurisdiction to try the same. 18. (1) Any fish, fish product or other article of a perishable nature seized or taken under the provisions of this Ordinance may on the direction of the Fisheries Officer be sold and the net proceeds of the sale held pending the outcome of any Forfeiture of gear, fish and vessels prosecution brought under this Ordinance, and if no such prosecution is brought such proceed shall be paid .to the owner of the fish, fish product or other article sold. (2) Any vessel, fishing gear, instrument or appliance, seized under section 10 CAP.45 Fisheries [1990 Ed 9 which is not ordered to be forfeited under section 15 shall be returned to its owner. (3) Where any- vessel, fishing gear, instrument or appliance, fish or fish product has been seized under section 9 the court may order its release, on receipt of a satisfactory bond or other security from any person claiming such property, conditioned on such person— (a) delivering such property to the court upon the order of the court, without any impairment of its value, and paying in full any fine imposed by the court in pursuance of this Ordinance; or (b) paying the monetary value of such property in accordance with an order or judgment of the court together with any fine imposed. PART V MISCELLANEOUS Fishing for scientific purposes 19. The Minister may, in writing, authorise any fishing vessel to fish within the fishery limits for the purpose of scientific investigations, and may for this purpose exempt such fishing vessel from all or any of the provisions of this Ordinance and, in. making such exemption, may impose such conditions as he may think fit Power of the Minister to enter into agreements 20. The Minister may enter into an agreement with any person or any government, or agency of any, government or international agency for the purpose of enabling the Minister to perform any of the functions conferred by or under this Ordinance, or for the purpose of facilitating the performance of those functions, or generally to advance the purposes for which this Ordinance was enacted. Rewards 21. The court may order to be paid out of any fine inflicted for contravention of any of the provisions of this Ordinance such reward as the court thinks fit and proper to any person, not being a person employed for the purpose, giving information which may have led to the conviction of the offender: Provided that such reward shall not exceed $200 or one-half of the fine imposed whichever shall be the less. Regulations 22. The Minister may make regulations for the purpose of carrying out the provisions of this Ordinance and, without prejudice to the generality of the foregoing, may regulate the following matters— (a) the training of fishermen. and fisheries personnel; (b) the procedure for the issue of licences and permits, the forms thereof and the forms of application therefor; (c) the conditions and procedures to be observed by foreign fishing vessels while within the fishery limits; (d) the conservation and protection of all species of fish by inter alia— (i) establishing closed seasons for any area of Tuvalu or for any species of fish; (ii) limiting the amount, size or weight of fish or any species of fish which may be cause or traded; (iii) designating prohibited fishing areas for all fish or certain species of fish or certain methods of fishing; (iv) prohibiting certain types of fishing gear or methods of fishing; (v) specifying minimum mesh sizes for fishing nets; 11 1990 Ed.] Fisheries CAP.45 (e) the organisation of sport fishing; (f) the development of fish farms and the importation of live fish; (g) the marketing, distribution and export of fish and fish products; (h) the handling, landing and transportation of fish and fish products; (i) the methods and procedures to be adopted and the substances to be used in fish storage and processing; (j) the inspection of fishing vessels and their catches, processing establishments and fish products; (k) minimum standards for the merchantable quality of fish and fish products; (l) methods of analysis of fish and fish products; (m) the exemption of fishing vessels or fish processing establishments from any of the provisions of this Ordinance; (n) the prohibition of the use of practices, methods, equipment, apparatus, materials or substances likely to be injurious to the maintenance and development of fish stocks in Tuvalu waters; (o) anything required to be prescribed by this Ordinance; and (p) the provision of penalties for contraventions of such regulations, such penalties not to exceed imprisonment for us to 6 months or a fine of $1,000. [Subsidiary] SUBSIDIARY LEGISLATION L.N. 16/78 Proclamation of fishery limits under section 2 The following fishery limits have been proclaimed 1. With effect from the 1st day of January 1979 the fishery limits of Tuvalu shall be a line drawn so that each point thereon is two hundred (200) nautical miles measured from the low-water mark of the seaward side of the reef fronting the coast of any island in Tuvalu or bounding any lagoon waters adjacent to such coast or, when a reef is not present, from the low-water mark of the coast itself: Provided that in the event of such line intersecting a line drawn similarly by any other State or Territory, the fishery limits of Tuvalu shall be a median line (or such other line as may be agreed between the Government of Tuvalu and such State or Territory) drawn between the limits of the territorial waters of Tuvalu and the territorial waters of such a State or Territory. 2. Her Majesty will exercise the same exclusive rights in respect of fisheries within the said fishery limits as she has in respect of fisheries in the territorial waters of Tuvalu, subject to such provision as may be made by law for the control and regulation of fishing within the said limits. Appointment of additional authorised officers under section 2— G.N. 12/80 All island executive officers are appointed authorised officers for the purposes of the Ordinance. 12 CAP.45 Fisheries [1990 Ed FISHERIES (FOREIGN FISHING VESSEL) REGULATIONS – 1982 L.N. 6/83 L.N. 22/84 PRELIMINARY Title and com mencement 1. There Regulation may be cited as the Foreign Fishing Vessel Regulations 1982 and shall come into force on the 10th day of December 1982. Interpretation 2. In these Regulations unless the context otherwise requires; "the Ordinance" means the Fisheries Ordinance (Cap. 45); "call sign means the International Radio call sign unless the Fisheries Officer has authorised a different method of identification under, regulation 7(2); "crew member" includes any fishing master; "country of registration" of any vessel means the state in which the vessel is recognised at international law as being registered; "vessel" includes all equipment on board or used by a vessel; "equipment" includes all instruments apparatus and gear including fishing gear; "Fisheries Officer" means the officer appointed under section 3 of the Act and includes any assistants or advisers authorized by him to carry out fishery matters; "fishing log" means the fishing log required to be maintained on a permitted vessel under Regulation 9 of these Regulations; "FAD" means any floating object, whether anchored or drifting, placed for the purpose of aggregating fish; "master" includes any person acting for the time being as master; "owner" includes any person chartering or for the time being operating the vessel and the person who applied for the permit in respect of that vessel; "Permit" means any Permit granted under subsection (2) of section 5 of the Act; "Permitted Vessel" means any vessel in respect of which a permit has been granted; All words and phrases defined in the Act shall bear the same meaning in these Regulations unless the context otherwise requires. THE GRANT OF PERMITS TO FOREIGN FISHING VESSELS Applications for permit 3. (1) A permit shall, unless the Minister otherwise directs, be in the form set out in the first schedule to these Regulations. Schedule II (2) The Fisheries Officer shall require that all applications for permits be in the form set in the Second Schedule. (3) The Fisheries Officer shall with the approval of the Minister have the discretion to refuse any application for a fishing permit and all agreements for the grant of licenses shall be deemed to specifically include such discretion. 13 1990 Ed.] Fisheries CAP.45 4. The Fisheries Officer may require that a permit which has been either cancelled or suspended, or which has expired, be delivered to him within a specified period. Surrender of Permit 5. (1) Every permit shall be delivered by the owner to the vessel to which it relates as soon as possible and shall there be maintained in good condition in a place where it can be readily inspected by an authorised officer. Permit to be Displayed (2) Where it has been impracticable to deliver a permit to a vessel before entering the fishery limits, that vessel may operate provided the Master has a record of the permit number issued to that vessel and the date on which the permit was issued. CONTROL OF FOREIGN FISHING VESSELS IN THE FISHERY LIMITS 6. (l) No Permitted Vessel shall enter the fishery limits unless, not less than 24 hours before its entry, the Fisheries Officer (or any person or body nominated by him in writing) has been notified of the following matters: Notification of Intended Arrival and of Departure (a) The name, call sign, and the country of registration of the vessel; (b) The Permit number of any Permit granted in respect of that vessel; (c) The latitude and the longitude of the point at which the vessel will enter the fishery limits; (d) The quality of fish on board the vessel broken down according to species; (2) On leaving the fishery limits the Master of any Permitted vessel shall, within 24 hours, report to the Fisheries Officer giving the following information: (a) The name call sign and country of registration of vessel; (b) The Permit number of any Permit granted in respect of that vessel; (c) The port at which the fish are intended to be finally unloaded and whether transhipment is intended. 7. (l) Every Permitted Vessel shall at all times while it is in the fishery limits fly the flag of its country of registration. Flags and call Signs (2) The Fisheries Officer may authorise the use of some system of recognition other than the call sign and where he does so authorise then these Regulations shall take effect as if the words “call sign” were replaced by words identifying the system authorised wherever the words “call sign” appear in these Regulations. 8. (l) Every Permitted Vessel shall at all times that it is within the fisheries limits display it’s call sign on the top of the vessel so as to be clearly visible from the air and also on both sides of the hull with letters and numbers at least one meter high and in clearly visible colours. Display of Call Sign and Permit Number (2) No Permitted Vessel shall use for fishing in the fishery limits any fishing gear that cannot readily be seen to be attached to the vessel unless the vessel’s call sign is permanently and legibly marked on the gear in a place and position where it is easily seen. In respect of this subregulation “fishing gear” includes FADS. 9. (1) Every master of a Permitted Vessel shall maintain in the English language and in ink, at all times that the vessel is within the fishery limits, a log book in the form set out in the Third Schedule. Log Books Schedule III 14 CAP.45 Fisheries [1990 Ed (2) The fishing log referred to in regulation 9(1) shall be maintained so that it is all times a complete and accurate record of the vessel’s fishing activities. (3) The original unaltered fishing log maintained under the provisions of subregulation (1) shall be sent by airmail to the Fisheries Officer or to the person prescribed in any access agreement or in writing by the Fisheries Officer as soon as possible and in any event within 45 days after the completion of the voyage to which the fishing log relates. Means of communicat ion 10. (1) Every Permitted Vessel shall, at all times while it is within the fishery limits, have on board a person who can communicate sufficiently well in English to receive instructions from any authorised officer. (2) Every Permitted Vessel shall carry the latest edition of the International Code of Signals published by the International Maritime Consultative Organisation marine Safety Committee. (3) Every Permitted Vessel shall carry on board whilst within the fishery limits a radio capable of receiving any direction communicated to it via the telegraphic address supplied in accordance with regulation 24. Reporting 11. (l) Each Permitted Vessel shall report, by telex to the Fisheries Officer or to any person or body nominated to receive such reports in any access agreement relating to the vessel or nominated in writing by the Fisheries Officer, the vessels position and the total catch on board at the following times: (a) immediately upon entry into fishery limits; and (b) every 7th day while the vessel is in the fishery limits; and (c) immediately upon departure from the fishery limits. (2) Any report made in accordance with the provisions of regulation 11(1) shall contain the following information: (i) The name, call sign, and the country of registration of the vessel; and (ii) The Permit number of the Permit granted in respect of that vessel; and (iii) The position of the vessel at the time of reporting; and (iv) The quantity of fish on board the vessel broken down according to species. Stowage 12. All fishing equipment on board any foreign fishing vessel within the fishery limits shall ensure that a distance of not less than one-half of a nautical mile is maintained at all times between the vessel and any equipment that: Avoidance of set gear 13. (1) Every master of a foreign fishing vessel within the fishery limits shall ensure that a distance of not less than one-half of a nautical mile is maintained at all times between the vessel and any equipment that: (a) has been placed in the sea; and (b) has been marked so as to be visible to persons on board any vessel navigating within one-half of a nautical mile of the set gear. (2) Regulation 13(1) shall not apply: (a) to fishing equipment from the vessel in question; or (b) to fishing equipment which the master has been given permission to approach by a person entitled to approach that gear. F.A.D.S. 14. (1) No FAD may be placed in the fishery limits unless: (i) Permission to place the FAD has been granted in an access agreement or in writing by the Fisheries Officer; and 15 1990 Ed.] Fisheries CAP.45 (ii) In the case of an anchored FAD, the FAD is placed in accordance with any direction as to siting contained in an access agreement or given in writing by the Fisheries Officer; and (iii) the FAD is constructed and anchored in accordance with any specifications or conditions contained in an access agreement or given in writing by the Fisheries Officer. (2) Any foreign fishing vessel placing a FAD, whether anchored or free floating, shall within 24 hours of such placement inform the Fisheries Officer (i) of the name and call sign of the vessel placing the FAD; and (ii) whether the FAD is anchored or free floating; and (iii) the best estimate of the position at which the FAD is anchored or where it was released. (3) No foreign fishing vessel shall fish within one-half of a nautical mile of an anchored FAD unless that FAD was placed by that vessel or unless permission for the use of the FAD by the fishing vessel has been given by the person responsible for the placing of the FAD: Provided that it shall be a defence to any prosecution for an offence under Regulation 22 of these Regulations in respect of a breach of this subregulation for the person charged to prove that he did not know and could not with reasonable care have discovered the presence of the FAD. 15. No fish shall be transhipped from a foreign fishing vessel within the fishery limits to any other vessel except at a place and time authorised by the Fisheries Officer and in accordance with such conditions (if any) as he may impose. Transhipment 16. No fish shall be landed in Tuvalu from any Permitted Vessel without the prior authorisation of the Fisheries Officer and any authorised landing shall be in accordance with such conditions as the Fisheries Officer may apply. Landing of Fish 17. No article, substance, or living organism other than fishing equipment or bait in use pursuant to a Permit shall be put released or allowed to come into contact with the sea within the fishery limits from any vessel if that article, substance or living organism is likely to: (a) cause harm to any fish or marine mammal; or (b) obstruct fishing equipment; or Protection of Fisheries (c) become a hazard to navigation; or (d) pollute the waters ENFORCEMENT 18. (1) Any authorised officer may at any time within the fishery limits and with the aid of such persons as he considers necessary: Authorised Officer’s Powers (a) require the master or any other crew of any foreign fishing vessel within the fishery limits to inform him of the name, call sign, and country of registration of the vessel and the name of the master and of any other crew member; (b) require the muter of the vessel to produce the ship log and fishing log to him for inspection and to allow him to make a copy or transcript for the retention of the authorised officer; (c) make any entry (being an entry dated and signed by him) in the ship’s 16 CAP.45 Fisheries [1990 Ed log; (d) carry out such inspection as he feels necessary including but not limited to the vessel’s charts, lines, fish holds equipment, and gear; (e) give the master or any other crew member such directions as he thinks fit as to the sealing, stowing or landing on shore of any equipment that has or in his opinion may have been used in contravention of any of the laws or regulations of Tuvalu. (f) give such other directions subject to the laws of Tuvalu as he may feel are appropriate or necessary for the enforcement of, or to ensure compliance with the Act and with these Regulations. (2) In carrying out any of the matters set out in this Regulation and without limiting his powers the authorised officer shall endeavour to interrupt or interfere with the fishing operation of any vessel operating lawfully under a Permit as little as possible. The authorised officers decision as to the extent to which interference or interruption of such operation is necessary in the furtherance of his duties is final. Directions to be obeyed 19. Every master or crew member of a foreign fishing vessel within the Fishery Limits shall immediately comply with every instruction direction or requirement that is given or made to him by an authorised officer pursuant to these Regulations. Observers 20. (l) Every muter of a permitted vessel within the fishery limits shall: (a) allow any Fisheries Officer to board the vessel as an observer and to remain on board until such time as the vessel shall quit the fishery limits; and (b) proceed to such port or rendezvous as may be required by any officer to allow a Fisheries Officer to embark on or to disembark from the Vessel. (2) At all times when a Fisheries Officer is on board any Permitted Vessel pursuant to subregulation (1) the master shall: (a) allow the Fisheries Officer full access to all equipment records holds and fish on board the vessel; and (b) allow the Fisheries Officer to make such tests observations and records and to remove such samples as he may require in order to ascertain the nature extent and type of the vessel’s activities within the fishery limits; and (c) provide for the Fisheries Officer all reasonable food and accommodation, at least equivalent to the standard provided for the officers of the vessel. (3) In carrying out any of the matters set out in this Regulation and without limiting his powers the Fisheries Officer shall endeavour to interrupt or interfere with the fishing operation of the vessel as little as possible. The Fisheries Officer’s decision as to the extent to which interference or interruption of such operation is necessary in the furtherance of his duties is final. (4) Nothing in this regulation shall be construed as limiting any of the other powers conferred on a Fisheries Officer in respect of any foreign fishing vessel it’s crew or catch. 17 1990 Ed.] Fisheries CAP.45 21. Every person who is a master or crew member shall take all reasonable precautions for the safety or every authorised officer or person with or assisting him. Safety of Authorised Officers OFFENCES AND MISCELLANEOUS PROVISIONS Offences 22. (1) Any master of a foreign fishing vessel in respect of which any of the provisions of these regulations are contravened or not complied with commits an offence and is liable to imprisonment not exceeding 6 months and to a fine of not exceeding $1,000 or to both. (2) In any proceedings in which a person is charged with an offence under these Regulations it shall be a defence to the charge if the defendant proves that any material act or omission was done or made for the purpose of: (a) saving human life; or (b) obtaining emergency medical assistance for any person; or (c) averting imminent danger to the safety of any vessel. 23. Where any time limit is prescribed by these regulations, the Fisheries Officer may in any particular case or class of cases if he thinks fit extend that time limit. Time Limits 24. All owners to whom a Permit is granted in respect of a Permitted Vessel shall provide a telegraphic address at which all notices may be served or through which Telegraphic Address directions to that Permitted Vessel may be given by any licensing officer and it shall be the duty of such person to ensure that any such direction or directions from a licensing officer are transmitted forthwith to the Permitted Vessel. Such direction or directions shall be deemed to have been received by the Permitted Vessel as at the time when such direction or directions could first reasonably have been so transmitted to and received by that vessel. 25. The Foreign Fishing Regulations 1980 (as amended) are revoked. Repeal of 190 Reg. SCHEDULE 1 Permit No…………. FISHING PERMIT In accordance with the provisions of section 5(3) of the Fisheries Act a Permit is hereby granted to the person named herein in respect of the vessel named herein to fish within the Fisheries Limits. NAME OF OWNER: ADDRESS OF OWNER: REGISTRATION NO.: NAME OF VESSEL: PORT OF REGISTRY: GROSS TONNAGE: TYPE OF FISHING: TYPE AND TEMPERATURE OF 18 CAP.45 Fisheries [1990 Ed Schedule 1.—(continued) REFRIGERATION: REGISTERED LENGTH: BEAM: HORSEPOWER: CALL SIGN: TELEGRAPHIC ADDRESS UNDER REGULATION 24: SCHEDULE 2 APPLICATION FOR PERMIT APPLICATION FORM INSTRUCTIONS: Underline surname Address means complete mailing address Mark X where appropriate If not applicable mark NA Type or Print Clearly All Units Metric, Specify units if other system used I hereby apply a Permit to fish within Tuvalu Fisheries Limits. 1. Name of Vessel 2. Name of Owner 3. Address of Owner 4. Name of Charterer 5. Address of Charterer 6. Country of Registration 7. Country of Registration Number 8. Radio Call Sign 9. Operational Base(s): Port Country Port Country 10. Name of Vessel Master 11. Address of Vessel Master 12. Name of Fishing Master (if different) 1 I 19 1990 Ed.] Fisheries CAP.45 Schedule 2.—(continued) 13. Address of Fishing Master (if different) 14. Type of Vessel Single Purse Seiner Group Purse Seiner Longliner Purse Seiner Carrier Pole and Liner Other (Specify) 15. Normal Total Number of Crew 16. Flag State Authorised Fishing Area 17. Hull Materials: Steel Wood FRP Other (Specify) 18. Year Built 19 19. Place of Construction 20. Gross Tonnage 21. Overall Length Meters 22. Main Engine(s) Power (Specify Units) 23. Fuel Carrying Capacity Kilolitres 24. Daily Freezing Capacity (More than one, if appropriate) Method ( ) Capacity ( ) Temperature ( ) (X where appropriate) Metric tons/day ( ) ºC Brine (NaC1) BR Brine (CaC1) CB Air (Blast) BF Air (Coils) RC Other (Specify) 25. Storage Capacity (More than one, if appropriate) Method ( ) Capacity ( ) Temperature ( ) (X where appropriate) Cubic Meters ( ) ºC Ice IC Refrigerated Sea Water RW Brine (NaC1) BR Brine (CaC1) CB Air (coils) BC Other (Specify) Complete either A, B, or C below as appropriate. A. For Puree Seiners 26. Net Length Meters 20 CAP.45 Fisheries [1990 Ed 27. Net Depth Meters 28. Support vessels Name Type Name Type Name Type Name Type B. For Pole and Line Vessels 29. Bait Storage (more than one, if appropriate) Circulation (Method Capacity (X Where appropriate) Cubic Meters Natural NN Circulation CR Refrigerated RC C. For Support Vessels 30. Activities (X more than one if appropriate) Refrigerated Carrier Scouting Boat Anchor Boat Supply/Mothership Other (Specify) 31. Fishing Vessel(s) Supported I understand, I am required to Report any changes in item I through 13 to Tuvalu within 60 days, and Signature of Applicant Owner Charterer Duly Authorised Agent Name of Applicant Address of Applicant 21 1990 Ed.] Fisheries CAP.45 SCHEDULE III FORM 1 PURSE SEINE VESSEL − CATCH REPORT FOR THE WATERS OF TUVALU (No electronic copy of the form available) FORM 2 LONG RANGE POLE AND LINE VESSEL − CATCH REPORT FOR THE WATERS OF TUVALU (No electronic copy of the form available) FORM 3 LONGLINE VESSEL - CATCH REPORT − CATCH REPORT FOR THE WATERS OF TUVALU (No electronic copy of the form available) L.N. 2/90 FISHERIES (TROCHUS) REGUALTIONS 1990 1. These regulations may be cited as the Fisheries (Trochus) Regulations 1989 and shall come into operation on the date of publication by exhibition. Short title and commencement 2. The area of Tuvalu is designated as a prohibited fishing area for the shell fish species trochus niloticus. Fisheries (Trochus) Regulations 3. Any person who fishes within the area of Tuvalu for the shell fish species trochus niloticus commits an offence and shall be liable on conviction to a fine not exceeding $1000 or up to 6 months imprisonment. Published by exhibition 12 day of February 1990 22 CAP.45 Fisheries [1990 Ed FOREIGN FISHING VESSELS LICENSING (U.S. TREATY) ORDER 1987 ARRANGEMENT OF ARTICLES Article 1. Citation and commencement 2. Interpretation 3. Designation of Treaty 4. Regional fishing licences 5. Enforcement 6. Observers 7. Application of Regulations SCHEDULE Form of Regional Fishing Licence L.N. 6/87 Order under section 5A FOREIGN FISHING VESSELS LICENSING (U.S. TREATY) ORDER 1987 1. This Order may be cited u the Foreign Fishing Vessel Licensing (U.S. Citation Treaty) Order 1997, and shall come into operation on the date on which the commencement Treaty enters into force for Tuvalu. Citation and Commence ment 2. In this Order, unless the context otherwise requires - Interpretation “Administrator” has the meaning given in Article 1.1(a) of the Treaty and in terms of the agreement is the Director of the South Pacific Forum Fisheries agency; "Agreement" means the Agreement among Pacific Island States concerning the implementation and administration of the Treaty on Fisheries between the Government of certain Pacific Island States and the Government of the United States of America signed at Port Moresby on 2nd April, 1987; "closed areas for Tuvalu" means the closed areas described in Schedule 2 to Annex I to the Treaty, that is the territorial sea and waters within two nautical miles of all named banks, i.e. Macaw, Kosciusko, Rose, Bayonnaise and Hera, in Tuvalu EEZ, as depicted on the chart entitled “Tuvalu Fishery Limits” prepared by the United Kingdom Hydographic Department, Taunton, January 11, 1981; “crew member” includes any fishing master; “observer” means an observer in accordance with Article 6(1) of this Order; “operator” has the meaning given in Article 1.1(f) of the Treaty, that is any person who is in charge of, directs or controls a vessel, including the owner, charterer and master; 23 1990 Ed.] Fisheries CAP.45 “regional fishing licence” means a fishing licence (a) valid also for countries other than Tuvalu; and (b) to which Article 4 (1) of this Order applies; “Treaty” means the Treaty designated in Article 3 of this Order; “U.S. fishing vessel” has the meaning given in Article 1.1(d) of the Treaty, that is any boat, ship or other craft which is used for, equipped to be used for, or of a type normally used for commercial fishing, which is documented under the laws of the United States of America. Designation of Treaty 3. The Treaty to which this Order relates is designated the Treaty on Fisheries between the Governments of certain Pacific Island States and the Government of the. United States of America signed at Port Moresby on 2nd April, 1987 Regional fishing licences 4. (1) A regional fishing licence issued under the Treaty by the Administrator in respect of a U.S. fishing vessel in the circumstances provided in Annex II to the Treaty shall be deemed during the period of validity of the licence to be a permit granted under section 5(3) of the Act in respect of the fishery limits but excluding the closed areas for Tuvalu. (2) This article shall not apply unless a regional fishing licence is (a) in the form .set out in Schedule 3 to Annex II to the Treaty and shown in the Schedule to this Order; and (b) subject to the terms and conditions specified and referred to in Annex I to the Treaty. Enforcement 5. Notwithstanding any other written law or the powers of any court, in accordance with Article 5.3 of the Treaty, in respect of a U.S. fishing vessel authorised by or under a regional fishing licence or to which the Treaty applies (a) where the master, owner, charterer or any member of the crew of the U.S. fishing vessel is in pre-trial custody in respect of an offence which amounts to a breach of the Treaty, he shall be promptly released if he enters into a bond or recognizance with or without sureties for a reasonable amount to appear before the appropriate court at a stated time and place and subject to such conditions as are stated in the bond or recognizance; (b) where the U.S. fishing vessel is seized in respect of an offence which amounts to a breach of the Treaty, the vessel (together with its equipment, stores and cargo) shall be promptly released if the master, owner, charterer or another person enters into a reasonable bond or other security for a reasonable amount for the vessel, equipment, stores, and cargo to be delivered back to the custody of an authorised officer at a stated time and place, and the release of the vessel, equipment, stores and cargo shall be subject to such conditions as are stated in the bond; (c) the master, owner, charterer or any of the crew of the U.S. fishing vessel shall not be liable to imprisonment on conviction for an offence under the Act, this Order or regulations made under the Act if the offence is a fishing violation. Observers 6. (1) Observers on U.S. fishing vessels in accordance with Part 6 of Annex I to the Treaty are authorised in respect of Tuvalu. 24 CAP.45 Fisheries [1990 Ed (2) No operator or crew member of .fishing vessel shall assault, obstruct, resist, delay, refuse boarding to, intimidate or interfere with an observer in the performance of his duties. (3) Notwithstanding any sanction which may be imposed under the Treaty, an operator or crew member who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine of $100. 7. In order to avoid doubt, the Foreign Fishing Vessels Regulations 1982 (as amended by the Fisheries (Foreign Fishing Vessels) (Amendment) Regulations 1984) are applicable national laws for Tuvalu in terms of Article 4 of and Schedule 1 to Annex 1 to the Treaty and except for Regulations 3 and 4 apply to U.S. fishing vessels holding regional fishing licences. Application of Regulat ions L.N. 6/83 L.N. 22/84 Article 4(2)(a) SCHEDULE FORM OF REGIONAL FISHING LICENCE (Treaty, Annex I) SCHEDULE 3 TREATY ON FISHERIES BETWEEN THE GOVERNMENTS OF CERTAIN PACIFIC ISLAND STATES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA LICENCE FORM The vessel described in this Licence is hereby authorised to engage in fishing in the Licensing Area for the period described in this Licence, in accordance with the terms and conditions referred to in Annex I. FULL NAME OF VESSEL: RADIO CALL SIGN OF VESSEL: REGIONAL REGISTER NUMBER OF VESSEL: HELICOPTER OR OTHER AIRCRAFT WHICH MAY BE USED IN ASSOCIATION WITH THE FISHING ACTIVITIES OF THE VESSEL: PERIOD OF VALIDITY: The period of validity of thin licence shall be no longer than one year: FROM 19 TO 19 FOR AND ON BEHALF OF THE PACIFIC ISLAND PARTIES DATE OF ISSUE: LICENCE NUMBER: WARNING: IT IS AN OFFENCE AGAINST THE LAWS OF MANY NATIONS, INCLUDING THE UNITED STATES OF AMERICA, TO VIOLATE THE REQUIREMENTS OF ANNEX I.PENALTIES MAY INCLUDE SUBSTANTIAL FINES AND VESSEL FORFEITURE.