Detention of vessels in connection with court proceedings
Section 36 – Power to detain vessels in connection with court proceedings
118.Section 36 makes provision for BSFOs to detain a vessel either to ensure the attendance of the alleged offenders in court where the BSFO believes that the offender will not attend court unless the vessel is detained or believes a court will order the vessel to be detained following a conviction and a fine. This power may be used where a BSFO has reasonable grounds to suspect that an offence has been committed by the owner, master or charterer of a fishing vessel and there is a real risk that the alleged offenders will not attend court unless the vessel is detained in port.
119.Section 36(2) provides that a BSFO may take, or may arrange for others to take, a vessel and its crew to the nearest convenient port for the purposes of detaining it. It allows a BSFO to give instructions to anyone who appears to be in charge of the vessel to take it and its crew, to port.
120.Section 36(4) and (5) requires a BSFO to serve a notice of detention on the person who appears to be in charge of the vessel, which must include the reasons for detaining it and the circumstances under which it may be released. A notice of detention under section 36(4) must be withdrawn if any ground of release specified in section 37(5) applies.
Section 37– Release of vessel detained under section 36
121.Section 37(2) sets out the circumstances under which a vessel detained under section 36 is no longer to be treated as detained under that section. This includes where a notice of detention is withdrawn by a BSFO, where a sheriff orders the release of the vessel under section 38, proceedings taken against the master, owner, or charterer have concluded, or the court has exercised any power it has to order the vessel to be detained.
Section 38 – Power of sheriff to order release of vessels
122.Section 38 provides a process allowing the owners of a vessel detained under section 36 to apply to a sheriff for an order releasing the vessel from detention. An owner or charterer of a vessel may apply under section 38(2) to a sheriff seeking the release of the vessel from detention. A sheriff may order the release of the vessel if satisfied that any of the grounds given in section 38(4) apply. These are that the continued detention of the vessel is no longer necessary to secure the attendance of the master, owner, or charterer at court, or that there are no grounds for believing that the court would order the vessel to be detained at any court proceedings as envisaged under section 36(1)(b)(ii).
