The Sea Fishing (Restriction on Days at Sea) (Scotland) Order 2003

Absence from port

3.—(1) Subject to article 4, a person in charge of a relevant British fishing boat which, during any part of the period specified in paragraph 1 (duration of controls) of Annex XVII, either–

(a) is used in contravention of paragraph 7 (single type of gear), 8 (use of gear in different areas) or 9 (use of gears in given periods) of Annex XVII; or

(b) is absent from port in excess of the number of days permitted to it by the following provisions of this article,

is guilty of an offence.

(2) In this Order, the person in charge of a relevant British fishing boat is its owner, master or charterer (if any), and the number of days permitted to such a boat for any period identified below is the basic number, that is to say–

(a) for December 2003, the number indicated in paragraph 6(a) as read with paragraph 9 of Annex XVII and applicable to the boat in accordance with any fishing gear it carries and the area in which it is; and

(b) in application of paragraph 11(a) (aggregation of periods) of Annex XVII, for each successive period of two calendar months the first of which starts on 1st February 2003 and the last of which ends on 30th November 2003,

subject to paragraph (8), double the number ascertained in accordance with paragraph 6 as read with paragraph 9 of Annex XVII and applicable to the vessel in accordance with any fishing gear it carries,

• cumulatively adjusted in accordance with the paragraphs (3) to (7).

(3) In relation to any relevant British fishing boat and in respect of the type of fishing gear it may carry, for each calendar month there is added to the basic number, such number of days (if any) as may be allocated to the United Kingdom under paragraph 6(b) and (c) of Annex XVII for the purpose of being such an addition.

(4) Where a number of days is transferred from one period to the next in accordance with article 5, that number is–

(a) deducted from the basic number for the initial period; and

(b) added to the basic number for the next period.

(5) Where a number of days is transferred in the same period from a donor to a recipient in accordance with article 6, that number is–

(a) deducted from the basic number for the donor for that period; and

(b) added to the basic number for the recipient for that period.

(6) Where during any period fishing gear is affixed to two or more fishing boats there shall be deducted from the basic number for each such boat that is a relevant British fishing boat in relation to that gear and that period a number of days equal to the number when it was absent from port but the gear was being carried by any other such boat.

(7) Where during any period a relevant British fishing boat has–

(a) been absent from port carrying fishing gear in excess of the days permitted to it by this article; or

(b) purported to transfer days in accordance with article 6 in excess of the number that pursuant to article 6(4)(b) it was entitled to transfer,

the Scottish Ministers may deduct from its basic number for the next period a number equal to the number of days in that excess.

(8) Notwithstanding paragraph (2), the number of days in the relevant period, in respect of the gear specified at paragraph 4(a) of Annex XVII, shall (for the purposes of articles 5 and 6) expressly not exceed the number of days determined in accordance with paragraph 6 of Annex XVII.

(9) In paragraph (8), “the relevant period” means–

(a) for the purposes of paragraph (3)(2)(a), December 2003; and

(b) for the purposes of paragraph (3)(2)(b), a successive period of two calendar months referred to in paragraph (3)(2)(b).

(10) In any proceedings for an offence under paragraph 3(1)(b) of this article, it shall be a defence for a person to show that the number of days of absence from port carrying any type of fishing gear comprising the offence was no greater than the number of days of absence carrying that gear purportedly but not validly transferred to that person under article 6 and that person did not know and had no reasonable cause to suspect that the donor was not entitled to transfer the days.