FISHING NEWS ARTICLE: The potential legal implications of boulder dropping

In September 2022 a further boulder drop went ahead in the South West Deeps.  Fortunately for fishers, this was in much deeper water than previously, so it is anticipated there will be minimal impact on fishing as a result.

The 2021 drop in the Brighton MPA is of greater concern, as boulders were dropped in shallower depths of around 40m.

These boulders are not fixed to the ocean floor and, whilst initial location co-ordinates have been provided (these can be obtained by emailing service@mantsbrite.com), the boulders will be subject to forces including swell and tidal movement and some have suggested they may not remain stationary.  If this proves to be the case, the migrating boulders may pose an additional potential source of danger to fishers working in the relevant areas.

Section 65 of the Marine and Coastal Access Act 2009 requires a marine licence to be granted to anyone who wishes to carry out ‘a licensable marine activity’. Section 66 confirms all vessels, aircraft or structures, regardless of their country of origin, will need a licence to deposit, scuttle or incinerate any object or substance within the UK marine licensing area.

By virtue of section 85, it is an offence to engage in a licensable activity without the necessary licence.  A person guilty of an offence is liable on summary conviction to a fine of up to £50,000 and on conviction on indictment to a fine, imprisonment of up to 2 years, or both.

A criminal prosecution for operating without a licence was brought by the MMO in relation to the 2021 drop in the Brighton MPA.  Despite finding the MMO had jurisdiction to prosecute, the case was formally withdrawn in January 2022, following the Judge confirming his view the case did not meet the public interest threshold.  There has been criticism of the Judge’s comments, some considering he had potentially exceeded his legal authority in his handling of the case.

The MMO has recently relied upon sections 65 and 66 of the Act to prevent Poole Harbour Commissioners from assisting a planned illegal activity; effectively to prevent them from allowing the loading of the boulders onto a vessel, or face potential criminal charges.

There are now 18 boulders located in 4 offshore sites.  We have considered the possibility for there to be any civil liability for the illegal placing of the boulders, should an incident occur as a direct result of contact with one of them.  It is for the Claimant in a civil claim to prove their case and therefore evidence would have to be obtained which showed that it was more likely than not that the boulder caused the incident.

For instance, a fully licenced MFV may be fishing along a tow within an MPA.  The vessel would need to be explicitly permitted to fish in the area, which the Skipper is likely to consider to be safe ground.  If the vessel’s nets came fast against a boulder which had moved its location, there is potential for the vessel to be swamped and sink before the emergency release can be activated.

In such circumstances, where the Skipper has done everything correctly but the vessel has still succumbed, the Owners, crew and/or dependants may consider whether they have a civil claim against the party which put the boulders in the sea in the first place.

Under the Act there are civil sanctions found at Part 4 and Schedule 7, which in the main relate to fixed monetary sanctions which remove a person’s liability to criminal prosecution for an act of non-compliance.  These civil sanctions are for use by enforcement authorities and are not what we are considering here.

This is uncharted territory (no pun intended) as, unsurprisingly,  there is little case law dealing with the subject of someone deliberately setting out to create a marine hazard.  A claim may be pursued on the basis the dropping of the boulders was negligent, by creating a source of danger.  Negligence constitutes an act which falls short of the standard to be expected of a reasonable person.  It is necessary to establish that a duty of care was owed, that the duty was breached, that the loss claimed was caused by the breach of duty and was a foreseeable consequence of the breach of duty.

Alternatively, an argument could be put forward that the action constituted an intentional tort.  This is a wrongful act in which harm or injury is caused to another person or their property.  It would be necessary to demonstrate that the defendant acted with the specific intent to perform the act that caused the injuries or damage.  The defendant does not have to know that injuries would occur as a result of the act, just that the act was subject to consequences, i.e. it could cause harm.  It would have to be shown that but for the defendant’s action, the damage would not have occurred.

There may also be a claim in public nuisance, which can give rise to a civil claim in damages where an unlawful act or omission endangers or interferes with the lives, comfort, property or common rights of individuals or businesses.

Whilst all cases would be fact specific, we can foresee a civil case in one form or another being contemplated should an incident causing damage or injury occur as a direct result of boulders being illegally placed in the sea.