Promoting best practice for inshore fisheries: consultation

Section 3 - Introduction

3.1 In November 2013 Richard Lochhead MSP, Cabinet Secretary for Rural Affairs, Food and the Environment, established a Scottish Government Task Force to examine gear conflict in Scottish inshore waters. This was in response to increasing complaints from inshore fishermen over the failure of government to adequately regulate gear conflict.

3.2. The Task Force was asked to:-

• consider the range of issues contributing to gear conflict, both accidental and deliberate;
• examine how processes and procedures might be improved both to prevent gear conflict and to deal more effectively where instances of conflict arise; and
• make recommendations on possible solutions for the Scottish Government and its Industry Partners to consider.

What is gear conflict?

3.3 In order to fully understand the issue of gear conflict in the Scottish inshore zone (0-12 nautical miles) it is necessary to identify what it is, where it occurs and its extent, the potential impact on the industry, and the available options for resolution.

3.4 "Static" or "fixed" gear means fishing gear which is immobile and includes creels which are used to catch lobsters, crabs, and Nephrops, and also gill nets and baited lines which are fixed in position. "Mobile" or "active" fishing gear is towed, and in the Scottish fleet encompasses nets, which may be trawled along the sea bed, or in midwater (pelagic), targeting a variety of fish species; and also scallop dredges. Pots and creels are often typically used in areas that are inaccessible to trawlers e.g. close in to shore; or where the sea bed is rocky and could damage trawled nets. However, fishermen can target the same fish stocks and, as a result conflicts can arise. Over the years, an expansion in fishing for Nephrops with creels and changes in trawl technology has meant that in many instances creelers and trawlers now fish on the same grounds. Trawlers have also increasingly diversified to activities closer to the shore, including the squid fishery, as a way of improving fishing opportunities.

3.5 Pressure on fishing grounds has led to increased gear conflict at sea without in most cases the presence of eyewitnesses. Consequently damage is often not discovered until sometime after is has occurred. Gear damage and vandalism is a crime at sea. However, it is not a fisheries offence under existing fisheries legislation. In such cases Marine Scotland Compliance, who enforce fisheries regulations; do not have any authority to take enforcement action. Gear conflict is a difficult problem to quantify and resolve. It is difficult to prove how much gear has been lost and who is to blame for the damage or losses. There are two sources of financial cost: the cost of replacing lost or damaged gear and the loss in earnings from reduced fishing time.

3.6 There are different types of gear conflict. The difficulties of setting and operating fishing gear in exposed or heavily exploited fishing areas can lead to the accidental entanglement of fishing gears. Such unintentional interactions between mobile and static gear operations or between static gears from two or more vessels would not be regarded as gear vandalism but rather an indication of the complexity of the fishing vessels working environment. Equally gear vandalism would not be associated with the unintentional snagging of fishing gear by commercial or leisure craft. Such gear interaction may be a result of overcrowding of seaways, inappropriately marked gear or loss of visibility due to operational conditions etc. Such unintended consequences would look to be resolved amicably between parties. By contrast, gear conflict which falls into an intentional criminal act of vandalism and theft can occur under a range of circumstances and is not likely to be resolved without intervention.

Where does it occur?

3.7 Gear conflict can occur anywhere around the coast of Scotland. In some areas creel fishing has moved further offshore and trawling has moved inshore creating more competition for grounds both on a seasonal and annual basis. Fishermen are under significant economic pressure to maximise catching opportunities and the competition for space has increased. In 2013 Marine Scotland commissioned a survey of gear conflict by consultants GRID Economics. Here is an extract from that limited survey of fishermen which is indicative of the problem.

TABLE 1 - Location of the most common conflicts

Type of Conflict (9 most Common)	No. of Respondents Experiencing
	0-1nm	1-3nm	3-6nm	6-12nm
Nephrops Pots/Creels + Nephrops Trawls	42	55	35	12
Nephrops Pots/Creels + Dredges	11	11	4	1
Nephrops Pots/Creels + Nephrops Pots/Creels	13	15	8	2
Nephrops Pots/Creels + Other Shellfish Pots/ Creels	5	7	1	2
Nephrops Pots/Creels + Other Trawls	5	4	3	0
Other Shellfish Pots/ Creels + Nephrops Trawls	9	9	8	2
Other Shellfish Pots/ Creels + Dredges	14	18	23	13
Other Shellfish Pots/ Creels + Other Trawls	8	10	13	8
Other Shellfish Pots/ Creels + Other Shellfish Pots/ Creels	22	8	7	3

Reference: Alan Radford and Geoff Riddington - Grid Economics - Inshore Gear Conflict Survey 2014

3.8 For the most common conflicts the area inside 3nm is very significant. The exception would appear to be in the category of "Other Shellfish Pots/Creels" which have almost as many conflicts with dredges and trawls in the 3 to 12nm zone as they do in the 0-3nm zone, though their encounters with their fellow Other Shellfish Pots/Creels are mostly in the 0-1nm zone.

3.9 Some static gear fishermen have voiced support for the introduction of a limit to keep mobile gear out of inshore waters, partly as a response to the frustration and economic harm caused by gear conflict. A statutory ban on fishing within a 3nm limit within Scotland for mobile gear operators was removed by the Inshore Fishing (Scotland) Act 1984, following recommendations made in an independent report to mitigate the loss of fishing opportunity in the demersal sector. The ban had focused on bottom (Otter) trawling, with limited mobile gear activity permitted through seine netting and dredging.

How is conflict reported?

3.10 Gear damage and vandalism is a criminal activity and should be reported to Police Scotland. Marine Scotland Compliance is unable to take any enforcement action in relation to a vessel reported to be involved in gear conflict as it is not a fisheries offence.

3.11 It is difficult to ascertain how much creel conflict occurs in Scotland. A great number of gear conflict incidents are reported to the Marine Scotland Compliance Fishery Offices once fishermen have discovered damage or loss of gear. The Intelligence Reports generated are used by Compliance to record all incidents and information received from the Coast. They are a tool for sharing intelligence with other agencies and areas within government.

3.12 The Marine Coastguard Agency also receives reports when gear conflict has an impact on maritime safety.

3.13 It should also be noted that there are cases where it is believed gear conflict is falsely reported.

Management tools for controlling fisheries

3.14 The monitoring of fishing activity around the Scottish coast is the responsibility of Marine Scotland Compliance. Their role is to protect Scotland's marine resource and fisheries, upholding the laws in place to promote its sustainable management. The rules are either set out in fisheries legislation (via Statutory Instruments) or/and in the conditions contained in the fishing vessel license.

Fishing vessels that are registered in the UK are only allowed to fish if they have the necessary licence to do so and a fishing vessel licence is required (registered with the Register of Shipping and Seamen at Cardiff) to fish commercially for sea fish and to land its catch for profit. The licence specifies conditions which must be adhered to by vessel owners when fishing activity is being pursued. It authorises the sea areas in which a vessel can fish and the species of fish that can be targeted and is the mechanism of control that enables UK Fisheries Administrations to regulate fishing in line with the EU Common Fisheries Policy.

3.15 There are no restrictions on the number of creels that a vessel can deploy. However licensed vessel owners who do not hold a Shellfish Entitlement (licence condition) are allowed to land only up to 5 lobsters and 25 crabs per day. An unlicensed vessel does not have restrictions on the volume of seafood it can catch provided that it is for personal consumption and is not sold commercially. Non-compliance with this rule is enforced through the Registration of Buyers and Sellers Scheme where buyers and sellers of first sale fish must be registered and first sale fish is recorded in a sales note.

3.16 There are areas around Scotland that are closed to fishing activity or restrict the type of gear which may be deployed. Such areas may restrict all mobile gear activity or possibly all fishing gears and are usually introduced for stock conservation reasons or to protect the environment or individual species. It is important to recognise that there are currently no statutory restrictions or requirements for gear conflict avoidance or resolution. In some instances local voluntary measures have been agreed between fishermen within specific localities but these can only operate on a consensual basis.

3.17 In line with the desire of Marine Scotland to try to help prevent and resolve gear conflict there are a range of tools that are currently used for preventing and investigating incidents:

Vessel Monitoring Systems ( VMS)

3.18 EU fisheries rules require vessels of 12 metres and over in overall length to have a Vessel Monitoring System ( VMS). VMS records and transmits the position of each vessel every 2 hours while at sea and that information is sent to the Fisheries Management Centre of the Flag State.

3.19 This information is subject to data protection legislation and can only be used for fisheries management purposes if anonymised and aggregated and released to a third party with the owner's permission. It is, therefore, a closed system to public access and there is limited scope for using it to prove the location of any individual fishing vessel in a gear conflict case. Marine Scotland Compliance viewing VMS data would typically only be able to ascertain that an individual vessel was in a specific area on a given day and time. It may provide an indication of vessels operating within an area but cannot prove that any individual vessel is the cause of the damage/loss of gear. Vessels below 12 metres are not statutorily required to be monitored in this way.

Codes of Conduct

3.20 In some locations creelers and trawlers follow a voluntary code of conduct which provides an agreed way of working in these areas. Such initiatives can be organised through a fishing association or federation, with assistance or facilitation from the local Marine Scotland Fishery Offices. Typically codes can include the location on where gear is set, seasonal fishery information and contact details for visiting skippers to determine gear locations or other spatial arrangements.

3.21 Examples of codes of conduct exist in the Solway and the Outer Hebrides, where creel fleet locations and contact numbers are accessible to mobile gear fishermen and visiting vessels.

3.22 Codes of conduct are voluntary without any statutory status, often referred to as "gentlemen's agreements". Their effectiveness relies on the co-operation of all parties to adhere to the arrangements. A benefit of voluntary codes of conduct is that there can be regionally specific arrangements around the coast. One of the biggest risks to a code of conduct is the arrival of a nomadic vessel that has either no knowledge of the existence of the local agreement or no respect for any voluntary code. Codes can be useful for facilitating the resolution of disputes by involving a fisherman's association, particularly when compensation for gear is involved. However, there are still issues around the burden of proof required to resolve disputes.

Maritime Safety

3.23 The Marine Coastguard Agency ( MCA) has attempted to use safety focused legislation to take action on deliberate acts of gear conflict through collision regulations. There are, however, limiting conditions for taking forward a prosecution: the event must take place in the hours of daylight where there is a reasonable chance of the properly marked creels being viewed. It is noted that there is a risk to maritime safety from the deliberate act of setting creels to maximise deliberate damage to trawl vessels, or of trawl vessels deliberately towing away gear and subsequently dumping it in an unmarked location. Maritime safety is not designed to prosecute acts of gear conflict but the MCA can be an important partner in providing targeted action.

Existing Good Practice

3.24 In his opening speech to the Parliamentary debate on inshore fishing on 29 April 2014 the Cabinet Secretary for Rural Affairs, Food and the Environment, Richard Lochhead, said " I have previously stated that my personal preference is for industry lead initiatives to prevent and resolve gear conflict. It is clear that when there is a breakdown in co-operation there needs to be a robust framework in place to bring restitution." There are several examples of good co-operation which have occurred on a regular basis and sometimes been linked to a code of conduct. On the East Coast, for example, static fishermen have distributed creel fleet locations on USB data sticks for mobile fishermen to use in their plotters along with contact details for the static operators. This type of activity can be regarded as the "gold standard" in co-operation but it relies on local good will rather than a formal framework for good governance.

Case Studies - The Barriers to Prosecution

3.25 From the several attempts made over the years it has proved almost impossible to secure a successful prosecution for gear damage. This is a matter for Police Scotland and the Crown Office and this issue has to compete with other priorities, demonstrating that action meets the public interest test. There are issues around corroboration and securing the evidential standard for referral to the Procurator Fiscal ( PF) for crimes committed at sea. Essentially the offences in question are common law offences relating to theft or vandalism and are handled in a similar way to "neighbour disputes". It is also recognised that prosecutors may require detailed knowledge about fishing and vessel operations in order to progress an investigation.

3.26 The following illustrations highlight the challenges in detection and prosecution for different types of gear conflict. The list is not exhaustive but it is based on real life reports known to Marine Scotland Compliance.

Trawler vs Creel

Issues:

• A trawler is found fishing in an area heavily saturated with static gear
• Both the trawler and the creels fish on the sea bed
• The trawler retrieves its nets and cuts away creels that have been snagged, often without notifying the creel fisher
• Creel fisher faces loss of gear (£45 p/creel) and is unable to retrieve it at the time, leading to loss of income
• Requirement to purchase new gear

Case Study

On this particular day a trawler appeared and paid little respect to the creel fisherman. It was suggested over the radio that the creel vessel should move his gear. As the conflict developed the trawler brought its net to the surface with the creels entangled in his trawl. The crewman then began to cut loose the creels dropping them to the sea-bed. The creel fisher can do nothing but wait for the actions of the trawl skipper to finish cutting away the ropes. The creeler then attempted to retrieve his creels.

As a result of this incident the creel fisher reported the incident to the Police. Despite an approach to the local Fishery Office staff by the Police no further action was taken. The loss of gear added up to 60 creels lost with ropes and buoys, incurring significant financial cost.

This is an example of blatant disregard for others by the trawler. The trawlerman knows there will be few if any consequences for his actions. The Fishery Office is unable to take any action, and no action is taken by law enforcement agencies.

Scallop vs Creel

Issues:

• Scallop fishers share grounds with static gear fishers
• Both fish inshore in shallow waters
• Nomadic scallop dredgers often fish in high numbers as a fleet or on a 'there today, gone tomorrow' basis
• Visiting vessels are not familiar with local vessels
• Both target lucrative highly priced species

Case Study

A rogue scallop dredger decided to fish in an area heavily populated with creels. Creel operators have fished in this area for over 25 years. In general a Code of Conduct exists in the area which local fishermen try to respect and work together on ensuring that they are all aware of the locations of creel as well as trawling and scallop grounds. On this occasion over 70 creels were lost to the actions of the scallop dredger, some of which had only been bought recently. There was no communication made with the creel vessels by the mobile gear skipper. The scallop dredger was only in the area for a day and a night but it managed to cause a lot of damage to creels in that time. A creel fisherman managed to obtain evidence by camera taking into account pictures of his GPS. The creel fisher gave statements to Police Scotland. However, when the case was referred no further action was taken by the Procurator Fiscal. The trawl skipper did not receive any penalties for his actions.

Creel vs Trawl

Issues:

• In an area where both sectors combine, the creel fisher can be guilty of closing off areas which the trawl skipper wants to access.
• Therefore there is no access to fishing grounds for the trawler
• Some creels are left on sea bed for lengthy times
• The trawl skipper declines to fish in the area
• The trawl skipper argues that this impasse is creating a lost opportunity to work together
• Frustration leads to impatience and then to conflict

Case Study

During a normal fishing operation a trawler commences fishing at the head of an inshore sea loch. A normal day's fishing takes place targeting Nephrops with 3 periods of trawling completed by mid-afternoon. Whilst returning from the Eastern most part of the loch on a final towing operation the trawl skipper finds that a creel vessel has blocked his exit path to deeper water. No prior communication has been made with the trawl skipper who may have been able to negotiate with the creel skipper in order to avoid conflict. The trawl skipper only knows about the creel gear once his vessel has become surrounded by creels and sees the buoys. The skipper must then haul his gear by which time it is entangled in pots and ropes, causing a loss of fishing time. Sadly on this occasion creel losses are unavoidable - both parties have lost out on catch and fishing time. This unfortunate incident could have been avoided by improving communications and vessels working better together.

Creel vs Creel

Issue:

• Competition for same species and same space

Case Study

Reports were received of a creel vessel stealing creels from other fishermen. The incident was reported to the Fishery Office and recorded by the Marine Scotland Intelligence Report. Several fishermen tried to gather video evidence of the thefts. Due to the high number of incidents reported the Fishery Office contacted the police to see if a joint operation might be possible to uncover the culprit and recover the gear. Using intelligence-led enforcement the Police and Fishery Officers worked together to recover gear that was believed to have been stolen.

Fishery Officers hauled gears to check to see if it was marked. Some 200 creels were identified as being set by a skipper and identified by other skippers as the true owners.

Together the Fishery Officers were able to contribute their expertise to inspect gears and the Police were able to use their powers to investigate the stolen property. The police were confident of getting a prosecution and queried whether it was possible to remove the fishing licence. Unfortunately the case was not taken forward by the Procurator Fiscal.