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11 1996

HARBOURS ACT, 1996

PART II

Establishment and Administration of Companies

Formation of a company in respect of a harbour.

7. —(1) The Minister, with the consent of the Minister for Finance, may in respect of each harbour mentioned in column (1) of the First Schedule cause a private company conforming to the conditions laid down in this Act to be formed and registered under the Companies Acts.

(2) The Minister shall in relation to such a company by order appoint a day to be the vesting day for the purposes of this Act as soon as practicable after the registration of the company under the Companies Acts and the same day may be so appointed in relation to all or any two or more of the companies formed under the said Acts pursuant to this section.

(3) A reference in this Act to a company's harbour shall be construed as a reference to the harbour mentioned in column (1) of the First Schedule in respect of which the company has been established pursuant to this section and like references shall be construed accordingly.

Name and capital formation of a company.

8. —(1) The name of a company shall be the name mentioned in column (2) of the First Schedule opposite the mention in column (1) of that Schedule of the harbour in respect of which the company is established pursuant to section 7 .

(2) Section 6 (1) (a) of the Companies Act, 1963 , shall not apply to a company.

(3) (a) Subject to paragraph (b), the authorised share capital of a company shall be an amount not exceeding the total of the following:

(i) the value of the property to be transferred to the company on the relevant vesting day under section 96 , and

(ii) the amount of working capital of the company on the relevant vesting day,

divided into shares of one pound each.

(b) The Minister may, after consultation with the Minister for Finance, direct that the total amount obtained under paragraph (a) as respects a company shall, as the Minister specifies in the direction, be rounded upwards or downwards to the nearest £500,000 or £1,000,000 and the amount so obtained shall apply for the purposes of paragraph (a) as respects that company.

(c) A company may, with the consent of the Minister and the Minister for Finance, divide the shares in its share capital into several classes, and attach thereto respectively any preferential, deferred, qualified or special rights, privileges or conditions.

(d) No issue of shares in the share capital of a company shall be made other than those provided for in sections 19 , 20 and 25 .

Limits of a company's harbour.

9. —(1) (a) The limits of a company's harbour shall be those set out in Part I of the Third Schedule .

(b) A reference in this Act to a company's harbour shall be construed as including a reference to any point within the limits of its harbour as aforesaid.

(2) (a) The Minister may, after consultation with the company concerned, by order alter the limits of a company's harbour as set out in Part I of the Third Schedule and for so long as such an order is in force the said Part, in so far as it relates to the said limits, shall be construed and have effect in accordance with the order.

(b) The reference in paragraph (a) to an order in force shall, as respects such an order that is amended by an order in force under section 3 (4), be construed as a reference to the first-mentioned order as so amended.

Form of memorandum of association.

10. —The memorandum of association of a company shall be in such form consistent with this Act as may be approved of by the Minister with the consent of the Minister for Finance.

Objects of a company.

11. —(1) The principal objects of a company shall be stated in its memorandum of association to be—

(a) to take all proper measures for the management, control, operation and development of its harbour and the approach channels thereto,

(b) to provide such facilities, services, accommodation and lands in its harbour for ships, goods and passengers as it considers necessary,

(c) to promote investment in its harbour,

(d) to engage in any business activity, either alone or in conjunction with other persons, that it considers to be advantageous to the development of its harbour,

(e) to utilise and manage the resources available to it in a manner consistent with the objects aforesaid.

(2) Nothing in this section shall prevent or restrict the inclusion among the objects of a company as stated in its memorandum of association of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary to the due attainment of the principal objects aforesaid and are not inconsistent with this Act.

(3) A company shall have power to do anything which appears to it to be requisite, advantageous or incidental to, or which appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in this Act or in its memorandum of association and is not inconsistent with any enactment for the time being in force.

(4) Without prejudice to the generality of subsection (3), a company may—

(a) take such steps either alone or in conjunction with other persons as are necessary for the efficient operation and management of its harbour,

(b) appropriate any part of its harbour to the use of any person for the purposes of any trade or profession in consideration of the payment to it of such charges as the company considers reasonable,

(c) promote leisure activities that may be carried on in its harbour or which relate to the marine generally,

(d) engage either alone or in conjunction with other persons in activities outside the State (related to its functions in respect of its harbour) which, in its opinion, will promote the interests of trade or tourism in the State.

General duties of a company.

12. —(1) It shall be the general duty of a company—

(a) to conduct its affairs so as to ensure that the revenues of the company are not less than sufficient taking one year with another to—

(i) meet all charges which are properly chargeable to its revenue account,

(ii) generate a reasonable proportion of the capital it requires, and

(iii) remunerate its capital and pay interest on and repay its borrowings,

(b) to conduct its business at all times in a cost effective and efficient manner,

(c) to regulate operations within its harbour,

(d) to have due regard to the consequences of its activities on the environment, the heritage (whether natural or man-made) relating to its harbour and the amenities generally in the vicinity of its harbour.

(2) Nothing in section 11 or this section shall be construed as imposing on a company, either directly or indirectly, any form of duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.

Harbour charges.

13. —(1) A company may impose charges (in this Act referred to as “harbour charges”) at such rates as are from time to time determined by it on—

(a) the owner or master of a ship which—

(i) enters within its harbour,

(ii) uses any quay, anchorage or mooring in its harbour, or

(iii) plies within its harbour,

(b) the owner, consignor, consignee or carrier of goods shipped, transhipped, unshipped or stored within its harbour,

(c) the owner or master of a ship which carries passengers to or from a place within its harbour,

(d) a person for whom any service or facility is performed or provided by it or to whom it hires any equipment.

(2) (a) For the purpose of paragraph (a) of subsection (1) the master of a ship to which that provision applies shall furnish to the company concerned such type of certificate of tonnage in respect of the ship as is specified by the company and such other documentation in relation to the ship or goods thereon as may be specified by it.

(b) For the purposes of paragraphs (b) and (c) of subsection (1), where passengers are to be carried, or goods are to be shipped, transhipped or unshipped, within a harbour the master of the ship on which the passengers or goods are to be carried or are carried, or, in the case of goods which are to be transhipped, the ship from which the goods are to be transferred, shall furnish to the company concerned a statement of the number of those passengers and their classes as such passengers or, as the case may be, a true account of such goods, in such form as may be specified by the company.

(c) A master of a ship who refuses or fails to furnish to a company any certificate, documentation, statement or account referred to in paragraph (a) or (b) when requested by the company to do so shall be guilty of an offence.

(3) Different rates of harbour charges may be imposed by a company in different circumstances.

(4) Harbour charges may, in relation to any thing referred to in paragraph (a), (b) or (c) of subsection (1), be imposed by a company on two or more of the appropriate persons referred to in the said paragraph (a), (b) or (c), as the case may be, and where harbour charges are so imposed the liability of the persons concerned for the harbour charges shall be joint and several.

(5) (a) Without prejudice to section 14 , harbour charges shall be recoverable by a company from the person or persons on whom they have been imposed as a simple contract debt in any court of competent jurisdiction.

(b) The reference in paragraph (a) to harbour charges includes a reference to any balance of an amount of harbour charges remaining due to a company after it has sold a ship, goods, equipment or stores under section 14 to satisfy those charges or has received any payment on foot of any bond or other security concerned referred to in subsection (7).

(6) A person liable to pay harbour charges to a company who evades or attempts to evade payment of the charges shall, without prejudice to any proceedings or steps taken or to be taken for the purpose of recovering the charges under subsection (5) or section 14 , be guilty of an offence.

(7) (a) A company may require—

(i) where the condition specified in paragraph (a) (i) or (b) of subsection (8) is satisfied, the owner or master of a ship, or

(ii) where the condition specified in paragraph (a) (ii) of subsection (8) is satisfied, the agent for a ship,

being in either case a ship the navigation of which or the fact of its carrying goods or passengers or of any other circumstances referred to in subsection (1) that involve the ship will result, or results, in harbour charges being imposed by the company (whether on one or more than one occasion), to give to the company a bond, or such other type of security as the company specifies, for the payment of those charges.

(b) The amount of the bond or other security that a company may require to be given under this subsection (other than in relation to harbour charges imposed in respect of a ship referred to in subsection (8) (b)) shall not exceed 25 per cent. of—

(i) if the company has imposed harbour charges on the owner, master or agent concerned (“the person concerned”) in each of two or more years prior to the making of the requirement, the average of the amount of harbour charges imposed by it on that person in such a year,

(ii) if the company has imposed harbour charges on the person concerned in only one such year, the amount of harbour charges imposed by it on that person in that year,

(iii) in any other case, the amount of harbour charges the company estimates it will impose on the person concerned in the period of 12 months commencing on the making of the requirement.

(8) The conditions referred to in subsection (7) are—

(a) that, before the making of the requirement referred to in that subsection—

(i) the owner or master concerned has failed to pay harbour charges imposed by the company or, on 2 or more occasions, has paid harbour charges imposed by the company to the company after the latest date stipulated by it for their payment, or

(ii) in the case of the agent concerned, he or she has failed to pay moneys to the company which he or she has received from a person on account of harbour charges imposed on that person by the company or, on 2 or more occasions, has paid moneys so received by him or her to the company after the latest date stipulated by it for the payment of the harbour charges concerned,

(b) that—

(i) the ship concerned has not entered the company's harbour on any previous occasion and the company does not regard it as likely that it will enter its harbour again in the period of 12 months commencing on the entry concerned, and

(ii) the owner or master of the said ship has not retained an agent to act on his or her behalf for the purpose of paying any harbour charges that may be imposed by the company in the circumstances concerned.

(9) If by reason of the situation of any harbour it is necessary for a ship proceeding to such a harbour to enter or anchor within the harbour of another company, then where a ship enters or anchors within the harbour of such a company for the purpose, and the purpose only, of proceeding to the first-mentioned harbour, the said company may not impose any harbour charges in respect of such entry or anchoring by that ship:

Provided that this subsection shall not prevent the said company from imposing harbour charges of an amount that, having regard to all the circumstances, is fair and equitable in respect of any service it performs, facility it provides or equipment it hires in relation to a ship aforesaid whilst the ship is in its harbour.

(10) If the company established pursuant to section 7 in respect of the first-mentioned harbour in subsection (9) considers that the amount of any harbour charges referred to in the proviso to the said subsection that have been imposed is not, having regard to all the circumstances, fair and equitable, it may request the company which imposed the charges to cancel the imposition of the said charges and impose harbour charges of another amount or, as appropriate, reimburse the payer of the said charges a portion of the said charges, and, if the said company fails or refuses to comply with such a request, either company may refer the matter to a person nominated by the Minister for his or her determination and the determination of that person in the matter shall be final.

Detention and sale of ship or goods for unpaid harbour charges.

14. —(1) Where default is made in the payment of harbour charges imposed by a company under section 13 (1) the company may, subject to the provisions of this section, detain, pending payment of such charges—

(a) if the charges were imposed under paragraph (a), (b) or (c) of section 13 (1), the ship or goods concerned or, if the goods concerned have been removed outside the harbour, any other goods within the harbour belonging to the person in default, or

(b) if the charges were imposed under paragraph (d) of section 13 (1), any ship or goods in relation to which the service or facility concerned was performed or provided or the equipment concerned was hired or, if such goods have been removed outside the harbour, any other goods within the harbour belonging to the person in default,

and if the charges are not paid within 56 days of the date when the detention commences, sell the ship or goods in order to satisfy the charges.

(2) Notwithstanding subsection (1), if the goods detained by a company under that subsection are of a perishable nature the company may, subject to the provisions of this section, sell the goods at any time before the expiration of the period referred to in that subsection (without prejudice to its right to sell them after such expiration) in order to satisfy the harbour charges concerned.

(3) No goods forfeitable under the Customs Acts shall be detained under subsection (1).

(4) A company shall not detain, or continue to detain, a ship or goods under subsection (1) if—

(a) the owner or master of the ship, the owner of the goods or any other person referred to in paragraph (b) or (d) of section 13 (1), as may be appropriate, or

(b) any person claiming an interest in the ship or goods,

alleges that the harbour charges concerned, or any of them, are not due and gives to the company, pending the determination of the question as to whether the charges are due, sufficient security for the payment of the charges which the company alleges to be due.

(5) For the purpose of effecting the detention of a ship or goods under subsection (1), the harbour master of the harbour concerned may enter the ship or any place (including any ship or vehicle) within the harbour where the goods are and do all things in relation to the ship or goods necessary for or incidental to the said purpose and without prejudice to the foregoing may remove the goods from the said place and store them elsewhere.

(6) If a company proposes to sell a ship that it has detained under subsection (1) or goods that it has so detained and which it estimates to be of more than £5,000 in value, it shall apply to whichever of the following courts is appropriate for leave to sell the ship or goods, namely—

(a) if the company estimates the value of the ship or goods to be not more than £30,000, the Circuit Court, or

(b) if the company estimates the value of the ship or goods to be more than £30,000, the High Court,

and the Circuit Court or the High Court, as the case may be, shall not give such leave unless it is established that—

(i) a sum is due to the company for harbour charges,

(ii) default has been made in the payment thereof, and

(iii) if the harbour charges concerned were imposed under paragraph (d) of section 13 (1), the ship or goods was or were the ship or goods in relation to which the service or facility was performed or provided by the company or the equipment was hired by the company or, as the case may be, the goods were otherwise goods which the company was entitled to detain under paragraph (b) of subsection (1).

(7) (a) If a company proposes to apply for leave to sell a ship or goods under subsection (6), it shall take such steps as may be practicable for—

(i) bringing the proposed application to the notice of persons whose interests may be affected by the determination of the court thereon, and

(ii) affording to any such person an opportunity of becoming a party to the proceedings on the application.

(b) Failure by a company to comply with a requirement of this subsection in respect of any sale shall not, after the sale has taken place, be a ground for impugning the validity of such sale but this paragraph shall not prejudice any action for damages against a company by a person suffering loss in consequence of a failure aforesaid.

(8) (a) The following provisions shall have effect in respect of an order of a court granting leave under subsection (6) for the sale of a ship (in this subsection referred to as “the order”) and the sale of the ship on foot of such order—

(i) the order shall contain a declaration vesting in the company concerned by virtue of the order the right to transfer the ship, and the company shall by virtue of such declaration be entitled to transfer the ship in the same manner and to the same extent as if it were the registered owner thereof,

(ii) the sale shall operate to vest the ship in the purchaser freed of all mortgages, liens, charges or other interests therein whatsoever, and the purchaser shall not require any other evidence of the title to the ship than a copy, certified by the company concerned, of the order,

(iii) a registrar of shipping shall, on production of the order or a copy thereof certified by the company concerned, register the bill of sale effecting the transfer in the same manner as if the company were the registered owner.

(b) If a company sells a ship or goods under this section it shall secure that the ship or goods is or are sold for the best price that can reasonably be obtained.

(9) The proceeds of any sale under this section shall be applied as follows, and in the following order, that is to say—

(a) in payment of any duty (whether of customs or excise) or value-added tax chargeable on the ship or the goods, as the case may be,

(b) in payment of the expenses incurred by the company concerned in detaining, keeping and selling the ship or the goods, as the case may be (including the expenses in connection with any application to a court under subsection (6)),

(c) in payment of the harbour charges that the company concerned alleges to be due or, if an application has been made to a court under subsection (6), that the court on such application has found to be due,

and the surplus, if any, of such proceeds shall be paid to, or among, the person or persons whose interest or interests in the ship or the goods have been divested by reason of the sale.

(10) Nothing in this section shall operate to authorise the sale of any goods the importation or sale of which is for the time being prohibited by or under any enactment or to relieve from any restriction or compliance with any condition to which the importation or sale of goods is for the time being subject by or under any enactment.

(11) The power of detention and sale conferred by this section in respect of a ship shall extend to the equipment of the ship and any stores for use in connection with the operation of the ship (being equipment and stores carried in the ship) whether or not such equipment or stores is or are the property of the person who is the owner or master of the ship and, accordingly—

(a) references in subsection (1), subsections (4) to (9) and subsection (12) to a ship shall be construed (save where the context does not admit such a construction) as including references to such equipment and stores,

(b) subsection (10) shall have effect in relation to such equipment and stores as it has effect in relation to goods.

(12) (a) An application under subsection (6) to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the ship or goods concerned was or were detained.

(b) If, in relation to an application under subsection (6) to the Circuit Court, that court becomes of opinion during the hearing of the application that the value of the ship or goods the subject of the application, is, contrary to the estimate of the company making the application, more than £30,000, it may, if it so thinks fit, transfer the application to the High Court.

Provisions with respect to sale, leasing and acquisition of land.

15. —(1) A decision by a company to acquire any land or to dispose of any of its land (whether by sale or the grant of a lease) shall only be made by the directors of the company.

(2) The consideration for which any land is sold by a company shall, in so far as is practicable, not be less than its open market value.

(3) The rent to be reserved under a lease of land granted by the company shall be of an amount not less than the open market rent obtainable for that land save that a rent of below such an amount may be reserved under such a lease if—

(a) in case any business or trade is to be carried on at the land, the company considers that, having regard to—

(i) the amount of business or trade that is likely to be transacted at the land, or

(ii) the effect the granting of the lease is otherwise likely to have on the amount of business or trade transacted in its harbour,

it is appropriate to reserve a rent at below such an amount, or

(b) in any other case, the Minister consents to the reservation of a rent at below such an amount.

(4) (a) In deciding whether to acquire any land or in deciding the consideration it shall pay for the acquisition of any land, a company shall have regard to any Government policy or guidelines in relation to the acquisition of land by State enterprises which is or are for the time being extant.

(b) Without prejudice to paragraph (a), where a company proposes to acquire land it shall cause a valuation of the land to be made by an appropriately qualified independent person.

(c) In this subsection “State enterprise” means a company (within the meaning of the Companies Acts) one or more shares in the shareholding of which is held by a Minister of the Government and the principal objects of which (as stated in its memorandum of association) are prescribed in whole or part by statute.

Compulsory acquisition of land.

16. —(1) A company may, in accordance with paragraphs 1 to 6 of the Fourth Schedule , acquire compulsorily any land (whether situate within or outside its harbour) or any interest in or right over any such land, for the purposes of ensuring the implementation of any scheme of development of its harbour or any part thereof which, in the opinion of the company, would prove impracticable without the land, interest or right concerned being included in the scheme.

(2) (a) The provisions of paragraphs 7 and 8 of the Fourth Schedule shall, where appropriate, have effect in the circumstances set out in subparagraph (1) of the said paragraph 7 for the purposes of vesting land in a company.

(b) The making of a vesting order by virtue of paragraph 7 of the Fourth Schedule shall not of itself prejudice any claim to compensation made after the making of the order in respect of any estate or interest in or right over the land, or any part thereof, to which the order relates and, accordingly, the provisions of paragraph 6 of the Fourth Schedule shall apply to such a claim.

Articles of association.

17.—(1) (a) Subject to paragraph (b), a reference in subsection (3) to a director includes a reference to the chairperson and to every person who this Act provides is to be a director of a company.

(b) A reference to a director—

(i) in paragraph (b) of subsection (3), does not include a reference to the chief executive, the employee director or directors or the local authority directors,

(ii) in paragraphs (c) and (d) of subsection (3), does not include a reference to the chief executive.

(c) A reference in paragraph (e) of subsection (3) to the remuneration of a director is, in the case of the chief executive, a reference to his or her remuneration in his or her capacity as a director as distinct from a chief executive.

(d) In this subsection—

employee director” means a director referred to in section 30 (1);

local authority director” means a director referred to in section 30 (6).

(2) The articles of association of a company shall be in such form consistent with this Act as may be approved of by the Minister with the consent of the Minister for Finance.

(3) The articles of association of a company shall provide that—

(a) the number of directors of the company shall be not more than 12;

(b) each such director shall be appointed by the Minister with the consent of the Minister for Finance;

(c) each such director shall be appointed for a period not exceeding 5 years and shall be eligible for reappointment;

(d) each such director may be removed from office by the Minister with the consent of the Minister for Finance;

(e) the remuneration of each such director shall be determined by the Minister with the consent of the Minister for Finance;

(f) the company shall consult with any recognised trade union or staff association concerned for the purposes of negotiations in relation to the pay and conditions of service of members of its staff;

(g) the company shall not establish or acquire a subsidiary without the approval of the Minister given with the consent of the Minister for Finance;

(h) the aggregate amount standing invested (whether by the purchase of shares or the provision of loans or guarantees of loans) by the company in undertakings (other than subsidiaries) shall not exceed £1,000,000, without the approval of the Minister given with the consent of the Minister for Finance.

(4) In addition to the matters provided for in subsection (3), the articles of association of Dún Laoghaire Harbour Company shall provide that the company shall, in consultation with any recognised trade union or staff association concerned, set up machinery for the purposes of negotiations in relation to the pay and conditions of service of members of its staff.

(5) (a) Subject to paragraph (b), a harbour master may attend formal meetings of directors of the company by whom he or she is employed and may, if the directors, in their discretion, permit him or her to do so, take part in the deliberations by those directors of any matter arising at such a meeting.

(b) The directors of a company may, where they are of the opinion that the attendance by the harbour master at a particular meeting aforesaid or at a part of such a meeting would not be in the best interests of the proper and orderly conduct by them of business at that meeting or the administration of the company's affairs generally, require the harbour master not to exercise his or her right to attend that meeting or a specified part of that meeting and the harbour master shall comply with such a requirement.

(c) Nothing in this subsection shall be construed as conferring on a harbour master a right to cast a vote in respect of any matter arising at a meeting aforesaid.

Restriction on alteration of memorandum or articles of association.

18. —Notwithstanding anything contained in the Companies Acts, no alteration in the memorandum of association or articles of association of a company or of any subsidiary shall be valid or effectual unless made with the prior approval of the Minister given with the consent of the Minister for Finance.

Issue of shares to Minister and Minister for Finance, etc.

19. —(1) (a) The Minister, with the consent of the Minister for Finance and following consultation with the company concerned, shall issue, as soon as possible after the relevant vesting day, to a company a certificate certifying the sum which in the opinion of the Minister represents the value of the property transferred under section 96 to the company.

(b) A company shall, after receipt by it of a certificate as aforesaid, issue to the Minister, without payment by him or her, fully paid-up shares in the share capital of the company equal in nominal value to the sum certified in the certificate.

(c) A company shall issue to the Minister for Finance one share of one pound in the share capital of the company.

(d) The Minister for Finance may exercise in respect of his or her share in the share capital of a company all the rights and powers of a holder of such shares and,

where a right or power is exercisable by attorney, exercise it by his or her attorney.

(e) The cost of a share issued to the Minister for Finance as aforesaid shall be advanced to him or her out of the Central Fund or the growing produce thereof.

(f) The Minister for Finance shall not transfer or alienate his or her share in the share capital of a company.

(2) The Minister may, subject to this Act, exercise in respect of the shares of a company held by him or her all the rights and powers of a holder of such shares and, where a right or power is exercisable by attorney, exercise it by his or her attorney.

(3) (a) The Minister may, from time to time as occasion requires for the purposes of compliance with so much of the Companies Acts as requires that there shall always be a minimum number of members of a company, transfer to any person one of his or her shares in the share capital of a company.

(b) Save as authorised by paragraph (a), the Minister shall not transfer or alienate his or her shares in the share capital of a company.

Issue of shares to subscribers to memorandum of association.

20. —(1) One share in the share capital of a company shall be issued to each of the subscribers to the memorandum of association of the company.

(2) The cost of such shares shall be advanced to the subscribers out of the Central Fund or the growing produce thereof.

Obligation of certain shareholders to hold shares in trust.

21. —(1) A member of a company to whom a share in the share capital of a company is issued under section 20 or transferred under section 19 (3) (a) shall hold that share in the company in trust for the Minister and shall accordingly be bound to pay all dividends and other money which he or she receives in respect of the share to the Minister for the benefit of the Exchequer and to transfer, as and when required by the Minister, the share to the Minister or a person nominated in that behalf by the Minister.

(2) Save when required pursuant to subsection (1), such member shall not transfer or alienate his or her share in the share capital of a company.

(3) Upon the death of a member of a company referred to in subsection (1), the share in the share capital of the company held by such member shall, without the necessity for a transfer, vest in the Minister.

Payment of dividends, etc., into Exchequer.

22. —(1) All amounts representing dividends or other money received by the Minister in respect of shares held by him or her in the share capital of a company shall be paid into or disposed of for the benefit of the Exchequer in such manner as he or she may direct.

(2) All amounts representing dividends or other money received by the Minister for Finance in respect of a share held by him or her in the share capital of a company and all amounts representing repayment of or interest on repayable advances received or recovered by him or her from a company shall be paid into or disposed of for the benefit of the Exchequer in such manner as he or she may direct.

Power to borrow.

23. —(1) (a) Subject to the consent of the Minister and the Minister for Finance, a company or a subsidiary may, by means of the issue of debentures or otherwise, borrow money (including money in a currency other than the currency of the State) for capital purposes including working capital from persons other than the Minister for Finance.

(b) The aggregate at any one time of borrowings under paragraph (a) by a company and a subsidiary or either of them shall not exceed 50 per cent, of the value of so much of the company's assets as are treated as fixed assets for the purposes of its accounts.

(2) The Minister may, with the consent of the Minister for Finance, by order vary the percentage standing specified for the time being in subsection (1) (b).

(3) A company or a subsidiary may borrow money (including money in a currency other than the currency of the State) temporarily but the aggregate standing unrepaid at any time of such borrowings by a company and a subsidiary or either of them shall not exceed such amount as may stand approved for the time being by the Minister with the consent of the Minister for Finance.

(4) For the purposes of this section moneys borrowed in a currency other than the currency of the State shall be deemed to be the equivalent in the currency of the State of the actual moneys borrowed, such equivalent being calculated according to the rate of exchange at the time of the borrowing for that currency and the currency of the State.

Guaranteeing by the Minister for Finance of borrowings.

24. —(1) In relation to borrowings by a company under section 23 , the Minister for Finance, after consultation with the Minister, may guarantee, in such form and manner and in such money (including money in a currency other than the currency of the State) and on such terms and conditions as he or she thinks fit, the due repayment by the company of the principal of any money borrowed by the company or the due payment of instalments or other amounts of money owed by the company under a contract entered into by the company or the payment of interest on any money, instalment or amount or both the repayment of principal or payment of such instalments or amounts, as the case may be, and payment of the interest, and any such guarantee may include a guarantee of payment of commission and incidental expenses arising in connection with such borrowings or such contract.

(2) Where a guarantee under this section is or has been given, the company concerned shall, if the Minister for Finance so requires, give to him or her such security (including, in particular, debentures) as may be specified in the requirement for the purpose of securing to the Minister for Finance the repayment of any money which he or she may be liable to pay or has paid under the guarantee.

(3) The Minister for Finance shall, as soon as may be after the expiration of every financial year, lay before each House of the Oireachtas a statement setting out with respect to each guarantee under this section given during that year or given at any time before, and in force at, the commencement of that year—

(a) particulars of the guarantee,

(b) in case any payment has been made by him or her under the guarantee before the end of that year, the amount of the payment and the amount (if any) repaid to him or her on foot of the payment, and

(c) the amount of money covered by the guarantee which was outstanding at the end of that year.

(4) Money paid by the Minister for Finance under a guarantee under this section shall be repaid to the Minister for Finance (with interest thereon at such rate or rates as he or she appoints) by the company concerned within such period from the date of payment by the Minister for Finance as may be specified by him or her after consultation with the company.

(5) Where the whole or any part of the money required by subsection (4) to be repaid to the Minister for Finance has not been repaid in accordance with that subsection, the amount so remaining outstanding shall be repaid to the Central Fund out of moneys provided by the Oireachtas.

(6) Notwithstanding the provision of money under subsection (5) to repay an amount to the Central Fund, the company concerned shall remain liable to the Minister for Finance in respect of that amount and that amount (together with interest thereon at such rate or rates as the Minister for Finance appoints) shall be repaid to the Minister for Finance by the company at such times and in such instalments as he or she appoints and, in default of repayment as aforesaid and without prejudice to any other method of recovery, shall be recoverable by him or her from the company as a simple contract debt in any court of competent jurisdiction.

(7) In relation to a guarantee under this section in money in a currency other than the currency of the State—

(a) each of the references to principal, each of the references to instalments or other amounts of money, each of the references to interest and the reference to commission and incidental expenses in subsection (1) shall be taken as referring to the equivalent in the currency of the State of the actual principal, the actual instalments or other amounts of money, the actual interest or the actual commission and incidental expenses, as may be appropriate,

(b) the reference to the amount of money in subsection (3) (c) shall be taken as referring to the equivalent in the currency of the State of the actual amount of money, such equivalent being calculated according to the rate of exchange for the time being for that currency and the currency of the State,

(c) each of the references to money in subsections (4) to (6) shall be taken as referring to the cost in the currency of the State of the actual money.

Financing of capital works.

25. —(1) The Minister for Finance, after consultation with the Minister, may make available to a company moneys to finance capital works. The aggregate amount of moneys that may be made available to a company or companies under this section shall not exceed £50 million.

(2) Such moneys may be made available either—

(a) by way of loans to the company concerned on such terms as to repayment, interest and other matters as may be determined by the Minister for Finance after consultation with the company,

(b) by way of purchase of shares in the company concerned (such shares to be issued to the Minister), or

(c) by way of both such loans and purchase of shares.

(3) If a company fails to make a repayment of moneys lent to it under subsection (2), the company shall remain liable to the Minister for Finance in respect of the unpaid amount and that amount (with interest thereon at such rate or rates as the Minister for Finance appoints) shall be repaid to the Minister for Finance by the company at such times and in such instalments as he or she appoints and, in default of payment as aforesaid and without prejudice to any other method of recovery, shall be recoverable by him or her from the company as a simple contract debt in any court of competent jurisdiction.

Provision of money for payments out of Central Fund.

26. —(1) All money from time to time required by the Minister for Finance to meet sums which may become payable by him or her under section 24 or 25 shall be advanced out of the Central Fund or the growing produce thereof.

(2) The Minister for Finance may, for the purpose of providing for advances out of the Central Fund under this section, borrow on the security of the Central Fund or the growing produce thereof any sums required for the purpose and, for the purpose of such borrowing, he or she may create and issue securities bearing interest at such rate and subject to such conditions as to repayment, redemption or any other matter as he or she thinks fit, and shall pay all sums so borrowed into the Exchequer.

(3) The principal of and interest on all securities issued under this section and the expenses incurred in connection with the issue of the securities shall be charged on and payable out of the Central Fund or the growing produce thereof.

Accounts and audits.

27. —(1) Without prejudice to the requirements of the Companies Acts in relation to balance sheets and accounts, a company shall keep, in such form as may be approved of by the Minister with the consent of the Minister for Finance, all proper and usual accounts of all money received by or expended by it, including a profit and loss account, an account showing the derivation of the funds of the company and the purposes to which they are applied (referred to in subsection (2) as “the cash flow statement”) and a balance sheet, and, in particular, shall keep in such form as aforesaid all such special accounts as the Minister may from time to time direct.

(2) Accounts kept in pursuance of this section by a company shall be submitted annually by it to an auditor for audit and, immediately after the audit, a copy of the profit and loss account, the cash flow statement, the balance sheet and such other (if any) of the accounts as the Minister may direct and a copy of the auditor's report on the accounts shall be presented by the company to the Minister.

Annual report, chairperson's report and furnishing of information to Minister.

28. —(1) A company shall, not later than 6 months after the end of each accounting year of the company, make a report to the Minister of its activities and those of any subsidiaries during that year and the Minister shall cause copies of the report, together with the accounts in respect of that year and the auditor's report thereon presented to him or her by the company under section 27 , to be laid before each House of the Oireachtas.

(2) A report referred to in subsection (1) shall include information, in such form as the Minister may direct after consultation with the company and with the consent of the Minister for Finance, regarding the operations and cost-effectiveness of the company and any subsidiaries and the financial targets over the next 5 years following the preparation of the report of the company and any subsidiaries.

(3) A company shall, if so required by the Minister, furnish to the Minister such information as he or she may require in respect of any balance sheet or other account or any report of the company or any subsidiaries or in relation to the policy and operations (other than day-to-day operations) of the company or any subsidiaries.

(4) The chairperson of a company shall, not later than 6 months after the end of each accounting year of the company, make a report to the Minister which shall contain—

(a) a statement of all significant developments involving the company which occurred in that year (including the acquisition of shares or establishment of subsidiaries by the company) and, so far as such a description is not included in such a statement, a description of any acquisitions or disposals of land made by the company during that year, a description of which had not been included in a report under this subsection for the preceding accounting year,

(b) a description of each of the following things the chairperson anticipates will occur in the accounting year next following the said year, namely—

(i) acquisitions of land by the company,

(ii) disposals by the company of any of its land (whether by sale or the grant of a lease),

(c) a description of the matters (other than those referred to in paragraph (b)) the chairperson anticipates will arise in the accounting year next following the said year (or, where the chairperson considers it appropriate in any particular case, any subsequent accounting year) which may affect the company to any significant extent,

(d) a statement, to the best of the chairperson's knowledge or belief, as to whether each of the following, as respects the company, has been complied with or adhered to in the said year, namely—

(i) the requirements of this Act or any other enactment in relation to the accounts of a company and statements as to the financial affairs of a company,

(ii) guidelines issued by the Government or the Minister for Finance in relation to the accounts of State enterprises or statements in respect of their financial affairs,

(iii) section 32 ,

(iv) any code of conduct for the directors and members of staff of State enterprises issued by the Government or the Minister for Finance,

(v) section 15 ,

(vi) regulations for the time being in force under the European Communities Act, 1972 , or guidelines issued by the Government or the Minister for Finance, in relation to the entering by a public authority into a contract with any person for the provision of goods or services by that person to the authority,

(vii) any guidelines issued by the Government or the Minister for Finance in relation to the remuneration to be paid by State enterprises to their chief executives,

(e) where any thing referred to in paragraph (d) is stated not to have been complied with or adhered to, an explanation (so far as the chairperson is in a position to give one) as to why the thing was not complied with or adhered to.

(5) In this section “State enterprises” has the same meaning as it has in section 15 (4).

Performance audits.

29. —(1) The Minister may at the end of—

(a) the period of 3 years beginning on the commencement of this section, and

(b) each subsequent period of 3 years beginning on the expiration of the last previous period,

appoint a suitably qualified person to carry out an examination as to the efficiency and cost-effectiveness of the performance by a company or companies of its or their functions and to report in writing to the Minister the results of the examination; such an examination and a report shall be completed by the said person within the period of 6 months from the date of his or her appointment.

(2) The Minister shall submit a copy of a report under subsection (1) to the Government and the company or companies to which the report relates.

(3) The costs of an examination and report under subsection (1) shall be paid to the Minister by the company or companies to which the examination and report relate.

Employee, local authority and other directors.

30. —(1) (a) The Minister shall as respects a company, the employees of which are more than 50 in number, appoint to be each a director of the company 2 employees of the company who are elected in accordance with the Fifth Schedule .

(b) The Minister shall as respects a company, the employees of which are more than 30 but not more than 50 in number, appoint to be a director of the company an employee of the company who is elected in accordance with the Fifth Schedule .

(c) The Minister shall as respects a company (other than a company referred to in paragraph (a) or (b)), appoint to be a director of the company a person who, in the opinion of the Minister, is representative of the interests of the employees of the company.

(d) Before making any appointment under paragraph (c) the Minister shall consult with any recognised trade union or staff association concerned which, following such consultation, may recommend to the Minister that a particular person be appointed under the said paragraph and the Minister shall consider such a recommendation.

(2) Without prejudice to the provisions of this Act as respects the term of office of directors of a company and their removal or disqualification from office, the term of office of a director of a company who is appointed under subsection (1) and who is an employee of the company shall terminate on his or her resigning or retiring from employment with the company or on his or her being dismissed from such employment.

(3) The Minister shall, if the person is willing to act as such a director, appoint an employee of a company selected in accordance with paragraph 8 of the Fifth Schedule to fill a casual vacancy arising in the office of a director of the company appointed under paragraph (a) or (b) of subsection (1) for the remainder of the term of office for which that director had been appointed.

(4) A director of a company appointed under subsection (1) shall, subject to this section, be eligible for nomination as a candidate and for election at an election under the Fifth Schedule .

(5) An election under the Fifth Schedule shall be held within 12 months after the relevant vesting day or such longer period as may be agreed between the company and any recognised trade union or staff association concerned and in each fifth year thereafter.

(6) The Minister shall appoint 3 members of a prescribed local authority or local authorities (each of whom has been nominated for the purposes of this subsection in the prescribed manner by a prescribed local authority or local authorities) to be each a director of a company.

(7) The Minister shall, in selecting one or more persons to be appointed as a director or directors of a company (not being a director or directors to whom a preceding provision of this section applies), consult with—

(a) the Chamber of Commerce of Ireland (or any successor of it),

(b) the Irish Business and Employers Confederation (or any successor of it), and

(c) such other persons as the Minister considers appropriate,

and each of the said persons may, following such consultation, recommend to the Minister that a particular person or persons be appointed as such a director or directors and the Minister shall consider such a recommendation.

Remuneration, etc., of directors appointed under section 30 .

31. —(1) Where any allowance payable to a director of a company is being determined by the company, the company shall not have regard to the fact that the director was, or was not, as the case may be, appointed under section 30 .

(2) An employee of a company who is appointed under section 30 (1) to be a director of a company and whose duties as such a director are not whole time shall not suffer any reduction in the remuneration which as an employee of the company, he or she would, if he or she were not such a director, normally expect to receive.

Disclosure by directors of certain interests.

32. —(1) Where at a meeting of the directors of a company or a subsidiary any of the following matters arises, namely—

(a) an arrangement to which the company or any subsidiary is a party or a proposed such arrangement, or

(b) a contract or other agreement with the company or any subsidiary or a proposed such contract or other agreement,

(c) the giving, grant or renewal by the company or any subsidiary of a certificate, licence, authorisation or instrument of approval,

then any director of the company or the first-mentioned subsidiary present at the meeting who otherwise than in his or her capacity as such a director is in any way, whether directly or indirectly, interested in the matter—

(i) shall at the meeting disclose to the company or the first-mentioned subsidiary the fact of such interest and the nature thereof,

(ii) shall absent himself or herself from the meeting or that part of the meeting during which the matter is discussed,

(iii) shall take no part in any deliberations of the directors relating to the matter, and

(iv) shall not vote on a decision relating to the matter.

(2) Where an interest is disclosed pursuant to this section, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the director by whom the disclosure is made shall not be counted in the quorum for the meeting.

(3) Where at a meeting of the directors of a company or a subsidiary a question arises as to whether or not a course of conduct, if pursued by a director of the company or the subsidiary would constitute a failure by him or her to comply with the requirements of subsection (1), the question may be determined by the chairperson of the meeting whose decision shall be final and where such a question is so determined particulars of the determination shall be recorded in the minutes of the meeting.

(4) Where the Minister is satisfied that a director has contravened subsection (1), the Minister may, if he or she thinks fit, and with the consent of the Minister for Finance, remove that director from office, and, in case a person is removed from office pursuant to this subsection, he or she shall henceforth be disqualified from being a director of the company concerned or a subsidiary.

(5) Section 194 of the Companies Act, 1963 , shall not apply to a director of a company or a subsidiary.

(6) A person who contravenes this section shall be guilty of an offence.

(7) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with the company.

Prohibition on unauthorised disclosure of information.

33. —(1) A person shall not disclose confidential information obtained by him or her while performing duties as a director or member of staff of, or an advisor or consultant to, a company unless he or she is duly authorised to do so.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

(3) In this section—

confidential” means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description;

duly authorised” means authorised by the company or by some person authorised in that behalf by the company.

Membership of either House of the Oireachtas or European Parliament.

34. —(1) Where a director of a company is—

(a) nominated as a member of Seanad Éireann, or

(b) elected as a member of either House of the Oireachtas or to the European Parliament, or

(c) regarded pursuant to section 15 (inserted by the European Parliament Elections Act, 1993 ) of the European Assembly Elections Act, 1977 , as having been elected to such Parliament to fill a vacancy,

he or she shall thereupon cease to be a director of the company.

(2) Where a person employed by a company is—

(a) nominated as a member of Seanad Éireann, or

(b) elected as a member of either House of the Oireachtas or to the European Parliament, or

(c) regarded pursuant to section 15 (inserted by the European Parliament Elections Act, 1993 ) of the European Assembly Elections Act, 1977 , as having been elected to such Parliament to fill a vacancy,

he or she shall thereupon stand seconded from employment by the company and shall not be paid by, or be entitled to receive from, the company any remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected (as the case may be), and ending when he or she ceases to be a member of either such House or such Parliament.

(3) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a director of a company or from employment in any capacity by a company.

(4) Without prejudice to the generality of subsection (2), that subsection shall be construed as prohibiting the reckoning of a period therein mentioned as service with a company for the purpose of any superannuation benefits.

Chief executive.

35. —(1) There shall be a chief executive of a company.

(2) (a) The first chief executive of a company (other than Dún Laoghaire Harbour Company) shall be—

(i) if functions in relation to the company's harbour stood vested before the relevant vesting day in a harbour authority specified in Part I of the First Schedule to the Act of 1946, the person who was on the day prior to the said day the General Manager of that harbour authority, or

(ii) if functions in relation to the company's harbour stood vested before the relevant vesting day in a harbour authority specified in Part II of the said Schedule, the person who was on the day prior to the said day the secretary of that harbour authority.

(b) The first chief executive of Dún Laoghaire Harbour Company shall be a person nominated and appointed by that company after consultation with the Minister.

(3) Each subsequent chief executive of a company shall be appointed and may be removed from office by the other directors of the company after consultation with the Minister.

(4) The functions of the chief executive of a company shall be to carry on, manage and control generally the administration of the company, subject to the lawful directions of the directors of the company.

(5) Save in the case of the first chief executive of a company (other than Dún Laoghaire Harbour Company), the chief executive of a company shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration and allowances) as may be determined by the directors of the company with the consent of the Minister given with the approval of the Minister for Finance.

Chief executive to be a director.

36. —The chief executive of a company shall be ex officio a director of the company.

Provisions with respect to staff of a company (including harbour master).

37. —(1) (a) Without prejudice to any other provision of this Act, a company shall be required to employ—

(i) a harbour master,

(ii) such and so many other employees as it considers to be necessary for the due performance of its functions.

(b) A harbour master may from time to time authorise one or more other suitably qualified members of the staff of the company by whom he or she is employed to perform a function conferred on him or her by a provision of this Act or an instrument made thereunder and for so long as such member or members is or are so authorised references in the provision concerned and section 50 to the harbour master shall be construed as including references to such member or members.

(2) Without prejudice to the requirements of section 39 , a company, in determining the remuneration or allowances for expenses to be paid to members of its staff, including the chief executive, or the terms or conditions subject to which such members hold or are to hold their employment, shall have regard to Government or nationally agreed guidelines which are for the time being extant, or to Government policy concerning remuneration and conditions of employment which is so extant and, in addition to the foregoing, a company shall comply with any directives with regard to such remuneration, allowances, terms or conditions which the Minister may give to the company with the consent of the Minister for Finance.

Transfer of staff from former harbour authority or Department of the Marine to a company.

38. —Every person who is on the day immediately before the relevant vesting day a member of staff of—

(a) the harbour authority of a harbour, or

(b) in the case of Dún Laoghaire Harbour, the Department of the Marine and is designated by the Minister for employment by Dún Laoghaire Harbour Company,

shall, on the said vesting day, be transferred to and become a member of the staff of the company established pursuant to section 7 in respect of the said harbour.

Provisions applicable to staff transferred under section 38 .

39. —(1) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned or an agreement negotiated with the person concerned, a person transferred to a company under section 38 shall not, while in the service of the company, be brought to less beneficial conditions of service or of remuneration than the conditions of service or of remuneration to which he or she was subject immediately before the relevant vesting day.

(2) Until such time as the scales of pay and conditions of service of persons transferred to a company under section 38 are varied by the company, following consultation with any recognised trade union or staff association concerned or one or more of the said persons, the scales of pay to which the said persons were entitled and the conditions of service, restrictions, requirements and obligations to which they were subject immediately before their transfer shall continue to apply to them and may be applied or imposed by the company while they are in its service.

(3) The conditions in regard to tenure of office which are granted by the company in relation to a person transferred to it under section 38 and who, immediately before the relevant vesting day, held office under the Local Authorities (Officers and Employees) Acts, 1926 to 1983, or was a member of the staff of the Department of the Marine, shall not, while he or she is in the service of the company, be less favourable to him or her than those applicable for the time being to persons holding office under the said Acts or, in case he or she was a member of the staff of the Department of the Marine, persons who are civil servants; any alteration in the conditions in regard to tenure of office of the said person shall not be less favourable to him or her than the conditions applicable at the time of such alteration to persons holding office under the aforesaid Acts or, as appropriate, persons who are civil servants, save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned or an agreement negotiated with the said person. If a dispute arises between the company and any such person as to what conditions are applicable for the time being to persons holding office under the aforesaid Acts or who are civil servants, the matter shall be determined by the Minister for Finance after consultation with the Minister.

(4) (a) In relation to a person transferred to a company under section 38 , previous service by the person in the employment of the former harbour authority of the company's harbour or in the civil service, as the case may be, shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the Redundancy Payments Acts, 1967 to 1991, the Holidays (Employees) Acts, 1973 and 1991, the Minimum Notice and Terms of Employment Acts, 1973 to 1991, and the Unfair Dismissals Acts, 1977 to 1993.

(b) The reference in this subsection to previous service by a person in the employment of a former harbour authority includes a reference to previous service by the person otherwise than in the employment of the harbour authority that was treated by the harbour authority as service by him or her in their employment.

(5) In this section “civil servant” and “civil service” have the same meaning as they have in the Civil Service Regulation Act, 1956 .

Superannuation schemes.

40. —(1) Subject to subsection (8), a company shall, or, in the case of a company referred to in section 41 (1), may, prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such members of the staff of the company (including the chief executive) as it may think fit.

(2) (a) Every such scheme shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(b) Every such scheme may, where it is appropriate so to provide, provide for the matters referred to in subsections (3) (b) (ii) and (6) (ii) of section 41 .

(3) Every such scheme may be amended or revoked by a subsequent scheme prepared, submitted and approved under this section.

(4) Superannuation benefits granted under schemes under this section to persons who, immediately before the relevant vesting day, were members of the staff of a harbour authority or the Department of the Marine, as the case may be, and the terms and conditions relating to those benefits shall not be less favourable to those persons than those to which they were entitled immediately before that day.

(5) In the case of members of staff of Dún Laoghaire Harbour Company disbursement of superannuation benefits which may be granted to or in respect of such of those members who, immediately before the relevant vesting day, were members of the staff of the Department of the Marine shall be on conditions no less favourable to such members than those that would apply if those benefits had continued to be paid out of moneys provided by the Oireachtas.

(6) A scheme submitted by a company under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the company in accordance with its terms.

(7) No superannuation benefit shall be granted by a company nor shall any other arrangements be entered into by the company for the provision of such a benefit to or in respect of a member of the staff of the company otherwise than in accordance with a scheme under this section, a scheme referred to in subsection (1) of section 41 or pursuant to the company's obligations under subsections (6) and (7) of that section.

(8) (a) The Minister may by order exempt a company, the employees of which are less than 30 in number, from the requirements of subsection (1).

(b) Such an order shall include a provision requiring the company to which the exemption concerned relates to enter into such arrangements with the holder of an authorisation as will secure the payment by that holder, on such terms and conditions as the company determines with the consent of the Minister and the Minister for Finance, of superannuation benefits to or in respect of members of the company's staff.

(c) In this subsection “authorisation” has the same meaning as it has in the European Communities (Life Assurance) Framework Regulations, 1994 (S.I. No. 360 of 1994).

Existing superannuation schemes, establishment of pension funds, arrangements for pilots, etc.

41. —(1) (a) A superannuation scheme made under—

(i) section 151 of the Act of 1946, or

(ii) any other enactment (other than one referred to in subsection (6)),

by the former harbour authority of a company's harbour and which is in force immediately before the relevant vesting day shall (notwithstanding the repeal by, or, as the case may be, any cesser effected by, section 5 of the said section 151 or other enactment aforesaid) continue in force and to apply to each person to whom it applied immediately before that day.

(b) A person who—

(i) immediately before the relevant vesting day was a member of the staff of the former harbour authority of the harbour of a company (being a company in relation to which a scheme referred to in subparagraph (i) of paragraph (a) is continued in force under that paragraph) but was not participating in such a scheme, or

(ii) becomes a member of the staff of such a company after the relevant vesting day,

may, after the relevant vesting day, participate in such a scheme in accordance with the provisions thereof.

(c) For the purposes of this subsection—

(i) references in a scheme continued in force under paragraph (a) to the harbour authority which made the scheme shall be construed as references to the company in relation to which the scheme is so continued in force and the provisions of the scheme shall otherwise be construed so as to have effect in relation to that company and the members of its staff and other persons concerned,

(ii) any fund established by the said harbour authority for the purposes of a scheme as aforesaid and in existence immediately before the relevant vesting day shall continue in existence for the purposes of the scheme and any persons who were appointed before the said day by the harbour authority as trustees to administer the said fund and whose appointment stands unre-voked immediately before the said day shall continue to have and enjoy (subject to the terms of the instrument referred to in subparagraph (iii) and the provisions of any enactment or instrument thereunder) the powers, rights and duties as such trustees,

(iii) any instrument by or under which the said trustees were appointed shall, subject to the provisions of any enactment or instrument thereunder, continue to have effect for the purposes of the fund aforesaid and for this purpose the provisions of the instrument shall be construed in like manner to the manner which sub-paragraph (i) provides that the provisions of the scheme concerned shall be construed.

(d) A company in relation to which a scheme is continued in force under this subsection may amend or revoke, or, if directed by the Minister to do so, shall, in the manner specified in the direction, amend or revoke, the scheme as if it were a scheme made under section 40 (1) but no amendment shall be made to the scheme that would result in the superannuation benefits that may be granted under the scheme or the terms and conditions in relation thereto being less favourable to the members of the company's staff and other persons concerned than those to which they were entitled under the scheme before the making of the amendment.

(2) Without prejudice to subsection (1), where a superannuation benefit falls due for payment to or in respect of a person to whom subsection (4) of section 40 applies in the period beginning on the relevant vesting day and ending immediately before the coming into operation of a scheme submitted by a company and approved of under that section, the benefit shall be calculated and paid by the company in accordance with such superannuation scheme or such enactments in relation to superannuation, as applied to such person immediately before the said vesting day and, for that purpose, his or her pensionable service with the company shall be aggregated with his or her previous pensionable service.

(3) (a) Subject to paragraph (b), a company which makes a scheme under section 40 (1) shall, as soon as may be after the making of the scheme—

(i) establish a fund from which superannuation benefits payable under the scheme may be paid,

(ii) make such arrangements as it considers to be necessary for the administration of such a fund (including the appointment of trustees for the purpose).

(b) Paragraph (a) shall not apply if—

(i) there is in existence immediately before the making of a scheme as aforesaid (“the subsequent scheme”) a fund in respect of a superannuation scheme continued in force under subsection (1) in relation to the company concerned (“the prior scheme”), being a fund the existence of which is continued by virtue of subsection (1) (c) (ii) or which is established under paragraph (c), and

(ii) the subsequent scheme provides—

(I) that the said fund shall continue in existence for the purposes of the subsequent scheme, or

(II) if the prior scheme is not revoked by the subsequent scheme, that the said fund shall have effect for the purposes of both the prior scheme and the subsequent scheme.

(c) If in respect of a superannuation scheme continued in force under subsection (1) no fund was established by the former harbour authority which made the scheme the company in relation to which the scheme is so continued in force shall, as soon as may be after the relevant vesting day—

(i) establish a fund from which superannuation benefits payable under the scheme after the said day may be paid,

(ii) make such arrangements as it considers to be necessary for the administration of such a fund (including the appointment of trustees for the purpose).

(d) (i) A company shall take all reasonable steps to ensure that on and from the appropriate date a fund established by it under paragraph (a) or (c) or continued in existence in relation to it by virtue of subsection (1) (c) (ii) comprises sufficient moneys as will enable the payment from that fund, as distinct from the revenues of the company, of superannuation benefits under the scheme or schemes concerned as and when those benefits fall due for payment.

(ii) In this paragraph “appropriate date” means the date specified by the Minister for the purposes of this paragraph in relation to the company concerned after consultation with that company.

(4) (a) In relation to a scheme or schemes made by a company under section 40 (1), previous service by a member of the staff of the company in the employment of the former harbour authority of the company's harbour or the Department of the Marine, as the case may be, shall be reckonable as service with the company for the purposes of the scheme or schemes.

(b) The reference in this paragraph to previous service by a person in the employment of a harbour authority or the Department of the Marine includes a reference to previous service by the person otherwise than in the employment of the harbour authority or the Department of the Marine, as the case may be, that was treated by the harbour authority or the said Department of State, as the case may be, as service by him or her in their or its employment for superannuation purposes.

(5) (a) The Minister for Finance shall determine an appropriate contribution, related to reckonable service given before the relevant vesting day, towards the superannuation benefits which may be granted to or in respect of persons who are transferred to the staff of Dún Laoghaire Harbour Company under section 38 and shall, subject to paragraph (c), pay such contribution to the trustees appointed under subsection (3) in respect of the fund concerned at such times and in such manner as he or she shall determine.

(b) Where any part of the contribution under paragraph (a) remains unpaid for any period after the relevant vesting day, interest shall be payable by the Minister for Finance to the trustees referred to in that paragraph at such rate as the Minister for Finance may determine in respect of that period on the amount so unpaid.

(c) Payments under paragraph (a) or (b) shall be made not later than 5 years after the relevant vesting day.

(6) Notwithstanding the repeal of the Pilotage Act, 1913, by section 5

(a) any pilots' benefit fund established under section 17 (1) (j) of that Act by the former pilotage authority for a company's pilotage district and in existence immediately before the commencement of section 56 in relation to that company, or

(b) any superannuation scheme or arrangements made or entered into by that pilotage authority for the purpose of granting superannuation benefits to or in respect of pilots licensed under that Act in respect of that pilotage district and which is or are in force immediately before such commencement,

shall continue in existence or force and may, as appropriate—

(i) be dealt with in accordance with a pilotage agreement under section 59 , or

(ii) be otherwise dealt with or administered by that company in such manner as it thinks just and equitable (which may include the replacement of the fund, scheme or arrangements by a scheme under section 40 (1) or by provisions inserted in a scheme continued in force in relation to that company under subsection (1) by an amendment thereof under that subsection),

but not so as to prejudice the operation of the provisions of subsection (7).

(7) (a) In this subsection—

benefits” includes superannuation benefits;

company concerned” means the company referred to in subsection (6);

relevant pilot” means a pilot referred to in subsection (6) (b) who was such a pilot immediately before the commencement of section 56 in relation to the company concerned.

(b) A relevant pilot who is employed by the company concerned under section 56 (1) (a) immediately after the commencement of that provision in relation to the company may opt not to participate in a scheme referred to in section 40 (1) or subsection (1) and may require the company to enter into such arrangements with him or her as will enable him or her to continue to enjoy the benefits (whether preserved or not) of or under the fund, scheme or arrangements referred to in subsection (6) which he or she enjoyed before such commencement but subject to the same terms and conditions to which the said fund, scheme or arrangements provided that the enjoyment of the said benefits was to be subject.

(c) The company concerned shall ensure that a person who is in receipt of benefits under a fund, scheme or arrangements referred to in subsection (6) immediately before the commencement of section 56 in relation to the company shall continue to receive the said benefits after such commencement and that such receipt is subject to the same terms and conditions to which the said fund, scheme or arrangements provided that the receipt of the said benefits was to be subject.

(8) Subsections (6) and (7) shall be construed as one with Part IV .

(9) Where the Minister is satisfied, after consultation with the company and trustees concerned, that—

(a) a fund established by a company under paragraph (a) or (c) of subsection (3) or continued in existence in relation to it by virtue of subsection (1) (c) (ii) does not comprise sufficient moneys as will enable the payment from that fund of superannuation benefits under the scheme or schemes concerned as and when those benefits fall due for payment, and

(b) the said company does not have resources from which there could be paid the said benefits as and when they fall due for payment,

then the Minister may, with the consent of the Minister for Finance, pay to the trustees concerned such amount in respect of liabilities of the said scheme or schemes that have arisen prior to the relevant vesting day as he or she may determine.

(10) All money from time to time required by the Minister or the Minister for Finance to meet sums which are, or may become, payable by him or her under this section shall be advanced out of the Central Fund or the growing produce thereof.

(11) If any dispute arises as to the claim of any person to, or to the amount of, any superannuation benefit payable in pursuance of a scheme referred to in section 40 or this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(12) Every scheme made under section 40 , or under paragraph (d) of subsection (1) amending or revoking a scheme continued in force under that subsection, shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next subsequent 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Harbour bye-laws.

42. —(1) (a) Without prejudice to section 71 , (which concerns pilotage bye-laws), a company may make bye-laws with respect to the use of, and the safety of navigation within, its harbour and generally with respect to the regulation of its harbour and property.

(b) Without prejudice to the generality of paragraph (a), a company may, in relation to its harbour, make bye-laws for all or any of the purposes mentioned in Part I of the Sixth Schedule .

(2) A person who contravenes a provision of bye-laws made under this section shall be guilty of an offence.

(3) A bye-law made under—

(a) section 60 of the Act of 1946, or

(b) any enactment relating to Dún Laoghaire Harbour,

that is in force immediately before the relevant vesting day and relates to a company's harbour shall continue in force in relation to that harbour as if made under this section and may be amended or revoked accordingly by the said company.

Transfer of functions from one company to another company.

43. —(1) If on an application being made to the Minister by one or more of the companies referred to in this subsection requesting the making of an order under this section, the Minister is of the opinion that the functions conferred on a company or companies by or under this Act in respect of a harbour or harbours could in a more cost-effective and efficient manner be performed by another company, being a company established pursuant to section 7 , he or she may by order transfer the said functions of the company or companies (which or each of which is referred to in this section as a “transferor company”) to that other company (which is referred to in this section as the “transferee company”).

(2) An order under this section shall only be made with the consent of each of the companies to which the order relates.

(3) An order under this section shall provide for such of the following matters as the circumstances require:

(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company,

(b) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company,

(c) the transfer into the employment of the transferee company of members of the staff of any transferor company and the scales of pay and conditions of service to apply to such staff,

(d) an alteration in the name of the transferee company,

(e) the dissolution, without winding up, of any transferor company and the disposal for the benefit of the Exchequer of any of its property which is surplus to the requirements of the transferee company,

(f) such incidental, consequential and supplementary matters as are necessary to secure that the transfer of functions shall be fully and effectively carried out.

(4) As respects a member of the staff of a transferor company transferred into the employment of a transferee company by an order under this section, the provisions of sections 39 , 40 and 41 shall, to the extent that they applied to that member before such transfer, continue to apply to him or her after such transfer and while he or she remains in the employment of the transferee company and for this purpose references in the said provisions to a company shall be construed as references to the transferee company and the said provisions shall otherwise be construed so as to have effect in relation to the said person while he or she remains in such employment.

General ministerial powers.

44. —(1) The Minister may, after consultation with the company, give a direction in writing to a company requiring it to comply with policy decisions of a general kind made by the Minister in relation to—

(a) the development of harbours,

(b) the safety of ships, navigation and operations generally in harbours,

(c) the levels of harbour charges imposed by a company or companies,

(d) the acquisition or disposal of lands by a company or companies (including by way of the grant of a lease), or

(e) any other matters affecting the functions of a company or companies.

(2) A company shall comply with a direction given to it under subsection (1).

(3) Subsection (1) shall not be construed as enabling the Minister to exercise any power or control in relation to the performance in particular circumstances by a company of a function conferred on it by or under this Act.

(4) (a) The Minister may stipulate, in consultation with the company and with the consent of the Minister for Finance, financial or other targets to be achieved by a company. In stipulating such targets the Minister shall have due regard to any direction he or she has given to the company concerned under subsection (1).

(b) The Minister may having due regard to the capacity of the company concerned to achieve the financial targets that have been stipulated under paragraph (a) in respect of it and after consultation with the Minister for Finance, stipulate the dividends to be paid by a company in respect of the shares held in its share capital.