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Parliamentary Commissioner for Administration

First Report Session 1998-99

Volume 3 - 1st Report - Session 1998-99

CUSTOMS AND EXCISE

Case No. C.73/95

Mistakes in recording the register length of a fishing boat

2.1. Mr P complained that after purchasing a fishing boat he discovered that the length of the boat was greater than that stated in the certificate of registry issued by HM Customs and Excise (Customs) that he had relied upon. He said that as a consequence the boat had to have additional safety equipment installed before it could be certified for sea fishing, which he had not been able to afford and that he had been unable to use the boat for fishing and, as a result, had suffered significant financial loss.

2.2. The investigation began in August 1996 once comments had been obtained from the Chairman of the Board of Customs and Excise after the Member's referral of the complaint. I have not included in this report every detail investigated by the Ombudsman's staff, but I am satisfied that no matter of significance has been overlooked. An Appendix lists the abbreviations used in this report and their meaning.

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Background

2.3. Before 1 April 1989 Customs were responsible for maintaining a registry of British ships. The statutory provisions relevant to the registration of sea fishing boats from 11 June 1981 to 16 November 1988 were contained in Part IV of the Merchant Shipping Act 1894 (MSA 1894), as amended by the Merchant Shipping (Fishing Boats Registry) Order 1981 (the 1981 Order) which superseded the Merchant Shipping (Fishing Boats Registry) Order 1927 (the 1927 Order). Article 6 (1) of the 1981 Order required the owner of a boat to apply to the Registrar of British Ships, in this case the officer of Customs (the registrar) superintending the port at the appropriate port of registry as specified in MSA 1894, to have the boat entered in the register, known as the Part IV register, and to obtain a certificate of registry. On receipt of such an application the registrar was directed by Article 7(1) to satisfy himself as to the overall length, the register length (see paragraph 2.8), the tonnage, and the marking of the boat with the letters and numbers he had allocated to it and then to register the boat and issue a certificate of registry. Article 7(3) defined the certificate of registry as an official paper within the meaning of Part IV of MSA 1894 and other statutes, and said that as such it must be carried on board the boat at all times. Article 8(3) required the register length, overall length and tonnage of the boat taken and calculated by the measuring officer to be set out in the certificate of registry, which would be conclusive of that length and tonnage. Under Article 10 of the 1981 Order the certificate remained in force for five years from the date of issue. The registrar could renew the certificate of registry by means of an endorsement which extended its validity for a further five years. All renewals had to be noted in the register. The owner of the boat was required by Article 11 of the 1981 Order to report any alteration affecting any measurement of the boat to the registrar and submit the certificate of registry for amendment. On receiving such a report, the registrar was required to call for the boat to be re-measured and to amend the register and certificate of registry accordingly. Article 12 of the 1981 Order required the Registrar-General of Shipping and Seamen (RGSS) (part of the then Department of Transport) to maintain a central fishing boat register. Article 14 of the 1981 Order specified that, on the change of ownership of a boat, the owner should deliver up the certificate of registry to the registrar to be cancelled along with the entry in the register. It was then the duty of the new owner to make an application to re-register the boat.

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2.4. Before November 1988 the owner of a sea fishing boat that was registered at a port in Scotland under Part IV of MSA 1894 and engaged in the sea fishing industry in Scotland could also choose to register the facts of the title of the boat under provisions of the Sea Fishing Boats (Scotland) Act 1886 (the Scotland Act). That register was known as the Part II register.

2.5. Following the provisions of Part II of the Merchant Shipping Act 1988 (MSA 1988), a new central register administered by the Department of Transport, the Register of Fishing Vessels (the new register), was opened in Cardiff on 1 December 1988. The registering of sea fishing boats was then governed by the Merchant Shipping (Registration of Fishing Vessels) Regulations 1988. Instructions were issued to registrars in October and November 1988 about the coming change in statutory provisions explaining that owners of boats on the then current registers would be sent an application form from the Registrar of Fishing Vessels (RFV) in Cardiff in early December 1988 to enable them to register their boats on the new register free of charge. The new register superseded both the Part IV of MSA 1894 (paragraph 2.3) and the Part II Scotland Act (paragraph 2.4) registers which were suspended at close of business on 16 November 1988 and closed at midnight on 31 March 1989. Fishing vessel registrations on the Part IV and Part II registers that were in force before 16 November 1988 remained in force until the vessel was registered on the new register or until 31 March 1989, whichever happened first. Failure to transfer to the new register would result in the closure of a registration. As a result of such a closure the certificate of registry would be stamped as invalid from 1 April 1989.

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2.6. The legislation pertinent to the safety of sea fishing boats at the time of events in this case was the Fishing Vessels (Safety Provisions) Rules 1975 (the 1975 Rules). Parts I, III and IV of the 1975 Rules came into operation on 1 May 1975. Part III set out the rules for life saving appliances required for mechanically propelled sea-going fishing boats. The requirements varied according to the register length: for boats of 12 metres in length and over they were more stringent than those for boats less than 12 metres in length. Parts II and V of the Rules, pertaining to construction, surveys and certificates, came into force at a date according to the age and length of the boat: in this case, where the keel of the boat was laid before 1 January 1947 and the boat was less than 15 metres in length, on 1 April 1977. Part V of the 1975 Rules required that every boat of 12 metres in length and over should be surveyed after such plans and other information as the surveyor required were provided by the owner of the boat and any fee paid. If the Secretary of State was satisfied by the survey that the boat complied with the 1975 Rules, a United Kingdom (UK) fishing vessel certificate was issued to the owner of the boat.

2.7. Customs' guidance issued to registrars in March 1985 explained that all UK fishing boats of 12 metres or more in length were required to be surveyed and issued with a UK fishing vessel certificate. The guidance said that enforcement of the requirement was a matter for the Department of Transport, but when dealing with an application for registry of a fishing boat, other than on a change of ownership of an already registered boat, the registrar was to take the opportunity to advise the owner that the boat would require a UK fishing vessel certificate before it could proceed to sea. Without such a certificate the boat was liable to be detained if the owner attempted to take it to sea. If an owner was in doubt about his position or in need of further information the registrar should direct the owner's enquiries to the nearest Fishing Vessel Survey Office. However it was not until 1 December 1988 that, pursuant to section 15(2) of MSA 1988, a registrar had discretion to refuse an application for the registration of a fishing boat if he was satisfied that a UK fishing vessel certificate was not in force. In Scotland local offices of the Department of Agriculture and Fisheries for Scotland would check the certificate of registry, but not the UK fishing vessel certificate, before issuing a fishing licence.

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2.8. The rule for measuring the length of a fishing boat at the time of the boat's first registration was set out in the Fifth Schedule to the 1927 Order and said: 'Measure the length from fore part of head of stem to after part of stern post or after part of transom or tuck.' Schedule 4 of the 1981 Order set out rules to measure the overall length (pertinent for other regulations, such as those relating to collision) and the register length of the boat. The rule to obtain the register length said: 'Measure the length from the foreside of the foremost fixed permanent structure to the aftermost part of the rudder post, or, in a ship not having a rudder post, to the foreside of the rudder stock at the point where the rudder stock passes out of the hull'.

Investigation

1931/32

2.9. The boat was built in 1931 and on 21 January 1932 it was registered in the Part IV and Part II registers (paragraphs 2.3 and 2.4). The length of the boat shown on the register on 5 September 1948, and on a certificate of registry dated 5 September 1947 (the earliest available records), was 45.5 feet (13.87 metres).

1981/82

2.10. Between November 1981 and February 1982 structural work was undertaken on the boat to bring the rudder stock inside. According to the agents who then managed the boat (the agents) the alteration had been commissioned by the then owners, whom I call fishermen J, in order to reduce the register length of the boat to under 12 metres. After the work had been completed Customs measured the boat, amended the register length to 11.98 metres and, on 19 April 1982, they issued a new certificate of registry that gave the register length of the boat as 11.98 metres.

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1985

2.11. On 26 July 1985 the local Customs office (the local office) noted that a surveyor from the Department of Trade and Industry (working in the area on oil tanker safety) had queried the register length of the boat. Their note recorded that he had said that 'her 45.5 feet is not the same as her 11.98 metres but should instead be 13.87 metres'. However Customs took no action at that time to check the length of the boat.

1987

2.12. Around February 1987 the RGSS (paragraph 2.3) queried the length of the boat with the local office; they told the loca1 office that they thought that the boat should be longer than as registered (11.98 metres), in line with other registered vessels of the same model and class. On 3 February the then registrar at the local office (appointed there in August 1984 and whom I call registrar A) asked a colleague, who I refer to as officer B, to measure the boat because of the RGSS query and because there was no record of the boat's tonnage on file. On 9 March officer B measured the boat using the definition of length prescribed in the 1981 Order (paragraph 2.8) and then completed a declaration stating that he had measured the boat and found it to be 13.30 metres long and 19.41 tons in weight. On 13 March Customs amended the register to show the boat's length as 13.30 metres and its tonnage as 19.41. On the same day registrar A wrote to fishermen J asking them to return the certificate of registry in their possession. She said 'Please forward your certificate of registry for amendment now your vessel has been re-measured. The certificate is also due for renewal.' Fishermen J returned the certificate of registry to the local office and on 30 March registrar A endorsed the back of the certificate: 'Certificate valid until 18 April 1992'. Although registrar A deleted the previous date of expiry (18 April 1987) from the face of the certificate she omitted to amend the register length from 11.98 metres to 13.30 metres; she also omitted to amend the tonnage figure from 19.32 to 19.41 tons. Customs have no record of when they returned the certificate of registry to fishermen J.

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1988

2.13. In July 1988 the boat was advertised for sale. The advertisement stated the registered length of the boat as '39.3 ft' (11.98 metres) and its tonnage as '19.32'. On 15 December 1988 Mr P's son, with the financial assistance of Mr P, bought the boat, for £21,000, from fishermen J. The agents (paragraph 2.10) acted for both the Ps and fishermen J during the transaction. According to Mr P, he had believed the length of the boat to be less than 12 metres, as stated in the advertisement, because that had been confirmed by the (incorrect) register length of 11.98 metres shown on the certificate of registry, which he had seen before purchase of the boat.

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1989

2.14. On 1 January the boat was handed over to the Ps. Some time afterwards the agents applied to the RFV to register Mr P's son on the new register (paragraph 2.5) as the new owner of the boat. The RFV told the agents that their records gave the register length as 13.30 metres and so the boat would need a UK fishing vessel certificate before it could be re-registered (paragraphs 2.6 and 2.7). According to Mr P the agents told the RFV that the register length was shown as 11.98 metres on the certificate of registry; the RFV then asked Customs to measure the boat again, which they did, and they confirmed the register length as 13.30 metres. On 1 April, because Mr P's son had not by then been recorded as the owner of the boat on the new register, the registration of the boat on the Part IV and Part II registers was automatically cancelled and the certificate of registry ceased to be valid (paragraph 2.5.) On 5 June the local office wrote to the agents saying that when in March 1987 the certificate of registry had been presented to them (by fishermen J) for amendment a mistake had been made; the dimensions had not been altered by the local office.

1991

2.15. On 13 March 1991 Mr P's son sold the boat for £10,000 to a buyer who planned to use the boat as a diving tender.

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1993

2.16. On 6 September 1993 solicitors acting for Mr P and his son, whom I call solicitors X, wrote to registrar A (who had by then retired) asking her to confirm whether or not fishermen J had been told by the local office of the result of the re-measurement of the boat in March 1987. On 12 September Mr P wrote to registrar A. He said that after the boat had been measured again in 1989 and the register length confirmed as 13.30 metres he and his son had had to stop fishing. They had made enquiries and discovered that it would cost a minimum of £11,000, but possibly in excess of £16,000, to meet the safety regulations relating to boats of a length of 12 metres or over. He said that the agents had said that he should not ask the 'DT.I. examiner' to look at the boat because that would be the same as saying that he knew that the boat was over size. He said that it had not been economically viable for him and his son to pay for safety equipment as the boat was old and so the costs could not be recovered at a later sale. Mr P said that he and his son had then tied the boat up and then sold it a year later to repay money borrowed from the bank. He and his son had instructed solicitors but in the previous three years they had incurred costs of £2,100 without making any progress. Mr P asked registrar A whether the amendment made to the certificate of registry in 1987 (paragraph 2.10) was a genuine re-registration; he understood that normally a new certificate was issued amending the details on the old certificate (paragraph 2.3).

2.17 On 12 October the Member wrote to the Chairman of Customs and Excise saying that Mr P had suffered considerable financial loss because of Customs' error. He said that Mr P had bought the boat believing the register length to be under 12 metres. That length was significant because boats of over 12 metres were required to have a considerable amount of safety equipment (paragraph 2.6). Mr P had had to tie up the boat rather than go to sea with illegal safety arrangements. As the boat had been laid up Mr P had been unable to earn sufficient income to pay off loans raised with the bank and others. As the loans were outstanding, he had not been able to borrow further money to buy another boat and had lost the opportunity of purchasing a boat with the assistance of a 20% grant. He was considerably worse off financially. The Member said that Mr P had bought the boat in good faith believing the certificate was accurate. He said that in all the circumstances that appeared to have been quite a reasonable thing to do. He understood that registrar A might have accepted that she was responsible for the mistake. He asked the Chairman to consider compensating Mr P for his losses. On 13 October solicitors X wrote to the local office saying that as a consequence of their failure, in March 1987, to alter the recorded length of the boat on the certificate of registry, Mr P and his son had suffered financial loss. They asked the local office for an admission of liability and said that they would shortly send them a schedule of the losses incurred by Mr P and his son.

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2.18. On 22 October a surveyor at the local office, whom I refer to as officer C, told the Assistant Collector at Customs' regional office that the sequence of events in the Member's letter was correct as far as she could see and that an error had been made for which the local office had been responsible. On 24 October registrar A wrote to officer C saying that she had told Mr P, in a telephone conversation (after he had written to her on 12 September—paragraph 2.16), that it was her signature on the reverse of the certificate of registry renewed in March 1987 and that the certificate should never have been re-certified and sent back to fishermen J. She said that she had told Mr P that she was unable to add anything more because she had no recollection of the boat after six years away from registry work.

2.19. On 26 October officer C told the Assistant Collector that according to the RFV it was normal practice for the buyer of a boat to ask for a transcript of the register in order to verify that the seller owned the boat. There was no record on the new register of that having been done; not to do so was comparable to buying a house without a survey. Officer C said that registrar A had said that fishermen J had definitely known that the boat was to be and had been re-measured but she (registrar A) was not sure if they had been told the re-measured length. It was possible that fishermen J had accepted that the measurement had remained the same. Officer C said that although the Department of Trade and Industry had told Customs in 1985 that there was a problem with the registered length of the boat, no action to remeasure had been taken until March 1987; registrar A had been unable to explain that delay but had said that she often found papers in registry files where the appropriate action had not been taken timeously and had had to be rectified. Officer C said that officer B remembered measuring the boat in 1987 but could not recall who had been present or the subsequent events.

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2.20. On 26 November solicitors X wrote telling the local office that if they did not receive a satisfactory reply to their letter of 13 October (paragraph 2.17) they would begin court proceedings for the recovery of Mr P's losses.

1994

2.21. On 5 January 1994 a legal adviser to Customs wrote asking solicitors X for details of the losses said to have been sustained by Mr P as a result of the alleged negligence of Customs, and for other information about Mr P's purchase and sale of the boat. On 12 January in response to a request the Chief Registrar of British Ships told the legal adviser of Customs' previous statutory responsibilities to maintain Part IV and Part II registers, and that those registers had been superseded by the new register with the coming into force of Part II of the MSA 1988 (paragraphs 2.3, 2.4 and 2.5). He described the main duties of a registrar as scrutinising documents for registration, maintaining the register, issuing certificates of registry and, occasionally, measuring fishing boats. He said that a vessel fishing for profit had to be registered under Part IV and have a fishing licence, and in some cases a safety certificate which could not be issued unless the vessel was registered (paragraph 2.7). He said that the boat had originally been registered in the Part IV and Part II registers as 11.98 metres. The RGSS had thought that the boat should be longer than 11.98 metres because of the registered length of others of the same class, and so the boat had been remeasured in 1987 and the registered length had been found to be 13.30 metres. He said that the certificate of registry should have been amended with the correct length on presentation (by fishermen J) for renewal; that it was not was an error by Customs. However it was normal practice for anyone purchasing a vessel to apply to the registry for a transcript; had Mr P done so then he would have seen the correct length of the boat. He said that the boat was registered under Part II which was a title register so Mr P should have applied for a transcript of the register to check if there were any outstanding mortgages on the boat. However, neither Part II nor Part IV certificates carried a warning that the certificate of registry was not proof of title and that the register should be consulted for the correct details.

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2.22. On 24 February solicitors X sent the legal adviser documents relating to the Ps' purchase and sale of the boat, and on 15 June they sent a schedule of the Ps' alleged financial losses, of almost £39,000, which were in respect of loss of earnings, loss on the sale of the boat, interest charges, costs in maintaining the boat while laid up and solicitors' costs. They said that the Ps had also lost the opportunity to make a profit over a period of five years, to the value of between £32,000 and £58,750. On 23 June Customs instructed solicitors (Customs' solicitors) to act on their behalf and asked them to instruct counsel to advise on liability, quantum, and the prospects of defeating the Ps' claim should court proceedings be issued.

2.23. On 5 September Customs' solicitors sent to Customs counsel's opinion which concluded that on a 'worst case scenario' (which was that the Ps had bought the boat in sole reliance on the unamended certificate of register and did so in the knowledge that the 40 foot length was of considerable importance and without knowledge of the re-measurement in 1987), Customs were not liable for any losses incurred by the Ps. That opinion took account of legal precedent, including a case in which the courts had stated that liability for economic loss due to negligent mis-statement was confined to cases where the statement or advice had been given to a known recipient for a specific purpose of which the maker was aware, and upon which the recipient had relied and acted to his detriment. The opinion expressed the view that the requirements that the certificate of registry should be on a vessel at all times and that an owner should deliver it up on a sale of the vessel seemed to indicate that they were part of a system which would enable the whole registration scheme to be policed, in that the certificates were to enable the authorities to know and do things, and not the owners. On 3 November Customs wrote to solicitors X telling them that Customs were of the view that liability did not attach to Customs in respect of the economic loss allegedly sustained by Mr P and his son. The Chairman wrote to the Member on the same day enclosing a copy of the letter to solicitors X.

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2.24. On 6 December the legal adviser spoke to solicitors X and said that they were dealing with public funds and that Customs could not settle the case on an ex gratia basis, or as a without prejudice settlement, for a sum in the region of the £50,000 being sought by the Ps. He said that it might be possible to obtain consent to consider an ex gratia without prejudice payment of up to £5,000. According to the file note, solicitors X did not ask that that be pursued. That same day officer C prepared a report of further information that she had gathered, for counsel's use. She said that officer B had told her that he would have contacted fishermen J as a matter of course to find out where the boat was so that he could carry out the measurement. He measured boats when asked to do so but had not been aware of the significance of a register length of 12 metres. He had said that he would have done the work and advised registrar A of the outcome. He would not have told fishermen J. Officer C said that she had interviewed fishermen J who had denied any knowledge of the re-measurement of the boat in 1987. They had said that officer B had not told them of his intention to re-measure the boat and that they had not been advised of the outcome either orally or in writing. They had said that as far as they were concerned they had had no knowledge of the amended register length of the boat until they were told of the problem by the agents in June 1989. Fishermen J had confirmed that the boat had been altered during 1981 and 1982. They had not been present when the boat was measured in 1982. They said that if they had known the boat was over 12 metres they would not have had to spend so much buying a licence for another (larger) vessel. As the boat was regularly in one particular dock when it was not at sea, Customs might have known where to find it without contacting them in 1987. They had said that the certificate of registry had been given to the agent when the boat was put up for sale. They had said nothing to Mr P about the re-measurement because they had known nothing about it. Officer C said that she had spoken to the agents who had confirmed that they had acted for both fishermen J, as sellers, and the Ps, as buyers, of the boat. Alterations had been made to the rudder of the boat between November 1981 and February 1982 specifically to ensure that the register length of the boat was brought under 12 metres. They had usually held a copy of the boat's certificate of registry and could provide evidence that they had done so in 1978 and 1985 when the certificate had been used to obtain fishing licences. The agents had said they had had no knowledge of the re-measurement of the boat in March 1987. They had said that they had known that fishermen J had no outstanding financial obligations on the boat. Because of that, and also to save fees payable by the Ps, they had not asked for a transcript of the register. They had said that all the information available to them at the time of sale to the Ps indicated that the boat was under 12 metres. They had said that in 1987/1988 fishermen J had been negotiating the purchase of a larger vessel and had spent considerable time and money to acquire a licence for a boat over 40 feet in length. After fishermen J had taken delivery of the larger vessel in May 1988 the boat had then stood idle for some time. All the expense could have been saved if fishermen J had known that they already had a boat over 12 metres. Fishermen J had been receiving a government subsidy for the boat and might have been eligible for a larger sum if they had known the boat was bigger. The agents had said that in May 1990 fishermen J's solicitor had asked them for copies of any correspondence with the RFV about registering the boat from 1 April 1989. They had found an application form from RFV, for the new register, that had been received in the office before the boat was sold and which had shown the register length of the boat as 13.30 metres (paragraph 2.5). That was the first time they had seen the document; it had been filed without action because the sale of the boat had been imminent and they had decided to wait until the boat had been registered by Mr P. Officer C commented that the overall length of the boat had been registered as 45.5 feet before the alterations in 1982, to place the rudder stock inside the boat, and yet it had now been found to be virtually the same length. That drew attention to the accuracy of earlier measurements. She said that colleagues in the local office who remembered that type of work had said that it had been the practice (of Customs officers) to err in the owner's favour when measuring a boat; earlier measurements might therefore have been 'generous'. Registrar A, however, had worked very much 'by the book' and had insisted on accurate figures. On 8 December the legal adviser wrote to the Chairman's Private Secretary saying that an ex gratia payment of up to £5,000 could be justified. He said that it would be incongruous however to deny liability and then to follow such a denial with a substantial ex gratia payment.

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1995

2.25. On 4 January 1995 the Deputy Collector at Customs' Edinburgh office sent the legal adviser a copy of officer C's report of 6 December 1994. He said that officer C's reference to earlier officers' attitudes to accuracy of measurements and the practice to err in the trader's favour did not much help Customs' case (paragraph 2.24). He said that it would be better to recognise that as what would be of advantage to one trader at one time could easily turn into someone else's disadvantage at a later date and may have done so in the P's case. He said that registrar A's insistence on accurate figures and 'working by the book' could indicate that earlier practices were to the contrary.

2.26. On 15 June the agents wrote to solicitors X saying that, as agents for most of the fishing vessels in the area, they knew it was common practice to rely on the information in the certificate of registry when buying or selling a fishing boat. They said that that was the only official document that gave the buyer or seller details of the length and breadth and power of a fishing vessel. Thereafter Customs and solicitors X continued to correspond about an ex gratia or without prejudice payment to the Ps but they did not reach a settlement.

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Customs' response to the complaint

2.27. In her comments to the Ombudsman's predecessor the Chairman said that until 31 March 1989 Customs had been responsible for maintaining the Registry of British Ships. The main duties of Customs officers appointed as registrars were to scrutinise documents for registration, maintain the register, issue certificates of registry and, on occasions, measure fishing vessels. All vessels fishing for profit were required by law to register. Customs accepted that they had failed to amend the certificate of registry with the correct length of the boat. Because of that mistake they had, in December 1994, discussed the possibility of a 'without prejudice' offer of £5,000 with Mr P's solicitors who had said that they were asking for an ex gratia payment of £50,000 to cover Mr P's loss of earnings. Customs had taken legal advice to assess their liability and counsel had advised them that even on a 'worst case scenario' they were not liable for any economic loss that Mr P may have incurred.

Later developments

2.28. Customs told the Ombudsman's staff that although the wording of the Rules in the 1927 Order for measuring a fishing boat was different from that in the 1981 Order (paragraph 2.3), the Marine Safety Agency had told them that the two ways of measuring a boat produced the same result. Customs offered the opinion that 'length' under the 1927 Order was the equivalent of 'register length' under the 1981 Order. 'Overall length', mentioned only in the 1981 Order, was not specific to fishing boats but was used for the purpose of collision regulations which applied to all vessels. Customs said they were unable to give any guidance about the 'common practice' of relying on the certificate of registry, as referred to by the agents, when buying or selling a fishing boat (paragraph 2.26). As far as they could ascertain fishermen J had been selling the boat so that they could buy a bigger boat which qualified for a licence that would allow them to catch more fish. The expense that fishermen J and the agents had referred to had not arisen because the licence cost more but arose as a result of fishermen J buying a new boat unnecessarily (paragraph 2.24).

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Findings

2.29. Customs do not dispute that, after they re-measured the boat on 9 March 1987, they failed to amend the boat's certificate of registry so as to record the register length of the boat as 13.30 metres. Mr P complained that, as a direct consequence of that mistake, he and his son purchased the boat in the belief that its register length was less than 12 metres. Was it reasonable for Mr P to have accepted that the register length of the boat as recorded on the certificate of registry was correct and to have relied upon that record, without a sight of the transcript of the register, when buying the boat? Customs have claimed that it is the normal practice for the buyer of a boat to apply for a transcript of register before completing a sale. Had Mr P so applied, or instructed the agents to do so on his behalf, then Customs' error would have come to light. However the agents, who have said they act for most of the fishing vessels in the area, have said that it is common practice there to rely upon the measurements recorded in the certificate of registry when buying or selling a boat. Customs have been unable to provide any guidance on the local practices (paragraph 2.28) but they have not suggested that a prospective buyer should obtain a transcript solely in order to check the dimensions of a boat. The RGSS told Customs' legal adviser that a purpose of a register check is to establish whether the seller owns the boat concerned and whether there are any outstanding mortgages on the boat. Those are self-evidently significant considerations for any prospective purchaser but in Mr P's case he and his son relied for those matters upon the agents, who had managed the boat for fishermen J for many years and who were acting for them (the Ps) in the purchase of the boat (paragraph 2.24). The agents have said that they knew that fishermen J owned the boat and that they knew that there were no outstanding mortgages on it. The agents' view was that in those circumstances there was no need to apply for a transcript of the register, especially as to have done so would have increased Mr P's fees.

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2.30. The agents also knew about the structural alteration to the boat in 1982 (which had led to the recorded register length of the boat being reduced to below 12 metres). They held copies of the certificates of registry issued by Customs after that date, including the certificate renewed by Customs on 30 March 1987, shortly after a re-measurement, which (erroneously) continued to record the register length of the boat as being under 12 metres. Thus, up until the point that the agents received the application form sent them by the RFV, shortly before the sale of the boat to the Ps (paragraph 2.5), it is not apparent they had grounds to doubt the accuracy of the register length shown on the certificate or to apply for a transcript of the register. Unfortunately they filed the application form sent them by the RFV without identifying that it showed the boat's register length as 13.3 metres. Had they done so it is probable that the error in the certificate of registry would have come to light before Mr P purchased the boat. Further, had the agents not relied solely upon their own knowledge of the boat's history, which was not entirely comprehensive—they told Customs that they did not know of the re-measurement of 9 March 1987—then they might have applied for a transcript which would have revealed the discrepancy between that record and the certificate of registry. Nevertheless I do not consider that Mr P acted unreasonably by relying on the certificate of registry. That is an official document that, as a matter of statute, has to be carried on a fishing vessel at all times (paragraph 2.3); it is part of the documentary framework governing the licensing of fishing vessels (paragraph 2.7). The information recorded on a certificate of registry should, evidently, be correct. There was no reason then for Mr P to have asked the agents to obtain a transcript of register before purchase of the boat in order to satisfy himself as to the boat's dimensions. He would of course have been anxious to establish ownership and any liabilities against the boat, but he left that to the agents. He knew that they had managed the boat since its purchase by fishermen J, and it would therefore have been reasonable of him to have acted in the belief that they knew of any matters germane to his purchase.

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2.31. Customs' failure to amend the certificate of registry after the re-measurement of 9 March 1987 was not their only shortcoming. In September 1947 Customs recorded the register length of the boat as 45.5 feet (13.87 metres) (paragraph 2.9), in 1982 as 11.98 metres (paragraph 2.10) and in 1987 as 13.30 metres (paragraph 2.12). The only documented structural alteration to the boat over that period occurred in 1982 when its rudder stock was moved, resulting in a revised register length of 11.98 metres. Customs have not suggested that the change in the method of measuring fishing boats, after the 1981 Order came into force (paragraph 2.8), accounts for the discrepancy in recorded register lengths, and the Marine Safety Agency have said that both methods produce the same result (paragraph 2.28). However, according to the staff at the local office , it had been the practice (seemingly before the appointment of registrar A in 1984) to err in favour of an owner when measuring a boat and they thought that earlier measurements of the boat might have been 'generous'. That appears to have been accepted as credible by Customs (paragraph 2.25). If it was the case that before 1984 boat measurements were not always accurate that could explain the difference between the recorded register lengths of the boat in 1982 and 1987. The 1982 alterations to the boat had been commissioned in order to reduce its register length to less than 12 metres (paragraph 2.24). The recorded register length after the alterations, of less than 12 metres, was (in the light of subsequent measurements) clearly wrong, but it erred in a way that assisted the then owners at that time. I am unable to say whether or not that mistake was knowingly made but I consider that Customs made a serious error either when measuring, or when recording, the register length of the boat in 1982.

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2.32. Around July 1985 a surveyor from the Department of Trade and Industry questioned the accuracy of the 1982 measurement but Customs, possibly because papers were mis-filed, took no action. That was a lost opportunity to put matters right (paragraph 2.11). There is no record to suggest that Customs took no action because they thought the surveyor was simply unaware of the 1982 alteration. It is also unfortunate that after Customs re-measured the boat in 1987 they did not then tell the then owners, fishermen J, that the register length of the boat had been measured as in excess of 12 metres and that the boat would require a UK fishing vessel certificate before it could proceed to sea. That was a significant change in the circumstances of the boat. Although there was no formal requirement placed upon registrars to so advise owners of fishing boats of 12 metres or more—enforcement was a matter for the Department of Transport—Customs' guidance told registrars, when dealing with an application for registry, to take the opportunity of advising owners (if appropriate) of the requirement for a UK fishing vessel certificate (paragraph 2.7). Whilst the 1987 re-measurement did not take place within the context of an application for registry it nevertheless afforded an opportunity for Customs to have told the owners of the revised requirement. Had Customs done so then later events may well have taken a different turn.

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2.33. I was concerned at the possibility that the dimensions of the boat shown on the register might have been incorrect for years and possibly throughout most of the registration of the boat prior to the 1987 re-measurement. It appears too that the certificate of registry may have been incorrect for much of the boat's life. Not only the certificate of registry but also the register, upon which Customs say reliance should be placed, seems certain to have an incorrect record of the boat's measurements at least between 1982 and 1987. Most pertinent of all, changes in the record of the register length in 1987, and the certificate of registry, were necessary only because of Customs' wrong measurement in 1982. Had that mistake not been made and had Customs taken action in 1985, after the boat's register length had been queried, I consider it most likely that the final error in 1987 would not have arisen. Given that I do not see Customs' actions regarding the boat as just a simple error which had—so Mr P complains for himself and his son—serious consequences. The originating mistake in 1982 (paragraph 2.30) was serious and might, by the admission of Customs' officers, be rooted in unacceptable past local practices. I criticise Customs for that while recognising the time which has passed since those events occurred.

2.34. I consider finally the question of redress. The Chairman has said that their legal advice (paragraph 2.23) is that Customs are not liable for any economic loss that Mr P may have incurred as a result of the incorrect entry on the certificate of registry. The question of Customs' legal liability arising from their errors is a matter for the courts. In investigating Mr P's complaint I have been concerned only with whether Customs have carried out their administrative responsibilities correctly and fairly and with the effect of their actions on Mr P and his son. The Ombudsman's approach to redress has been accepted by Treasury Ministers before the Select Committee on the Parliamentary Commissioner for Administration (now the Select Committee on Public Administration). It is that a person who has suffered an injustice as a result of maladministration should, as far as possible, be put back in the position that she or he would have been in had the maladministration not occurred. In Mr P's case, whilst I considered that the agents' actions contributed to the outcome of events (paragraphs 2.29 and 2.30), I considered that but for the mistakes made by Customs it was unlikely that Mr P and his son would have bought the boat from fishermen J at the price they paid. Whilst I welcomed Customs' suggestion of an ex gratia payment of £5,000 to Mr P (paragraph 2.27), in recognition of their failure to amend the certificate of registry in 1987, I did not consider that that took adequate account of Customs' earlier mistakes which lay behind the need to re-measure the boat in 1987. I therefore asked the Chairman to reconsider the matter. The Chairman said that she considered that an ex gratia payment of £12,000 would be appropriate in recognition of the fact that Customs had made mistakes. She said that she was prepared to make that offer on a 'without prejudice' basis, consistent with the belief that Customs had no legal liability for the losses incurred by Mr P. It seemed to me that that offer, which in effect made good the capital loss that Mr P said that he had incurred on selling the boat in 1991, was, in all the circumstances of the case, a satisfactory measure of redress. I saw no grounds upon which to ask the Chairman to consider further compensation.

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Conclusion

2.35. Customs made mistakes when recording the register length of the boat and missed opportunities to correct matters. Those failings, and other events, for which Customs were not responsible, resulted in significant financial loss for Mr P. I regard the Chairman's offer to make Mr P an ex gratia payment of £12,000 as a suitable outcome to a justified complaint.

24 September 1998

Appendix

Abbreviations used and their meaning

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Last updated: 26 April 2006