A fishing family who maintained a mooring for their boat in a cove over more than six decades ended up losing their rights through a series of mistakes by the Department of Marine and Ports, the Ombudsman for Bermuda has found.

Michael DeSilva submitted a special report on the matter to the House of Assembly on Friday, inviting MPs to consider the circumstances and take “appropriate action”.

He highlighted that the department had agreed to put mooring piles used to secure the family’s boat in their name, but then reversed its decision, “citing technical grounds and effectively changing its policies retroactively”.

Mr DeSilva added that the Ombudsman’s office had sent recommendations to the department on the issue — only to get a response from Crown counsel acting as its legal representatives.

“This legalistic approach undermines the purpose of the Ombudsman process, which is intended to be an informal dispute resolution process that is free from the legal constraints of a court,” Mr DeSilva wrote.

The family, given the surname of Fisher to protect their privacy, brought their complaint to the Ombudsman after discovering unauthorised boats using their mooring, and finding their mooring buoys “unlawfully removed”.

Between a Dock and a Hard Place, the Ombudsman’s report, was submitted to the Speaker of the House, with copies sent to Government House as well as the Senate.

The Department of Marine and Ports was approached for comment on Friday by The Royal Gazette.

The complaint came from the children of the original “Mr Fisher”, who died in 2020.

The report said his “longstanding mooring presence”, documented as far back as 1957, ran into its first challenge in 1999.

In that year, an unnamed company acquired property near by and installed a floating dock that obstructed Mr Fisher’s mooring.

After he objected, and was supported by the Development Applications Board and transport officials, the company’s application for retroactive approval of its dock was rejected, the report said.

The company submitted a revised application in 2000, and Mr Fisher dropped his complaint the following year after the company agreed to put in three mooring piles for his vessel, forming a physical barrier between its dock and the fishing boat.

“Piles” refer to poles driven into the seabed.

This arrangement was approved by the transport director on the condition that the piles were installed at the company’s expense and were registered with the department to Mr Fisher.

The DAB issued its approval in May 2001, but specifically instructed that “the mooring piles as approved must be registered in the name of the person who will be using the piles”.

The Ombudsman’s report added: “Despite the clear directive from the DAB for the department to register the piles to Mr Fisher, this was never done.

“Instead, the piles were incorrectly registered to the company and the mooring was registered to Mr Fisher who used the piles as part of his mooring.

“The error remained unchanged, and perhaps unnoticed, for nearly 20 years. In each of those years, the piles were registered by the company and the mooring was registered by Mr Fisher.”

The fisherman gave power of attorney to his children in 2013.

In 2017, as his health declined, they contacted the Department of Marine and Ports to transfer the registration of the mooring to their names.

The transfer would have included the mooring as well as the piles that should have been registered to Mr Fisher in 2001.

The matter escalated in April 2020, during the shelter-in-place restrictions for the Covid-19 pandemic, when the family found unauthorised boats tied to their mooring and their buoys cut away.

They contacted the marine and ports department and provided copies of the 2001 ruling by the DAB, but the department failed to take action.

Mr Fisher died that September and, in March 2021, after “months of back-and-forth communication”, the report stated that the department agreed to comply, and that the piles would get registered in Mr Fisher’s name at the next renewal date.

However, the situation was complicated after the department learnt of Mr Fisher’s death and retracted its agreement with the family.

The Ombudsman wrote: “The reason given by the department was that the power of attorney expired on Mr Fisher’s death and, therefore, the complainants’ names would be removed from the mooring registration.

“The department proposed instead that while the mooring would remain in Mr Fisher’s name and could be transferred to his children per departmental policy, the piles would remain registered to the company.”

The report said the department had a “longstanding courtesy policy that gave the surviving spouse of a registered mooring owner — or alternatively, the owner’s children — the option of transferring registration of the mooring to their names”.

The complainants objected, and insisted that the piles should be registered to the family in accordance with the original agreement.

Frustrations were compounded after the family discovered that they could no longer access the online registration portal.

Department staff informed them that their father was still listed as the registered owner, despite the 2017 transfer of the mooring into their names.

They said that the 2017 request from the complainants had been processed as a power-of-attorney arrangement for paying registration fees — not as a transfer of ownership.

Mr DeSilva highlighted five instances of maladministration in the bureaucratic headache, including failure to use proper channels for complaints.

However, the department’s subsequent legal comeback challenged the Ombudsman’s jurisdiction, citing the length of time and claiming Mr Fisher’s death meant that his rights “fell away”.

It acknowledged “unfortunate decisions” made, but insisted the Ombudsman’s recommendations had applied to issues concerning Mr Fisher, not the complainants.

The department added that it had dropped its courtesy policy for families, which Mr DeSilva said amounted to “changing its policy retroactively”.

Mr DeSilva rejected the argument that the complaint was too late, noting that maladministration had continued up to 2021.

He added: “Accordingly, the complaint with our office is well within time.”

Mr DeSilva said that the Ombudsman aimed to return the complainants to “the position they would have been in if the maladministration had not occurred”.

He added: “This is the cornerstone of the Ombudsman’s work.

“It is intended to be an informal dispute resolution process that is free from the legal constraints of the court, not an extension of it.”

Mr DeSilva said the failure of the department to address the issue “perpetuates the unfairness experienced by the Fisher family”.

He called the department’s “adversarial and legalistic response” a missed opportunity to fix the issue and “restore public confidence”.

Mr DeSilva said its stance was “confounding” given the department has not disputed the fundamental facts underlying the error in 2001.

The special report called on MPs to consider “the implications of this case for good public administration and confidence in government service, and to further consider taking appropriate action to address the maladministration identified in this report”.

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