Decisions

TATC File No. MA-003-33
MoT File No. A20081027-100-00013

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Martin Darryl Way, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
sections 87, 107 of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
C. Michael Keefe


Decision: June 22, 2009

Heard at Corner Brook, Newfoundland and Labrador, on March 31, 2009

Held:

Count 1 − Martin Darryl Way has contravened section 87 of the Canada Shipping Act, 2001. I confirm the monetary penalty of $1250, as imposed by the Minister.

Count 2 − The Minister did not prove the allegation that Martin Darryl Way contravened section 107 of the Canada Shipping Act, 2001 on a balance of probabilities. Therefore, I dismiss the monetary penalty of $1250, as imposed by the Minister.

The total amount of $1250 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

Files Nos. MA-003-33

MA-004-37

I. BACKGROUND

A. File MA-003-33 (Martin Darryl Way)

[1] On October 20, 2008, the Minister of Transport issued a notice of violation to the applicant, Martin Darryl Way, for contraventions of sections 87 and 107 of the Canada Shipping Act, 2001 (Act). It is alleged that on May 2, 2008, while on a voyage on the fishing vessel, Miss Way II, the applicant did not hold a valid certificate and that, as the master, he failed to ensure that the vessel had all the Canadian maritime documents required.

[2] Schedule A of the notice of violation states the following:

1) On or about May 2, 2008, at or near 50o39'N, 57o44'W near the Grand Banks in the province of Newfoundland, Martin Daryl Way was employed on board a Canadian vessel, namely, the "Miss Way II", in a position in respect of which a certificate is required under Part 3 of the Canada Shipping Act, 2001 without holding that certificate, thereby contravening section 87 of the Canada Shipping Act, 2001.

Monetary Penalty Assessed: $1,250.00

2) On or about May 2, 2008, at or near 50o39'N, 57o44'W near the Grand Banks in the province of Newfoundland, Martin Daryl Way, being the master of a Canadian vessel, namely, the "Miss Way II", failed to ensure that all Canadian maritime documents required under Part 4 of the Canada Shipping Act, 2001 had been obtained before the vessel embarked on a voyage from a port in Canada, thereby contravening section 107 of the Canada Shipping Act, 2001.

Monetary Penalty Assessed: $1,250.00

B. File MA-004-37 (Roland Way Jr.)

[3] On October 20, 2008, the Minister of Transport also issued a notice of violation to the applicant, Roland Way Jr., for a contravention of section 107 of the Act. It is alleged that on May 2, 2008, Martin Daryl Way contravened section 107 of the Act for which Roland Way Jr. is being proceeded against by way of vicarious liability under subsection 238(2) of the Act.

[4] Schedule A of the notice of violation states the following:

On or about May 2, 2008, at or near 50º39'N, 57º44'W near the Grand Banks in the province of Newfoundland, Martin Darryl Way, being the master of a Canadian vessel, namely, the "Miss Way II", failed to ensure that all Canadian maritime documents required under Part 4 of the Canada Shipping Act, 2001 had been obtained before the vessel embarked on a voyage from a port in Canada, thereby contravening section 107 of the Canada Shipping Act, 2001.

Pursuant to subsection 238(2) of that Act, Roland Way Jr. is being proceeded against as the employer or principal of Martin Darryl Way in respect of this offence and is liable to the penalty provided as punishment for it.

Monetary Penalty Assessed: $6,000.00

II. LAW

[5] Sections 87 and 107 and subsection 282(2) of the Canada Shipping Act, 2001 provide the following:

87. Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions.

107. The master of a Canadian vessel shall, before the vessel embarks on a voyage from a port in Canada, ensure that all of the Canadian maritime documents required under this Part have been obtained.

238. (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee's employment or within the scope of the agent's authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.

[6] Section 10 of the Vessel Certificates Regulations, SOR 2007-31, pursuant to paragraph 120(1)(e) of the Canada Shipping Act 2001, states as follows:

10. (1) No vessel shall engage on a voyage unless it holds a certificate issued under subsection (2).

(2) On application by the authorized representative of a vessel, the Minister shall issue an inspection certificate to the vessel if the requirements under the Act that apply in respect of the vessel when engaged in its intended service are met.

III. ELEMENTS TO BE PROVEN

[7] Based on the notices of violation, I identified the following elements to be proven by the Minister in order to satisfy his cases:

File No. MA-003-33 (Martin Darryl Way)

Count 1:

On May 2, 2008, Martin Darryl Way was employed on a vessel, was in a position of which a certificate was required and did not hold that certificate.

Count 2:

On May 2, 2008, Martin Darryl Way was the master of a vessel that embarked on a voyage from a port in Canada, and the vessel did not have all the Canadian maritime documents required under part 4 of the Canada Shipping Act, 2001.

File No. MA-004-37 (Roland Way Jr.)

On May 2, 2008, Martin Darryl Way was the master, acting within the scope of his authority as an employee or agent of Roland Way Jr., on a vessel that embarked on a voyage from a port in Canada, and the vessel did not have all the Canadian maritime documents required under part 4 of the Canada Shipping Act, 2001.

IV. EVIDENCE

A. Minister of Transport

(1) Captain Clement Laurence Murphy

[8] Captain Clement Laurence Murphy is a marine safety inspector at Transport Canada Marine Safety in St. John's, Newfoundland and Labrador. He testified on three documents introduced as evidence.

[9] Captain Murphy stated that he obtained a document from the vessel registrar in St. John's, Newfoundland and Labrador, (exhibit M‑1). This document shows some of the registration details of the fishing vessel, Miss Way II. The authorised representative is shown as being Roland Way Jr.

[10] An inspection certificate of Miss Way II was also obtained from the Transport Canada Marine Safety (TCMS) Office (exhibit M-2). Captain Murphy stated that in the section entitled "Limitations on Use of Certificate", it is indicated that the certificate is valid until November 30, 2007. Captain Murphy testified that a search of the TCMS records and files showed there were no renewals or applications for renewals or new certificates issued between November 30, 2007 and May 2, 2008.

[11] Captain Murphy also testified that he obtained the printout from the ACES database (exhibit M-3), a TCMS database that contains information on seafarer certification. He indicated that a query had been made to determine the validity of the fishing master class 4 certificate issued to Martin Darryl Way. The printout provides information held in relation to Martin Darryl Way. It shows that he held a CFV4 (fishing master, fourth-class certificate). In the section entitled "Examiner's Certificate", at line "Certificate Limitations", it is indicated "CFV4 valid until 2008‑03-10". Captain Murphy explained that further research showed no indication of action towards renewal of the certificate.

(2) Angus Fillier

[12] Angus Fillier is an employee of SeaWatch, a company contracted by Fisheries and Oceans Canada to monitor fishing activity.

[13] As a fishery observer, Mr. Fillier joined the Miss Way II on May 2, 2008 at 3:00 a.m. He testified that the vessel skippers were in a rush and wanted to leave port. At that time, he asked if the vessel's inspection certificate was valid. Mr. Fillier explained that when joining a fishing vessel, it is a normal procedure to see the vessel's certificate to determine its validity and the status of lifesaving equipment. When asked by the Minister's representative if he received further information concerning the ship's safety inspection certificate, Mr. Fillier replied that at 3:00 a.m., they said that the certificate was valid. He further testified that later the same day, around 9:00 a.m., he asked to see the certificate to look at the expiry date, and he saw that it was expired. He asked them if there was any extension or another certificate aboard. The answer was "no". When asked if there was acknowledgement that the certificate had expired, Mr. Fillier replied in the positive.

[14] During cross-examination, Mr. Fillier stated that he had spoken with Roland Way Jr. on May 1, 2008, asking if he could make the trip as an observer. He stated that Roland Way Jr. told him to be there at 3:00 a.m. the next day. When queried, Mr. Fillier replied that he was sure that he had asked Roland Way Jr. if everything was in order upon joining the ship.

[15] I questioned Mr. Fillier's use of the term they in relation to his testimony concerning the ship's certificate, asking as to whom he was referring. He replied "Mr. Way Sr.", pointing at Roland Way Jr. and adding "the skipper that was steering at the time".

[16] As Roland Way Jr. did not appear to be fully familiar with the review process, I allowed some leeway for him in questioning the witness and for seeking some general clarification from the Minister's representative. Following Mr. Fillier's testimony and cross‑examination, Roland Way Jr. stated that the position in the notice of violation was correct but that the position was not within 200 miles of the Grand Banks of Newfoundland.

B. Applicant

(1) Roland Way Jr.

[17] Roland Way Jr. read from a prepared statement, and this was accepted as his testimony. He testified that in the year 2000, modifications were made to the Miss Way II that resulted in the gross tonnage increasing from 68 to 103 tons and that this in turn resulted in the requirement for the captain and mate to have a fishing master class 3 and class 4 certificate respectively. Both Roland Way Jr. and Martin Darryl Way held fishing master class 4 certificates. Roland Way Jr. testified that each year following the modifications, the TCMS Office in Corner Brook would issue him an exemption from the requirement to hold a fishing master class 3 certificate on the understanding that he would make efforts to upgrade his class 4 certificate. He testified that in the spring of 2008 he applied for an exemption but did not receive one at that time. He testified that he and Martin Darryl Way proceeded to fish with the understanding that, as per previous years, an exemption would be forthcoming. He testified that he was the master of the vessel, and that in September 2008, the vessel underwent modifications that resulted in the vessel's tonnage being reduced such that two fishing master class 4 certificates would meet the requirements. Roland Way Jr. spoke at length regarding the safety record and history of the enterprise and the crew of the Miss Way II.

[18] During cross-examination, Roland Way Jr. testified that he was not aware of the changes to the Act and the Crewing Regulations, SOR 2005-136. He acknowledged that his last exemption had expired in November 2007, and that he was then required to have on board one fishing master class 3 and one fishing master class 4 certificate. He explained that the work to modify the vessel's tonnage downward had been undertaken in the summer of 2008 and did not contest the expiry dates of any certificate.

V. DISCUSSION

[19] I find Mr. Fillier to have given credible evidence that on May 2, 2008, he departed port on board of the Miss Way II and was shown an inspection certificate that was not valid.

[20] During his testimony, Mr. Fillier referred to "the skipper who was steering at the time" and identified that person to be Roland Way Jr. He testified that his request to join the vessel as an observer was made to, and granted by, Roland Way Jr. This indicates to me that Roland Way Jr. was exercising the authority of the ship's master.

[21] Those statements, coupled with Roland Way Jr.'s testimony which was not questioned by the Minister, indicate that Roland Way Jr. was the master of the vessel and that it was he who would obtain the exemptions from the TCMS Office in Corner Brook each year. It leads me to conclude that if Martin Darryl Way was on board the Miss Way II, he was acting in a position other than master.

[22] The Minister's witnesses did not present any evidence that Martin Darryl Way was on board the Miss Way II during the voyage of May 2, 2008.

[23] The types and classes of certificates required of personnel are specified in the Marine Personnel Regulations, SOR 2007-115, pursuant to paragraph 100(a) of the Act. For fishing vessels, section 212 of those regulations requires vessels the size of the Miss Way II, when on a near coastal voyage, to have on board two certified persons, a master and a mate. The mate must hold, at the minimum a fishing master class 4 certificate.

[24] I find Roland Way Jr. to have given credible evidence. He acknowledged that Martin Darryl Way's fishing master class 4 certificate was expired, without presenting any evidence that some other person on board the vessel was acting in the position of mate on the voyage in question. This leads me to conclude, on the balance of probabilities, that Martin Darryl Way was on board, acting in the position of mate.

[25] I accept the evidence presented by Captain Murphy, concerning the inspection certificate and his testimony in regard to the vessel's inspection certificate not being valid on May 2, 2008, and that it had ceased to be valid on November 30, 2007. I also accept the evidence concerning the document obtained from the vessel registrar in St. John's, Newfoundland and Labrador that Roland Way Jr. was the authorised representative of the Miss Way II. The content of neither of these exhibits were contested by the applicant. Had they been contested, the Minister's case would have been better served to have produced the documents according to section 265 of the Canada Shipping Act, 2001.

[26] I accept the evidence presented by Captain Murphy, concerning the printout from the ACES database that Martin Darryl Way's certificate as fishing master class 4 was valid until March 10, 2008 and therefore not valid on May 2, 2008.

VI. DETERMINATION

A. File No. MA-003-33 (Martin Darryl Way)

[27]  Count 1 − Martin Darryl Way has contravened section 87 of the Canada Shipping Act, 2001. I confirm the monetary penalty of $1250, as imposed by the Minister. It is the minimum monetary penalty for this type of violation.

[28] Count 2 − The Minister did not prove, on the balance of probabilities, that Martin Daryl Way was the master of the Miss Way II while engaged on a voyage without the proper maritime documents, as required under Part 4 of the Canada Shipping Act, 2001. I therefore dismiss the monetary penalty of $1250, as imposed by the Minister.

B. File No. MA-004-37 (Roland Way Jr.)

[29] The charge against Roland Way Jr. is that he is vicariously liable for the actions of Martin Darryl Way, master of the Miss Way II, in violation of section 107 of the Canada Shipping Act, 2001. The Minister did not prove, on the balance of probabilities, that Martin Darryl Way was the master of the Miss Way II.

[30] A violation of section 107 of the Canada Shipping Act, 2001 can only be attributed to the master of a vessel. I am convinced from the evidence presented that Roland Way Jr. was the master rather than Martin Darryl Way.

[31] Incorrectly attributing the violation and then naming the wrong party in the notice of violation is not a minor mistake. Roland Way Jr. cannot be held vicariously responsible for an act that has been incorrectly attributed to Martin Darryl Way, neither can Roland Way Jr. be held vicariously liable for an act that he might have committed.

[32] By attributing the violation to the wrong person and choosing the incorrect section of the Act to pursue the charge, the case against Roland Way Jr. has failed. Consequently, I find for Roland Way Jr. and dismiss the monetary penalty of $6000.

June 22, 2009

C. Michael Keefe

Member