Decisions

TATC File No. MA-0017-33
MoT File No. A20090511-100-00032

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Matthew Daley, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:


Review Determination
C. Michael Keefe


Decision: December 9, 2009

Citation: Daley v. Canada (Minister of Transport), 2009 TATCE 36 (review)

Heard at St. John's, Newfoundland and Labrador, on November 9, 2009

Held: Matthew Daley has violated section 107 of the Canada Shipping Act, 2001. I confirm the monetary penalty of $1 250, as imposed by the Minister of Transport. 

The total amount of $1 250 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty-five (35) days of service of this determination.

I. BACKGROUND

[1] On May 11, 2009, the Minister of Transport issued a notice of violation to the Applicant, Matthew Daley, for a violation of section 107 of the Canada Shipping Act, 2001 ("Act"). It is alleged that on April 14, 2009, the Applicant proceeded on a voyage and that, as the master of the vessel, 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:

On or about April 14, 2009 at or near St. Joseph's in the province of Newfoundland and Labrador, Matthew Daley, being the master of a Canadian vessel, namely, Atlanticat, 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 that Act.

Penalty: $1,250.00

[3] On June 9, 2009, Matthew Daley filed a request for a review with the Transportation Appeal Tribunal of Canada.

II. STATUTES, REGULATIONS AND POLICIES

[4] Section 107 of the Act provides the following:

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.

[5] Section 10 of the Vessel Certificates Regulations, SOR/2007-31, states the following:

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

[6] Based on the Notice of Violation, I identified the following elements to be proven by the Minister:

Matthew Daley was the master of a Canadian vessel that embarked on a voyage on or about April 14, 2009, without having obtained all Canadian maritime documents required under Part 4 of the Act.

IV. EVIDENCE

A. Minister of Transport

(1) Carl Bruce

[7] Since 1988, Carl Bruce has been employed as a marine surveyor by Transport Canada, Marine Safety, Marystown District Office in Newfoundland and Labrador. He testified that he was familiar with the Atlanticat and identified it as being a small fishing vessel of less than 150 gross tons.

[8] An excerpt from the Transport Canada's Vessel Registration Query System, showing registration information for the Atlanticat, was identified by Mr. Bruce as the vessel's Certificate of Registry (Exhibit M-1). The inspection certificate and the record of safety equipment that were issued to the Atlanticat on March 3, 2009, show an expiry date of April 4, 2009 (Exhibit M‑2). A marine safety notice (SI-07), consisting of a list of deficiencies, was issued to the Atlanticat on March 3, 2009 (Exhibit M‑3).

[9] Mr. Bruce testified that a ship inspection report database exists within Transport Canada, Marine Safety. It contains information on vessels, including their history, types of machinery and other items. Mr. Bruce stated that there is a section indicating when vessels were inspected and when they received their certificates. When asked if he checked the database to see if the Atlanticat was properly certified for the voyage in question, Mr. Bruce replied that the database was incomplete. He explained that this occasionally occurs due to surveyor workload. He further stated that on April 16, 2009, while he was on board the Atlanticat in Marystown reviewing the SI-07, he asked the captain to produce the Ship's Inspection Certificate and noticed that it was expired. He testified that the Atlanticat had arrived in Marystown with an inspection certificate that was not valid.

[10] Under cross-examination, Mr. Bruce stated that he could extend a certificate for a maximum of two months, depending on the nature of any outstanding deficiencies. He explained that the regional director has the authority to extend a certificate for an additional three months, up to a maximum of five months. To obtain the extension, it would require a written request to either the attending surveyor or the regional director. Andrew Daley asked if Mr. Bruce would accept a written request from him, if, as an operator, he wanted an extension. Mr. Bruce replied that he would accept such a request.

B. Applicant

(1) Andrew Daley

[11] Andrew Daley recounted a series of events that he felt had brought him and the Applicant to the review hearing. He had leased the vessel from the owner, and as part of the lease agreement, he had to have the vessel re-certified. He testified that he had previously been the master of the vessel and was presently the vessel's operations manager.

[12] During Andrew Daley's testimony, two exhibits were filed in evidence. The first is a letter dated March 30, 2009, addressed to Transport Canada, Marine Safety, to the attention of C. Cooper, requesting a three-month extension to the Ship's Inspection Certificate (Exhibit A‑1). Andrew Daley testified that on April 1, 2009, Mr. Cooper informed him that he would not accept his request and that the request had to originate from Mr. Bon Pelley. The second exhibit is a letter dated April 3, 2009, from Mr. Pelley to Jim Kenney of Transport Canada, Marine Safety in St. John's, requesting the three-month extension (Exhibit A‑2).

[13] Andrew Daley testified that several efforts, verbally and in writing, had been made to Transport Canada, Marine Safety, to obtain an extension beyond April 4, 2009, but nothing was forthcoming. As he had not received an extension, Andrew Daley stated that he made a business decision and moved the vessel without a valid certificate. He testified that the vessel was moved to the dry dock in Marystown, to complete an underwater inspection prior to obtaining a valid certificate.

[14] Under cross-examination, Andrew Daley stated that he did not make any follow-up telephone calls to Transport Canada, Marine Safety, inquiring as to the status of Mr. Pelley's request. He was left with the impression from Mr. Cooper that it was not his position to do so. He stated, however, that he spoke several times to Mr. Pelley, trying to resolve the situation. He said that on April 14, 2009, at approximately 12:00 a.m., the ship departed St. Joseph's, Newfoundland and Labrador. When asked whose decision it was to depart with an expired certificate, he replied that it was a joint decision between Mr. Pelley and himself, with Matthew Daley being given the choice to depart "if he so wanted to".

V. ARGUMENTS

A. Minister of Transport

[15] The Minister's representative spoke at length about the mandate of Transport Canada, Marine Safety, and the importance of having valid Canadian maritime documents on board a ship. As regards the penalty, he stated that while this is considered to be a serious offence, it is at the low end of the scale and that the particulars of the case warranted the minimum penalty permitted, being $1 250, by the Administrative Monetary Penalties Regulations, SOR/2008-97.

B. Applicant

[16] Andrew Daley pointed out that the vessel made the voyage in order to be dry docked, as part of the Transport Canada, Marine Safety inspection requirements. He indicated that there were no deficiencies noted with the ship's safety equipment. He stated that he used due diligence in trying to obtain an extension to the inspection certificate and thereby avoid the violation. This was in the form of one request, presented verbally and later in writing on his part, and one written request on the part of the owner of the vessel. He said that he understood the owner might have made several verbal requests as well. He stated that the decision to move the vessel without a valid inspection certificate was based on economic survival. He suggested that a written warning would have been a more appropriate way for Transport Canada, Marine Safety, to address the violation.

VI. LEGISLATION AND POLICY ANALYSIS

[17] The statements in the description of the violation at Schedule A of the Notice of Violation were not disputed by the Applicant.

[18] As regards the excerpt from the Transport Canada's Vessel Registration Query System (Exhibit M-1), I do not accept it as being the vessel's Certificate of Registry or a copy thereof. It does not resemble nor is it in the format of an official Canadian vessel certificate of registry. An acceptable alternative to a copy of this document would have been issued by the ship registrar, showing the particulars for this ship, dated and attested as being so by the registrar, in accordance with subsection 265(1) of the Act.

[19] Andrew Daley has recounted what appears to have been a frustrating attempt to obtain a valid inspection certificate. I am left to wonder why someone would be treated in such a manner when the Minister has, in his closing arguments, described the importance that Transport Canada attaches to having a valid inspection certificate.

[20] Andrew Daley identified himself as the person leasing the Atlanticat, as the ship's operations manager, and prior to the voyage in question, the ship's master. Matthew Daley was identified by Andrew Daley as the master of the Atlanticat for the voyage from St. Joseph's to Marystown. Mr. Bruce has identified Matthew Daley as the person from whom he received the expired inspection certificate on April 16, 2009, while he was on board conducting an inspection at Marystown. Mr. Bruce has testified that a research of Transport Canada, Marine Safety's records, shows that, at the time of the voyage in question, the Atlanticat did not hold a valid inspection certificate. Andrew Daley has acknowledged under cross-examination that the Atlanticat departed St. Joseph's on April 14, 2009, with an expired certificate. Based on this, I conclude that the elements of the offence have been proven.

[21] Andrew Daley testified that he, acting as the ship's operations manager, exercised due diligence in attempting to obtain a valid inspection certificate for the voyage from St. Joseph's to Marystown.

[22] Subsection 254(1) of the Act states as follows:

254. (1) No person may be found guilty of an offence under this Act if the person establishes that they exercised due diligence to prevent its commission.

A person who seeks the benefit of the defence provided by subsection 254(1) of the Act must prove, on a balance of probabilities, that all due diligence had been exercised to prevent the violation.

[23] The Notice of Violation was issued to Matthew Daley, and to avoid liability it must be shown that he, or in this case, others acting on his behalf, took all reasonable care to avoid the commission of the offence. Andrew Daley testified that he made a request, verbally and in writing, for an extension to the inspection certificate, and that Mr. Pelley also made such a request. Andrew Daley also indicated that he had no definite knowledge of further verbal requests made by the owner, nor did he call the owner as a witness to testify as to any further efforts that might have been made. Under cross‑examination, he stated that he made no follow‑up telephone calls to Transport Canada, Marine Safety, inquiring as to the status of the request for an extension.

[24] No evidence was introduced that Matthew Daley, the master of the vessel, did anything at all to obtain a valid certificate or to avoid committing the offence. A decision to depart St. Joseph's for Marystown on April 14, 2009, without a valid inspection certificate, was made by Andrew Daley and Mr. Pelley. Andrew Daley has testified that it was an economic decision. Matthew Daley was given the choice to proceed or not, and he chose to proceed. The efforts, described by Andrew Daley, that were made to obtain a valid certificate strike me as somewhat lacking. The evidence does not lead me to accept that the Applicant, or others acting on his behalf, took all reasonable care to avoid committing the offence.

VII. DETERMINATION

[25] The Administrative Monetary Penalties Regulations set the minimum penalty for a violation of section 107 of the Act at $1 250. I confirm the decision of the Minister to impose a monetary penalty of $1 250 on the Applicant.

December 9, 2009

C. Michael Keefe

Member