Decisions

TATC File No. MP-0038-33
MoT File No. P20091118-502-00079

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jorgen Madsen, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canada Shipping Act, 2001, S.C. 2001, c. 26, section 87


Review Determination
Barrie LePitre


Decision: October 12, 2011

Citation: Madsen v. Canada (Minister of Transport), 2011 TATCE 25 (Review)

Heard at Vancouver, British Columbia, on May 5, 2011

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Jorgen Madsen, has contravened section 87 of the Canada Shipping Act, 2001. The violation is proven and the penalty of $1 250 is confirmed.

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.

TATC File No.: MP-0038-33 (Jorgen Madsen)

TATC File No.: MP-0037-37 (Carousel Charters and Sales Ltd.)

I. BACKGROUND

[1] The Minister of Transport ("Minister") issued a Notice of Violation dated November 25, 2009 to Jorgen Madsen, in Vancouver, British Columbia, ("Madsen Notice"). The Minister also issued a Notice of Violation, dated November 25, 2009, to Carousel Charters and Sales Ltd. c/o Accent Cruises, in Vancouver, British Columbia ("Carousel Notice"). The matters to which the Madsen Notice and the Carousel Notice refer were reviewed together at a Review Hearing held on May 5, 2011.

[2] In both the Madsen Notice and the Carousel Notice, the portion headed "Vessel particulars" indicates the following: the name of the vessel as the M/V Carousel II; the port of registry as Vancouver, British Columbia; and the type of vessel as Passenger – Cargo.

A. The Madsen Notice

[3] In the Madsen Notice, the portion headed "Individual particulars" indicates the following: the name of the individual as Jorgen Madsen; the employer of the individual as Carousel Charters and Sales Ltd., Vancouver, British Columbia; and the certificate grade of the individual as (CL60+) - master, limited for a vessel of 60 gross tonnage or more.

[4] In Schedule "A" to the Madsen Notice, the details and penalty for the alleged violation are specified as follows:

No.

Violation

Penalty

 

On or about October 23, 2009, at or near City of Vancouver in the province of British Columbia, Mr. Jorgen Madsen was employed on board a Canadian vessel, namely, M.V. "Carousel 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 that Act.

$1 250

B. The Carousel Notice

[5] In the Carousel Notice, the portion headed "Authorized representative particulars" indicates: the name of the Authorized Representative as Mr. Ken Milne; and the address of the Authorized Representative as Carousel Charters and Sales Ltd., c/o Accent Cruises, in Vancouver, British Columbia.

[6] In Schedule "A" to the Carousel Notice, the details and penalty for the alleged violation are specified as follows:

No.

Violation

Penalty

 

On or about October 23, 2009, at or near City of Vancouver in the province of British Columbia, Mr. Jorgen Madsen was employed on board a Canadian vessel, namely, M.V. Carousel II, owned by Carousel Charters and Sales Ltd., 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 that Act.

Pursuant to subsection 238(2) of that Act, CAROUSEL CHARTERS & SALES LTD. is being proceeded against as the employer of Mr. Jorgen Madsen in respect of this violation and is liable for the penalty provided as punishment for it.

$5 000

II. STATUTES, REGULATIONS AND POLICIES 

[7] The definitions in Section 2 of the Canada Shipping Act, 2001 ("Act") include the following applicable definitions:

"authorized representative" means, in respect of a Canadian vessel, the person referred to in subsection 14(1) and, in respect of a foreign vessel, the master.

"Canadian maritime document" means a licence, permit, certificate or other document that is issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) to verify that the person to whom or vessel to which it is issued has met requirements under that Part.

"Canadian vessel" means a vessel registered or listed under Part 2 (Registration, Listing and Recording)

[8] Subsection 14(1), section 87 and paragraph 100(a) of the Act provide as follows:

14. (1) Every Canadian vessel must have a person — the authorized representative — who is responsible under this Act for acting with respect to all matters relating to the vessel that are not otherwise assigned by this Act to any other person.

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.

100. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

(a) specifying the positions that shall be occupied on board Canadian vessels, or classes of Canadian vessels, their minimum number and the types and classes of Canadian maritime documents that persons in those positions shall hold;

[9] Section 210 of the Act provides the applicable definition of "relevant provision":

"relevant provision" means a provision of this Act or the regulations that the Minister is responsible for administering [….]

[10] Subparagraph 229(1)(b)(i), subsection 232(1), section 232.1, subsection 238(2) and paragraphs 244(f) and (h) of the Act provide as follows:

229.(1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may

[….]

(b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out

(i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay,

[….]

232.(1) A person or vessel served with a notice of violation under paragraph 229(1)(b) must

(a) pay the amount of the penalty; or

(b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

232.1(1) On receipt of a request filed under paragraph 232(1)(b), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing. On receipt of a request filed under paragraph 232(1)(b), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.

(2) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

(3) The burden is on the Minister to establish that the person or vessel committed the violation referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.

(4) The member may confirm the Minister's decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.

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.

244. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

[….]

(f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision that is an offence under this Act;

(h) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine if the violation were proceeded with by way of summary conviction;

[11] Paragraph 202(3)(a), subparagraphs 202(3)(b)(ii) and (iii), paragraph 212(4)(a) and subsections 212(5) and (6) of the Marine Personnel Regulations, SOR-2007-115, ("MPRs"), which are made under the Act, provide as follows:

202.(3)  The authorized representative of a Canadian vessel shall apply to the Minister for the following document and the Minister shall issue the document following that application:

(a) in the case of a Safety Convention vessel, a Safe Manning Document that complies with IMO Resolution A.890(21), Principles of Safe Manning, or any other resolution that replaces it; and

(b) in the case of a vessel that is not a Safety Convention vessel and that is required to carry an inspection certificate, a Safe Manning Document, valid for a maximum of 5 years after the day of its issuance, that specifies

[….]

(ii) the certificates required to be held by the members of the complement,

(iii) any endorsements, conditions or limitations on the certificates referred to in subparagraph (ii),

212.(4) Every vessel that is engaged on a voyage shall have on board, and its authorized representative shall employ

(a) subject to subsection (6), a master;

(5) Every person who holds a certificate set out in column 1 of table 1 to this section may perform the duties of a position referred to in any of columns 2 to 5 on board a vessel that is engaged on a class of voyage set out in the heading of the column that applies to that position, subject to any limitations indicated.

(6) Every person who holds a certificate set out in column 1 of table 2 to this section may perform the duties of a position referred to in any of columns 2 to 5 on board a vessel engaged on a limited, contiguous waters voyage whose only activity is in respect of the catch or harvest of another vessel or aquaculture facility or a fishing vessel that is engaged on a class of voyage set out in the heading to that column, subject to any limitations indicated.

[12] Table 1 of section 212 of the MPRs provides, in part, as follows:

TABLE 1

MASTER AND MATE CERTIFICATES

Item

Certificate

Unlimited Voyage

Near Coastal Voyage, Class 1

Near Coastal Voyage, Class 2

Sheltered Waters Voyage

[….]

14.

[….]

Master, Limited for a vessel of 60 gross tonnage or more

N/A

N/A

Master, on any vessel and in any area specified on the certificate.

See note 2.

Master, on any vessel and in any area specified on the certificate

Note 2: The certificate referred to in column 1 authorizes a near coastal voyage, Class 2 if the voyage is a "minor waters voyage" as defined in the Canada Shipping Act in the version that was in force before the coming into force of the Act.

[13] Subsections 2(1) and 2(2) of the Administrative Monetary Penalties Regulations, SOR/2008-97 ("AMPRs"), which are made under the Act, provide as follows:

2.(1) The contravention of a provision of the Act set out in column 1 of the schedule is designated as a violation that may be proceeded with in accordance with sections 229 to 242 of the Act and by the issuance of a notice of violation.

(2) The range of penalties set out in column 2 of the schedule is the range of penalties in respect of a violation set out in column 1.

[14] Item 26 of the Schedule to the AMPRs sets out the range of penalties for a violation of section 87 of the Act as a range from $1 250 to $5 000.

[15] Under the policy framework described in the section on penalty ranges appearing within the Regulatory Impact Analysis Statement ("RIAS") that accompanies the AMPRs, a violation of section 87 of the Act would be regarded as a high-gravity violation. As such, the minimum penalty payable by an individual for a first violation would be $1 250, while the minimum penalty payable by a corporation for a first violation would be $6 000.

[16] Section 1.2 of Annex 3 to International Maritime Organization Resolution A.890(21), that annex being titled Guidance on Contents and Model Form of Minimum Safe Manning Document, provides as follows:

1 The following information should be included in the minimum safe manning document

issued by the Administration specifying the minimum safe manning level:

[…]

.2 a table showing the number and grades/capacities of the personnel required to be carried, together with any special conditions or other remarks;

III. EVIDENCE

A. Minister of Transport's Evidence

1) Sanjay Gupta

[17] The Minister called Sanjay Gupta as a witness. He is a Senior Marine Inspector in the Vancouver Inspection Services Office of Transport Canada.

[18] On October 24, 2009, Mr. Gupta was informed by his Acting Manager of an incident involving the M/V Carousel II. On October 26, 2009, Mr. Gupta spoke with Mr. Milne to follow-up regarding the incident. Mr. Gupta testified that he had previously inspected the M/V Carousel II and knew that Mr. Milne was the Authorized Representative of the vessel. Mr. Gupta received a Marine Report of the incident by fax from Ken Milne of Accent Cruises on October 26, 2009 (Exhibit M-1). The report refers to the flag of the vessel as ‘Canadian', the type of vessel as ‘Passenger' and the port of registry of the vessel as ‘Vancouver'. The report also indicates that the incident, involving a port engine mechanical problem, occurred during an evening passenger-cruise type of voyage on October 23, 2009. The report includes a list of vessel personnel on the day of the incident, which names Jorgen Madsen as Captain.

[19] Mr. Gupta then testified about certificates of competency issued to Jorgen Madsen. First, Mr. Gupta referred to a certificate which was issued to Mr. Madsen on October 5, 2007, which expires on October 4, 2012, and which indicates that it is valid on the following vessels: M/V Malecite; M/V Eloquent; and M/V Vancouver Spirit (Exhibit M-2, ‘Madsen Certificate No. 1'). On Madsen Certificate No. 1, each of the three named vessels is shown as exceeding 60 gross tons. Mr. Gupta indicated that, as Madsen Certificate No. 1 did not mention the name of the vessel which Mr. Madsen was operating (the M/V Carousel II), the certificate was considered invalid (with regard to the operation of that vessel). He also testified that a computer search did not provide any indication that Mr. Madsen was authorized to operate the M/V Carousel II at the relevant time.

[20] In a meeting with Mr. Gupta on November 13, 2009, Mr. Madsen acknowledged that he was the Master of the vessel at the time of the incident on October 23, 2009. Later, Mr. Madsen told Mr. Gupta that he was unaware that Madsen Certificate No. 1 did not carry the name of the M/V Carousel II and that he would go to the office of Transport Canada to get his certificate validated for that vessel. During Mr. Gupta's testimony, the examination-in-chief also included the following question and answer regarding the information provided to Mr. Gupta by Mr. Madsen (page 16 of the transcript):

Q Did he also confirm at the time that he was the employee of Carousel Tours?

A Yes, he confirmed that he was the employee of Carousel - - (inaudible).

While the name at the end of the answer is partially inaudible, the "Yes" at the beginning of the answer would suggest that Mr. Madsen was employed by an entity called "Carousel Tours". The question may have been intended to refer to Carousel Charters and Sales Ltd., but it actually referred to "Carousel Tours"; therefore, the answer actually refers to "Carousel Tours".

[21] Mr. Gupta further testified that he obtained a copy of Mr. Madsen's current certificate the day before the Hearing. He referred to a certificate which was issued to Mr. Madsen on December 2, 2009, which expires on October 4, 2012, and which is valid on the following vessels: M/V Malecite; M/V Eloquent; M/V Vancouver Spirit; and M/V Carousel II (Exhibit M‑3, ‘Madsen Certificate No. 2'). On the certificate, each of the four named vessels is shown as exceeding 60 gross tons. The second page of Madsen Certificate No. 2 consists of the first page of Madsen Certificate No. 1 on which it has been stamped "this certificate is no longer valid for use at sea." Mr. Gupta indicated that this means Madsen Certificate No. 1 is no longer valid.

[22] On cross-examination, Mr. Gupta was referred to a certificate which was issued to Kenneth James Milne on May 9, 2007 and which is valid until May 8, 2012 (Exhibit A-1, ‘Milne Certificate'). Mr. Gupta indicated that the Milne Certificate is valid on any passenger ship of not more than 60 gross tons operating within the geographical limits specified on the certificate. Mr. Gupta was also referred to a certificate which was issued to Mr. Todd Clifford Barclay on April 24, 2008, and which expires on April 23, 2013 (Exhibit A-2, ‘Barclay Certificate'). Mr. Gupta indicated that the Barclay Certificate allows for a near coastal voyage as a master on any type of 500 gross tonnage vessel. Lastly, Mr. Gupta was asked about Madsen Certificate No. 1. He indicated that Mr. Madsen would be restricted to the three vessels named on the certificate. He also specified that the certificate was only valid for operating the three specified vessels in Vancouver Harbour, Howe Sound and the Fraser River.

B. Applicant's Evidence

(1) Jorgen Madsen

[23] Jorgen Madsen was called as a witness. He was asked about Madsen Certificate No. 1. Mr. Madsen indicated that he thought the certificate was good for any vessel of the same size. He had never been told by an inspector that he could not drive a vessel because it was not named on his certificate. In asking the Transport Canada office personnel what was meant by the limitation of a vessel of 60 gross tonnage or more, Mr. Madsen understood that he could operate vessels of more than 100 tons, but was uncertain about what exactly that meant. He believed that the only restrictions on the certificate were the geographical limits specified on Madsen Certificate No. 1. Mr. Madsen indicated that the absence of the M/V Carousel II's name on Madsen Certificate No. 1 could have been a misunderstanding because when he asked for the vessel name to be added to his certificate, it was done right away, as though it should have been listed on the certificate in the first place.

[24] On cross-examination, Mr. Madsen acknowledged that the M/V Carousel II exceeds 60 tons and, therefore, Mr. Milne would not be allowed to operate that vessel under the Milne Certificate because it is limited to vessels of 60 tons or less. He agreed that Madsen Certificate No. 1 had geographical limits and he also agreed that it did not give him authority to run a luxury liner of 5 000 tons. As he could not operate every vessel of 60 tons or more, he did not really understand what exactly the vessel limit meant. He then acknowledged that Madsen Certificate No. 1 indicated that the vessels he could operate were the M/V Malecite, the M/V Eloquent and the M/V Vancouver Spirit. With respect to the Barclay Certificate, Mr. Madsen agreed that Mr. Barclay could operate any vessel up to 500 tons. Mr. Madsen confirmed that Madsen Certificate No. 2, which includes the M/V Carousel II as a named vessel, was issued to him after the incident of October 23, 2009.

[25] On re-examination, Mr. Madsen was asked about a certificate which was issued to him on February 4, 2004 and which is valid until February 3, 2009 (Exhibit A-3,‘Madsen Certificate No. 3'). Mr. Madsen stated that Madsen Certificate No. 3 was issued to him as First Mate on a vessel named the M/V Burrard Queen, a vessel of 220 tons, and he therefore did not feel that he was operating the M/V Carousel II illegally because he had already been authorized to operate a larger vessel.

(2) Kenneth James Milne

[26] Mr. Milne was called as a witness. He stated that: "I'm the owner of the Carousel Charters and Sales of the motor vessel in question here". Having just referred to his company, Mr. Milne also testified that "we use our captains on multiple vessels". As to whether each captain has to be endorsed for each vessel, Mr. Milne indicated that "I find it very confusing and I'm sure that my Captain Jorgen finds it confusing as well". He also testified that his company has a good history of compliance, with no prior incidents.

[27] On cross-examination, Mr. Milne was asked about Madsen Certificate No. 1. He agreed that the certificate says: "Master, limited for a vessel of 60 gross tonnage or more". Mr. Milne also agreed that it has geographical restrictions. However, he did not agree that the words "Valid on M.V. Malecite, M.V. Eloquent and M.V. Vancouver Spirit" restrict the certificate to the operation of only those three vessels. Mr. Milne regards Madsen Certificate No. 1 as having allowed Mr. Madsen to run any vessel of 60 tons or more within the specified geographical limits, and he interprets the naming of the three vessels as simply additional endorsements, even though each of the three is over 60 tons.

IV. ARGUMENTS

A. Minister of Transport

[28] The Minister submitted that: a) Mr. Madsen was operating the M/V Carousel II on the date in question; b) that he was not authorized to operate the vessel on that date; c) that he only became authorized to operate that vessel after that date; and d) that Carousel Charters and Sales Ltd. was his employer. The Minister also submits that a "Master, limited to a vessel of 60 gross tonnage or more" type of certificate is limited to the vessel or vessels named in the certificate. There are other types of certificates, however, that do not name the vessels to which they are limited.

[29] In response to a question from the Tribunal Member, the Minister submitted that, while the penalty of $1 250 assessed against Mr. Madsen is at the minimum end of the range allowable, the penalty of $5 000 assessed against Carousel Charters and Sales Ltd. has been assessed at the maximum end of that range for two reasons. First, the penalty range for section 87 of the Act was established in the AMPRs without contemplating that a company could be vicariously liable for its employee's actions under this section through the application of subsection 238(2) of the Act. Second, as a matter of policy, $6 000 would normally be the amount of penalty assessed against a company for a first violation where the violation is a serious one.

[30] In response to another question from the Tribunal Member, the Minister submitted that a penalty assessed against a company through subsection 238(2) of the Act can be set according to the penalty policy applicable to a company rather than the penalty policy applicable to an individual for which the company is vicariously liable (as long as the penalty is within the limits prescribed by law).

B. Applicants

[31] The Applicants submitted that Mr. Madsen was a qualified Master of the M/V Carousel II at the time of the incident. Madsen Certificate No. 1 is ambiguous and could mislead one to believe that a person would be allowed to drive a vessel of 60 tons or more (even if it is not named in the certificate). Moreover, Madsen Certificate No. 1 does not indicate that it is restricted to the three named vessels, rather it acknowledges that it is valid with regard to them.

[32] The Applicants request that the penalty be reduced because of the lack of clarity in Madsen Certificate No. 1 and because of the "oversight" of not having the M/V Carousel II named on that certificate. The Applicants also request a more reasonable penalty and a warning because there was no loss of life, no immediate danger, and penalties are more appropriate for severe incidents.

V. ANALYSIS

[33] As section 87 of the Act provides, every person who is employed on board a Canadian vessel in a position which requires a certificate under Part 3 of the Act shall hold the certificate and comply with its terms and conditions. As a result, the elements of the allegations in the Madsen Notice that the Minister must prove (on a balance of probabilities) are that, on or about October 23, 2009:

(i) Jorgen Madsen was employed on board the M/V Carousel II;

(ii) the M/V Carousel II was a Canadian vessel;

(iii) in the position in which Mr. Madsen was employed on board the M/V Carousel II, he should have held a certificate as required under Part 3 of the Act;

(iv) Mr. Madsen did not hold the required certificate nor comply with its terms and conditions.

[34] Under subsection 238(2) of the Act, a person is liable for a violation that is committed by an employee of the person acting in the course of the employee's employment, whether or not the employee who actually committed the violation is identified or proceeded against in accordance with the Act. As a result, the elements of the allegations in the Carousel Notice that the Minister must prove (on a balance of probabilities) are that, on or about October 23, 2009:

(i) Jorgen Madsen was employed on board the M/V Carousel II;

(ii) the M/V Carousel II was a Canadian vessel;

(iii) in the position in which Mr. Madsen was employed on board the M/V Carousel II, he should have held a certificate as required under Part 3 of the Act;

(iv) Mr. Madsen did not hold the required certificate nor comply with its terms and conditions;

(v) in committing a violation of section 87 of the Act, Mr. Madsen was an employee of Carousel Charters and Sales Ltd. and was acting in the course of his employment.

[35] With respect to the first element of the allegations, there is the Marine Report of October 26, 2009 (Exhibit M-1), which was sent from Ken Milne at Accent Cruises to Mr. Gupta in relation to the incident of October 23, 2009 involving the M/V Carousel II. The report contains a list of vessel personnel, including Jorgen Madsen as Captain. There was also a meeting between Mr. Gupta and Jorgen Madsen on November 13, 2009, during which Mr. Madsen confirmed that he was the Master at the time of the incident on October 23, 2009. For the voyage on October 23, 2009, subsection 212(4) of the MPRs required the M/V Carousel II to have a master on board, and for its authorized representative to employ a master. Mr. Gupta's evidence indicated that Mr. Milne is the Authorized Representative of the M/V Carousel II. During his testimony at one point, having just referred to his company, Mr. Milne indicated that "we use our captains on multiple vessels"; but, at another point, he referred to "my Captain Jorgen". Mr. Gupta's examination-in-chief refers to Mr. Madsen as an employee of "Carousel Tours". However, the Minister submits that Carousel Charters and Sales Ltd. was Mr. Madsen's employer. While the evidence is unclear as to the name of the entity that employed Mr. Madsen, I have determined that he was employed on board the M/V Carousel II on October 23, 2009 and, therefore, the first element has been proven.

[36] With respect to the second element of the allegations, the Marine Report of October 26, 2009 (Exhibit M-1) refers to the flag of the vessel as ‘Canadian' and the port of registry of the vessel as ‘Vancouver'. There were no submissions by the parties regarding this element of the alleged violation. While it would have been preferable to have more express evidence that the M/V Carousel II is a Canadian vessel, I have determined that the second element has been proven.

[37] With respect to the third element of the allegations, a Safe Manning Document, issued pursuant to subsection 202(3) of the MPRs and specifying the certificates required to be held by the members of the complement of the M/V Carousel II, was not put forward as evidence at the Hearing. However, subsection 212(5) of the MPRs provides that every person holding a certificate set out in column 1 of table 1 of section 212 may perform the duties of a position referred to in any of columns 2 to 5, on board a vessel that is engaged on a class of voyage set out in the heading of the column that applies to that position, subject to any limitations indicated. In item 14 of that table, the type of certificate set out in column 1 is Master, Limited for a vessel of 60 gross tonnage or more. Madsen Certificate No. 1 was that type of certificate. Also, in item 14, while no applicable duties are referred to in column 2 (for unlimited voyages) or in column 3 (for near coastal voyages, class 1), the duties of master are referred to in column 4 (for certain near coastal voyages, class 2) and in column 5 (for sheltered waters voyages), on any vessel and in any area specified on the certificate. So, under the MPRs, it was Madsen Certificate No. 1 that authorized Mr. Madsen to perform the duties of master for a vessel of 60 gross tonnage or more on certain voyages, subject to limitations specified on the certificate. The MPRs are made under various parts of the Act, including Part 3. While more express evidence of the required certificate would have been preferable, I have determined that the third element has been proven.

[38] With respect to the fourth element of the allegations, columns 4 and 5 of item 14 of table 1 of section 212 of the MPRs provided for Mr. Madsen to perform the duties of master, "on any vessel and in any area specified on the certificate" for certain "near coastal voyages, class 2", or for "sheltered waters voyages". I interpret the words "specified on the certificate" as being applicable to the words "on any vessel" as well as to the words "in any area". To interpret the words "specified on the certificate" as applicable only to the words "in any area" would cause the words "on any vessel" to become either unnecessary or to conflict with the words "for a vessel of 60 gross tonnage or more" in column 1 of item 14. Madsen Certificate No. 1 specified three vessels on which Mr. Madsen could perform the duties of master and specified three areas in which he could perform those duties. On October 23, 2009, Mr. Madsen performed the duties of master on a vessel that was not specified on Madsen Certificate No. 1. Therefore, I have determined that the fourth element has been proven.

[39] With respect to the fifth element of the allegations in the Carousel Notice, while there was sufficient evidence to determine that Mr. Madsen was employed on board the M/V Carousel II on October 23, 2009 (as indicated in paragraph [35] above), there is insufficient evidence as to whether Carousel Charters and Sales Ltd. was his employer at that time and whether Mr. Madsen was acting in the course of his employment with that company at the time the violation by Mr. Madsen occurred. Furthermore, the alleged liability is against Carousel Charters and Sales Ltd., rather than Mr. Milne or an entity called "Carousel Tours". Therefore, I have determined that the fifth element has not been proven.

[40] My authority regarding penalty is provided under subsection 232.1(4) of the Act, which reads as follows:

(4) The member may confirm the Minister's decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.

[41] Pursuant to paragraph 244(h) of the Act, item 26 of the Schedule to the AMPRs sets out the range of penalties for a violation of section 87 of the Act from $1 250 to $5 000. I am bound by that range. The penalty that has been assessed by the Minister against Mr. Madsen is the minimum one in the range. I confirm the penalty of $1 250.

[42] As I have determined that the alleged liability of Carousel Charters and Sales Ltd. is not proven, I dismiss the penalty against Carousel Charters and Sales Ltd.

VI DETERMINATION

TATC File No. MP-0038-33:

[43] The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Jorgen Madsen, has contravened section 87 of the Canada Shipping Act, 2001. The violation is proven and the penalty of $1 250 is confirmed.

TATC File No. MP-0037-37:

[44] The Minister of Transport did not prove, on a balance of probabilities, that the Applicant, Carousel Charters and Sales Ltd., is liable for a violation of section 87 of the Canada Shipping Act, 2001. The liability is not proven and the penalty of $5 000 is dismissed.

October 12, 2011

Barrie LePitre

Member