TATC File No. MA-0119-38
MoT File No. A20110609-101-00435
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
M/V Abigail Grace, Applicant
- and -
Minister of Transport, Respondent
Canada Shipping Act, 2001, S.C. 2001, c. 26; section 187
C. Michael Keefe
Decision: September 25, 2012
Citation: M/V Abigail Grace v. Canada (Minister of Transport), 2012 TATCE 26 (Review)
Heard in St. John's, Newfoundland and Labrador on June 12, 2012
Held: The Minister has proven, on a balance of probabilities, that the Applicant, M/V Abigail Grace, violated section 187 of the Canada Shipping Act, 2001. The monetary penalty of $6 000 is confirmed.
The total amount of $6 000 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.
 On June 9, 2011, the Minister of Transport ("Minister") issued a Notice of Violation ("Notice") to Quinlan Brothers Limited ("Quinlan Brothers"), the Authorized Representative of the M/V Abigail Grace, for a violation of section 187 of the Canada Shipping Act, 2001, S.C. 2001 c. 26 ("CSA, 2001"). Schedule A of the Notice states the following:
On or about 4 June, 2011, at or near Bay Do Vordo, in the province of Newfoundland and Labrador, M/V Abigail Grace, official number 826501, did discharge a prescribed pollutant thereby contravening section 187 of the Canada Shipping Act, 2001.
 A penalty of $6 000 was assessed by the Minister.
 The testimony during the Review Hearing revealed that the incident occurred at Bay de Verde in the province of Newfoundland and Labrador, and not at a location called Bay Do Vordo.
 By way of a letter, dated June 22, 2011, addressed to the Transportation Appeal Tribunal of Canada ("Tribunal"), Quinlan Brothers requested a review of the facts of the alleged violation.
II. STATUTE AND REGULATIONS
 These provisions of the CSA, 2001 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.
187. No person or vessel shall discharge a prescribed pollutant, except in accordance with the regulations made under this Part or a permit granted under Division 3 of Part 7 of the Canadian Environmental Protection Act, 1999.
190.(1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the protection of the marine environment, including regulations
(a) prescribing pollutants for the purpose of sections 187 and 189…
191.(1) Every person who, or vessel that, contravenes any of the following commits an offence:
(a) section 187 (discharge of a pollutant);
(2) Every person or vessel that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
(4) In determining the punishment under subsection (2), the court may have regard to the following factors:
(a) the harm or risk of harm caused by the offence;
(b) an estimate of the total costs of clean-up, of harm caused, and of the best available mitigation measures;
(c) the remedial action taken, or proposed to be taken, by the offender to mitigate the harm;
(d) whether the discharge or anticipated discharge was reported in accordance with the regulations made under paragraph 190(1)(b);
(e) any economic benefits accruing to the offender that, but for the offence, the offender would not have received; and
(f) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or to minimize pollution.
 Subsections 1(1) and 3(1), and paragraph 4(a) of the Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, SOR/2007-86, ("Pollution Regulations"), in force under the Act at the time of the incident, state as follows:
1.(1) The following definitions apply in these Regulations.
"oily mixture" means a mixture with any oil content.
3.(1) Unless otherwise specified, these Regulations apply to
(a) a Canadian ship anywhere…
4. For the purposes of Part XV of the Act, the following substances are prescribed to be pollutants:
(a) oil and any oily mixture;
III. ELEMENTS TO BE PROVEN
 Based on the Notice, I identified the following elements to be proven by the Minister to satisfy his case:
- There was a discharge of a prescribed pollutant;
- The discharge originated from the M/V Abigail Grace;
- The discharge was in excess of that permitted by the Pollution Regulations.
A. Minister of Transport
(1) Jamie Smith
 At the time of the incident, Jamie Smith was employed by Irving Energy as a Fuel Delivery Truck Driver. He testified that on June 4, 2011, he was in Bay de Verde, Newfoundland and Labrador, and was involved in delivering dyed diesel fuel from his truck to the M/V Abigail Grace. He testified that the refueling hose was first led towards the stern of the vessel where tanks were located, then later the hose was moved forward to other tanks near the bow. Mr. Smith stated that upon noticing an overflow at the forward location, he immediately shut off the fuel delivery pump on his truck. He testified that he saw spilled diesel fuel on deck; that he saw it escape over the side of the ship; and that he saw it flow into the harbour waters. He estimated that approximately 10 litres of diesel fuel entered the water.
 Under cross‑examination, Mr. Smith stated that the M/V Abigail Grace was alongside the wharf next to the fish plant in Bay de Verde at the time of the incident. He explained that his company's policy is that fuel delivery persons are not to go on board ship, but rather they are to pass the fuel delivery hose to a person on board ship and that person then manages the on board refueling operation.
 He testified that while the hose was aft, he witnessed someone on board ship standing by the hose during the refueling. Mr. Smith testified that when the hose was moved forward, he could see the refueling area, and that he saw no one standing by when an overflow spill occurred. He reported the incident to his dispatcher, advising that approximately 10 litres had been spilled.
 Under cross‑examination, when asked how he could have determined that it was approximately 10 litres, he replied that he could see a sheen on the water. When questioned as to how much oil it takes to create a sheen on the water, Mr. Smith acknowledged that one litre could create a large sheen. He stated his estimate of 10 litres is not a guess, but an approximation based on his previous experience, as well as his attempt at cleaning the spilled diesel fuel from the side of the ship. He could not see what might have gone into the water on the other side of the M/V Abigail Grace. He agreed that from the time he noticed the spill until he shut off the delivery pump, approximately five seconds had passed.
 The Applicant's Representative indicated that the disclosure documents state that approximately 2 litres were spilled. Mr. Smith replied that he was not involved in the preparation of that report and it was his testimony that approximately 10 litres were spilled. When asked who the captain was at the time of the incident, Mr. Smith replied that he did not know. He had no idea as to the names of any of the vessel's complement.
 I asked Mr. Smith what was on the end of the hose that he passed to the person on board ship. He stated it was a nozzle with a shut off valve, similar to the nozzle used when filling a domestic furnace fuel tank. The person on board ship had control of the operation as regards flow and Mr. Smith had the ability to turn on and off the main pump at the truck.
(1) Robin Quinlan
 Robin Quinlan stated that he is the Vice-President of Quinlan Brothers and that the owner of the M/V Abigail Grace is Quinlan Brothers.
 Mr. Quinlan gave some background as to the fishing industry in Bay de Verde, his fish plant operations, and their reliance on harbour waters remaining free of pollution.
 He stated that there is no dispute that a spill occurred. He is, however, disappointed that the information he was given in disclosure, which stated that the spill was 2 litres, is inaccurate. He is not aware that 10 litres were spilled. He stated that it takes more than five seconds to spill 10 litres from a delivery truck.
 Mr. Quinlan testified that he discussed the spill with the captain of the M/V Abigail Grace and the captain advised that only "a drop" had been spilled and that the ship's crew had cleaned it up "as best they could".
 Mr. Quinlan testified that the Harbour Master attended the spill and reported to him that the spill had been cleaned up adequately.
 Mr. Quinlan stated that there are 50 or 60 boats operating out of Bay de Verde, and that there is fuel spilled every day. Quinlan Brothers owns 15 fishing vessels operating out of Bay de Verde and each of these are refueled 10 to 12 times per year, from April to October. Quinlan Brothers has never been charged with or notified of a spill from any of their fishing vessels.
 There was no cross‑examination of this witness.
A. Minister of Transport
 The Minister's Representative references section 187 of CSA, 2001 and states that any amount of a spilled, prescribed pollutant qualifies as a discharge. He submits the elements of the offence have been established through the testimony of Mr. Smith when he described fuel running down the side of the ship and into the water.
 As regards the penalty having been set at $6 000, the Minister's Representative refers to the Regulatory Impact Analysis Statement ("RIAS") that accompanies the Administrative Monetary Penalties Regulations, SOR/2008‑97 ("AMPRs"). An offence under section 187 of the CSA, 2001 is considered to have high seriousness and as a matter of departmental policy, vessels and corporations are subject to higher penalties than individuals. The penalty in this case was set at $6 000 because the owners of the M/V Abigail Grace are considered to be a large operation. A penalty of $6 000 is an appropriate amount to attract the attention of a large operation, and get it to put in place procedures to ensure that a similar incident does not occur again. A penalty of $1 250 could be disregarded and written off as a cost of operating.
 The Applicant does not dispute that the offence has been established, but rather disputes the amount of the penalty.
 The Notice is against the M/V Abigail Grace and not the Quinlan Brothers. He does not agree that the M/V Abigail Grace, a fishing vessel of less than 100 feet, is a large operation. This is a first offence for a relatively small spill that was cleaned up immediately by the crew of the vessel. He submits there is uncertainty as to the amount spilled. Mr. Smith is not qualified as an expert in determining the amount spilled by looking at a sheen on the water.
 He states that while Quinlan Brothers owns the vessel, the fishing license is owned by an individual fisherman. Their operation does not have a large corporate structure with corporately owned vessels, such as those companies that might be washing tanks at sea.
 As regards having adequate procedures in place, the Applicant submits that the persons on board are well‑trained and they have absorbent material on board to deal with spills. He submits that there has been no demonstration of incompetence on the part of the crew and that the cause of the spill has not been determined.
 He submits that a fine of $6 000 is not necessary, whereas a penalty closer to $1 250 would be more appropriate.
 Mr. Smith testified that he was delivering diesel fuel to the M/V Abigail Grace when he saw fuel spill onto the deck of the ship, run down its side, then flow into the harbour waters. He testified that he attempted to clean the fuel from the side of the ship. As diesel fuel is a mixture of various petroleum‑derived components, it qualifies as an oily mixture and therefore is a prescribed pollutant. I am convinced from Mr. Smith's testimony that a prescribed pollutant entered the harbour waters from the M/V Abigail Grace. On a balance of probabilities, the first two elements of the offence have been established.
 There are exceptions to the prohibition against discharging a prescribed pollutant and these are described in the Pollution Regulations at sections 41 and 42. These exceptions are permitted only when a vessel is underway. As the M/V Abigail Grace was secured to the wharf at Bay de Verde at the time of the incident, any amount regardless of quantity is an offence. Therefore, the third and final element of the offence has been established.
 The only eyewitness to testify was Mr. Smith, and while he might have experience seeing diesel fuel upon water, I do not consider him an expert at accurately estimating the amount that might have been spilled. One need not be qualified as an expert to give an opinion as to the amount of oil on water as there are published guidelines that permit non-experts to perform the simple calculation required to make a fairly accurate estimate of quantity. However, there has been no evidence that this was done by Mr. Smith. As an experienced Fuel Delivery Truck Driver, I do credit him with having some sort of idea as to the rate that he was pumping fuel on board, but there was no testimony in this regard. Mr. Quinlan stated that the master of the vessel reported only "a drop" was spilled, while Mr. Smith reports 10 litres. It strikes me that the Master might have reasons for minimizing his estimate of the amount spilled. The Master was not called to give evidence and I consider the quantity of spilled diesel fuel that Mr. Quinlan reports to be hearsay evidence; I therefore give more credibility to the estimate of 10 litres testified to by Mr. Smith.
 I note that subsection 191(2) of the CSA, 2001 states that a person or vessel that discharges a pollutant in contravention of section 187 of the CSA, 2001, is liable to a fine of not more than $1 000 000 and/or to imprisonment for a term of not more than 18 months. This indicates the seriousness that the Parliament of Canada places on this type of environmental offence. I also note that for the Minister to proceed with an action using the AMPRs, the penalty for a contravention of section 187 is limited to a range of $1 250 to $25 000.
 Subsection 191(4) of the CSA, 2001 lists six factors that a court may have regard to in determining punishment and, to the extent applicable, I have considered these in this Determination.
 In terms of mitigating factors, there has been no evidence as to harm or risk of harm caused by the offence. Mr. Smith testified that he assisted in cleaning the spilled fuel and Mr. Quinlan reported that the ship's crew took part in cleaning it up as well. I find the clean‑up efforts to be mitigating factors.
 Moreover, there was no testimony regarding the reporting of the spill, nor of any history of non-compliance with legislation designed to prevent or minimize pollution. There has not been any evidence put forward that there was any economic benefit associated with the discharge.
 In making a determination on aggravating factors, I considered the testimony of Mr. Smith where he states that no one on board ship was in the area of the refueling hose. His testimony is that the hose was left unattended. This indicates a serious lack of due diligence on the part of the responsible person on board. It is my view that a well-trained and competent person would have ensured that close attention was paid to the refueling operation, especially when the flow was controlled from on board ship at the hose‑end nozzle. I find this lack of due diligence to be a serious aggravating factor.
 Mr. Quinlan submits that the cause of the spill has not been determined. I find the lack of evidence in this regard by both the Applicant and the Minister to be most surprising. I am left to wonder if anyone investigated the incident. Surely the interests of the environment warrant some effort, at least to prevent a similar occurrence in the future. Mr. Quinlan stated that adequate procedures were in place to deal with a spill; however, I have heard nothing as to what might have been in place, if anything, to have prevented a refueling spill in the first place.
 I find, in this instance, that Transport Canada Marine Safety has correctly applied the policy of awarding higher penalties to vessels than to individuals as described in the RIAS. As regards the amount of the penalty, I find that the offence warrants the penalty of $6 000, especially in view of the serious aggravating factor described in paragraph  above.
 The Minister has proven, on a balance of probabilities, that the Applicant, M/V Abigail Grace, violated section 187 of the Canada Shipping Act, 2001. The monetary penalty of $6 000 is confirmed.
September 25, 2012
C. Michael Keefe
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