Decisions

TATC File No. MA-0161-37
MoT File No. A20111028-201-00621

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

McKeil Work Boats Limited, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
section 118 of the Canada Shipping Act, 2001, S. C. 2001, c. 26


Review Determination
Mark A.M. Gauthier


Decision: July 30, 2013

Citation: McKeil Work Boats Limited v. Minister of Transport, 2013 TATCE 20 (Review)

Heard in Halifax, Nova Scotia, on November 21 and 22, 2012

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has not proven, on the balance of probabilities, that the Applicant, McKeil Work Boats Limited, violated section 118 of the Canada Shipping Act, 2001. As such, the monetary penalty of $7 800 is dismissed.

I. BACKGROUND

[1] On December 13, 2011, the Minister of Transport (Minister) issued a Notice of Violation (Notice) to the Applicant, McKeil Work Boats Limited, for a violation of section 118 of the Canada Shipping Act, 2001 (Act). The Notice indicates that an administrative penalty of $7 800 was assessed for a violation pursuant to the Administrative Monetary Penalties Regulations, SOR/2008-97 (AMPRs). Schedule A to the Notice states the following:

On or about November 9th, 2010 at or near Pictou in the Province of Nova Scotia, the Master of the “Florence M” took actions that jeopardized the safety of a vessel or vessels, namely the “Sault au Cochon” or the “Florence M” or both, or persons on board either in contravention of section 118 of the Canada Shipping Act, 2001, c. 26 as amended.

Pursuant to subsection 238(2) of the Canada Shipping Act, 2001, c. 26 as amended, McKeil Work Boats Limited is being proceeded against as the employer or principal of the Master of the “Florence M” in respect of this violation and is liable for the penalty provided as punishment for it.

[2] On January 10, 2012, the Applicant submitted a Request for Review of the Minister's decision by the Transportation Appeal Tribunal of Canada (Tribunal).

II. STATUTES AND REGULATION

[3] Sections 6, 109, 118 and subsection 238(2) of the Act, read as follows:

6. The objectives of this Act are to

(a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce;

(b) promote safety in marine transportation and recreational boating;

(c) protect the marine environment from damage due to navigation and shipping activities;

(d) develop a regulatory scheme that encourages viable, effective and economical marine transportation and commerce;

(e) promote an efficient marine transportation system;

(f) develop a regulatory scheme that encourages the viable, effective and economical use of Canadian waters by recreational boaters;

(g) ensure that Canada can meet its international obligations under bilateral and multilateral agreements with respect to navigation and shipping;

(h) encourage the harmonization of marine practices; and

(i) establish an effective inspection and enforcement program.

109. (1) The master of a vessel shall take all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.

(2) If the master of a vessel is informed of a safety hazard, the master shall, unless the master determines that the hazard does not exist, take reasonable measures to protect the vessel and persons on board from the hazard, including eliminating it if feasible. If it is not feasible to eliminate it, the master of a Canadian vessel shall notify the authorized representative.

118. No person shall take any action that might jeopardize the safety of a vessel or of persons on board.

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.

[4] Subsections 15(1) and (2) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act), read as follows:

15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

(2) The Tribunal shall not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

[5] Subsections 2(1) and (2) of the AMPRs read as follows:

2. (1) The contravention of a provision of the Act, or of a regulation made under the Act, set out in column 1 of a Part 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 a Part of the schedule is the range of penalties in respect of a violation set out in column 1.

[6] The Schedule to the AMPRs provides a range of penalties from $1 250 to $25 000 for a violation of section 118 of the Act.

III. EVIDENCE

[7] During the Hearing, a number of objections were made regarding the admissibility or reliability of portions of the evidence. Subsections 15(1) and (2) of the TATC Act address this subject (see paragraph [4]). None of the objections were on the grounds of privilege. I chose to admit the evidence, and I considered the objections in the context of determining the weight to be given to the evidence.

[8] I reminded the Minister's Representative and Applicant's Representative that evidence must be presented through the testimony of witnesses; documents that were only referred to by the Representatives in oral presentation will be treated as submissions, and not as evidence.

A. Minister

(1) Captain Yusuff Ahmed

[9] Captain Yusuff Ahmed is a duly appointed Marine Safety Inspector under the Act,and has been employed by Transport Canada since 2007. He holds a Canadian Master Mariner Certificate and has occupied a number of positions in the marine industry since 1980, including the positions of 3rd, 2nd and Chief Officer, as well as that of Captain on various ships (Exhibit M‑1). His responsibilities include domestic marine inspections and investigations.

[10] Following the grounding of the barge Sault au Cochon (the Barge) at Pictou, Nova Scotia, on November 10, 2010, Captain Ahmed's manager instructed him to investigate the causes of the grounding. The first part of Captain Ahmed's testimony relates to the investigation he conducted.

[11] On November 11, 2010, Captain Ahmed boarded the Motor Tug Florence M (the Tug) at Pictou, and proceeded to interview her Master, Captain Jean‑Marc LeLièvre.

[12] Captain Ahmed ascertained that Captain LeLièvre was in possession of a valid Certificate of Competency in the capacity of Master 500 Gross Tonnage, Near Coastal, and also held a valid Marine Medical Certificate.

[13] I note that it is not disputed that Captain LeLièvre was certified to command the Tug, and that she was on a near coastal voyage at the time of the events that gave rise to the Notice.

[14] Captain Ahmed confirmed that the Tug was in compliance with her Vessel Inspection Certificate as regards the voyage that is the subject of this Hearing, and also confirmed that there were no weather restrictions on the Tug's Vessel Inspection Certificate.

[15] Captain Ahmed stated that Captain LeLièvre affirmed that no stability calculations were made prior to the beginning of the voyage on November 7, 2010; however, Captain Ahmed stated in cross-examination that a stability calculation was not required in the case of the voyage that is the subject of this Hearing.

[16] Captain Ahmed testified that he asked Captain LeLièvre to produce weather reports for the period of November 7‑11, 2010; Captain LeLièvre told him that he had the reports but was unable to locate them.

[17] During his testimony, Captain Ahmed referred to a number of exhibits, notably Exhibit M‑2, titled DISCLOSURE, a binder that contains 31 tabbed Items (Disclosure Binder), and Exhibit M‑3, titled ADDITIONAL DISCLOSURE, which is a binder containing 23 tabbed Items (Additional Disclosure Binder).

[18] In addition to the tabbed Items, the Disclosure Binder also includes a Summary of Facts written by Captain Ahmed that is referred to extensively in this Determination; the Summary appears immediately before Tab 1. Charts 440401 and 440501 issued by the Canadian Hydrographic Service were introduced into evidence and referred to in testimony (Disclosure Binder, Tabs 18 and 19). Captain Ahmed had plotted various positions of the vessel on the charts before the Hearing took place, which were not disputed.

[19] Captain Ahmed confirmed that Captain LeLièvre completed Form 1808 of the Transportation Safety Board of Canada (TSB), titled REPORT OF A MARINE OCCURENCE, a copy of which appears at Tab 4 of the Disclosure Binder (TSB Report). A transcription of that portion of the original Report setting out Captain LeLièvre's narrative of the events of the voyage also appears at Tab 5 of the Additional Disclosure Binder (TSB Report Transcription).

[20] The rest of Captain Ahmed's testimony basically followed the chronology of the events of the voyage, which occurred between November 7 and 10, 2010.

[21] Captain Ahmed testified that Captain LeLièvre stated to him that the Tug with the Barge in tow left Port‑Menier on Anticosti Island, Quebec, at 4:20 on November 7, 2010, destined for the port of Pictou, Nova Scotia, via the Northumberland Strait (please note that any reference to time in this Determination is a reference to local time, and is based on the 24‑hour clock). The TSB Report indicates that the Barge was loaded with 6464.73 tons of pulpwood.

[22] Captain Ahmed indicated that he requested and received from Environment Canada weather and wave height forecasts covering the period from November 7 to 10, 2010 (see Disclosure Binder, Tabs 7, 8, and 9).

[23] The extended weather forecast issued by Environment Canada at 2:50 on November 7, 2010, for the Northumberland Strait indicated a wind speed of 25 to 30 knots for November 9, 2010, and 25 to 35 knots for November 10, 2010 (Disclosure Binder, Tab 9, p. 1).

[24] Captain Ahmed stated that the Tug and Barge were transiting the Northumberland Strait and passed below Confederation Bridge in the early hours of November 9, 2010.

[25] The forecast for the Northumberland Strait issued by Environment Canada on November 9 at 2:51 indicated a strong wind warning of 15 to 20 knots, increasing to 20 to 25 knots in the morning of November 9, 2010, and to 30 knots in the evening (Disclosure Binder, Tab 7, p. 18).

[26] Captain Ahmed testified that there was some concern on board the Tug with regards to the weather experienced while inside the Northumberland Strait. He stated that Captain LeLièvre was experiencing adverse weather around 6:00 on November 9, 2010.

[27] In cross-examination, Captain Ahmed stated that there was evidence that the vessel was experiencing handling problems after crossing under Confederation Bridge.

[28] In further cross-examination, the Applicant's Representative asked Captain Ahmed on what he was relying to support his assertion that handling problems existed. In reply, Captain Ahmed stated that a record of a radio communication between the Tug and a radio station indicates that the Tug made a course alteration to proceed closer to Prince Edward Island (PEI) in order to be protected from the wind and swell (see Disclosure Binder, Tab 20, p. 6, and Additional Disclosure Binder, Tab 12, pp. 5 and 6).

[29] Captain Ahmed referred to a wave height forecast issued by Environment Canada for November 9 and 10, 2010 for the area Gulf‑Magdalen‑Western Half. It was issued at 5:02 and forecasted waves of 1 to 2 metres, building to 3 to 4 metres in the evening of November 9, 2010 (Disclosure Binder, Tab 8, pp. 4‑5).

[30] He went on to testify that at 7:45, Captain LeLièvre decided to proceed out of the protection of the PEI coast and head towards the Caribou Channel on the way to the Port of Pictou.

[31] In examination-in-chief, Captain Ahmed stated that, according to Captain LeLièvre, the Tug started to feel the full effects of the wind and swell at 14:00. In cross-examination, Captain Ahmed mentioned that things began to worsen dramatically at 14:00.

[32] In cross-examination, the Applicant's Representative asked Captain Ahmed on what he was relying to support these statements. In reply, Captain Ahmed referred to Captain LeLièvre's statement that the wind picked up to 20 knots at 14:00 (TSB Report Transcription, Item 6). Captain Ahmed agreed with the Applicant's Representative that Captain LeLièvre's statements in the TSB Report Transcription do not indicate difficulty.

[33] The Environment Canada forecast issued at 15:21 on November 9, 2010 indicated a gale warning for the Northumberland Strait, with a wind of 25 knots increasing to 35 knots early Wednesday morning (November 10, 2010), (Disclosure Binder, Tab 7, p. 21).

[34] Captain Ahmed further testified that Captain LeLièvre reported to a radio station that he was finding it very difficult to maintain course and speed.

[35] Captain Ahmed went on to testify that Captain LeLièvre stated that he could not maintain his course around 16:00, when he was about to turn toward the Port of Pictou. At this point, Captain LeLièvre indicated that he was going back to shelter south of PEI.

[36] The Applicant's Representative questioned the basis for the statement that the course could not be maintained around 16:00. He also questioned Captain Ahmed's statement that the Tug found it difficult to maintain control of the Barge (Summary of Facts, Item 15). In reply, Captain Ahmed referred to Captain LeLièvre's statement that he could not shorten the towline any further at that time because winds were up to 20 to 35 knots and the swell was building. (TSB Report Transcription, Item 9). Captain Ahmed agreed with the Applicant's Representative that a towline is shortened when a vessel is about to enter confined waters.

[37] Captain Ahmed subsequently testified that the towline broke around 23:15 and that Captain LeLièvre attempted, but failed to recover the Barge, which eventually grounded.

[38] He then stated that 3 hours and 28 minutes elapsed from the last radio communication made by the Tug before the Barge grounded, until the next radio communication made after the Barge had grounded. He stated that a casualty must be reported without delay under the provisions of the Shipping Casualty Reporting Regulations, SOR/85‑514 (SCRRs).

[39] The Applicant's Representative objected to the admission of this testimony because there was no mention of any such provision in the Notice or any disclosure. I allowed the testimony to stand, but indicated that I would take the objection into account in my Determination.

[40] The Minister's Representative stated that Captain LeLièvre would not be charged with an alleged violation of the SCRRs.

[41] Captain Ahmed described his role as an examiner of Masters and Mates. He outlined the regulatory process that must be followed by candidates who apply for Certificates of Competency. He placed emphasis on the requirements for the issuance of the type of certificate held by Captain LeLièvre. The requirements for that certificate are set out in Chapter 8 of the Transport Canada document TP 2293E, titled The Examination and Certification of Seafarers (Exhibit M‑5). One of the requirements is an in-depth knowledge of marine meteorology.

(2) Captain Leo Edward Kehoe

[42] The Minister's Representative presented Captain Leo Edward Kehoe, a Senior Marine Safety Inspector at Transport Canada, as an expert witness. I have accepted Captain Kehoe as an expert witness based on his qualifications and certificates set out in Exhibit M‑7.

[43] He stated that Captain Kehoe would be asked to give his interpretation of the various statements made by Captain LeLièvre in the TSB Report Transcription.

[44] Captain Kehoe began by stating that transiting the Tug and Barge close to the PEI coast was an indication that Captain LeLièvre was proceeding to a point where he would reassess his ability to proceed to another point in the voyage. He stated that, in nautical terms, this navigation manoeuvre is referred to as “dog-legging”.

[45] He indicated that later in the day, as Captain LeLièvre was navigating in the Caribou Channel, the Captain began to shorten the towline, which was done, in Captain Kehoe's opinion, in order to manoeuvre the Barge as Captain LeLièvre prepared to enter the Harbour of Pictou.

[46] Captain Kehoe expressed his opinion that, at that point, Captain LeLièvre decided to abort the plan to enter the Harbour of Pictou; and that the Captain's order to let out the towline to maximum length was made after the Tug and Barge had headed out to sea and were in deeper water.

[47] In Captain Kehoe's opinion, the low speed of the Tug at the time could be attributed to increasing winds, engine problems, or that the speed “was pulled back” because of the weather.

[48] He was of the further opinion that while the Tug was maintaining a forward course, the Barge was pulling the Tug sideways toward Pictou Island because the load of pulpwood on the Barge acted like a sail.

[49] Captain Kehoe expressed his opinion that, had he found himself in Captain LeLièvre's situation, he would have found out if any tugs in the area were available to assist in any way, including in recapturing the Barge after the towline broke.

[50] Captain Kehoe then referred to a text titled Cargo Work: The Care, Handling and Carriage of Cargoes, Including the Management of Cargo Control, written by Captain L. G. Taylor, extracts of which appear at Exhibit M‑7, Tab 3. He focused in particular on a passage stating that timber should be stowed longitudinally and secured by lashings around permanently–fitted uprights; an example of such an arrangement appears in Exhibit M‑7, Tab 4. He stated that securing cargo in the manner indicated in Exhibit M‑7 would prevent it from falling overboard, especially in inclement weather. He added that a crew can go on the deck of a barge to verify lashings during a voyage.

[51] He went on to add that such lashings could not have been fitted on the Barge because the logs were stacked from side to side, in a transverse manner, rather than stowed longitudinally (see Exhibit M‑7, Tab 4).

[52] Captain Kehoe agreed with the Applicant's Representative that with an unmanned barge, a voyage would be planned so as to avoid putting the crew on board a barge to, for example, verify lashings.

[53] Captain Kehoe finished his testimony by stating that, in his opinion, the manner in which the logs were stacked on the Barge would result in a loss of cargo as a barge starts listing, rocking and rolling. However, in cross-examination, Captain Kehoe agreed with the Applicant's Representative that Captain LeLièvre stated that all the cargo was still on board at the time of the grounding of the Barge (TSB Report Transcription, Item 32).

(3) Captain James Hann

[54] Captain James Hann stated that he is employed in the St John's, Newfoundland office of Transport Canada, Marine Safety. Prior to employment with Transport Canada, Captain Hann had 17 years of deep sea experience, taught one year at the Nautical Institute in St John's, Newfoundland, and worked one year on an offshore platform.

[55] On July 19, 2012, he interviewed Mr. Peter McKnight, who was Chief Engineer on the Tugduring the voyage that is the subject of this Hearing. The transcript of the interview appears at Exhibit M‑8.

[56] The Minister's Representative proceeded with the examination of Captain Hann on the basis of that transcript.

[57] Captain Hann asked Mr. McKnight what he recalled about the voyage on November 9, 2010, and how he would describe the nature of the problem on the Tow that day.

[58] Mr. McKnight responded that it was a bad night, and that the seas were rough. He went on to state that one of the main engines went down as a result of a cooling problem that prevented that engine from operating at full power.

[59] In response to a question by Captain Hann about the engine room log book, Mr. McKnight affirmed that he had made entries in the log book, and that it usually stayed on board the Tug; however, there were instances when a log book would be removed from a vessel.

[60] The final line of questioning put forward by Captain Hann related to whether Mr. McKnight had handed over to another Chief Engineer at the end of his tour of duty, and whether he had informed a company representative of the concerns he had with the Tug's engines.

[61] Mr. McKnight responded that no handover took place since the Tug was tied up after the voyage, and that he had informed either the marine or mechanical superintendent of his concerns with the engine.

[62] The Applicant's Representative did not cross-examine Captain Hann.

B. Applicant

(1) Christopher Paul Kirby

[63] The Applicant's Representative called Christopher Paul Kirby as a witness and entered two documents into evidence through Mr. Kirby. The first document was Captain LeLièvre's resume (Exhibit A‑1, Tab 6); the second was an email from “McKeil Marine Limited” to the Applicant's Representative that provides a summary of the number of days the Captain served in the employ of “McKeil Marine Limited” as Mate and Master respectively, on the pulpwood run (Exhibit A‑1, Tab 7).

[64] I took note of the Request for Review from the Applicant's Representative to theTribunal, dated January 10, 2012, stating that “McKeil Marine Limited” and “McKeil Workboats Limited” may be treated as the same entity for the purposes of this matter.

[65] Mr. Kirby summarized Captain LeLièvre's experience in marine-related work dating back to 1975. It was noted that the Captain began his career with McKeil Work Boats Limited in 2000 as 2nd Mate, and that he was promoted to Captain in 2005.

[66] It was noted that from 2000 to 2010, Captain LeLièvre served 779 days as Mate and 1199 days as Captain, both on the pulpwood run (Exhibit A‑1, Tab 7).

[67] The Minister's Representative did not cross-examine Mr. Kirby.

IV. ARGUMENTS

A. Minister

[68] The Minister's Representative provided a Book of Authorities and presented oral arguments based on a written submission.

[69] He took the position that section 118 of the Act creates a strict liability offence and while, in principle, a defence of due diligence would apply, such a defence cannot be established in this case since Captain LeLièvre failed to take reasonable steps to avoid the commission of the infraction.

[70] He also drew specific attention to three of the objectives of the Act set out at section 6 of the Act (see paragraph [3] above).

[71] In his view, section 118 of the Act sets a very high standard of care by not only prohibiting conduct that jeopardizes safety, but also conduct that might jeopardize safety.

[72] He summarized the evidence on the basis of the Summary of Facts provided by Captain Ahmed, as follows:

(i) extended weather forecasts for the Maritimes from November 7‑9, 2010, indicated strong winds;

(ii) on November 9, 2010, at 6:08, the Tug advised by radio that a course diversion was being made to transit closer to the PEI coast in order to get protection from wind and swell. The Tug would then wait on the PEI coast and decide whether to proceed to Pictou after receiving an update on the weather forecast;

(iii) the wave height forecast issued by Environment Canada was between 2 and 4 metres with a strong wind warning of up to 30 knots;

(iv) at 11:40, the Tug was on passage toward Pictou and away from the coast of PEI;

(v) at 15:21, Environment Canada issued a gale warning for the Northumberland Strait;

(vi) at 16:00, the Tug and Barge were bearing the full brunt of the wind and swell;

(vii) around this time, the Master was finding it difficult to maintain control of the Barge and decided to turn towards the wind and swell in order to arrest a southerly drift, with the intention to proceed toward the PEI coast;

(viii) at approximately 23:15 the towline snapped (approximately 7 hours and 15 minutes later).

[73] The Minister's Representative submitted that Captain LeLièvre jeopardized the safety of the Tug and her crew and the safety of the Barge. In support of his submission, he stated that:

(i) the Environment Canada marine weather forecasts for the period of November 7 to 9, 2010, indicated strong winds;

(ii) Captain LeLièvre should have asked for tug assistance to hold the Barge on course and to assist with the towing;

(iii) Captain LeLièvre should have requested information on a place of refuge from the Canadian Coast Guard (CCG).

[74] The Minister's Representative took the position that the risk assessment by the Master to proceed with the voyage was seriously flawed.

[75] The Minister's Representative drew specific attention to section 109 of the Act, concerning the duty of a master to ensure the safety of his or her vessel and all persons on board (see paragraph [3] above). He argued that Captain LeLièvre should have paid heed to the weather forecast, and sought information from the CCG regarding a place of refuge.

[76] He took the position that the monetary penalty of $7 800 imposed by the Minister was justified in this case as being substantial enough to warn others that violations of this nature would not be tolerated in Canadian waters.

[77] In closing, he noted that McKeil Work Boats Limited is a repeat offender.

B. Applicant

[78] The Applicant's Representative submitted that Transport Canada painted a picture of a reckless Master who ignored the weather forecast, lost control of his Tug and Barge in open waters, and subsequently lost the Barge. He added that Transport Canada provided wave height forecasts that were not for the area that the vessel was in.

[79] He emphasized that Captain LeLièvre had almost 2 000 days of experience as Mate and Master carrying pulpwood from Anticosti Island.

[80] The Applicant's Representative stated that no evidence was presented that Captain LeLièvre experienced difficulty while transiting the Northumberland Strait. He also took the position that the Captain decided to proceed into Caribou Channel after taking into account the actual weather conditions at the time, conditions which appeared to him to be within the capacity of the Tug and Barge.

[81] He went on to state that Captain LeLièvre proceeded in a northerly direction when the actual sea conditions precluded him from shortening the towline, so that he would be able to enter the Harbour of Pictou, and that the Captain was not encountering any difficulty at that time.

[82] The Applicant's Representative added that Captain LeLièvre encountered no real difficulty until he reported that he had to increase the power of the Tug's engines in order to reduce the leeway toward Pictou Island.

[83] He further stated that the vessel had almost cleared Pictou Island at the time the towline broke; thus, in his view, if the towline had not broken, the Tug and Barge would have found shelter soon thereafter on the PEI coast.

[84] The Applicant's Representative argued that Captain LeLièvre would have sought shelter after the towline broke had he believed that the Tug and her crew were in danger. Instead, the Captain attempted to recover the Barge and tracked the Barge through the night until she eventually grounded.

[85] The Applicant's Representative expressed the view that the Tugwas in the best position to recover her own Barge and voiced doubts that another tug could have retrieved the Barge when the Tug that was designed to be part of the voyage could not.

[86] He stated that Transport Canada has not proven, on the balance of probabilities, that Captain LeLièvre took actions that endangered the vessel or her crew, and on that basis he offered no comment on a defence of due diligence.

[87] He expressed the concern that a bad precedent is created where Transport Canada imposes monetary penalties in cases where it disagrees with the judgment of an experienced Tug Master.

[88] The Applicant's Representative made no representations relating to the amount of the monetary penalty, but stated that McKeil Work Boats Limited is not a repeat offender concerning this type of incident.

C. Minister's Reply

[89] The Minister's Representative submitted that, while the experience of a master is an important factor, the actual decisions made by a master based on that experience gained at sea is also an important consideration; he noted the case of the Titanic where the master was undoubtedly qualified, but lost the vessel due to the decisions that the experienced master made.

[90] He submitted that any potential concerns of the tug boat industry operating in the fear of being fined is irrelevant because Transport Canada is within its jurisdiction in applying the provisions of the Act relating to the duties of masters.

V. ANALYSIS

[91] For ease of reference and for emphasis, as indicated in Schedule A to the Notice, the Minister alleges the following:

On or about November 9th, 2010 at or near Pictou in the Province of Nova Scotia, the Master of the “Florence M” took actions that jeopardized the safety of a vessel or vessels, namely the “Sault au Cochon” or the “Florence M” or both, or persons on board either in contravention of section 118 of the Canada Shipping Act, 2001, c. 26 as amended [emphasis is mine].

[92] McKeil Work Boats Limited is being proceeded against as the employer or principal of the Master pursuant to subsection 238(2) of the Act (see paragraph [3] above).

[93] For further ease of reference, section 118 of the Act reads as follows:

118. No person shall take any action that might jeopardize the safety of a vessel or of persons on board.

[94] In this case, the person referred to in section 118 is Captain LeLièvre, whereas the corporate entity, McKeil Work Boats Limited, is being proceeded against as being vicariously liable.

[95] Section 118 of the Act creates a strict liability offence. Justice Dickson of the Supreme Court of Canada describes strict liability offences on page 1326 of R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299 as follows:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.

[96] As such, the Minister is not required to prove that the Applicant intended to commit the contravention in this case. Rather, the Minister must prove, on the balance of probabilities, the occurrence of actions that “might jeopardize safety” within the meaning of section 118 of the Act.

[97] At the outset, I note that the following facts were established without dispute:

(i) Captain LeLièvre was the Master of the Tug and in the employ of the Applicant at the time of the voyage that is the subject of this Hearing;

(ii) Captain LeLièvre was in possession of a Certificate of Competency that was valid for the voyage;

(iii) a Vessel Inspection Certificate with no weather restrictions, which was valid for the voyage had been issued to the Tug;

(iv) a stability calculation was not required prior to the beginning of the voyage as indicated by Captain Ahmed's testimony.

[98] The actions of Captain LeLièvre in respect of the relevant events of the voyage will be examined following the chronology of the voyage from November 7 to 10, 2010. However, matters arising from the interview of Captain LeLièvre by Captain Ahmed on November 11, 2010 will be addressed first, and some other matters will be addressed out of chronological order.

[99] The paragraphs that follow set out my analysis and conclusions in respect of the actions taken by Captain LeLièvre that I consider relevant to the application of section 118 of the Act in this instance.

[100] During the interview conducted by Captain Ahmed, Captain LeLièvre affirmed that he had weather forecasts for the period of November 7 to 10, 2010, but could not locate them. I draw no inference from Captain LeLièvre's inability to locate the forecasts.

[101] It was established that the Tug and tow were transiting below the Confederation Bridge in the early hours of the morning on November 9, 2010, and, at that time, the Environment Canada weather forecasts for the Northumberland Strait indicated strong winds in the range of 20 to 30 knots (Disclosure Binder, Tabs 7 and 9).

[102] At around 6:07, the Tug reported by radio that a course alteration was made to proceed closer to the PEI coast in order to be protected from wind and swell (Additional Disclosure, Tab 12, pp. 5 and 6).

[103] In the TSB Report Transcription, Captain LeLièvre is reported to have stated that he had given instructions to his First Officer to proceed to the PEI coast after crossing under Confederation Bridge (TSB Report Transcription, Item 3). In cross-examination, Captain Ahmed stated that the Tug was experiencing handling problems while crossing under the Bridge.

[104] However, Captain Kehoe expressed the opinion that transiting the Barge close to the PEI coast was an indication that Captain LeLièvre was proceeding to a point where he could reassess his ability to proceed to another point in the voyage or, in other terms, was performing a nautical manoeuvre known as dog-legging.

[105] Given Captain LeLièvre's factual statement in paragraph [102] above and Captain Kehoe's explanation of that statement at paragraph [104] above, neither of which makes any reference to handling problems, I find that there is no evidence to support the assertion by Captain Ahmed that the Tug was having handling problems at that time.

[106] Captain Ahmed testified that at 7:45, Captain LeLièvre decided to proceed out of the protection of the PEI coast and toward the Caribou Channel on the way to the port of Pictou (also in TSB Report Transcription, Item 4).

[107] In the TSB Report Transcription, Captain LeLièvre is noted to have remarked that the wind had picked up to about 20 knots at 14:00 (TSB Report Transcription, Item 6).

[108] Captain Ahmed stated that things began to worsen dramatically at 14:00; however, in cross-examination, Captain Ahmed agreed with the Applicant's Representative that the winds as described by Captain LeLièvre did not indicate difficulty (Hearing Transcript, p. 80).

[109] On the basis of paragraphs [107] and [108] above, I find that there is no evidence to support the assertion by Captain Ahmed that things began to worsen dramatically at 14:00.

[110] At 15:21 on November 9, 2010, Environment Canada issued a gale warning for the night of November 9 and 10, 2010, applicable to the Northumberland Strait, indicating winds of 25 knots, increasing to 35 knots early Wednesday morning (November 10, 2010) (Disclosure Binder, Tab 7, p. 21 and Summary of Facts, Item 11).

[111] In cross-examination, the Applicant's Representative referred to Captain Ahmed's statement in his Summary of Facts that the Tug found it difficult to maintain control of the Barge (Summary of Facts, Item 15).

[112] According to the TSB Report Transcription, Captain LeLièvre stated that he started shortening the towline; that he was unable to bring the line in any longer because the winds were up to 20 to 35 knots; and that the swell was building (TSB Report Transcription, Items 8 and 9).

[113] In his testimony, Captain Kehoe commented on Captain LeLièvre's statement on the matter of shortening the towline. His understanding was that as the Captain was navigating in the Caribou Channel, he began to shorten the towline in the course of making manoeuvres to enter into the Harbour of Pictou. When he could not shorten it any more, he decided to abort the attempt to enter the harbour and to proceed out to sea instead.

[114] I find that what is described in paragraphs [111], [112], and [113] above is Captain LeLièvre making a manoeuvre to enter the harbour, albeit unsuccessfully, and thereafter managing to make a turn in order to proceed out to sea toward PEI, without any indication he had lost control.

[115] On the basis of paragraphs [111], [112], and [113] above, I find that that there is no evidence to support Captain Ahmed's assertion that the Tug found it difficult to maintain control of the Barge.

[116] The voyage from making the turn at approximately 16:10 on November 9, 2010 (Disclosure Binder, Tab 18, Chart 440401) to the grounding of the Barge at approximately 6:00 on November 10, 2010 (Disclosure Binder, Tab 5, Deck Log Book), took place in less than ideal conditions. It is clear that up to the point when the towline broke, the engines were not performing at their peak, and high winds and swell caused the Tug and Barge to make slow forward progress while edging sideways closer to Pictou Island (TSB Report Transcription, paragraphs 14 to 34).

[117] There is no evidence to suggest that any of the actions taken by Captain LeLièvre from the time of the turn until the grounding of the Barge demonstrated poor seamanship, or jeopardized the safety of the vessel or persons on board.

[118] Four further issues arose in testimony: two relating to actions taken by Captain LeLièvre during this portion of the voyage, and two which are unrelated to the chronology of the events of the voyage.

[119] Turning to the first issue, Captain Kehoe expressed the opinion that, had he found himself in Captain LeLièvre's situation, he would have found out if any tugs in the area were available to assist, particularly in recapturing the Barge after the towline broke (see paragraph [49] above).

[120] However, in his submissions, the Applicant's Representative expressed the view that the Tug was in the best position to recover her own barge and voiced doubts that another tug could have retrieved the Barge when the Tug that was part of the voyage could not (see paragraph [85] above).

[121] I accept that the submission of the Applicant's Representative is reasonable, and I find that Captain LeLièvre acted properly by concentrating his efforts in attempting to recover the Barge, and should not be faulted for not seeking assistance from other tugs.

[122] Turning to the second issue, in his submissions, the Minister's Representative stated that Captain LeLièvre should have requested information from the CCG on a place of refuge (see paragraph [73] above).

[123] However, I note that he did not indicate the rationale for making the submission, what a place of refuge entails, or if it is a common practice to make such a request. The evidence in this case is that the CCG was informed by radio at 18:01 on November 9, 2010 that the Tug was going back to take shelter on the PEI coast, and the CCG did not require or suggest that the Tug proceed to a particular place. Rather, the CCG only requested to be provided information of any change in the Tug's itinerary (Additional Disclosure, Tab 12, pp. 8 and 9).

[124] In the circumstances, I find that Captain LeLièvre cannot be faulted for not requesting information from the CCG on a place of refuge.

[125] Turning to the third issue, in his testimony Captain Ahmed stated that 3 hours and 28 minutes elapsed between the last radio communication made by the Tug before the Barge grounded, and the next radio communication after the grounding. He added that a casualty must be reported without delay under the provisions of the SCRRs. The Applicant's Representative objected to the admission of the testimony; I allowed the testimony to stand but stated that I would take the objection into account in my Determination (see paragraphs [38] and [39] above).

[126] I find that the alleged delay in reporting is an issue that relates to compliance with the SCRRs and is not a relevant consideration for the purposes of this Hearing.

[127] Turning to the fourth issue, in his testimony Captain Kehoe stated that a cargo of timber loaded on deck should be stowed longitudinally and secured by lashings around permanently-fitted uprights, and that such an arrangement would prevent cargo from falling overboard and allow crew to go on the deck of a barge in order to verify the lashings. In cross‑examination, the Applicant's Representative pointed out that the Barge was unmanned and Captain Kehoe agreed that in such a case, a voyage should be planned in such a way as to avoid crew going on board the Barge. In further cross-examination, Captain Kehoe agreed with the Applicant's Representative that Captain LeLièvre stated that all the cargo was still on board at the time of the grounding of the Barge (see paragraphs [50] to [53] above).

[128] It is clear from the evidence that the Barge was towed for several hours in high winds and swell, and drifted for several more hours after the towline broke before she grounded.

[129] On the basis that all the cargo remained on board the Barge at the time of the grounding, I find that the cargo was, in fact, loaded on the Barge in a reasonable manner.

[130] In order to prove the alleged violation of section 118 of the Act,the Minister must establish, on the balance of probabilities, that actions were taken that might have jeopardized the safety of the Tug or barge or both, or of persons on board either vessel. In R. v. Atlantic Towing Ltd., 2011 NSPC 10, Justice Derrick said that section 118 sets a very high standard of care.

[131] The conclusions that I reached in the above paragraphs are summarized as follows:

(i) Captain LeLièvre did not alter course toward the PEI coast in the early hours of November 9, 2010 because he was experiencing handling problems; rather, he was carrying out a navigation technique in order to give effect to his wish to navigate into an area where there would be more protection from wind and swell;

(ii) Captain LeLièvre's decision to proceed with the voyage to Pictou at 7:45 on November 9, 2010, was justified on the basis of his determination that the weather looked good at the time;

(iii) there was no evidence that the weather worsened dramatically at 14:00 on November 9, 2010; hence there was no reason at that time why the voyage could not proceed;

(iv) there was no evidence that Captain LeLièvre found it difficult to maintain control of the Barge at the time he was shortening the towline in the course of making manoeuvres to enter into the Harbour of Pictou;

(v) there was no evidence to suggest that any of the actions taken by Captain LeLièvre from the time of the turn until the grounding demonstrated poor seamanship;

(vi) Captain LeLièvre acted properly by concentrating his efforts on attempting to recover the Barge and cannot be faulted for not seeking assistance from other tugs;

(vii) Captain LeLièvre cannot be faulted for not requesting information from the CCG on a place of refuge;

(viii) the cargo was loaded on the Barge properly.

[132] On the basis of the analysis above, I conclude that the Minister has not proven, on the balance of probabilities, that actions were taken by Captain LeLièvre that might have jeopardized the safety of the Tug or Barge or both, or of persons on board either vessel.

VI. DETERMINATION

[133] The Minister of Transport has not proven, on the balance of probabilities, that the Applicant, McKeil Work Boats Limited, violated section 118 of the Canada Shipping Act, 2001. As such, the monetary penalty of $7 800 is dismissed.

July 30, 2013

Mark A. M. Gauthier

Member