Decisions

TATC File No. MA-0233-37
MoT File No. A20120628-204-00822

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Abbie Isle Seafoods Ltd., Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
paragraph 106(1)(a) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
C. Michael Keefe


Decision: October 3, 2013

Citation: Abbie Isle Seafoods Ltd. v. Canada (Minister of Transport) 2013 TATCE 29 (Review)

Heard in: Charlottetown, Prince Edward Island on July 30, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on the balance of probabilities, that the Applicant, Abbie Isle Seafoods Ltd., failed to ensure that the Fishing Vessel Down & Back and its machinery and equipment met the requirements of regulations made under Part 4 of the Act, and thereby violated paragraph 106(1)(a) of the Canada Shipping Act, 2001. I confirm the monetary penalty of $1 250 imposed by the Minister.

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.

File Nos. MA-0232-37 (F/V A Lit'l Les)

MA-0233-37 (F/V Down & Back)

I. BACKGROUND

A. MA-0232-37 (F/V A Lit'l Les)

[1] On July 3, 2012, the Minister of Transport (Minister) issued a Notice of Violation (Notice A) to the Applicant, Abbie Isle Seafoods Ltd., with respect to the Fishing Vessel (F/V) A Lit'l Les, for a violation of subsection 57(1) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (Act).

[2] Schedule A of Notice A states the following:

No.

Violation

Penalty

 

On or about the 19th of June 2012, at or near North Lake in the province of Prince Edward Island, Abbie Isle Seafoods Ltd., being the authorized representative of the vessel “A LIT'L LES” (ON 812107), failed to mark the vessel with its official number and any other information that the Chief Registrar specifies, in the form and manner specified by the Chief Registrar, thereby contravening subsection 57(1) of the Canada Shipping Act, 2001.

$600.00

[3] On August 9, 2012, Ernest Elmer Gallant, acting on behalf of Abbie Isle Seafoods Ltd., filed a Request for Review with the Transportation Appeal Tribunal of Canada (Tribunal).

B. MA-0233-37 (F/V Down & Back)

[4] On July 3, 2012, the Minister issued a Notice of Violation (Notice B) to the Applicant, Abbie Isle Seafoods Ltd., with respect to the F/V Down & Back, for a violation of paragraph 106(1)(a) of the Act.

[5] Schedule A of Notice B states the following:

No.

Violation

Penalty

 

On or about the 19th of June 2012, at or near North Lake in the province of Prince Edward Island, Abbie Isle Seafoods Ltd., being the authorized representative of the vessel “Down & Back” (ON 833036), failed to ensure that the vessel and its machinery and equipment met the requirements of the regulations made under Part 4 of the Canada Shipping Act, 2001, thereby contravening paragraph 106(1)(a) of that Act.

$1,250.00

[6] On August 9, 2012, Mr. Gallant, acting on behalf of Abbie Isle Seafoods Ltd., filed a Request for Review with the Tribunal.

II. PRELIMINARY MATTER

[7] The Notice of Hearing states that a Review Hearing was scheduled to commence at 9:30 a.m. on  July 30, 2013. The Applicant was sent written notice of the time, date and place of hearing by way of registered mail dated May 9, 2013. The Notice of Hearing was returned to the Tribunal unclaimed. The Applicant's representative, Mr. Gallant, was subsequently personally served with the Notice of Hearing on June 20, 2013. By 9:45 on the morning of the Review Hearing, the Applicant had not appeared. The Tribunal's Registrar was requested to enquire as to the attendance of the Applicant, but was unable to make contact or to leave a message.

[8] I am satisfied that the Applicant was given sufficient notice of the Review Hearing; that sufficient effort was made to contact the Applicant on the day of the Review Hearing; and that sufficient time had elapsed since the scheduled start of the proceedings to determine that the Applicant had failed to appear without notice or explanation. The Review Hearing commenced that morning, as my decision was to consider the evidence presented by the Minister.

III. STATUTES, REGULATIONS AND POLICIES

[9] Subsection 57(1), paragraph 79(1)(c), and paragraph 106(1)(a) of the Act, read as follows:

57.(1) The authorized representative of a Canadian vessel shall, in the form and manner specified by the Chief Registrar, mark the vessel with its official number and any other information that the Chief Registrar specifies.

(2) A vessel's certificate of registry is not valid until the vessel has been marked in accordance with subsection (1).

(3) The authorized representative shall ensure that the vessel is kept marked.

[…]

79.(1) Every person commits an offence who contravenes

(c) subsection 57(1) (mark vessel);

[…]

106.(1) The authorized representative of a Canadian vessel shall

(a) ensure that the vessel and its machinery and equipment meet the requirements of the regulations made under this Part;

[10] Subsection 53(1), paragraphs 53(3)(a) and (c), and subsection 53(4) of the Small Fishing Vessels Inspection Regulations, C.R.C., c. 1486 (SFVI Regulations), read as follows:

53.(1) In this section, “approved”, when used in reference to an article, means that the article has been built in accordance with the standards therefor in the Life Saving Equipment Regulations and has been approved by the Board.

[…]

(3) Every fishing vessel exceeding 12.2 m in length shall carry

(a) one approved life jacket for each person on board;

[…]

(c) one watertight can containing six approved self-igniting red flares.

(4) Every fishing vessel shall carry sufficient lights and equipment to comply with the Collision Regulations, and such lights shall be oil or electric.

[11] Rule 23(a)(i), as well as Rules 26(a) to (e) of the Collision Regulations, C.R.C., c. 1416, read as follows:

Rule 23

(a) A power-driven vessel underway shall exhibit:

(i) a masthead light forward,

[…]

Rule 26

(a) A vessel engaged in fishing, whether underway or at anchor, shall exhibit only the lights and shapes prescribed in this Rule.

(b) A vessel when engaged in trawling, by which is meant the dragging through the water of a dredge net or other apparatus used as a fishing appliance, shall exhibit:

(i) two all-round lights in a vertical line, the upper being green and the lower white, or a shape consisting of two cones with their apexes together in a vertical line one above the other,

(ii) a masthead light abaft of and higher than the all-round green light; a vessel of less than 50 metres in length shall not be obliged to exhibit such a light but may do so,

(iii) when making way through the water, in addition to the lights prescribed in this paragraph, sidelights and a sternlight.

(c) A vessel engaged in fishing, other than trawling, shall exhibit:

(i) two all-round lights in a vertical line, the upper being red and the lower white, or a shape consisting of two cones with their apexes together in a vertical line one above the other,

(ii) when there is outlying gear extending more than 150 metres horizontally from the vessel, an all-round white light or a cone apex upwards in the direction of the gear,

(iii) when making way through the water, in addition to the lights prescribed in this paragraph, sidelights and a sternlight.

(d)  The additional signals described in Annex II apply to a vessel engaged in fishing in close proximity to other vessels engaged in fishing.

(e) A vessel when not engaged in fishing shall not exhibit the lights or shapes prescribed in this Rule, but only those prescribed for a vessel of her length.

[12] The reverse side of the Certificate of Registration relating to the Applicant's vessels (Exhibit M‑9), reads, in part, as follows:

MARKING REQUIREMENTS

Your Certificate of Registry is not valid until the vessel has been marked in accordance with the following marking requirements.

NAME AND PORT OF REGISTRY

…. For commercial vessels the vessel name must be marked on each bow and the vessel name and port of registry must also be marked on the stern. ….

REGISTER TONNAGE AND OFFICIAL NUMBER

Both the official number and the register tonnage shown on the Certificate of Registry, must be marked in block-type Arabic numerals at least 4 cm high on some clearly visible interior structural part of the hull. The register tonnage must be preceded by the abbreviation “N.R.T.” and the official number by the abbreviation “O.N.”. ….

IV. ELEMENTS TO BE PROVEN

A. MA-0232-37 (F/V A Lit'l Les)

[13] Based on Notice A and the applicable legislation, I have identified the following elements to be proven by the Minister to satisfy his case:

  1. The vessel was in service at the time of the alleged violation.
  2. The vessel was not marked with its official number or other information in the form and manner specified by the Chief Registrar.
  3. The Authorized Representative of the vessel was Abbie Isle Seafoods Ltd.

B. MA-0233-37 (F/V Down & Back)

[14] Based on Notice B and the applicable legislation, I have identified the following elements to be proven by the Minister to satisfy his case:

  1. The vessel was in service at the time of the alleged infraction.
  2. The vessel, and its machinery and equipment, did not meet the requirements of Part 4 of the Act.
  3. The Authorized Representative of the vessel was Abbie Isle Seafoods Ltd.

V. EVIDENCE

A. Minister

(1) Ensor Joseph McNeill

[15] Ensor Joseph McNeill works out of the Charlottetown, Prince Edward Island (P.E.I.) Transport Canada Marine Safety office.

[16] Mr. McNeill identified a copy of a Canadian Coast Guard (CCG) Search and Rescue (SAR) Report 080767, dated May 8, 2008 (Exhibit M‑1), that he followed up on in 2008. This SAR Report relates to a disabled vessel, indicated on the report as the F/V “Abbie Isle” at 30.01 gross tons. The SAR Report indicates that the disabled fishing vessel was towed to North Lake, P.E.I. Mr. McNeill contacted a Department of Fisheries and Oceans (DFO) officer in North Lake and was told that the vessel in question was not named the Abbie Isle, and that the vessel in question was owned by “Ernie Gallant”.

[17] Mr. McNeill contacted the Ship Registrar at the Charlottetown Transport Canada office looking for further information, and the Ship Registrar's records indicated that the vessel in question was actually named A Lit'l Les and that it was owned by Mr. Gallant.

[18] Mr. McNeill contacted Mr. Gallant and advised him of the requirement to use the correct name of his vessel, A Lit'l Les, and that the vessel must be marked with that name. There was no further follow‑up by Mr. McNeill.

(2) Jeffrey Charles Langille

[19] Jeffrey Charles Langille is a Steamship Inspector working out of the Charlottetown office of Transport Canada Marine Safety.

[20] Mr. Langille identified a copy of SAR Report 120802, dated June 18, 2012, that reports the Abbie Isle taking on water and being towed into port (Exhibit M‑2‑1). He further identified a second SAR Report (Exhibit M‑2‑2), that he indicated corrects the identity of the vessel in Exhibit M‑2-1 from F/V Abbie Isle to the F/V A Lit'l Les. The F/V A Lit'l Les is indicated on Exhibit M‑2‑2 as being 11 gross tons. Exhibit M‑2‑2 indicates that it was the F/V A Lit'l Les that was towed into port on June 18, 2012.

[21] Mr. Langille testified that he was tasked by his manager to investigate the incident. He referred to a copy of his notes (Exhibit M‑3) and testified that he proceeded to North Lake on June 19, 2012. The CCG Auxiliary vessel operator identified to Mr. Langille the boat that he had towed in. Mr. Langille took eight photographs of the vessel, which he identified as the F/V A Lit'l Les (Exhibits M‑4‑1 to M‑4‑8).

[22] Regarding the photographs, Mr. Langille testified as follows:

  1. Exhibit M‑4-1 shows the bow of the vessel. There are no markings visible on either side of the bow.
  2. Exhibit M‑4-2 shows the Canadian Fishing Vessel (CFV) registration number for the F/V A Lit'l Les as 152203. Mr. Langille testified that there were no other external markings on the vessel.
  3. Exhibit M‑4‑3 shows the main beam of the vessel with the markings #812107 T10.58 carved into it. Mr. Langille testified that these markings indicate the vessel's official number and tonnage.
  4. Exhibit M‑4‑4 shows the condition of the cuddy, which Mr. Langille described as being generally poor.
  5. Exhibit M‑4‑5 shows the operator's console, which Mr. Langille described as being in a poor overall condition.
  6. Exhibit M‑4‑6 was described as a photograph of an un-serviced fire extinguisher in the wheelhouse. It was Mr. Langille's opinion that it had not been serviced in years. There is no inspection tag on the extinguisher, and the gauge indicates that it is fully charged.
  7. Exhibit M‑4‑7 shows the aft deck of the vessel. There is a crack in the decking, and on the port‑side stern there is a lobster trap hauler that is using a water hose rather than a hydraulic hose for its return line. The water hose is secured to the hydraulic pump with a hose clamp. He testified that it is not good practice to use this type of clamp.
  8. Exhibit M‑4‑8 was taken from the aft deck towards the bow. It shows a life ring in a very poor state of repair that, in Mr. Langille's opinion, is unserviceable. It has an aged appearance, being cracked and weathered, with its ropes in poor condition. He agreed that there was no vessel name or port of registry marked on the life ring.

[23] Mr. Langille issued a Transport Canada Deficiency Notice to Mr. Gallant for the F/V A Lit'l Les (Exhibit M‑5) and on that Notice, two deficiencies are indicated: the vessel registration was not on board, and the vessel was not properly marked. The Notice is signed and dated by both Mr. Langille and Mr. Gallant on June 19, 2012.

[24] Upon returning to his office, Mr. Langille researched Transport Canada records on the vessel. The Vessel Registrar in Charlottetown provided Mr. Langille with signed Registry information for that vessel (Exhibit M‑6). This exhibit shows that the F/V A Lit'l Les is wholly owned by Abbie Isle Seafoods Ltd.

[25] The Registrar also supplied a Declaration of Transfer of Ownership (Exhibit M‑7) for the F/V A Lit'l Les. This document shows the owner of the vessel as Abbie Isle Seafoods Ltd. and is signed by “Ernest Elmer Gallant, President”.

[26] Mr. Langille testified that a search was done on the P.E.I. Corporate/Business Name Registry and a printout of the results of that search was entered into evidence (Exhibit M‑8). This exhibit shows that “Ernie Gallant” is President of Abbie Isle Seafoods Ltd.

[27] Mr. Langille testified that he requested a Certificate of Registry from Mr. Gallant for the F/V A Lit'l Les while on board the vessel, but none was produced. Mr. Langille further testified that the reverse side of the Certificate of Registry relating to the Applicant's vessels has instructions on how to mark the vessel. Mr. Langille read portions of the reverse side, and a copy of the reverse side of that type of certificate was entered as Exhibit M‑9. It was Mr. Langille's testimony that the F/V A Lit'l Les was not marked in accordance with those instructions.

[28] On June 19, 2012, while at North Lake, Mr. Langille was made aware that Mr. Gallant owned a second vessel, the F/V Down & Back, and that it was expected to arrive shortly. The F/V Down & Back did arrive and was secured alongside the F/V A Lit'l Les. Mr. Langille identified himself to Mr. Gallant as a Transport Canada Marine Safety Inspector. While on board, Mr. Langille noticed that there was no life ring on the exterior of the F/V Down & Back, and that the navigational lights were broken. He asked Mr. Gallant where his life ring was and Mr. Gallant replied that it was in his building. Mr. Langille testified that Mr. Gallant stated that his navigational lights had been broken for years.

[29] Mr. Langille asked Mr. Gallant to display his flares and lifejackets. Several personal floatation devices (PFDs) were produced. There were no flares on board.

[30] Mr. Langille identified eleven photographs of the F/V Down & Back (Exhibits M‑10‑1 to M‑10‑11), which he described as follows:

  1. Exhibit M-10-1 shows the interior of the vessel looking forward. Mr. Langille testified that he took this photograph to show the lack of the markings for the official number and tonnage.
  2. Exhibit M-10-2 shows the builder's hull number.
  3. Exhibit M-10-3 shows the operator's console. It was described as being poorly maintained.
  4. Exhibit M-10-4 shows part of the wheelhouse, looking to starboard.
  5. Exhibits M-10-5 and M-10-6 show the stern of the vessel and part of the vessel's name. Mr. Langille testified that the letters of the name are not supposed to be italicized.
  6. Exhibit M-10-7 shows the starboard bow, with letters that Mr. Langille testified are not supposed to be italicized.
  7. Exhibit M-10-8 shows the wheelhouse top, the mast in its stowed position, and broken navigational lights.
  8. Exhibit M-10-9 shows the PFDs that were shown to Mr. Langille when he had asked to be shown the vessel's lifejackets. Mr. Langille testified that PFDs do not meet the requirements for this type of vessel - lifejackets are required.
  9. Exhibit M-10-10 is a photograph taken from the aft deck, looking forward with no life ring visible. It was Mr. Langille's opinion that the aft deck was poorly maintained.
  10. Exhibit M‑10-11 shows two vessels tied up alongside each other. Mr. Langille identified them as the F/V Down & Back and the F/V A Lit'l Les.

[31] While at North Lake, Mr. Langille prepared a Transport Canada Deficiency Notice for the F/V Down & Back (Exhibit M‑11). The deficiencies noted were no vessel registration on board, no life ring, PFDs only, no flares, and navigational lights broken.

[32] Upon returning to his office, Mr. Langille performed a records search for the F/V Down & Back. A Transcript of Registry (Exhibit M‑12) and Declaration of Ownership (Exhibit M‑13) were identified and entered as evidence. The Transcript of Registry shows that the F/V Down & Back is owned by Abbie Isle Seafoods Ltd., and the Declaration of Ownership shows that the F/V Down & Back is owned by Abbie Isle Seafoods Ltd. The Declaration is signed by Ernest Elmer Gallant, President, on behalf of Abbie Isle Seafoods Ltd.

[33] The Minister's representative referred to the P.E.I. Corporate/Business Name Registry printout for Abbie Isle Seafoods Ltd. (Exhibit M‑8). Mr. Langille testified that he looked into the certification held by Mr. Gallant and obtained a database printout for these records (Automated Certificate & Examination System Report, Exhibit M‑14). This document shows that Mr. Gallant holds a CFV4 - Fishing Master, Fourth-class certificate, and that Mr. Gallant has written exams and taken marine‑related training.

B. Applicant

[34] The Applicant was not present or represented by counsel.

VI. ARGUMENTS

A. Minister

[35] The Minister's representative submits that Mr. Langille's testimony and evidence provide proof of the violations alleged against Abbie Isle Seafoods Ltd., being the Authorized Representative of the F/V Down & Back and the F/V A Lit'l Les. The Minister's representative states that Mr. Gallant is an experienced and professional fisher who holds professional certification as a Fishing Master Class IV and, as such, he should be aware of the business and regulations involved in fishing. He submits that Mr. Gallant deliberately ignored the instructions laid out on the back of the Registry documents, and the instructions of Mr. McNeill in 2008 on how to mark his vessel. He submits that both vessels are improperly marked, the F/V A Lit'l Les having been marked with its official number but no name, and the F/V Down & Back with its name but no official number. With reference to the F/V Down & Back,he submits that it is “unforgiveable” for a mariner to set out to sea without the proper lifesaving equipment and functioning navigational lights. As well, he submits that the photographs of both vessels show that maintenance was poor. He asks the Tribunal to send a message to the Applicant to ensure its future compliance with Transport Canada Acts and Regulations.

VII. ANALYSIS

A. MA-0232-37 (F/V A Lit'l Les)

[36] I note that on SAR Report 080767 (Exhibit M‑1), there is a copy of some of the information held in the Transport Canada Vessel registry database concerning the F/V A Lit'l Les as of May 13, 2008. On page 4 of that copy is a note dated May 13, 2008, initialed by Mr. McNeill that states he called Mr. Gallant and told him to have the name of his vessel, the F/V A Lit'l Les, displayed correctly. The note indicates that Mr. Gallant's reply was that he was too busy, and that he then hung up on Mr. McNeill.

[37] The copy of SAR Report 120802 (Exhibit M‑2‑1), and the amendment to that Report (Exhibit M‑2‑2), indicates to me that the F/V A Lit'l Les was at sea when it declared a Mayday on June 18, 2012. According to the reports, the vessel was towed to North Lake, P.E.I. by a CCG Auxiliary vessel. Mr. Langille testified that he travelled to North Lake where the operator of the CCG Auxiliary vessel involved in the rescue indicated the F/V A Lit'l Les as the one that was towed into port. This proves to me, on the balance of probabilities, that the F/V A Lit'l Les was in service at the time of the alleged incident, thereby establishing the first element of the offence.

[38] The photograph at Exhibit M‑4‑3, taken by Mr. Langille on June 19, 2012, indicates that the vessel did in fact have its official number marked on its main beam; however, the Arabic numerals were not preceded by the abbreviation “O.N.” as required by the Certificate of Registry Marking Requirements (Exhibit M‑9). The markings for the tonnage of the vessel were required to be preceded by the abbreviation “N.R.T.” and Photograph Exhibit M‑4‑3 shows that this was not done. The Certificate of Registry Marking Requirements state that the name of the vessel must be marked on each bow (Exhibit M‑9). The testimony of Mr. Langille, as well as the photographs at Exhibits M‑4‑1 and M‑10‑11, indicate to me that there was no name marked on either bow of the F/V A Lit'l Les.

[39] While the vessel was marked with its official number, albeit not in the manner specified, the fact that its name was not marked on either bow is sufficient for me to determine that the second element of the case has been proven.

[40] The Declaration of Transfer of Ownership (Exhibit M‑7) shows that the F/V A Lit'l Les is wholly owned by Abbie Isle Seafoods Ltd. The Transcript of Registry signed by the Registrar of Ships (Exhibit M‑6) shows that the Authorized Representative of the F/V A Lit'l Les is Abbie Isle Seafoods Ltd. I accept this as proof of the third and final element in the case.

B. MA-0233-37 (F/V Down & Back)

[41] I accept the testimony of Mr. Langille that he was present on the wharf at North Lake when the F/V Down & Back sailed into port and was secured alongside the F/V A Lit'l Les. The first element in this case is therefore proven.

[42] The second element to be proven is that the vessel, its machinery or its equipment did not meet the requirements of Part 4 of the Act, which are quite broad‑ranging and encompass several regulations. I feel that the clarity of Notice B could have been improved if it had been worded such that the particular requirements alleged not to have been met, were specified by way of regulatory reference.

[43] Mr. Langille testified that there was no life ring or flares on board, and that instead of life jackets, the vessel carried PFDs (Exhibit M‑10‑9). I accept Mr. Langille's testimony in this regard. The requirement to carry life jackets is found in the SFVI Regulations at paragraph 53(3)(a), and the requirement to carry flares is found in those same regulations at paragraph 53(3)(c). I note that paragraph 30(1)(b) of the SFVI Regulations does not require a fishing vessel of greater than 12.2 meters in length to carry a lifebuoy (life ring).

[44] Mr. Langille also testified that the navigational lights were broken and Exhibit M‑10‑8 shows the broken lights. I accept Mr. Langille's testimony in this regard. Subsection 53(4) of the SFVI Regulations requires vessels of this size to carry sufficient lights to comply with the requirements of the Collision Regulations. Mr. Langille's testimony convinces me that this vessel was in contravention of Rules 23 and 26 of the Collision Regulations.

[45] The SFVI Regulations and the Collision Regulations are made pursuant to section 120 of Part 4 of the Act, and therefore I determine that the second element in the case against this vessel has been proven.

[46] The Declaration of Ownership (Exhibit M‑13) shows that the F/V Down & Back is wholly owned by Abbie Isle Seafoods Ltd. The Transcript of Registry signed by the Ship Registrar (Exhibit M‑12) shows that the Authorized Representative of the F/V Down & Back is Abbie Isle Seafoods Ltd. I accept this as proving the third and final element in the case.

C. Penalties

(1) MA-0232-37 (F/V A Lit'l Les)

[47] A ship's name, when properly marked on that ship, serves as a link between the ship and the registry, and hence the authorized representative. It identifies the ship to the regulatory bodies and the public at large. It prevents the ship from being unidentifiable or anonymous. The Administrative Monetary Penalties Regulations, SOR/2008‑97 (AMPRs), set the range of penalties for a violation of subsection 57(1) of the Act from $600 to $10 000, and notes that a separate violation can be issued for each day of the violation. This indicates the importance that the Parliament of Canada places on the requirement to correctly mark, and hence, identify vessels.

[48] The evidence shows that Mr. Gallant, the President/Secretary of Abbie Isle Seafoods Ltd., was told of the requirement to properly mark his vessel, the F/V A Lit'l Les, in May 2008, and that this was not done at that time, and it was not done for over four years. Notice A assesses the minimum penalty of $600. The evidence presented to me indicates that a more substantial penalty is warranted, as a penalty of $600 fails to reflect the gravity of Mr. Gallant's lack of action as President of Abbie Isle Seafoods Ltd., the authorized representative of this vessel. Being told of the requirement to properly mark the vessel, and not having done so for a period of over four years, indicates to me that the authorized representative of this vessel has a history of non‑compliance with requirements regarding the marking of vessels. Mr. Gallant is a trained, certificated and experienced mariner, and as President of Abbie Isle Seafoods Ltd., he should have accepted and acted upon the instructions of Mr. McNeill back in 2008. His persistence in failing to properly mark his vessel is conduct that I would not expect from a professional mariner. Abbie Isle Seafoods Ltd., as the authorized representative, has to accept the responsibility for Mr. Gallant's disregard for the instructions of Mr. McNeill.

[49] Awarding the minimum penalty for a violation that has been in existence for over four years, in the presence of aggravating factors and in the absence of mitigating factors, as is the case here, does not appear to correspond to the intent of Parliament when it set the range of penalties for subsection 57(1) offences. As this fishing enterprise appears to be small, a penalty at the upper end of the scale should not be required in order to obtain the attention of Abbie Isle Seafoods Ltd. I believe a penalty tending towards the lower end of the scale but sufficiently above the minimum, would send a message to Abbie Isle Seafoods Ltd. that compliance with the regulations is not optional, but mandatory, and is called for in this case. Therefore, I substitute the penalty of $600 imposed by the Minister, with a penalty of $2 400.

(2) MA-0233-37 (F/V Down & Back)

[50] The Minister has proven, on the balance of probabilities, that Abbie Isle Seafoods Ltd. failed to ensure that the F/V Down & Back and its machinery and equipment, met the requirements of regulations made under Part 4 of the Act, thereby contravening paragraph 106(1)(a) of the Act.

[51] The AMPRs set the range of the penalties for a violation of paragraph 106(1)(a) of the Act from $1 250 to $25 000. I confirm the minimum monetary penalty of $1 250.

VIII. DETERMINATION

A. MA-0232-37 (F/V A Lit'l Les)

[52] The Minister of Transport has proven, on the balance of probabilities, that the Applicant, Abbie Isle Seafoods Ltd., failed to mark the F/V A Lit'l Les in the form and manner specified by the Chief Registrar, and thereby contravened subsection 57(1) of the Canada Shipping Act, 2001. I substitute the monetary penalty of $600 imposed by the Minister with a penalty of $2 400.

B. MA-0233-37 (F/V Down & Back)

[53] The Minister of Transport has proven, on the balance of probabilities, that the Applicant, Abbie Isle Seafoods Ltd., failed to ensure that the F/V Down & Back and its machinery and equipment met the requirements of the regulations made under Part 4 of the Act, and thereby contravened paragraph 106(1)(a) of the Canada Shipping Act, 2001. I confirm the monetary penalty of $1 250 imposed by the Minister.

October 3, 2013

C. Michael Keefe

Member