Decisions

TATC File No. MQ-0310-38
MoT File No. Q20130923-300-01050

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Sarah Desgagnés (The), Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Eastern Canada Vessel Traffic Services Zone Regulations (ECAREG regulations) (SOR/89-99)
Paragraph 23(d) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Mark A.M. Gauthier


Decision: November 24, 2014

Citation: Sarah Desgagnés (The) v. Canada (Minister of Transport), 2014 TATCE 38 (review)

[Official English Translation]

Heard in: Quebec City, Quebec, August 27, 2014

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the vessel Sarah Desgagnés contravened paragraph 23(d) of the Canada Shipping Act, 2001. The fine of $6,000 imposed by the Minister is hereby reduced to $4,000.

The amount of $4,000 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. BACKGROUND

[1] On September 26, 2013, the Minister of Transport (Minister) issued a notice of violation to the applicant, the Sarah Desgagnés, in respect of a contravention of paragraph 23(d) of the Canada Shipping Act, 2001, S.C. 2001, c. 26 (CSA 2001). The Minister imposed a fine of $6,000 under the Administrative Monetary Penalties Regulations, SOR/2008-97.

[2] Schedule A of the notice of violation reads as follows:

No. Violation Penalty
 

On or around December 7, 2011, in or in the vicinity of Canadian waters, Captain Vladislavs Tutins, master of the vessel SARAH DESGAGNÉS (IMO #9352171) knowingly made a false or misleading statement to a person exercising powers under the Canada Shipping Act, 2001 contrary to paragraph 23(d) of said Act.

In particular, the master supplied false or misleading information to a marine traffic regulator in a report of entry into Canadian waters required by the Eastern Canada Vessel Traffic Services Zone Regulations SOR/89-99.

Pursuant to subsection 238(2) of the Canada Shipping Act, 2001, the vessel SARAH DESGAGNES is being prosecuted as the employer or principal of the master of the vessel with regard to this contravention and is liable for the penalty specified.

$6,000.00

[3] On October 23, 2013, the applicant filed a request for review with the Transportation Appeal Tribunal of Canada.

II. STATUTES AND REGULATIONS

[4] Section 2, paragraphs 6(a) (b) and (c) and 23(d), subsection 126(2), paragraphs 126(3)(a) and (b) and subsection 238(2) of the CSA 2001 read as follows:

2. The definitions in this section apply in this Act.

[…]

“master” means the person in command and charge of a vessel. It does not include a licensed pilot, within the meaning of section 1.1 of the Pilotage Act, while the pilot is performing pilotage duties under that Act.

[…]

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;

[…]

23. No person shall

(d) knowingly provide false or misleading information or make a false or misleading statement, either orally or in writing, to a person, classification society or other organization that is exercising powers or performing duties under this Act; or

[…]

126. (2) The Minister may designate as marine communications and traffic services officers persons in the federal public administration who meet the requirements specified by the Minister.

(3) Subject to any regulations made under section 136, to any other Act of Parliament governing ports or harbours and to the regulations or by-laws made under such an Act, for the purpose of promoting safe and efficient navigation or environmental protection, a marine communications and traffic services officer may, with respect to any vessel of a prescribed class that is about to enter or is within a VTS Zone,

(a) grant a clearance to the vessel to enter, leave or proceed within the VTS Zone;

(b) direct the master, pilot or person in charge of the deck watch of the vessel to provide, in the manner and at any time that may be specified in the direction, any pertinent information in respect of the vessel that may be specified in the direction;

[…]

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.

[5] Subparagraphs 5(1)(a)(i) and (ii) and paragraph 5(2)(r) of the Eastern Canada Vessel Traffic Services Zone Regulations (ECAREG regulations) (SOR/89-99) read as follows:

5. (1) Subject to subsection (6), the master of a ship shall ensure that a report is made

(a) where the ship is about to enter the Eastern Canada Vessel Traffic Services Zone,

(i) 24 hours before entering that Zone, or

(ii) as soon as practicable before entering that Zone, where the estimated time of arrival of the ship at that Zone is less than 24 hours after the time the ship departed from the last port of call;

[…]

(2) A report required in the case referred to in paragraphs (1)(a) and (b) shall specify

(r) any defect in the ship's hull, main propulsion systems or steering systems, radars, compasses, radio equipment, anchors or cables; 

[6] Subsection 2(2) and section 8 of the schedule of the Administrative Monetary Penalties Regulations read as follows:

2. (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.

SCHEDULE

(Section 2)

VIOLATIONS

Item Column 1 Column 2 Column 3
Provision of the Act Range of Penalties ($) Separate Violation for Each Day
     
8. Paragraph 23(d) 1,250 to 25,000  
     

[7] The summary of the regulatory impact analysis statement of the regulations cited above includes the following table:


Gravity
1st Violation
Individual/
Vessel or Corporation
2nd Violation
Individual/
Vessel or Corporation
Subsequent Violation
Individual/
Vessel or Corporation
Low $250 to $1,000 $500 to $2,000 $1,000 to $5,000
Medium $600 to $3,000 $1,200 to $6,000 $2,400 to $2,000
High $1,250 to $6,000 $2,500 to $12,000 $5,000 to $25,000

III. ELEMENTS TO BE PROVEN

[8] On the basis of the notice of violation in this case, I have concluded that the Minister must prove the following elements in order to prove his case:

1. On or around December 7, 2011, Vladislavs Tutins was the master (herein referred to as the captain) and an employee or agent of the vessel SARAH DESGAGNÉS (Sarah Desgagnés) and submitted a statement to a marine traffic regulator in a report of entry into Canadian waters required by the ECAREG regulations.
2. The statement was false or misleading.
3. The statement was made knowingly.

IV. EVIDENCE              

A. Minister

(1) Bernard Lachance

[9] Mr. Lachance is a marine surveyor at Transport Canada.

[10] Mr. Lachance testifies that he met Mr. Pierre Fraser on the dock at Trois Rivières on December 13, 2011.

[11] Mr. Lachance states that Mr. Fraser informed him voluntarily and freely that the Sarah Desgagnés sustained damage at sea before its arrival at Trois Rivières.

[12] Mr. Lachance indicates that he inspected the Sarah Desgagnés and took nine photographs which he enters into evidence (Exhibits M-1 to M-9).

[13] Mr. Lachance testifies regarding the photographs as follows:

a) Exhibits M-1 and M-2 show that the forecastle of the vessel has collapsed.

b) Exhibit M-3 shows an accumulation of water near the door leading to a lower deck.

c) Exhibit M-4 indicates a staircase leading to a lower deck that has dropped by eight to ten inches.

d) Exhibit M-5 indicates a winch whose support is no longer perpendicular.

e) Exhibit M-6 shows a twisted piece of metal next to a pillar under the forecastle.

f) Exhibits M-7, M-8 and M-9 show twisted shelf supports because the deck has collapsed.

[14] Finally, Mr. Lachance enters into evidence a document signed by Captain Tutins which he describes as an internal ISM (International Safety Management Code) document of the Sarah Desgagnés (Exhibit M-10). He adds that this document reveals the damage sustained by the vessel as described in Exhibits M-1 to M-9. This document shall hereinafter be referred to as “internal ISM report”.

[15] During cross-examination, Mr. Lachance admits that he has no idea whether the damage affected the seaworthiness of the vessel.

(2) Laurent Jean

[16] Mr. Jean is a ship inspector.

[17] Mr. Jean enters into evidence a document entitled ECAREG information from Sarah Desgagnés (Exhibit M-11).This document shall hereinafter be referred to as “ECAREG report”.  

[18] Mr. Jean states that this document indicates that in December 2011, the email address of the sender was that of the Sarah Desgagnés.

[19] The applicant's representative does not cross-examine Mr. Jean.

(3) Lise Dufresne

[20] Mrs. Dufresne is a marine communications and vessel traffic services manager and officer.

[21] Mrs. Dufresne identifies page 1 of the ECAREG report as a report containing the information that a vessel must supply to vessel traffic services, in accordance with ECAREG regulations, at least 24 hours before the arrival of a vessel in Canadian waters.

[22] Mrs. Dufresne explains that the phrase “no any defect” appears in point R of page 1 of the ECAREG report.

[23] Mrs. Dufresne states that the person responsible for vessel traffic services who receives the report in accordance with regulations is named pursuant to subsection 126(2) of the CSA 2001.

[24] Mrs. Dufresne enters into evidence Exhibit M-12 which she describes as a document containing the codes for the report issued in accordance with the ECAREG regulations.

[25] The applicant's representative does not cross-examine Mrs. Dufresne.

B. Applicant

(1) Pierre Fraser

[26] Mr. Fraser is the superintendent of operations at Transports Desgagnés.

[27] Mr. Fraser testifies that the captain of the Sarah Desgagnés informed him that the vessel had sustained structural damage only to the deck and that, in his opinion, the damage was not significant enough to oblige him to declare it. In addition, he testifies that the captain added that he considered the vessel to be safe and seaworthy. 

[28] Mr. Fraser supports the captain's statement that the damage did not affect the seaworthiness of the vessel.

[29] Mr. Fraser gives his opinion that the forecastle does not form part of the structure and integrity of the hull of a vessel.

[30] Mr. Fraser testifies regarding Exhibits M-1 to M-9, in particular the following:

a) Exhibits M-1 and M-2, in part, show a slight drop in the forecastle outside and above the water level which, in his opinion, is not structural.

b) Exhibit M-3 indicates a door which is not affected by the damage.

c) Exhibit M-4 indicates a staircase which, in his opinion, is not significant in terms of the damage sustained by the vessel.

d) Exhibit M-5 shows that the winch support is twisted but, in his opinion, the functioning of the device is not affected by the damage.

e) Exhibit M-6 indicates a deformation in a girder supporting the deck but, in his opinion, the girder is solid and continues to support the deck.

f) Exhibits M-7 to M-9 show supports that twisted when the deck dropped. He adds that, in his opinion, the supports are not structural parts.

[31] Mr. Fraser testifies that on the port side of the vessel, some deformations to the steel above the water level, in fact a kind of hollow, had to be repaired; he stated that, in his opinion, these deformations were not serious and he adds that the deck, in collapsing, moved the bulwarks slightly.

[32] Finally, Mr. Fraser expresses the opinion that the captain did not purposely mislead the Canadian inspection authority, repeating that the captain told him that in his opinion the damage was not significant enough to oblige him to declare it.

[33] During cross-examination, Mr. Fraser testifies that the captain wrote the following in the internal ISM report:

On the 4th of December 2011 09:00 LT it was discovered serious damage of Forecastle girders and other internal members...

[34] During cross-examination, a document entitled Interim Certificate, signed by I.D. Ingram, an inspector at Lloyd's Register, the classification society of the vessel, is entered into evidence (Exhibit M-13). Mr. Fraser confirms that Mr. Ingram indicates on the certificate that some cracks were repaired in December 2011. Mr. Fraser indicates that these repairs were of a temporary nature and did not prevent the Sarah Desgagnés from reaching Hamilton, Ontario, and returning to Quebec to carry out the repairs, as planned, before leaving Canada.

[35] Following his request, I allowed the applicant's representative to pose some additional questions to Mr. Fraser.

[36] Mr. Fraser states that, in his opinion, the repairs carried out in Quebec were not significant in terms of the structure of the ship, and that the permanent repairs to the vessel were carried out in the Bahamas the following April.

V. ARGUMENTS

A. Minister of Transport

[37] The Minister's representative argues that the evidence shows that the ECAREG report was submitted to a person named pursuant to subsection 126(2) of the CSA 2001.

[38] The Minister's representative explains that, in accordance with paragraph 5(2)(r) of the ECAREG regulations, the captain was obliged to declare whether or not there were any defects in the hull of the vessel. In his opinion, the captain made a misleading statement when, pursuant to the above wording, he reported that there were no defects.

[39] The Minister's representative states that the hollowing of the steel, of which Mr. Fraser testified, shows that the hull of the vessel was subjected to pressure, and the fact that Lloyd's Register requested that some cracks, of which Mr. Fraser testified, be repaired in Quebec before the vessel left Canada, proves that there were defects in the hull.

[40] The Minister's representative highlights that paragraph 5(2)(r) of the aforementioned ECAREG regulations does not indicate that the defects in the hull should be regarded as major.

[41] In addition, he recalls that the captain reported that the Sarah Desgagnés had sustained damage around December 4, 2011 and that the captain submitted the ECAREG report on December 7, 2011 which, in his opinion, proves that the captain was aware of the existence of the damage when he submitted the ECAREG report.

[42] Finally, he states that the damage sustained by the vessel constituted damage to the hull.

B. Applicant

[43] The applicant's representative states that the applicant acted in good faith by reporting the damage sustained by the Sarah Desgagnés to the authorities in Barbados, the insurer of the vessel and other stakeholders.  

[44] In addition, he states that there was only damage to the forecastle and no damage to either the hull or the main structure of the vessel.

[45] Bearing in mind that, in his opinion, the damage did not affect the hull of the vessel, he states that the applicant did not make a false or misleading statement.

[46] Finally, the applicant's representative states that the damage did not affect the seaworthiness of the vessel.

VI. ANALYSIS

[47] I will analyze the elements to be proven in relation to the count.

[48] For the sake of clarity, paragraph 23(d) of the CSA 2001 reads:

23. No person shall

(d) knowingly provide false or misleading information or make a false or misleading statement, either orally or in writing, to a person, classification society or other organization that is exercising powers or performing duties under this Act; or

[49] The elements to be proven in relation to this wording appear in paragraph [8] above.

[50] The first element is the following: on or around December 7, 2011, Vladislavs Tutins was the captain and employee or agent of the vessel Sarah Desgagnés and submitted a statement to a marine traffic regulator in a report of entry into Canadian waters required by the ECAREG regulations.

[51] Mr. Fraser testified during cross-examination that the internal ISM report was a document written by the captain of the vessel. The report indicates clearly that V. Tutins is the captain of the Sarah Desgagnés.

[52] The testimonies of Mr. Jean and Mrs. Dufresne prove that the ECAREG report is a report submitted on December 7, 2011 by the Sarah Desgagnés before the arrival of the vessel in Canadian waters, as required by the ECAREG regulations. The name of V. Tutins, as captain of the Sarah Desgagnés, appears at the bottom of page 1 of the document.

[53] In addition, I accept the testimony of Mrs. Dufresne that the person responsible for vessel traffic services who received the report is a person named in accordance with subsection 162(2) of the CSA 2001, and therefore is a person who exercises power under the CSA 2001, as required by paragraph 23(d) of the Act.

[54] Pursuant to subsection 238(2) of the CSA 2001, the employer or the principal – whether a person or a vessel – is responsible for the violation committed, in the course of his or her employment or mandate by an employee or representative.

[55] As indicated above, the evidence shows that V. Tutins was the captain of the vessel.

[56] The word “captain” is defined in the CSA 2001 as the person in command and charge of a vessel; therefore, the nature and scope of the duties of a captain are such that, in my opinion, by the very fact of holding this position, in this case captain Tutins is employed by the ship and acts as its principal.

[57] Furthermore, I add that it has not been contested that Vladislavs Tutins was the captain and employee or principal of the Sarah Desgagnés in December 2011.

[58] Consequently, I conclude that the Minister has proven, on a balance of probabilities, the first element of the violation allegedly committed by the applicant.

[59] The second element is the following: the statement was false or misleading.

[60] For the sake of clarity, paragraph 5(2)(r) of the ECAREG regulations applies regarding the statement in this case, and reads as follows:

5. (2) A report required in the case referred to in paragraphs (1)(a) and (b) shall specify

(r) any defect in the ship's hull, main propulsion systems or steering systems, radars, compasses, radio equipment, anchors or cables; 

[61] Remember that the phrase “no any defect” appears in point R of the report submitted in accordance with the ECAREG regulations.

[62] Thus, the statement in point R of the ECAREG report shall be false or misleading, in my opinion, if at least one of the instances of damage sustained by the Sarah Desgagnés is believed to be a defect in the hull of the vessel, in the sense of paragraph 23(d) of the CSA 2001.

[63] I add that it is not contested that the damage sustained by the vessel constitutes “defects”; the only question to be resolved in the case is whether there were defects in the “hull”.

[64] It is a highly contentious issue and, in order to address it, a useful starting point is to briefly review the testimonies and opinions of the witnesses as well as the submissions of the representatives in this case.

[65] It would not be an exaggeration to claim that the witnesses and submissions, of both the respondent and the applicant, point to a clear difference of opinion on the issue.

[66] In short, the evidence presented by the witnesses, of both the Minister and the applicant, shows that there was damage to the forecastle, a staircase, a girder, a winch, bulwarks, shelf supports (Exhibits M-1 to M-9) and the internal parts mentioned in the internal ISM report but not identified.

[67] In addition, Mr. Fraser testified that the vessel sustained other damage but stated that it was discovered only after the ship reached Trois Rivières; therefore, it is not relevant in this case because it was not known at the time the captain submitted the report. This testimony was not contested.

[68] The Minister's witnesses describe the damage to the vessel in clear and objective terms.

[69] Mr. Fraser, as well as the representatives of the Minister and the applicant, expressed the following opinions on the issue.

[70] Mr. Fraser claims that the damage sustained by the vessel, in particular the damage to the forecastle and the girder supporting the deck, is not of a structural nature and does not form part of the hull of the vessel. He added that, in his opinion, none of the damage affected the safety or seaworthiness of the vessel.

[71] The Minister's representative, for his part, maintains, in short, that the damage described by all of the witnesses constitutes damage to the hull of the vessel and, in addition, that all of the damage to the hull of the vessel should be declared in accordance with the ECAREG regulations, whether it is regarded as serious or not.  

[72] The applicant's representative, for his part, states, in short, that the damage to the forecastle does not constitute damage to the hull of the vessel. He expresses the opinion that the captain did not report the damage because he believed that it did not affect the hull of the vessel and had no effect on its seaworthiness. Consequently, in his opinion, it follows that the captain did not make a false or misleading statement.  

[73] In short, the respondent invites me to rule that the damage sustained by the Sarah Desgagnés constitutes damage to the hull and the applicant invites me to arrive at the opposite conclusion.

[74] How, then, to reconcile the different opinions on this difficult issue?

[75] I must say straight away that a more thorough analysis is required in order for me to be able to rule on this issue.

[76] In my opinion, I must take into account two separate aspects:

a) the ordinary and natural meaning of the word “hull”;

b) the relevant legislative context.

[77] I arrive at this conclusion on the basis of a statement by the author of the well-known text Côté –Interprétation des lois, fourth edition. On page 43, the text states that although references to current language and to common dictionary definitions is often useful in the interpretation of laws, one must take into account not only the ordinary and natural meaning of words but also the context in which they are used and the purpose of the provision as a whole.

[78] Regarding dictionary definitions, the following two examples are useful.

[79] The word “coque”[hull], with regards to a vessel, is defined in the Grand Larousse de la langue française, 1972, volume 2, as “corps d'un navire, considéré indépendamment du gréement et de la mature” [the body of a vessel exclusive of rigging and masting].

[80] The same word is defined in René de Kerchove, International Maritime Dictionary, second edition, as follows: “the body of a vessel exclusive of masts, sails, rigging, machinery and equipment”.

[81] I am struck by the similarity between the two definitions; the first is found in a general dictionary and the second in a specialist nautical dictionary. The two definitions are of a general nature and I note that only a few specific pieces or parts of the vessel are believed to be excluded from the “body” of a vessel.

[82] The Minister's representative claimed in paragraph [40] above that paragraph 5(2)(r) of the ECAREG regulations does not indicate that defects to the hull of a vessel should be regarded as major.

[83] I endorse this view; therefore, in my opinion, any defects in the hull, whether major or not, should be reported in accordance with the ECAREG regulations.

[84] I shall now consider the contextual considerations of the relevant legislation.

[85] In my opinion, two provisions of the CSA 2001 are particularly relevant in the case in point, namely paragraphs 6(a) and (b), and 126(3)(a) and (b).

[86] Section 6 describes the purpose of the Act. I am of the opinion that such wording, while not a substantive provision, nevertheless reveals the legislator's understanding of the purpose of the Act in the public interest. Thus, the main goals in the public interest are to protect the health and well-being of persons, in particular the crew, to promote the safety of maritime transport and to protect the marine environment.

[87] From my reading of paragraphs 126(3)(a) and (b), authorities who provide navigation services, described in Part 5 of the Act, also do so in the public interest; in other words, in order to promote the safety and effectiveness of navigation, and the protection of the environment.

[88] It must be remembered that Part 5 of the Act contains the power to regulate vessel traffic, including the supply of information by vessels, through, for example, the ECAREG regulations.

[89] In my opinion, the report that must be supplied by the captain of a vessel in accordance with the ECAREG regulations, in particular pursuant to paragraph 5(2)(r), aims to provide a tool for government authorities, enabling them to exercise their mandates in the light of the aforementioned legislative objectives.

[90] Even if it is trite to claim that as a matter of good seamanship, a captain is always concerned with the safety and seaworthiness of the vessel under his command, the ECAREG regulations nevertheless require a report on all defects in the hull of a vessel, not only those which, in the captain's opinion, threaten the safety or seaworthiness of the vessel. 

[91] Finally, I conclude the following:

a) The ordinary and natural meaning of the word “hull” appears in the aforementioned dictionary definitions; namely, the broad definition “the body of the vessel” subject nevertheless, to the exceptions found in these definitions. In my opinion, the damage sustained by the Sarah Desgagnés does not fall within the exceptions, except for the damage to the winch which, in my view, constitutes equipment. I add that no mention is made in the definitions that the body of the ship is made up only of structural parts.

b) Interpreting the term “hull” by giving it a narrower meaning than its ordinary and natural meaning, for example, by claiming that a forecastle or a girder supporting it do not form part of the hull of a vessel, in my opinion, would go against the legislative context, in particular the public interest and the aim of the ECAREG regulations described above.

[92] In short, I rule that with the exception of the damage to the winch, the damage sustained by the Sarah Desgagnés described in the evidence constitutes defects in the hull of the vessel and it follows that the captain's statement indicating “no any defect” in point R of the ECAREG report is false or misleading in the sense of paragraph 23(d) of the CSA 2001.

[93] Consequently, I conclude that the Minister has proven, on a balance of probabilities, the second element of the violation allegedly committed by the applicant.

[94] The third element is the following: the statement was made knowingly.

[95] In the case of this element, as in the case of the second element, the ordinary meaning of the word “knowingly” may be drawn from a definition in a current dictionary.

[96] I return to the Grand Larousse de la langue française, 1972, volume 6, where the word “sciemment”[knowingly] is defined as “avec pleine connaissance, en sachant parfaitement ce que l'on fait”[with full knowledge, knowing full well what one is doing].

[97] In my opinion, a contextual analysis would not shed any more light on the meaning of the word as it appears in paragraph 23(d) of the CSA 2001.

[98] However, it is useful to recall a principle in the interpretation of paragraph 23(d) which is indicated in the case of Caron v. Minister of Transport, 2012 TATCE 9 (review) (MQ-0079-33) (Caron). In paragraph 70, the member states that, within the framework of paragraph 23(d) of the CSA 2001, the person who makes a statement covered by this wording assumes the responsibility for ensuring the truth of the information contained in the statement.

[99] Thus, having already concluded that the Minister has established that the Sarah Desgagnés sustained damage to the hull and that the statement made by the captain of the vessel in the ECAREG report is false or misleading, I must now determine whether or not, in the light of the evidence, the statement was made knowingly.

[100] In the relevant parts of his testimony, it is worth recalling that Mr. Fraser stated that the captain of the vessel told him that, among other reasons, he did not report the damage in the ECAREG report because he believed that the damage was not significant enough and that only the deck was affected.

[101] However, during cross-examination, Mr. Fraser describes the internal ISM report as a document written by the captain in which it is stated unequivocally that the Sarah Desgagnés had sustained serious damage to the girders of the forecastle and other internal parts.

[102] In short, the Minister's representative claims that the captain was aware of the damage to the hull of the vessel when he wrote the ECAREG report.

[103] In short, the applicant's representative stated his opinion that the captain did not report the damage sustained by the Sarah Desgagnés because he believed that it was not significant enough, did not affect the seaworthiness of the vessel and there was no damage to the hull of the ship. In addition, he maintains that the captain did not make a false or misleading statement.

[104] I conclude the following:

a) The captain's statement in the ECAREG report clearly contradicts what Mr. Fraser had reported that the captain had told him verbally.

b) As a question of evidence, the captain's written statement in the internal ISM report has much greater probative value than Mr. Fraser's testimony on what the captain told him.

c) The internal ISM report proves that the captain was aware of the fact that several parts of the vessel had sustained serious damage.

d) The ECAREG report proves that the captain stated that there was no damage to the hull of the vessel.

[105] Bearing in mind the principle outlined in the Caron case and the conclusions outlined in the previous paragraphs, and since I have already ruled that the vessel sustained damage to its hull, I conclude that the captain of the Sarah Desgagnés made a false or misleading statement in the ECAREG report in full knowledge of the facts; therefore “knowingly”, according to the dictionary definition of the word.

[106] Consequently, I conclude that the Minister has proven, on a balance of probabilities, the third element of the violation allegedly committed by the applicant.

[107] I shall now address the issue of the penalty.

[108] The Minister imposed a fine of $6,000 which I must confirm or amend; however, I am bound by the range of penalties appearing in paragraph [6] above. I can also take into consideration the information contained in the table in paragraph [7] above, but I am not bound by it because it does not form an integral part of the Administrative Monetary Penalties Regulations.

[109] The Civil Aviation Tribunal stated in the case Minister of Transport v. Wyer (review) (O-0075-33) that a list of factors may be considered in order to find an appropriate balance in the light of the principles governing the imposition of a fine. These factors shall be considered, on the one hand, as aggravating factors and, on the other hand, as mitigating factors, but the Tribunal adds that the list of factors is not exhaustive.

[110] In this case, I believe that there are two mitigating factors, in particular, the degree of collaboration with the authorities and the consequences of the violation on safety, as follows:

a) The testimonies of Mr. Lachance and Mr. Fraser prove the applicant's cooperation with Transport Canada officials, in particular, the behaviour of Mr. Fraser. Mr. Fraser is the person who informed Mr. Lachance quite frankly that the Sarah Desgagnés had sustained damage at sea before its arrival at Trois Rivières and, in addition, provided him with a copy of the internal ISM report.

b) Despite the fact that evidence shows that the ship sustained serious damage, the Sarah Desgagnés was not prevented from continuing its journey to Hamilton, Ontario, and returning to Quebec. Not having prevented the vessel from navigating the seaway, in my opinion, indicates that the risk of endangering safety decreased upon arrival of the vessel in internal waters, therefore demonstrating a reduction of the consequences of the violation on safety, one of the mitigating factors.

[111] Consequently, I reduce the penalty from $6,000 to $4,000.

VII. DETERMINATION

[112] The Minister of Transport has proven, on a balance of probabilities, that the vessel Sarah Desgagnés contravened paragraph 23(d) of the Canada Shipping Act, 2001. The fine of $6,000 imposed by the Minister is hereby reduced to $4,000.

November 24, 2014

Mark A.M. Gauthier

Member