Decisions

TATC File No. MQ-0364-37
MoT File No. Q20140507-302-01116

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Océan Remorquage Trois-Rivières Inc. , Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
subsection 109(1) and paragraph 106(1)(b) of the Canada Shipping Act, 2001, S.C. 2001, c. 26


Review Determination
Yves Villemaire


Decision: August 3, 2016

Citation: Océan Remorquage Trois-Rivières Inc. v. Canada (Minister of Transport), 2016 TATCE 22 (Review)

[Official Translation]

Heard in: Quebec City, Quebec, May 11 and 12, 2016

REVIEW DETERMINATION AND REASONS

Held 1: I rule in favour of the applicant, Océan Remorquage Trois-Rivières Inc., and I dismiss the alleged violation. The Minister did not prove, based on the balance of probabilities, that section 109 of the Canada Shipping Act, 2001 was violated by Océan Remorquage Trois-Rivières Inc. on or around December 15, 2013. The monetary penalty of $7,800 is cancelled.

Held 2: I rule in favour of the applicant, Océan Remorquage Trois-Rivières Inc., and I dismiss the alleged violation. The Minister did not prove, based on the balance of probabilities, that paragraph 106(1)(b)of the Canada Shipping Act, 2001 was violated by Océan Remorquage Trois-Rivières Inc. on or around December 15, 2013. The monetary penalty of $7,800 is cancelled.

I. BACKGROUND

A. Cléa Chiasson - Docket: TATC MQ-0397-33

[1] On May 11, 2015, the Minister of Transport issued a Notice of Violation to the applicant, Cléa Chiasson, relating to part 2 of section A-VIII/2 of the STCW Code and section 213 of the Marine Personnel Regulations. The Minister imposed a monetary penalty of $1,250 on the applicant.

[2] Schedule A of the Notice of Violation states as follows:

Violation Penalty

On or around December 15, 2013, on the St. Lawrence River in the province of Quebec, the master of the vessel “André H” (O.N. 318301), Cléa Chiasson, (CDN 7340X) failed to ensure that its intended voyage was planned in accordance with part 2 of section A-VIII/2 of the STCW Code, thereby violating section 213 of the Marine Personnel Regulations.

Specifically, he failed to ensure that its voyage was planned properly, which caused two barges that it was towing to run aground.

$1,250.00

[3]  On June 24, 2015, Cléa Chiasson filed a request for a review with the Transportation Appeal Tribunal of Canada (Tribunal) of the aforementioned Notice of Violation.

B. Océan Remorquage Trois-Rivières Inc. - Docket: MQ-0364-37

[4] On July 9, 2014, the Minister of Transport issued a Notice of Violation to the applicant, Océan Remorquage Trois-Rivières Inc., relating to subsection 109(1) and paragraph 106(1)(b) of the Canada Shipping Act, 2001 (Act). The Minister imposed two monetary penalties of $7,800 on the applicant.

[5] Schedule A of the Notice of Violation states as follows:

Violation Penalty

On or around December 15, 2013, on the St. Lawrence River in the province of Quebec, the master of the vessel “André H” (O.N. 318301), Cléa Chiasson, (CDN 7340X) failed to take all reasonable steps to ensure the safety of the vessel and of persons on board, in violation of subsection 109(1) of the Canada Shipping Act, 2001.

Specifically, he failed to ensure that its voyage was planned properly, which caused two barges that it was towing to run aground.

Under subsection 238(2) of the Canada Shipping Act, action is being taken against the O/N “André H” (O.N. 318301) as employer or agent of the master of the vessel in regard to this violation and is liable for the prescribed penalty.

$7,800.00

On or around December 15, 2013, on the St. Lawrence River in the province of Quebec, Océan Remorquage Trois-Rivières Inc., being the authorized representative of the vessel “André H” (O.N. 318301), failed to develop procedures for the safe operation of the vessel and for dealing with emergencies, in violation of paragraph 106(1)(b) of the Canada Shipping Act, 2001.

Specifically, during the towage operation, the vessel lost two of three barges, which caused these two barges to run aground on the north shore of the Gaspé Peninsula.

$7,800.00

[6] On August 4, 2014, Océan Remorquage Trois-Rivières Inc. filed a request for review with the Tribunal of the aforementioned Notice of Violation.

II. STATUTES AND REGULATIONS

[7] Section 105, paragraph 106(1)(b), subsection 109(1), subsection 238(2) and section 244 of the Act read as follows:

105 This Part applies in respect of Canadian vessels, other than pleasure craft, everywhere and in respect of foreign vessels in Canadian waters.

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

[…]

(b) develop procedures for the safe operation of the vessel and for dealing with emergencies;

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.

238 (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee's employment or within the scope of the agent's authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.

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

(a) respecting clearances for departure from a port in Canada;

(b) respecting the investigation of shipping casualties, the alleged contravention of a relevant provision or an incident that involved a vessel and that, in the opinion of the Minister, jeopardized the safety of persons;

(c) respecting the detention of vessels, including the review of detention orders;

(d) specifying the circumstances in which a vessel is deemed abandoned;

(e) respecting the sale of a vessel under section 226, including measures that must be taken before the vessel is sold and the manner of establishing, and the priority of payment of, claims against the vessel;

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

(g) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued;

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

(i) respecting emergency and safety procedures for the purpose of paragraph 211(4)(d.1);

(j) respecting the service of documents required or authorized to be served under this Part, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served; and

(k) prescribing anything that by this Part is to be prescribed.

[8] Section 213 of the Marine Personnel Regulations and paragraph 2 of section A-VIII/2 of the STCW Code reads:

213 Subject to section 252, the master of a vessel shall ensure that its intended voyage is planned and that a deck watch is maintained in accordance with Parts 2, 3 and 3-1 of section A-VIII/2 of the STCW Code.

III. PRELIMINARY ISSUES

[9] The parties expressed their agreement to use the joint approach to deal simultaneously with cases MQ-0364-37 and MQ-0397-33.

[10] The applicants' representative argued that the Canada Shipping Act, 2001 does not allow the use of the provisions of its section 244 in reference to the new STCW Code, but the parties nevertheless agreed to start the hearing subject to continuing this argument at a later time.

IV. ELEMENTS TO BE PROVEN

A. Cléa Chiasson (Docket TATC no. MQ-0397-33)

[11] To establish proof of the violation, the Minister must demonstrate that on or around December 15, 2013 on the St. Lawrence River:

a) The ANDRÉ H. was a Canadian vessel.

b) Cléa Chiasson was the master of the ANDRÉ H.

c) Cléa Chiasson failed to ensure that its intended voyage was planned in accordance with part 2 of section A-VIII/2 of the STCW Code.

B. Océan Remorquage Trois-Rivières Inc.(Docket TATC no. MQ-0364-37)

[12] To establish the proof of violation no. 1, the Minister must demonstrate that on or around December 15, 2013 on the St. Lawrence River:

a) The ANDRÉ H. was a Canadian vessel.

b) Cléa Chiasson was the master of the ANDRÉ H.

c) Océan Remorquage Trois-Rivières Inc. was the employer or agent of Cléa Chiasson.

d) Cléa Chiasson failed to take all reasonable steps to ensure the safety of the vessel.

[13] To establish the proof of violation no. 2, the Minister must demonstrate that on or around December 15, 2013 on the St. Lawrence River:

a) The ANDRÉ H. was a Canadian vessel.

b) Océan Remorquage Trois-Rivières Inc. was the authorized representative of the ANDRÉ H.

c) Océan Remorquage Trois-Rivières Inc. failed to develop procedures for the safe operation of the vessel and for dealing with emergencies.

V. EVIDENCE

A. Minister

(1) Marino Frattin

[14] Marino Frattin has been a senior marine safety inspector in Baie-Comeau since 2002. He testified that he conducted an inspection on board the tug ANDRÉ H. on December 16, 2013 in Baie-Comeau following the grounding of two barges towed by this vessel. He provided as evidence the following documents from the Transport Canada database: “Registration Details, ANDRÉ H.” (Exhibit M-1), “Registration Details, I.V. No. 8” (Exhibit M-2), “Registration Details, I.V. No. 9” (Exhibit M-3), “Registration Details, I.V. No. 10” (Exhibit M-4).

[15] Inspector Frattin produced the documents “Log Book, ANDRÉ H., December 10-16, 2013” (Exhibit M-5) and “Geographical map, Gaspé Peninsula, Anse de Mal-Bay” (Exhibit M-6). The log book excerpts confirmed Mr. Chiasson as the master of the ANDRÉ H. for the period in question. The notes of December 10 describe the preparation for departure from Dalhousie with a wind of 20 to 25 knots. The notes of December 11 describe winds of 24 knots and the decision to moor in Mal-Bay to wait for more favourable weather conditions. The notes of December 13 describe waves of 1.5 metres, freezing spray and westerly winds at 20 knots prevailing offshore, observed and confirmed by other ships.

[16] The notes of December 14 describe weighing anchor at 20:37 to head toward Trois-Rivières only to anchor again to secure the towline properly. The notes describe persistent winds from the west-northwest at 20 knots. The notes of December 15 describe the vessel weighing anchor again at 02:30 reaching its anticipated speed at 07:15 and abeam of Rivière-aux-Renard at 10:45 doing 7 knots.

[17] Inspector Frattin explains that the notes show that the voyage unfolded normally until 19:00 when the line of the barge IV-10 broke due to two-metre seas and northeasterly winds of 25 knots. The notes describe that the barge IV-9 was not visible at that time and that the barge IV-10 ran aground at 20:55.

[18] Inspector Frattin produced the document “Radio Aids to Marine Navigation 2013” (Exhibit M-7). He explained that the marine forecast area no. 218 (Chaleurs-Miscou) includes the town of Dalhousie and that Anse de Mal-Bay is located at the junction of areas 218 and 219 (Anticosti).

[19] Inspector Frattin produced the documents “Marine Weather Forecast, Maritimes, 20 H, December 14, 2013” (Exhibit M-8) and “Marine Weather Forecast, St. Lawrence, 3H, December 15, 2013” (Exhibit M-9). He testified that at midnight on December 14, when the tow was waiting in Anse de Mal-Bay, the forecasts for the Chaleurs-Miscou and Anticosti areas applied. Specifically, the forecasts for Anticosti became relevant as the voyage unfolded. On December 14, these forecasts included a warning for wind gusts and freezing spray. Winds from the northwest of 25 to 35 knots were to diminish during the night and resume the next day - Sunday, December 15 - increasing from the northeast to reach 30 to 40 knots.

[20] Inspector Frattin produced the documents “Report, Alert and Warning Network, ANDRÉ H.” (Exhibit M-10) and “STCW Excerpt, 2011 edition, Section A-VIII/2” (Exhibit M-11). Section 213 of the Marine Personnel Regulations states that the master of a vessel shall ensure that its intended voyage is planned and that a deck watch is maintained in accordance with parts 2, 3 and 3-1 of section A-VIII/2 of the STCW Code.

[21] He listed the prescriptions of parts 2, 5 and 6 of the Code. In accordance with part 2, the voyage must be planned in advance based on all pertinent information and any route plotted on the chart must be verified before the start of the voyage. In accordance with part 5, before every voyage, the master of any vessel must ensure, when plotting the route between the departure port and the first stopover port, the use of adequate and appropriate charts and other nautical publications necessary for the intended voyage that contain accurate, complete and current information on the permanent or predictable navigational limitations and risks of concern to safe navigation of the vessel. In accordance with part 6, once the planned route has been verified based on all pertinent information, it must be clearly displayed on appropriate charts and the officer in charge of the watch, who must verify each route to follow before using it, must be able to refer to it at all times during the voyage.

[22] Inspector Frattin produced the document “IMO Resolution, A.893 (21), Guidelines for Voyage Planning” (Exhibit M-12). He listed the prescriptions of clauses 1.1, 2.1, 3.2 and 4.2 of the Resolution. Clause 1.1 states that the development of a plan for voyage or passage, as well as the close and continuous monitoring of the vessel's progress and position during the execution of such a plan, are of essential importance for safety of life at sea, safety and efficiency of navigation and protection of the marine environment. Clause 2.1 states that all information relevant to the contemplated voyage or passage should be considered. It also states that in planning the voyage, information on the manoeuvrability of the vessel and cargo stowage, charts required for the voyage, tide tables and meteorological information should be taken into account. Clause 3.2 states that the voyage plan should include such items as the plotting of the route, all areas of danger and the main elements to ensure safety of life at sea, safety and efficiency of navigation, and protection of the marine environment. These elements include such items as safe speed, having regard to the manoeuvring characteristics of the vessel, and contingency plans for alternative action to proceed to a port of refuge in an emergency. Clause 4.2 states the factors that should be taken into account including such items as meteorological conditions.

[23] Inspector Frattin testified that in his opinion, there was no specific towage procedure on board the ANDRÉ H. at the time of the incident. He explained that during an investigation, to establish that good general towage practices exist, he refers to the guidelines published by the IMO, as well as other specialized works on the subject. He produced the document “IMO Guidelines, ‘Guidelines for Safe Ocean Towing'” (Exhibit M-13). He listed the prescriptions of clauses 6.1, 6.2, and 6.3 of the guidelines. Clause 6.1 of the document states that all aspects of the towage should be planned in advance, taking into account such factors as environmental conditions including the displacement and windage of the tow. Clause 6.2 states that there should be a contingency plan to cover the onset of adverse weather, particularly in respect of arrangements for heading to or taking shelter. Clause 6.3 states that there should be a towing manual describing routine and special operations.

[24] Inspector Frattin listed the prescriptions of subsections 4(1), 5(1), 5(3), 7 and 14(1) of the Charts and Nautical Publications Regulations, 1995. Subsection 4(1) states that the master and owner of every ship shall have on board the most recent editions of the charts, documents and publications that are required to be used. Subsection 5(1) states that the most recent edition of a chart shall be used to plan and display a ship's route for an intended voyage. Subsection 5(3) states that the chart may only be in electronic form if it is displayed on an Electronic Chart Display and Information System (ECDIS). Section 7 states that the master shall ensure that the required charts, documents and publications are correct and up-to-date, before being used for navigation. Subsection 14(1) states that the master shall ensure, before proceeding to sea, that the intended voyage has been planned using the most recent editions of the required charts, documents and publications. However, I note that the violation was not issued under the Charts and Nautical Publications Regulations, 1995.

[25] Inspector Frattin produced the documents “Notebook of Inspector M. Frattin, December 12-17, 2013” (Exhibit M-14) and “Notice board, Charts on board the ANDRÉ H., December 16, 2013” (Exhibit M-15). Based on these documents, he testified that neither routes nor positions were plotted on the charts, some charts were not recent and that none were up-to-date. He testified that even the electronic charts of the SeaMap system on the vessel were not up-to-date.

[26] Inspector Frattin testified that Mr. Chiasson was cited for violating section 213 of the Marine Personnel Regulations, a penalty designated in the Administrative Monetary Penalties and Notices (CSA 2001) Regulations (SOR/2008-97). He explained that the minimum penalty of $1,250 was imposed.

[27] Inspector Frattin produced the document “Marine Compliance and Enforcement Manual” (Exhibit M-16). He explained that the guidelines for establishing the amount of an administrative monetary penalty require the determination of such factors as the gravity of the violation, the minimum amount and the mitigating or aggravating circumstances. He explained that this manual describes any violation of subsection 109(1) and paragraph 106(1)(b) of the Canada Shipping Act, 2001 as having high gravity and carrying a penalty of $6,000 for a company's first infraction without aggravating factors. He testified that he had factored in aggravating circumstances - including the fact that the violation resulted in a marine casualty - to decide to increase the violation amount by 30 per cent. He clarified that the loss of barges and the lack of planning were aggravating factors.

[28] Inspector Frattin testified that the routes were not plotted on the charts in question, i.e. 4026, 1236 and 1226. He explained that he took a photo of the document “List of routing points, ANDRÉ H., (copy of photos)” (Exhibit R-1) to determine whether a route plan had been established for the voyage. He testified that he did not remember observing the route plotting on the electronic chart as presented in the document “Electronic display, routing points and route: Île Plate to Les Escoumins (copy of photos)” (ExhibitR-2).

[29] The applicant's representative presented a bundle of meteorological notes recorded up to 03:00 p.m. on December 15 in the document entitled “Weather forecast notes: December 11-15, 2013” (Exhibit R-6). Inspector Frattin recognized these notes presented by the master of the ANDRÉ H. during his inspection.

[30] Inspector Frattin stated that, in his opinion, the document “Voyage Report from Anse de Mal-Bay to Trois-Rivières” including the “Voyage Notes” (Exhibit R-3, p. 4) does not meet the criteria of a voyage plan because it does not mention the water depths, routing points, turn points, tides, narrow passages, calling-in-points, weather forecasts, ports of refuge, etc. He testified that he did not see the document when he inspected the vessel. He admitted that the “Radio Aids to Marine Navigation” (R-3, p. 6-8) excerpts were definitely on board. However, he stated that the pertinent data should be summarized in a well-established voyage plan, which would prevent continuously referring to the reference documents. He admitted that no voyage plan format is specified by the regulations. However, he acknowledged that the pertinent weather forecast areas for the voyage were highlighted in yellow in the document produced (R-3, p. 9).

[31] Inspector Frattin testified that, in his opinion, the document entitled “Voyage Report: Dalhousie – Île Aux Coudres, C. Chiasson” (Exhibit R-4) did not meet the requirements of a voyage plan in terms of a Port State Control inspection. It apparently lacked certain references to nautical charts and publications as well as an indication of the listed routing points that must be used for the voyage. He admitted that the last page of the document (R-4, p. 4) could be considered part of a voyage plan but it is lacking in detail; it should, for example, make reference to the nautical charts.

[32] Inspector Frattin testified that the mooring in Anse de Mal-Bay may be considered a port of refuge despite the fact that it was not designated as such in the document entitled “Voyage Report: Malbaie – Trois-Rivières, C. Chiasson” (Exhibit R-5). He also admitted that the decision to moor in this location appeared reasonable in the circumstances and that the document included notes on the tides.

[33] The applicant's representative presented the document “AIS Vessel Tracking, ANDRÉ H., December 16, 2013” (Exhibit R-7). Inspector Frattin recognized this document as the printout of the AIS tracking for the ANDRÉ H. of December 16 but refrained from making a statement on the meaning of the presence of other ships apparently following their route on that day. Under re-examination, he explained that the significance of a vessel marked by a triangle symbol on the paper document cannot be determined and the tracking system would have to be queried to determine whether it is a sailboat or an oil tanker.

[34] The applicant's representative presented the documents “Ship Station (Radio) Regulations, 1999” (Exhibit R-8) and “Radio Coverage Prediction, Atlantic (4-12), St. Lawrence (4-13)” (Exhibit R-9). Inspector Frattin explained that NAVTEX is a device that automatically prints weather forecasts and that its use is preferred over listening to VHF. He stated that he noted in his inspection report that the device was not working; however, he did not suggest that this shortcoming contributed to the infraction. He testified that since the ANDRÉ H. is certified to navigate beyond VHF coverage, it should be equipped with such a device. However, he acknowledged that the vessel was not required to use the NAVTEX during his inspection because it had not taken a voyage beyond the limits of a VHF coverage area as prescribed by subsection 14(1) of the Ship Station (Radio) Regulations, 1999.

[35] The applicants' representative presented the documents “Ocean Group ISM, Operational Guidelines Manual” (Exhibit R-10) and “Ocean Group ISM, Checklist – Barge Towage Preparation” (Exhibit R-11). Inspector Frattin stated that this document (Exhibit R-10) fails to meet the requirements for developing procedures for the safe operation of the vessel and for dealing with emergencies stipulated in paragraph 106(1)(b) of the Canadian Shipping Act, 2001. He maintained that it is a general document that does not specifically cover the work of long-distance towage, including the configuration of a tow and acceptable meteorological conditions. He also maintained that the checklist (Exhibit R-11) proved insufficient for a novice to prepare to perform towage safely.

[36] The applicants' representative presented the document “Ocean Group ISM, On-board Emergency Response Plan, ANDRÉ H.” (Exhibit R-12). Inspector Frattin testified that the master did not show him this document during his inspection and that the master denied having a document on towage procedures. Inspector Frattin maintained that this document covers many emergency measures but does not cover towage adequately. Specifically, the document does not describe how to recover a barge set adrift after a line breaks.

[37] The applicants' representative presented the document “Case Report, ANDRÉ H., December 16, 2013, Inspector M. Frattin” (Exhibit R-13). Inspector Frattin testified that the master's decision to take refuge in Baie-Comeau following the incident was correct given the prevailing north-easterly winds at that time. He admitted lifting the ban on the ANDRÉ H. setting sail after the development of a voyage plan that essentially involved plotting the route between Baie-Comeau and the barges' grounding site on a corrected chart. He testified that it involved an emergency then and the ANDRÉ H. was the closest ocean-going tug to the disaster site with the capacity to recover the barges that contained a polluting substance.

[38] He testified that a contingency plan contains the measures for dealing with emergencies while a voyage plan predicts the options based on possible scenarios. He stated that the trip between Baie-Comeau and Sainte-Anne-des-Monts gave rise to a contingency plan because there was a danger of pollution. However, he admitted that in his report of December 16 (R-13), he authorized the departure of the ANDRÉ H. following the preparation of a route plan and not a contingency plan.

B. Applicant

(1) Cléa Chiasson

[39] Cléa Chiasson testified about his experience as a tug master in Eastern Canada including the Lower North Shore of the St. Lawrence River. He stated that among other tasks he had brought a tug to safe harbour in Sainte-Anne-des-Monts in winds from the northwest at some 30 knots as well as in the Natashquan ice in February.

[40] Mr. Chiasson testified that the route of the ANDRÉ H. had been established before the voyage in several segments as represented on the MaxSea electronic chart (Exhibit R-2). He admitted that he had not reported on the paper charts the routing points reproduced on the electronic chart (Exhibits R-1 and R-2).

[41] Mr. Chiasson testified that the voyage plan included the departure and arrival points, distance to travel, estimated time of arrival and the list of routing points and calling-in-points recorded in the voyage reports (Exhibits R-4, R-5). He explained that, from this list, only the required routing points were used (Exhibit R-4, p. 3). He testified that he had all the voyage plan information gathered in a folder, including the information on the weather and tides.

[42] Mr. Chiasson testified that he monitored the meteorological forecasts closely on VHF and through other vessels in transit and recorded notes on forms prepared for this purpose (Exhibit R-6). He testified that while he was waiting at the Mal-Bay mooring, he was monitoring the meteorological conditions to avoid headwind and freezing spray. He testified that he saw a window of weather conducive to the voyage when he decided to leave the mooring on December 14. He testified that the weather forecasts for Anticosti on December 14 at 20:00 (Exhibit M-8, p. 4) announced a change of wind direction from northwest to northeast. He explained that a tailwind would allow navigation without freezing spray.

[43] Mr. Chiasson testified that, following the loss of the tow cable, the departure was delayed until 02:30 on the morning of December 15. He testified that the tug and the barge IV-8 were taking to the sea well - “not tiring” - and described a passage without concerns for the safety of personnel or the tow, despite the poor visibility and sea conditions.

[44] Mr. Chiasson testified that at the time of the incident, the barges IV-9 and IV-10 were no longer visible but he could track the IV-10 by its AIS signal. This barge was close at first and then far from the tow; that's when he suspected that the towline had broken even though he didn't feel a jolt. After noticing the loss of the barges IV-9 and IV-10, he stated that he shortened the towline of the IV-8 and, to avoid placing this barge in danger, headed to Baie Saint-Paul.

[45] Mr. Chiasson testified that the document “Configuration diagram Tug ANDRÉ H. and barges IV8, IV9, IV10” (Exhibit R-14) represented the connection of the tow. He explained that a cable and a steel towing bridle connected the barge IV-8 to the tug, while synthetic cables connected the rest of the tow. He described such items as the navigation lights used on the barges, some of which defaulted.

[46] Mr. Chiasson testified that the barges had been connected together by the project manager, Mr. Demers, and the barge crew before departing from Dalhousie. However, he testified that he checked the connection of the entire tow himself, relying on his personal experience instead of a checklist. He testified about his experiences on the ANDRÉ H. with the tow of barges IV-10, IV-9 and IV-8 as first mate and master.

[47] Under cross-examination, Mr. Chiasson testified that the decision to use synthetic cables in the tow fell to the project manager but that he was confident with this decision. He suggested that the cause of the break was the result of tension caused by “play in the barges” rather than the type of cable used to hold them. He admitted being responsible for the entire tow.

[48] Under cross-examination, Mr. Chiasson testified that he had reassessed the meteorological conditions before attempting the second departure at 02:30 on December 15 after the delay. He stated that he expected to confront the northeast tailwinds before arriving at Pointe-des-Monts. He admitted that the window of conducive meteorological forecasts had shrunk and the conditions would be difficult for a few hours. He stated that he would not have undertaken the voyage if the westerly winds had continued, for fear of freezing spray.

[49] Mr. Chiasson testified that he did not recall showing Inspector Frattin the electronic chart during his inspection or that Inspector Frattin had asked him to see the chart or other information regarding a voyage plan. He testified that he knew the various ports of refuge along the Lower St. Lawrence from experience and that he would take refuge at the port of Sainte-Anne-des-Monts if needed.

[50] Mr. Chiasson acknowledged that, during his inspection, Inspector Frattin had asked him to produce a towage manual but none was available on board the ANDRÉ H. He also admitted that he did not recall the availability of a towage checklist (R-11) on departure from Dalhousie and stated that he did not complete such a list.

[51] Mr. Chiasson testified that he had seen the operational guidelines manual (Exhibit R-10) before but that he did not remember its availability on board the ANDRÉ H. at the time of the incident. He also stated that he did not recall the emergency response plan (Exhibit R-12) nor its availability on board at that time. He testified that after he was hired by Ocean Group in 2013, the project manager had given him “a brochure” on the company's rules but he did not recall their content.

(2) Jean-Yves Demers

[52] Jean-Yves Demers, project manager for Ocean Group, testified about his many years' experience in the field of marine towage, although he is not a seafarer. He explained that he worked with the barges IV-8, IV-9 and IV-10 first in 1986, and then since 2012, for Ocean Group.

[53] Mr. Demers testified that the connection of the barges followed a plan developed previously by him and an experienced master in the towage field (Exhibit R-14). He explained that his crew of a dozen employees had connected the barges to one another using synthetic lines like it had done for the five previous voyages.

[54] Mr. Demers admitted that the tow configuration plan had not been prepared from a reference manual and that he had not received specific training in the field. He refused to speculate on the superiority of steel cables over synthetic cables for connecting the barges. However, he testified about the difficulty of securing the steel hawsers between the barges. He stated that all necessary measures had been taken to protect the synthetic lines, especially from the harmful effects of the sun.

[55] Mr. Demers testified that on departure from Dalhousie, the connection of the barges had been checked by the master or the first mate and acknowledged the experience of Master Chiasson in the field. He testified that he had given Mr. Chiasson the relevant towage documents before departing from Rimouski.

[56] Mr. Demers testified that he was monitoring the development of meteorological conditions while waiting for the ANDRÉ H. at the Mal-Bay mooring and was planning to overwinter the barges in the port of Gaspé if necessary.

(3) Daniel Blais

[57] Mr. Blais, marine inspector for Ocean Group, testified to having 20 years' experience with the ISM standard. He explained that the ANDRÉ H. had left Baie-Comeau on December 16, 2013, leaving the barge IV-8 there in order to go to the site where the two barges were grounded the next day. He testified that it was near this location, in Sainte-Anne-des-Monts, on the afternoon of December 17 that he boarded the vessel and obtained from the master the information regarding the voyage.

[58] Mr. Blais testified that he photographed the computer screen - that displayed at that time 16:45 (p. 1 and 2) and 16:47 (p. 3) on December 17, 2013 (Exhibit R-2). He explained that the photos show routing points (Exhibit R-1) and the route plotted on the electronic chart (Exhibit R-2). He stated that he was confident that the route had been plotted before the voyage started. He testified that the electronic chart had been updated on August 31, 2012. Under cross-examination, he admitted doubting that the electronic chart met the criteria of an ECDIS and Inspector Frattin explained this non-compliance under re-examination.

[59] Mr. Blais produced a series of photographed documents entitled “Copies of photos of documents taken by Daniel Blais, December 17, 2013” (Exhibit R-3). These documents show information on the tides, calling-in-points, marine forecast radio frequency lists, various voyage, weather and other notes.

[60] Mr. Blais testified that the ISM documents “Operational Guidelines Manual” (Exhibit R-10), “Barge towage preparation checklist” (Exhibit R-11) and “On-board Emergency Response Plan, ANDRÉ H. (Exhibit R-12) provide the company's instructions to the crew with respect to harbour towage operations and voyage plan preparation. He explained that the company developed these documents to provide for the safe operation of the vessel and the procedure for dealing with emergencies.

[61] Mr. Blais testified that the updating of the aforementioned documents is done by Intranet but that the paper copies may be available on board vessels. He could not confirm whether such was the case on the ANDRÉ H. at the time of the incident. Under cross-examination, he stated that the company informed its masters about the method for updating the documents but he could not explain why Master Chiasson had no recollection of these documents.

[62] Mr. Blais testified that being voluntarily subject to the ISM code, the ANDRÉ H. is subject to a series of periodic external verifications. He produced the following documents: “Compliance Document for Océan Remorquage T-R by Bureau Veritas” (Exhibit R-15), “Audit Report, ANDRÉ H., December 16 March 30, 2012” (Exhibit R-16), “Safety Management Certificate, ANDRÉ H., May 30, 2012, by GL” (Exhibit R-17).

[63] Mr. Blais testified that verification of compliance with ISM code requirements is performed every 30 months by the Bureau Veritas classification society and annually by Ocean Group during inspections on the vessels. The purpose of these inspections is to ensure that the practices implemented by the company are followed by the crew. He described the purpose of the compliance audits and noted the observation “that better familiarization will be undertaken with the master with respect to conducting the master's safety review” (Exhibit R-16, p. 3). Under cross-examination, however, he could not confirm that a training program had been delivered for this purpose.

[64] Mr. Blais testified that the various checklists must be completed by the crew as required by the company. Under cross-examination, he specified that the various procedures and checklists were inspired by the best practices in the field. He stated that he relied on the experience and judgment of the crew to supplement the instructions presented in the documents. He was not able to refer to specific ocean towage instructions in these documents.

VI. ARGUMENTS

A. Minister

[65] The Minister's representative maintained that Mr. Chiasson failed to ensure that the vessel's intended voyage was planned in accordance with part 2 of section A-VIII/2 of the STCW Code, violating section 213 of the Marine Personnel Regulations. To support his argument, he cited the provision stating that the voyage must be planned in advance based on all pertinent information and any route plotted on the chart must be verified before the start of the voyage (A-VIII/2, paragraph 3). He also cited the master's duty to use adequate and appropriate charts and other nautical publications necessary for the intended voyage (A-VIII/2, paragraph 5). Finally, he cited that the intended route must be clearly displayed on the appropriate charts, and the officer in charge of the watch, who must verify each route to follow before using it, must be able to refer to it at all times during the voyage (A-VIII/2, paragraph 6).

[66] The Minister's representative maintained that Mr. Chiasson did not observe the requirements of the Charts and Nautical Publications Regulations, 1995. He noted that in the absence of an ECDIS, the latest edition of the charts required for the voyage must be on board. He observed that the route was not plotted on these charts and that they were not up-to-date. He also argued that even though the plotting on the electronic chart (Exhibit R-2) showed the intended route, this did not comply with the applicable regulation and thus could not be considered valid.

[67] The Minister's representative argued that Mr. Chiasson made an unjustified decision when he decided to leave Anse de Mal-Bay because of the meteorological conditions that prevailed before and at the time of the incident. In particular, he suggested that the decision to get back on the route a second time, at 02:30, was reckless because of the delay of nine hours that had significantly closed the anticipated window of weather conducive to the voyage. He argued that the master did not factor in the condition changes in planning a safe route, thus he violated section 213 of the Marine Personnel Regulations.

[68] The Minister's representative argued that Master Chiasson violated subsection 109(1) of the Canada Shipping Act, 2001, which requires the master to take all reasonable steps to ensure the safety of the vessel. He explained that action was taken against the company under section 238 of the Act. He primarily argued that the lack of route plotting on the corrected paper charts and the decision to leave the mooring when the weather conditions and visibility had deteriorated constituted a lack of voyage planning.

[69] The Minister's representative suggested that the term “vessel” referred to the entire tow, thus to the four vessels forming a whole, and that Mr. Chiasson himself admitted that he was responsible for the barges in his tow.

[70] The Minister's representative argued that the authorized representative violated paragraph 106(1)(b) of the Canada Shipping Act, 2001, which requires that it develop procedures for the safe operation of the vessel and dealing with emergencies. He argued that the evidence showed that the company did not implement any procedures for safe operation dealing specifically with barge towage. He supported his limited interpretation of paragraph 106(1)(b) on the fact that the terms “safe operation of the vessel” applied to a tug in this case. Moreover, he argued that the master did not recall having seen these documents on board or receiving training on them and even stated to Inspector Frattin that there was no towage manual on board.

[71] The Minister's representative explained that for a company, a minimum amount, for a first infraction described as high severity, was six thousand dollars ($6,000). He explained the general dissuasive objective is to encourage companies towing barges that contain polluting substances to “take extra precautions.” He argued that the 30 per cent increase for the penalty was justified because of the loss of the barges and the potential risk of pollution.

B. Applicant

[72] The applicants' representative argued that a strict interpretation of the provisions of the Act and associated regulations should be applied. He argued that the term “vessel” cannot apply to the tow because each vessel comprising the tow has a separate registration certificate.

[73] The applicant's representative argued that the applicable provision for voyage planning is found in paragraph 6(a) of the II/1 regulations of the STCW Code 1978. He explained that it is simply stated that the voyage be planned in advance, factoring in all pertinent information, and that the routes be checked before the voyage begins. He argued that the fair remedy in this case was found in the provisions of the Charts and Nautical Publications Regulations, 1995. He thus concluded that the alleged violation is not applicable because the regulation does not appear in Appendix I of the Administrative Monetary Penalties and Notices (CSA 2001) Regulations. He argued that for the 2010 version of the STCW Code to be applicable, the Governor in Council would have to amend Appendix I of the CSA 2001 by decree based on subsection 30(1) of the Act.

[74] The applicants' representative raised a lack of clear description in the voyage plan requirements demanded by the Minister and argued that these requirements could not be left to the discretion of the inspector. He argued that the evidence showed that Mr. Chiasson planned, before the voyage, the route to follow on the electronic chart, factoring in the various routing points, distances and meteorological conditions.

[75] The applicants' representative argued that in accordance with subsection 238(2) of the Act, if the employer is found liable, so must be the employee, and if action is taken against the employee, this must be done under the same provision. He also argued that section 109 of the Act states “all reasonable measures” and not all measures required by the Act. He argued that a causal link must be shown and that this was not done. He maintained, citing the Baffin Fisheries (2000) Ltd. v. Canada (Minister of Transport), 2011 TATCE 26 case, that when a provision stipulating penalties is ambiguous, the ambiguity must be settled in favour of the accused. He also maintained, citing the Pellerin v. Canada (Minister of Transport), 2014 TATCE 27 case, that the Minister has the burden of proof of establishing causality with the safety of the persons actually on board the vessel.

[76] The applicants' representative argued that if the company is reproached for the crews' lack of familiarity with the established procedures, action should have been taken under paragraph 106(1)(c) of the Act, which requires ensuring that the crew and passengers receive safety training. He claims that based on 106(1)(b), all that is required is the development of procedures for the safe operation of the vessel and for dealing with emergencies.

[77] The applicants' representative argued that it is not logical to consider the grounding of the barges an aggravating circumstance.

VII. ANALYSIS

[78] I note that the following facts were not contested.

a) The ANDRÉ H. is a Canadian vessel.

b) Cléa Chiasson was the master of the ANDRÉ H. on or around December 15, 2013 on the St. Lawrence River.

c) Océan Remorquage Trois-Rivières Inc. is the authorized representative of the ANDRÉ H. and the employer of Cléa Chiasson.

[79] The parties also agreed on certain main facts including Mr. Chiasson's decision to interrupt the intended voyage from Dalhousie to Île-aux-Coudres to moor in Anse de Mal-Bay because of the unfavourable weather conditions and to continue the voyage on December 15 at 02:30 to ultimately lose two barges off Sainte-Anne-des-Monts around 19:00 of the same day following a towline break.

[80] Therefore, I find that in the first docket (no. MQ-0397-33), the Minister proved the first two elements of applicant's alleged violation.

[81] Moreover, I find that in the second docket (no. MQ-0364-37), the Minister proved the first three elements of the applicant's alleged violation no. 1 and the first two elements of violation no. 2.

[82] I am now going to analyse the remaining elements to be proven in each of the violations.

Cléa Chiasson docket - element to be proven: Cléa Chiasson failed to ensure that the intended voyage was planned in accordance with part 2 of section A-VIII/2 of the STCW Code.

[83] According to Mr. Chiasson, the intended voyage of the ANDRÉ H. involved route segments indicated on the SeaMap electronic chart and various pieces of information recorded or available on the weather sheets, the Radio Aids to Marine Navigation, and various notes written in the voyage reports with respect to distances to travel between routing points, calling-in-points, tides, etc.

[84] During his inspection, Inspector Frattin did not observe a route plotted on the SeaMap electronic chart; however, I consider credible and accept Mr. Chiasson's testimony that a route had been plotted before the start of the voyage (Exhibit R-2).

[85] According to Inspector Frattin, Mr. Chiasson was not able to show him a satisfactory voyage plan that would have detailed specific information pertinent to the voyage in an acceptable form. He listed some additional information to that presented by Mr. Chiasson such as water depths, narrow passages, ports of refuge and references to nautical charts and publications applicable to the voyage.

[86] I believe that the duty to record all information useful for the voyage in a document subjectively acceptable to an inspector could prove limiting and would exceed the standard good practices of navigation. It is plausible that an experienced crew familiar with a region could find much of the nautical information required by consulting the typical publications. Nevertheless, Mr. Chiasson should have demonstrated to the inspector in a satisfactory manner that the voyage had been planned in compliance with the provisions of the STCW Code.

[87] To this end, I believe that Mr. Chiasson was unable to demonstrate certain key elements with respect to planning the voyage in question. In my opinion, he did not present satisfactory evidence reflecting the considerations of a change in weather conditions on the intended voyage, including, for example, the speed of the tow in heavy weather and reduced visibility, as well as access to a port of refuge following the shift in the wind from west to east.

[88] I base this consideration on section 3 of the IMO guidelines for voyage planning (Exhibit M-12), which include safe speed, having regard to the manoeuvring characteristics of the vessel, and contingency plans for alternative action to proceed to a port of refuge in an emergency.

[89] With regard to the use of paper nautical charts, I refer to paragraph 3 of the STCW Code A-VIII/2, which requires that the voyage be planned in advance based on all pertinent information and that any route plotted on the chart be verified before the start of the voyage. Moreover, paragraph 6 requires that during the voyage, the officer in charge of the watch be able to refer to this route plotted on the chart at all times. Paragraph 5 of the code requires that the master use adequate and appropriate charts and other up-to-date nautical publications that will be necessary to ensure the safety of the intended voyage. The obligation to use a paper chart is clear, except when the use of an electronic chart is authorized.

[90] The Minister's representative maintained that although the plotting on the electronic chart represented the intended route, this cannot be considered valid because it does not comply with the applicable regulation. However, the applicant's representative maintained that the alleged violation involves provisions specific to the Charts and Nautical Publications Regulations, 1995. He suggested that a fair remedy would have been to take action under these regulations. However, he maintained that since the regulation did not appear in the appendix of the Administrative Monetary Penalties and Notices (CSA 2001) Regulations, the Tribunal did not have the jurisdiction to hear the case.

[91] Independent of the other possible remedies, I believe that the Minister's action under section 213 of the Marine Personnel Regulations is appropriate in this case. Section 32 of the CSA 2001 stipulates that a regulation may incorporate by reference any document produced by an international organization, which is the case with the STCW Code. The Marine Personnel Regulations incorporate by reference the STCW Code into section 213, and subsection 1(4) of the same regulations stipulate that any mention of a document incorporated by reference constitutes a reference to successive amendments. Section 213 of the Marine Personnel Regulations is a relevant provision of which any violation is considered a violation under the Administrative Monetary Penalties and Notices (CSA 2001) Regulations.

[92] In short, I believe that reasonable latitude must be accorded with respect to the elements considered in formulating a voyage plan as well as the form that this must take. Moreover, the evidence leaves no doubt about the choice of the selected route or the reliability of the vessel position on this route. However, I believe that the use of an unapproved electronic chart and the absence of the information on the consequences of the change in weather conditions do not meet the requirements of a voyage plan as envisioned by the prescriptions of the STCW Code.

[93] Therefore, I find that the Minister proved, based on the balance of probabilities, the third element of the applicant's alleged violation (docket no. MQ-0397-33).

Océan Remorquage Trois-Rivières Inc. docket - element to be proven: Cléa Chiasson failed to take all reasonable steps to ensure the safety of the vessel and of persons on board.

[94] The applicants' representative suggested that the term “vessel” does not apply to the tow because each vessel comprising the tow has a separate registration certificate. I believe that this strict interpretation of the term may not satisfy the intention of the legislator with respect to the towage service. Despite the fact that the barges have a separate registration certificate, they were not vessels making an independent voyage or navigating of their own accord; when the tow is connected to the primary vessel, the entire configuration is considered a vessel. Citation: Docket no. MA-0022-38 (TATC) Nicole Daniel (Le) v. Canada (Minister of Transport), 2010 TATCE 13.

[95] The applicants' representative argued that in accordance with subsection 238(2) of the Act, if the employer is found liable, so must be the employee, and if action is taken against the employee, this must be done under the same provision. I cannot subscribe to this argument because the Minister chose to take action pursuant to the indirect liability of employers or agents, thus action may be taken against the employer without separate action being taken against the employee.

[96] According to Mr. Demers, the connection of the barges with synthetic cables was based on experience instead of a reference manual. According to Mr. Chiasson, the cause of the towline break was result of tension caused by “play in the barges” rather than the type of cable used to hold them. The witnesses did not contribute any useful information on the cause of the break but suggested a connection with the environmental conditions that existed at the time of the incident.

[97] According to the notes in the log book and the accounts of Mr. Chiasson, he wanted to avoid headwinds and freezing spray caused by the northwesterly winds. He stated that if needed he would have been able to take refuge in the port of Sainte-Anne-des-Monts because he had entered this port before with a barge in tow and northwesterly winds of about 30 knots.

[98] According to his testimony, Mr. Chiasson's decision to leave the mooring at 02:30 on December 15 appeared to be essentially based on the fact that he would avoid a headwind because the wind was turning to the northeast and would come from behind. He admitted that he was expecting difficult weather conditions knowing that the winds were forecast to increase substantially during the voyage but he did not elaborate on the effects of the tailwinds on the tug or the possibility of taking refuge on this side in these conditions. He simply stated that he believed that “it was still navigable” and that “the ship was not tiring.” He mentioned, without being able to explain it, that the barge IV-10 drew closer before the break and that tension would have been created by “a play in the barges.” This testimony shows a certain misunderstanding of the factors in play during the incident. I note that at the time of the break the barges were not visible, the tailwinds had a speed of 25 knots, and the sea a height of over two metres.

[99] The Minister's representative described as “reckless and unjustified” Mr. Chiasson's decision to leave Anse de Mal-Bay despite the nine-hour delay that had closed the anticipated window of weather conducive to the voyage. Without fully subscribing to this description, I believe that Mr. Chiasson was unable to provide a satisfactory explanation for his decision to undertake the voyage having digested all the consequences of the change in weather conditions on the tow. This shortcoming is a failure with respect to the need to take all reasonable steps to ensure the safety of the vessel.

[100] The applicant's representative argued that section 109 of the Act states “all reasonable measures” and not all measures required by the Act. He argued that a causal link must be shown and that this was not done. I agree that the missing step must be reasonable and that a causal link must be shown. However, I believe that despite the fact that such causality was demonstrated with respect to the vessel, this was not done with respect to the crew. The Minister did not prove that the people on board the vessel were put in danger. The barges did not have any crew and the safety of the people on board the ANDRÉ H. was not compromised.

[101] Therefore, I find that the Minister did not prove, based on the balance of probabilities, the fourth element of the applicant's alleged violation (docket no. MQ-0364‑37).

Element to be proven: Océan Remorquage Trois-Rivières Inc. failed to develop procedures for the safe operation of the vessel and for dealing with emergencies.

[102] The Minister's representative argued that Océan Remorquage Trois-Rivières Inc. (hereinafter the company) had not implemented procedures for safe operation dealing specifically with barge towage. The applicant, for its part, argued that the ISM documents (Exhibits R-10, R-11 and R-12) provided the company's instructions for the crew for towage operations without however prescribing specific ocean towage procedures. To determine whether these documents meet the requirements of paragraph 106(1)(b), I believe that the employer must be given some latitude to rely on the expertise of its marine personnel.

[103] According to Mr. Blais, these documents were updated by Intranet and the company had informed the masters on this method. However, Mr. Chiasson admitted not remembering whether the ISM documents were on board and stated that he had not received training on these documents. He also stated that a towage manual was not available on board the ANDRÉ H. and he had no recollection of a towage checklist.

[104] It appears clear that Mr. Chiasson was not informed about the procedures established by the company and did not follow the instructions regarding the towage preparation checklist as he was required to do. However, I agree with the applicants' representative that the obligation to train marine personnel falls under paragraph 106(1)(c), not the section under which action was taken against the applicant.

[105] The evidence showed that procedures specific to ocean towage were not available; however, the company developed many procedures for safe operation of the vessel. In its guidelines, the company stipulates that these “cannot under any circumstances be definitive and cover all aspects of the company's marine operations, and the master has the absolute right to make his own decisions in exceptional circumstances” (Exhibit R‑10, clause 1.1.1). Moreover, the guidelines stipulate that “from time to time, they will be reviewed to ensure that they accurately reflect current requirements and circumstances” (Exhibit R‑10, clause 1.1.7).

[106] I believe that the guidelines developed by the company align with the core ISM objective of continuous improvement and that the limited interpretation of paragraph 106(1)(b) is erroneous in this case.

[107] Therefore, I find that the Minister did not prove, based on the balance of probabilities, the third element of the applicant's alleged violation (docket no. MQ‑0364‑37).

VIII. DETERMINATION

A. Cléa Chiasson - Docket: TATC MQ-0397-33

[108] I rule in favour of the Minister and I uphold the alleged violation. The Minister has proven, based on the balance of probabilities, that Cléa Chiasson violated section 213 of the Marine Personnel Regulations on or around December 15, 2013.

B. Océan Remorquage Trois-Rivières Inc. - Docket: MQ-0364-37

[109] Held 1: I rule in favour of the applicant, Océan Remorquage Trois-Rivières Inc., and I dismiss the alleged violation. The Minister did not prove, based on the balance of probabilities, that section 109 of the Canada Shipping Act, 2001 was violated by Océan Remorquage Trois-Rivières Inc. on or around December 15, 2013. The monetary penalty of $7,800 is cancelled.

[110] Held 2: I rule in favour of the applicant, Océan Remorquage Trois-Rivières Inc., and I dismiss the alleged violation. The Minister did not prove, based on the balance of probabilities, that paragraph 106(1)(b)of the Canada Shipping Act, 2001 was violated by Océan Remorquage Trois-Rivières Inc. on or around December 15, 2013. The monetary penalty of $7,800 is cancelled.

August 3, 2016

Yves Villemaire

Member