T-260-94
BETWEEN: LAURENTIAN
PILOTAGE AUTHORITY,
Plaintiff,
AND: TECHNO-NAVIGATION
LTÉE,
-and-
TECHNO-BARGES
INC.,
Defendants
(in personam),
AND: THE SHIPS:
M.T.
"TECHNO-VENTURE"
BARGE
"JEAN-RAYMOND",
Defendants
(in rem).
REASONS
FOR JUDGMENT
DENAULT J.:
The Laurentian Pilotage
Authority (the LPA) is claiming pilotage charges from the defendants which it
believes to be owed to it by reason of the activities of the tug Techno-Venture
and the barge Jean-Raymond on the St. Lawrence River.
Initially, the plaintiff was
claiming the sum of $10,162.24 from the defendants in personam and the
defendants in rem for pilotage services rendered by virtue of the powers
it holds under the Pilotage Act, R.S.C. 1985, c. P-14, and the Laurentian
Pilotage Authority Regulations, c. 1268 (the Regulations). The amounts
claimed were charged in accordance with the regulations in force.
In the course of the trial,
pursuant to an agreement between the parties, the plaintiff discontinued its
action in rem against the tug Techno-Venture and the barge Jean-Raymond
for failure to serve, and also in respect of the interest claimed. The
plaintiff further amended its statement of claim, with the consent of the
defendant, to raise it to $38,653.98, taking into account new invoices for
trips made since the proceedings were commenced.
The evidence established that
the Techno-Venture, which is owned by Techno-Barges Inc., is a tug 138
feet long and 30 feet wide, with a net tonnage of 469.65 tons. The barge Jean-Raymond,
a non-propelled barge, measures 409 feet long and 57 feet wide, and has a net
tonnage of 3,724.510 tons; it also belongs to Techno-Barges Inc.
According to the plaintiff, the
pilotage services for which the plaintiff is claiming were provided on various
dates on the St. Lawrence River at locations within Districts No. 1 and No. 2
between Les Escoumins and Portneuf.
The pilotage service forms and
corresponding invoices may be divided into three categories. The first
category of invoices in fact covers two trips made by the Techno-Venture
and the Jean-Raymond, the first on June 19, 1991, between Les Escoumins
and Québec, and the second on June 22, 1991 between Québec and Les Escoumins.
On both occasions, the pilotage service forms were signed by the master and the
pilots, but it appears from the pilotage service forms of June 22, 1991 (LPA
1(5) and LPA 1(7)), that the owner protested the requirement that a pilot be
taken on board. These invoices total $3,195.34. The second category of invoices
relates to a trip on September 24, 1991, where the pilot alone signed the
pilotage service form for the tug and the barge (LPA 1(9) and LPA 1(11)). The
pilotage service form for the barge Jean-Raymond shows that the master
refused to allow the plaintiff's pilots on board. These invoices total
$1,445.16. The final category — which represents
$34,013.48 out of a total claim of $38,653.98 —
covers pilotage service forms and invoices prepared by the plaintiff's
accounting department, relating to trips allegedly made by the tug and barge
belonging to the defendant Techno-Barges Inc., for which no pilotage service
was supplied; this portion of the claim is based on section 44 of the Act.
The plaintiff claims to be
entitled to payment of these invoices by virtue of the powers vested in it by
the Pilotage Act, the Laurentian Pilotage Authority Regulations
and the Tariffs established by the Regulations.
The defendants refuse to pay
the amount claimed because, they assert, they are exempt, by the very terms of
the Laurentian Pilotage Authority Regulations, from the obligation to
take the plaintiff's pilots on board.
The Pilotage Act
establishes Pilotage Authorities (s. 3), including the plaintiff, whose objects
are to "establish, operate, maintain and administer in the interests of
safety an efficient pilotage service within the region ..." (s. 18)
assigned to each Authority. To that end, the Act allows each Authority, with
the approval of the Governor in Council, to make regulations necessary for the
attainment of its objects (subsection 20(1)) and, inter alia: (a)
establishing compulsory pilotage zones; (b) prescribing the ships or
classes of ships that are subject to compulsory pilotage; and (c)
prescribing the circumstances under which compulsory pilotage may be waived.
Accordingly, the Laurentian Pilotage Authority made Regulation 1268, section 4
of which reads as follows:
4.(1) Subject to subsection (3), every ship or class of
ship
(a)registered in Canada that
(i)is operated in District No. 1 or District No. 1-1 and
is over 68.58 metres (225 feet) in length and over 1,500 net registered tons,
or
(ii)is operated in District No. 2 and is over 79.33
metres (260 feet) in length and over 2,000 net registered tons, and
(b)not registered in Canada that is over 30.48
metres (100 feet) in length
is subject to compulsory pilotage.
(2)Every scow and barge that is registered in Canada,
manned by Canadian masters and officers and carrying as cargo a pollutant, as
defined in section 727 of the Canada Shipping Act, is subject to
compulsory pilotage.
(3)The following ships or classes of ships, if registered
in Canada and manned by Canadian masters and officers, are not subject to
compulsory pilotage:
(a)any ship owned by the Government of Canada and
not engaged in commercial trade;
(b)any ferry operating in the passenger carrying
trade on a regular schedule between two or more terminals;
(c) any ship designed for and engaged in fishing;
(d)any tug, floating crane or dredge; and
(e)any self-propelled barge trading regularly
between two or more terminals in the Province of Quebec in or east of District
No. 2 other than a barge described in subsection (2).
(4)Notwithstanding subsection (3), where the operation of
any ship described in paragraphs (b) to (e) thereof would, due to
(a)the condition of the ship,
(b)unusual conditions on board the ship, or
(c)conditions of weather, tides, currents or ice
constitute a risk to the safety of navigation, that ship
shall have a licensed pilot or a holder of a pilotage certificate on board.
There
is no doubt that under the provisions of para. 4(3)(d) the tug Techno-Venture
is not subject to compulsory pilotage except in the cases set out in subs.
4(4), where the operation of the ship would constitute a risk to the safety of
navigation. This decision was made by the LPA when it made its Regulations.
Given that the plaintiff has not proved that one of the situations described in
paras. 4(4)(a), (b) or (c) existed, the plaintiff's [sic]
tug was not subject to compulsory pilotage and this portion of the plaintiff's
action must be dismissed.
But
what is the situation in the case of the barge Jean-Raymond? First, let
us look at the provisions of the Laurentian Pilotage Authority Regulations
in respect of barges.
The
Regulations deal only with barges that trade in specific situations: (a) barges
registered in Canada and manned by Canadian masters and officers and carrying
as cargo a pollutant are subject to compulsory pilotage under subs. 4(2); (b)
self-propelled barges, also registered in Canada and manned by Canadian masters
and officers, as long as they trade regularly between two or more terminals in
or east of District No. 2, are not subject to compulsory pilotage under para.
4(3)(e), except in the situations set out in subs. 4(4). The barge Jean-Raymond,
as we know, is non-propelled and not manned by Canadian masters or officers,
and the evidence did not establish that it was carrying as cargo pollutants.
Must we conclude from this, as counsel for the defendants suggested, that if a
barge is not, among other conditions, manned by a master, it is not subject to
compulsory pilotage? No. If a barge does not meet the requirements of subs.
4(2), this does not mean that it is exempt from compulsory pilotage; it simply
does not fall within subs. 4(2).
Must
we conclude from this, on the other hand, as counsel for the plaintiff
suggested, that as long as the barge falls within the very broad definition of
"ship"
it is subject to compulsory pilotage by virtue of its length and net tonnage
(para. 4(1)(a))? I do not think this is the case either.
As
we saw earlier, the Pilotage Act has assigned the LPA the object of
establishing and administering a pilotage service in the interests of safety
(s. 18 of the Act) and, to that end, has given it the power to prescribe the
ships that are subject to compulsory pilotage (para. 20(1)(b)) of the
Act). A crucial question arises: how can a non-propelled barge, not manned by
a Canadian master or officers and not even fitted with the equipment needed for
navigation, be subject to compulsory pilotage? It would seem to be physically
impossible to accommodate a pilot on it. This was the decision of the Quebec
Superior Court in L'Administration de pilotage des Laurentides v. Logistec
Navigation Inc. et Techno-Maritime Limitée, a case that also involved a barge, in
which there were no facilities on board that would allow a pilot to navigate,
there was no manipulable rudder or propulsion force, and the tug pulling it was
also exempt, without restriction. The Court decided that although, strictly
speaking, the barge was classified as a ship subject to compulsory pilotage, it
was impossible to apply the Regulations. The plaintiff took the case to the
Quebec Court of Appeal, where it did not achieve the desired result; the Court
dismissed the appeal, without disposing of the merits since the subject matter
of the case had become moot.
I
am also of the view that the Regulations, which are vague and imprecise, do not
operate to make non-propelled barges, which are not manned by Canadian masters
and officers and not even equipped with facilities for a pilot on board,
subject to compulsory pilotage.
To
counter the argument that it is impossible to apply the Regulations, counsel
for the plaintiff relied on sections 43 and 44 of the Act, which provide as
follows:
43. Where a ship in a
compulsory pilotage area having on board a licensed pilot leads any ship
subject to compulsory pilotage that does not have a licensed pilot or the
holder of a pilotage certificate on board during any period in which the ship
so led cannot, by reason of the circumstances existing at the time, be boarded,
the ship so led is liable to the Authority for all pilotage charges as if a
licensed pilot had been on board and piloted that ship.
44. Except where an Authority
waives compulsory pilotage, a ship subject to compulsory pilotage that proceeds
through a compulsory pilotage area not under the conduct of a licensed pilot or
the holder of a pilotage certificate is liable, to the Authority in respect of
which the region including that area is set out in the schedule, for all
pilotage charges as if the ship had been under the conduct of a licensed pilot.
I
do not believe that either of these sections covers the situation we have in
this case. Section 43 provides for cases in which it is impossible for a pilot
to board the ship being led, by reason of the circumstances existing at the
time. In the instant case, the plaintiff has not proved any specific case in
which such circumstances were present. Section 44 applies only to a ship
subject to compulsory pilotage which proceeds not under the conduct of a
pilot. Given that the barge had no facilities for a pilot, this section cannot
apply.
Lastly,
can it be argued, as suggested by the plaintiff's billing method, that a
tug and a barge both become subject to compulsory pilotage simply because they
are navigating together, and because, in short, they are being used for the
purposes for which each of them was designed, the first for towing and the
second for being towed?
This
is nonsense. First, the Regulations make no provision for this situation.
Second, it would be illogical for the Regulations to exempt tugs from being
subject to compulsory pilotage and then make them subject to it when they are
performing their functions of towing.
The
plaintiff's action cannot be allowed, and must be dismissed with costs.
OTTAWA,
December 11, 1996
PIERRE DENAULT
J.F.C.C.
Certified
true translation
C.
Delon, LL.L.
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