Date: 20040630
Docket: T-504-03
Citation: 2004 FC 939
BETWEEN:
LAURENTIAN PILOTAGE AUTHORITY
Plaintiff
AND:
GESTION C.T.M.A. INC.
AND:
NAVIGATION MADELEINE INC.
AND:
THE OWNERS AND OTHERS HAVING AN INTEREST IN THE
SHIP C.T.M.A. VOYAGEUR
AND:
M/V C.T.M.A. VOYAGEUR
Defendants
AND:
CORPORATION DES PILOTES DU BAS ST-LAURENT
Intervener
[1] By an action pursuant to section 44 of the Pilotage Act (the Act), the Laurentian Pilotage Authority (the LPA) is claiming the sum of $1,860, 265.34 for unpaid pilotage charges on the ship M/V C.T.M.A. Inc. (the Voyageur) between 1997 and 2002.
[2] Section 44 of the Act reads:
| Pilotage charge in case of proceeding without a pilot 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. [Emphasis added.] 1970-71-72, c. 52, s. 34. |
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Marche sans pilote 44. Sauf si une Administration le dispense du pilotage obligatoire, le navire assujetti au pilotage obligatoire qui poursuit sa route dans une zone de pilotage obligatoire sans être sous la conduite d'un pilote breveté ou du titulaire d'un certificat de pilotage est responsable envers l'Administration dont relève cette zone des droits de pilotage comme si le navire avait été sous la conduite d'un pilote breveté. 1970-71-72, ch. 52, art. 34.
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[3] The LPA argued that the Voyageur is a ship subject to compulsory pilotage which navigated in two compulsory pilotage areas without being under the control of a pilot, specifically in District No. 1 between Québec/Trois-Rivières/Montréal during 1992 to 2002, and in District No. 2 between Québec and Les Escoumins during 1987 to 2002.
[4] A ship is subject to compulsory pilotage pursuant to the provisions of section 4 of the Laurentian Pilotage Authority Regulations (the Regulations). It reads:
| Compulsory Pilotage 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. [Emphasis added.]
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Pilotage obligatoire 4. (1) Sous réserve du paragraphe (3), les navires ou catégories de navires a) immatriculés au Canada (i) qui naviguent dans la circonscription no 1 ou la circonscription no 1-1, de plus de 68,58 mètres (225 pieds) de longueur et de plus de 1,500 tonneaux de jauge nette au registre, ou (ii) qui naviguent dans la circonscription no 2, de plus de 79,33 mètres (260 pieds) de longueur et de plus de 2,000 tonneaux de jauge nette au registre, et (b) non immatriculés au Canada, de plus de 30,48 mètres (100 pieds) de longueur |
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[5] The phrase "net registered tons" is defined in section 2 of the Regulations as follows:
"net registered tons" means the net tonnage stated in the certificate of registry of a ship or, where the ship has more than one net registered tonnage, the largest net registered tonnage of that ship . . . [Emphasis added.]
[6] The defendants objected to the claim, arguing that:
(1) in 1992, the LPA gave the Voyageur an exemption; and
(2) the amounts sought by the LPA were prescribed under article 2925 of the Civil Code of Quebec (C.C.Q.), where the time period is three years.
[7] The LPA denied that it had exempted the Voyageur from compulsory pilotage and maintained that, pursuant to the provisions of article 2904 C.C.Q. introduced in 1994, or its corresponding article, article 2232 in the old Civil Code of Lower Canada (C.C.L.C.), prescription did not run until 2002. If article 2904 did not apply, the LPA submitted that the extinctive prescription was ten years under article 2921 C.C.Q.
Background
[8] The parties filed a joint statement of facts, summarized below.
(1) The LPA is a federal government Crown corporation with its head office in Montréal. The LPA was created pursuant to section 3 of the Act, and under section 18 of the Act its objects are to establish, operate, maintain and administer an efficient pilotage service in the interests of safety in the province of Quebec.
(2) The Société Navigation Madeleine Inc. is a company legally incorporated under the Quebec Companies Act, with its head office at Cap-aux-Meules, Îles de la Madeleine, Quebec. It is the owner of the Voyageur.
(3) The defendant Gestion CTMA is an artificial person created pursuant to the Companies Act, Part 1(a), as a management company, in which the sole shareholder is the Coopérative de transport maritime et aérien, a cooperative with its head office at Cap-aux-Meules, Îles de la Madeleine, created over fifty years ago, and all its members are local residents.
(4) The defendant Gestion CTMA, as a management company, is not the owner of and does not operate ships, and in particular, does not operate a ship of the Ro-Ro type between Îles de la Madeleine and Montréal to transport freight and passengers. Gestion CTMA is the sole shareholder in the defendant Navigation Madeleine Inc., which is the sole owner of the ship in question.
(5) The intervener Corporation des pilotes du Bas-Canada (PBC) is a corporation created pursuant to the Quebec Companies Act, with its head office in Québec: through its member pilots it provides exclusive pilotage service between Les Escoumins and Québec, including the Rivière de Saguenay (District No. 2), for all ships subject to compulsory pilotage, pursuant to a service contract with the LPA authorized under section 15 of the Act.
(6) The ship Voyageur is a ship registered in Canada on April 6, 1987. The Registration Certificate issued to it on May 20, 1987, indicates that it is 99.70 metres long with a depth of 9.69 metres, having a gross tonnage of 4,528 tons and a net registered tonnage of 3,252 tonnes; it was built in Norway in 1972.
(7) On August 10, 1972, the British authorities issued a document entitled "Summary of the Particulars of Tonnage", on which a registered tonnage of 615 tonnes was entered.
(8) In fall 1986 CTMA offered to purchase the Voyageur, then known as the Mirela, to provide a liaison between the Îles de la Madeleine and Montréal, replacing the ship La Madeleine, which had provided the service for several years. CTMA wanted to register the Mirela in the Canadian Register.
(9) On October 30, 1986, the Superintendent, Ship Registration and Tonnage Measurement of Transport Canada informed the CTMA of five conditions for registering ships in the Canadian Register, which included the surveying of the ship in accordance with Canadian rules by a duly authorized marine surveyor.
(10) Earlier, on October 17, 1986, an application was made to the Coast Guard describing the Mirela and inter alia making the following notations regarding tonnage:
• gross tonnage 1,578.25,
• net tonnage 564.69.
(11) On August 19, 1986, the Cypriot authorities issued a Certificate of Registry for the Mirela, mentioning the following:
• gross tonnage 1,578.25,
• net tonnage 564.69.
(12) On March 22, 1987, a deed of sale was issued to the Transport Canada Registrar of Ships, in which the following information appeared:
• gross tonnage 1,578.25,
• net tonnage 564.69.
(13) On March 20, 1987, the marine surveyor. A. Belair issued a Certificate of Survey and on the same date the Registrar of Ships of Canada issued a transcript of the registration of the Voyageur, both documents establishing the tonnage as follows:
• gross tonnage 4,528.61,
• net tonnage 3,252.15.
(14) This information is what was subsequently found in the registers of the Department of Transport held by the Registrar of Ships, and as to the gross tonnage, in all the inspection certificates from 1987 to March 1992.
(15) However, in the archives of the Bureau Véritas (Bureau Véritas), it appears that the information regarding the details of the ship still indicated a gross tonnage of 1,578 tonnes (I should add that Bureau Véritas is the Classification Society for the Voyageur).
(16) Following a request for information by the LPA, made on December 18, 2003, to the Montréal representative of Bureau Véritas, the latter by a letter dated January 12, 2004, forwarded the information contained in the Registration Certificate of the Voyageur at the Bureau Véritas head office in Paris.
[9] The parties filed jointly the pilotage forms completed for various voyages by the Voyageur in District No. 1, from which the information was taken.
[10] Pilotage cards are the subject of a regulatory provision under the Laurentian Pilotage Authority Tariff Regulations (the Tariff Regulations), SOR/81-674, August 27, 1981. These Regulations were subsequently amended, by SOR/2001-84 on February 15, 2001.
[11] Section 6 of SOR/81-674 reads as follows:
| Pilotage Cards 6. (1) On boarding a ship, the pilot shall ascertain from the master or officer-in-charge of the ship the breadth, depth, length, registered tonnage and other information necessary to complete the pilotage card supplied by the Authority. (2) A completed pilotage card shall be signed by the master or officer-in-charge of the ship and by the pilot and shall be delivered by the pilot to the Authority without alteration as soon thereafter as is practicable. (3) Where the master or officer-in-charge of a ship fails to provide the pilot with the information specified in subsection (1), or where, on request from the Authority, the owner or agent fails to provide that information to the Authority, information published by an appropriate Classification Society shall, subject to subsection (4), be used by the Authority. (4) Where the information published by an appropriate Classification Society is not sufficient for the purpose of completing the pilotage card, the Authority shall, on request by the agent, contact the Classification Society in order to obtain such information as is necessary for that purpose. (5) Where the information specified in subsection (1) cannot be obtained in the manner described in subsections (3) and (4), the ship is subject to the same charges as a ship of 500 units. (6) Where there is a discrepancy between information obtained from a Classification Society and the information provided by the master or officer-in-charge of a ship, the information obtained from a Classification Society shall be used, but if it is established that any charges were based on incorrect information, the charges shall be adjusted accordingly. [Emphasis added.] |
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Fiches de pilotage 6. (1) Dès qu'il monte à bord d'un navire, le pilote doit vérifier auprès du capitaine ou de l'officier responsable, la largeur, le creux et la longueur du navire, la jauge inscrite au registre et tous autres renseignements nécessaires pour remplir la fiche de pilotage fournie par l'Administration. (2) La fiche de pilotage dûment remplie doit être signée par le capitaine ou l'officier responsable du navire ainsi que par le pilote qui doit ensuite la remettre, sans retouche et le plus tôt possible, à l'Administration. (3) Lorsque le capitaine ou l'officier responsable d'un navire omet de fournir au pilote les renseignements visés au paragraphe (1), ou lorsque le propriétaire ou l'agent omet de les fournir à l'administration qui lui en a fait la demande, l'information publiée par une Société de Classification appropriée doit, sous réserve du paragraphe (4), être utilisée par l'Administration. (4) Lorsque la publication d'une Société de Classification appropriée ne contient pas l'information nécessaire pour remplir la fiche de pilotage, l'Administration doit, sur demande de l'agent, communiquer avec la Société de Classification pour obtenir cette information. (5) Lorsque l'information visée au paragraphe (1) ne peut être obtenue de la façon prévue aux paragraphes (3) et (4), le navire est frappé des mêmes droits qu'un navire de 500 unités. (6) En cas de conflit entre l'information obtenue d'une Société de Classification et l'information fournie par le capitaine ou l'officier responsable du navire, l'information obtenue de la Société de Classification est utilisée; toutefois, s'il est démontré que les droits de pilotage ont été établis suivant une information inexacte, ceux-ci sont corrigés en conséquence. |
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[12] Section 7 of SOR/2001-84 reads as follows:
| PILOTAGE SERVICE FORM 7(1) 7. (1) With the assistance of the master or the deck watch officer of the ship, the pilot must complete the pilotage service form provided by the Authority. 7(2) (2) The master or deck watch officer must sign the completed form, after which the form must not be altered. 7(3) (3) The pilot must then sign the pilotage service form in the presence of the master or deck watch officer and deliver it to the Authority as soon as possible. 7(4) (4) If a discrepancy occurs between the information provided on the pilotage service form and the information contained in the following documents, the particulars of a ship are those contained, in order of priority, in (a) the official papers of the ship; (b) the Register of Ships published by Lloyd's Register of Shipping; or (c) a publication by any classification society other than Lloyd's Register of Shipping. [Emphasis added.] |
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FICHE DE PILOTAGE 7(1) 7. (1) Le pilote remplit, avec l'aide du capitaine ou de l'officier de quart à la passerelle du navire, la fiche de pilotage fournie par l'Administration. 7(2) (2) Le capitaine ou l'officier de quart à la passerelle signe la fiche de pilotage remplie qui, dès ce moment, ne peut être modifiée. 7(3) (3) Le pilote signe alors la fiche de pilotage en présence du capitaine ou de l'officier de quart à la passerelle et la remet le plus tôt possible à l'Administration. 7(4) (4) En cas de divergence entre les renseignements indiqués sur la fiche de pilotage et ceux qui figurent dans les documents suivants, les détails concernant le navire sont ceux qui se trouvent dans ces documents, selon l'ordre de priorité qui suit : a) les documents officiels du navire; b) le document intitulé Register of Ships publié par la Lloyd's Register of Shipping; c) une publication d'une société de classification autre que celle de la Lloyd's Register of Shipping. |
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[13] On April 9, 1991, Gilles Denis of the Corporation des pilotes du St-Laurent Central Inc. (PSLC), which through its member pilots provides exclusive pilotage service between Québec, Trois-Rivières and Montréal (District No. 1), sent the LPA the following letter (joint record, volume 4, page 85):
[TRANSLATION]
Pursuant to clause 14.04 of the service contract, this is to request that you no longer assign pilots to the ship CTMA Voyageur, a ship which is not subject to compulsory pilotage, except in the following cases:
(a) if there is an emergency or distress situation; or
(b) if the CTMA Voyageur files with the Dispatch Center a firm request for a pilot before the latter embarks, accompanied by a final notice correcting the estimated time of departure four hours beforehand (section 8(b) of the Laurentian Pilotage Authority Regulations).
We would also appreciate it if you would warn the company that the ship's captain must follow the instructions of the pilot responsible for the ship, otherwise the pilotage service will be unavailable except in distress or emergency situations.
You will understand that this request has become necessary because of the captain's lack of discipline, affecting the quality of service in general. [Emphasis added.]
[14] From time to time in due course requests were made to the LPA by the defendant for pilotage services but, in the clearly defined framework of the letter of April 9, 1991, these pilotage requests were only dispatched for pilotage in District No. 1.
[15] There were certain conflicts regarding implementation of the pilotage service booking process when pilots were requested pursuant to the letter of August 9, 1991.
[16] However, on June 22, 1992, the LPA, through its operations assistant Claude Deroy, wrote the defendant confirming this (joint record, volume 4, page 90).
[TRANSLATION]
We have been informed by the president of the Corporation des pilotes du St-Laurent Central, Jean-Pierre Leroux, that we should no longer dispatch pilots to the ship CTMA Voyageur, since it is not subject to compulsory pilotage except in emergency or distress situations. [Emphasis added.]
[17] There was no exchange of correspondence between the parties specifically mentioning that the ship was subject to compulsory pilotage rules from the letter of June 22, 1992, until the letter of October 4, 2002, signed by Denys Pouliot, when the case at bar began.
[18] On October 4, 2002, Mr. Pouliot, the LPA assistant operations director, wrote the master of the Voyageur indicating that under section 4 of the Regulations the Voyageur was subject to compulsory pilotage between Les Escoumins and Montréal.
Analysis
[19] The real dispute between the parties in this proceeding was as to prescription.
[20] The LPA led its evidence showing that prescription on unpaid pilotage charges for voyages in District No. 1 was interrupted from 1992 to 2002, since it was impossible for it to act pursuant to article 2904 of the C.C.Q. as a result of wrongful actions by the defendant.
[21] Article 2904 of the C.C.Q. reads:
| Art. 2904 Prescription does not run against persons if it is impossible in fact for them to act by themselves or to be represented by others. |
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Art. 2904 La prescription ne court pas contre les personnes qui sont dans l'impossibilité en fait d'agir soit par elles-mêmes, soit en se faisant représenter par d'autres. |
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[22] Noting that the federal legislation contains no provision making unpaid pilotage charges subject to prescription, the parties agreed under section 39 of the Federal Courts Act that Quebec rules of law on prescription applied.
[23] The first three volumes of the joint book of documents contained all the pilotage cards signed by the captain of the Voyageur and by the PSLC pilot between September 5, 1987 and June 12, 1991 for District No.1
[24] Exhibit P-44, a working paper prepared by counsel for the defendant, placed these cards in chronological order, including the registered tonnage. I think there are about 666 cards in the three joint records. The form of the card is prescribed by the LPA. Each card requires various information to be entered in several squares, including one titled [translation] "net registered tonnage".
[25] With very few exceptions, a review of the cards indicates that the number 579 was entered by hand in the square titled [translation] "net registered tonnage".
[26] It is clear there is a significant discrepancy between what was entered by hand as the net tonnage in the cards signed and the net tonnage entered in the Register for the Voyageur kept by Transport Canada.
[27] The validity of the gross tonnage and the net registered tonnage calculated by the marine surveyor, and appearing in his Certificate of Survey dated March 20, 1987, figures which are reflected in the Transcript of Register issued by the Registrar, were not challenged either by the plaintiff or by the defendant, although the parties referred to two international conventions on marine surveying.
[28] Without going into detail, it appeared that in 1969, under the aegis of the International Maritime Organization, the 1969 International Convention on Tonnage Measurement of Ships which was signed on June 23, 1969, came into effect on July 18, 1982. This 1969 Convention altered the Convention in effect at the time. However, it was not until 1994 that Canada subscribed to it. After that time the Governor General in Council on October 12, 1994, adopted the Tonnage Regulations pursuant to section 95 of the Canada Shipping Act.
[29] Without considering this aspect any further, the indications which I received during the trial were that possibly the Canadian calculations were made under the provisions of the 1969 Convention, which would explain the difference between the Canadian and Cypriot tonnages for the gross and net tonnages of the Voyageur.
(a) Evidence
(i) LPA
[30] The first two witnesses for the LPA were pilots, members of the PSLC (District No. 1), former managers of the latter and of the LPA. Charles Pouliot and Gilles Denis both navigated the Voyageur.
[31] One important purpose of their testimony was to describe to the Court how they obtained the information on the ship, especially the net tonnage of the Voyageur, in order to complete the cards which each one submitted to the captain for signature just before the pilots changed.
[32] Their testimony was that this information, requested by them, came from the captain or the deck watch officer, either by an information sheet on the ship or by a card already completed by another pilot for a prior voyage (transcript of April 26, 2004, page 49).
[33] Mr. Pouliot testified that he had never seen his Registration Certificate or Certificate of Survey posted on board the Voyageur, but he remembered having seen his Certificate of Inspection, where the gross tonnage was listed as 4,528 tonnes. Mr. Pouliot explained [translation] "that we could not use them because it indicates the gross tonnage, and we do not use the gross tonnage" (transcript of April 26, 2004, page 73).
[34] Mr. Pouliot testified that [translation] "it is common knowledge that it [the Voyageur] was not compulsory" (transcript, April 26, 2004, page 79) and that [translation] "it was the Pilotage Authority which said so".
[35] Mr. Pouliot denied having examined Exhibit D-3, which was posted in the card room. D-3 contains all the relevant information on the Voyageur, including the following:
• gross tonnes: 4,528.61;
• net tonnes: 3,252.15
[36] However, we also see written by hand on the plastic sheet covering D-3, beside what was printed, [translation] "gross tonnes 1,578.55" and "net tonnes 569.99".
[37] Mr. Pouliot did not remember whether the Voyageur kept copies of the previously completed pilotage cards in the card room (transcript, April 26, 2004, page 96).
[38] However, Mr. Denis remembered there were [translation] "piles of invoices hung on the wall and I was given one. When we asked the deck watch officer and the captain for information, he would give us either a document where it was written down or an old pilot card, and we copied the information on it" (transcript, April 26, 2004, page 129).
[39] Mr. Denis did not remember having seen the Inspection Certificate on board the Voyageur (transcript, April 26, 2004, page 145).
[40] Mr. Denis was asked why he had indicated in his letter of April 9, 1991, to the LPA that the Voyageur was a ship that was not subject to compulsory pilotage. He answered: [translation] "according to the information we were given on board the ship on net tonnage, it was about 500 net tonnes, whereas it took 1,500 net tonnes to make it compulsory" (transcript, April 26, 2004, page 146).
[41] In cross-examination, Mr. Denis testified that he relied solely on the pilotage cards to support his conclusion that the Voyageur was not subject to compulsory pilotage (transcript, April 26, 2004, page 154) and he had never made any inquiry to the Registrar of Ships in Ottawa to see whether the information given on the cards corresponded to what was in the registers, for the reason that the figures on the cards had never been questioned (page 155).
[42] Mr. Denis testified that in 1991-92 [translation] "everyone assumed that this vessel had 579 tonnes. No one raised any questions" (transcript, April 26, 2004, page 167) and he could not remember precisely whether the information on the net tonnage came from a card or a document.
[43] Messrs. Yvon Martel, treasurer and administrative services director for the LPA, and Clément Deschênes, former LPA operations director, also testified for the LPA.
[44] Mr. Martel looked after invoicing for pilotage services, payments to pilot corporations for the said services and all aspects of finances and intergovernmental relations.
[45] He used pilotage cards for billing, either to the customer or for remittances to pilot corporations (transcript, April 26, 2004, page 172). Mr. Martel told the Court that the pilotage cards all contained the information necessary for billing, but admitted the information on net tonnage on the cards had no effect on billing (transcripts, April 26, 2004, page 202).
[46] Mr. Martel explained that there are two major sources of information on the dimensions of a ship: pilotage cards and the information from classification societies, chiefly Lloyd's. If there is any doubt as to the accuracy of the information appearing on the cards, the LPA consults the other source, namely the classification society or Lloyd's, but not the Registrar of Ships in Ottawa because the LPA Tariff Regulations refer to the classification societies or to Lloyd's. He pointed out it would be impossible for the LPA to obtain all the registers of the vessels plying the St. Lawrence, only 25% to 28% of which fly the Canadian flag. However, he admitted that the LPA relied primarily on information from pilots, since they go on board. He further acknowledged that in cases where there was an inconsistency between the cards and Lloyd's, the LPA could request the ship's Registration Certificate from the Registrar of Ships, but such situations were extremely rare (transcript, April 26, 2004, pages 175 to 177).
[47] He said he did not have to consult the Registrar of Ships at the Transport Department because there was no inconsistency between the information appearing on the pilotage cards and that contained in the records of the Lloyd's Classification Society.
[48] Clément Deschênes, former LPA operations director, had also worked for Transport Canada in the past as an inspector of ships. He was aware of the 1969 International Convention on Tonnage Measurement of Ships and testified that Canada subscribed to it in 1994.
[49] Mr. Deschênes stated that it was not until May 31, 2002, that the LPA knew that the information which it had on the net tonnage of the Voyageur was different from what the Register of Ships in Ottawa indicated, as the result of a letter sent to him by Louis Gauthier, legal counsel for the Department of Transport. Mr. Gauthier gave him the information on the Voyageur in that ship's register in Ottawa.
[50] This discrepancy was discovered in Ottawa when CTMA, through its counsel, asked the Minister of Transport for a compulsory pilotage exemption for a new vessel which it had recently acquired, the Vacancier, which was intended to replace the Voyageur.
[51] In the course of his investigation Mr. Deschênes visited the captain of the Voyageur and examined the originals of the certificates which he kept in his cabin with his documents. One of
the documents which the captain produced was the survey report of 1987.
[52] Mr. Deschênes knew the pilotage card system and explained [translation] "that pilotage cards are the proof the service has been rendered to the Authority, that a pilot embarked and at what time, that he disembarked at a particular time and place, and the captain signed the card, yes" (transcript, April 26, 2004, page 325), and he testified to much the same effect as Mr. Martel regarding checking the information contained in the cards with the information from Lloyd's.
[53] He explained there had never been any check on board the Voyageur because [translation] "the ship has been operating on the river for 16 years, in my time, as I recall, it has not taken on any pilot from the start" (transcript, April 26, 2004, page 329).
[54] I do not intend to summarize the evidence submitted by Olav Mogensen, a marine surveyor with Bureau Véritas in Montréal, since in my opinion his testimony does not in any way affect my findings. The same applies to the testimony of Bernard Samson, a ship's inspector employed by Lloyd's Register North America.
(ii) Defendant's evidence
[55] The defendant's evidence was presented by four witnesses: Gérard Leblanc, employed by the CTMA group since 1975 and now its general manager since October 2003. The former general manager, Roméo Cyr, was unable to testify as he is seriously ill.
[56] Three Voyageur captains testified. Captain Rémi Arseneau was captain of the Voyageur from 1987 to 2000. Captain Lomer Richard replaced Captain Arseneau when he was on vacation, and Captain Bernard Langford, who came on board the Voyageur in 1987 as first officer, was in command of the Voyageur between 2000 and 2002.
[57] The salient points of Mr. Leblanc's testimony are the following, contained in the transcript of the hearing held on April 27, 2004:
(1) at page 13, he admitted he had received the Registration Certificate with new calculations and a different tonnage from what it was when the Voyageur arrived in Canada;
(2) at pages 17 to 21 he confirmed that, since 1987, the Inspection Certificate had always been posted on two noticeboards in the ship _ one located in the card room and the other in a passage which was used to get to the pilot house; he said it was compulsory to post the Inspection Certificate; the LPA counsel also admitted this requirement;
(3) at page 28, he confirmed that Exhibit D-3 was nearly always posted on the noticeboard located in the card room;
(4) the noticeboard was covered by glass (pages 29 and 30) and [he] testified that the pilotage cards were kept in the card room near the card table. These cards were completed.
[58] In cross-examination, Mr. Leblanc:
(1) admitted that the pilotage card was stapled to each invoice the LPA sent him for services rendered by pilots, and these cards had information on the ship's characteristics, but the only thing he checked was whether the captain had signed the card (pages 44 and 45).
(2) admitted that the transcript of the register was not posted on the noticeboard because there was no requirement that this be done: it was the captain who kept this document;
(3) he answered [translation] "I do not know. I cannot tell you about that" in reply to the question which had been put to him, [translation] "What connection do you make between the Transcript of Register at 3,252.15 and the net tonnage, indicated on the card at 579?".
[59] I draw the following from the testimony of Captain Rémi Arseneau:
(1) he posted document D-3 on the noticeboard (page 82);
(2) he stated that the defendant always took on pilots, even before he became captain, pilots were taken on the Madeleine and on the Voyageur, and the defendant [translation] "never stopped taking on pilots until . . ." (page 83);
(3) he was asked to explain as captain how completion of the pilotage cards worked between him and the pilots: he replied [translation] "it became a routine. The pilot arrived with a notebook, with cards, he filled it in according to . . . I don't know, the time of departure, the time he embarked at Québec, the time he arrived at Trois-Rivières. Finally, I had to sign as indicating that the pilot had come on board" (page 84);
(4) he was shown a pilotage card he had signed, and after his attention was drawn to all the information appearing above the signatures, he was asked: [translation] "Did you complete that?" and he replied [translation] "No, we didn't touch that. I didn't touch that, I only signed" (page 85);
(5) he was asked whether the pilot asked him for information about the tonnage: he answered [translation] "No", and to the question as to where the pilot got this information, he answered: [translation] "No idea", and it was perhaps [translation] "with the first one that was issued, and it continued like that" (pages 85-86);
(6) he corroborated Mr. Leblanc's testimony that the completed cards were kept in the card room in a clip (page 86);
(7) he testified that the defendant kept its cards for a year: he said that the Voyageur always kept one so the other pilot could rely on the last copy of the last pilot; he added that the pilots were so experienced that they knew the history of the ship and all the pilot needed was the draught or departure from the Îles, which changed, and then the time the pilots changed (pages 87 and 88).
[60] In cross-examination, Captain Arseneau replied as follows:
(1) he indicated that the information the pilot needed to complete the pilotage card was written on the cover of the logbook, which was in the card room, but the pilot also often used the preceding card (page 93);
(2) at page 95 he admitted signing 90% of the pilotage cards, which were reproduced in the joint records: he regarded the card as [translation] "the receipt that the pilot had come on board my ship" (page 95);
(3) the pilots used the prior card for details: [translation] "they always copied over"; the pilots never asked either himself or the officers for information on completing the cards (page 117);
(4) the pilots passed in front of the noticeboard in the passage.
[61] Captain Richard believed that a gross tonnage of 579 was the net tonnage on the Register (page 120); that the card was evidence that the pilot had come on board; that it had become a practice for the pilots to rely on the information from the pilot who had gone before.
[62] On Exhibit D-3, Bernard Langford was asked why he wrote by hand in pencil figures other than those contained in the very wording of D-3. Captain Langford replied that he could not remember, it had been that way since the beginning (page 129). He also indicated that the log book did not contain information as such on the characteristics of the ship (page 130).
(b) Conclusions
(i) Prescription period interrupted _ impossibility of acting _ article 2904 C.C.Q.
[63] Earlier decisions interpreting article 2904 C.C.Q. (1994), which is based on article 2232 C.C.L.C., are consistent.
[64] The Supreme Court of Canada judgment in Oznaga v. Société d'exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113, is a leading case. In that case, the Court had to apply article 2232 C.C.L.C., which read as follows: "Prescription runs against all persons, unless there are included in some exception established by this code, or unless it is absolutely impossible for them in law or in fact to act by themselves or to be represented by others".
[65] I quote paragraphs 33 and 35 of the judgment of Lamer J. as he then was:
¶ 33 I am therefore of the view that in general it is rightly so that legal scholars refuse to regard the creditor's lack of awareness of the legal facts which are the basis of his right as constituting an absolute de facto impossibility of acting (see Pierre Martineau, La prescription, P.U.M., 1977, at pp. 353 et seq.). Be that so, there however appears to be as much agreement, and I concur, in recognizing that lack of awareness of the legal facts giving rise to a right, when such lack of awareness results from the debtor's fault, is de facto impossibility of acting as provided for in art. 2232, and that the starting point for computing deadlines will be suspended until the creditor is aware of the existence of his right, provided, it should be added, that he acted with the care of a reasonable man. [Emphasis added.]
¶ 35 In the case at bar Mr. Oznaga's allegations, taken as proven for the purposes of this appeal, attribute to the government corporation manoeuvres which resulted in concealing from him the existence of the facts on which he claims his right was based, until January 6, 1978. The thirty-day deadline must therefore be computed from that date. At this stage of the judicial proceedings, therefore, these allegations suffice to protect Oznaga's action for the time being from a motion to dismiss based on s. 35. The trial judge will decide as to the merits of his claims and will determine when Oznaga in fact learned of the "manoeuvre", if any, and whether he then acted within the required time limits.
[66] In Gauthier v. Lake Brome (Town), [1998] 2 S.C.R. 3, Gonthier J. reviewed the origins of the concept of impossibility of acting in Quebec civil law. At paragraphs 65 and 66 of his reasons, he wrote this:
¶ 65 In Quebec, the authors and the courts agree that prescription is suspended where the impossibility to act results from the fault of the debtor of the obligation (Martineau, supra, at p. 354; J. W. Durnford, "Some Aspects of the Suspension and of the Starting Point of Prescription" (1963), 13 Thémis 245, at p. 273 ; L. Langevin, "Suspension de la prescription extinctive: à l'impossible nul n'est tenu" (1996), 56 R. du B. 265, at p. 273; Oznaga v. Société d'exploitation des loteries and courses du Québec, supra, at p. 127; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554, at p. 603). This is just one expression of the contra non valentem agere rule, which reflects a principle of fundamental justice that is also expressed in the doctrine of abuse of rights, the maxim fraus omnia corrumpit, and the moral precept that no one should profit from his or her bad faith or wrongdoing (National Bank of Canada v. Soucisse, [1981] 2 S.C.R. 339; Bank of Montreal v. Kuet Leong Ng, [1989] 2 S.C.R. 429; Houle v. Canadian National Bank, [1990] 3 S.C.R. 122).
¶ 66 Another expression of the contra non valentem agere rule is found in the fact that the prescription period for an action in rescission of a contract based on fraud or error does not begin to run until the day the fraud or error is discovered (art. 2258 para. 2 C.C.L.C.). The Civil Code of Lower Canada also recognizes the psychological state of fear as a cause of suspension of prescription in art. 2258, which provides that the prescription of an action in rescission of contract for fear only runs from the day the fear ceases.
[67] The LPA based its action on section 44 of the Act. That provision states that except where the 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 for all pilotage charges as if the ship had been under the conduct of a licensed pilot.
[68] Section 44 does not apply if a ship is not subject to compulsory pilotage, a concept prescribed in the Regulations.
[69] A ship navigating in District No. 1, and registered in Canada, without a waiver, is not subject to compulsory pilotage unless its net registered tonnage exceeds 1,500 tonnes. In District No. 2, the net registered tonnage must exceed 2,000 tonnes.
[70] I note that for ships not registered in Canada, subparagraph 4(1)(a)(ii) of the Regulations makes no mention of the net registered tonnage as a basis for determining whether it is subject to compulsory pilotage.
[71] The LPA argued that it did not know the real tonnage of the Voyageur (3,252.15), which would have made it subject to compulsory pilotage, and that this ignorance was the result of a fault by the plaintiff, due to its wrongful acts, especially the fact that the pilotage cards signed by the captain were completed with information on the net tonnage (579 tonnes) that did not correspond to the tonnage calculated according to the Shipping Act. It criticized CTMA's failure to check the cards. It blamed CTMA for not sending information on the Voyageur to Bureau Véritas. It was this group of circumstances which prevented the LPA from knowing the truth.
[72] I cannot subscribe to the LPA's arguments for several reasons.
[73] First, the LPA took the wrong approach when it based its impossibility of acting on the completed pilotage cards. The Regulations themselves provide what document is to be consulted to determine the net tonnage of a ship registered in Canada, for the purpose of deciding whether it is subject to compulsory pilotage.
[74] The document that should have been consulted by the LPA, before saying that the Voyageur was not subject to compulsory pilotage, is the Voyageur's Registration Certificate, since the Regulations define net registered tonnage as the net tonnage mentioned in that certificate.
[75] By relying on the completed cards the LPA exceeded the regulatory provisions, which clearly identified the document to be consulted. In my opinion, the LPA cannot attribute this fault to the defendant. This fault in itself is sufficient to exclude application of article 2904 C.C.Q.
[76] Second, even if the Regulations had not identified the Registration Certificate as the source of the tonnage required to make the ship subject to compulsory pilotage, I am persuaded that the facts as a whole indicate that it was not impossible for the LPA to determine the true net tonnage of the Voyageur.
[77] I arrive at this conclusion based on several factors, including the following:
• the defendant never concealed the net registered tonnage of the Voyageur: this information was posted on the noticeboard in the card room (Exhibit D-3); the pilots could consult it, and should have investigated since Exhibit D-3 gave contradictory information on the ship's tonnage;
• the same conclusion applies to the Inspection Certificate, which was posted at two places on the Voyageur and which indicated the gross tonnage mentioned in its Registration Certificate;
• the LPA could at all times have consulted the relevant documents in the Register kept by the Registrar of Ships in Ottawa: this is the very purpose of a register, to provide a system which informs the public of relevant documents and the information which it contains about a ship registered in Canada;
• in my opinion, the LPA could not rely on the provisions on pilotage cards contained in the Tariff Regulations in order to exclude the Register in Ottawa: according to the Regulations, the pilot had to check the tonnage registered with the captain; the LPA form is lacking in this regard, as it only mentions the net tonnage, omitting the word "registered";
• the evidence was that the reliance placed by the LPA on the pilotage cards to support its conclusion in 1992 that the Voyageur was not subject to compulsory pilotage was misplaced: in fact, the information on the net tonnage had no importance for the purpose and use made of the information collected on the cards _ a system of verification for billing by the LPA for services rendered; also, the evidence was that the information entered for the net tonnage was completed by the pilots, who relied on the previous cards _ it had all become a routine; as several witnesses stated, the pilots were very familiar with the Voyageur.
[78] It is the LPA which had the burden of proof that it was impossible for it to act _ that is, to determine the true net tonnage of the Voyageur. The LPA's evidence did not persuade the Court that it was impossible for it to act.
[79] What is more, no evidence was submitted as to why the Voyageur, and apparently the Madeleine, were never subject to compulsory pilotage in District No. 2. No cards for District No. 2 were filed.
[80] In short, the LPA did not establish that its ignorance of the true net tonnage of the Voyageur was the result of any fault by the defendant. The evidence showed the contrary. The fact that the LPA did not discover the net registered tonnage before 2002 was its own fault.
(ii) Proper prescription period
[81] If it was not impossible for the LPA to act, the LPA argued that the proper period was ten years, under article 2922 C.C.Q., which reads:
| Art. 2922 The period for extinctive prescription is ten years, except as otherwise fixed by law. |
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Art. 2922 Le délai de la prescription extinctive est de dix ans, s'il n'est autrement fixé par la loi.
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[82] The defendant maintained that the prescription period was otherwise determined by the Code and that it was article 2925 C.C.Q. which applied. That article reads:
| Art. 2925 An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established. |
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Art. 2925 L'action qui tend à faire valoir un droit personnel ou un droit réel mobilier and dont le délai de prescription n'est pas autrement fixé se prescrit par trois ans.
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[83] In my opinion, it is article 2925 that applies: the prescription period is three years.
[84] I consider that the plaintiff's claim for pilotage charges under section 44 of the Act is an action which seeks to assert a personal right _ a claim _ see Baudoin and Jobin, Les Obligations, 5th ed., les Editions Yvon Blais, page 795. Prothonotary Morneau is entirely of this view in Western Great Lakes Pilots' Assn. (District 3) v. Navitrans Shipping Agencies Inc., [2002] F.C.T.D. 915.
[85] Counsel for the plaintiff argued that article 2922 applied because section 44 of the Act was statutory or public law. It is true that the source of an unpaid pilotage charge under
section 44, even if the person has not used the services of a pilot, is statutory, but that source
does not alter the nature of the obligation under that section, which creates a debt and the possibilities of a monetary claim.
(iii) Whether waiver
[86] The plaintiff argued that the LPA gave the CTMA a waiver under section 44 of the Act. I cannot accept this argument by the defendant.
[87] First, the letter of June 22, 1992, (Exhibit P-6) which Claude Deroy sent to Captain Rémi Arseneau does not indicate that the LPA exercised its waiver power to exempt the Voyageur from compulsory pilotage.
[88] What Mr. Deroy noted was that the Voyageur was not subject to compulsory pilotage. It is the language found in subsection 4(1) of the Regulations, although as argued by counsel for the defendant no reasons were indicated why the Voyageur was not subject to compulsory pilotage. The evidence is that the reason was the net tonnage.
[89] Second, the Regulations adopted by the Governor in Council authorized the LPA to exempt from compulsory pilotage in two circumstances listed in paragraphs (a) and (b), circumstances which are not present in the case at bar.
(iv) Disposition
[90] For all these reasons, the plaintiff's action is dismissed with costs on the ground that the claim made is prescribed. The Court did not receive sufficient particulars to decide whether during the years when the Voyageur was operating there were unpaid pilotage charges that were not prescribed. I invite the parties to contact the Court on this point, if necessary.
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"François Lemieux" |
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MONTRÉAL, QUEBEC
June 30, 2004
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-504-03
STYLE OF CAUSE: LAURENTIAN PILOTAGE AUTHORITY
Plaintiff
AND:
GESTION C.T.M.A. INC.
AND:
NAVIGATION MADELEINE INC.
AND:
THE OWNERS AND OTHERS HAVING AN INTEREST IN THE SHIP C.T.M.A. VOYAGEUR
AND:
M/V C.T.M.A. VOYAGEUR
Defendants
AND:
CORPORATION DES PILOTES DU BAS ST-LAURENT
Intervener
PLACE OF HEARING: Montréal
DATE OF HEARING: April 26 and 27, 2004
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: June 30, 2004
APPEARANCES: FOR THE PLAINTIFF
Guy P. Major
Francis Gervais FOR THE DEFENDANT
Marie-Ève Tremblay
Pierre Cimon FOR THE INTERVENOR
SOLICITORS OF RECORD:
Guy P. Major FOR THE PLAINTIFF
Montréal, Quebec
DEVEAU, LAVOIE, BOURGEOIS, FOR THE DEFENDANT
LALANDE & ASSOCIÉS
Laval, Quebec
OGILVY RENAULT FOR THE INTERVENER
Québec, Quebec