The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Violation Tickets for Engineers?
The new system of Administrative Monetary Penalties under the Canada
Shipping Act 2001 is here.
The Canada Shipping Act 2001 ("CSA 2001"), which came into force on July 1, 2007, replaced the former Canada Shipping Act and brought with it many important changes to the law. One important change was the implementation of the Administrative Monetary Penalty (AMP) system, a system of ticketing and fines akin to motor vehicle traffic tickets that legislators hope will make enforcement of the CSA 2001 and regulations more effective by encouraging engineers and vessel owners to modify behaviour without the time and expense of prosecuting offenders in court. Under the new system individual engineers will face fines of up to $5,000 as a result of tickets issued on the spot for infractions such as failing to have or maintain safety equipment, inadequate documentation, improperly trained crew or inadequate watches, and oil pollution.
An AMP is a fine which results from the issuance of a ticket
(formally known as a "Notice of Violation") that can be given by a
designated authority for breaches of various sections of the CSA
2001, its regulations, as well as Directions given under the
legislation (such as the Direction of a Marine Safety Inspector). A
Notice of Violation will typically arise where infractions are
discovered during spot-checks or scheduled inspections of vessels
and their crew. The amount of the fine under the AMP will vary with
the type of offence, the severity of the circumstances, and the
engineer's or owner's history of compliance. Fines for individual
engineers will be a maximum of $5,000 per contravention. One event,
however, can result in multiple contraventions, and therefore
multiple fines.
The issuance of an AMP is not automatic. If an inspector finds a
contravention they may first give the alleged offender a warning.
Alternatively, the inspector may ask that the offender enter into an
"Assurance of Compliance". An Assurance of Compliance is essentially
a written promise to do something, such as correct a behaviour or
situation that is an offence under the Act. The Assurance of
Compliance gives the offender an opportunity to correct the problem
without an AMP being issued. However, if the Assurance of Compliance
is breached the AMP is issued automatically and the fine under the
AMP is doubled. Importantly, just because the AMP regulation
provides that a particular contravention can result in an Assurance
of Compliance, or an AMP, does not mean that the responsible
authority cannot decide to prosecute the offender in criminal court
instead. The option is the Crown's, and their decision will depend
on whether the contravention was committed wilfully, how serious it
was, and whether it was a repeat offence.
The CSA 2001 contemplates that there will be a publically accessible
record of all violations and penalties as they relate to individuals
and vessels. As such, engineers should have some concern as to what
effect this new record of violations may have on their employment or
contract opportunities. Employers may search this record in deciding
whether to hire an engineer, or a charterer may search the record
before agreeing to hire the engineer's vessel. Keeping a clean
record is obviously important.
You can dispute an AMP but you must do so within 30 days of
receiving the ticket. You can also dispute the facts of which an
Assurance of Compliance is based, but this must be done within 48
hours of signing the Assurance (disputing the facts may be important
because once an Assurance is signed the party has essentially
admitted to alleged facts and these go on their record).
AMPs are disputed by filing a notice of dispute with the
Transportation Appeal Tribunal of Canada ("TATC"). A single TATC
Review Officer will hold a hearing (like a disputed traffic ticket
results in the court holding a trial) where the enforcement officer
will have to prove that the violation or default of an Assurance has
occurred. The alleged offender will be given the opportunity to
defend themselves by showing the alleged offence did not occur. The
prosecutor must only prove the offence on the balance of
probabilities (essentially 51% or greater likelihood the alleged
wrong occurred), rather than the former, more stringent, burden of
"beyond reasonable doubt". This is a significant change that will
increase the likelihood of the engineer being held liable. The TATC
has the authority to reduce the amount of the fine provided the
revised amount does not fall below a minimum set by the regulations.
The general AMP regulations and an initial list of offences and
fines were released in November of 2007 but are not anticipated to
take effect until May of 2008 when it is expected they will be
published in the Canada Gazette. The new AMP system is here to stay
and engineers are best protected by understanding it.
Click here to
see the April 2008 Transport Canada Ship Safety Bulletin regarding
the introduction of the AMP.
Click here to
see the Transport Canada press release.
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.