T-2575-72
Corporation of Lower St. Lawrence Pilots
(Plaintiff)
v.
The Queen (Defendant)
Trial Division, NoEl A.CJ.—Quebec City, Octo-
ber 15 and November 6, 1973; Ottawa, March
22, 1974.
Maritime law—Pilotage dues Mooring at place 8 miles
outside Quebec Harbour because of danger at night in win-
ter—Whether completion of services at that point—Claim for
dues for additional one-third trip—Canada Shipping Act, s.
347; Quebec Pilotage District General By-law, Sch. A, s.
1(3), 3(1)—Claim for dues for second pilot during winter—
Quebec Pilotage District General By-law, s. 15(9); Sch. A,
s. 6.
The plaintiff, which represents certain Quebec licensed
marine pilots, commenced action against the Crown to
recover pilotage dues earned by the pilots over a period of
nine years for (1) an amount equivalent to one-third of a trip
which the Pilotage Authority ought to have collected on
vessels anchored about eight miles below the eastern end of
Quebec Harbour and (2) pilotage dues earned by second
pilots employed on vessels by shipping lines during the
winter navigation season which the Pilotage Authority ought
to have collected. Plaintiff contended that, because of dif
ficulty of vessels arriving at night to moor in Quebec City
Harbour during the winter, the mooring in the Maheux River
completes the services of the pilot under section 347 of the
Canada Shipping Act and the vessel must, therefore, pay
the full amount to that place. By virtue of section 1(3) of
Schedule A of the Quebec Pilotage District General By-law
pilotage dues must be paid for an additional one-third of a
one-way trip for the pilotage zone located between the
boundaries of St -Roch -des -Aulnaies and Quebec City.
Regarding the second claim, the plaintiff contended that if
the Authority assigns and the shipping line uses the services
of two pilots, the line cannot obtain the services of the
second pilot for less unless the By-laws clearly so provide.
Held, the action is dismissed. Regarding the first claim,
when section 3(1) of Schedule A refers to payments of
pilotage dues when a vessel is moored in a zone other than
Quebec Harbour, it does not cover, as it is here, a mere
temporary stop, made voluntarily, before reaching the end
of the trip. Regarding the second claim, it is true that since
the amendment, P.C. 1972-4 on January 11, 1972, the
pilotage dues specified in Schedule A of the original General
By-law are paid for services in respect of each pilot used in
respect of each vessel. However, in 1957, by section 15(6)
of the General By-law no vessel was allowed more than one
pilot except in the case of a tug and tow when a pilot could
be assigned to each vessel. When an amendment to section
15, by P.C. 1601, was enacted in 1960 allowing two pilots
on a vessel during the winter season, there was also an
amendment at the same time to section 6 of the Schedule
which only increased the pilotage dues by a maximum of
one hundred dollars. The law does not say the dues would
be quadrupled as the plaintiff contended. Also, the services
of the second pilot could be paid only by the shipping line to
the pilot directly, since these amounts were obviously not
included in the amount to be collected by the
Superintendent.
ACTION.
COUNSEL:
Raynold Langlois and Guy Vaillancourt for
plaintiff.
François Mercier, Q.C., and Paul M. 011ivi-
er, Q.C., for defendant.
SOLICITORS:
Langlois, Drouin & Laflamme, Quebec
City, for plaintiff.
Deputy Attorney General of Canada for
defendant.
NOEL A.C.J.—Plaintiff, which was granted
letters patent on May 9, 1960 by the Deputy
Registrar General of Canada, represents li
censed pilots carrying on their profession of
pilotage on the St. Lawrence River and . the
Saguenay River, between Quebec City and Les
Escoumins, one of its purposes being to control
the administration of pilotage dues earned by
the pilots but collected by employees or repre
sentatives of the Crown (either the federal Min
ister of Transport or the Superintendent) and
returned to plaintiff (at least in part, since a
certain sum is retained for costs incidental to
pilotage, and another portion is reserved for the
pilots' pension fund) for distribution to the
pilots concerned.
By its action against Her Majesty the Queen
the Corporation is seeking, according to its alle
gations, to recover pilotage dues earned by the
pilots it represents (about 90 in all), which the
Pilotage Authority would have mistakenly failed
to collect. This claim in fact consists of two
parts:
(1) first, the Corporation is claiming pilotage
dues equivalent to a third of a trip, which
were not collected by the Pilotage Authority
on vessels anchoring in the Maheux River
area, located between Ste. Pétronille and St.
Laurent on the Î1e d'Orléans, which is a few
miles (about 8 miles) beyond and below the
eastern end of the Harbour of Quebec, and
(2) it is claiming pilotage dues earned by the
second pilot employed by shipping lines
during the winter navigation season, which
the Pilotage Authority also, according to
plaintiff, would have failed to collect.
The decision not to give pilots the right to
collect their pilotage dues individually was
taken by by-laws adopted by the officers of
defendant. Thus, section 8 of the General
By-law of the Pilotage District determined to
whom pilotage dues would be paid and to whom
they would actually be delivered. That section
reads as follows:
8. (1) Pilotage dues shall be paid to the Authority and
subject to subsection (2) shall be collected by the
Superintendent.
(2) The Superintendent may authorize a pilot to collect
pilotage dues.
(3) Pilotage dues collected by a pilot shall be paid to the
Superintendent.
(4) The method and time of collection shall be as the
Superintendent directs.
It should be noted at this point that the parties
have agreed and admitted that if the Court
decides that the Corporation has a valid claim
regarding the pilotage dues equivalent to a third
of the trip, the sum of $26,833.06 with interest
should be awarded. If the Court finds that the
claim for pilotage dues for the second pilot used
during the winter navigation season is also valid,
the sum of $1,944,728.11 with interest should
be awarded.
It should also be mentioned that the parties
have admitted, through their counsel, that the
quantum of the Corporation's claim amounts to
the figures stated below, depending on whether
the case is subject to prescription of thirty
years, five years or two years, without the par-
ties admitting that any of these prescriptions in
fact applies:
(1) Prescription of thirty years, in which case
the entire quantum of the claim (as above
stated) would not be prescribed;
(2) Prescription of five years:
(a) first part of claim $19,977.46
(b) second part of claim $1,413,279.98
(3) Prescription of two years:
(a) first part of claim $8,035.86
(b) second part of claim .... $544,188.78
At this point we should very briefly summa
rize certain facts submitted in evidence by
plaintiff. The latter in fact summoned several
pilots who were employed on vessels for which
it claims the Pilotage Authority ought to have
claimed an additional third of pilotage dues. The
evidence indicates that these vessels were all
scheduled during the winter period to go beyond
the upstream boundary of the district, namely
the Harbour of Quebec, on the way to Trois-
Rivières or Montreal. These vessels all
anchored in waters near the Maheux River, as
we have seen, some miles below Ste. Pétronille
on the ile d'Orléans, where according to certain
witnesses, there was a stretch of water less
affected by currents or shifting ice. This place
of mooring was in all cases decided by the
master, when the latter was informed that under
the regulations he could not proceed upstream
beyond the Quebec District, because of the late
ness of his arrival, and that the cost involved, or
even the difficulty of handling cargo at wharves
in the Harbour of Quebec, and the risks result
ing from ice in the Harbour, meant it would be
safer and less costly to tie up in the Maheux
River. The pilots who testified indeed stated
that it was difficult for vessels arriving in the
evening or at night to moor in the Quebec City
Harbour during the winter season, as the shift
ing of ice impelled by the current or tides creat
ed a danger of drifting, and drawing alongside
wharves in the Harbour involved considerable
expenditures or outlays for vessels, for linemen
or tugs when drawing alongside or casting off.
Plaintiff contends that in the circumstances
the vessels, having moored in the Maheux
River, had come as close to their destination as
possible, and under section 347 of the Canada
Shipping Act, set out below, "the service for
which he (the pilot) was hired shall be held to be
performed". It then says that the vessel must
therefore pay the three thirds due for pilotage
services having proceeded between Les Escou-
mins and the Maheux River, which implies that
it has navigated within three pilotage zones in
accordance with the provisions of section 1 of
Schedule A of the Quebec Pilotage District Gen
eral By-law. Section 347 of the Canada Ship
ping Act reads as follows:
347. Any licensed pilot may quit a ship that he has
undertaken to pilot as soon as such ship is finally anchored
or safely moored at its intended destination or as near
thereto as it is able to get at the time of its arrival or as soon
as the ship passes out of the pilotage district to which his
licence extends, whichever happens first, whereupon the
service for which he was hired shall be held to be per
formed. [Italics mine.]
Section 1 of Schedule A of the Quebec Pilot-
age District General By-law states that:
1. The dues payable for pilotage services are as follows:
(1) From Father Point to Quebec, or vice versa; or from
Father Point to Port Alfred or Chicoutimi or vice versa;
$5.20 per foot draught plus three quarters of a cent per ton.
(2) From Quebec to Port Alfred or Chicoutimi or vice
versa; $6.50 per foot draught plus three quarters of a cent
per ton.
(3) For a one way trip, other than a movage within the
Harbour of Quebec, between any two points lying between
Quebec and a line drawn from St. Roch Pt. to Cape St.
Joseph; one-third of the pilotage charge from Quebec to
Father Point. [Italics mine.]
(4) For a one way trip from any point within the limits
prescribed in subsection (3) to any point not beyond Red
Islet and Prince Shoal, or vice versa; two-thirds of the
pilotage charge from Quebec to Father Point.
(5) For a one way trip from any point within the limits
prescribed in subsection (3) to any point beyond Red Islet
and Prince Shoal or vice versa; the full pilotage charge as
from Quebec to Father Point, if the vessel does not enter the
Saguenay River, or as from Quebec to Port Alfred if the
vessel enters the Saguenay River.
(6) For a one way trip between any two points lying
between Father Point and Prince Shoal or Red Islet; one-
third of the pilotage charge from Father Point to Quebec.
(7) For a one way trip from any point within the limits
prescribed in subsection (6) to any point between Prince
Shoal or Red Islet and a line drawn from St. Roch Pt. to
Cape St. Joseph; or to any point in the Saguenay River not
above Cape Trinity; or vice versa; two-thirds of the pilotage
charge from Father Point to Quebec.
(8) For a one way trip from any point within the limits
prescribed in subsection (6) to any point above Cape Trinity
in the Saguenay River or vice versa; the full pilotage charge
from Father Point to Port Alfred.
(9) For a one way trip from Port Alfred to Chicoutimi, or
vice versa, one-third of the pilotage charge from Father
Point to Port Alfred.
I pass over subsection (10), which deals with
computation and taxation of dues payable under
section 1, as this is of no assistance in settling
plaintiff's claim.
Exhibit P-3 submitted by plaintiff, which is a
map showing the river and its shoreline from
Quebec City to Father Point, and a little
beyond, contains letters and lines marking the
limits of three zones. Section 1 of Schedule A
of the dues payable describes the remuneration
of a pilot for a journey between one or other of
these lines. For example, for a pilot to be en
titled to a pilotage third, the vessel must have
navigated either from line "D" to line "C", from
line "C" to line "E", or from line "E" to line
"B". If the vessel navigated from line "D" to
line "B", the pilot would be entitled to receive
the three thirds of the pilotage charge provided.
The subparagraphs of the Schedule dealing
with the Saguenay do not apply to the instant
case. In support of its claim, however, plaintiff
Corporation relies on subsections (3), (5), (6)
and (8) of section 1. Subsection (3) states, as we
have seen, that:
(3) For a one way trip, other than a movage within the
Harbour of Quebec, between any two points lying between
Quebec and a line drawn from St. Roch Pt. to Cape St.
Joseph; one-third of the pilotage charge from Quebec to
Father Point.
must be paid for pilotage. Subsection (4) refers
to two-thirds of the pilotage charge from
Quebec to Father Point for a one way trip from
any point within the limits prescribed in subsec
tion (3) to any point not beyond Red Islet and
Prince Shoal, or vice versa. Subsection (5) deals
with a one way trip from any point within the
limits prescribed in subsection (3) to any point
beyond Red Islet and Prince Shoal or vice
versa, for which the full pilotage charge is pay
able as from Quebec to Father Point, if the
vessel does not enter the Saguenay River, or as
from Quebec to Port Alfred, if the vessel enters
the Saguenay River. Subsections (6), (7) and (8)
deal in a similar fashion with a trip by a vessel
in the opposite direction, that is from Father
Point to Quebec.
Clearly, the subsection which particularly
concerns this claim is subsection (3), which
describes the pilotage zone located between
boundaries "E" and "B", namely between
St -Roch -des -Aulnaies and Quebec City. Plaintiff
contends that a trip within this zone (this need
not be, it maintains, from one boundary to the
other, it can be to any point within the zone)
gives a right to pilotage dues. According to
plaintiff, Exhibit P-3 is only an illustration of
the zone boundaries, and cannot replace the text
of Schedule A. Plaintiff contends that pilotage
dues are payable in all cases where a vessel is
piloted from any point whatever within a zone,
except for a movage within the Harbour of
Quebec, which is excepted by subsection (3). In
plaintiff's submission this is exactly what hap
pens when, as here, ships stop in the Maheux
River to remain overnight and proceed the fol
lowing day into the Harbour of Quebec, and the
pilot for such ships is therefore entitled to the
third provided by Schedule A, since the naviga
tion performed by the pilot is "between any two
points lying between Quebec and a line drawn
from St. Roch Pt. to Cape St. Joseph". Plaintiff
submits that it follows from this provision that
the pilot is entitled to be paid because he has
provided pilotage within a zone, without neces
sarily crossing it.
First, it should be noted that the wording of
the section and its subsections contains
ambiguities in some respects, and its interpreta
tion is not free from difficulty. Furthermore, the
by-laws relating to plaintiff's second claim,
those under which it is claiming payment of
double pilotage dues, are not expressed as pre
cisely as they could have been. We shall deal
with this matter below; for the moment, let us
consider the claim for an additional third on
account of ships stopping in the Maheux River.
We have seen that this location is some eight
miles east of the Harbour of Quebec, and that
stopping there is determined by the master,
when in winter his vessel arrives too late at
night to go on to Trois-Rivières or Montreal.
Should this be regarded, as plaintiff suggests, as
his point of destination, or "as near thereto as it
is able to get at the time of its arrival .. .
whereupon the service for which he was hired
shall be held to be performed", according to
section 347 of the Canada Shipping Act? I do
not think it can be said that a pilot whose ship
stops for a few hours at night, in these circum
stances, has performed his pilotage services and
is entitled to the three third pilotage charge for
the trip from Father Point to Quebec. To begin
with, the trip in my view is incomplete, since
here "Quebec" means the Harbour of Quebec,
the eastern boundary of which is located some
miles upstream from Maheux River; and fur
thermore, the pilotage services cannot be
regarded in the circumstances as having been
performed, nor in fact have they been per
formed. By paying wharfage charges the vessel
could have gone as far as a wharf in the Har
bour of Quebec, or even anchored there. Its
master preferred, however, for very good rea
sons, to decide otherwise and halted his vessel
at Maheux River for a few hours, to wait for
daylight, and then cross the Harbour of Quebec
and proceed to Montreal. The evidence is that
pilots never left a ship at Maheux River, though
steps might have been taken to enable them to
do so if their pilotage services had been com
pleted, or if at that stage the vessel had reached
its destination point, as determined by section
347 of the Canada Shipping Act. I think it is
clear that a vessel which stopped at the Maheux
River under such circumstances would only be
interrupting a trip which, had there been no
prohibition against sailing to Trois-Rivières or
Montreal from the Harbour of Quebec at night,
could have been carried on in short order and
without making the stop—a trip, I repeat, which
would continue some hours later, enabling the
vessel, as we have seen, to arrive in Quebec
City at daybreak and continue its progress
toward Montreal. It is thus not surprising that
for almost nine years the parties involved have
never considered that the trip was completed at
the Maheux River stage, and the pilotage ser
vice performed, even within the meaning of
section 347 of the Canada Shipping Act. It is
true that the pilots remained on board the vessel
during the stop at Maheux River, one sleeping
while the other attended to the anchors, or
anchoring. They were however paid while so
detained in accordance with section 3(1) of
Schedule A, which reads as follows:
3. (1) If, at the request of the Master or Agent, a pilot is
detained on board a vessel for more than one hour, for any
reason other than stress of weather or an accident for which
the pilot is responsible, he shall be paid a detention allow
ance of $3.00 per hour for each additional hour over one
hour, but he shall be paid not more than $25.00 for each
calendar day while so detained.
It is also true there is not necessarily any
inconsistency between the fact that a pilotage
service is carried on and that a detention allow
ance is paid. The aforementioned section 3(1) in
fact indicates that in some cases payment of
such an allowance may be required, without
remuneration for the pilotage service being pay
able, while in other cases the detention allow
ance and remuneration for pilotage service may
both be payable. It seems to me, however, that
when section 3(1) of the Schedule refers to
pilotage dues when a vessel is moved in a zone
other than the Harbour of Quebec, it does not
cover, as it is here, a mere temporary stoppage,
made voluntarily, before reaching the end of the
trip from Father Point to Quebec, or vice versa.
If, as I find to be the case, the pilotage service is
not completed at that stage within the meaning
of section 347 of the Act, the dues payable to
the Corporation for the entire journey from Les
Escoumins to Quebec, across three zones or
vice versa in accordance with Schedule A, are
fixed at payment of the three third pilotage
charge for a vessel going from Father Point to
Quebec, or vice versa, as stated in the Schedule,
and not four thirds, as claimed by plaintiff. It
appears to me that pilotage services for a trip
from Quebec to Les Escoumins, or vice versa,
are based essentially on the principle of a trip
between these two points, not on the time taken
to cover the distance. It is true that the distance
has been divided into sectors (see Exhibit P-3,
the map, and the subsections of section 1 of the
Schedule), but a total charge of three thirds
(3/3) has been imposed for the entire distance,
comprising these sectors.
Trips comprising the entire distance, for
which a rate is provided, such as those involved
in this claim, are not, even though charges are
provided for movage of a vessel subsection (3)
of section 1 of the Schedule, by the terms of the
Act and the relevant regulations, transformed
into a fractured or cut-down trip where, as in
this case, the vessels drop anchor in Maheux
River, and the total charges for pilotage services
are consequently not increased by an additional
third when, as here, a short stop of a few hours
during the night is made only to give vessels a
shelter or refuge during the winter, on a purely
temporary basis, which is safer and less costly
than they would have had in the Harbour of
Quebec. Plaintiff's claim for a pilotage third
must therefore be dismissed.
We must now consider plaintiff's second
claim for the sum of $1,944,728.11 as remuner
ation for pilotage services provided by the
second pilot assigned by the Pilotage Authority,
whose services were accepted and used by ship
ping lines during the winter season between
1960 and 1970, inclusive.
Here the Court must decide what pilots
whose services were accepted and used by mas-
ters during the winter season are entitled to
receive as remuneration during that season by
virtue of section 1 of Schedule A, set out above,
and any increase from either of the amounts
prescribed in paragraphs (a) and (b) of section
6, for winter navigation, and in addition the
surcharge provided for by section 7. Sections 6
and 7 of Schedule A read as follows:
6. During the period from the 1st day of December to the
8th day of April next following, the dues prescribed in
section 1 of this Schedule shall be increased by the lesser of
(a) the amount of the dues payable under that section, or
(b) one hundred dollars.
Surcharge
7. In addition to the dues set out in this Schedule there is
payable in each case the following surcharge:
(a) on charges for movages, fifty per cent; and
(b) on all other pilotage charges, eight per cent.
Between 1960 and 1970 during the winter
season the Pilotage Authority or the Superin
tendent collected a single payment of the sum
payable under section 1 of Schedule A for pilot-
age dues, plus a single payment of the lesser of
the sum payable under that section, or $100.
Plaintiff says that that was not the full remu
neration for pilotage which ought to be collected
for each pilot assigned to a vessel, whose ser
vices were accepted and used by the master of
the vessel. It indeed maintains that in the case
of a trip between Les Escoumins and Quebec
City during the winter season, the remuneration
which ought to have been collected should be
twice the pilotage dues specified in section 1 of
the Schedule, and twice the surcharge provided
by section 6, the whole increased by the sur
charge provided in section 7 of the Schedule.
Plaintiff's contention is that pilotage dues repre
sent the remuneration for service rendered by
each pilot, and that if the Authority assigns, and
the shipping line uses, the services of two pilots,
the line cannot obtain the services of the second
pilot for less unless the by-laws clearly so
provide.
The sum of $1,944,728.11 was arrived at on
the basis of pilotage cards produced by a
number of pilots, the parties agreeing to stipu
late that if all the cards in question were pro-
duced, they would amount to the aforemen
tioned sum, and the latter represents the sums
which plaintiff claims defendant ought to have
collected. The necessary information for arriv
ing at pilotage dues in the cases under consider
ation here is obtained by application of section
7 of the Quebec Pilotage District General
By-law, which requires that a pilotage card be
kept. That section reads as follows:
7. (1) On boarding a vessel the pilot shall ascertain from
the master or officer-in-charge the draught, registered ton
nage and other information required to complete the pilotage
card supplied by the Authority.
(2) The completed pilotage card shall be signed by the
master or officer-in-charge and by the pilot and shall be
delivered by the pilot to the Superintendent as soon as
practicable thereafter.
It should be added that once the pilotage card
is completed in accordance with section 7, it is
delivered to the Authority or to one of defend
ant's officers, who computes the dues payable,
and the latter are collected by the Superintend
ent, in accordance with section 8 of the Quebec
Pilotage District General By-law, which reads as
follows:
Collection of Pilotage Dues
8. (1) Pilotage dues shall be paid to the Authority and
subject to subsection (2) shall be collected by the
Superintendent.
(2) The Superintendent may authorize a pilot to collect
pilotage dues.
(3) Pilotage dues collected by a pilot shall be paid to the
Superintendent.
(4) The method and time of collection shall be as the
Superintendent directs.
This section apparently means that pilotage
dues must be paid to the Authority and collect
ed by the Superintendent, that is by servants of
the Crown, who are required to receive and
collect these dues for and on behalf of pilots in
the district in question. This seems to me to be a
statutory obligation, resulting in a kind of forced
mandate, applicable both to the Crown servants
in question and the pilots concerned.
As we have seen, according to plaintiff
defendant did not collect the pilotage dues it
ought to have collected. Plaintiff's contentions
on this matter are clearly set out in certain
paragraphs from its statement of claim repro
duced below:
29. The pilotage service performed by the second pilot
entitles him to the remuneration fixed by the rate schedule
in Schedule A of the General By-law, i.e. the pilotage dues
computed in accordance with sections 1, 2, 3 and 4 of
Schedule A, plus the winter surcharge specified in s. 6 of
that Schedule;
30. The Superintendent of the said Authority did not
collect the remuneration due for the second pilot as fixed by
Schedule A of the General By-law, thus depriving plaintiff
on behalf of its members of the remuneration owed each
second pilot;
31. By a mistaken interpretation and application of its
General By-law, as amended, the said Pilotage Authority
occasioned loss to plaintiff on behalf of its members;
32. Furthermore, since amendment of the Quebec Pilotage
District General By-law, approved by Order in Council (P.C.
1972-4) on January 11, the pilotage dues specified in
Schedule A of the original General By-law are paid for the
services of each pilot whose services are accepted on a
vessel;
33. The remuneration of which the pilots were deprived as
a result of the negligence and carelessness of defendant's
agents and servants amounts to $1,944,728.11.
It is true that since the adoption of Order in
Council P.C. 1972-4 on January 11, 1972, the
pilotage dues specified in Schedule A of the
original General By-law are paid for services,
and the stipulation is made: "of each pilot used
in respect of each vessel". However, a clear
statement of this was required.
The text of the General by-law applicable to
the period involved here is less explicit. Never
theless, in plaintiff's submission, this by-law
gives both pilots the right to each receive the
pilotage dues specified in section 1 of the
Schedule, as well as the amount specified in
section 6 of that Schedule.
One must appreciate that in 1957 section
15(6) of the General By-law under consideration
provided that "No vessel shall be allowed more
than one pilot, but in the case of a tug and tow a
pilot may be assigned to each vessel; in such
case, the Superintendent shall direct which of
the pilots shall be in charge."
On November 25, 1960, by Order in Council
P.C. 1601, the above-cited section 15 was
amended, by the addition of the following
subsection:
(9) Notwithstanding subsection (6), where, during the
period from the 1st day of December to the 8th day of April
next following, a pilot is requested for a ship other than for
the purpose of a movage, two pilots shall be assigned to the
ship.
It was thus enacted for the first time that
from November 25, 1960, during the winter
season, two pilots would be assigned to a vessel.
This amendment was made in 1960, but at the
same time, on November 25, 1960, section 6 of
the Schedule was adopted, and as we have seen
this increased the amount for pilotage on a
vessel during the winter season; it is worthwhile
reproducing this section below again:
6. During the period from the 1st of December to the 8th
day of April next following, the dues prescribed in section 1
of this Schedule shall be increased by the lesser of
(a) the amount of the dues payable under that section, or
(b) one hundred dollars. [Italics mine.]
It appears that under this section "the dues
prescribed in section 1 of this Schedule shall be
increased . . ." It does not say they will be
quadrupled, as plaintiff contends. It does not
say that the dues prescribed in section 1 of the
Schedule will revert to each pilot, with in addi
tion the smaller of the amounts prescribed in
section 6 of the Schedule, but that these dues,
as they were prior to adoption of section 6, will
be increased only by either of the amounts
prescribed and applicable under paragraph (a)
or (b) of section 6. Nor does it say, I should
add, that the dues paid will be increased by the
amounts prescribed in section 6, for though
before 1960, a second pilot usually accom
panied the pilot during the winter, which might
happen and did in fact happen, the services of
this second pilot could be paid only by the
shipping line to the pilot directly, since these
amounts were obviously not included in the
amount to be collected by the Superintendent.
In short, I do not find either in the Schedule
or in its amendments applicable to this claim, a
statement or even an inference that the dues
mentioned in section 1 of the Schedule should
be doubled when two pilots are on a vessel
during the winter season. If such additional dues
were payable by virtue of the employment of a
second pilot on a vessel during the winter, it
'would be provided in the Schedule by means of
which employees of defendant authorized to
set these dues would have determined them.
Indeed, I find in section 6 only an increase of
the dues prescribed by section 1 of the
Schedule, which are those payable "for pilotage
services" (as stated in subsection (1) of section
1 of the Schedule) at that period, but increased
by either of the amounts specified in paragraph
(a) or (b) of section 6 of the By-law. If follows,
therefore, that under the Act and the By-laws,
defendant has collected all of the dues payable
to the pilots. This claim of plaintiff should
therefore also be dismissed.
Both claims having been dismissed, I need go
no further but for the possibility that this deci
sion will be appealed. In this regard I consider,
first, that we are not concerned here with a
mere power or authority conferred on the offi
cers or servants of the Crown to collect the
sums owed for pilotage services under section 8
of the Pilotage District General By-law. Defend
ant's servants have an obligation or a statutory
duty, in what during the hearing I referred to as
a kind of coercive mandate imposed by the Act
and the By-law. What this means in the case at
bar is that, in my view, the nature and extent of
the obligation of defendant's servants are not
governed only by certain provisions in the Civil
Code, requiring, for example, that they need
only have exercised reasonable skill and the
care of a prudent administrator, especially
where the failure of the Crown's servants, if the
Act and the By-law are interpreted as plaintiff
suggests, might be based both on the vague and
obscure by-laws prepared by other servants of
the Crown and on a misinterpretation of that
same By-law.
I cannot conclude without making the point
that over a period of a little more than nine
years, plaintiff consistently accepted the pilot-
age dues as collected by defendant, and it would
be difficult not to regard it as bound by that
acquiescence. If indeed it is so bound, it could
no longer claim against defendant, who clearly
is no longer in a position, or would find it
difficult, to trace the vessels in question if addi
tional dues were still to be claimed, based on an
interpretation of the by-laws different from that
of the defendant.
The evidence indeed showed that almost fort
nightly, over a period of nine years, the Superin
tendent of Pilots remitted pilotage dues received
from shipowners or agents to plaintiff, which
arranged distribution of the money so collected
to pilots in accordance with their respective
rights. In these circumstances, even assuming
that the imprecision and ambiguity of the word
ing of the applicable By-law could allow the
interpretation placed on it by plaintiff, the latter
and its members being fully conscious of that
By-law and its provisions, and working at what
might be called a common task, how is it possi
ble to escape from the conclusion, which in my
opinion necessarily follows, that having by their
silence and their behaviour for so long
acquiesced in the procedure followed by
defendant's servants, it or those it represents
thereby abandoned or waived any right to claim
any more.
The appeal is accordingly dismissed with
costs.
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