T-4878-73
Laurentian Pilotage Authority (Plaintiff)
v.
Shell Canada Limited (Defendant)
Trial Division, Dubé J.—Montreal, October 3 and
10, 1975; Ottawa, December 10, 1975.
Maritime law—Pilotage—Plaintiff claiming pilotage dues
re second pilot—Defendant claiming it objected to assignment
of second pilot, and that regulations under which tariffs were
assessed had been repealed—Pilotage Act, S.C. 1970-71-72, c.
52, ss. 3, 12, 43(4),(6),(7), as am. S.C. 1973-74, c. 1—Canada
Shipping Act, R.S.C. 1970, c. S-9, ss. 307, 330—Interpreta-
tion Act, R.S.C. 1970, c. I-23, s. 36(f),(g),(h).
Plaintiff claimed pilotage dues from defendant for a second
pilot on defendant's vessel in April, May and June, 1973.
Defendant alleged that it had objected to assignment of the
second pilot, and that the regulations under which tariffs were
assessed had been repealed.
Held, defendant is responsible for payment. The Pilotage
Act, replacing Part VI of the Canada Shipping Act, stated
(section 43(4)) that regulations under the Canada Shipping
Act were to continue in force for one year, until February 1,
1973. Subsequently, the regulations and by-laws were con
tinued in force until February 1, 1974. The Quebec Pilotage
District General By-law, as amended, remained in force until
February 1, 1974, by virtue of section 43(4). Under section
43(6) of the Pilotage Act, an Authority may revoke any by-law
or regulation in its area. Section 43(7) provides for continua
tion of the compulsory pilotage areas in Part VI of the Canada
Shipping Act; section 307 of that Act defines the pilotage
district of Quebec, and section 330 makes payment of pilotage
dues compulsory within the District. Section 15 of the General
By-law was amended in 1970 to provide, in subsection (9), for
assignment of two pilots. In 1972, section 6(1) was enacted,
authorizing payment of two pilots as set out in Schedule A. In
1973, Schedule A was revoked; the District in question, how
ever, is not affected. Also in 1973, a new tariff structure for
District 2 was introduced (Schedule C). Defendant has claimed
that the revocation of Schedule A ipso facto cancels section
6(1) prescribing payment for two pilots. However, the amend
ment revoking Schedule A only cancels Schedule A; it does not
revoke section 6(1). Section 6(1) remains in force, and still
refers to Schedule A, which has been revoked, instead of to the
new Schedule C. Accordingly, whereas section 6(1), authoriz
ing payment for a second pilot, was never repealed, it remained
in effect, and now refers to Schedule C. Payment of double
pilotage dues set forth in Schedule C is still required under
section 6(1). The Authority assigned two pilots for safety
reasons, and the Court does not have authority to decide
whether assignment of two pilots was necessary for those
reasons. By the Pilotage Act, the Authority was empowered to
operate an efficient pilotage service within its region, and to
prescribe fees. Any ship entering the region is subject to
by-laws in effect, the decisions of the Authority based on them,
and the fees derived therefrom.
Brown v. Martineau [1966] R.L. 1, agreed with.
ACTION.
COUNSEL:
G. P. Major for plaintiff.
J. Laurin and S. Hyndman for defendant.
SOLICITORS:
Guy P. Major, Montreal, for plaintiff.
McMaster, Meighen, Minnion, Patch, Cor-
deau, Hyndman & Legge, Montreal, for
defendant.
The following is the English version of the
reasons for judgment rendered by
DUBE J.: Plaintiff, a body corporate established
pursuant to section 3 of the Pilotage Act', is
claiming the amount of $1,869.06 from defendant
for pilotage dues with respect to a second pilot on
board the Eastern Shell during 1973 for trips
between Quebec City and Chicoutimi.
At the hearing an amendment to correct the
name of defendant was allowed, pursuant to Rule
425. It appeared that the corporation Shell
Canada Limited had a written agreement with
Shell Canadian Tankers (1964) Limited, whereby
the former corporation functioned as charterer and
the latter as owner of a number of vessels, includ
ing the Eastern Shell. This agreement, dated July
1, 1972 and filed by defendant (Exhibit D-12),
was signed by the same president and secretary for
both corporations. It was also established that both
occupied the same building. Counsel for the
defendant agreed to the amendment and for the
purposes of this judgment, the name of defendant
becomes Shell Canadian Tankers (1964) Limited.
I S.C. 1970-71-72, c. 52.
Defendant alleged that it objected to the assign
ment of a second pilot during the journeys in
question, namely the ones between Quebec City
and Chicoutimi on April 17, May 2, 25 and 26,
June 12 and July 11 and 13, 1973. It claimed that
this assignment of a second pilot was not a safety
precaution but rather a measure taken in order to
comply with a collective agreement between plain
tiff and the Corporation of Lower St. Lawrence
Pilots. It also alleged that the Regulations under
which the tariffs in question were assessed had
been repealed by Order in Council.
It appears that the case at bar will set a prece
dent and that the decision on it will affect other
claims by plaintiff with regard to owners of other
ships assigned a pilot under similar circumstances.
The Pilotage Act, proclaimed in force on Febru-
ary 1, 1972, replaced Part VI of the Canada
Shipping Act 2 , dealing with pilotage, and in sec
tion 3 it established four Pilotage Authorities
which are named in the Schedule; they are the
Atlantic Pilotage Authority; the Laurentian Pilot-
age Authority, comprising all waters in and
around the Province of Quebec, with certain
exceptions; the Great Lakes Pilotage Authority;
and the Pacific Pilotage Authority. In section 43
of the Act transitional, repeal and consequential
provisions are made. Section 43(4) states that the
regulations made under the Canada Shipping Act
continue in force for one year from the commence
ment of the Act, namely until February 1, 1973,
unless revoked by an Authority.
43. (4) Every by-law made or expressed to have been made
by a pilotage authority as defined in the Canada Shipping Act
and every regulation made pursuant to Part VIA of that Act
and in force, or deemed to be in force, on the commencement of
this Act, continues in force for one year from the commence
ment of this Act unless the by-law or regulation is revoked by
an Authority.
Section 43(4) was subsequently amended.'
Assented to on January 31, 1973, the amendment
provided for the continuation in force of the said
regulations and by-laws until February 1, 1974,
: R.S.C. 1970, c. S-9.
3 S.C. 1973-74, c. 1.
unless they were revoked by an Authority.
The Quebec Pilotage District General By-law 4 ,
made pursuant to the Canada Shipping Act, came
into effect on February 7, 1957, and accordingly,
by the terms of section 43(4), remained in effect as
amended through the years until February 1, 1974
unless revoked by an Authority.
Under section 43(6) of the Act an Authority
may, with the approval of the Governor in Coun
cil, revoke any by-law or regulation in its region:
43. (6) An Authority may, with the approval of the Gover
nor in Council, revoke any by-law or regulation continued in
force by subsection (4) that has effect within any part of the
region set out in respect of the Authority in the Schedule.
Under the present Act, section 43(7) provides
for the continuation in force of the compulsory
pilotage areas mentioned in Part VI of the Canada
Shipping Act, and section 307 of the latter Act
defines the pilotage district of Quebec as compris
ing the St. Lawrence River from the western limit
of the harbour of Quebec City to the grounds off
Father Point, including the Saguenay River. Sec
tion 330 makes the payment of pilotage dues com
pulsory within the limits of a district.
Section 15 of the aforementioned General
By-law deals with the assignment of pilots, and
subsection (6) reads as follows:
15. (6) 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.
Section 15 was amended on November 24, 1970
by Regulation SOR/70-513, which reads as
follows:
15. (9) Notwithstanding subsection (6), where two pilots
are required for the safe navigation of a vessel, the Superin
tendent may assign two pilots to that vessel and shall direct
which of the pilots shall be in charge.
The Superintendent's right to assign two pilots
is based on section 12 of the Act, which describes
the objects and powers of the Authority:
12. The objects of an Authority are to establish, operate,
maintain and administer in the interests of safety an efficient
pilotage service within the region set out in respect of the
Authority in the Schedule.
4 SOR/57-51, P.C. 1957-191.
The assignment of two pilots was authorized by
Regulation SOR/70-513 and payment for their
services by SOR/72-5, dated January 13, 1972,
which stated:
6. (1) The pilotage dues as set forth in Schedule A shall be
paid for the services of each pilot used in respect of each vessel
unless exempted by the Act or by this By-law.
It should be noted that this last Regulation
came into effect some two weeks before the Au
thority was created, pursuant to proclamation of
the Act on February 1, 1972.
On March 8, 1973, by SOR/73-136, the Au
thority revoked paragraphs 2(1)(e),(g), and (h),
subsection 2(2), sections 7, 8 and 9 and Schedule
A of the By-law.
This Schedule may be found in SOR/72-388
and prescribes the tariffs of pilotage dues to be
paid to the Laurentian Pilotage Authority for Dis
trict No. 1. Since the harbour of Quebec City and
the St. Lawrence waters to the east, as well as the
Saguenay River, are in District No. 2, they are not
affected by the revocation of Schedule A.
Conversely SOR/73-135, also dated March 8,
1973, introduces a new tariff for District No. 2,
the Quebec City and Saguenay district. The tariff
structure, similar to Schedule A, is entitled
Schedule C and increases the dues.
Defendant alleges that SOR/73-136, revoking
Schedule A of the former tariff, ipso facto cancels
SOR/72-5 of January 13, 1972 prescribing the
payment of pilotage dues set forth in Schedule A.
However, in point of fact the said SOR/73-136
only cancels Schedule A; it does not revoke section
6(1) providing for payment of a second pilot. On
the same date Schedule A was replaced by
Schedule C.
Nevertheless, section 6(1) remains in effect and
still refers to Schedule A, which has been revoked,
instead of to the new Schedule C of the same date.
Section 36 of the Interpretation Acts deals with
repeal and substitution, and paragraphs (f),(g) and
5 R.S.C. 1970, c. I-23.
(h) are of particular interest in the case at bar.
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefor,
(f) except to the extent that the provisions of the new
enactment are not in substance the same as those of the
former enactment, the new enactment shall not be held to
operate as new law, but shall be construed and have effect as
a consolidation and as declaratory of the law as contained in
the former enactment;
(g) all regulations made under the repealed enactment
remain in force and shall be deemed to have been made
under the new enactment, in so far as they are not inconsist
ent with the new enactment, until they are repealed or others
made in their stead; and
(h) any reference in an unrepealed enactment to the former
enactment shall, as regards a subsequent transaction, matter
or thing, be read and construed as a reference to the provi
sions of the new enactment relating to the same subject-
matter as the former enactment, but where there are no
provisions in the new enactment relating to the same subject-
matter, the former enactment shall be read as unrepealed in
so far as is necessary to maintain or give effect to the
unrepealed enactment.
In Brown v. Martineau 6 , the Superior Court of
the Province of Quebec held [at page 1] that
[TRANSLATION] "the revocation of an Act
through amendment, revision or consolidation does
not result in the repeal of regulations or orders
adopted pursuant to the repealed Act so long as
such orders or regulations are not incompatible
with the Act substituted and not repealed or
replaced by other regulations".
Whereas section 6(1) authorizing payment of
the second pilot was never repealed, it remains in
effect and now refers to the new Schedule C.
Therefore the payment of double pilotage dues set
forth in Schedule C of March 8, 1973 is still
required under section 6(1).
By virtue of its powers, the Authority decided to
assign two pilots for long journeys, namely those
lasting thirteen hours and more, such as journeys
between Quebec City and Chicoutimi, which are
the subject of plaintiffs claim in this case. The
Authority submits that it is not safe to assign only
one pilot for a journey of over thirteen hours and
its witnesses relied on their own experience as
6 [1966] R.L. 1.
captains to establish this. Defendant argues to the
contrary and uses its own witnesses to support its
claims. The Court does not have authority to
decide whether the assignment of two pilots was
necessary for the safety of such a trip. That deci
sion is the responsibility of the Authority by virtue
of the powers conferred on it by the Act and the
Regulations.
By means of the Pilotage Act, the legislators
empowered the Authority to operate an efficient
pilotage service within its region and to prescribe
pilotage fees. Any ship entering the waters of this
region is subject to the by-laws in effect, the
decisions of the Authority based on these by-laws
and the fees derived from them.
Defendant is accordingly responsible for pay
ment of the pilotage dues claimed by plaintiff.
Judgment in favour of plaintiff for the amount of
$1,869.06 with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.