Thank you.
I am a maritime lawyer, and I am the west coast vice-president of the Canadian Maritime Law Association and the chair of the CMLA ad hoc committee, which was struck to look into and review the provisions of Bill C-7.
The Canadian Maritime Law Association was founded in 1951 and is made up of individual and constituent members. The individual members are predominantly maritime lawyers who practice throughout Canada. The constituent members are various companies and organizations from the marine industry in Canada. We take members from all facets of the marine industry. The CMLA is also Canada's representative to the Comité Maritime International, the international organization established in 1897 for the development of international maritime laws. The CMLA is not a lobby group for a particular interest. Rather, our mandate is to promote modern and effective maritime laws.
We established a committee to review Bill C-7. We have made two submissions prior to today for your review. I will not go through everything in those two submissions, given the time constraints. There are two areas in the bill that I would like to deal with. The first is adventure tourism, specifically the new section 37.1 of the Marine Liability Act, the purpose of which is to exempt adventure tourism activities from the provisions of the act.
Section 37.1 sets out a list of criteria to be removed from the act. Our concern is that this list of criteria is not sufficiently stringent. We believe it would be easy for various operators to meet these requirements and to exempt themselves from the provisions of the Athens Convention and the carriage provisions of the Marine Liability Act. It's important to remember that those provisions were enacted to protect Canadian passengers. The provisions provide a give-and-take regime under which carriers are made liable, while being given a right to limit their liability. In exchange, they're not permitted to contract out of the liability requirements established by the act. This is very common in any kind of carriage situation. The Warsaw Convention has essentially the same kind of regime.
By exempting adventure tourism, we're effectively reverting back to the pre-MLA days, where operators could use tickets to exempt themselves from liability, no matter what the cause of it. There are lots of those ticket cases out there; some of them are quite egregious in their effects. Even if you're grossly negligent, if you have a vessel that is completely and utterly unseaworthy, you can still usually exempt yourself from liability by having an exemption clause in your ticket. That's what we were trying to avoid with the Marine Liability Act when we brought it in.
Now, with adventure tourism, we're taking out certain people. The rationale was that there are certain people who are thrill-seekers. They're agreeing to participate in a risky adventure and don't necessarily deserve the protections of the Athens Convention. We accept that premise. One of these activities would be whitewater rafting. But that's covered off with the removal of vessels paddled by oars. We don't need the adventure tourism reference to get rid of it.
We're concerned, however, that this 37.1 could be extended to many other types of activities that aren't really thrill-seeking. In my submissions, I've given you some examples. One is the Maid of the Mist, which many of you will be familiar with. There are actually five or six of them, and they sail daily. All kinds of people go on that vessel; they're not thrill-seekers. School children go on that vessel, as do elderly people and families. These are people who expect and deserve the protection of legislation. That type of activity may very well come under proposed section 37.1, as will the general regular kind of whale-watching. Again, you're talking about families who go out on these kinds of adventures.
If you look at the requirements of proposed paragraph 37.1(1)(a), you see that “it exposes participants to an aquatic environment”, which certainly the Maid of the Mist does. As well, proposed paragraph 37.1(1)(b) states that “it normally requires safety equipment and procedures beyond those normally used in the carriage of passengers”. They hand out those rainsuits, which is not normally done in carriage of passengers, so the Maid of the Mist meets proposed paragraph 37.1(1)(b).
Proposed paragraph 37.1(1)(c) states that “participants are exposed to a greater risk than passengers are normally exposed to”. They are exposed to very marginally greater risks, but that's all that's required; it's just “greater”. It doesn't say “significantly greater”.
Proposed paragraph 37.1(1)(d) states that “its risks have been presented to the participants and they have accepted in writing to be exposed to them”. Well, that happens every day. All you need to do is simply sign the ticket with the exclusion clause on the back and you're toast.
Then, in proposed paragraph 37.1(1)(e), there is any further condition that might be required.
Our point is that it's just way too broad and will extend to way too many activities that it should not be extended to.
We have provided some suggestions. First of all, we suggest that it shouldn't even be in there as an exception. Alternatively, at a minimum, we recommend that proposed paragraph 37.1(1)(c) be amended to require that participants be exposed to “significantly greater risks”, and also that in any event there be a requirement that adventure tourism operators exercise due diligence, to ensure they're providing seaworthy vessels and to ensure they're providing a competent crew and minimum safeguards, and that they be prohibited from the contracting out of these requirements, which should satisfy those sorts of operators. All we're asking for are some minimal requirements.
The second point I wanted to address concerns the maritime lien for ship suppliers. That's the subject of our supplementary submission. The main point here is that what's happened is that with the new lien we've sort of forgotten a basic requirement for suppliers for having a cause of action against a ship. It is that you had to have a contract with the owner or a person authorized by the owner. This new provision seems to do away with that requirement, which could, in certain circumstances, be quite unjust.
The example I would give you is that under an FOB sale contract, it's the shipper that retains the stevedores that load the ship. Of course, when I say shipper, I mean the person who is selling the goods, not the shipowner or the carrier. If he fails to pay his stevedores that he has contracted with, they would then have a lien against the ship under this provision, even though they never had any contract with the owner of the ship or anyone that had anything to do with the ship.
It's fundamentally unfair, I think, that this should be the case. Quite simply, what we're suggesting is that the provision be amended to simply require a contract with the vessel owner or a person authorized by the vessel owner, to make that clear and to sort of maintain the status quo.
We've also suggested a proposed subsection 139(3) to deal with the reality of chartering. Most ships are in fact chartered. What we're suggesting here is that there be a presumption that the charter has the authority of the vessel owner unless the person supplying the goods or services is given notice or is advised that they don't, because what often happens is that it could be a charter that retains the supplier, and the supplier doesn't know that. So all we're saying is that if a charter retains him, you're entitled to presume that you will have a lien unless you're specifically told ahead of time that the charter doesn't have the right to bind the owner, in which case you can then decide whether you want to supply the goods or not, knowing that you won't have a lien.
There are a few other minor issues with proposed section 139. We've given an amended version of proposed section 139 that we think complies with our concerns. There was a little issue with the limitation of liability problem that resulted from the drafting. I think it was quite unintentional, and based on some of the discussions I've had with Transport, I don't think it's an issue any longer so I won't go into that.
The only other thing we mentioned is a suggestion that we might include an express provision for stowaways and trespassers to make sure they're not covered by the act, because clearly the act was intended to cover passengers or people in the position of passengers, not stowaways or trespassers. It would be quite unfair, I think, to the owner to impose liability for stowaways and trespassers.
In any event, I think that's my time, so thank you very much, and I would like to say that, other than that and really just some minor provisions, we're very much supportive of Bill C-7.
Thank you.
