Transport Committee on May 5th, 2009

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I'm not certain if he's looking for my legal expertise on the particular issue, but if someone is a trespasser on your property, it doesn't necessarily mean that you're assuming responsibility for that person while they're there. In some jurisdictions, such as the United States, depending on the state, that does indeed happen, and that is my understanding. But certainly you would not suggest that someone who owns a ship is going to be responsible for stowaways and for somebody carrying on an illegal activity. I suggest that would be beyond public policy, and it would certainly be beyond this government's purview.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

So a police officer who boards ship without having been noticed, or a customs official or any port official who doesn't have the consent or knowledge of the master or the owner are all individuals captured by this. They're not covered because this particular clause exempts the owner from any liability for any of those officials who can board without notice.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

If I may, Mr. Chair, I would suggest not. if you look at proposed subparagraph 28(3)(c)(i), it specifically deals with stowaways and trespassers. That's my understanding of it, and indeed, people with lawful--

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

But it says “or any other person”.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Could Mr. Gauthier comment on that? That's not my understanding of what it would be.

[Mark Gauthier]

Well, sir, my understanding would be that if you're not exempted by this provision, then at least the passenger type of liability would apply. And again, I stress that the government policy appears to be that there ought to be a distinction between certain classes of those who might suffer injury on board vessels. But for this exemption, the regime that would apply would be that afforded to passengers, in other words, the higher regime. I think that is the reason for the distinction.

Proposed subsection 28(2) says, “The maximum liability... to persons...otherwise than under a contract of passenger carriage...”, and clearly these people would be otherwise than under a contract of carriage if they've sort of sneaked on board or have been found in a container or whatever. It is to ensure that this particular provision just doesn't apply to them.

That is the chief reason to make this amendment. It mirrors another amendment in part 4, which has the same sense or goes in the same direction. Again, it's an exemplification of the government's approach to different liability regimes, depending on what type of person is on board and what type of vessel it is.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

It's simply that when you start to enumerate who your passengers are, such as stowaways, trespassers, or any other person who doesn't have permission or who is not coming on board with the knowledge of the shipowner or operator, you're including even officials of the local port, customs and excise, and so on. So in the interests of clarity, you either leave it out or you start to enumerate them all.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

If I may, Mr. Chair, unless there are other comments, I would say that my understanding is that those particular officials have lawful authority to enter a ship and to do what is necessary or else they wouldn't be doing it in the first place. They would be considered trespassers and would thus be illegal.

Nor do I understand, Mr. Gauthier--and I'd like you to confirm this--if this would exclude any other tort liability that may rest with the shipowner as a result of negligence, which obviously would be the case if the ship sank. This is simply to set in stone the liability. Is that not the case?

[Mark Gauthier]

Yes, that is quite correct, Mr. Jean. This is by no means attempting to somehow preclude the application of general law. The principles are still there.

As to your point about persons being lawfully on board, I suppose that's probably indeed the case. For ship inspectors and folks like that who might have business on board, for example, it is at least implied that they are allowed to be on board. Arguably, it's a bit different from someone who sneaks on board to get passage, which is the stowaway type of problem.

[The Chair, Conservative, Merv Tweed]

Are there any further comments?

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Yes. I have just one last one.

Given what's happening with this legislation, which is that you're trying to take some people from the status quo and bring them into a situation where they are not going to have to suffer the possibility of having to get insurance, and you're listing them through the definitions, why not simply leave the status quo? If you haven't gone that far, then why not, Mr. Jean, eliminate the words “or any other person”?

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

Excuse me a second. We've heard more often than not from Mr. Gauthier, once from Mr. Roussel, and from their other colleague, whose name I forget, that anything not captured in this particular legislation comes under tort law, under other civil law provisions, or under other maritime law provisions. Well, if we're going to hand off all of these things, why don't we withdraw all the amendments and say yes?

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I would like to say that I think when someone enters into a contractual arrangement with a carrier, they have a different obligation to that person who has entered into the contract. Depending on what Mr. Gauthier would say in the Department of Justice, I would certainly be open to the thought of adding “without lawful authority” after “any other person” if that would satisfy Mr. Volpe and indeed satisfy the Department of Justice. I would suggest that this might indeed deal with the matter. “Any other person without lawful authority” is found in many other acts that I have seen.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

It's for the sake of consistency, because we've already turned down my amendment and got the government's amendment. It doesn't make sense not to have consistency in that point. If you are proposing to amend your own amendment by adding after “any other person” the three words “without lawful authority”--

[The Chair, Conservative, Merv Tweed]

Actually, we need someone else to make that amendment if--

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Before I actually consent to that amendment, I'd like to hear from the Department of Justice representative, who is currently scribbling madly.

[Mark Gauthier]

Well, certainly from my perch, sir, such a subamendment could be made. If made, though, I think we should also bear in mind that it should be made later, when we're dealing with a similar provision for part 4. Looking at it rather hastily, of course, it does not appear to have a potential for an unintended result, at least not at first glance.

[The Chair, Conservative, Merv Tweed]

Mr. Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I think the amendment introduced is quite complete. Where you state “any other person who boards a ship without the consent [...]”, that doesn't make me think of the officers who are the representatives of the port or government because, in any case, the captain gives the individual his consent to board the ship.

The definition of “stowaways” can be very restrictive. The same is true of the definition of trespasser. That could be a friend of a passenger or someone who says he isn't a stowaway, that he isn't a trespasser, even though he hasn't paid and someone didn't know he was there.

That's why I think that “any other person who boards a ship without the consent or knowledge [...]” is a more comprehensive definition. I therefore hope that the government won't amend it. I would support it as it stands right now, in view of the objective you are pursuing. If there is another one, perhaps we should review the subsection in full.

Let's see whether I understand the objective when you talk about stowaways and trespassers. Sometimes there are people who might be friends of the crew and who would say they aren't stowaways, that they aren't himtrespassers, whereas the captain or the authorities didn't know they were there.

I think your definition is more comprehensive; I like it as it is.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I just noticed that Mr. Kennedy has arrived, and I was wondering if he had any comments on this particular clause.

[Gerard Kennedy, Liberal, Parkdale—High Park, ON]

[Inaudible--Editor]...the committee, so I know they're doing a great job and I'm going to catch up at another clause. But thank you.