Canada: Setting Sail Before A Gale – A Risky, Costly Tale

Last Updated: November 30 2011
Article by Graham Walker

Most Read Contributor in Canada, September 2016

The Nova Scotia Provincial Court determines an appropriate sentence for a towing company convicted under s. 118 of the Canada Shipping Act, 2001.

The Canada Shipping Act, 2001, at s. 118 provides: "No person shall take any action that might jeopardize the safety of a vessel or of persons on board." Such an offence entails a fine, on summary conviction, of up to $1 million or imprisonment for up to 18 months. In R. v. Atlantic Towing Ltd., the first case applying s. 118, the Nova Scotia Provincial Court had to decide on an appropriate sentence for an offence under that specific provision.

Atlantic Towing had contracted to tow a dredge from Saint John, New Brunswick, to Halifax, Nova Scotia, with three crew members aboard the dredge, when gale-force winds and stormy seas were predicted. The dredge had no valid inspection certificate, but its previous certificates had prohibited its navigation more than 15 nautical miles from shore. The weather deteriorated rapidly after the tug and tow set sail, becoming worse than first expected, the wind reaching Beaufort Scale force 8/9, with seas rated as 7/8, entailing wave heights of between 4 and 7.5 meters. When the tug and tow were approximately 20 nautical miles off the southwest coast of Nova Scotia, the dredge's "garage door", protecting the three crew members aboard, caved in under the force of the waves, and the three men, in a life-threatening situation, had to jump into the stormy sea where they were finally rescued by a search and rescue helicopter (no other method of rescue being possible, owing to the bad weather and certain obstructions on the deck of the dredge). The dredge soon afterwards capsized and was lost.

Atlantic Towing admitted that it had committed an offence against s. 118, requiring the court to proceed with sentencing.

Given the absence of precedents, the court applied sentencing principles underlying occupational health and safety legislation, focusing on denunciation and general deterrence, and reflecting the particular circumstances of the case. According to those principles, in order to ensure good corporate conduct in the future, fines imposed on corporate offenders should be neither unduly harsh nor so small as to be seen as a mere license fee for illegal activity. The sentence must also be proportional to the gravity of the offence and the degree of responsibility of the offender, and similar to those imposed on similar offenders for similar offences in similar circumstances. The principle of restraint also required a measured response to determine the sentence that best satisfied the purpose and principles of sentencing. Sentencing a corporation for safety violations obliged the court to bear in mind the conduct, circumstances and consequences of the offence; the terms and aims of the relevant legislation; and the participation, character and attitude of the corporate offender.

In this case, the weather hazard was known before the voyage began, although the wave heights proved higher than predicted. The decision to set sail in the face of a gathering storm was made without regard to the 15-mile offshore navigational limitation of the dredge's previous certification. The decision to undertake a "manned" voyage that distance from shore and in the teeth of a gale was unexplained and fraught with risk, jeopardizing the dredge's crew and culminating in the vessel's loss. On the other hand, Atlantic Towing had no prior safety-related convictions, had conducted extensive pre-departure procedures, had pled guilty to the charge under s. 118 and had accepted responsibility for the casualty. The company had also taken meaningful steps after the incident to operate more safely. Nor had anyone had been killed or injured.

Balancing these aggravating and mitigating factors, the court imposed a fine of $75,000, considering the need for general deterrence, the size of the company concerned and the extent of its multi-million dollar business, the degree of actual harm sustained (the threat to the lives of the men aboard the dredge and its subsequent loss), and the maximum penalty prescribed by the governing statute. Atlantic Towing was allowed to make a proposal for a reasonable period of time for payment.

Commencing a voyage in bad weather is always a risky business, which can have life-threatening consequences, not to mention unpleasant financial sanctions.

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