The Transportation Safety Board (the "TSB"), the independent Canadian agency that investigates marine and other transportation occurrences, has recently changed its regulations for the first time in 22 years. The stated aim was to simplify the existing regulations and improve their alignment with transportation industry standards, other federal legislation, and Canada's international agreements. While the new Transportation Safety Board Regulations, SOR/2014-37, promise to be clearer and easier to understand, the changes come with some specific new requirements that ship owners and operators should be aware of.
The new TSB regulations are reorganized into two parts. Part 1, which comes into force on July 1, 2014, deals with the reporting of transportation accidents and incidents, now collectively called "occurrences". Part 2, which came into force on March 12, 2014, covers investigations of transportation occurrences and public enquiries.
The definition of some terms has been updated in the new regulations. For example:
- "pleasure craft" now means a ship that is used for pleasure and not for a commercial purpose
- "serious injury" has been expanded and particularized to include most bone fractures, severe lacerations, internal organ injury, serious burns affecting more than 5% of the body, and exposure to infectious substances or harmful radiation, in addition to an injury that is likely to require hospitalization.
- "dangerous goods" now has the same meaning as defined in section 2 of the Transportation of Dangerous Goods Act"
- "operation" means the activities for which a ship is used at any time other than when the ship is in dry dock or laid-up"
Reporting of Marine Occurrences
The types of occurrences that must be reported to the TSB have been expanded under the new regulations. Reportable marine occurrences now include, among others, when a ship makes unforeseen contact with the bottom without going aground, when a ship is anchored, grounded or beached to avoid an occurrence, or when a ship experiences a total failure of its main or auxiliary machinery.
While the scope of reportable occurrences has expanded, the new regulations have also removed the requirement to report small releases of dangerous goods to the TSB. Such small releases may still be reportable under other legislation, such as the Canadian Environmental Protection Act ,1999, but they are no longer reportable to the TSB. However, where the quantity or emission level of such a release is greater than that specified in Part 8 of the Transportation of Dangerous Goods Regulations,1992 it must still be reported under the TSB regulations.
The regulations also stipulate new requirements with respect to what information should be included in reports made to the TSB, including:
- the name, title, phone number and address of the person making the report
- a description of the occurrence and the extent of any resulting damage to the ship, the environment and any other property and of any action taken or planned to protect persons, property and the environment
- the make and model of any voyage data recorder onboard the ship, as well as any action taken or planned to save the data on the recorder
- the number of deaths and serious injuries, and the number crew members, passengers and others onboard the ship at the time of the occurrence
- if applicable, a list of any dangerous goods released on board or from the ship, including the shipping name or UN number of the dangerous goods
Notably, the regulations no longer require the qualifications of the ship master or pilot to be included in a report.
Investigation into Marine Occurrences
To help ensure that witnesses are not intimidated and feel comfortable to speak openly about an occurrence, the new regulations specify that interviews must be recorded and held in private. This would seem to be merely a codification of the existing practice for TSB witness interviews.
According to the new regulations only one representative of the witness' choosing, who is not also a witness, may accompany the witness at an interview. It is expected that this provision will be strictly construed and enforced by the TSB. In practice, for example in an investigation where a ship's crew member is being interviewed in regards to an occurrence, this would mean that only counsel for individual crew member may attend the interview, while counsel for the ship owner or operator would be excluded unless the lawyer is counsel for both.
The TSB's already broad investigatory powers will now also include, under section 9(4), the power to exclude the witness' representative from the interview if that person's conduct is deemed to "interfere with the proper conduct of the interview". Exactly what type or degree of conduct might amount to such interference is not clear. It is likewise unclear how this exclusionary power will be interpreted in light of the witness' right to legal counsel, which was clarified by the Federal Court in Parrish (Re),  2 FC 60, if the representative chosen is the witness' lawyer.
Owners and Operators Should Review Reporting Policies
While the mandate of the TSB is only to advance transportation safety, and not to assign fault or determine criminal or civil liability, non-compliance with its regulations may be considered an offence under the Canadian Transportation Accident and Safety Board Act, punishable upon conviction. In light of TSB's new regulations, ship owners and operators would be well advised to review their reporting policies to ensure compliance with the TSB going forward.
A complete copy of the TSB's new regulations can be found here.
Bull Housser Associate Meghan Smith was a contributing author.
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