[Recorded by Electronic Apparatus]
Monday, December 2, 1996
.1558 
[English]
The Chairman: Good afternoon. This is meeting number 44 of the Standing Committee on Transport. We're meeting today to talk about Bill C-58, an act to amend the Canada Shipping Act.
Our first witness is Mr. Nigel Frawley, from the Canadian Maritime Law Association.
Mr. Frawley, before you begin your remarks, let me apologize one more time for the fact that we were not able to complete our hearings last Thursday. Unfortunately, as committees, we are creatures of the House. It's a shame when people come from a distance and those disturbances happen. I appreciate your willingness to come back, and if you can make the remarks you wish to make and then give us some time, we'll have a discussion of the issues at hand. Thank you.
Mr. Nigel Frawley (President, Canadian Maritime Law Association): Thank you, Mr. Chairman, for those kind remarks.
I am a practising lawyer from Toronto. I have specialized in the field of marine law and I'm here today as the president of the Canadian Maritime Law Association. My brief today is to strongly endorse Bill C-58 and to express the hope that it will proceed expeditiously through Parliament at the earliest possible date.
First, gentlemen, I will say a few words about the Canadian Maritime Law Association. We are a non-profit organization, a corporation formed in 1951. We are very much interested in Canadian and international maritime law.
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Last Thursday, Mr. Chairman, I did file with this committee 15 copies of our submission. I hope you gentlemen have that with you today. You will see on the first page there is background to our organization. Our mandate is to advance the development of effective and modern commercial maritime laws and to participate in the international community in the development of maritime laws.
Our membership is composed of lawyers like myself who specialize in the field of admiralty law and also people from the shipping industry as a whole. That includes both sides of the coin. We have exporters and importers as members. We have underwriters and brokers in the insurance business. We have shipowners and charterers and so on - stevedores, international terminal operators. We cover the broad spectrum of the maritime industry.
I'm pleased to say that we also have certain constituent members within our membership, that is, a representative from various associations also in the shipping industry. For instance, the Canadian Board of Marine Underwriters, who were before you last Thursday, is a constituent member of the CMLA. I've studied their brief, and, like them, we strongly endorse early passage of Bill C-58.
The CMLA - the shortened version of my association - is a member of an international umbrella group called the Comité Maritime International, headquartered in Brussels. It's very close to being 100 years old. Its whole raison d'ètre is the unification of maritime laws internationally. They have been very instrumental in a number of significant international conventions that have found their way into domestic legislation in Canada and elsewhere, such as the famous Hague rules for the carriage of goods by sea in 1924, the York-Antwerp rules in 1924 for the law of general average, and so on.
The CMI was very instrumental, along with the International Maritime Organization based in London, in drafting the 1976 limitation of liability for maritime claims. That, of course, is what is before you today. So our association is not new on this scene; we've been very involved with this from the outset. In fact, we have also been involved, as has the CMI, along with the International Maritime Organization, with the oil pollution conventions that are also before you today.
As you know, you have amendments to the Canada Shipping Act dealing with general maritime claims with provision for a new, updated limitation of liability. You also have before you today implementation of the 1969 convention on civil liability for oil pollution damage and the 1971 Fund convention for compensation for oil pollution damage.
As I've indicated to you, we've been very involved with that through the CMI from the very early days. So we're very pleased to see Bill C-58 as the culmination of a lot of our efforts and of course major efforts by officials of the Department of Transport in putting this together.
I should also say we have worked very closely with officials of the Department of Transport. This culminated in the 1993 Transport Canada discussion paper that led to the legislation before you today, when the 1996 protocol brought limits of liability in a higher amount that matched what Transport Canada wanted, as had been indicated by members of industry and the public generally.
We're here today to urge its speedy passage. We're very concerned that the present legislation in the Canada Shipping Act is based on a very outdated system, the 1957 limitation of shipowners' liability. We're out of step with the international community. Bill C-58 will bring us into line with the international community as a whole and it will please our association and I dare say the maritime industry.
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On page 2 of my brief I've indicated there have been difficulties with the present Canada Shipping Act about the present provisions. I don't think I need go through that, but it's important for me to draw to your attention a few matters that have given us some pause. They have given us some pause because some members of our association have raised them to our attention.
The first one is the item of transitional provisions. If you look at clause 26 of the bill, on page 21, it focuses on oil pollution matters. It says this new bill will apply to oil pollution matters that occur as of the time this becomes law, but it doesn't apply to old occurrences that come up for adjudication before the courts once this bill is in force.
We draw to your attention that this clause might better include general claims as well as claims for oil pollution damage. It's my understanding that on Wednesday, if you are still going to be convening for a clause-by-clause vote, a motion may very well be before you to expand clause 26. We would certainly have no objection at all to that, because it seems to us to be a fair transitional provision.
Mr. Keyes (Hamilton West): The proposed amendment would be coming from whom?
Mr. Frawley: It would include not only oil pollution -
Mr. Keyes: Coming from whom, the department or government or -
Mr. Frawley: Yes.
I also draw your attention to page 3. A concern has been expressed that under the present proposed section 577 of the bill - This deals with passenger claims. There may be a shortcoming in the language, because there are certain passengers and guests of excursion vessels who may not have a formal contract of carriage with the shipowner. They would not like to be restricted to the general $1.5 million limitation of liability provided for in proposed section 578 in respect of claims for loss of life, personal injury, or any other claims. It's fair to say that is the subject of some considerable discussion between industry and government officials as we speak to see if it can be resolved by Wednesday and your clause-by-clause process. If the parties can find the appropriate language to repair proposed section 577, an industry motion will be filed with you by Wednesday morning.
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I might also point out that there may be a shortcoming as expressed in part iii) of our brief on page 3, where some operators, in an effort to get around proposed subsection 577(1) - ships for which a safety certificate is required - have been ingenious in how they have designed their vessels. We think that can be cured, and once again it will be the subject of an industry motion on Wednesday.
The last item I draw to your attention is item iv) at the bottom of page 3 of our brief. It may be that inadvertently Bill C-58 has expanded the class of people who have to live with strict liability under section 677 of the Canada Shipping Act. As you know, the notion of strict liability is that you are liable for a tortious act unless there is a stipulated exemption. The Canada Shipping Act provides several exemptions to that, such as an act of war; if you're trying to save your own vessel; and so on.
It may be that Bill C-58 has expanded the class of people who have to live with strict liability to managers and operators of ships. In the past, under the present Canada Shipping Act, it was just owners and bare-boat charterers. We understand that a motion will also be brought to this effect on Wednesday to cure that shortcoming.
I'm here today really to support the bill in its entirety. We've been involved with it for a long time. We're very pleased to see it before you, and we hope very much that it will enjoy speedy passage.
Thank you, Mr. Chairman.
The Chairman: Thank you very much, Mr. Frawley.
Mr. Dubé.
[Translation]
Mr. Dubé (Lévis): Since we were not able to put questions to the witnesses the other day, I would like to take this opportunity this afternoon to question Mr. Frawley. If other questions are raised, perhaps we could take advantage of his attendance to examine these issues in more depth since he is an expert in maritime law. I've read the documents, but I had a bit of a problem since they were only available in English. Therefore, I would be interested in spending a little more time than anticipated with Mr. Frawley on these issues.
[English]
The Chairman: Absolutely.
[Translation]
Mr. Dubé: I would first like to ask you a question of a general nature,
[English]
Mr. Frawley: I'm sorry, I don't speak French. I'll try to get this untangled here so I can get the translation, if you will just bear with me for a minute.
[Translation]
Mr. Dubé: For your information, I have the reverse problem most of the time.
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Mr. Frawley, you've been involved in this field for a very long time. As was mentioned earlier, in a way you even took part in the drafting of this bill, which is simply the implementation of an international convention. Although the bill has not yet been passed, could you tell us what its main advantages are compared to the current situation?
[English]
Mr. Frawley: Thank you, Mr. Dubé. I'd be happy to respond to that.
First of all, this bill would harmonize Canadian maritime legislation with that of other major maritime nations. Because shipping is an international business, to avoid conflicts of laws between jurisdictions, to provide certainty and predictability to industry people, and to prevent operators from forum shopping, from selecting a country that is out of step with other people - which makes it difficult for people in the industry to know where the claims against them are going to be adjudicated - the more uniformity we have in shipping matters the better it is for our industry.
Canada has been involved in many other pieces of legislation in the international game, and limitation of liability is an important feature with this. At the moment, the limitations of liability limits for claimants are low, and that is recognized by all members of the shipping community. This bill goes a long way towards increasing the amounts available to claimants against shipowners, operators and managers.
[Translation]
Mr. Dubé: Has our neighbour, the United States, joined in this convention a matter of principle?
[English]
Mr. Frawley: No, they do not, Mr. Dubé.
[Translation]
Mr. Dubé: Why is that, in your opinion?
[English]
Mr. Frawley: I can't speak for them at all. All I can say, sir, is that by far the majority of maritime nations have joined together in this convention. The United States has a long history of not joining in in international conventions. They participate in them, but I'm afraid their record isn't particularly good at ratifying them. They have their own reasons for that and I can't presume to speak for them, but I can tell you that by far the majority of shipping nations subscribe to this particular international convention.
[Translation]
Mr. Dubé: I have one last question. In your opinion, what took Canada so long to do this?
[English]
Mr. Frawley: The problem basically lies in the fact that in 1976 certain amounts in the limitation formula, the amount that is available to claimants, just did not sit well with the Canadian public. They were too low.
That is why, over the years, people made submissions to the Department of Transport and said they needed higher limits, because, they said, the limits in the 1976 convention were just too low. They asked the department to please see what it could do about getting higher limits, and that's what occurred in the Transport Canada discussion paper in 1993.
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Then there was a lot of work on the international scene. In May of this year, just a few months ago, there was a protocol that raised the international limits to roughly the amounts set out in the Transport Canada discussion paper. Suddenly everything came together in May of this year. With the marine community, we can now get behind Transport Canada in coming forward with legislation for the 1976 convention plus the higher limits in the 1996 protocol.
This is the reason for the delay, Mr. Dubé.
[Translation]
Mr. Dubé: I could come back later, if you prefer.
[English]
The Chairman: Mr. Gouk, do you have any questions?
Mr. Gouk (Kootenay West - Revelstoke): Yes. I have a couple of questions.
With respect to your item 1 on page 2, I want to make sure I'm clear on exactly what your concern is here. As I understand it, the bill is now restricted to oil pollution.
Mr. Frawley: Right.
Mr. Gouk: Before it was more general, and your concern is with a pollution case other than oil that occurred prior to this bill. You are concerned it may get wiped out because of the passage of this and you want this clarified.
Mr. Frawley: No. It boils down to this. Suppose there was an accident today. Then let us suppose - I hope this is the case - this bill goes forward and becomes law some time in the next couple of months. What, then, does the court apply? Do they use this bill, the provisions of the new law, or do they use the provisions of the old law for the accident that occurred today?
At the moment it says if it is an oil pollution claim it's going to be the old law that applies to today's accident. But it doesn't say anything about something different from an oil pollution claim. Let's say there was a grounding or a collision of a ship and the claim came forward today, but it reached the courts next summer. We are worried you would have a situation where the lawyers on one side would be saying they want the new law to apply and the lawyers on the other side would be saying they want the old law to apply.
We would like to see a situation where it isn't just restricted to oil pollution claims in clause 26. We would like to see it cover all claims.
Mr. Gouk: I'm sure someone will clarify if I'm wrong. It's my understanding the legislation cannot be retroactive, so it will only come into effect as of the day it receives royal assent.
Mr. Frawley: There's no end to the ingenuity of some lawyers.
Mr. Gouk: So I've heard.
Mr. Frawley: I do know there was a case in British Columbia in recent times. Much time and money was spent in this very business of retroactivity of legislation.
Mr. Gouk: I wanted to ask one other thing. You mentioned the probability of some recommendations by way of specific amendments coming forward.
Mr. Frawley: Yes.
Mr. Gouk: I would suggest if you want those to be seriously considered, and if we're looking at doing clause-by-clause next Wednesday, Wednesday is a bit late to be bringing those forward.
The Chairman: I think the witness is referring to amendments that will be coming forward from the government.
Mr. Gouk: Okay. I gathered he said it was some other industry.
Mr. Frawley: May I say that I hope the industry ones will be filed tomorrow.
The Chairman: I see.
Mr. Gouk: There are other ones mentioned, as well.
I had just one other question. This is a little off because it's not to the witness. It is to either you or the parliamentary secretary.
If the government is planning amendments, even if the specific amendment isn't available, would it be possible to get a list, just a general idea of what you're doing? This way if I'm looking at anything and I'm satisfied you guys are looking at the same thing, I may be prepared, rather than being at odds with you. This way I won't be asking you to wait a minute or say I'm not ready yet. I won't be saying I need another day because of overworking the House staff to get amendments done and translated and all the rest of it.
I don't think we have anything really contentious here, but if we could discuss it and I know what you're doing, this may expedite it for the committee.
The Chairman: Is this possible, Mr. Keyes?
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Mr. Keyes: Tomorrow.
The Chairman: Mr. Keyes will have the staff get hold of you, Mr. Gouk, and have a look at this very thing. It's only because you are so cooperative, Mr. Gouk.
Mr. Gouk: I'm trying to lose a bit of weight and all this sweetness is really bad.
The Chairman: I think there is a lot of sweetness. This is probably a non-contentious piece.
[Translation]
Mr. Dubé: Mr. Chairman, what I'm going to ask may make the job easier not only for the Reform Party, but also for the witnesses. As a matter of fact, I think this should have been requested earlier. Today, I have a document before me that is in English only. As a member of the committee, I think I must have it in French. The point is not to delay our discussions unduly, but according to the clerk, since the document is not very voluminous, only a few days would be required to have it translated, so that instead of having the consideration next Wednesday, perhaps we could delay it to the beginning of next week. I feel these matters could have serious consequences and I don't want to be limited to an English text. I also think this would enable everyone to have enough time to make sure that everything is in order.
[English]
The Chairman: Rather than make a decision at this point, Mr. Dubé, let me meet with you immediately after committee and we'll see. There is some time on our schedule for next week that would make this a possibility. Let me just canvass other members of the committee first. We'll let you know.
Mr. Frawley: Mr. Chairman, is Mr. Dubé referring to the CMLA brief?
The Chairman: Yes and no. That is part of the equation.
Mr. Frawley: I'd be more than happy to accommodate Mr. Dubé by having a translation of our submission.
The Chairman: This is not necessary, Mr. Frawley. We will have it translated in-house. This is not a problem at all.
Mr. Dubé is quite correct. To move from a witness on Monday to clause-by-clause on Wednesday is a relatively short timeframe. If it's possible to accommodate him by giving him another day or so, we will have to do it. This is committee business.
Mr. Frawley: Right.
The Chairman: You have done what was expected of you, which was to come before the committee with a well-written brief. How we get it into both languages is our concern.
Mr. Frawley: Thank you.
Mr. Chairman, could I just draw your attention to two matters?
On page 3 of my submission, the last sentence of paragraph ii) reads: ``We consider this issue to be best addressed during consideration of Bill C-59.'' Also, the last two sentences of paragraph iii) state:
- This would be best dealt with, in our view, in Bill C-59. If appropriately amended, Bill C-59
could apply to free passengers or guests carried in all commercial or public vessels without the
need to amend S.577 of Bill C-58.
The Chairman: I see. Okay.
Mr. Frawley: So if we could just withdraw those sentences, I would be very happy.
Are there any other questions, gentlemen?
The Chairman: Are there any other questions? No.
Thank you very much, Mr. Frawley. Again, I appreciate you taking the time to come here and we look forward to rather speedy passage of this.
Mr. Frawley: Thank you very much, Mr. Chairman.
The Chairman: Perhaps I could ask Mr. Gouk and Mr. Dubé to see me for a moment. That will be it for today.
This meeting is adjourned.