Précis: Convictions for various offences under the Canada Shipping Act against the master of a vessel that rolled over and sank were mostly upheld.
The accused was the skipper of a sixty-five foot vessel that rolled over and sank. At the material time, the skipper was in the galley making a sandwich and no-one was on the bridge of the vessel. The accused was charged with eight offences under the Canada Shipping Act and convicted in Provincial Court of five offences, namely: (1) operating the vessel without certified crew to ensure a proper deck watch; (2) failure to maintain a proper deck watch; (3) failure to keep a proper lookout; (4) failure to ensure the crew understood lifesaving and firefighting equipment; and (5) operating a steamship without a valid certificate. An appeal from the convictions was taken to the provincial Superior Court where all convictions were confirmed except for operating a steamship without a valid certificate. Both the Crown and the accused further appealed to the Newfoundland and Labrador Court of Appeal.
Decision: The accused’s appeal is allowed, in part. The Crown’s appeal is dismissed.
Held: The accused is acquitted of operating the vessel without the properly certified crew on the basis that the Crewing Regulations were misinterpreted by the courts below. The conviction was premised on an interpretation that the regulations required that the Mate have a certificate of at least “fishing master, fourth class”. There is no such requirement. With respect to the charge of failing to maintain a proper lookout, the Crewing Regulations and the Seafarer’s Training, Certification and Watchkeeping Code require that a person be on the bridge at all times. This requirement is not satisfied by monitoring instruments located elsewhere on the vessel. There was no-one on the bridge and the accused is guilty of not maintaining a proper deck watch. Similarly, the requirement in the Collision Regulations to maintain a proper lookout is not satisfied when there is no one on the bridge. With respect to the charge of failing to ensure the crew understood lifesaving and firefighting equipment, the trial Judge found as a fact that the accused made only “passing efforts” in this regard. There is ample evidence to support such findings. With respect to the final charge of operating a steamship without a valid certificate, the accused was initially convicted because he had not complied with a condition of the certificate requiring that the Mate have a 4th class certificate. This was an error. The charge was not that the accused failed to comply with his certificate but that he did not have a certificate. As he had a certificate, he must be acquitted on this charge.