PART 4Regulations and Enforcement (continued)
Detention of Ships (continued)
Marginal note:Payment of proceeds
120 (1) If a ship is sold under an order, the proceeds of the sale shall be applied first to satisfy claims for wages of crew members under the Canada Shipping Act, 2001 and then to satisfy the following claims in order of priority:
(a) the following amount:
(i) the maximum fine that could have been imposed for the offence in a case where subsection 117(1) applies,
(ii) the fees and interest due and payable in a case where subsection 117(2) applies,
(iii) the amount of the damages in a case where subsection 117(3) applies, or
(iv) the fine actually imposed or the amount for which the ship is found liable in a case where subsection 117(4) applies;
(b) the costs of the detention and sale; and
(c) the interests of persons who have obtained an order referred to in subsection 119(2), according to the ranking directed by the court under paragraph 119(5)(b).
(2) Any surplus of the proceeds of sale remaining after all claims have been satisfied shall be paid to the person registered as the owner of the ship or, in the absence of any registration, to the person who owns the ship.
Marginal note:Proceedings against owner
(3) Where the proceeds of sale of a ship are insufficient to satisfy the claims described in paragraph (1)(a) or (b), the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, may proceed against the owner of the ship for the balance owing.
Marginal note:Clear title
(4) On selling a ship pursuant to an order, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, may, by bill of sale, give the purchaser a valid title to the ship free from any mortgage or other claim that is in existence at the time of the sale.
Marginal note:Registrability not implied
(5) Nothing in subsection (4) is to be interpreted as meaning that the ship may be registered in the name of the purchaser.
Marginal note:Not duty paid
(6) No ship sold pursuant to this section is deemed to have been duty paid under the Customs Tariff by reason only of that sale.
Marginal note:At risk, cost and charges of owner
(7) Every seizure and detention made under this Act shall be at the risk, cost and charges of the owner of the ship or goods until all amounts due or fines imposed, together with all costs and charges incurred in the seizure and detention and the costs of any conviction obtained, have been paid in full.
- 1998, c. 10, s. 120
- 2001, c. 26, s. 278
Marginal note:Sale of perishable goods
121 Where, in the opinion of an enforcement officer, any goods that have been seized and detained under this Act, or that have been abandoned, are likely to rot, spoil or otherwise perish, the officer may sell or otherwise dispose of the goods in the manner and for the price that is reasonable in the circumstances, and the proceeds of the disposition are to be credited toward payment of the amount due or payable in respect of the ship or goods and the expenses incurred in connection with the detention and sale.
- 1998, c. 10, s. 121
- 2008, c. 21, s. 52(F)
Marginal note:Lien on ships
122 (1) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, has at all times a lien on a ship and on the proceeds of its disposition for an amount owing to the port authority, the Minister or the person, and the lien has priority over all other rights, interests, claims and demands, other than claims for wages of crew members under the Canada Shipping Act, 2001, if the amount is owing in respect of
(a) fees and interest in respect of the ship or goods carried on the ship; or
(b) damage to property caused by the ship or through the fault or negligence of a member of the crew of the ship acting in the course of employment or under the orders of a superior officer.
Marginal note:Lien on goods
(2) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, has at all times a lien on goods on the property under their jurisdiction for fees and interest owing to them in respect of the goods, the lien having priority over all other rights, interests, claims and demands and they may seize the goods.
- 1998, c. 10, s. 122
- 2001, c. 26, s. 279
- 2008, c. 21, s. 53(F)
Marginal note:Obstruction of ports
123 (1) Where an enforcement officer is of the opinion that a ship or goods left or abandoned within the enforcement officer’s area of designation as provided in subsection 108(2), impede, interfere with or render difficult or unsafe the use of that area, the officer may direct the person who appears to be in charge of the ship or goods to remove the ship or goods to a place that the officer considers suitable within or outside the area.
Marginal note:Detention and removal
(2) If a person fails to remove a ship or goods as directed by an enforcement officer under subsection (1) or if no person appears to be in charge of the ship or goods, the officer may detain the ship or goods and remove them to a place that the officer considers suitable, and the costs of the detention and removal are recoverable in the same manner as fees payable under this Act.
Marginal note:Rights exercisable
124 The right of a port authority, the Minister or a person who has entered into an agreement under subsection 80(5) to detain a ship or seize goods under this Act is exercisable whether or not title to or possession of the ship or goods is, at the time of the exercise of the right, in the same person as the person who held the title or possession at the time when, in the opinion of the port authority, the Minister or the person, the amount owing first became due and payable.
Marginal note:Other remedies
125 Whether or not a port authority, the Minister or a person who has entered into an agreement under subsection 80(5) exercises the right to detain ships and seize goods under this Act, they may proceed against the owner of a ship or goods in any court of competent jurisdiction for the amount owing to them, or for the balance of that amount in the event of the sale of the ship or goods, and may also exercise against the owner of the ship or goods any other right or remedy available at law.
Offences and Punishment
126 A person is guilty of an offence if the person
(a) fails to comply with any reasonable requirement of an enforcement officer in the course of carrying out duties and functions under this Act;
(b) knowingly makes a false or misleading statement, either orally or in writing, to an enforcement officer; or
(c) otherwise obstructs or hinders an enforcement officer.
Marginal note:Offence and fine
127 (1) A person or ship that contravenes a provision of this Act, except section 107, or of the regulations made under paragraph 27(1)(a), or of the regulations made under this Act for which no penalty is otherwise provided is guilty of an offence and liable to a fine of not more than $5,000 in the case of an individual, and of not more than $50,000 in the case of a corporation or ship.
Marginal note:Proof of offence by ship
(1.1) If a ship is prosecuted for an offence under a provision of this Act, except section 107, or of the regulations, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any person on board the ship, whether or not the person on board has been identified.
(1.2) No person is guilty of an offence under this Act for a contravention of a by-law made under section 30.
(2) No person or ship shall be found guilty of an offence under this Act if the person or ship establishes that the person or ship exercised due diligence to prevent its commission.
Marginal note:Code of conduct
(3) Notwithstanding subsection (1), a director or officer of a port authority is not guilty of an offence under this Act for non-compliance with the code of conduct set out in the letters patent of the port authority.
- 1998, c. 10, s. 127
- 2008, c. 21, s. 54
Marginal note:Separate offence
128 (1) When an offence under this Act is committed by a person or ship on more than one day or is continued by a person or ship for more than one day, it is deemed to be a separate offence for each day on which it is committed or continued.
Marginal note:Limitation period
(2) Proceedings in respect of an offence under this Act may be commenced at any time within, but not later than, one year after the time when the subject-matter of the proceedings arose.
- 1998, c. 10, s. 128
- 2008, c. 21, s. 55(E)
Marginal note:Order to comply
129 (1) If a person or ship is guilty of an offence under Part 1 or the regulations made under paragraph 27(1)(a), a court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order the person or ship to comply with those provisions for the contravention of which the person or ship is convicted.
Marginal note:Civil remedy not affected
(2) No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence under Part 1 or the regulations made under paragraph 27(1)(a).
- 1998, c. 10, s. 129
- 2008, c. 21, s. 56
Administrative Monetary Penalties
Marginal note:Definition of Appeal Tribunal
129.01 For the purposes of sections 129.06, 129.08 and 129.1 to 129.13, Appeal Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
- 2008, c. 21, s. 57
129.02 Every person or ship that contravenes a provision or instruction designated under paragraph 129.03(a) commits a violation and is liable to an administrative monetary penalty not exceeding the maximum established by regulation.
- 2008, c. 21, s. 57
129.03 The Governor in Council may make regulations
(a) designating any of the following as a provision or instruction whose contravention may be proceeded with as a violation, namely,
(i) any provision of this Act, other than paragraphs 59(1)(d) and 126(b),
(ii) any provision of the regulations, or
(iii) any instruction that may be given under the regulations;
(b) establishing the maximum administrative monetary penalty for a particular violation, which may not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation or ship;
(c) establishing criteria to be taken into account in determining the penalty;
(d) designating provisions or instructions the contravention of which, if continued on more than one day, constitutes a separate violation in respect of each day during which the violation is continued;
(e) respecting the service of the notice that is required to be served under subsection 129.05(1), including the manner and proof of service and the circumstances under which the notice is deemed to be served; and
(f) generally, for carrying out the purposes and provisions of this section and sections 129.04 to 129.17.
- 2008, c. 21, s. 57
Marginal note:Criteria for penalty
129.04 The administrative monetary penalty imposed is, in each case, to be determined taking into account
(a) the purpose of the penalty, which is to promote compliance with this Act and not to punish;
(b) the seriousness of the violation, including the frequency and duration of the conduct;
(c) the history of the person or ship that has been served with the notice of violation with respect to any prior violation or conviction under this Act within the five-year period immediately before the violation; and
(d) any other criteria established under paragraph 129.03(c).
- 2008, c. 21, s. 57
Marginal note:Notice of violation
129.05 (1) If an enforcement officer believes on reasonable grounds that a person or ship has committed a violation, the officer may issue, and shall cause to be served on the person or ship, a notice of violation.
Marginal note:Content of notice
(2) The Minister may establish the form and content of notices of violation, but each notice of violation shall
(a) name the person or ship believed to have committed the violation;
(b) identify the violation;
(c) set out the administrative monetary penalty that the person or ship is liable to pay;
(d) set out the particulars concerning the time for and manner of paying the penalty and the time for and manner of requesting a review; and
(e) inform the person or ship that, if they do not pay the penalty or request a review in accordance with the particulars set out in the notice, they will be deemed to have committed the violation and the penalty set out in the notice will be imposed.
- 2008, c. 21, s. 57
129.06 A person or ship that has been served with a notice of violation shall either pay the penalty set out in the notice or file with the Appeal Tribunal a written request for a review of the facts of the alleged violation or of the amount of the penalty.
- 2008, c. 21, s. 57
Marginal note:Payment of penalty
129.07 If the person or ship pays the penalty in accordance with the particulars set out in the notice of violation, the person or ship is deemed to have committed the violation and proceedings in respect of the violation are ended.
- 2008, c. 21, s. 57
Marginal note:Request for review
129.08 (1) A request for a review shall be filed with the Appeal Tribunal at the address set out in the notice of violation on or before the date specified in the notice or within any further time that the Appeal Tribunal, on application, may allow.
Marginal note:Time and place for review
(2) On receipt of the request, the Appeal Tribunal shall appoint a time and place for the review and shall so notify, in writing, the Minister and the person or ship that filed the request.
Marginal note:Review procedure
(3) The member of the Appeal Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship that filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Burden of proof
(4) The burden of establishing that a person or ship has committed the violation identified in the notice is on the Minister.
Marginal note:Person or ship not compelled to testify
(5) A person or ship that is alleged to have committed a violation is not required, and may not be compelled, to give any evidence or testimony in the matter.
- 2008, c. 21, s. 57
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