With just a few days left before Sea Shepherd’s planned departure from Bermuda to intervene against the world’s largest mass slaughter of harp seals, the Canadian Government issued a warning to the Sea Shepherd Conservation Society to stay out of Canadian waters.
The following fax was received
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To: Master m/y Farley Mowat,
I have reasonable grounds to believe that your vessel is in contravention of international maritime conventions.
The vessel must comply with International Maritime Organization (IMO) conventions, which include:
- International Convention for the Safety of Life at Sea (SOLAS)
- Standard for Training and Certification of Watchkeeping (STCW)
- International Convention on the Prevention of Pollution from Ships, 1973 (MARPOL), and
- International Tonnage Certificate requirements
Based on information provided by the Netherlands Registry, the vessel does not meet the requirements of the above conventions. Therefore pursuant to Section 227 of the Canada Shipping Act, 2001, you are hereby directed to not enter Canadian waters. If this order is not complied with you will be subject to prosecution under Canadian law.
The Honourable Lawrence Cannon
Minister of Transport,
Infrastructure and Communities.
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Quoted legislation unravelled:
It is the contention that Section 227 of the Canada Shipping Act, 2001 is only applicable when the Minister has reasonable grounds to believe that a foreign vessel is in contravention of an international convention or protocol listed in Schedule 1of that Act.
Schedule 1 of the Canada Shipping Act 2001 does include, amongst others,
International Maritime Organization (IMO) conventions
International Convention on Tonnage Measurement of Ships, 1969
International Convention for the Prevention of Pollution from Ships, 1973
International Convention for the Safety of Life At Sea of 1974
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978
Firstly, The aims of the International Maritime Organization were summarized in Article 1 of the Convention on the International Maritime Organization. Article 1 does not refer to shipping other than in terms of shipping engaged in international trade.
The Sea Shepherd ship M/Y Farley Mowat is not engaged in international trade, therefore the aims of the International Maritime Organization cannot be applied to this vessel.
International Convention on Tonnage Measurement of Ships, 1969
By virtue of Article 3 (2) c. The present Convention shall apply to existing ships if the owner so requests.
The M/Y Farley Mowat was built in 1957 and is defined as an ’existing ship’ The owner has not requested the application of International Convention on Tonnage Measurement of Ships, 1969, therefore this convention should not be applied to this ship.
International Convention for the Prevention of Pollution from Ships, 1973
Annex 1 of this Convention relates solely to oil tankers.M/Y Farley Mowat is not an oil tanker
Annex II of this Convention details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk.. the M/Y Farley Mowat does not discharge either via de ballasting or tank cleaning operations, noxious liquid substances carried in bulk.
Annex III contains general requirements for the issuing of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions and notifications for preventing pollution by harmful substances.
M/Y Farley Mowat is in possession of an IOPP Certificate and a Certificate of Financial Responsibility for Oil Pollution.The country where a ship is registered (flag state) is responsible for certifying the ship’s compliance with MARPOL’s pollution prevention standards
Annex VI was transposed into domestic legislation under Canada Shipping Act, 2001 Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals, the enforcement area being Canadian waters and within 1 mile of land. The detail of restriction is that a Fuel-burning installation may emit black smoke only to the "density" levels specified by the Act and based on the Dept of Transport Smoke Chart, regulations are in place but there is no current enforcement.
Annex IV prohibits the discharge of sewage which is not comminuted or disinfected at a distance of more than 12 nautical miles from the nearest land. M/Y Farley Mowat will not approach within 12 nautical miles of land.
Annex V: Prevention of pollution by garbage from ships. The M/Y Farley Mowat is the flagship of an international marine conservation society and does not indulge in the practice of discarding waste into the sea.
International Convention for the Safety of Life At Sea of 1974 is concerned with the safety of merchant ships.The M/Y Farley Mowat is not a merchant ship, therefore the International Convention for the Safety of Life At Sea of 1974 cannot be applied to this vessel.
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 is not applicable to the vessel M/Y Farley Mowat by virtue of Article 3 c, which states that The Convention shall apply to seafarers serving on board sea-going ships entitled to fly the flag of a Party except to those serving on board pleasure yachts not engaged in trade.
M/Y Farley Mowat is not engaged in trade and is registered as a yacht. In lieu of a legal definition, not expressed in Article 2 of The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 the definition of "pleasure" taken from Collins English dictionary is that of something that gives or affords enjoyment, delight, amusement and recreation, or a person’s preference or choice.
Given the fact that the vast majority of the crew of M/Y Farley Mowat work onboard on a voluntary basis without financial reward it should be construed accordingly that they do so for pleasure, given the above definition.
It would be interesting to know details of any past or present cases where the Minister of Transport, Infrastructure and Communities has exercised powers conveyed in Section 227 of the Canada Shipping Act, 2001 to direct a vessel not to enter Canadian waters, and in particular where those powers have been used to restrict the movements of a registered yacht.
A Canadian citizen has a right to request this information subject to the Access to Information Act ( R.S., 1985, c. A-1 ) which empowers a citizen to be given access to any record under the control of a government institution.
If an entity believes that it has been treated unfairly by a Government agency, a formal complaint can be lodged with the Ombudsman.