Decision No. 355-W-2008

July 4, 2008

File No. W9125/P5/08-22

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APPLICATION

[1] On May 27, 2008, Atlantic Towing Limited (Atlantic Towing) filed the above-noted application with the Canadian Transportation Agency (Agency).

BACKGROUND

[2] On April 16, 2008, Alcatel-Lucent Submarine Networks Limited (the applicant) applied to the Agency for a coasting trade licence to use the "BLUE CASTOR", a Danish multipurpose offshore support vessel, to perform the route clearance and pre lay grapnel run for the installation of the Greenland Connect Submarine Cable system linking Greenland to Newfoundland and Labrador. The applicant indicated that the "BLUE CASTOR" will support the "MAERSK RESPONDER" which is performing the cable installation.

[3] Following the issuance of a notice of the application to the Canadian marine industry on April 17, 2008, Atlantic Towing offered its vessel, the "OCEAN FOXTROT", to perform the activity.

[4] The Agency considered all the evidence submitted by the parties during the pleadings and in Decision No. 290-W-2008 determined that there was no suitable Canadian vessel available to perform the activity.

AGENCY JURISDICTION

[5] Pursuant to section 32 of the Canada Transportation Act (CTA), the Agency may review, rescind or vary any decision made by it if, in the opinion of the Agency, since the issuance of the Decision, there has been a change in the facts or circumstances pertaining to the decision.

[6] It is important to stress at the outset that the review contemplated by section 32 of the CTA is not an open-ended authority for the Agency to review its decisions. The Agency's jurisdiction under this section is limited and only arises if there has been a change in the facts or circumstances pertaining to the decision since its issuance. The Agency must first determine whether there has been a change in the facts or circumstances pertaining to the decision sufficient to justify a review and, if so, then determine whether the new facts or circumstances justify a rescission or variance of the decision.

ISSUE

[7] Has there been a change in facts or circumstances pertaining to Decision No. 290-W-2008 since it was issued that justifies a review of the Decision pursuant to section 32 of the CTA?

ANALYSIS AND FINDINGS

[8] In its application for review, Atlantic Towing states that it did not have an opportunity to provide detailed technical information about the "OCEAN FOXTROT" to prove that the vessel can effectively carry out the work. Atlantic Towing indicates that it did not communicate directly with the applicant in response to a request for information that was sent directly to Atlantic Towing and not through the Agency as it believed that it should not communicate directly with the applicant.

[9] Atlantic Towing filed its offer of the "OCEAN FOXTROT" on April 23, 2008 which was after the deadline for offers as set out in the notice of the application. The Agency accepted the late filing of the offer and extended the time period for comments of the applicant on the offer and a response by Atlantic Towing to any such comments. The applicant filed comments on the offer on April 30, 2008 which included a list of questions related to the technical and operational capabilities of the "OCEAN FOXTROT" and Atlantic Towing filed a response on May 1, 2008.

[10] In processing coasting trade applications, the Agency applies the Canadian Transportation Agency Guidelines respecting Coasting Trade Licence Applications which were adopted by the Agency in August 2003. In developing these guidelines, the Agency carried out consultations with numerous Canadian vessel owners and operators. Atlantic Towing participated in these consultations through attending meetings in Halifax in October 2002. All participants, including Atlantic Towing, were provided with draft guidelines in April 2003 and were given the opportunity to comment on the proposed guidelines. The Agency provided all participants, including Atlantic Towing, with a copy of the finalized guidelines in August 2003 when the guidelines were adopted by the Agency.

[11] The section of the guidelines which describes the responsibilities of Canadian operators making an offer of a Canadian vessel reads in part as follows:

3.3.2 Offers, Objections, and Related Pleadings

Each party is responsible for presenting its case and making all pertinent arguments in its pleadings, as the Agency bases its decision on the information provided.

The party filing an offer in answer to an application must provide factual information and specifics with respect to the offered ship(s) or the service available. Such offer should include the following information:

• name, description and specifications of the offered ship(s), including type, size, capacity, capability, on-board equipment, and any other relevant information justifying the offer;
• how is(are) the ship(s) going to perform the activity or provide the service described in the application;
• availability of the offered ship(s) with respect to the time period identified in the application, or its opinion with respect to another period when the activity could be performed;

[12] Based on the foregoing, the onus is on a Canadian operator and the Agency expects a Canadian operator to provide factual information about a vessel that has been offered to demonstrate how the vessel will be able to perform an activity at the time that an offer is filed with the Agency.

[13] Atlantic Towing had the opportunity to provide technical detail about the "OCEAN FOXTROT" when it filed its offer on April 25, 2008, but did not do so. Atlantic Towing had a second opportunity to file technical detail about its vessel on May 1, 2008, when responding to comments made by the applicant, but did not do so. Atlantic Towing could have provided detailed information in response to the applicant's questions about the technical and operational capabilities of the "OCEAN FOXTROT", but did not do so.

[14] Atlantic Towing possessed detailed technical information about the "OCEAN FOXTROT" at the time it filed its offer and at the time that it filed its response to the comments of the applicant. Therefore, the Agency finds there are not any new facts or circumstances pertaining to Agency Decision No. 290-W-2008 since it was issued that would justify a review of the Decision.

CONCLUSION

[15] The Agency dismisses the application filed by Atlantic Towing for a review of Decision No. 290-W-2008.

Members

• Raymon J. Kaduck
• John Scott