Decision No. 648-W-1997

November 14, 1997

File No. W9125/I21/97-1

INTRAMAR MARITIME EXPORT CANADA LIMITED APPLICATION

By letter dated October 14, 1997, Intramar Maritime Export Canada Limited (hereinafter Intramar) filed an application with the Canadian Transportation Agency (hereinafter the Agency), for a review of Decision No. 581-W-1997 dated October l4, l997, alleging that new facts and circumstances have occurred since the issuance of the said Decision.

Intramar advises that since the presentation of its submission on behalf of Uniforêt Port-Cartier (hereinafter Uniforêt), it has been provided by the latter with specific rate information with respect to stevedoring charges and rate information from written offers received from two Canadian operators for the transportation of unitized pulp between Port-Cartier and Trois-Rivières. Intramar provides a summary of the cost per tonne from warehouse to warehouse for Canadian vessels and for the Dutch vessel.

UNIFORÊT APPLICATION

By letter dated October 16, 1997, Uniforêt also filed an application with the Agency pursuant to section 32 of the Canada Transportation Act (hereinafter the CTA) requesting that the Agency rescind its Decision and allow the issuance of a temporary licence to Intramar to use the Dutch vessel. Uniforêt stated that pulp is presently transported by truck between Port-Cartier and Trois-Rivières at a cost per tonne which is far too expensive. As a result, Uniforêt intends to move the pulp by ship. Uniforêt states that after studying two offers received for Canadian vessels and an offer for the Dutch vessel, it concluded that the offer for the Dutch vessel is by far the best offer for the following reasons:

• the rate per metric tonne for the Dutch vessel is less than the lowest Canadian offer per metric tonne;
• the loading and discharging rate for the Dutch vessel, based on one-crane operator and two men on shore, is considerably lower than that for Canadian vessels;
• the Dutch vessel was specially built for unitized forest products and is fully boxed (no understow) thereby minimizing the risk of damage to goods with lower insurance costs;
• the Dutch vessel can be loaded and discharged rapidly at a minimum cost with no danger to personnel as no stevedores are needed in the hold.

Uniforêt states that the last few years have been particularly difficult for the Canadian pulp and paper industry and it has a duty to minimize costs where possible.

BACKGROUND

Decision No. 581-W-l997 was issued as a result of an application by Intramar on behalf of Uniforêt, pursuant to the Coasting Trade Act, S.C., 1992, c. 31, for a licence to use an unnamed Dutch multi-purpose, dry cargo vessel to transport unitized wood pulp, packaged lumber, and paper reels from Port-Cartier to Trois-Rivières and Montréal, Quebec, during the period commencing on or about October 14, 1997 and ending on or about October 14, 1998. The Agency conducted a search of the relevant portion of the marine industry and offers for the use of Canadian vessels available to perform the proposed activities were filed by six operators. After consideration of the application, the various offers received, Intramar's comments and the offerors' responses to Intramar's comments, the Agency determined that there were suitable Canadian ships available to provide the service and perform the activities.

JURISDICTION OF THE AGENCY

Pursuant to section 32 of the CTA, the Agency may review, rescind or vary its decisions if new facts or circumstances have arisen since the issuance of its decision.

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 facts or circumstances pertaining to the Decision since its issuance. The Agency must first determine whether there has been a change in facts or circumstances pertaining to its Decision and, if so, then determine whether such change is sufficient to warrant a review, rescission or variance of the Decision.

ANALYSIS OF THE ISSUES AND FINDINGS

In this case, Intramar and Uniforêt refer to cost and related information for transporting unitized pulp by ship between Port-Cartier and Trois-Rivières as constituting new facts or circumstances related to Decision No. 508-W-1997.

While the rate information provided by Intramar and Uniforêt is a new fact in the sense that it was not before the Agency in October when it issued its decision, it is information that is called for by the Agency when processing applications pursuant to the Coasting Trade Act and which is identified in the Agency guidelines for such applications. The rate information could have been filed with the Agency by Intramar when commenting on the offers from Canadian operators but Intramar chose not to do so. Moreover, Intramar was fully aware of the Agency's criteria for processing coasting trade applications as it was provided with the Agency guidelines for filing applications for temporary coasting trade licences as well as a document entitled "Coasting Trade Act - Presentation to Stakeholders" which discuss, inter alia, the type of information used by the Agency when considering offers of Canadian vessels. Intramar chose not to provide any cost information to the Agency to substantiate its allegations that the use of Canadian ships would be uneconomical. Similarly, the information which has now been provided by Uniforêt is not information arising from a new or different situation following the issuance of the decision but is again information that this company chose not to disclose to the Agency when the coasting trade application was being processed.

CONCLUSION

The Agency concludes that the information provided by Intramar and Uniforêt after Decision No. 581-W-1997 was issued does not constitute new facts or circumstances as contemplated in section 32 of the CTA.

Accordingly, the Agency hereby dismisses the applications for review of Agency Decision No. 581-W-1997 as filed by Intramar Maritime Export Canada Limited and Uniforêt Port-Cartier on October 14, 1997 and October 16, 1997, respectively.