An Act to amend and consolidate the Acts relating to the office of Port Warden for the Harbour of Montreal

An Act to amend and consolidate the Acts relating to the office of Port Warden for the Harbour of Montreal Preamble Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Repeal of Act of Province of Canada 26 V., c. 52, 29 V., c. 59, secs. 1, 2, 5, 6, 7 of 36 V., c. 11, and 37 V., c. 33; Exception as to present Warden and deputies The Act of the legislature of the late Province of Canada, passed in the twenty-sixth year of Her Majesty’s reign, chapter fifty-two; the Act of the said legislature, passed in the twenty-ninth year of Her Majesty’s reign, chapter fifty-nine; the first and second, and the fifth, sixth, and seventh sections, so far as they relate to the Harbour of Montreal, of the Act of the Parliament of Canada, passed in the thirty-sixth year of Her Majesty’s reign, chapter eleven; and the Act of the said Parliament, passed in the thirty-seventh year of Her Majesty’s reign, chapter thirty-three, are, and each of them is, hereby repealed; save and except that the Port Warden of the Harbour of Montreal, the Deputy Port Warden of the said harbour, and the Board of Examiners appointed under the said last-mentioned Act, shall continue to hold their respective offices until their successors have been appointed under this Act. Officers continued; And their powers There shall continue to be, at the City of Montreal, an officer who shall be designated the Port Warden of the Harbour of Montreal, and such number of Deputy Port Wardens as the Council of the Board of Trade at Montreal shall deem necessary for the business of the harbour: and any power, function, or duty conferred or imposed by this Act upon the Port Warden, may be effectually exercised and performed by any Deputy Port Warden, under the general supervision of the said Port Warden. Council of Board of Trade to appoint Examiners of candidates for office; Appointment of Port Warden; And of deputies The Council of the Board of Trade at Montreal shall annually appoint five persons, who shall constitute a Board of Examiners, who shall examine all candidates for the offices of Port Warden and Deputy Port Warden, when any appointment to either office requires to be made, and shall report the result of such examination to the said council, whereupon the said council, acting for and on behalf of the Board of Trade at Montreal shall recommend to the Governor in Council, for appointment to the office of Port Warden of Montreal, one of such persons as shall be reported by the said Board of Examiners as being a fit and proper person to be such Port Warden; and thereupon such person may be appointed to the said office by the Governor: and the Council of the Board of Trade shall appoint to the office of Deputy Port Warden such person or persons, from among those reported by the said Board of Examiners as being fit and proper persons for the said office, as the said council shall deem expedient. Council of Board of Trade to have supervision; Their action on complaints The Council of the Board of Trade at Montreal shall have the control and supervision of the office of Port Warden, and if any complaint be made to them of the conduct of any Port Warden or Deputy Port Warden in the performance of his duties, they shall investigate the same; and if the complaint be against the Port Warden and is, in the opinion of the said council, well founded, and if in their opinion the circumstances require it, the said council shall report their decision to the Governor in Council, who may remove such Port Warden from office, after the examination of the report, and appoint a successor in the manner hereinbefore provided for; but if such complaint be against any Deputy Port Warden, and the said council shall be of opinion that the same is well founded, such Deputy Port Warden may be removed by the said council in their discretion. By-laws for regulation of office, how to be made and confirmed; Proof thereof The Board of Examiners shall make by-laws, rules and regulations for regulating the office of Port Warden and the performance of his duties, and of those of the Deputy Port Wardens; and may, from time to time, repeal and amend such by-laws, rules and regulations: but the same shall have no force or effect until approved by the Council of the Board of Trade, — which shall have the right to confirm the same, either with or without amendment; and a copy of such by-laws, rules and regulations certified by the Secretary of the Board of Trade, shall be primâ facie evidence in all courts in Canada that the same were duly passed and are in force. Oath of office The person so appointed to be Port Warden shall, before acting as such, take and subscribe the following oath of office, before some Justice of the Peace for the District of Montreal, who is hereby empowered to administer the same: Form “I, A. B., do solemnly swear that I will faithfully and impartially, to the best of my judgment and ability perform the duties of the office of Port Warden of the Harbour of Montreal, without fear, favour or affection for any person or party whomsoever:” Custody thereof; Deputies’ oath And after taking and subscribing the said oath of office he shall deposit the same with the Secretary of the Board of Trade, who shall be the custodian thereof. And each Deputy Port Warden, upon his appointment, shall take and subscribe, before a Justice of the Peace, a similar oath, and shall likewise deposit the same with the Secretary of the Board of Trade. Fees of Port Warden; Yearly return thereof The Port Warden shall receive no fees whatever, other than such as strictly appertain to the business of his office; all such fees shall be recorded in his books and duly credited to the office; and he shall make a certified annual return to the Council of the Board of Trade at Montreal, of the receipts and expenses of his office, within seven days after the thirty-first day of December in each year. Port Warden’s office, books, &c. The Port Warden shall keep an office open on lawful days from seven A.M. till six P.M. during the season of navigation; and from ten A.M. till three P.M. during the remainder of the year; and shall have a seal of office, and the necessary books in which all his acts as Port Warden, and those of his deputies, with their fees of office, shall be recorded in such manner as the by-laws, in that behalf made and in force, shall direct. Masters of seagoing vessels arriving in Port to notify Port Warden; Proceedings if the cargo is found to be damaged; If the Port Warden is not notified, and the cargo is landed in a damaged condition The master of every sea-going vessel arriving with cargo in the Port of Montreal, which has not previously legally broken bulk during the voyage at any port in Canada, shall notify the Port Warden to be present at the opening of the hatches of such vessel; and immediately on the discovery of any damage to the cargo, shall request him to survey the same, with the view of ascertaining the nature, cause and extent of such damage, before such damaged cargo shall be removed from the place in which it was originally stowed, — though, for the purpose of full and complete investigation, the Port Warden may cause the cargo so damaged to be discharged and removed to any wharf or warehouse: and should the Port Warden not be so notified and requested to be present and survey such cargo as aforesaid, and the said cargo or any part thereof should be landed from on board such vessel in a damaged condition, these facts shall be primâ facie evidence that such damage occurred in consequence of improper stowage or negligence on the part of the persons in charge of such vessel; and unless the contrary be shewn by the master or owners of such vessel, the burden of which shall be upon him or them, he or they shall be liable for such damage. Port Warden on request to inspect stowage or damaged goods; his duty in such case Upon notice and request to the Port Warden by any party interested, the Port Warden or one of his Deputies shall proceed, in person, on board of any ship, steamer or other vessel, for the purpose of examining the condition and stowage of cargo; and if there be any goods damaged on board such vessel, he shall enquire, examine into and ascertain the cause or causes of such damage, and make a memorandum thereof, and enter the same in full on the books of his office. Further provision for examination of damaged goods; Experts may be called; Report; Fee and costs; Proviso: notice of survey Upon notice and request to the Port Warden by any party interested, the Port Warden or one of his Deputies shall proceed in person to any warehouse, dwelling or wharf, and examine any merchandise, package, material, produce or other property said to have been damaged on board of any vessel, first notifying the master, agent or other representative of such vessel thereof, and shall enquire and examine into and ascertain the nature, cause and extent of such damage, make a memorandum thereof, and record in the books of his office a full and complete statement thereof; and the Port Warden shall be entitled to call in one or two experts in his discretion, who shall assist him in such survey, and who shall make and sign a report on the same to be kept in the office of the Port Warden, and who shall, for such service, be entitled to a fee; and the cost of the survey shall be paid by the party or parties calling for the survey and shall be a lawful charge against any person liable for such damage to the party calling for such survey: Provided always, that such party shall notify the person so liable, his agent or representative (if he be resident or have a place of business in Montreal) of the intention to hold such survey, and of the time and place thereof. Survey of vessel having sustained damage or unfit to proceed on her voyage; Assistance of experts; their fees, &c.; Report as to repairs required; Proviso: in case of serious damage The Port Warden shall, when required by any party interested, survey any vessel within the Harbour of Montreal which may have suffered damage or which is asserted by such party to be unfit to proceed on her voyage; he shall examine the hull, spars, rigging and all appurtenances thereof, shall specify what damage has occurred to them or any of them, and the condition thereof, and of such vessel at the time of such survey, and record on the books of the office a full and particular account thereof: he shall call to his assistance, if he deems it necessary in any such survey, one or more carpenters, sailmakers, riggers, shipwrights, or other persons skilled in their profession, (who shall each be entitled to a fee for the survey), to aid him in such examination and survey; but no person shall be chosen as such surveyor or expert who is interested in the result thereof. The Port Warden shall also, if required, be surveyor of, and report upon the repairs necessary to render such vessel seaworthy: and his certificate that such repairs have been properly made shall be primâ facie evidence that the vessel is seaworthy: Provided that in case of wreck or serious damage he shall call upon the regular surveyor or representative of Lloyds, or other similar association, if any such person is available, under which such ship carries a certificate of classification, to act with him upon such survey. Survey of damaged vessels and cargoes The Port Warden shall have cognizance of all matters relating to the survey of sea-going vessels and their cargoes arriving in port damaged, and shall make a memorandum thereof, and enter the same in full in the books of his office, and, when requested, shall, on payment of the regular fee, give certificates of such surveys. Duty of masters of vessels intending to load grain in bulk, and of Port Warden in such case; Power to make necessary orders; How enforced; Record of proceedings The Master of every vessel intending to load grain, wholly or partly in bulk, for any port not within the limits of inland navigation, shall have such vessel inspected and surveyed by the Port Warden when ready to be, but before it is being dunnaged for such grain: and the Port Warden, in such case, shall ascertain whether such vessel is in a fit state to receive and carry such grain to its destination; he shall record in his books the condition of the vessel; if he finds she is not fit to carry such grain in safety, he shall state what repairs are necessary to render her seaworthy; and before any such grain is taken on board of such vessel, while the different chambers are being prepared, he shall, from time to time, inspect and survey the same; before the loading of any chamber is commenced he shall see that such chamber is in a fit and proper state and condition to receive grain, and furnished with such shifting boards as he may deem necessary; and he shall see that the boards and planks used for lining and other purposes are properly seasoned; he shall examine the pumps and see that they are properly lined and dunnaged; he shall enter in the books of his office all particulars connected with these surveys, and grant the necessary certificates: and he shall make such orders as he deems fit, in respect of all the matters and things referred to in this section; and if such order be not properly obeyed by the master or person in charge of such vessel, he shall deliver the same in writing to such master or other person in charge; and if not thereupon complied with he shall notify in writing such master or person in charge to desist from loading such vessel, and such vessel shall thereupon be held to be unseaworthy, and unfit for the carriage of grain, and no certificate or clearance shall be granted to her. And he shall enter in the books of his office all his acts, and all particulars connected with the matters and things provided for by this section, and shall grant certificates of the due performance of his directions in respect thereof. His duties as to dunnage It shall be the duty of the Port Warden, when required, to decide if any and what amount of dunnage is necessary below cargo, and also between wheat and other grain, and the cargo to be stowed over it; and his certificate shall be primâ facie evidence of the good stowage of the cargo so far as these points are concerned. Further examination before clearance; No clearance if found unfit for sea The master of every vessel loading at the Port of Montreal for any port not within the limits of inland navigation, shall, before proceeding on his voyage, or clearing at the custom house for the same, notify the Port Warden, whose duty it shall then be to proceed on board such vessel and examine whether she is in a fit state to proceed to sea or not; if she is found unfit, the Port Warden shall state in what particulars, and on what conditions only she will be deemed in a fit state to leave, and shall notify the master not to leave the port until the required conditions have been fulfilled; and in case of the master refusing or neglecting to fulfil the same, the Port Warden shall notify the Collector of Customs, in order that no clearance may be granted for the vessel until such required conditions have been fulfilled, and a certificate thereof granted by the Port Warden or his Deputy. No clearance without certificate of Port Warden or his deputy No officer of customs shall grant a clearance to any vessel for the purpose of enabling her to leave the Port of Montreal for any port not within the limits of inland navigation, unless not until the master of such vessel produces to him a certificate from the Port Warden or his Deputy, to the effect that all the requirements of this Act have been fully complied with; and if any vessel attempts to leave the Port of Montreal without a certificate of clearance, for any port not within the limits of inland navigation, any officer of customs, or any person acting under the direction of the Minister of Marine and Fisheries, or the chief officer of the river police, may detain such vessel until such certificate is produced to him. Estimate of value of vessel The Port Warden shall, when required, estimate the value of any vessel, being at the time in the harbour of Montreal, when the same is in dispute or otherwise needed, and shall record the same in the books of his office. Auctioneer selling condemned vessels, &c., to notify Port Warden; Proviso: as to goods liable to deterioration It shall be the duty of every auctioneer making a sale of any vessel condemned, or ships’ materials, or goods damaged on board a ship or vessel, whether sea-going or of inland navigation, for the benefit of underwriters or others concerned, in the City of Montreal, to file an account of such sale at the office of the Port Warden within ten days after such sale: no sale for account of underwriters shall take place until after at least two days’ public advertisement, in not less than two English and one French newspapers, in the City of Montreal, except in such special cases as hereinafter provided for, and such sale shall not be at an hour earlier than eleven, nor later than three o’clock in the day; but, if the goods or effects to be sold are in such a condition as to be subject to rapid deterioration from delay, the Port Warden, upon the application of an interested party, may make an order for a sale thereof, after such notice and delay as he may deem for the interest of all concerned, — duly recording such application, and his order thereon, in the books of his office. Survey before sale No goods, vessels or property, alleged to be damaged on the voyage to the said port, shall be sold as damaged for account of underwriters unless a regular survey and condemnation has previously been had; and the Port Warden shall, in all such cases, be one of the surveyors. Arbitration between master and consignee; Award and record If required by all parties interested, in a memorandum in writing signed by them, the Port Warden shall hear, arbitrate upon, and determine any matter in dispute between the master or consignee of any vessel or ship, and any proprietor, shipper or consignee, of any part of the cargo thereof, — and for that purpose shall have the power of hearing the parties and their witnesses upon oath, and of administering such oath; and his award in the premises shall be final: and he shall enter a note of the reference to him, and his award thereon in full in the books of his office. Power to initiate proceedings If the consignee of a vessel or cargo cannot be found or communicated with, the Port Warden may, in any case in which he thinks it right and necessary so to do, initiate proceedings and hold surveys, and obtain process, as if required by the parties concerned, under the provisions of this Act. Notices to Port Warden and to parties concerned; Subject to by-laws All notices, requests or requirements, to or from the Port Warden, must be given in writing in an intelligible form, and signed by the party making the same, or by some one duly authorized on his behalf, and be delivered within a reasonable time before action is required: and before proceeding to act in the performance of any duty imposed upon him by this Act, the Port Warden shall ascertain that notice thereof has been given to the parties interested, and if not, shall himself cause reasonable notice thereof to be given to them: and the nature and extent of the notice required in all cases coming under the jurisdiction of the Port Warden may be, from time to time, regulated by the by-laws, rules and regulations made as hereinbefore provided. Port Warden to furnish extracts from his books, &c.; How certified and effect as evidence; Port Warden exempted from attending as witness except in Montreal, during navigation season The Port Warden shall, on the application of any person interested, and on payment of the proper fee, furnish to such person extracts from the books of his office certified by him to be correct extracts, and sealed with the seal of his said office, respecting any matter recorded therein, and also certified copies of any original documents filed in his office, — which certified copies shall be primâ facie evidence of the contents and execution of the originals thereof: and all such extracts so certified under the hand of the Port Warden or his deputy, and under the seal of his office, purporting to contain copies of entries recorded in his books, shall be received primâ facie evidence of the existence and contents of such entries, in any court in the Dominion. And the said Port Warden shall not be required during the season of open navigation to leave the Port of Montreal to give evidence before any court, nor for any other purpose whatever, except with the consent of the Council of the Board of Trade; and in case of his evidence being required before any court in the City of Montreal, he shall be entitled to a fee for each and every attendance at such court, — nor shall he be required on any one day to absent himself from his office for more than three hours. To supply copies of regulations The Port Warden shall, on application, supply once in each year, to every master of a vessel arriving in the Port of Montreal, a copy of the by-laws, rules and regulations relating to the office of Port Warden. As to application of rules of Lloyd’s The by-laws, rules and regulations respecting the office of Port Warden shall declare to what extent the regulations of Lloyds shall be applicable to the Harbour of Montreal, and to what extent the Port Warden and his Deputies shall be governed by such regulations. Appeals from decisions of Port Warden; Proceedings; Costs If any person interested is dissatisfied with any decision of the Port Warden (except in cases of arbitration), such party may appeal to the Board of Trade, by addressing and delivering to the Secretary of the Board of Trade a statement in writing of the matter complained of; and thereupon it shall be the duty of such secretary forthwith to summon a meeting of the said Board of Examiners, who, or not less than three of them, shall immediately investigate the matter complained of, and, after hearing the parties, their determination, or that of a majority of them, made in writing, shall be final and conclusive. The party against whom the examiners shall decide shall pay all the expenses of such appeal, and the examiners shall determine the amount thereof. Fees or charges The Council of the Board of Trade at the City of Montreal may fix the fees or charges, or the manner of determining the fees or charges, to be paid to the Port Warden for or in respect of any services performed by the Port Warden or any Deputy Port Warden. Notice of proposed fees or charges Subject to subsection (3), the Council shall cause notice of any fees, charges or manner that it proposes to fix pursuant to subsection (1) to be published at least thirty days before the proposed effective date thereof in the Canada Gazette and in one or more newspapers of general circulation in the City of Montreal and shall specify in the notice the place to which and the time within which representations may be sent with respect to the proposed fees, charges or manner. Exception No notice is required to be published pursuant to subsection (2) with respect to any fees, charges or manner if notice with respect thereto was previously published pursuant to that subsection, whether or not the fees, charges or manner were amended after the publication as a result of representations made pursuant to the notice. Notice of fees or charges The Council shall cause notice of any fees, charges or manner that it fixes pursuant to subsection (1) to be published in the Canada Gazette and in one or more newspapers of general circulation in the City of Montreal. Payment The fees or charges for or in respect of any services performed by the Port Warden or any Deputy Port Warden are payable at the time the services are performed and by the master, or the owner or representative of the owner, of the vessel in respect of which the services are performed. Remuneration of Port Wardens and deputies and office expenses to be fixed by Board of Trade and paid out of receipts; Security to be given by Port Warden and deputies The Council of the Board of Trade shall fix the remuneration of the Port Warden and that of his Deputies, and his expenses of office or otherwise, out of the receipts of his office, as it may, from time to time, determine; and for any period during which the Port Warden may be paid by salary, the balance, if any, which may appear by his certified annual return to be in his hands, over and above his salary, that of his Deputies and his expenses of office, shall be forthwith paid by the said Port Warden to such person as the Council of the Board of Trade shall depute to receive the same; and the said Port Warden and his Deputies, when required so to do, shall furnish such securities for the faithful performance of the duties of their respective offices as the Council of the said Board of Trade shall deem adequate. Penalties for contravention of Act The penalty for every infringement or breach, on the part of a master or owner of a vessel, of the fourteenth section of this Act, shall be eight hundred dollars; and for every infringement or breach of the twentieth section thereof, shall be twenty dollars: How to be recovered and applied; Further liability of offender Every such penalty as aforesaid shall be recoverable in the manner prescribed by “The Interpretation Act” in cases where penalties are imposed, and the recovery not otherwise provided for: and the whole of any pecuniary penalty imposed by and collected under this Act shall belong to the Crown, and shall be paid over to the Receiver-General, on receipt of the same, by the Council of the Board of Trade, and shall be appropriated in such manner as the Governor in Council may direct; but payment of such penalties shall not, in any way, diminish the liability of any ship, shipmaster or other person, for the consequences of any thing done by him or his representatives in contravention of this Act. Yearly report to Minister of Marine and Fisheries; He may require further information The Council of the Board of Trade shall yearly, within seven days after the first day of January, transmit to the Minister of Marine and Fisheries, a report of the business done in the office of the Port Warden, and of his receipts and expenditure in respect thereof, and of all moneys which may have been received from time to time by the Board, as arising from fees of office, and then in the hands of the said Board, showing also how such moneys are invested, in such manner and form as the Minister may direct; and for that purpose shall have power from time to time to call upon the Port Warden to make up and furnish to the said Council, such returns, accounts and information as the said Council may require. Application of proceeds of rates and fees, for the purposes of this Act only; Duty of Board in case of excess The proceeds of the fees and rates collected under this Act, shall be applied by the said Board of Trade solely to the purposes mentioned in the twenty-ninth section of this Act, and other purposes necessary and incident to the efficient working of this Act, as shall also any money now or hereafter in the hands of the said Board, arising from rates and fees under this Act, or the Acts repealed by it, or any interest on such moneys; and if at any time it should become apparent that the proceeds of the rates and fees herein mentioned, with the interest on any such moneys as aforesaid in the hands of the Board, are and probably will be more than sufficient for the purposes aforesaid, it shall be the duty of the said Board to reduce any or all of the said rates and fees accordingly, and again to increase them or any of them, with the sanction of the Governor in Council, if they become insufficient for the said purposes. [Repealed, 1991, c. 32, s. 10]