Tour operator still without a port

Published on April 10, 2014
Scademia tour boat owner and operator Charlie Anonsen (centre) and his co-applicant Ellen Turpin (left) chat with lawyer Douglas Lutz of Wolfville, N.S., during a recess break at the judicial review of the decision made by the St. John’s Port Authority to refuse permission for the tour boat to operate out of St. John’s harbour at the Sheraton Newfoundland Hotel on Thursday morning. At far right is Kyle Mercer, project and media and communications manager for Anonsen’s company Adventure Tours Inc. — Photo by Joe Gibbons/The Telegram

A nine-year-old dispute between the owner of the Scademia and the St. John’s Port Authority (SJPA) is still adrift. Charles Anonsen, who owns the boat, is fighting the port authority, again, for a licence to run tours out of the Port of St. John’s.

On Thursday morning, in a makeshift courtoom at the Sheraton Hotel Newfoundland, Anonsen appealed to a federal judge a 2011 ruling that prohibited his company’s, Adventure Tours Inc., activity.

“The port authority does not have any jurisdiction, any power, any legal authority to deny a user of the port the right to use the port property for services in a manner consistent with the (Canada Shipping Act),” said Anonsen’s lawyer Douglas Lutz.

He argued that this is because the applicant’s purpose is to carry passengers, and is therefore an activity.

“The port authority is incorporated for the specific purpose of operating the port and providing activities, which are, in the language of Section 28 of the Canada Marine Act, related to shipping, navigation and transportation of passengers, etcetera.

“The business of the applicant as a tour boat operator is the transportation of passengers. ... It is not tourist services as the respondant attempts to characterize it,” Lutz said.

Judge Cecily Strickland asked, “How is it not tourist-related?”

Jamie Smith, representing the SJPA, also balked at this claim during his submission.

“The business of ATI (Adventure Tours Inc.) is the support of local tourism.”

He also contested Lutz’s argument regarding the applicant’s being an activity.

“A tour boat service is clearly an activity related to the transportation of passengers,” he said. “I think it’s in my client’s interest, and perhaps the interest of all before the court, that we move forward.”

Opposite Lutz, Smith contended that the authorization of the applicant’s activity is, in fact, within the SJPA’s jurisdiction.

Finally, Smith rejected the claim he perceives as being central to the applicant’s argument, regarding the “public right of navigation,” which “assumes that the Canada Shipping Act and the Canada Marine Act have not ousted or supplanted the public right of navigation at least in the Port of St. John’s or any other (Canadian) port authority.”

If the court decides “the Port of St. John’s has not been ousted or supplanted or otherwise occupied, then the public right of navigation ... does not encompass or extend to operating a tour boat business on and from port-managed property.”

Sally Gomery gave the final submission on behalf of the Association of Canadian Port Authorities (ACPA). Like Smith, Gomery said the country’s port authorities have “the authority to license the business of commercial tour operators.”

This licensing, she continued, doesn’t end at the water’s edge.

Instead, and subsequently challenging the SJPA’s stance, Gomery emphasized that, “ATI is not free, simply, to find another berth off port authority land and then go and use the harbour as it wishes, without a licence or some sort of authorization.”

Different from Smith, Gomery spoke to berthage fees, harbour dues and fees on passengers — all sources of port revenues. These revenues, she said, vary between port authorities, largely dependent on their size, and help cover the costs of different tourism activities on port lands and waters.

ATI’s activity generates its own costs, which must be taken into consideration, given that the ACPA’s 18 members are expected to be commercially self-sufficient as well as to operate safely.

There is no question, said Gomery, that ATI requires a licence from the SJPA.

At the end of the three-hour hearing, Strickland abstained from making a ruling, but assured both parties she would reach a verdict as soon as possible.”