By Pierre-Olivier Dumas, Félix-Antoine Blais and Sarah Routhier
In a judgment pronounced in last February[1], the Court of Quebec settled the definition of the terms “article of cargo” within the meaning of the Cargo Securement Standards Regulation[2] (“Regulation”). More specifically, in the course of a penal litigation, the Court had to establish a definition of that concept in order to assess the statutory compliance of the defendant in connection with the securement of its loading and to determine its guilt with regards to the offence issued by Contrôle routier Québec.
Facts
In December 2017, a heavy vehicle used by the defendant was intercepted by highway patrol officers who proceeded to the verification of its cargo securement and its compliance to the Regulation. The cargo consisted of two stacks of trailers piled four on top of each other in front and five on top of each other at the rear of a semitrailer. Each trailer had a length of 7.4 meters.
According to the facts presented before the tribunal, the first stack of trailers was tightened as follows: a strap tied up the semitrailer to the first trailer under the pile, two straps were placed over the second, and finally three straps were affixed over the forth trailer. Six straps were hence used for the securement of that cargo.
With regards to the second stack, the Court found from the evidence filed that six straps were also used in all: one between the first and second trailer, one that passed through the first and second and went over the third trailer, one over the third trailer, and three others tied over the whole stack.
One must thus realize that straps were not specifically dedicated to a certain number of trailers for their securement.
Considering this set up, Contrôle routier Québec issued a violation report to the defendant since it infringed the provisions of the Regulation, the National Safety Code Standard 10, Cargo Securement[3] (“Standard”), and the Highway Safety Code[4].
Prosecutor’s position
The Director of Criminal and Penal Prosecutions was of the opinion that the trailers should have been individually secured using four straps for each of them, since they each constitute distinct articles of cargo. According to that position, the stacking of the trailers did not result in the unification of the articles of cargo into a single article. Hence, according to the prosecutor’s argument, the securement infringed the statutory standards and the defendant should be found guilty.
Defendant’s position
According to the defendant, the trailers were sufficiently secured and in compliance with the Regulation. Moreover, it submitted that more straps were used than the required number. That submission stems from the fact that it considered each stack of trailers as one and the same article of cargo. Consequently, only four straps would have been enough to holdback each stack in compliance with the Regulation.
Analysis
Section 22 of the Standard to which reference is made in sections 4 and 21 of the Regulation namely stipulates that where an “article of cargo” is longer than 3.04 it must then be secured by at least 2 tiedowns, and by 1 extra tiedown for each additional 3.04 meters or fraction of 3.04 meters. Hence, an article of cargo of 7.4 meters should be secured by four straps.
In the present instance, the tribunal must determine whether the concept of “article of cargo” encompasses either each of the trailers considered separately or each stack of trailers. First, the judge noted that Canada wide no judicial determination ever considered the concept of “article of cargo”, and that it is not even contemplated in any regulatory provision. She hence reviewed the wording of various definitions set under the Standard and noted several indications as how that term should be read. She determined that a stack could be considered as a single article of cargo where the latter is intended to be handle as a single article, that is where those different articles are wrapped, circled or tied together in a way to be processed individually.
Conclusion
In the present instance, the evidence indicates that each trailer could be handled separately on an individual basis. They were not wrapped, circled nor tied together to be considered as a whole. Hence, the judge determined that each of the trailers constituted an article of cargo and that it should have been individually secured in accordance with the Standard.
[1] 2019 QCCQ 769
[2] Cargo Securement Standards Regulation, CQLR, c. C-24.2, r. 30, sect.4 and 21
[3] National Safety Code for Motor Carriers Standard 10, Cargo Securement, 2013, sect. 9 and 22.
[4] Highway Safety Code, CQLR, c. C-24.2, Sect. 471.