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Exchange of Notes (August 23, 1978 and March 29, 1979) between the Government of Canada and the Government of the United States of America to supersede the Agreement of July 6, 1970, as amended by an Exchange of Notes of August 11, 1970, concerning the Operation of Pilotage Age Services on the Great Lakes [1979] CATSer 5 (29 March 1979)

E103769 - CTS 1979 No. 10

EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO SUPERSEDE THE AGREEMENT OF JULY 6, 1970, AS AMENDED BY AN EXCHANGE OF NOTES OF AUGUST 11, 1970, CONCERNING THE OPERATION OF PILOTAGE SERVICES ON THE GREAT LAKES (WITH A MEMORANDUM OF ARRANGEMENTS)

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The Chargé d’Affaires a.i. of the Embassy of the United States of America to the Secretary of State for External Affairs of Canada

OTTAWA August 23, 1978

No. 229

The Honorable Don Jamieson,
Secretary of State for External Affairs,
Ottawa

Sir:

I have the honor to refer to discussions between the United States Department of Transportation and the Ministry of Transport of Canada concerning joint arrangements for the regulation of pilotage services on the Great Lakes. These discussions have resulted in agreement on the recommended terms and conditions set forth in the attached Memorandum of Arrangements, signed on January 17, 1977, by the United States Secretary of Transportation and on January 18, 1977, by the Minister of Transport of Canada.

I have the further honor to propose that these terms and conditions should henceforth govern the operation of pilotage on the Great Lakes. If this proposal meets with the approval of your Government, this note and the annexed Memorandum of Arrangements, together with your reply to that effect, shall constitute an agreement between our two Governments which shall enter into force on the date of your reply with effect from January 18, 1977. This agreement shall supersede the agreement effected by an exchange of notes July 6, 1970, as amended by an exchange of notes on August 11, 1970.

Accept, Sir, the renewed assurances of my highest consideration.

James A. Placke

Chargé d’Affaires ad interim

MEMORANDUM OF ARRANGEMENTS GREAT LAKES PILOTAGE BETWEEN THE MINISTER OF TRANSPORT OF CANADA AND THE SECRETARY OF TRANSPORTATION OF THE UNITED STATES OF AMERICA

The Minister of Transport of Canada and the Secretary of Transportation of the United States of America have agreed to recommend to their respective Governments the following Memorandum of Arrangements concerning Great Lakes Pilotage to replace the existing Memorandum.

The last amendment of the existing Memorandum of Arrangements was made effective by the Minister and the Secretary on August 12, 1970. Since that time, there have been several significant changes in the pilotage system that should be reflected in a revised Memorandum of Arrangements.

The Minister and the Secretary fully recognize the different methods of operating pilotage on the Great Lakes. Canada operates with the Great Lakes Pilotage Authority Ltd. in control and the majority of its pilots are its employees. The United States operates with voluntary associations providing the pilotage services, with pilots being self-employed.

MEMORANDUM OF ARRANGEMENTS GREAT LAKES PILOTAGE

Definitions

1. For the purpose of this Memorandum, the following definitions apply:

a. “Designated waters” means the waters of Districts 1, 2 and 3.

b. “District 1” means all the waters of the St. Lawrence River from the pilot boarding station near the International Boundary at St. Regis, Quebec, to a line running from Carruthers Point Light at Kingston, Ontario, on a true bearing of approximately 127° through Wolfe Island, South Side Light and extended to the New York shore.

c. “District 2” means the Welland Canal and the waters of Lake Erie westward of a line running on a true bearing of approximately 026° from Sandusky Pierhead Light at Cedar Point, Ohio, to Southeast Shoal Light, the waters contained within the area of a circle of one mile radius eastward of Sandusky Pierhead Light, the Detroit River, Lake St. Clair, the St. Clair River and the northern approaches thereto south of Latitude 43° 05’ 30” N. For the purposes of this definition, “Welland Canal” includes all the waters of the Canal between the following:

(1) in the southern approach, within an arc drawn one mile to the southward of the outer light on the western breakwater at Port Colborne, and

(2) in the northern approach, within an arc drawn one mile to the northward of the western breakwater light at Port Weller.

d. “District 3” means the St. Mary’s River, Sault Ste. Marie Locks and approaches thereto between Latitude 45° 59’ N. at the southern approach and Longitude 84° 33’ W. at the northern approach.

e. “Great Lakes” means Lakes Superior, Michigan, Huron, Erie and Ontario, their connecting and tributary waters, the St. Lawrence River as far east as St. Regis, and adjacent port areas.

f. “Minister” means the Minister of Transport of Canada.

g. “Pilot” means a person registered and licensed in the United States or licensed in Canada as a Great Lakes Pilot.

h. “Secretary” means the Secretary of Transportation of the United States of America.

i. “Undesignated waters” means all the waters of the Great Lakes other than designated waters. For pool purposes, Lake Ontario is in District 1, Lake Erie is in District 2, and Lakes Huron, Michigan and Superior are in District 3.

j. “Movage” means the moving of a ship within a harbor from one anchored or moored position to another, but does not include the warping of a vessel from one berth to another solely by means of mooring lines attached to a wharf or to the shore or to a mooring buoy unless a pilot is employed.

k. “Authority” means the Great Lakes Pilotage Authority Ltd. of Canada.

l. “Director” means the Director of Great Lakes Pilotage, U.S. Coast Guard.

m. Rate Computation definitions:

(1) “Length” means the distance between the forward and after extremities of the ship.

(2) “Breadth” means the maximum breadth to the outside of the shell plating of the ship.

(3) “Depth” means the vertical distance of amidships from the top of the keel plate to the upper most continuous deck, fore and aft, and which extends to the sides of the ship. The continuity of a deck shall not be considered to be affected by the existence of tonnage openings, engine spaces or a step in the deck.

Pilotage Service

2. a. Coordinated pilotage service shall be provided in the Great Lakes by United States and Canadian pilots under the supervision of the Director and the Authority, acting for the Secretary and the Minister, respectively.

b. The Director and the Authority, acting for the Secretary and the Minister, respectively, will maintain registers of United States and Canadian pilots authorized to render pilotage services on all or specified portions of the Great Lakes, and will establish and maintain systems for recruiting and training pilots.

c. No person may be licensed or registered as a pilot, and no pilot may continue as such, after he reaches the age of 65 years, unless in the opinion of the Secretary or the Minister, as the case may be, the public interest will be thereby served and that person is fit to perform the duties of a pilot.

Dispatching and Pilot Boats

3. The Secretary and the Minister will establish and maintain, or cause to be established and maintained, facilities for the dispatching of pilots and for related services, including pilot boats. To avoid the cost of redundancy, services for shared participation shall be provided on a cooperative exchange basis as follows:

a. District 1

(1) Dispatching - by the Authority

(2) Pilot Boat - at Cape Vincent, by the St. Lawrence Seaway Pilots Association

b. District 2

(1) Dispatching
- upbound, by the Authority
- downbound, by the Lakes Pilots Association, Inc.

(2) Pilot Boat
- at Port Colborne and Port Weller, by the Authority
- at Detroit and Port Huron, by the Lakes Pilots Association, Inc.

c. District 3

(1) Dispatching - by Upper Great Lakes Pilots, Inc.

(2) Pilot Boats - by Upper Great Lakes Pilots, Inc.

d. Services solely for the benefit of the pilots of one nation shall be provided by the cognizant party for that nation.

Participation in Pilotage Service

4. Participation in providing pilotage to vessels and the revenues derived there­from shall be shared as detailed below. Revenue will be based on work actually performed as determined by the natural flow of traffic and the standards described for sharing participation. Each country may employ pilots in such numbers as it deems necessary to meet its own actual work standards, but such numbers and work standards shall not affect the sharing of participation and revenue described here­under. The rate used to determine the charge for pilotage service will be set for each area by using the number of pilot positions required to perform the estimated work. A pilot position is a figure based on an assumed work standard, representing the estimated work to be performed by one pilot.

a. District 1

(1) Between Cape Vincent and St. Regis:

Vessels entering the District, either upbound or downbound, shall be numbered in blocks of 34, 20 of which will be designated for Canadian pilots and 14 for United States pilots. Assignments will be made on the basis of a straight tour de role according to the nationality designated for each.

(2) Between Cape Vincent and Port Weller:

A dispatching role of 12 positions shall be established, 6 of which shall be designated for Canadian pilots and 6 for United States pilots. Assignments shall be divided equally between United States and Canada over the course of the shipping season.

b. District 2

(1) Welland Canal - Canadian pilots only

(2) Between Port Colborne and Port Huron, with no intermediate ports of call (the Detroit Pilot Boat is not a “port”):

Vessels entering the District, either upbound or downbound, shall be numbered in blocks of 8, the number assigned depending strictly on sequence of arrival at Port Colborne upbound or Port Huron down-bound. United States pilots will serve vessels numbers 1, 3, 5 and 7 between Port Colborne and the Detroit Pilot Boat and Canadian pilots will serve numbers 2, 4, 6 and 8 in that reach. Between Port Huron and the Detroit Pilot Boat, United States pilots will serve vessel numbers 1, 3, 5, 7 and 8 while Canadian pilots will serve numbers 2, 4 and 6 in that area.

(3) Vessels stopping at ports within the District excluding the Welland Canal (the Detroit Pilot Boat is not a “port”):

Canadian pilots will serve vessels bound for Canadian ports within the District and United States pilots will serve vessels bound for United States ports within the District. A vessel leaving a United States port bound for a Canadian port within the District will be served by a United States pilot to the Detroit Pilot Boat and by a Canadian pilot from there, except that no change will be made for a vessel bound for Windsor from a United States port. A vessel leaving a Canadian port bound for a United States port within the District will be served by a Canadian pilot to the Detroit Pilot Boat and by a United States pilot from there, except that no change will be made for vessels bound for Detroit from a Canadian port.

c. District 3

Canadian pilots will be assigned to serve vessels in such numbers over the course of the shipping season as to realize 18.9% of the total revenue for the District for the season.

Accounting

5. a. The Secretary and the Minister will establish and maintain, or cause to be established and maintained, facilities for the billing, collecting and account­ing of pilotage revenue.

b. The costs incurred by the parties responsible for providing dispatching and related services shall be verified by the Director or the Authority, depending on which country provided the service. The party providing the service shall be reimbursed from pilotage revenue in the following manner:

(1) District 1

Prior to the 1st of April of each year, the Authority and the St. Lawrence Seaway Pilots Association shall enter into an agreement to compensate each other for pilotage related services. The charge for these services will be those costs mutually agreed to for the current year. A monthly amount will then be arrived at by dividing the total cost by 8½ to arrive at a seasonal monthly amount. This amount will be shared on the basis of dispatches between the Authority and the St. Lawrence Seaway Pilots Association each month.

Pilot boat costs shall be developed in a similar manner and will be shared on the basis of pilot boat trips used by Canadian and United States pilots each month. Payments for these services will be made in the currency of the party providing the services. Each party providing the service shall do its own billing and collecting.

(2) District 2

Prior to the 1st of April of each year, the Authority and Lakes Pilots Association, Inc. shall enter into an agreement to compensate each other for pilotage related services. The amount to be charged for these services will be based on costs and traffic anticipated for the current year. A charge for each dispatch and a charge for each pilot boat trip will then be negotiated between the parties on this basis. Payment for these services will be made in the currency of the party providing the service. Each party providing the service shall do its own billing and collecting.

(3) District 3

Upper Great Lakes Pilots, Inc. will provide all services related to furnishing pilotage in the District. They will reimburse the Authority monthly for its share of collections made during the preceding month. Upper Great Lakes Pilots, Inc. may withhold from each payment a fixed percentage, agreed to before April 1 of each year, to cover the costs of providing the services.

c. The accounts of each District and the Authority shall be subject to audit by each country’s own auditors. Copies of the audit shall be exchanged between the Authority and the Director, with each country reserving the right to ask the other for additional information or a more detailed report.

Calculation of Pilotage Units & Determination of Weighting Factor

6. For the purpose of calculating charges for pilotage services, the pilotage unit number and appropriate weighting factor for each ship shall be computed by utilizing the following formula and table:

a. Pilotage Unit Computation:

b. Weighting Factor Table:

c. The charge for pilotage service is obtained by multiplying the weighting factors obtained from paragraph (b) of this section, by the appropriate basic rate specified in the Rate Supplement to this Agreement.

Tariffs

7. The Secretary and the Minister will arrange for the establishment of regulations imposing identical rates, charges, and any other conditions or terms for services of pilots in the waters of the Great Lakes, such rates, charges, and any other conditions or terms being annexed hereto from time to time as a Rate Supplement and to be deemed a part of this Memorandum of Arrangements.

Effective Date

8. This Memorandum of Arrangements becomes effective on the latter of the dates of signatures indicated below and will remain in effect until revised by mutual agreement or until terminated on December 31 of any year following 1977 by either party having given written notice of termination to the other on or before April 1 of that year. If one party gives notice of termination, then the other party shall have until April 15 of that year to similarly give notice of termination.

O. E. Lang
Ottawa, Canada, January 18, 1977

William T. Coleman, Jr.
Washington, D.C., January 17, 1977

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The Secretary of State for External Affairs of Canada to the Ambassador of the United States of America

OTTAWA, March 29, 1979

No. FLA-937

His Excellency Thomas O. Enders,
Ambassador of the United States of America,
Ottawa

Excellency,

I have the honour to refer to your Note No. 229 of August 23, 1978 and the Memorandum of Arrangements on Great Lakes Pilotage annexed thereto, signed by the Minister of Transport of Canada and the Secretary of Transportation of the United States.

The Government of Canada accepts your proposal that the existing arrangements for the regulation of pilotage services on the Great Lakes be replaced by the Memorandum of Arrangements signed on January 17, 1977 by the United States Secretary of Transportation and on January 18, 1977 by the Minister of Transport of Canada.

Accordingly, I have the honour to state that the Government of Canada agrees that your Note, together with the Memorandum of Arrangements annexed thereto, and this reply, which is authentic in English and French, shall constitute an agreement between our two Governments on this matter which shall enter into force on the date of this reply with effect as from January 18, 1977. It is further understood that this Agreement shall supersede the Agreement effected by the Exchange of Notes of July 6, 1970 as amended by the Exchange of Notes of August 11, 1970.

Accept, Excellency, the renewed assurances of my highest consideration.

Don C. Jamieson

Secretary of State for External Affairs