Marine pollution is predominantly now governed by statute law but the common law can still have some application. The torts of nuisance, trespass and negligence and the Rylands v Fletcher doctrine still can have some application.
The main federal statutes that address pollution from ships are:
In addition, provincial pollution statutes may apply, although this is not clear.
Parts 8 and 9 of the Canada Shipping Act do a number of things. Specifically:
The Marine Liability Act does the following:
The Marine Liability Act will, at a future date, also enact and include the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010, concluded at London on April 30, 2010 (the "HNS convention"). The HNS Convention will be addressed in Part 6 of the MLA and included as Schedule 9 to the MLA. The HNS Convention establishes a civil liablity and compensation regime similar to the International Convention on Civil Liability for Oil Pollution Damage but in respect of hazardous and noxious substances. The shipowner's liability under the HNS Convnention is limited to 100 million Special Drawing Rights (SDR) for bulk HNS and 115 SDRs for packaged HNS. The HNS Convention is not yet in force internationally and is therfore not yet part of Canadian maritime law.
The Canadian Environmental Protection Act, 1999 is a comprehensive anti-pollution statute that is based upon the "polluter pays" principle. It creates an offence for, among other things, the disposal of pollutants at sea. The directors and officers, Master, Chief Engineer and ship owner are all required to take reasonable care to ensure compliance with the Act and are deemed to be party to and guilty of any offence. The maximum penalty is $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. In the event of a spill, any person who owns or has charge, management or control over the substance or causes or contributes to the spill is jointly and severally liable to pay clean-up costs and costs of restoring the environment. The defences under the Act are limited but a due diligence defence is available for some offences.
The Fisheries Act prohibits the deposit of a "deleterious substance" in waters frequented by fish and creates both civil and criminal liability for such a deposit. The offence is subject to a maximum penalty of $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. Civil liability is absolute and does not depend on negligence. There are again very limited defences.
The Migratory Birds Convention Act, 1994 prohibits the deposit of a substance that is harmful to migratory birds in waters frequented by migratory birds by any person or vessel and creates criminal liability for such a deposit. The offence is subject to a maximum penalty of $300,000 and/or imprisonment of 6 months if the Crown proceeds summarily or $1 million and/or imprisonment of 3 years if the Crown proceeds by indictment. Minimum fines of $500,000 and $100,000 are also created for vessels over 5000 tonnes. There is a due diligence defence available.
The database contains 21 case summaries relating to Pollution (Ship Source). The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
Facts: The “Clipper Adventurer”, a small cruise ship, ran aground in the Canadian Arctic on 27 August 2010 while en route from Port Epworth to Kugluktuk. The shoal had been the subject of Notice to Shipping A101/07 issued in September 2007 but it had not been marked on the applicable chart. The chart being used by the vessel had been issued by the Canadian Hydrographic Service on 30 May 1997 and had been updated/corrected with Notices to Mariners but not with Notices to Shipping. The Canadian Hydrographic Service had intended to replace the Notice to Shipping with a Notice to Mariners but due to an apparent miscommunication this was not done.
As a consequence of the grounding, a number of the vessel’s double-bottomed tanks were breached resulting in a small amount of pollution. The vessel was re-floated on 14 September 2010, underwent temporary repairs in Canada and then sailed to Poland for permanent repairs. The plaintiff, the owners of the “Clipper Adventurer”, commenced this action against the Crown for the Canadian dollar equivalent of approximately $US13.5 million alleging that the Canadian Coast Guard and Canadian Hydrographic Service had failed to properly warn mariners of the danger and were in breach of their SOLAS obligations to publish, disseminate and update nautical information. The Crown counter-claimed under the Marine Liability Act and the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 for the costs and expenses incurred to prevent, repair, remedy or minimize oil pollution damage in the amount of CDN$468,000.
Decision: The action by the owners of the “Clipper Adventurer” is dismissed. The counter-claim of the Crown is allowed.
Held: With respect to the claim of the owners against the Crown the issues are: (1) did the Crown have a duty to warn mariners of uncharted shoals; (2) if the Crown owed such a duty, did it discharge the duty through the issuance of the Notice to Shipping A101/07; and (3) did Canada breach its SOLAS obligations.
(1) While there is no duty of the Crown to seek out and chart unchartered shoals, the Canadian Coast Guard and Canadian Hydrographic Service were under a duty to warn mariners of the presence of the shoal once they became aware of its existence.
(2) The plaintiff argues that the issuance of the Notice to Shipping A101/07 was not sufficient to discharge the duty to warn imposed on the Crown. However, section 7 of the Charts and Nautical Publications Regulations, 1995 requires that Masters ensure all charts “are correct and up-to-date based on information that is contained in Notices to Mariners, Notices to Shipping and radio navigation warnings”. If a Master must navigate based on information contained in Notices to Shipping, it follows that the issuance of a Notice to Shipping is sufficient to discharge the duty to warn.
(3) With respect to the arguments that Canada was in breach of its SOLAS obligations, such a breach would not give rise to a cause of action. Canada’s signature on a treaty does not make the treaty part of domestic law. While a treaty can serve as a guideline, it cannot overcome a statute or regulation. SOLAS, Chapter V, Regulation 9 is not part of Canadian domestic law.
With respect to the counter-claim of the Crown, liability does not depend on proof of negligence. Pursuant to section 77(3) of the Marine Liability Act , to escape liability the shipowner must establish that the occurrence was wholly caused by the negligence or other wrongful act of a government authority. Thus, even if there was contributory negligence on the part of the Crown, the shipowner would still be liable in full.
Finally, although the plaintiff’s claim was not successful, any damages awarded to it would have been converted to Canadian dollars at the exchange rate in effect on the date of the breach/loss not the date of payment.
Note: An appeal of this matter (2018 FCA 34) was unsuccessful.The reasons of the Federal Court of Appeal have not yet been summarized.
Administrator of the Ship-Source Oil Pollution Fund v. Beasse, 2018 FC 39Précis: The court held the defendant owner liable for pollution clean up costs following the sinking of a tug, rejecting the owner's allegation the sinking was due to the deliberate act of a third party.
Not yet available.
R v. Alassia New Ships Management Inc., 2018 BCPC 5Précis: The court declared that service of a summons on the ship's Master was valid service on the accused operator of the ship.
Not yet available.
Facts: In April of 2015 oil allegedly spilled from the ship “Marathassa” while at anchor in English Bay, Vancouver. An Information was subsequently sworn laying charges under various statutes against the “Marathassa” and against the applicant, her manager. A summons to appear was purportedly served on the applicant by personal service on the Master of the “Afroessa”, another ship managed by the applicant. At a hearing before the Justice of the Peace, the Crown advised the Court that the applicant had been served with the summons. The presiding Justice of the Peace confirmed the service and adjourned the matter to a future date. The applicant did not formally appear at that hearing to contest the service as such an appearance would have been an attornment to the Court’s jurisdiction. Subsequent to the hearing, the applicant brought this application before the Supreme Court of British Columbia for an order of certiorari quashing the order of the Justice of the Peace and for an order of prohibition prohibiting the Provincial Court from proceeding with the charges against the applicant until it had been properly served.
Decision: The application is dismissed.
Held: The applicant has it head office in Athens, Greece and it is common ground that service outside Canada would not be effective. It is further common ground that the applicant could not appear before the Provincial Court to contest service without attorning to the court’s jurisdiction. It is also clear that the applicant can contest service by seeking the orders it does. However, certiorari is a remedy limited to cases where the tribunal has acted in excess of its statutory jurisdiction or in breach of the principles of natural justice. Certiorari is not available for mere errors of law. Similarly, an order of prohibition is also confined to jurisdictional errors. The applicant’s arguments that service on the Master of “Afroessa” was not service on the applicant relate to the merits of the decision of the Justice of the Peace and not to jurisdiction. The application therefore fails.
Comment: This decision was overturned on appeal (2018 BCCA 92). The appeal decision has not yet been summarized.
Administrator of the Ship-Source Oil Pollution Fund v. Wilson, 2017 FC 796Précis: The Federal Court granted default judgement to the Ship-Source Oil Pollution Fund against the owners of a barge for expenses incurred to clean up and mitigate pollution.
Facts: A barge was found adrift in high winds and in danger of sinking. The Canadian Coast Guard contacted one of the two owners of the barge about the situation, but the owner advised they were unable to rescue the barge. The Coast Guard retained a contractor to tow the barge to a safe moorage. The Coast Guard subsequently submitted a claim under the Marine Liability Act to the plaintiff, the Administrator of the Ship-Source Oil Pollution Fund, for the costs incurred to salvage the barge. The claim was accepted and paid by the plaintiff after a small reduction. The plaintiff then demanded payment of the amount paid to the Coast Guard from the defendant owners of the barge. The defendants refused to pay. The plaintiff then commenced this action. The defendants failed to appear. The plaintiff brought this ex parte motion for default judgment.
Decision: Default judgment granted.
Held: The defendants were properly served and as owners of the barge they are liable under s. 77 of the Marine Liability Act for the reasonable expenses incurred by the Canadian Coast Guard to prevent, repair, remedy or minimize the oil pollution associated with the barge.
Canada (Ship-Source Oil Pollution Fund) v. Canada, 2017 FC 530Précis: The court held that the Administrator of the Ship-source Pollution Fund does not have the right to require a claimant to execute a Release and Subrogation Agreement as a condition precedent to payment of their claim.
Facts: A vessel was reported to the Canadian Coast Guard as sinking and discharging oil. In response, the Coast Guard contained the pollution from the vessel and later raised and removed the wreck. The Coast Guard subsequently submitted its expenses relating to the pollution prevention and wreck removal to the Administrator of the Ship-Source Oil Pollution Fund pursuant to the provisions of Part 7 of the Marine Liability Act . The Administrator allowed a substantial portion of the claim but requested that the Coast Guard sign a Release and Subrogation Agreement before the claim was paid. The Coast Guard refused to sign the Agreement. The Administrator then brought this application for a determination as to whether it had the right to require a claimant to execute a Release and Subrogation Agreement as a condition precedent to payment of their claim.
Decision: The Administrator has no such right.
Held: Section 106 of the Marine Liability Act provides that once an offer from the Administrator has been accepted by a claimant, the Administrator must pay the claim “without delay”. Section 106 also addresses the release of claims and the rights of subrogation that flow upon payment. There is no requirement that a claimant execute a release or subrogation agreement.
Universal Sales Limited v. Edinburgh Assurance Co. Ltd., 2012 FC 418Précis: Underwriters were required to reimburse the assured for a settlement payment made in respect of an action for wreck removal costs.
The plaintiffs (the insureds) sought indemnity from the defendants (their insurers) for a settlement payment of $5 million made by them to the federal government related to the costs of raising the “Irving Whale”. The payment was made in settlement of a proceeding brought by the Crown for $42 million. The plaintiffs did not obtain the prior approval of their underwriters before making the settlement. The plaintiffs also claimed for sue and labour expenses of $3.6 million and defence costs of $1.8 million. The insurers denied coverage alleging the plaintiffs were not required to make the settlement payment and that there was no coverage under the policy.
Decision: Plaintiff awarded judgment, in part.
Held: With respect to the claim for sue and labour expenses, the trial Judge denied this claim on the basis that the expenses did not diminish or avert a loss under the policy. This was so because the estimated costs at the time the expenses were incurred were in excess of $21 million but the policy limit was only $5 million. Thus, the sue and labour expenses could not possibly have benefited the underwriter. With respect to the settlement payment, the trial Judge held that he was satisfied that the plaintiffs would have been held liable to the Crown in nuisance if the settlement payment had not been made. With respect to the claim for defence costs, the trial Judge was of the view that these should be apportioned between the plaintiffs and underwriters on the grounds that both benefited from these costs. He somewhat arbitrarily apportioned these defence costs 25% to underwriters and 75% to the plaintiffs.
R. v. Bolt, 2011 NLTD 20
In this matter the defendant pled guilty to two charges of depositing a deleterious substance into waters frequented by fish and failing to report a spill contrary to the Fisheries Act. The facts were that a quantity of diesel fuel was spilled into the harbour while the defendant was refuelling his vessel. He was fined $10,000 for the depositing charge and $5,000 for the failure to report. The defendant appealed the fines. The Appellate Court dismissed the appeal noting that it would only interfere with the sentence if it was clearly unreasonable or demonstrably unfit, neither of which had been shown.
FFS HK Ltd. v. P.T. 25 (Ship), 2010 BCSC 1675
The issue in this case was the apportionment of fault for a spill that occurred in Vancouver Harbour during a bunkering operation which cost the vessel owner approximately $1 million. The owner/plaintiff accepted it was partially at fault in that one of the crew left open the valves to one of the ship‟s tanks and the crew failed to monitor the tank after bunkering commenced. However, the owner alleged that the crew of the bunkering barge was also at fault in that bunkers were transferred at a higher rate than agreed and the barge crew also failed to monitor the quantity transferred to the ship. The Court found that a bunkering operation is a joint operation with shared responsibilities and that the agreed transfer rate was a critical component of the transfer operation which should not be deviated from by the barge without clear and explicit instructions from the vessel. The Court found as a fact that the barge increased the transfer rate beyond that agreed and did not accept the evidence of the barge that the vessel asked for an increased transfer rate through hand signals. The Court further found that the increase in the transfer rate was a contributing cause of the spill. The Court then reviewed the faults of the two parties and held that they were equally at fault.
R. v. M/V “Kathy L” et al., 2010 BCPC 30
This case concerned the sinking of a barge while it was being towed which resulted in escape of pollutants. Charges were laid against the owner of the barge as well as the towing company and the captain of the tug. The Court dismissed the charges against all defendants except for the owner of the barge. The Court found that the sinking was caused by unseaworthiness of the barge for which the owner was responsible. The unseaworthiness was not obvious to a casual observer and the Court rejected the arguments of the Crown that the tug captain should have done a more thorough inspection of the barge.
Canada v. Ship Source Oil Pollution Fund, 2008 FC 1094
This was an action by the Crown challenging the adequacy of an offer of compensation made by the Administrator of the Ship Source Oil Pollution Fund pursuant to the provisions of the Marine Liability Act. The Crown incurred costs in excess of $220,000 to clean and destroy an abandoned tugboat and applied to the Administrator of the Ship Source Oil Pollution Fund for reimbursement of this amount. The Administrator offered the Crown only $20,000, arguing that if the Crown had acted reasonably it would have and could have pumped the contaminants from the vessel years earlier. As a preliminary issue, the Court had to consider the appropriate standard of review of a decision of the Administrator and the scope of the appeal. The Court held that the standard was one of reasonableness rather than correctness and that the Court must not substitute its decision for that of the Administrator unless an unreasonable conclusion has been demonstrated. The Court next considered whether the Crown had been negligent and concluded that it had been negligent in waiting five years before exercising its statutory powers to clean and destroy the vessel. This delay increased the claim unnecessarily. The Court next considered whether the Administrator had breached the rules of procedural fairness by failing to provide the Crown with an expert report which apparently quantified the loss at $20,000. The Court held that the expert’s report should have been provided to the Crown. In result, the Court ordered the Administrator to provide the report to the Crown and ordered the Administrator to make a second offer of compensation after receiving and considering any comments by the Crown.
Newfoundland Recycling v. Her Majesty the Queen (Attorney General for Canada), 2008 NLTD 38
This was an appeal from a judgment finding the Appellant guilty of depositing a deleterious substance (oil) in water frequented by fish contrary to the Fisheries Act. The offence occurred when a vessel that the Appellant had been dismantling for salvage sank at the wharf. The Appellant argued, inter alia, that it was not the owner of the vessel. The Court held, however, that ownership was not determinative. Rather, it was control that mattered and the Court held the trial Judge correctly found the Appellant had control.
Canada v. Administrator of the Ship Source Oil Pollution Fund, 2007 FC 548
This was an action by the Crown challenging the adequacy of an offer of compensation made by the Administrator of the Ship Source Oil Pollution Fund pursuant to the provisions of the Marine Liability Act. The issue in this application was whether the named Respondent should be the Administrator or the Attorney General of Canada. The Court held that the Administrator was properly named as the Respondent.
R v. The “Tahkuna”, 2002 CanLII 54007
This was an appeal of sentence imposed by a Provincial Court Judge. The Defendant ship was charged under the Oil Pollution Prevention Regulations of the Canada Shipping Act. The charges stemmed from a spill of approximately 1,000 litres of fuel during refuelling operations. The cause of the spill was that a valve in the overflow line had been inadvertently left open. The spill affected 1,500 feet of shoreline and the clean up costs, which were paid by the shipowner, amounted to $65,000.00. Under these circumstances, the Trial Judge imposed a fine of $20,000.00. The shipowner appealed the fine to the Newfoundland Court of Appeal arguing that the fine far exceed the range customarily imposed for similar offences. The Court of Appeal noted that it could only intervene to vary a sentence imposed at trial if the Trial Judge committed “an error in principle” leading to a sentence that was “demonstrably unfit”. Upon reviewing the circumstances, the Court of Appeal found no such error in principle and dismissed the appeal.
R v. Glenshiel Towing Co. Ltd., 2001 BCCA 417
On December 16, 1997, the tug “Glenshiel” was found heeled over and submerged at her mooring in False Creek, Vancouver. As a result of the sinking a considerable amount of diesel fuel escaped from the vessel into the water and the owner was charged pursuant to s. 668 of the Canada Shipping Act with discharging a pollutant. At trial, the accused was acquitted on the grounds that the Crown had failed to prove sufficient evidence to support a conviction. On appeal, the Crown argued that all it needed to prove to support a conviction was that the pollutant emanated from the ship. The accused argued that it was incumbent on the Crown to prove that the accused caused the discharge. The Judge on appeal agreed with the accused holding that the Crown must prove some causal link between the accused and the discharge of the oil before liability will arise, at which point the onus shifts to the accused to prove due diligence. On further appeal, the Court of Appeal held that the offence was a strict liability offence which carries a conviction upon mere proof of the prescribed act. The Crown was not required to prove that an act or omission of the master or some other person on board the ship caused the discharge. All that is required is proof beyond a reasonable doubt that the discharge occurred. Thereafter, the onus shifts to the accused to prove that all due care was taken to avoid the discharge.
R v. The Point Vibert,  N.S.J No. 147
This is a rare case in which a ship was found not guilty for discharging a pollutant. The Court found that although the pollutant emanated from the ship the cause of the pollution was the failure of shore based personnel to stay at their posts. Specifically, the procedure set up for the fuelling operation was for the shore based personnel to operate the control valve as instructed by the crew. During the course of the fuelling operation it was apparent that the rate of flow was too great and the crew shouted to the person operating the valve to restrict the flow. However, that person had inexplicably left the valve unattended with the result that the fuel overflowed. Under the circumstances, the Court held that the discharge occurred as a result of events outside the control of the vessel or the crew.
Canada v. J.D. Irving Ltd.,  2 FC 346
This decision disposes of motions for summary judgement brought by the various Defendants. The matter arose out of the sinking of the "Irving Whale", a tank barge, on September 7, 1970, while under tow of the tug "Irving Maple" from Halifax, Nova Scotia to Bathurst, New Brunswick. At the time of the sinking she was loaded with 4,297 long tons of Bunker C fuel oil. Immediately after the sinking a quantity of oil was discharged from the barge and 32 kilometers of coast line was contaminated. Clean up operations continued until November, 1970. Thereafter, small quantities of oil intermittently leaked from the barge. The barge was kept under surveillance until 1994 when the Minister of Transport decided that the sunken barge should be raised to avoid an inevitable catastrophe. The barge was successfully raised on July 30, 1996, at a cost of $42,000,000.00. On July 29, 1997, the Government of Canada commenced this action to recover the costs of raising the barge. The action was commenced against the owners and charterers of the "Irving Whale" and "Irving Maple" and against the Ship Source Oil Pollution Fund and the International Oil Pollution Compensation Fund 1971. The action against the owners and charterers was based on the statutory liability of an "owner" imposed by 677(1) of the Canada Shipping Act and on the torts of negligence and nuisance. The actions against the Ship Source Oil Pollution Fund and the International Oil Pollution Compensation Fund 1971 was pursuant to Part XVI of the Canada Shipping Act.
The various Defendants brought motions for summary judgement. The significant issues were:
R. v. The Elm, (May 5, 1998) Nfld. Prov. Ct.
In this matter the "Elm", a lumber carrier, and her Master, Chief Engineer and Second Engineer were charged with various pollution offences. The charges arose when a Fisheries Surveillance aircraft observed an oil slick off the south coast of New Foundland on November 23, 1996. The slick was approximately 20 metres in width and 59 nautical miles long. The Fisheries aircraft followed the slick to the stern of the "Elm". The observers on the aircraft concluded that the oil was being discharged from the "Elm" even though they did not actually observe the discharge of pollutants from the ship. The ship vehemently denied the charges. The theory of the defence was that the slick had come from another vessel. Expert evidence was led indicating the course of the slick was slightly different from the course of the ship. Evidence was also led that the ship was well run and well equipped. The trial judge acknowledged that the facts raised a suspicion but acquitted the accused. In doing so the trial judge noted the absence of oil sample analysis that would have conclusively proven the oil slick had emanated from the "Elm".
Newfoundland Processing Ltd. v. The "South Angela",,  1 FC 154
The issue in this case was who was responsible for an oil spill that occurred at the Come By Chance Oil refinery. The spill resulted after the Defendant vessel had discharged its cargo of crude and was involved in a line draining process. The Court held that both the Plaintiff and Defendant were equally at fault. The Plaintiff was at fault in that the cause of the spill was a backflow from the refinery and there were no check valves in place which, although not required by law, would have made the Plaintiff aware of the backflow. The Defendant was at fault in that it had failed to close a valve which, if closed, would have prevented the backflow from entering the slop tank and overflowing into the sea. The Court further held that the contributory negligence of the Plaintiff was not a bar to recovery. In doing so the Court relied upon and adopted the reasoning of the Newfoundland Court of Appeal in Bow Valley (Husky) Bermuda v Saint John Shipbuilding Limited, (1995) 130 Nfld. & PEIR 92.
R. v. The "Front Climber",  N.B.J. No. 249, (N.B. Prov.Ct.)
The "Front Climber" pleaded guilty to a charge of pollution under the Canada Shipping Act. Approximately 25 to 30 litres of oil had been discharged in St. John harbour. The cause of the discharge was a failure to fully close a valve. The ship was fined $2,000. An interesting point in the case was whether the ship could be given an absolute or conditional discharge, in lieu of a fine. The Court held that the discharge provisions of the Criminal Code applied only to natural persons and were therefore not available to ships.