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 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.