Canada (Ship-Source Oil Pollution Fund) v. Dodds, 2019 FC 146 (2019-02-04)
Facts: The plaintiff brought this subrogated, summary trial action seeking judgment in the amount of $839,863.02 for, inter alia, minimizing and preventing pollution damage from the sinking and discharge of oil from the ship “Farley Mowatt” between 24 June 2015 and 5 August 2015. The plaintiff contended that under Part 6 of the Marine Liability Act, the defendant was at all times the unregistered owner of the ship. The defendant argued that access to the wharf where the ship was located was denied by the Port Authority, claiming that the Port Authority was the last person in immediate possession and control of the ship. The defendant did not file any affidavit evidence, with the plaintiff filing an affidavit with exhibits outlining the clean-up steps taken by the Canadian Coast Guard to contain the spill, and invoices for that work. A memorandum of fact and law was also filed by the plaintiff, which referenced Part 6 of the Marine Liability Act. The plaintiff relied on an earlier decision of the Federal Court which concerned the ship in question, where the defendant was named as owner of the ship. The plaintiff contended on that basis that the defendant was the owner of the ship at the time of sinking and pollution.
Decision Judgment for the plaintiff.
Held: The defendant made only oral submissions and tendered no evidence by way of affidavit, and did not provide any evidence to the contrary to refuse the amount claimed by the plaintiff. No cross examination of the affidavit evidence or exhibits was made by the defendant. The Court looked to Rule 483 of the Federal Court Rules which provides that arrest of a ship does not affect an owner’s responsibility for the ship nor possession of the ship. The Court then noted s.91 of the Marine Liability Act for the definition of “owner” and also s. 43 of the Canada Shipping Act to determine that the defendant was the owner of the ship. The Court then went on to consider whether there was a genuine issue for trial arising from the amount claimed by the plaintiff, holding that the plaintiff had shown there was no genuine issue for trial for the amount claimed.