R. v. MV Marathassa, 2019 BCPC 13 (2019-02-07)
Facts: On 8 April 2015 the newly built M/V Marathassa (the “vessel”) discharged fuel oil into the waters of English Bay, Vancouver. The vessel’s owners did not attorn to the jurisdiction of the Provincial Court and so this proceeding was against the vessel only. The vessel was charged with several strict liability environmental offences, which included a charge of discharging a pollutant into English Bay, a charge of discharging a substance harmful to migratory birds, and two charges of failing to implement its shipboard pollution emergency plan by failing to take samples of the fuel oil in the water and assist with the containment of the discharge of oil. The vessel ran a due diligence defence to the strict liability charges.
Decision: M/V Marathassa acquitted of all charges.
Held: Upon inspection by Transport Canada Inspectors, the cause of the fuel oil discharge was not readily apparent. Eyewitness testimony revealed that there was fuel oil visible around the M/V Marathassa from around 16:30 on 8 April 2015 and into the next day. A marine diver retained by the M/V Marathassa conducted his own investigation, from which it was deduced that there was a significant amount of fuel oil in a passage compartment which was connected to an overboard discharge pipe normally used to discharge non-toxic fluids from the vessel. Fuel oil should not have been able to travel from the pipe passage compartment to the discharge pipe under normal operating conditions. The Court held that the cause of the discharge was not foreseeable to the crew or Transport Canada until after the marine diver conducted his investigation and reported to the Chief Engineer, that oil may have leaked through a defective valve and towards the discharge pipe. The defect in the value was caused by loose or missing bolts which housed fuel alarm sensors on the inside of the pipe passage compartment. Fuel oil could be seen around the housings of the sensors and seeming from the fuel tank.
The Court found that the flag, classification society, design and construction of the ship were all of the highest standard, and the M/V Marathassa was built to include pollution prevention equipment not required by international convention. The Court further found that the crew of the M/V Marathassa had the required certification, training and sea service, as well as ISM codes in place at the time of the leak. Crew familiarization was noted by the Court, which met and exceeded the industry standard. On the whole, the evidence clearly established that the crew were properly trained to operate the vessel and underwent constant testing and monitoring to ensure their duties in accordance with industry standards. Fuel oil soundings were validly relied upon by the Captain and Chief Engineer and were not indicative that any fuel oil was missing from the vessel. All bunkering operations were conducted according to the ISM Manual, and all alarms were investigated and reported by the crew as required. While the Court inferred that the pipe passage alarm may have been operating sporadically, it was not foreseeable to the owner or crew that the alarm should have sounded since the crew regularly tested all the alarms throughout the voyage to Vancouver. In the Court’s own words, “the hazards of improperly installed alarms and of debris in a valve were simply not foreseeable” given that the M/V Marathassa was a new ship.
The Court applied the R v. Syncrude  ABPC 229 factors to conduct a reasonable care analysis, reasoning that since the vessel was built by the one of the highest ranking shipbuilding communities in the world, chose a flag state with high standards and safety requirements, classed the vessel with high ranking surveyors (who inspected and approved the design of the vessel), designed a safety management system that passed external audit, met and exceeded statutory requirements for pollution prevention, retained crew members who were familiar with the safety systems and ISM manual, had a crewing agency verify the training certificates and sea service of all the crew, had an established process for bunkering operations, had a process for sounding contained areas, had a process for watching pollution during cargo control washing exercises and a process for watching for pollution in general by deck watch which was recorded in the official log book, the M/V Marathassa took all reasonable steps to avoid the fuel spill on 8 April 2015. For the charge of failing to follow the Ship Oil Pollution Plan under s. 188 of the Canada Shipping Act, 2001, the Court found that the Crown had not proved beyond a reasonable doubt that the M/v Marathassa did not take reasonable steps to assist with the containment of spilled oil.