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 31 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.
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.
R. v. The "Argus",  N.B.J. No. 507
The ship "Argus" pleaded guilty to an accidental discharge of 3 to 5 barrels of oil into the waters of St. John harbour. The cause of the discharge was a crew member opening the wrong valve. The Court analyzed the various factors that should be taken into account in sentencing and ultimately ordered a fine of $23,000. An interesting issue in the case was whether the Crown could introduce evidence of prior convictions against ships in the same ownership as the "Argus". The Court held that the "offender" was the ship and not its owner and, therefore, prior convictions against sisterships were not admissible.