Other Practice Topics - Case Summaries
The database contains 35 case summaries relating to Other Practice Topics. 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.
Please note that to facilitate easier browsing and indentification of a relevant case on small devices, we have truncated the summaries which requires you to click "more" to view a full summary. If you wish to view these summaries without truncation, click here
Cabotage - Coasting Trade - Marine Activities of a Commercial Nature
Global Marine Systems Ltd. v. Canada (Transport), 2020 FC 414
Précis: The standby activities of a foreign flagged vessel while in a Canadian port were marine activities of a commercial nature and a violation of domestic cabotage legislation.
Facts: The operator of the cable laying vessel Cable Innovator sought judicial review of an email dated 20 June 2019 from Transport Canada in which the operator was informed that the Cable Innovator required a Coasting Trade Licence while it was on standby duties in Victoria, British Columbia. The vessel was under a long-term contract to repair various subsea cables along the west coast of North America within 24 hours of notification. When it was not out at sea repairing cables, the vessel was on standby in Victoria but less than 3% of the vessel's work was within Canadian waters.
The 20 June 2019 email from Transport Canada indicated that the standby activities of the vessel were "marine activities of a commercial nature" as those words are used in the Coasting Trade Act. Accordingly, the Cable Innovator needed a coasting trade licence to continue its operations in Canada.
Decision: Application for judicial review dismissed.
Held: The 20 June 2019 email was amenable to judicial review as it was a final, un-reviewable decision made by Transport Canada that was administrative action having a direct effect on the rights of the operator of the vessel. The Court then turned to whether Transport Canada's decision was reasonable, which was a matter of statutory construction by reading the words "marine activity of a commercial nature" in their ordinary and grammatical sense. The operators argued that the ordinary meaning of "marine activity" did not include being on standby, which was a "static activity" that did not accomplish a purpose. Transport Canada argued that the standby services were inextricably linked to the vessel's repair service as it must be prepared to respond at all times. The Court held that the vessel was not mothballed with a skeleton crew while on standby in Victoria, but rather fully manned in a 24/7 state of preparedness. Accordingly, the decision of Transport Canada to interpret the standby work as a marine activity of a commercial nature under the Coasting Trade Act was not unreasonable.
Definition of Navigable Water - Navigable Waters - Part of an Aqueous Highway - Riparian - Enactment
Blackwell v. Genier, 2020 ONSC 1170
Précis: The definition of "navigable waters" in the Canadian Navigable Waters Act replaces the common law navigability test that the water must be part of an aqueous highway.
Summary not yet available.
Security clearance — Port Worker — Stare Decisis
Canadian Maritime Workers Council v. Canada (Attorney General), 2020 FC 177
Précis: The Federal Court rejected Charter arguments against the power of the Minister of Transport to issue security certificates for those employed in security-sensitive positions at Ports in Canada.
Facts: The applicant argued that ss. 509 and 510 of the Marine Transportation Security Regulations (the “Regulations”) violated ss. 2, 7 and 15 of the Charter of Rights and Freedoms. Part 5 of the Regulations provides a broad power for the Minister of Transport to grant or cancel security certificates for workers in security-sensitive positions at ports in Canada. Certificates are issued after background checks which require worker information such as name, date of birth, gender, height, weight eye colour, place of birth, citizenship or permanent residence status, passport number, previous employers, post-secondary institutions and travel outside of Canada and the USA for more than 90 days. Based on that information, the Minister determines whether the port worker is a security risk to marine transportation. If the Minister is of the opinion that information is verifiable and reliable and there is sufficient verifiable and reliable information to determine that the applicant does not pose a risk to the security of maritime transportation, the Minister may grant a security clearance. This also includes the Minister’s consideration of the applicant’s association with members of a terrorist group or crime organization and whether there are reasonable grounds to suspect that the applicant may be suborned to commit an act or assist or abet any person to commit an act that might constitute a risk to marine transportation security. It was argued that the Regulations grant the Minister too much discretion and infringe upon the Charter rights of those applying for security clearance.
Decision: Application dismissed; s. 1 analysis not necessary.
Held: With respect to the s. 2(d) freedom of association argument, the Court noted that this argument was raised in the Federal Court of Appeal in Reference re Marine Transportation Security Regulations 2009 FCA 234 (“Reference”) where it was held that innocent associations would “not normally warrant the denial of a security clearance” since applicants may be interviewed to “assuage the Minister’s concerns”, and therefore there was no new legal issue raised by the applicant’s argument on this ground. In respect of the s. 7 Charter challenge, the Court found that the same argument was heard in the Reference decision, where the Federal Court of Appeal rejected that argument as s. 7 “would not cover any potentially adverse impact that a refusal of security clearance might have on an employee’s employment”. As such the doctrine of vertical stare decisis required the Court to apply the settled precedent. On the s. 15 Charter argument, the Court rejected the applicant’s argument that the Regulations create a disadvantage for port workers who have relatives or a spouse convicted of a crime. The Court noted that the applicant’s argument falls at the first stage of the s. 15 analysis as the Regulations did not create a distinction on the basis of an enumerated or analogous ground, as the Regulations are concerned with the degree of proximity between a port worker and certain individuals or groups, and “degree of proximity” is not a protected ground under s. 15 of the Charter.
Maritime - Navigation - Shipping - Interjurisdictional immunity - Federal
Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58
Précis: The Supreme Court of Canada held that provincial law, and not Canadian maritime law, applied to a sale contract for marine engine parts.
Facts: In 2006 the respondent supplier sold to the appellant shipowner a marine crankshaft and bedplate for use in the appellant’s vessel. The crankshaft and bedplate were installed in the vessel in 2007 but in 2009 the crankshaft suffered catastrophic failure, attributed to improper torque applied to a stud during the installation in 2007. The contract for the sale was formed in Quebec, contained a choice of law clause that Quebec law governed the contract, and limited the appellant’s liability to €50,000. The validity of the limitation depended on whether the sale was governed by Canadian maritime law or the law of Quebec.
The first instance trial Judge held that the Civil Code of Quebec applied to the contract, which provides that a seller may not exclude or limit liability unless defects in the product are disclosed by the seller. In finding that while the dispute was related to maritime activity but was not integrally connected to navigation and shipping, the trial Judge held that the limitation of liability clause was unenforceable and the supplier was liable for the full cost of the loss.
On appeal, the Quebec Court of Appeal found that the trial Judge failed to consider s.22(2)(m) and (n) of the Federal Courts Act which relates to claims in respect of materials supplied to a ship and claims arising out of a contract for repair or equipping of the ship. The clear language of s. 22(2) and jurisprudence of the Supreme Court of Canada and the Federal Courts have recognized that construction, repair or equipping of a ship are integrally connected to navigation and shipping. Accordingly, the Court of Appeal found that Canadian maritime law governed the dispute, and not the law of Quebec. The shipowner then appealed to the Supreme Court of Canada.
Decision: 6:3 majority ruled the law of Quebec governs the dispute; supplier cannot limit liability.
Held: Canadian maritime law is a body of federal law that is uniform throughout Canada, most of it being non-statutory. It is a body of law with a distinct identity akin to the commonlaw. Any claim that is integrally connected to maritime or admiralty matters under s. 91(10) of the Constitution Act 1867 is governed by Canadian maritime law. The Court found that the sale of marine engine parts for use on a commercial vessel is sufficiently and integrally connected to navigation and shipping under s. 91(10) of the Constitution Act so that it validly applies to the contract. The Civil Code of Quebec also applies to the claim as it is a validly enacted law that in pith and substance relates to property and civil rights under s. 92(13) of the Constitution Act. This presents a double aspect in which matters can be regulated by both a provincial power and a federal power. Unless either interjurisdictional immunity or federal paramountcy applies, the valid provincial law will apply despite the incidental effects on a federal power. The Court found no precedent suggesting the contractual issues engaged the core of the federal competence over navigation and shipping, or that the core of navigation and shipping could or should encompass contractual issues related to the sale of marine engine parts for use on a commercial vessel. As such interjurisdictional immunity did not apply. The Court then found that the doctrine of federal paramountcy did not apply as Canadian maritime law is non-statutory and, based on the Court’s own ruling in Ryan Estate, such non-statutory law cannot be paramount to valid provincial legislation. The Civil Code of Quebec is operative and governs the dispute.
Cargo - Multimodal - Leg - Ocean - Terminal - Germany
Iamgold Corporation v. Hapag-Lloyd Ag, 2019 FC 1514
Précis: The Federal Court found that a loss of cargo on the road leg of the carriage was subject to the limitation of liability applicable to road carriage under German law.
Facts: In this case the Court was asked to decide a question of German law to determine the defendant carrier’s quantum for loss of the plaintiffs’ cargo. The defendant issued a sea waybill for the transport of cargo in four containers from Montreal to the Netherlands via the Port of Antwerp. The cargo would be transported from Antwerp to the Netherlands by a truck. The cargo arrived at Antwerp but three of the containers were released to an unauthorized truck driver who provided the proper PIN numbers for the containers. The weight of the cargo that was stolen was 66,266kg. At issue was whether the provisions of the sea waybill which incorporated the Hague Visby Rules applied to the loss, or whether the Contract for the International Carriage of Goods by Road (“CMR”) applied. Both regimes use Special Drawing Rights to quantify liability, with 2 SDR per Kg under Hague Visby and 8.33 SDR per Kg under the CMR. The applicable limitation regime governing the loss depended on whether the loss occurred during ocean carriage or road carriage.
Decision: Loss occurred on road leg; limitation of liability is 8.33 SDR.
Held: The Court was to decide the state of the applicable German law as a matter of fact based on the expert reports of German lawyers filed by the parties and German case law supporting those expert opinions. Based on the German case law which considers whether the risk that materialized and caused the loss is inherent in or associated with a particular leg, the Court found that the releasing of the cargo by the Port to the truck upon production of the correct PIN was an activity attributable to road transport.
Maritime Jurisdiction - Third-Party - Bill of Lading
Elroumi v. Shenzhen Top China Imp & Exp Co. Ltd., 2019 FCA 281
Précis: The Federal Court of Appeal affirmed that claims against road carriers were not claims under Canadian maritime law.
Facts: The appellant appealed the decision of the Federal Court which held that it lacked jurisdiction to hear claims against road and rail carriers which were other contracts of carriage not part of the bills of lading. The appellant also sought to add the ocean carrier CMA CGM as third party.
Decision: Appeal Dismissed
Held: The Court upheld the lower Court’s decision on the basis that claim did not satisfy the Supreme Court of Canada's tripartite test as set out in ITO-Int’l Terminal Operators v. Miida Electronics. Specifically, the Court held that the underlying action was not within the jurisdiction of the Federal Court because, “A claim against a local road transporter or an operator of a warehouse distant from an ocean port is not a claim under Canadian maritime law.” The road transporter, therefore, is bound by provincial law.
Environmental Assessment Process — Fish Mortality — Documents — Disclosure — Records
R. v. DP World Prince Rupert Inc., 2019 BCPC 302
Précis: The BC Provincial Court allowed an application in part for production of documents from government and third party sources relating to the approval of a marine terminal expansion and work related thereto.
Facts: The defendants brought an application for the order for inspection and production of all records in possession of DFO relating to authorization of the Prince Rupert Fairview Terminal Phase II Northern Expansion (the “Project”) and the federal assessment process under the Canadian Environmental Assessment Act 1992 from March 2008 through to 31 December 2013. The defendants/applicants also sought production of records in possession of DFO relating to the Fisheries Act authorization from 1 January 2014 to 5 November 2014. The types of documents requested included notes and memoranda, reports and articles, policies, notes to file, presentations, telephone and email calls between DFO staff. The underlying charges stemmed from marine dredging of intertidal and subtidal habitat for the Project which resulted in the death of some fish, an offence under s. 35(1) of the Fisheries Act. Although the defendants received an authorization to undertake the Project, that authorization did not explicitly allow for the killing of fish. It was contended by the defendants that DFO had considered the expected impact of potential fish mortality in granting the authorization. As such the defendants sought these documents to assist the Court in interpreting the authorization and whatever DFO examined for making its determination of the same.
Decision: Application allowed, in part.
Held: It was ultimately agreed by all parties that the application must meet the test for disclosure as was laid down in R v. O’Connor  4 S.C.R. 411 and therefore it was held an applicant seeking third party disclosure must show by evidence or information that the documents sought will likely be relevant to a material issue at trial. Based on the Court’s review of the application for disclosure it was held that the defendant Port was in possession of many, if not all, of the documents that range from 1 March 2008 to 31 December 2013. It was further held that it was “pure speculation” that DFO possessed documents connecting the statutory amendments with the Project in any way. The Court agreed with the defendants that documents in DFO’s possession would have considered fish mortality but held that the defendant Port was already in possession of such documents and did not satisfy the test for third party disclosure application. The application for production of all records in DFO possession from 1 January 2015 to 5 November 2014 was denied as DFO’s sworn, unchallenged evidence was that such records did not influence the authorization process. However, the co-accused’s application was granted and production of March 2008 to December 2013 records in possession of DFO was ordered.
Discovery - Sufficiency of Produced Documents
JB Laverdure inc v. Mediterranean Shipping Company, 2019 QCCQ 6232
Précis: The Court of Quebec held that two objections to questions at discovery by a defendant shipper were valid and that the shipper had produced all documents in its power and control arising from the requests at discovery.
Facts: This matter dealt with objections to requests made at discovery and the sufficiency of documents received subsequent to discovery. The plaintiff contracted with the defendant shipper for the transport of limes from Brazil to Montreal. When the shipments arrived the limes were found in a damaged condition, forcing the plaintiff to sell at a loss of about $49,000.00 CAD. At the examination of the defendant representative, counsel for the defendant objected to two requests made by counsel for plaintiff. Those requests were: i) provide the average time for a vessel to sail from Brazil to Montreal; ii) provide the plaintiff with a copy of any correspondence the defendant representative exchanged with the people from the plaintiff business regarding the TTNUA361348 container. The Court was also asked to rule on the sufficiency of the documents produced, which were: i) documents submitted to the port for lading; ii) the loading schedule of the ship transporting the limes; iii) temperature readings taken at the port of embarkation; iv) copies of the confirmation of sale, purchase of sale orders of the discounted lime sales; v) documents relating to whether the draft bill of lading was sent for approval by the defendant; and vi) evidence that the shipper and consignee released the original bills of lading.
Decision: Objections maintained; produced documents sufficient.
Held: The Court examined the objections and produced documents and made individual rulings on each of them. The Court found the objection relating to average vessel sailing time was well founded as a requested document must exist at the time the request is made, and the party requesting the document must first establish that the document exists and then identify it. There was no evidence the defendant had such a document in its possession. On the second objection, the Court upheld the objection as without establishing the document exists/is identified any request for production would be equivalent to a blind search. In respect of the produced documents, the Court found the defendant had produced all documents in its possession and control relating to the requests, and that if other documents existed, they were in the possession of third parties, could not be produced by the defendant, or outside the responsibility of the defendant and therefore not in its possession or control.
Vessel — Invoices — Payment — Additional Work — Email
Nirint Inc. (Nirint Canada) v. Mega Throphy Ltd, 2019 FC 1015
Précis: The Federal Court held a vessel's owner liable to reimburse a ship's agent for charges it personally guaranteed and paid as a result of a failed Port State Control inspection and subsequent corrective work.
Facts: the plaintiff was ship’s agent for the vessel “Seren” and her owners while the vessel was in Canada and sought recovery of costs from the owners it paid out for work rendered to the vessel to correct deficiencies after the vessel failed a Port State Control inspection in November 2016 at the Port of Quebec. The work was completed in late December and the plaintiff personally guaranteed and paid the invoices relating to this work, including additional work rendered to the vessel without the approval or knowledge of the plaintiff or the vessel’s owners by Groupe Ocean Inc. (“Groupe”). Upon the plaintiff invoicing the owners for the additional work on 21 December 2016, the owners requested justification for the charges related to the additional work, ultimately requesting the assistance of the vessel’s P&I correspondent. On 22 December the vessel was served with a detention order from the Port and a warrant for arrest for unpaid supplier’s accounts. On 23 December the P&I correspondent contacted the plaintiff and said that Groupe’s invoices showed payment terms of 30 days and that the charges for the additional work were not immediately due and payable, so that Groupe should not be taking any action, and suggested the vessel sail as planned later that day so that the owners could sort out the disputed invoices in the coming weeks. The plaintiff secured release of the vessel that afternoon by arranging payment or guaranteeing payment to all creditors, with the exception of Groupe. Groupe then, at 3:30 pm on 23 December, threatened arrest unless it obtained a guarantee that the plaintiff would pay in full its invoices, including the disputed invoices. After a phone call from the owners, and by confirmation email at 4:24 pm that same day the owners instructed the plaintiff to take necessary and needful action for the vessel’s release and departure in order to prevent any further delay. The plaintiff ultimately agreed to guarantee Groupe’s invoices and confirmed discontinuance of the arrest proceedings. The vessel sailed from the Port in the late afternoon hours of 23 December, avoiding delay which would have been caused by the impending Christmas holidays that would have seen the vessel unable to depart from the Port until 28 December.
Decision: Judgment awarded for the plaintiff.
Held: The Court found the owners expressly instructed the plaintiff to effect payment of Groupe Ocean’s invoices, which was entirely dispositive of the owner’s liability to reimburse the plaintiff for expenses incurred. As ship’s agent, its duty in the circumstances was to take reasonable steps to protect the owner’s interests, and it was reasonable for the plaintiff to guarantee payment of the invoices to stave off the arrest. The plaintiff was not negligent and did not cause the owner’s damage by failing to raise the 30 day payment terms with Groupe or its lawyer. The Court found that the plaintiff carried out its mandate by paying the invoices for the additional work and collect and provide the owners with the documents to support the charges, which owners did not question or establish that the additional work was not preformed, unnecessary or excessive in cost.
Boat - Helm - Ordinary mariner - Sailboat - Vessel
Diep v. Wuolle, 2019 BCCRT 541
Précis: The B.C. Civil Resolution Tribunal dismissed a claim for damages for repair of a sailboat that struck some rocks.
Facts: The applicant claimed the respondent crashed the applicant's sailboat into rocks on a voyage while bringing the sailboat into British Columbia. Both parties were on the sailboat at the time of the crash and had discussed the intended route and were assisted by GPS. At 23:00 when the applicant was below deck and respondent at the helm, the sailboat crashed into rocks. It was contended by the applicant that the respondent had complete control over the sailboat and was accompanying the applicant on the voyage due to his sailing experience, and ignored the intended route.
Decision: Claims dismissed.
Held: The evidence did not show the respondent ignored the intended route or that he intended to have complete control of the sailboat. Negligence was also not proven by the evidence, as the standard of care under maritime law was judged according to the standards of the ordinary mariner judged by reference to the situation as it reasonably appeared to them at the time, and not in hindsight. Further, no information of tides or their effect on the sailboat were available to the parties before the voyage, so the nature of the tide was not determinative of what reasonably appeared to the respondent at the time of the crash.
Marina - Mooring buoys - Decision-maker - Application
Trainor-Degirolamo v. British Columbia , 2019 BCSC 430
Précis: The British Columbia Supreme Court dismissed a challenge of the approval of a licence of occupation for a private marina.
Facts: This was a judicial review of the Defendant/Respondent Ministry’s decision to grant a licence of occupation over aquatic Crown land in 2018. In 2004 the local Council passed a resolution permitting the Defendant Strata to build a marina on Quarry Bay on Okanagan Lake. That resolution stipulated a policy that South Bay, a neighbouring area, would be closed to vessels and moorage buoys. The Quarry Bay marina was not built with a breakwater that the local Council had required the marina to be, and the marina was destroyed by a storm in 2010. In 2011, the Defendant Strata submitted an application and management plan for a 72 slip marina in South Bay (the “First Application”), citing that the wind direction at Quarry Bay was not suitable for moorage. In the interim, the Defendant Strata began installing moorage buoys in both Quarry Bay and South Bay, all of which were authorized by the federal Minister of Transport. The Defendant Ministry denied the First Application, on the basis that the Quarry Bay marina was not built according to the Council standards, and that the resolution had a policy of no South Bay marina development. As the number of mooring buoys increased to over 90 by 2015, it was mutually agreed that the mooring buoys were creating a hazard to safe navigation. This resulted in a second application to the Defendant Ministry in 2015 for a marina at South Bay (the “Second Application”). The Second Application received the support from the local Council, federal and provincial government agencies (D.F.O./Ministry of Environment) , and was ultimately approved in 2017 for a twenty year term.
The Plaintiff/Petitioners challenged the decision approving the Second Application, stating that the First Application decision should stand. The Petitioners challenged on grounds that the approval of the marina in South Bay was unreasonable, the Respondent ministry sub-delegated or fettered its discretion in approving the Second Application, and that the principles of procedural fairness were not complied with in making the decision.
Decision: Petition dismissed.
Held: The Court applied the Dunsmuir standard of reasonableness to the Respondent Ministry’s decision. In doing so, the Court found that the decision to depart from the First Application decision and reasons for doing so were within the range of acceptable outcomes, given that the decision was made in consideration of different studies, the protection of the environment, local government zoning and Indigenous consultation. The decision and reasons for the decision were transparent, justified and intelligible.
The Court rejected the Petitioner’s argument that the Respondent Ministry fettered its discretion by approving the Second Application based on the Council’s decision to permit moorage in South Bay. On the evidentiary record before it, the Court found that the decision to approve the Second Application was made in light of extensive reports, provincial and federal government approval, and were therefore not made solely on the basis of the Council’s approval.
The Court also rejected the Petitioner’s argument that the Respondent Ministry failed in their duty of procedural fairness. It was clear to the Court that the Petitioners were involved throughout the approval process, had communication with the Ministry’s representatives, the opportunity to make submissions to the Council and also have specific questions answered by the Ministry. While noting that the approval of the Second Application may have impacted some individuals, the Court held the duty of procedural fairness was adequately complied with.
TSB Report - Request for Information - Passenger Eyewitnesses - Refusal to Comply with Notice
Mackenzie v. Canada (Transportation Safety Board), 2019 FCA 39
Précis: The Federal Court of Appeal held a notice requesting information of passengers on board a vessel that touched bottom was a reasonable use of the TSB's statutory powers.
Facts: The appellant sought to challenge the respondent’s request for information via notice (the “Notice”) relating to passengers on board a vessel when that vessel touched bottom in 2017. The respondent made this request under statutory authourity to investigate a marine occurrence under the Canadian Transportation Accident and Safety Board Act, 1989, c. 3. The appellant contended that the Federal Court erred in finding the information requested was relevant to the investigation, that the Court below failed to find the Notice was authorized by the investigating officer, and that the Court below failed to find the respondent had the relevant information as requested by the Notice.
Decision: appeal dismissed.
Held: The Federal Court of Appeal saw no merit in the case before it. The respondent issued the Notice in accordance with its mandate to advance transportation safety. In issuing the Notice, the information sought to be obtained formed part of the legitimate effort to obtain pertinent information regarding the marine occurrence. The Court below properly concluded the Notice was a reasonable use of the statutory powers available to the Respondent in discharging its legal mandate. No further issue was found by the appeal Court with respect to the authorizing officer or his geographical location. Further, the appellant was expected to have the information requested so there was no basis for this court to intervene.
Shipbuilder Defects - Due Diligence Defence - Discharge of Fuel Oil -
R. v. M/V Marathassa, 2019 BCPC 13
Précis: The Provincial Court of British Columbia acquitted the defendant ship of all charges in relation to a discharge of oil from the ship in April 2015.
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.
Vessel Registry - Ownership - SSOPF - Sale and Transfer of Ownership - Third Party Legal Owner
Canada (Ship-Source Oil Pollution Fund) v. Dr. Jim Halvorson Medical Services Ltd., 2019 FC 35
Précis: The Federal Court held that the registered defendant owner was not liable for oil spill clean up costs as it was not the the legal owner of the vessel at the time of sinking.
Facts: On 27 September 2014 the barge Crown Forest 84-6 sank near Zeballos, British Columbia, leaking fuel and other contaminants into the surrounding waters. The Canadian Coast Guard responded to the spill, and total clean up costs came to $67,348.81. The Coast Guard presented its expenses to the Administrator of the Ship Source Oil Pollution Fund and a total of $71,698.27 was reimbursed, inclusive of interest. The Administrator then sought to recover the cost from the Crown Forest's registered owner, the defendant Dr. Jim Halvorson Medical Services Ltd., and Dr. Halvorson in his personal capacity as the Administrator sought to pierce the corporate veil. A third party was also joined to the action.
In September 2012, the defendant had sold the vessel to the third party defendant for $1, under an "Intent to Purchase" document. That document provided that "upon payment of the purchase price the purchasers shall have possession of the asset and bear legal responsibility for the asset". Upon completion of the sale, neither the defendant nor the third party had registered the barge in the third party's name with the Canadian Register of Vessels. As such, the vessel continued to be registered in the name of the defendant medical company.
Decision: Action dismissed. The third party was the legal owner of the vessel at the time of sinking, and the defendant medical company is not liable to the Administrator for the clean up costs.
Held: The Court began by noting s. 75 of the Marine Liability Act defines "owner" as "the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use". Importantly, the court found nothing in s. 75 ties ownership of a vessel to the registration of title in the Canadian Register of Vessels. The Court went on to note the statutory provisions under s. 46(2) of the Canada Shipping Act which impose an obligation on an owner to ensure that a vessel is registered (if not a pleasure craft, wholly owned by qualified persons and not registered), as well as s.58(1)(b) which states the authorized representative of a Canadian vessel is required within 30 days after a change in ownership of the vessel to notify the Chief Registrar of that change. Importantly, however, the Court found that the Canada Shipping Act does not set out any formalities that must be complied with before title to a vessel will pass to a new owner. The Court went on to hold that while the Canada Shipping Act does address the consequences that flow from the failure to register a change in ownership of a vessel, it does not provide that the registered owner of a vessel remains liable for pollution damages under the Marine Liability Act after a vessel has been sold to a third party.
The cornerstone of the Courts' reasons are worth reciting in full:
 Importantly, there is no suggestion in either the Canada Shipping Act, 2001, or the Regulations enacted thereunder, that title to a vessel will not pass to a purchaser if the transaction is not registered in the Canadian Register of Vessels. Nor is there any suggestion in the Act (or in the Marine Liability Act for that matter) that a prior owner of a vessel will continue to be responsible for damages caused by the vessel as long as that individual or entity is recorded in the Register as the owner of the vessel.
The Court then turned to examine the conveyance of title to the vessel by the September 2012 transaction, which the Court decided in accordance with the law of contract. There was an offer to sell the vessel, the offer was accepted by the third party, and consideration was paid to the defendant vendor. Therefore, it was the third party and not the defendant who was the owner and had rights to possession and use after September 2012.
Vessel - Canoe - Impairment - Dangerous Operation Causing Death - Criminal Code
R v. Sillars, 2018 ONCJ 816
Précis: The Ontario Court of Justice held that the definition of "vessel" when used in ss. 253(1)(a), 253(1)(b) and 249(1)(b) of the Criminal Code is inclusive of a canoe.
Facts: This was a ruling on whether a canoe is included in the definition of “vessel” when used in sections 214 to 320.1 of the Criminal Code. The accused was charged with impaired operation of a vessel causing death, operating a vessel with over 80 mg of alcohol in 100 mg of blood, dangerous operation of a vessel and criminal negligence causing death. Crown and defence took different positions on whether canoe was within the definition of “vessel” for criminal offences. The Code defines vessel in s. 214 as “a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine”. Both counsel were in agreement -- and advised the Court -- that this was the first occasion in which the definition of “vessel” was to be litigated and decided. The Crown submitted that s.4(4) of the Code and s. 15(2)(b) of the Interpretation Act should be considered first to determine a word not defined in the Code, citing other Federal statutes in which “vessel” was defined which included the Canada Shipping Act, Navigation Protection Act, and the Public Harbours Port Facilities Act. Defence argued that since those other statutes were unrelated to criminal law, the definition of “vessel” should not be imported into the Code.
Decision: The Court found that the term “vessel” in s.253(1)(a), s. 251(b) and s.249(1)(b) of the Criminal Code includes a canoe.
Held: In reliance on s. 4(4) of the Code, the Court looked to other Federal statutes where the subject-matter was the same as that in the Code. In finding the subject-matter common to those statutes is the definition of “vessels” however propelled, the Court decided that a canoe fell within the term “vessel”. The Court agreed with Crown that the Code does not require other federal statutes to be related to criminal law to help define a term. The Court looked to the Hansard from 1961 which revealed that Parliament adopted offences from the Small Vessel Regulations and imported them into the Code, relying on the definition of “vessel” under the regulations, which included a canoe. A cross-jurisdictional analysis undertaken by the Court noted that the U.S. federal offence of “boating under the influence” pertained to all boats, ranging from canoes to the largest ships. The Court expressly rejected the defendant’s proposition that a person who is legally impaired and operating a vessel propelled by muscular power should not be punished for their conduct since it lacks the moral culpability to justify a criminal sanction.
Return of Vehicles to Canada - Jurisdiction to Order Return - Theft - Intervenor Status
Mercedes-Benz Financial Services Canada Corp. v. Maersk Line A/S, 2018 FC 1119
Précis: The Federal Court dismissed a motion for injunctive relief when the applicant failed to satisfy the legal test thereof.
Summary not yet available.
Stay - Jurisdiction - Rem Proceedings - Turbines - Vessel
OpenHydro Technology Canada Ltd. (Re) v. , 2018 NSSC 283
Précis: A provincial court may defer to the Federal Court to adjudicate existing in rem claims against a bankrupt.
Facts: While under Bankruptcy and Insolvency Act proceedings, on 23 October 2018 Openhydro requested that the BIA proceedings be converted to the Companies’ Creditors Arrangement Act with the issuance of an Initial Order and a Charging Order, seeking a 30 day stay of proceedings. The stay was opposed by creditors which had preexisting Federal Court actions against the Scotia Tide, a vessel owned by Openhydro, and an offshore turbine control center owned by Openhydro, on the ground that if there was to be a stay it should be decided by the Federal Court and not the Nova Scotia Supreme Court. Those opposed creditors did not object to the issuance of the Initial Order or Charging Order except with respect to the scope and application of the proposed stay of proceedings, which is part of the CCAA process to allow arrangement of the insolvent company to creditors.
Decision: Initial Order and Charging Order granted, subject to decision on the scope of the temporary stay.
Held: In reliance on the S.C.C. decisions of Holt Cargo Systems and Antwerp Bulkcarriers, the Court found that the Federal Court continues to have jurisdiction over the in rem claims advanced by the respondents, despite the on-going CCAA proceedings. In doing so, the Court looked at the decision in Sargeant III  BCSC 767 to reconcile CCAA proceedings with Federal Court actions, deciding that each court should exercise their respective jurisdictions cooperatively. Key to this was Federal Court in rem proceedings pre-dated the CCAA stay and Initial Order request. Accordingly, the Court found that the in rem proceedings were exempt from the stay created by the Initial Order and requested the Federal Court for aid and recognition.
Simplified Action - Default Judgment - Marine Engine - Interest
2955-9820 Québec Inc. v. Construction Navale Atlantique Inc., 2018 FC 1079
Précis: The Federal Court awarded default judgment for damages caused by a negligently designed and constructed marine engine when the defendant did not file and serve a statement of defence.
Facts: In this simplified action, the plaintiff sought default judgment and claimed for the cost to replace the motor in its vessel the “Tommy Francois”. Due to the alleged negligent design and construction of the engine’s muffler, the plaintiff alleged rain water entered and subsequently damaged the motor. Expert evidence was tendered that supported that allegation, specifically that the angle of the muffler was set at an incorrect angle leading to an ingress of rain water.
Decision: Judgment for the plaintiff.
Held: the judge found that the defendant was properly served and did not file a response within 30 days of being served. In default, the defendant was liable for the amount claimed. Interest was awarded at 5%, citing the decisions of the Federal Court in Adventurer Owner Ltd. and the Federal Court of Appeal in Platypus Marine Inc. v. Tatu (Ship).
Charters - Bunkers - Bankruptcy of OW Bunkers - Liens - Practice - Interpleader - Parole Evidence – Appeals - Standard of Review
Canpotex Shipping Services Limited v. Marine Petrobulk Ltd., 2015 FC 1108 2017 FCA 47
Précis: The Federal Court of Appeal held that the trial Judge erred in relying upon parole evidence when interpreting bunker supply contracts and further held that the error was sufficiently serious so as to constitute an error in principle justifying review to the standard of correctness.
Facts: Canpotex obtained bunkers from OW Bunkers (“OW”) for two foreign registered vessels that it chartered. The bunkers were actually supplied by the defendant, Marine Petrobulk (“MP”), a Canadian bunker supplier. MP invoiced OW for the bunkers and OW invoiced Canpotex. Before any of the invoices were paid, OW became insolvent and subsequently bankrupt. Pursuant to various court orders and agreements, any sums owing to OW were to be collected by ING, its receivers. MP and ING both claimed entitlement to payment of the amounts owing by Canpotex in respect of the bunkers supplied. Canpotex brought this action and, pursuant to a consent order made by the Prothonotary under Rule 108, deposited the amount owing into a trust account. Canpotex then brought this application for a declaration that the payment of the funds into trust extinguished its liabilities and any in rem claims against the vessels. MP and ING each brought their own applications for declarations that they were entitled to the funds. ING also opposed the relief requested by the plaintiff.
A critical issue was the relevant contractual documents that applied to the purchases. This issue arose because Canpotex and OW had negotiated a Fixed Price Agreement that included as Schedule 3 a set of terms and conditions. However, because market conditions were not favourable, no purchases were made by Canpotex under this agreement. Rather, the parties were agreed that all purchases made by Canpotex were “spot purchases” not subject to the Fixed Price Agreement. Nevertheless, Canpotex led evidence and argued that Schedule 3 of the Fixed Price Agreement was intended to and did apply to “spot purchases”. This issue was important because Schedule 3 to the Fixed Price Agreement provided that “where the physical supply of the fuel is being undertaken by a third party… these terms and conditions shall be varied accordingly”. In contrast, OW’s General Terms and Conditions, which were referred to in the bunker confirmations, provided that “where the physical supply of the Bunkers is being undertaken by a third party which insists that the Buyer is also bound by its own terms and conditions… these Terms and Conditions shall be varied accordingly”.
At first instance (2015 FC 1108), the motions Judge: (1) allowed the plaintiff's interpleader application; (2) ordered that the full amount of MP’s invoice be paid out of the funds held in trust; (3) ordered that the balance of the funds in trust be paid to OW/ING; and (4) declared that the in personam liability of the plaintiff and the in rem liability of the vessels would be extinguished upon the payments being made. In reaching this result, the motions Judge accepted the evidence of Mr. Ball of Canpotex that the purchases were subject to Schedule 3 of the Fixed Price Agreement. He further held that pursuant to Schedule 3 of the Fixed Price Agreement the terms and conditions were varied to include MP’s Standard Terms and Conditions. He then applied MP’s Standard Terms and Conditions and held that the plaintiff and OW were both customers of MP and were jointly and severally liable to pay it for the bunkers delivered. OW/ING appealed.
Decision: Appeal allowed. The matter is referred back to the Judge for reconsideration.
Held: Interpleader relief is available where “two or more persons make conflicting claims”. The claims must pertain to the same subject matter, must be mutually exclusive and must be such that the applicant faces an actual dilemma as to how he should act. The only claims here that are conflicting and can give rise to interpleader relief are the contractual claims of OW and MP. The assertion of a maritime lien against the vessels by MP under s. 139 of the Marine Liability Act is not a conflicting claim as it is a claim against the vessels and their owners not Canpotex. It was wrong for the trial Judge to extinguish the shipowners’ liability in relation to any s. 139 claim.
The Judge erred in considering Mr. Ball’s evidence which led him to err in concluding that Schedule 3 of the Fixed Price Agreement applied to the purchases at issue. There is nothing in the contractual documents to support his oral evidence. The trial Judge should not have used that oral evidence to replace or overwhelm the words used in the contractual documents. “The parole evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing.” In failing to follow the principles of contractual interpretation the Judge erred in law and, although errors of contractual interpretation are normally errors of mixed fact and law and not subject to a standard of correctness, this error constitutes an extricable error in principle and is subject to the standard of correctness. Therefore, this matter is referred back to the trial Judge for reconsideration.
Offshore Interiors Inc. v. Worldspan Marine Inc., 2016 FC 27 2016 FCA 307
Précis: The Federal Court will not require parties to litigate issues in another court. The priorities as between the builder and purchaser/mortgagee depend on the wording of the contractual documents.
Facts:Worldspan and Sargeant entered into a vessel construction agreement (“VCA”) for the construction of a yacht by Worldspan for Sargeant. Disputes arose during the course of construction which resulted in the vessel being arrested by Offshore, an unpaid supplier of materials and services. Various claims were filed against the vessel including claims by Sargeant and Worldspan. Sargeant claimed $20 million based on a builder’s mortgage granted to it by Worldspan to secure the advances made by Sargeant to Worldspan towards the construction of the vessel. Worldspan claimed $5 million in respect of amounts alleged to be due and owing to it by Sargeant and which it further alleged were secured by the VCA with a priority above the builder’s mortgage. The vessel was eventually sold by the Federal Court for $5 million, leaving a substantial shortfall. Meanwhile, a petition under the Companies Creditors’ Arrangement Act was filed by Worldspan and suits and countersuits were filed by Worldspan and Sargeant in the British Columbia Supreme Court.
At first instance (2016 FC 27), there were two motions before the Federal Court, one by Sargeant and another by Worldspan, both of which were dismissed. The motion by Sargeant was for an order that the in personam claims between it and Worldspan must proceed in the British Columbia Supreme Court leaving only the in rem claims to be addressed in the Federal Court. This motion was dismissed by the motions Judge on the grounds that Sargeant chose the Federal Court to adjudicate its in rem claims and that this must include the ability to address the underlying in personam liability. The motion by Worldspan was for an order that its claim for unpaid advances had priority over the builder’s mortgage claims. The motions Judge reviewed the various contract documents including section 12.1 of the VCA which provided that Sargeant’s first priority for advances was subordinate to “Builder’s right to receive payments pursuant to this Agreement”. Although Worldspan argued that this section created a condition that it be paid in full before Sargeant could exercise its mortgage security, the motions Judge held that this section merely gave Worldspan the right to deduct any amounts owed from the mortgage claim.
Worldspan appealed the dismissal of its motion.
Held: Although the appellant laid out a contractual interpretation that would support its appeal, the motions Judge adopted an equally plausible construction. There was evidence to support the construction adopted by the motions Judge and, therefore, there was no palpable and overriding error.