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:
On the first issue the Court held that the Plaintiff’s statutory cause of action against the "owner" was time barred by subsection 677(10). Subsection 677(10) provides for a limitation period of 3 years from the date of the damage and 6 years from the date of the "occurrence" that caused the damage. The Plaintiff argued that these limitation periods did not apply because the claim was for "preventative measures" rather than pollution damage. In the alternative, the Plaintiff argued that since the claim was for "preventative measures" the word "occurrence" as used in subsection 677(10) should be interpreted as meaning the taking of "preventative measures" or the time when the Plaintiff first had reasonable grounds for believing such measures were necessary. The Court rejected the Plaintiff’s arguments and held that the word "occurrence" could only mean the sinking of the barge. In result the Plaintiff’s statutory action against the "owner" was time barred.
On the issue of whether the action in tort against the "owner" was time barred, the owner relied on section 681 of the Canada Shipping Act (which provides that the owner of a "Convention ship" is not liable for the matters referred to in subsection 677(1). The Court, however, noted that there was doubt as to whether the "Irving Whale" continued to be a "Convention ship" as the owner had abandoned ownership after the sinking. The further Court noted that the torts of negligence and nuisance may be of a continuing nature and that there was an absence of evidence on the motion as to the nature of the torts and when they may have been committed. The Court therefore allowed the Plaintiffs actions in negligence and nuisance to continue.
The third issue, whether Part XVI had retroactive effect, arose because Part XVI was not enacted until well after the sinking. The enacting legislation provided that it should apply to claims for expenses "regardless of the time of the occurrence that gave rise to the damage, loss, cost or expenses. The Court held that these words indicated a clear intent that the legislation should be applied retroactively.
The two remaining issues of whether the statutory claims against the Ship Source Oil Pollution Fund and the International Oil Pollution Compensation Fund 1971 were time barred were resolved against the Plaintiff. The Court held that these claims were time barred.