Précis: The court held the defendant owner liable for pollution clean up costs following the sinking of a tug, rejecting the owner’s allegation the sinking was due to the deliberate act of a third party.
Facts: The tug "Elf" sank on 14 January 2014 near Squamish, British Columbia causing pollution. The defendant tug owner was aware of the sinking but took no steps to raise the tug or to contain, minimize or clean up the pollution. Instead, he left it for Canadian Coast Guard to do these things. The tug was successfully raised and inspected by a surveyor and by a representative of the Coast Guard. Neither the surveyor nor the Coast Guard representative found any damage to the hull or the source of the water ingress that had caused the sinking. The tug was then towed to just off Port Atkinson where it was handed off to another tug. Shortly after the hand over the tug sank a second time in deep water. The expenses of the Canadian Coast Guard were paid by the Ship-source Oil Pollution Fund who then brought this subrogated action. and this application for summary judgement.
Decision: Judgement for the plaintiff.
Held: The main defence of the defendant is that the first sinking was caused by the act or omission of a third party done with intent to cause damage. The evidence relied upon in support of this third party involvement is that, when the tug was raised after the first sinking, the door was torn off its hinges and a padlock was missing. The defendant argues that this is not an appropriate case for summary judgement because the second sinking has resulted in a loss of the only evidence that could substantiate their case of third party involvement. The defendant alleges there has been spoliation of evidence. However, spoliation requires that the evidence be intentionally destroyed and there is no evidence of such intention here. Moreover, the inspections done of the tug following its raising after the first sinking found no evidence of third party involvement and no indication the door was locked at the time of the sinking. The sinking was due to the unseaworthiness of the tug. The defendant has failed to raise a genuine issue for trial.