Précis: The Federal Court dismissed a claim against the Canadian Coast Guard for loss of a vessel during a tow operation it organized.
Facts: The plaintiff brought a motion for summary trial against the defendant Canadian Coast Guard (“CCG”) for loss of his tug “Elf”, which sank on 17 January 2014 during a tow operation arranged by the CCG. Elf was 112 years old, unregistered, un-licenced and uninsured, and had also sank once before on 14 January 2014 (nb: liability for that sinking was rendered by the Court in 2018 FC 39 where it was determined the plaintiff was at fault) causing oil pollution. The tow operation called for three tow phases which would see Elf taken from Squamish to Shelter Island Marina. Phase I and II of the tow went as planned, and phase III commenced at approximately 4:15 am on 17 January 2014. Phase III was conducted Valley Towing Ltd. (“Valley”) and the tow vessel “Seatow”. One of the Seatow deckhands climbed onto the Elf, confirmed that the pump did not need to be used, untied Elf from the phase II towing vessel and secured Elf to the Seatow using a polyline, attaching portable lights to Elf’s port, starboard and stern side before returning to the Seatow. He then replaced the polyline with a bridle and winch tow. At this time the deckhand heard his on-board colleague say that the Elf was in trouble. The deckhand then re-boarded the Elf, turned on the pump, and noticed the stern deck was flooding. He retrieved the port and starboard light but for safety reasons did not retrieve the stern light and scrambled back onto the Seatow. The Elf sank minutes later at approximately 4:35 am on 17 January. The CCG did not consider raising the Elf due to the extreme financial cost of doing so and also determined that the estimated quantity of oil did not require deployment of further resources. The plaintiff claimed that CCG failed to ensure Elf was seaworthy before towing it, breached its bailment duties, was negligent, and that the defendant hampered the plaintiff’s evidence as it did not raise the Elf after the second sinking.
Decision Motion dismissed.
Held: The Court found that the CCG was acting under the legislative authourity of s. 180 of the Canada Shipping Act which did not create a bailment, but permitted the CCG to take Elf and do whatever it considered necessary to prevent further pollution damage. The plaintiff’s argument that he was unable to provide any evidence as a result of the CCG not re-floating the Elf after the second sinking was rejected by the Court. On the issue of seaworthiness, the Court found that a tug has a duty to ensure the tow is more or less ready to be towed but this duty does not extend to the seaworthiness of the tow. Conversely, if any duty was owed it would be that of the vessel owner to provide a seaworthy tow. The Court held that the CCG had taken reasonable steps to determine if Elf was ready to be towed and had no further duty to ensure the vessel was seaworthy, and as a result the CCG acted reasonable and with due diligence at all times after taking control of the Elf after the first sinking. Further, the Court found no evidence that Valley failed to exercise due diligence in providing a seaworthy tug to conduct the tow or that Elf’s sinking was caused by the lack of seaworthiness of the tug conducting the tow.