Notices to Shipping and Mariners

In  Canada v. Adventurer Owner Ltd., 2017 FC 105, Justice Sean Harrington of the Federal Court of Canada paid homage to the U.K.’s  Lord Denning, Master of the Rolls (*1), with the following opening to his judgment and reasons:

It was a beautiful summer’s eve in the Canadian Arctic. The sun was up and the seas in Coronation Gulf were calm. It was August 27, 2010, the day the Clipper Adventurer steamed full speed ahead onto an uncharted, submerged shoal. Thus a fourteen-day expedition cruise in the waters of Greenland and Canada ended on day 13 at 18:32 hrs local time at 67⁰ 58.26N, 112⁰ 40.3W. The Clipper Adventurer was in Nunavut en route from Port Epworth to Kugluktuk. Fortunately, not one of her 128 passengers and crew of 69 was injured. Over the next few days, the passengers and crew members not necessary for navigation were rescued by the Canadian Ice Breaker Amundsen, and brought to Kugluktuk.

The owners of the Clipper Adventurer sued the Canadian Government in the amount of U.S. $13,498,431.19 for the cost of temporary and permanent repairs, payment to the salvors, business interruption, and related matters. The basis of the claim was that Her Majesty, more particularly the Canadian Coast Guard and the Canadian Hydrographic Service, knew of the presence of the shoal, had a duty to warn, and failed to do so. Had a proper warning been issued, this casualty would not have occurred.

Her Majesty filed her own action against the ship and her owners in the amount of CDN $468,801.72 for costs and expenses incurred in respect of measures taken to prevent, repair, remedy or minimize pollution damage, the whole pursuant to various provisions of the Marine Liability Act and the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, appended thereto.

Her Majesty admitted that both the Canadian Coast Guard and the Canadian Hydrographic Service had known of the presence of the shoal some three years before the grounding. She denied that any duty was owed to the Clipper Adventurer to give warning. Nevertheless, warning was given both by means of a Notice to Shipping and by a Navigational Area Warning. The casualty was caused by the Clipper Adventurer’s failure to update Canadian Hydrographic Chart 7777.

Justice Harrington found that the sole cause of the casualty was the failure on the part of those interested in the Clipper Adventurer to maintain Canadian Hydrographic Chart 7777 up-to-date.

The evidence at trial established that the shoal was discovered September 13, 2007, by Captain Mark Taylor, Master of the Canadian icebreaker the Sir Wilfrid Laurier. Notices to Shipping are defined in the Collision Regulations as “an urgent release by the Department of Fisheries and Oceans to provide marine information”. Both the Canadian Coast Guard and the Canadian Hydrographic Service fall within the jurisdiction of “Fisheries and Oceans”. Both may issue Notices to Shipping, commonly referred to as NOTSHIPs. Captain Taylor reported the presence of the shoal to the Hydrographic Service and also personally caused Notice to Shipping A101/07 to be issued.

Justice Harrington reviewed many aspects of the way waters are charted in Canada. The case provides an excellent summary of this work in Canada. Justice Harrington noted (*2):

Most of the surveying done in the Arctic is opportunistic by nature. The Canadian Hydrographic Service does not have its own ice breaking capacity and so relies upon the Canadian Coast Guard. Less than ten percent of the vast Arctic waters have been surveyed to modern standards. The prime role of Canadian icebreakers during the short summer navigation season is, as the name implies, to act as icebreakers and to carry out search and rescue missions. Hydrographers are welcome aboard, but their surveys are not of the highest priority. For example, in 2008, a hydrographic team was on an icebreaker in Coronation Gulf. However, the icebreaker was called to other duties and so no exact survey of the shoal was carried out.

Justice Harrington noted the importance of Notices to Mariners(*3):

Notices to Mariners are well-known in Canada and internationally. They serve as a permanent update to a paper hydrographic chart. The Canadian Hydrographic Service maintains approximately 1,000 charts, and issues about 50 new charts yearly. It would be impracticable to issue a new chart every time an existing chart had to be updated, for instance to show the installation of a new light or, indeed, a recently discovered shoal. Chart 7777 was a high priority chart, meaning that every five years the Hydrographic Service would consider whether a new chart should be issued. The chart used by the Clipper Adventurer had been purchased by its agent, Marine Press of Canada. As printed by the Canadian Hydrographic Service, this was a new edition issued on May 30, 1997, and corrected by Notices to Mariners up to June 4, 2004. Marine Press itself corrected the chart through the last Notice to Mariners which was issued in 2008.

In Canada, all ships must have on board all Canadian charts and publications required by the Charts and Nautical Publications Regulations, 1995.

The case against Her Majesty was in negligence. The Crown Liability Act, SC 1952-53, c 30 imposes vicarious liability in respect of a tort committed by a Crown servant and in respect of a breach of duty pertaining to “the ownership, possession or control of property”. The Act was later amended and renamed the Crown Liability and Proceedings Act. The two principles enunciated above remain the same in the latter legislation.

Justice Harrington noted that the shoal was in no way owned or controlled by the Crown, and therefore liability must be founded upon s 3(b)(i) and s 10 of the Act which provides for Crown liability in respect of a tort committed by a servant of the Crown as long as the act or omission of that servant would have given rise to a cause of action against that servant.

The claimant submitted that that, having learned of the presence of the shoal, any number of Crown servants in the employ of the Canadian Hydrographic Service or the Canadian Coast Guard owed a duty to give warning to the Clipper Adventurer. The issuance of NOTSHIP A102/07 almost three years before the grounding, when it was admitted the Clipper Adventurer was not within radio range, was akin to no notice at all. To find NOTSHIP A102/07 was to search for a needle in a haystack.

The claimant further submitted that even allowing for the fact that the report of the shoal was not based on professional hydrographic standards, a Temporary and Preliminary Notices to Mariners (“NOTMAR”) should have been issued. The Clipper Adventurer would have been on the lookout.

Canada’s failure to issue a NOTMAR was claimed to constitute a violation of international law. Canada has signed on to the International Convention for the Safety of Life at Sea, 1974 (SOLAS) and is a member of both the International Maritime Organization and the International Hydrographic Organization. SOLAS recognizes NOTMARs but not NOTSHIPs.

Justice Harrington concluded that while there was no duty on the part of any Crown servant to seek out and discover uncharted shoals, once the shoal has been discovered, the Crown servants were under a duty to warn mariners of the presence of a shoal, and that there are no policy considerations to negate that duty.

Section 7 of the Charts and Nautical Publications Regulations, 1995 provides:

The master of a ship shall ensure that the charts, documents and publications required by these Regulations are, before being used for navigation, correct and up-to-date, based on information that is contained in the Notices to Mariners, Notices to Shipping or radio navigational warnings.

Justice Harrington was of the view that if a master must navigate based on information contained in Notices to Shipping, it follows that the issuance of a Notice to Shipping discharges the Crown’s duty to warn. He repeated his conclusion that the casualty was caused by the negligence on the part of the Clipper Adventurer noting:

The plaintiff emphasizes that radio communication in the Arctic may be difficult, and that the Clipper Adventurer was not required to be fitted with the Internet. It beggars belief, however, that all Coast Guard systems would have been down for an extended period of time. Even if they were, which I do not for a moment accept, as Captain Grankvist stated that Internet reception was excellent in Greenland, and the ship had no difficulty in making her daily positioning reports to MCTS, had Officer Mora, under the supervision of Captain Grankvist, taken serious note of the publications with which he was required to be familiar, he would have known perfectly well that there were written NOTSHIPs, and that if he could not get them by visiting the Canadian Coast Guard website, all he had to do was call MCTS Iqaluit. Indeed, he could have called the ship managers in Miami. As it was, this nonchalant attitude put the lives of close to 200 souls at risk.

The owners’ managers, International Shipping Partners Inc., of Miami, are not blameless either. Vice-President, Nick Inglis, was perfectly aware that Canada issued NOTSHIPs and that copies thereof were not provided to the fleet by Marine Press of Canada. Yet, Captain Grankvist and Mr. Mora were left to their own devices. The printed Passage Plan Appraisal sheets that the managers furnished referred to NAVAREA warnings, but not to NOTSHIPs. Furthermore, had there been any difficulty on the part of the Clipper Adventurer in communicating with MCTS Iqaluit, and no such evidence has been led, the Clipper Adventurer was also fitted with what is called Iridium, which is not part of the international safety system. Had the ship been having difficulty in obtaining NOTSHIPs, she could have sent the managers a message over Iridium. However, as Mr. Inglis stated, “but if they didn’t know there was a problem, they wouldn’t be able to call me and say ‘we have a problem’.”

Justice Harrington also dealt with Crown’s claim for damages for the costs and expenses incurred by the Minister of Fisheries and Oceans in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage. Justice Harrington noted that section 77(3) of the Marine Liability Act provides that liability does not depend on proof of negligence. To escape liability, the shipowner must establish that the occurrence resulted from an act of war, hostilities, insurrection, act of God, deliberate act or omission by a third party with intent to cause damage, or wholly caused by the negligence or other wrongful act of a government authority. “Thus, if there were divided responsibility, and I think this is an either/or situation, the shipowner would still be liable in full notwithstanding any contributory negligence on the part of the Crown.” (*4)

The Clipper was found liable to the Crown for the $445,361.64 plus interest plus costs.

Endnotes

(*1) Lord Denning was an English judge who served on the Court of Appeal in England as Master of the Rolls for twenty years. He was noted for his bold judgments running counter to the law at the time. In 1947, he decided Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 (known as the 'High Trees' case), which was a milestone in English contract law. It resurrected the principle of promissory estoppel. In his cases he referred to the parties by name in his judgments rather than as "plaintiff" and "defendant" and used short sentences and a "storytelling" style of speech. In Beswick v. Beswick [1968] AC 58 his judgment started: “Old Peter Beswick was a coal merchant in Eccles, Lancashire. He had no business premises. All he had was a lorry, scales, and weights. He used to take the lorry to the yard of the National Coal Board, where he bagged coal and took it round to his customers in the neighbourhood. His nephew, John Joseph Beswick, helped him in his business. In March 1962, old Peter Beswick and his wife were both over 70. He had had his leg amputated and was not in good health. The nephew was anxious to get hold of the business before the old man died. So they went to a solicitor, Mr. Ashcroft, who drew up an agreement for them.”

(*2) Paragraph 30

(*3) Paragraph 33

(*4) Paragraph 105