Introduction

While it is not uncommon for a shipowner to sue a party that caused the sinking of a vessel, it may be difficult for a shipowner who is a defendant in the legal proceedings to raise a defence that the wrongdoing should be attributed to an unknown third party.  In Administrator of the Ship-Source Oil Pollution Fund v Beasse, 2018 FC 39, the Canadian Court was invited to determine whether the shipowner should be liable for the expenses incurred in cleaning up the pollution caused by the sinking of its vessel under the relevant statute.  The Court considered that the bare allegation of the shipowner that there was a third party involved was entirely unattractive. 

Facts

In that case, the tugboat, “Elf” (the “Tug”), sank on January 2014 and caused pollution.  The Canadian Coast Guard (“CCG”) responded to deal with the cleaning-up of the oil spill.  While it is beyond dispute that the pollution was caused by the sinking of the Tug, the defendant, owner of the Tug, raised the defence that the small aft door (the “Aft Door”) to the superstructure on the Tug was torn off and thus there must be a third party broke into the Tug causing the sinking.  However, the owner also admitted that the mere removal of the Aft Door by itself would not have caused the sinking of the Tug. 

Both CCG’s and the owner’s agents had inspected the hull of the Tug before and after the Tug was raised but could not find any reason causing the sinking of the Tug.  The Aft Door was also undamaged except for one hinge. 

The Legal Issues

The plaintiff, who incurred expenses in cleaning-up the pollution, submitted that the case was appropriate for summary trial, i.e. there is no genuine issue for trial or there is sufficient evidence to decide the matter(s) immediately without going through further civil procedures in the Court.  Given that the Marine Liability Act, SC 2001 of Canada imposes strict liability in such a scenario, the only way the owner could escape from liability was to establish that the sinking was caused by the deliberate action of a third party.  More importantly, the onus is on the owner of the Tug to prove his defence of third-party responsibility.

However, the only evidence which the owner of the Tug could provide was the fact that when the Tug was raised, the Aft Door was torn off its hinges and a pad lock was allegedly missing, and thus there must have been sabotage by a third party.  The owner also alleged that if he was allowed to inspect the Tug in a proper manner, he would be able to discover the evidence showing that the sinking was caused by third party and thus the sinking of the Tug was not spontaneous as alleged by the CCG.  For the purpose of resisting the plaintiff from seeking a summary judgment and determination of the liability at the early stage of the proceedings, Counsel acting for the owner also tactically contended that any remedy available to the plaintiff must be determined after a full trial, so that the trial judge would have the opportunity to consider all of the facts and fashion the most appropriate response.

The Court disagreed with the owner’s submissions.  In particular, it was found that none of the parties involving in the cleaning-up process had discovered any evidence of any deliberate act by any third party causing damage to the Tug.  In respect of the Aft Door, it was further found that the superstructure around the Aft Door opening was severely rotted and the Aft Door was not locked at the time of the sinking.  Further, expert opinion reveals that the Aft Door was broken off during the sinking itself, either by the air pressure being forced out of the superstructure, or the water rushing into the superstructure. 

In view of the circumstances and the lack of evidence submitted by the owner of the Tug, the Court held that the owner was liable for the pollution clean-up as there was no evidence whatsoever to support a finding of third-party involvement to justify a defence of third party liability.  A summary judgment was therefore given against the owner.

Conclusion

Under the law, seeking a summary trial does impose a relatively high hurdle for a plaintiff.  In the case discussed above, we can see that the Court would not accept a bare allegation of an involvement of an unknown third party and it would not have sufficient bearing on the determination of the liability of a shipowner who is alleged to have caused pollution to the sea.  In order to raise a defence of third party liability, shipowners have the burden to provide sufficient evidence to support their defence, and they cannot simply adopt an entirely speculative approach and invite the Court to accept their defence based on their speculation. 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.