Canadian Underwriter

Cruise ship owner learns importance of paying attention to government notices

December 19, 2017   by Jason Contant, Online Editor

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The sole cause of a cruise ship accident off the coast of northern Canada was the failure of its owners to keep a hydrographic chart up-to-date, the Federal Court of Canada has found.

The court decision makes it clear the onus is on the master of a ship sailing in Canadian waters to ensure that the ship’s charts, documents and publications required by Canadian regulations are correct and up-to-date, including information contained in the Government of Canada’s Notices to Mariners, Notices to Shipping or radio navigational warnings.

On Aug. 27, 2010, the Clipper Adventurer “steamed full speed ahead onto an uncharted, submerged shoal… in the waters of Greenland and Canada,” striking the shoal with such force that more than half of its length became firmly embedded, according to the decision, released in January of this year.

The owners of the ship sued the federal government for US$13.5 million for the cost of temporary and permanent repairs, payment to a salvage company, business interruption and other matters. The shipowners argued that the Canadian Coast Guard and Canadian Hydrographic Service knew of the presence of shoal, had a duty to warn and failed to do so.

The federal government denied liability and countersued for nearly $469,000 for costs and expenses related to “measures taken to prevent, repair, remedy or minimize pollution damage.” In Canada v. Adventurer Owner Ltd, the Federal Court dismissed the ship owner’s suit and upheld the federal government’s costs for pollution cleanup.

Borden Ladner Gervais LLP (BLG) noted in a post on Dec. 13 on CanLII Connects that a Notice to Shipping (NOTSHIP) was issued and broadcast via radio for two weeks when the shoal was discovered in 2007.

The captain who had discovered the shoal returned to the area with a team of hydrographers in 2009 to more accurately map the feature. But rather than issue another NOTSHIP, the captain decided to turn the original notice into a Notice to Mariners, which serve as permanent updates to paper hydrographic charts (compared to a NOTSHIP, which is only available electronically).

“Unfortunately, the Notice [to Mariners] was not issued until after the Clipper Adventurer’s grounding,” the federal court found. Even so, the ship owner would still have received the 2007 notice.

BLG noted that Canadian mariners are required under the Charts and Nautical Publications Regulations to have onboard and in use all Canadian charts and publications. Importantly, Section 7 of the regulations requires these materials to be up-to-date based on, among other things, information contained in NOTSHIPs.

The court held that various Crown servants in the employ of the Canadian Coast Guard and Canadian Hydrographic Service had a duty to warn mariners about the shoal once it had been discovered.

“However, the Crown in this case had discharged that duty,” the BLG post said. “The court reasoned that if mariners have a reciprocal duty to update their charts on the basis of NOTSHIPs, issuing a NOTSHIP must discharge the Crown’s duty. Even where a ship’s crew and owners are not familiar with Canadian waters or the Canadian notice system, the legal obligation to consult NOTSHIPs and Notices to Mariners exists. Ignorance of the law is no excuse.”

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