LOCATION: Yacht Club in Prince Rupert
Case number: 120-608
This claim involves the 37-foot fiberglass fishing vessel Mistann, which sank at the Yacht Club in Prince Rupert on Friday October 14, 2011. When the Canadian Coast Guard (CCG) received a report that the Mistann had sunk with approximately 1200 litres of diesel fuel and a quantity of lube oil on board, the local Environmental Response personnel attended and deployed a boom and absorbents to the upwelling of oil between individual dock fingers at the marina. The vessel owner was verbally informed of his responsibilities in regard to the sunken vessel by the attending CCG personnel. The owner replied that he did not have sufficient resources or insurance to respond as required. The owner was then advised that CCG would take command of the situation and hire a local contractor, Wainwright Marine Services, to recover the vessel.
Throughout the weekend, CCG Environmental Response staff minimized the impact of the marine pollution by maintaining containment boom, replacing soiled absorbent boom and pads and monitoring boating activities during the diver operations. A review of the contractor’s invoices indicates that two cranes and a winch equipped bulldozer were on the barge during the salvage operation. It was necessary to utilize two cranes in order to facilitate rigging of two lifting points on the sunken vessel from a depth of 100 feet of water. The Environment Canada weather report confirms that strong gusting winds to 30 knots were present during the recovery; the tidal tables confirm that tidal fluctuations were between 10 and 15 feet creating strong tidal currents. However, by late Monday afternoon the Mistann was brought to the surface but remained partially submerged and it was secured to the salvage barge. Shortly after midnight the vessel was refloated and taken to the Wainwright Marine shipyard for further assessment.
On December 9, 2011, CCG sent, by registered mail, a Notice of Intent to the vessel owner informing him of his responsibilities under the Marine Liability Act (MLA). The Notice advised that unless arrangements were made within 10 days for reimbursement of the Coast Guard costs and expenses, the Mistann would be put up for sale. The letter was returned to CCG as undelivered. Consequently, the Mistann was put up for sale in Prince Rupert. The highest bid of $1,200 was accepted by Coast Guard in January 2012. The CCG claim filed with the Fund was reduced by the equivalent amount of $1,200.
On April 26, 2012, the Administrator received a claim from Coast Guard made pursuant to the MLA. The claim totaled $113,787.48. The Administrator acknowledged receipt of the claim.
The Administrator commenced an investigation and assessment of the claim. On May 28, 2012, the Administrator instructed counsel to engage a technical marine surveyor to investigate whether all the expenses claimed could reasonably be characterized as pollution prevention, or whether some of them were, in essence, wreck removal. Subsequently, the surveyor reported that, diesel and lubricating oil were emanating from the fishing vessel Mistann up until the time it was refloated, consistent with hydrocarbons being displaced from internal machinery spaces and fuel tanks by seawater. The vessel had sunk in a recreational and commercial marina situated approximately 400 metres from a cruise ship dock. Approximately 540 litres of hydrocarbons and oily water were removed from the Mistann subsequent to it being refloated. The surveyor concluded that the course of action by the CCG was reasonable to minimize and remedy oil pollution emanating from the sunken vessel.
In light of the overall assessment, investigation and circumstances surrounding the incident, the Administrator found the amount of $100,462.51 to be established. Therefore on September 12, 2012, the Administrator made an offer of $100,462.51, plus interest, as full and final settlement pursuant to the MLA. DFO/CCG accepted the offer. On September 27, 2012, the Administrator directed payment of $103,428.74, inclusive of interest, in accordance with the MLA.
Given the amount of the claim, the Administrator instructed counsel to send a letter, on October 16, 2012, by registered mail, to the registered owner of the fishing vessel Mistann, requesting payment of the amount paid to the CCG. The vessel owner was informed that failing satisfactory arrangements being made to pay the outstanding balance owing, the Administrator may proceed with an action in the Federal Court to recover the balance owing. The letter was returned by Canada Post marked “moved/unknown” at that address.
In order to try and locate the registered owner and identify assets that may be available for recovery purposes, the Administrator obtained the services of a professional locator firm. The firm ascertained by a province-wide search that the vessel owner does not own any property in the Province of British Columbia. Furthermore, the owner is not a proprietor or partner of any provincial registered sole proprietorship, limited partnership, or general partnership. Nevertheless, on September 20, 2013, a Statement of Claim was served on the vessel owner at Port Edward near Prince Rupert. No Statement of Defence was filed by the defendant by the closing date.
On January 29, 2014, a default judgment against the defendant was issued by the Prothonotary of the Federal Court in Vancouver. The Court ordered that the defendant shall pay the Administrator of the Ship-source Oil Pollution Fund the amount of $103,428.74, plus $4,199.36 in interest incurred to January 24, 2014. Furthermore, the Defendant shall pay interest thereafter on the sum owing at a rate of $8.50 per day.
In 2016, the Administrator decided to proceed with legal action to seize the assets of the registered owner, with the intent that this action would prompt the owner to address the default judgment. In February, 2017, bailiffs from North Central Bailiffs Ltd, British Columbia commenced action on the advice of Counsel to seize and sell three vessels, generator sets and one vehicle. After costs, the Fund received $18,080.42 as partial recovery of the claim costs. The file remains open.