Gale Force (2013)

LOCATION: Comox, British Columbia

Case number: 120-680

The incident was reported to the Canadian Coast Guard (CCG) on October 9, 2013. The Gale Force, a derelict 61-foot wooden hull ex-fishing vessel built in 1940, was aground and discharging pollutants in the sensitive marine estuary at Comox, British Columbia. Coast Guard Environmental Response personnel were deployed from Victoria to assess the situation. Upon arrival, the vessel was found to be awash and surrounded by an oil sheen. The response personnel boarded the derelict and found fixed and portable containers of oil. The machinery space was awash with oily water. The engine and auxiliary generators were under water. Local beaches were checked and a light oil sheen was observed. First of all, personnel from the French Creek Coast Guard rescue station streamed a containment boom around the vessel to minimize further pollution damage. Coast Guard personnel spoke to a few local people, but the owner of the vessel could not be identified. Furthermore, the old vessel had been removed from the Transport Canada Vessel Registry.

Coast Guard decided to remove the vessel from its position, in order to deal with the pollution incident. On October 17, a local contractor, Sawchuck Pile Driving Ltd., was engaged to recover the Gale Force from the beach in Comox and deliver it to the shipyard of Saltair Marine Services Ltd. at Ladysmith. On October 22, the contractor mobilized a barge fitted with a 65-tonne crane to recover the vessel from the beach. The contractor applied temporary patches to the hull. At high tide, the vessel was dragged off the beach and towed to Ladysmith. Pumps had to be maintained during the tow. It was raised out of the water at Saltair Marine Services facility. When the vessel was hauled out, Coast Guard hired an independent marine surveyor of Coastal Marine Surveys to inspect the Gale Force, and provide a monetary value assessment. The technical surveyor concluded that the vessel had no value. It had been partially submerged in salt water for a number of weeks; therefore, the machinery would be worthless and the labour cost of salvaging the equipment would exceed any recovery value. The hull and keel had extensive damage and portions of the hull planking had sprung, straining the rest of the derelict. It was concluded that the cost to salvage any items and transport the contaminated materials to an approved environmental dump site would greatly exceed any salvage value.

The Coast Guard developed a Statement of Work for the removal of the waste oils and all the oil contaminated materials. The scope of the work was described for the demolition and disposal of the vessel. At this time, Public Works and Government Services Canada (PWGSC) was engaged to solicit bids from qualified contractors. Saltair Marine Services Ltd. was awarded the contract.

On April 25, 2014, the contractor, Saltair Marine Services Ltd. informed Coast Guard that the Provincial Ministry of Social Development had contacted them on behalf of the vessel owner, who was from the local First Nations Reserve. The inquiry was to determine the owner’s eligibility for social assistance and whether the vessel should be considered an asset. Coast Guard informed the Powell River office of the Ministry about the disposition of the Gale Force.

On August 14, 2015, less than two months short of the prescription two-year period laid down in the Marine Liability Act (MLA), the Administrator received a claim from Coast Guard, on behalf of the Department of Fisheries and Oceans, for costs and expenses in the amount of $54,169.48, pursuant to the MLA.

The Administrator commenced an investigation and assessment of the claim. The findings ascertained that there is adequate documentation and photographs to show that the old fishing vessel was aground causing oil pollution. It was discharging oil and would have very likely continued to discharge pollutants as it lay partially submerged near Comox harbour. The submitted material clearly substantiated that the measures taken by the contractors were in accordance with the PWGSC contract, which contained a comprehensive “Statement of Work”. The vessel was totally deconstructed to remove the pollutants, as a final measure to prevent any more discharge of oil into the sensitive marine environment. Throughout the operation, Coast Guard personnel assumed the role of On-Scene Commander to deal with the occurrence.

After completion of the investigation and assessment of the claim, the Administrator concluded that the amount of $51,382.12 was clearly established. Therefore on the basis of these findings, an offer was mailed to the Department of Fisheries and Oceans (DFO/CCG) on October 13, 2015, for the amount of $51,382.12, plus interest, as full and final settlement pursuant to the MLA. The Administrator explained that the amount of interest will be calculated upon receipt of acceptance of the offer. Enclosed with the offer was a Release and Subrogation Agreement to be executed on behalf of the Coast Guard.

The Administrator’s letter of October 13 also brought Coast Guard’s senior management attention to concerns about claims being filed near the very end of the prescription periods laid down in the MLA. It was pointed out that filing a claim long after the response to an incident has been completed entails certain risks. As previously discussed with Coast Guard officials, before the Administrator can offer compensation of a claim, he must satisfy himself that it has been established and that all costs and expenses that make up the claim are reasonable. This may be difficult long after the occurrence and the response operation has been completed, especially if the individuals involved in the response are no longer available to answer questions. Where the Administrator is unable to satisfy himself as to the reasonableness of the claim, or certain costs and expenses involved in the claim, he has no alternative but to disallow them. The Administrator also has the responsibility to take all reasonable measures to recover any payments out of the Ship-source Oil Pollution Fund from the shipowners, their insurers, or any other party that may bear responsibility for the occurrence. A recourse action will only be successful if the claim on which it is based has been thoroughly investigated and documented. Coast Guard management was, therefore, encouraged to submit their claims as quickly as possible.

On October 21, 2015, a letter of acceptance of the offer was received from the Coast Guard, but it did not include the executed Release and Subrogation Agreement. The reply noted that the Commissioner is considering options on how to proceed with respect to the Agreement. The Administrator responded that he will not proceed with the requisitioning of payment of this claim until he is in receipt of a duly executed Release and Subrogation Agreement.

In July of 2016, the Administrator authorized payment of the claim in the amount of $55,249.73 including interest to the Department of Fisheries and Oceans. The vessel was an unregistered derelict fishing vessel. During the assessment of recourse potential the Administrator determined that it was unlikely that successful recourse actions could be taken and in August of 2016 after full consideration closed the file.