By Kiley Sampson and K. Joseph Spears
On January 27 2017, Mr. Justice Shawn Harrington of the Federal Court handed down an interesting decision that examined potential liability of the government of Canada involving the grounding of adventure cruise vessel M/V Clipper Adventurer which ran aground on an “uncharted rock” in Coronation Gulf in the Canadian Arctic on August 27, 2010. Before his appointment to the bench, the judge was an experienced admiralty law practitioner. This article will examine both the findings of the Transportation Safety Board of Canada (TSB) and the Federal Court decision with respect to liability of the vessel owner. The grounding, and the subsequent TSB Marine Investigation and Federal Court decision are of interest to students of Arctic shipping. The grounding provides an insight into issues with respect to government of Canada’s obligations to provide Arctic shipping infrastructure and hydrographic charting, and the liability of vessel owners. It has been said that litigation is “an expensive way to learn.” This was a costly learning lesson.
The expedition vessel, a frequent visitor to the Arctic, plowed into the shoal at 13 knots and was on its own for two days before help arrived in the form of the Canadian Coast Guard research icebreaker Amundsen, which was close by and was able to take 128 passengers off the vessel. The vessel carried a crew of 69. The seas were relatively calm and the grounding resulted in very little marine pollution damage. Following mobilization of four salvage vessels into the region, the vessel was refloated on September 14, 2010, and subsequently towed to Poland for repairs. The cost of temporary and permanent repairs, payment to the salvors, business interruption, and related matters resulted in damages of US$13.5 million. The Canadian Coast Guard incurred costs of $445,000 in marine pollution response, as it stood by the casualty in support of its obligations to monitor the marine pollution response under the Arctic Waters Pollution Prevention Act and Canada Shipping Act, 2001. Icebreaker CCG Wilfred Laurier provided the vessel platform for this monitoring. The Crown did not advance a marine salvage claim.
The Transportation Safety Board of Canada (TSB) investigated the grounding and issued a Marine Casualty Investigation report which can be found at www.bst-tsb.gc.ca/eng/rapports-reports/marine/2010/m10h0006/m10h0006.asp . It is worthwhile reading for any Arctic shipping practitioner. It is important to remember that the TSB does not apportion blame but looks at causes and contributing factors of a marine incident under its enabling legislation, embodied in section 14 of the Canadian Transportation Accident Investigation and Safety Board Act (S.C. 1989, c. 3.). The TSB will prepare findings and make recommendations to help prevent future incidents. Its findings are based on its investigators’ marine investigation who examined both the vessel’s actions, as well as the actions of the government of Canada. In this case, it examined how Canada provided accurate Arctic hydrographic information. Below are some of the relevant findings of the TSB concerning this incident from the report released on April 26, 2012:
Finding as to risk
The practice of CHS [Canadian Hydrographic Service] Central and Arctic [Region] not to issue and apply chart corrections using Position Approximate and Position Doubtful symbols increases the risk that mariners will not be aware of known hazards when they do not obtain the applicable NOTSHIPs.[Notice to Shipping].
When NOTSHIPs are no longer broadcast, vessels operating in Canadian Arctic waters can only obtain the information on written NOTSHIPs by specific requests to MCTS [Canadian Coast Guard Marine Communications and Traffic Centre] or by accessing the CCG website which, in areas with unreliable Internet connectivity, may limit the mariner’s awareness of known hazards.
When receiving sailing plan reports and providing routing advice to vessels, NORDREG [Canadian Coast Guard Arctic Advisory Service] does not proactively advise vessels about active NOTSHIPs for the areas that they will be transiting, which may place vessels at increased risk if they have not obtained the information by other means.
The term Notice to Shipping is not used outside Canada, whereas the terms Local Warning and Navigational Warning are more widely used and recognized by foreign crews.
On 4 September 2008, the passenger vessel Akademik Ioffe transited southbound to Port Epworth following the same line of soundings. The bridge team was also not aware of NOTSHIP A102/07.
To mitigate the confusion caused by potentially outdated information that may or may not have been communicated to or received by vessels operating in Arctic waters, the TSB sent out a Marine Safety Advisory normally issued only when a safety deficiency is found during a marine investigation. Such an Advisory contains critical safety information that needs to be conveyed immediately to operators of vessels that are immediately impacted by the relevant safety issue.
On 16 June 2011, the TSB issued Marine Safety Advisory No. 02/11 to the Canadian Coast Guard (CCG) of the Department of Fisheries and Oceans (DFO) advising it of the importance of ensuring that vessels transiting the Arctic are provided with Notices to Shipping relevant to the routes they intend to follow.
The TSB report made the following findings which are not binding on the subsequent Court decision, but are relevant. It stated:
The shoal had originally been discovered and reported in September 2007 by a CCG vessel with a recognized ability to survey in these waters. Although the bridge team possessed up–to–date charts, the charts did not indicate the existence of the shoal. Although this shoal had not yet been surveyed, International and Canadian hydrographic standards provide a process where reasonably reliable reports of hazards to navigation are incorporated through published chart corrections by NOTMAR [Notice to Mariners] prior to an official survey. These chart corrections include the designations Position Approximate (PA) and Position Doubtful (PD), which are internationally used and understood. The TSB expressed concern that CHS Central and Arctic did not follow these standards and practices of putting these designations on its charts.
The vessel owners brought an action against the Crown for the loss they suffered because of the Government of Canada did not warn of the “uncharted rock”. After a trial on this issue, the decision of the Federal Court of Canada rendered its decision, which can be found at www.canlii.org/en/ca/fct/doc/2017/2017fc105/2017fc105.html . Mr. Justice Harrington found as a matter of Canadian maritime law that the obligation rested solely on the vessel for updating the charts and there was no obligation on the government of Canada to provide this information to the vessel in a proactive manner and it was therefore not liable for the loss suffered to the vessel. In other words, the Court found there was no duty to warn, as follows:
 In my opinion, 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.
And, the Court used strong language against the action of the ship’s officers. The court stated:
 Captain Grankvist and Mr. Mora did not know they had a problem because they had not properly prepared for the voyage. They were under a legal obligation to update Chart 7777 to take into account NOTSHIPs and failed to do so. They should have made it their business to make sure that all NOTSHIPs were on hand, and consulted. They did not.
The Court found:
 … Had Officer Mora … 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 [notices to shipping], and that if he could not get them by visiting the Canadian Coast Guard website, all he had to do was call MCTS Iqaluit … As it was, this nonchalant attitude put the lives of close to 200 souls at risk.
It is unclear whether or not any evidence was called to ascertain that Canadian Coast Guard’s MCTS centre at Iqaluit had the relevant NOTSHIP, if had been requested.
 While it would have been preferable to have had more fulsome communication between Clipper Adventurer and MCTS Iqaluit, the shortcoming lies with the ship. The Coast Guard station MCTS was under no duty to take the initiative to warn Clipper Adventurer of the presence of the shoal. It did not know which route would be taken. It may have been different if Clipper Adventurer had asked for, but was given misinformation.
An appeal has been filed on this matter in the Federal Court of Appeal, so this is not the final word on the subject and a more in depth analysis be made of this decision in an upcoming issue of Canadian Sailings.
Only 10 to 12 per cent of the Canadian Arctic has been charted to modern hydrographic standards. Vessels are free to transit through waters without any permission or prescribed voyage planning by the government of Canada and can navigate freely throughout Canadian Arctic waters subject to ice navigation requirements. It is important to remember that, unlike navigation in Canadian West Coast waters and portions of the Atlantic and Gulf of St. Lawrence and St. Lawrence River, there is no compulsory pilotage regime in the Canadian Arctic. The master of the vessel had been to the Arctic 60 times and, although it is not clear from the Court decision, he seems to have met the requirements of an ice navigator for these waters, thus being in compliance with Canadian maritime law, and there is no requirement for the ice navigator to have local knowledge of these waters. This is to be contrasted with a marine pilot whose underlying skill is having knowledge of the local waters to give the Master’s navigational advice.
The TSB recognizes the fact that the issue was somewhat complex and difficult to ascertain. The grounding highlights the importance of having a single internet portal readily accessible for hydrographic information and navigational information in the Arctic, so this information can be made available to users in a timely and accurate fashion. Good navigational decisions are based on complete and accurate maritime information, although it is recognized that gaps in charting of Arctic waters inevitably create navigational hazards.
With decreasing sea ice cover, the number of Arctic voyages will increase. For example, the tall ship Oliver Hazard Perry will be entering the NW Passage this summer. Canada must take an approach to Arctic shipping governance which is based on risk management of interested stakeholders. The Clipper Adventurer incident and Court decision highlights the need for the public and private sector to work together to ensure vessels in Canadian waters and throughout the Arctic have access to the best navigation information. The TSB findings combined with the Court decision make a good starting point for examining current practices in a proactive fashion, so Canadian Arctic waters will be a safer place.
K. Joseph Spears in the past has acted as ad hoc outside maritime legal counsel for the Attorney General of Canada assisting the Government of Canada (Transport Canada) in various maritime litigation and advising on marine legislation. He can be reached at email@example.com
Kiley Sampson is the Managing Director of Halthorn Marine Inc. and has over 40 years of broad experience in the marine industry. Kiley has developed a risk management tool for marine navigation and vessel operations that traces its roots in the offshore energy. Kiley can be reached at firstname.lastname@example.org