T-3843-73
The Queen (Plaintiff)
v.
The Ship Sun Diamond, the Owners of the Ship
Sun Diamond, Nichia Kaiun K.K., C. Darnell,
Demosthenes G. Gabac, the Ship Erawan, the
Owners of the Ship Erawan, John Swire & Sons
(Shipping) Ltd., John Swire & Sons Ltd., W. H.
Hurford, C. G. Cocksedge (Defendants)
Trial Division, Walsh J.-Vancouver, March 22,
23 and April 15, 1983.
Crown - Torts - Negligence - Nuisance - Action by
Crown to recover cost of cleaning up fuel oil discharged from
ship in waters in and around Port of Vancouver following
collision with another ship - Special case for adjudication in
lieu of trial by determination of questions of law - Whether
proceedings properly brought in name of Crown instead of
National Harbours Board - National Harbours Board Act,
R.S.C. 1970, c. N-8, ss. 3(1),(2), 6, 7(1), 8, 11(2), 13(1),(3),
14(1), 24, 28 - Fisheries Act, R.S.C. 1970, c. F-14 (as am. by
R.S.C. 1970 (1st Supp.), c. 17, s. 3), s. 33(8),(10) - Canada
Shipping Act, R.S.C. 1970, c. S-9, ss. 647, 734 (as added by
R.S.C. 1970 (2nd Supp.), c. 27, s. 3(2)) - Financial Adminis
tration Act, R.S.C. 1970, c. F-10, s. 66(1), Sch. C - Depart
ment of Justice Act, R.S.C. 1970, c. J-2, s. 5(d) - Department
of Transport Act, R.S.C. 1970, c. T-15, s. 7(3) - Interpreta
tion Act, R.S.C. 1970, c. I-23, s. 16 - The British North
America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (R.S.C. 1970,
Appendix II, No. 5], s. 108, Sch. III - National Harbours
Board Operating By-law, SOR/70-279 (P.C. 1970-1135), s.
6(2) - Harbour of Vancouver Boundaries Determined and
Administration, Management and Control Thereof Trans
ferred to the National Harbours Board, SOR/67-417 (P.C.
1967-1581).
Transportation - Action by Crown to recover cost of clean
ing up fuel oil discharged from ship in waters in and around
Port of Vancouver following collision with another ship
Special case for adjudication in lieu of trial by determination
of questions of law - Whether and to what extent, if any,
owners of ship liable to Her Majesty for damages under the
National Harbours Board Act, the Fisheries Act or at common
law - National Harbours Board Act, R.S.C. 1970, c. N-8, ss.
3(1),(2), 6, 7(1), 8, 11(2), 13(1),(3), 14(1), 24, 28 - Fisheries
Act, R.S.C. 1970, c. F-14 (as am. by R.S.C. 1970 (1st Supp.),
c. 17, s. 3), s. 33(8),(10) - Canada Shipping Act, R.S.C. 1970,
c. S-9, ss. 647, 734 (as added by R.S.C. 1970 (2nd Supp.), c.
27, s. 3(2)) - Financial Administration Act, R.S.C. 1970, c.
F-10, s. 66(1), Sch. C - Department of Justice Act, R.S.C.
1970, c. J-2, s. 5(d) - Department of Transport Act, R.S.C.
1970, c. T-15, s. 7(3) - Interpretation Act, R.S.C. 1970, c.
I 23, s. 16 - The British North America Act, 1867, 30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], s. 108,
Sch. III — National Harbours Board Operating By-law, SORT
70-279 (P.C. 1970-1135), s. 6(2) — Harbour of Vancouver
Boundaries Determined and Administration, Management and
Control Thereof Transferred to the National Harbours Board,
SOR/67-417 (P.C. 1967-1581).
This is an action brought by the Attorney General of Canada
on behalf of Her Majesty the Queen to recover the cost of
cleaning up fuel oil discharged from the ship Erawan in and
around the Port of Vancouver following a collision with another
ship. The matter came before the Court as a special case for
adjudication in lieu of trial by the determination of the ques
tions of law set out in an agreed statement of facts. The
questions involve the determination of whether and to what
extent, if any, the owners of the ship Erawan, who, in a
previous trial were held liable for the collision, are liable to Her
Majesty in damages under the National Harbours Board Act,
the Fisheries Act or at common law for the clean-up of private
as well as public property. The defendants contend. that the
proceedings were not properly brought in the name of Her
Majesty but that they should have been brought by the Nation
al Harbours Board, an agent of Her Majesty with jurisdiction
over Vancouver Harbour and other surrounding areas and to
which was transferred the administration, management and
control of all works and property vested in Her Majesty and
situate within the Port of Vancouver.
Held, these proceedings were properly brought in the name
of Her Majesty whether on behalf of or in place of the National
Harbours Board or as owner of the works and property vested
in Her and located in and around Vancouver Harbour or
whether as a result of a general right to take action with respect
to a public nuisance and to mitigate damages which might
foreseeably result therefrom. There is also an arguable case
that action might have been taken by the plaintiff under the
provisions of the Fisheries Act. The fact that statutory rights
are given to an agent or quasi-agent of the Crown in respect of
something does not deprive the Crown of the right to institute
proceedings in respect of that thing.
While the Crown had no authority to act on behalf of private
individuals who may have sustained damages, what was done
was reasonable and is a good example of the parens patriae
principle, with the Crown acting as a "prudent administrator".
In the result, the following would be allowed: the entire cost of
the water clean-up, whether within or outside the harbour
limits; the costs of the beach and foreshore clean-up on all
property belonging to the Crown, but not on private property;
equipment damage and costs and expenses of cleaning, and
payments to various claimants, including fishermen, to the
exoneration of defendants although such payments were volun
tary in nature.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Southern Canada Power Co., Ltd., [1937] 3 All
E.R. 923 (P.C.), affirming [1936] S.C.R. 4; The Attor-
ney General for Canada v. The Attorney General of the
Province of Ontario (1894), 23 S.C.R. 458.
DISTINGUISHED:
Barraclough v. Brown, et al., [1897] A.C. 615 (H.L.);
Lagan Navigation Company v. Lambeg Bleaching,
Dyeing and Finishing Company, Limited, [1927] A.C.
226 (H.L.); Dominion of Canada v. Province of Ontario,
[1910] A.C. 637 (P.C.); The Attorney-General for the
Dominion of Canada v. Ewen (1895), 3 B.C.R. 468
(B.C.S.C.); Bethlehem Steel Corporation v. St. Lawrence
Seaway Authority, et al., [1978] 1 F.C. 464; 79 D.L.R.
(3d) 522 (T.D.); National Harbours Board v. Imperial
Oil Limited et al. (not reported, C-773353, judgment
dated April 28, 1981(B.C.S.C.)).
CONSIDERED:
The Attorney General of Canada v. Western Higbie et
al., [1945] S.C.R. 385; National Harbours Board v.
Hildon Hotel (1963) Limited et al. (1967), 64 D.L.R.
(2d) 639 (B.C.S.C.); Langlois v. Canadian Commercial
Corporation, [1956] S.C.R. 954; Grant v. St. Lawrence
Seaway Authority et al. (1960), 23 D.L.R. (2d) 252
(Ont. C.A.); State of California, by and through the
Department of Fish and Game v. S.S. Bournemouth, 307
Fed. Supp. 922 (U.S.D.C. 1969); Attorney General v. P.
Y. A. Quarries Limited, [1957] 2 Q.B. 169 (C.A.); The
"Wagon Mound" (No. 2), [1963] 1 Lloyd's Rep. 402
(Aus. S.C.); Attorney-General of Canada v. Brister et
al., [1943] 3 D.L.R. 50 (N.S.S.C.).
REFERRED TO:
Reference re Ownership of the Bed of the Strait of
Georgia and Related Areas (1977), 1 B.C.L.R. 97
(C.A.); Reference Re: Offshore Mineral Rights, [1967]
S.C.R. 792; Southport Corporation v. Esso Petroleum
Co. Ld. et al., [1954] 2 Q.B. 182 (C.A.); Baten's Case
(1599), 9 Co. Rep. 53 b; 77 E.R. 810 (In Commun
Banco).
COUNSEL:
George Carruthers for plaintiff.
Peter Bernard for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Campney & Murphy, Vancouver, for defend
ants.
The following are the reasons for judgment
rendered in English by
WALSH J.: This matter was set down for hear
ing as a special case for adjudication in lieu of trial
by determination of the questions of law set out in
an agreed statement of facts on the basis of the
facts set out in said statement which reads as
follows:
The Plaintiff and the Defendants [sic] John Swire & Sons
(Shipping) Ltd., owner of the Defendant ship "ERAWAN", the
Defendant John Swire & Sons Ltd., the Defendant C.G. Cock-
sedge, in this case, and for the purpose of this case only, agree
that for the determination of the issues herein the following
facts are hereby admitted, subject to the qualifications or
limitations (if any) hereunder specified:
Provided that this Agreement is made for the purpose of this
action only and is not an admission to be used against the
Plaintiff or the Defendants in any other case or by anyone other
than the Plaintiff or the Defendants.
Provided that additional evidence, either of fact or opinion
may be put into evidence at the request of the Court which does
not vary or contradict the admissions made herein but no
evidence which varies or contradicts the admissions of fact
made herein are to be admitted into evidence.
1. The Attorney General of Canada brings this action on behalf
of Her Majesty the Queen in right of Canada (hereinafter
referred to as "Her Majesty") to recover the cost of cleaning up
fuel oil which was discharged from the Defendant "ERAWAN"
(hereinafter referred to as "ERAWAN") as hereinafter
described.
2. The Defendant John Swire & Sons (Shipping) Ltd. is a
United Kingdom Corporation having its head office and chief
place of business at 66 Cannon Street, London, England, and
on the 25th day of September 1973 and all times material to
this action was the owner of the British vessel "ERAWAN"
registered at the Port of London of gross tonnage 9,229.
3. At all times material to this action and in particular on
September 25, 1973, the Defendant vessel was under the
command of the Defendant C.G. Cocksedge employed by the
Defendant John Swire & Sons (Shipping) Ltd. and was being
piloted by Canadian pilot Captain W.H. Hurford, who was
licensed under the Pilotage Act S.C. 1970-71-72, Chapter 52,
and amendments thereto.
4. (a) The National Harbours Board (hereinafter referred to as
the "Board") is a body corporate incorporated pursuant to the
National Harbours Board Act, R.S.C. 1970, Chap. N-8, as
amended, and pursuant to section 3(2) of the said Act is
thereby deemed to be an agent of Her Majesty for the purposes
of the said Act.
(b) For the purpose of and as provided for in the said National
Harbours Board Act the National Harbours Board has juris
diction over those areas set forth in the Schedule to the said
Act including Burrard Inlet, Indian Arm (formerly known as
the North Arm), and Port Moody, False Creek and English
Bay, Sturgeon Bank and Roberts Bank.
5. By SOR/67-417 (P.C. 1967-1581) the Governor General in
Council, on the recommendation of the Minister of Transport,
pursuant to sections 6 and 8 of the National Harbours Board
Act, inter alia, transferred to the Board for administration,
management and control, all works and property vested in Her
Majesty and situate within the area of the Harbour of Vancou-
ver (sometimes referred to as Vancouver Harbour and the Port
of Vancouver and hereinafter collectively referred to as the
Port of Vancouver).
6. Real Property of Her Majesty at the Port of Vancouver
under administration, management and control of the Board is
subject to the Government Property Traffic Act R.S.C. 1970
Chap. G-10.
7. Real Property of Her Majesty at the Port of Vancouver,
under the administration, management and control of the
Board is subject to the Municipal Grants Act R.S.C. 1970
Chap. M-15.
8. In 1973 and at all times material to this action the Port of
Vancouver was a public and navigable harbour administered by
the Board.
9. In 1973 and at all times material to this action the Port of
Vancouver:
(a) ranked first in Canada, first on the Pacific Coast of North
America, and second only to New York on the entire continent
in its tonnage of international trade;
(b) had 49 square miles of deep draft inner harbour with
approximately 100 miles of shoreline;
(c) was ice-free and navigable year round and capable of
handling a vessel up to 125,000 D.W.T. with a 50 foot draft;
(d) consisted of an Inner and Outer Harbour. The Inner
Harbour (Burrard Inlet) is the central core of the Port of
Vancouver. However, the total port incorporates a water area
of 214 square miles, stretching from Vancouver to the United
States Border (excluding the lower reaches of the Fraser
River). The major facility of the Outer Harbour is Roberts
Bank, a sophisticated bulk handling terminal located some 20
miles south of the city;
(e) was among the top international ports in terms of volume of
cargo handled. Exports include grain, coal and coke, sulphur,
lumber and logs, pulp, potash, copper ores, fodder and feed,
propane gas and general cargo containers. Imports include raw
sugar, phosphate rock, common salt, fuel oil, iron, steel, metals
and general cargo containers;
(f) was visited by 2,222 foreign going deep sea vessels with a
gross registered tonnage of 31,640,000 importing into Canada a
cargo of 2,289,000 metric tons and exporting from Canada
27,164,000 metric tons of cargo;
(g) was visited 20,960 times by coastal vessels including B.C.
Ferries at Tsawwassen with a tonnage of 39,211 bringing into
the Port 4,238,000 metric tons of cargo and taking out of the
Port 4,493,000 metric tons of cargo;
10. That in connection with the importation and exportation of
cargo referred to in paragraph 9 herein charges are levied, inter
alfa, pursuant to the following regulations passed by the Gover
nor in Council on the recommendation of the Minister of
Transport: Crane Tariff, Vancouver Heavy-Life Crane Tariff,
Vancouver False Creek Fishermen's Terminal Dockage Tariff,
Tariff of Electric Service Charges, Harbour of Vancouver,
Vancouver Tariff of Wharf Charges, Vancouver Tariff of
Dockage, Buoyage and Booming Ground Charges, Vancouver
Water Service Tariff, Tariff of Elevator Charges, Pacific Har
bours Dues Tariff By-Law.
11. That in addition to charges levied as set forth in paragraph
10 herein the Board derives revenue from the lease of lands and
premises as illustrated on the chart attached hereto, marked 1
and named Vancouver Harbour (Inner Port) which with the
exception of the Lynnterm and Vanterm facilities shown there
on were substantially the same in September 1973.
12. That at all material times to this action in 1973 the Board
had 439 outstanding leases respecting properties owned by Her
Majesty in approximately seven municipalities surrounding the
Port of Vancouver. The leases included land, reclaimed land,
waterlots, warehouses and other structures from which the
Board derived revenue. Most of the properties are shown on the
chart marked 1. In 1973 the Board paid the said municipalities
some $627,500 as grants in lieu of municipal taxes pursuant to
the provisions of the aforementioned Municipal Grants Act.
13. That for the year ended December 31, 1973, the Board had
a net income of $1,003,955 from the Port of Vancouver made
up as follows:
(a) Harbour Operations and Control (including
harbours dues [tolls], dockage, customer
services, miscellaneous and sales) $ 906,431
(b) Open Storage Terminals (rentals) $ 122,254
(c) Container Terminals (wharfage, rentals,
demurrage) $ 469,177
(d) Passenger Terminals (small tools) $ 1,546
(e) Real estate (leases, customer services, mis
cellaneous) $1,897,189
(f) Real estate (Roberts Bank) (rentals) $ 334,022
(g) Terminal operations (wharfage deficiencies,
rentals demurrage, customer services mis
cellaneous) $1,884,131
(h) Grain Elevators (wharfage, rental) $ 355,326
(i) Ice manufacturing Plant (rental, sales) $ 14,850
(j) Small Craft Facilities (dockage, wharfage,
rentals, customer services, miscellaneous) $ 66,116
INCOME FROM
TOTAL CUSTOMER SERVICES $5,915,718
NET INCOME FOR 1973 $1,003,955
14. On September 25, 1973, the "ERAWAN" was on a voyage
from Tacoma, Washington, U.S.A. to the Port of Vancouver,
British Columbia, carrying, inter alia, potash and chemicals. At
about 0318 the "ERAWAN", under the conduct of a Canadian
licensed pilot Captain William Hurford, was proceeding at the
outer approaches to the Port of Vancouver.
15. On the aforementioned date and at a place south west of
the Point Grey Bellbuoy outside the limits of the Port of
Vancouver the "ERAWAN" came into collision with the motor
vessel "SUN DIAMOND", of 8,176 gross tons registered at the
Port of Osaka, Japan, owned by the Defendant Nichia Kaiun
K.K., with an address at 123-1, Higashi-Machi, Ikuta-Ku
Kobe, Japan. At the time of the collision the "SUN DIAMOND"
was outbound from the Port of Vancouver on a voyage to
Seattle, Washington, U.S.A. under the conduct of a Canadian
licensed pilot, Captain Colin Darnell.
16. The aforementioned collision occurred when the bow of the
"SUN DIAMOND" struck the "ERAWAN" amidships puncturing
certain tanks containing a quantity of fuel oil which subse
quently escaped into the water at or near the place of collision
as a direct result of the collision. Following the collision the two
vessels were moved to a position east of the line between Point
Grey and Point Atkinson which designates the outer limits of
the Port of Vancouver. The tide was flooding, and this would
bring the oil within the boundaries of the Port of Vancouver.
17. At about 0319 on September 25, 1973, the 1st Narrows
Signal Station operated by the Board was notified by the
"ERAWAN" of the collision and the Board's Harbour Master,
and the pollution control officer, Department of Transport,
Government of Canada shortly arrived on the scene of the
collision. At 03:40 the Harbour Master requested that Clean
Seas Canada Ltd. dispatch its equipment and men to the area
of the collision as soon as possible to contain the oil. In
accordance with an understanding between the Board and the
Canadian Coast Guard, Department of Transport based on an
Interim National Contingency Plan designed for dealing with
oil spills the Board called upon the Canadian Coast Guard,
Department of Transport and its resources for assistance. The
Department of Transport took over command of clean up
operations at the request of the Board and although the Board
continued to provide assistance throughout the clean up opera
tion all clean up costs claimed herein were paid for by the
Department of Transport.
18. Clean Seas Canada Ltd., which had an oral agreement with
the Board to contain oil spills, used its own resources and also
obtained clean up assistance from a number of subcontractors
who provided resources used in the clean up of the aforemen
tioned oil spill which lasted until approximately October 23,
1973. During this period some work was done in all areas
designated on the chart attached hereto and marked 2 in red,
green or blue representing oil which escaped from the "ERA-
WAN". Some water surface clean up work was done at Gambier
and Bowen Island, as depicted, to prevent oil from entering
those areas. The Department of Transport maintains the Gov
ernment Wharf, Snug Cove, Bowen Island.
19. On September 28th, 1973, the "ERAWAN" was towed from
English Bay to Burrard Dry Dock in North Vancouver. In the
course of this tow the First Narrows as shown on chart marked
1 was closed to marine traffic for approximately one hour and
oil booms and other equipment were used to avoid the further
spread of oil from the vessel. When the "ERAWAN" was
alongside the Dry Dock spokesmen for the Department of
Transport advised Clean Seas that the Department would no
longer pay for services relative to the continuing escape of oil
from the vessel. Clean Seas then made arrangements to bill
Burrard Dry Dock for charges for work done in the area of the
Dry Dock as a result of any further oil escape. The Clean Seas
account for such services has been paid.
20. The aforementioned collision was caused solely by the
negligence of either those in charge of the "ERAWAN", servants
of the Defendant owner of the "ERAWAN" John Swire & Sons
(Shipping) Ltd. or other persons for whose negligence the said
owner John Swire & Sons (Shipping) Ltd. is responsible at law
as was found in the judgment of Mr. Justice Collier referred to
in paragraph 21 herein.
21. The parties to this Agreement admit the findings of fact
contained in the Judgment of Mr. Justice Collier pronounced
on January 6, 1975 in cause No. T-3841-73 and T-3842-73
between:
The Owners of the Ship Sun Diamond
Nichia Kaiun K.K.,
Plaintiffs
and
The Ship ERAWAN, The Owners of The
Ship ERAWAN, John Swire & Sons Ltd.,
John Swire & Sons (Shipping) Ltd.,
Defendants
AND BETWEEN: T-3842-73
John Swire & Sons (Shipping) Ltd.
Owners of the Ship ERAWAN,
Plaintiffs
and
The Ship Sun Diamond and Captain Darnell
Defendants
Attached and marked 3 is a copy of the Order of the Court
respecting limitation of liability pursuant to section 647 and
following of the Canada Shipping Act.
22. At the time of the collision the tide was flooding and the
Port of Vancouver and some surrounding beaches and foreshore
within the limits of the Port of Vancouver were seriously
threatened.
23. As a direct result of the collision referred to in paragraphs
15, 16 and 17 herein and as described in the aforementioned
judgment approximately 211 tons of fuel oil escaped from the
fuel tanks of the "ERAWAN" into waters both adjacent to and
in the Port of Vancouver and was deposited on foreshore in
those areas depicted on the chart marked 2 to this Agreed
Statement of Facts. Some of the oil was contained or pumped
off the ship following the collision, some went onto beaches
below the high water line and some to the water surface. It was
reasonable to conclude that as oil was on the surface of the
waters of Burrard Inlet for up to four days some of the oil
depicted in blue on the chart marked 2 may have sunk to the
seabed in the said areas depicted in blue.
24. The escape of fuel oil from the "ERAWAN" into the Port of
Vancouver and surrounding waters and on foreshore as stated
herein and as depicted on the chart marked 2 was a direct
result of the collision. Complaints were made by approximately
40 commercial fishermen who alleged that oil from the "ERA-
WAN" had fouled hulls and commercial fishing gear. Approxi
mately $12,600 was paid by Her Majesty to these forty fisher
men respecting their complaints.
25. Following the removal of the "ERAWAN" from English Bay
to Burrard Dry Dock on September 28, 1973 at approximately
1600 hours the clean up of oil on the surface of the water was
discontinued (or became unnecessary) and all the effort was
directed towards the foreshore.
26. A complete summary of costs for clean up of oil, which was
prepared by the Department of Transport is attached hereto
and marked 4. For the purpose of this Agreed Statement John
Swire & Sons (Shipping) Ltd. and John Swire & Sons Ltd. do
not question the reasonableness of the costs marked 4 hereto
which can be broken down as follows:
Water clean-up $270,568.03
Beach clean-up 297,598.25
Equipment clean-up and sundry 35,548.07
Total $603,714.35
The parties agree that the question of quantum of damages
shall be the subject of a Reference if necessary.
27. The Board did not make payment of any of the above-men
tioned charges or expenses. Payment was made by the Depart
ment of Transport.
28. Following the escape of oil from the "ERAWAN" the
Minister responsible for the administration of the Fisheries Act
for Canada who was M.P. for West Vancouver Howe Sound
attended personally at the scene of the oil cleanup and observed
and generally supervised the work that was being done under
the direction of the Ministries of Transport and Environment
(Fisheries) and Clean Seas Canada Ltd. The Minister did not
make any specific direction that action be taken in accordance
with Section 33 (10) of the Fisheries Act but believed that he
had the power or authority as Minister of Fisheries to direct
that clean up action be taken.
29. That in the event the Court finds the provisions of section
33 of the Fisheries Act, as it then was, relevant to the determi
nation of the issues between the parties, it is admitted that the
owners of the "ERAWAN" exercised all due diligence to prevent
the discharge of oil from the vessel.
30. The following lands hereinafter described are owned by Her
Majesty:
(a) All the foreshore and bed of the Public Harbour of Burrard
Inlet and the area adjacent to the entrance thereto lying east of
a line drawn south astronomically from the south-west corner
of the Capilano Indian Reserve Number 5 to high water mark
of Stanley Park.
(b) The Capilano Indian Reserve No. 5 shown on charts 1 and
2 except certain small portions which have been alienated and
which are not material.
(c) Stanley Park shown on charts 1 and 2. The lease of Stanley
Park has been granted for 99 years by His Majesty Edward VII
to the City of Vancouver with rights of renewal as therein
provided but subject to rights of His Majesty as therein pro
vided. Legal title to Stanley Park consists of all that portion of
the City of Vancouver (and the foreshore adjacent thereto)
bounded by the Western limit of District Lot 185, Group One
New Westminster District (as shown on the official plan there
of filed in the Land Registry Office at Vancouver) and the low
water mark of the waters of Burrard Inlet, the First Narrow
and English Bay and being all that peninsula lying to the West
and North of the Said District Lot 185 known as "Stanley
Park".
(d) Deadman's Island, occupied by the Department of National
Defence and the Ministry of Transport.
31. No attempt was made by any of the Defendants to abate
the nuisance caused by the discharge of oil from the
"ERAWAN".
32. Following its escape from the "ERAWAN" oil in varying
amounts reached the foreshore at points along approximately
25 miles of coastline, and there was a likelihood that if the oil
was not cleaned up from beaches further high tides could
refloat and redistribute the oil onto previously clean areas.
Attached hereto as 5 and 6 are diagrams published in Canadian
Hydrographic Service Publication No. 22 showing inter alia the
currents at Maximum Flood and Currents at Maximum Ebb on
September 25, 1973.
33. (a) The aesthetic quality and the potential for recreation
was impaired in varying degrees in those places where oil
reached the foreshore as described in paragraph 30 herein.
(b) The waters and shorelines in the area of the spill depicted
on charts 1 and 2 are used as follows:
(1) Public beaches at Stanley Park, Ambleside to Point
Atkinson, Caulfied Cove and Snug Cove on Bowen Island;
(2) Three parks near Point Atkinson: Lighthouse, Whytecliff
and Parc Verdun;
(3) Thirteen marinas that harbour many commercial fishing
vessels and some 3,770 pleasure boats worth an estimated 16
million dollars. It is estimated that pleasure boats moored in
Burrard Inlet spent an equivalent 9,400 days during Septem-
ber, 1973, 5,000 of these in Burrard Inlet itself;
(4) Scuba diving near Whytecliff Park and Point Atkinson
where the underwater region surrounding Whytecliff Park
was declared a reserve area on August 7, 1973. It is estimat
ed that between 2,000 to 5,000 divers may have visited
Whytecliff Park in 1973.
(5) It is estimated that water contact activities valued at $8
million took place during September 1973 on Burrard Inlet
beaches.
34. Annexed hereto and marked 7, 8, 9 and 10 are sketches
indicating the spread of oil or oily film from the "ERAWAN"
over the periods of September 25, 26, 27 and 28.
35. The Department of Transport, on behalf of Her Majesty,
administers within the boundaries of the Port of Vancouver, the
Government Floats, Caulfied, Lynwood Marina, North Van-
couver Government Wharf, which are owned by Her Majesty
and were subject to being fouled by oil if the oil from the
"ERAWAN" had not been cleaned up.
36. The Department of Transport, on behalf of Her Majesty,
maintains approximately 35 Aids to Navigation owned by Her
Majesty within the boundary of the Port of Vancouver includ
ing radio beacons, light bellbuoys and foghorns. None of these
Aids to Navigation were damaged by the oil spill.
37. The aforementioned collision and oil spill occurred in an
area populated by fish:
(a) Thousands of adult salmon were in the waters of the Port of
Vancouver at the time of the spill; approximately 550 were in
the Port en route to spawn at the Capilano River Hatchery
owned by Her Majesty and situated on the bank of the Capila-
no River some three miles upstream of its mouth as depicted on
the map marked 1 and 2. Hundreds of other fish would spawn
naturally in the other spawning streams on the map marked 11
attached hereto. The Capilano River Hatchery is an artificial
spawning facility and is part of Her Majesty's salmon enhance
ment program.
(b) In June 1973 approximately 600,000 juvenile salmon fish
and 41,000 steelhead juvenile fish were released from the said
Hatchery after being reared at the Hatchery for 2 years; many
of these fish would be expected to migrate to the waters at the
approaches to the Port of Vancouver and subsequently return in
the fall and subsequent years to spawn at the rivers and streams
depicted on the map marked 11 as well as up the aforemen
tioned Capilano River Hatchery.
(c) In 1973 a total of approximately 500,000 adult salmon
returned from the sea, including the waters in and around the
Port of Vancouver, to the Salmon spawning streams depicted
on map 11 attached hereto, including the Capilano River
Hatchery.
(d) In 1973 the estimated commercial wholesale value of fish
(principally salmon) associated with the following six streams
and rivers which empty into Burrard Inlet: Capilano River,
McKay Creek, Mosquito Creek, Lynn Creek, Seymour River
and Indian River, was approximately $500,000. Of that
approximately $181,000 represented 145,000 pounds of fish
that were harvested in September 1973 from the Point Grey-
Burrard Inlet area marked Area 29-C on the Department of
the Environment, Fisheries Operations, Statistical Map
attached hereto and marked 12.
(e) In September 1973 there was an estimated three to four
hundred tons of herring and three hundred tons of anchovy fish
present in the waters in and around the Port of Vancouver. The
wholesale value of the commercial herring has been estimated
at $168,000 to $224,000 for 1973.
(f) In September 1973 the Point Grey-Burrard Inlet area
depicted as 29-C on the Department of the Environment Fish
eries Operations Statistical Map attached hereto and marked
12 was a nursery ground for several species of flatfish, some of
which are commercially important.
(g) In September 1973 and throughout the year ten to twelve
boats were estimated to be fishing for crabs and shrimps in the
approaches to the Port of Vancouver. Approximately 23,000
pounds of crabs and shrimp with a commercial wholesale value
of approximately $14,000 were harvested in September 1973
from the waters in and around the Port of Vancouver depicted
as 29-C on the aforementioned map.
(h) The Port of Vancouver supports a sizeable resident popula
tion of Dungeness Crabs (Cancer magister). The area between
the First and Second Narrows bridges, False Creek and English
Bay, are closed to crab fishing. However, crabs from these
areas migrate to other areas in Burrard Inlet and Indian Arm
and crab larvae will be dispersed throughout the region and
enhance the sport and commercial catches.
(i) Crab traps are set along Spanish Banks and Ambleside by
sportsfishermen.
(j) The waters and tidal foreshore of Burrard Inlet, Indian Arm
and Vancouver Harbour are closed to the taking of shellfish
because of bacterial contamination.
(k) Due to congestion due in part to navigation fishing is
prohibited in the Port of Vancouver, however the Port serves as
a reserve for many varieties of fish including: salmon, crabs,
shrimp, flatfish.
(1) The fishing industry in British Columbia is one of the top
three industries in the Province.
38. (a) The oil that escaped from the "ERAWAN" is deleterious
to fish and is disruptive to their life processes. As a result of the
aforementioned spill, the flesh of the fish, if it came into
contact with the oil, was subject to being tainted, and the
accumulative toxins would likely render fish inedible.
(b) Some of the oil that escaped from the "ERAWAN" would
sink and possibly create damage to the sea bed including
smothering shellfish beds and interfering with fish feeding or
breeding grounds.
39. The effects of oil on salmon fish may be indirect as well as
direct. Indirectly food organisms and habitat were affected. It
is probable that intertidal organisms in several areas including
food organisms of juvenile salmon such as amphipods were
killed by suffocation after being coated with oil. There was no
evidence of damage to or destruction of salmon resulting from
the oil discharge.
40. Access by Her Majesty's subjects to recreational areas for
sailing, swimming, sportsfishing and the commercial fishery
was affected by the said oil spill and would have been even
greater if the said oil spill had not been cleaned up.
41. That among the terms and conditions with respect to the
admission of British Columbia into the Union of the Dominion
of Canada on May 16, 1871 it was agreed that Canada would
assume and defray the charges for the Protection and encour
agement of fisheries. Now produced and marked 13 is a copy of
a document relating to the entry of British Columbia into the
Union.
42. Now produced and marked 14 are copies of documents
relating to the agreement between the province of British
Columbia and the federal Government declaring the Harbour
of Burrard Inlet to be a public harbour and the property of
Canada.
43. Now produced and marked 15 is a copy of lease of Stanley
Park from the late King Edward VII to the City of Vancouver
dated November 1, 1908.
44. Now produced and marked 16 is a copy of the National
Harbours Board Act and By-Law A-1 (Operating Regula
tions).
45. Now produced and marked 17 is a copy of a map and
accompanying index of location and sighting times respecting
oil deposited on the foreshore as described in the above-men
tioned paragraphs 32 and 33 including Bowen Island and
Passage Island.
46. Now produced and marked 18 is a series of photographs
depicting some of the oil deposited on the foreshore as
described in the above-mentioned paragraphs 32 and 33.
The questions for the determination of this Honourable
Court are as follows:
1. Whether the owners of the "ERAWAN" are liable to Her
Majesty for damages under the provisions of the National
Harbours Board Act, regulations and by-laws made pursuant
thereto.
2. Whether the owners of the "ERAWAN" are liable to Her
Majesty for damages under the Fisheries Act.
3. Whether the owners of the "ERAWAN" are liable to Her
Majesty for damages in common law through negligence,
trespass, public or private nuisance.
4. If the owners of the "ERAWAN" are found to [be] liable to
Her Majesty for any of the said clean-up charges, in what
area of damage does liability for clean up attach:
i) water clean-up (in all or some locations);
ii) beach-foreshore clean-up (in all or some locations);
iii) both areas (in all or some locations);
iv) equipment damage and costs and expenses of cleaning;
NO payments made to various claimants including
fishermen.
It is agreed by the parties that the amount of the
invoices are recited herein for identification pur
poses and are not admitted or agreed as damages
as a result of their inclusion in this agreed state
ment of facts. The inclusion of any particular fact
on this agreed statement is not deemed to be an
admission or concession that such fact is relevant
to the issues in the within action or to the ques
tions for the determination of the Court as set out
above.
At the opening of the hearing some amendments
were made to the statement of claim so as to add
following subparagraph 17(e), an additional sub-
paragraph (f) reading "Interest", subparagraph
(f) in the original statement of claim now becom
ing (g). A further amendment was made so as to
strike the first five named defendants and last two
named defendants from the style of cause, which is
therefore now amended accordingly. This results
from the findings of fact in the judgments of
Justice Collier pronounced on January 6, 1975 in
cause No. T-3841-73 and T-3842-73, between the
owners of the ship Erawan and the ship Sun
Diamond referred to in paragraph 21 of the agreed
statement of facts and his finding of law that the
collision was caused solely by the negligence of
either those in charge of the Erawan, servants of
the defendants owner of the Erawan John Swire &
Sons (Shipping) Ltd. or other persons for whose
negligence the said owner John Swire & Sons
(Shipping) Ltd. is responsible at law as set out in
paragraph 20 of the agreed statement of facts.
During argument it was not disputed that the
incident took place within the 12-mile limit. Own
ership of water rights within the Georgia Straits
belongs to British Columbia as a result of a 3 to 2
decision of the British Columbia Court of Appeal
in a Reference re Ownership of the Bed of the
Strait of Georgia and Related Areas.' The
Supreme Court had previously decided in Refer
ence Re: Offshore Mineral Rights (B.C.) 2 that the
mineral rights belonged to the Federal Crown,
provinces only being able to claim land above low
water without express legislation to the contrary.
This judgment was distinguished in the British
Columbia judgment and Crown counsel in the
present proceedings stated it was not claimed that
the Federal Crown owns the water rights.
It appears from an order issued by Collier J. in
December of 1979 that limitation of liability has
been made, and that the owners of the ship Sun
Diamond and others have been paid the portion
due to them so that only the balance of fund,
amounting to $377,733.15, remains to satisfy any
judgment rendered as a result of the present pro
ceedings. While defendants do not admit any lia
bility, it is agreed that should liability be found
there will be a reference as to damages relating to
the quantum only. The present proceedings will
decide what, if any, elements of damages can
properly be included in the claim.
Defendants contend that the proceedings were
not properly brought in the name of Her Majesty
the Queen but it is plaintiff's contention that it
would not have been appropriate for the National
Harbours Board to have commenced an action in
the circumstances since not only did it not have the
resources to contain the oil but the clean-up was in
fact directed by and paid for by the Department of
Transport on behalf of Her Majesty. If the action
had been brought by the National Harbours Board
it is, plaintiff contends, an agent of the Crown, and
' (1977), 1 B.C.L.R. 97 [C.A.].
2 [1967] S.C.R. 792.
that the principal must have the same rights as the
agent.
In support of its contention that the action was
properly brought plaintiff relies on the provisions
of the National Harbours Board Act 3 and what is
referred to as the Six Harbours Agreement
entered into in June, 1924 between the two govern
ments that the harbour of Burrard Inlet, inter alfa,
is a public harbour within the meaning of The
THIRD SCHEDULE of The British North America
Act, 1867, 4 having become the property of Canada
as of July 20, 1871 by virtue of section 108 of the
said Act and of Order in Council dated May 16,
1871, which agreement was confirmed by Order in
Council P.C. 941, June 7, 1924.
By SOR/67-417 the Governor in Council trans
ferred to the National Harbours Board the man
agement, administration and control of all works
and property vested in Her Majesty and situate
within the area of the Harbour of Vancouver.
Plaintiff contends that Her Majesty is not pre
cluded from bringing an action in Her own name
for damages for negligence and nuisance for pollu
tion to the waters which are the subject of Her
jurisdiction. The waters of the harbour may not
constitute a "work or property" but Her Majesty's
jurisdiction over the harbours is for purposes of
litigation and the recovery of damages in the
nature of a proprietory right. Her Majesty does
not own the sea bed of English Bay but she does
own the sea bed and foreshore of Burrard Inlet by
virtue of the Six Harbours Agreement. In support
of this reference was made to the case off The
Attorney General of Canada v. Western Higbie et
al., 5 in which it will be noted that the plaintiff was
the Attorney General of Canada suing on behalf of
His Majesty the King to get possession of the land
covered by water in the bed of Coal Harbour and
the Harbour of Vancouver. The judgment of Rin-
fret C.J. points out at page 404:
When the Crown, in right of the Province, transfers land to the
Crown, in Right of the Dominion, it parts with no right. What
takes place is merely a change of administrative control.
3 R.S.C. 1970, c. N-8.
4 30 & 31 Vict., c. 3 (U.K.) found in R.S.C. 1970, Appendix
II, No. 5.
5 [1945] S.C.R. 385.
On the same page the learned Chief Justice points
out:
... it is admitted by the Province of British Columbia that the
Dominion held the foreshore of Coal Harbour as owner since
1871.
At page 408 reference is made to the case of The
Attorney General for Canada v. The Attorney
General of the Province of Ontario" where at page
469, Strong C.J. said:
That the crown, although it may delegate to its representatives
the exercise of certain prerogatives, cannot voluntarily divest
itself of them seems to be a well recognized constitutional
canon.
At the time this action was brought the Nation
al Harbours Board could sue and be sued in its
own name 7 and this same provision still remains in
the present National Harbours Board Act (supra).
By virtue of the Department of Justice Acts the
Attorney General for Canada shall
5....
(d) have the regulation and conduct of all litigation for or
against the Crown or any public department, in respect of
any subject within the authority or jurisdiction of Canada
The National Harbours Board is defined as an
agency corporation pursuant to subsection 66(1) of
the Financial Administration Act 9 being a Crown
corporation named in Schedule C.
Plaintiff refers to a number of sections of the
National Harbours Board Act as a result of which
it may be said that the National Harbours Board
is Her Majesty's "alter-ego". Inter alla, subsection
3(2) of the Act provides that the Board is an agent
of Her Majesty, the members of the Board are
appointed by the Governor in Council [subsection
3(1)] and the Government Employee's Compensa
tion Act [R.S.C. 1970, c. G-8] applies to all
employees who receive their benefits, except sal
aries, as employees in the Public Service. Subsec
tion 7(1) gives the Board jurisdiction inter alfa,
over Vancouver Harbour, the boundaries of which
" (1894), 23 S.C.R. 458.
' National Harbours Board Act, 1936, S.C. 1936, c. 42, subs.
3(3).
8 R.S.C. 1970, c. J-2.
9 R.S.C. 1970, c. F-10.
are set by the Governor in Council. All property
acquired or held by the Board is vested in Her
Majesty in Right of Canada (subsection 11(2)).
Contracts awarded by the Board above a certain
amount must be approved by the Governor in
Council (subsection 13(3)) which makes by-laws
for the direction, conduct and government of the
Board and its employees and the administration,
management and control of the several harbours
works and property under its jurisdiction [subsec-
tion 14(1)]. All monies received by the Board are
paid to the Receiver General of Canada and
advances are made out of the Consolidated Reve
nue Fund to the Board by the Minister of Finance
for working capital purposes (section 28). Monies
received by the Board are paid to the credit of the
Receiver General and credited to a special account
designated the National Harbours Board Special
Account (section 24). The land under the jurisdic
tion of the Board is subject to the Government
Property Traffic Act'° and the Board does not pay
taxes but makes grants under the Municipal
Grants Act".
Reference is made by the plaintiff to the case of
R. v. Southern Canada Power Co., Ltd. 12 That
action was commenced in the Exchequer Court by
the Crown concerning damage to a railway train
on an embankment operated by the CNR. The
railway was the property of the Dominion of
Canada and ownership had never been conveyed to
the CNR although the company had been en
trusted with its management and operation by
statute and given the right to bring an action of
this kind. Both the Supreme Court of Canada and
the Privy Council held that the Crown was the
proper party to bring the action. At page 927,
Lord Maugham referred to the "admirably clear"
statement of Mr. Justice Davis found in [1936]
S.C.R. 4, at pages 8-9 as follows:
A preliminary objection was raised by the appellant at the
trial and renewed before us that the Crown had no right to take
these proceedings in the Exchequer Court of Canada, the
contention being that the right of action was by statute vested
in the Canadian National Railways Company and that that
company could only sue in the ordinary courts and not in the
10 R.S.C. 1970, c. G-10.
" R.S.C. 1970, c. M-15.
' 2 [1937] 3 All E.R. 923 [P.C.].
Exchequer Court of Canada. The learned trial judge carefully
reviewed the statutory law upon the subject and concluded, I
think rightly, that the Crown was the owner of the railway and
had never given up its right to sue for any claim it had in
connection with the operation of the railway.
Again on the same page [9]:
While a right of action was given to the railway company by
sec. 33 of the Canadian National Railway Act, R.S.C. 1927,
ch. 172, and this action might have been taken in the name of
the Canadian National Railways Company, His Majesty in
right of the Dominion of Canada did not relinquish his right as
owner to sue.
The Minister of Transport administers the Na
tional Harbours Board Act and under subsection
7(3) of the Department of Transport Act 13 the
duties, powers and functions of the Minister
extend to the National Harbours Board over which
he has the control, regulation, management and
supervision. In the present case when the collision
occurred the National Harbours Board initially
asked for the assistance of the Ministry of Trans
port in cleaning up the oil but soon realized that
the Board itself did not have the resources to do
the job and turned the handling of the clean-up
over to the Ministry of Transport. Its actions in
cleaning up the nuisance could, it is contended, be
considered in connection with the control of the
National Harbours Board by the Minister of
Transport acting through his local officials.
Defendants in their argument refer to subsection
6(2) of By-law A-1 being the operating regulations
of the National Harbours Board 14 which reads as
follows:
6....
(2) The Board may remove any encumbrance, obstruction,
nuisance or possible cause of danger or damage at the risk and
expense of the person who is responsible therefor.
They contend that there was no transfer by the
National Harbours Board to the Department of
Transport nor to the Crown of the right to sue for
the expense incurred in having the nuisance
removed by Clean Seas, the party engaged by the
Department of Transport to undertake the work.
13 R.S.C. 1970, c. T-15.
14 [SOR/70-279] P.C. 1970-1135, June 23, 1970.
Reference was made to the British Columbia
case of National Harbours Board v. Hildon Hotel
(1963) Limited et al. 15 where leaking oil from the
hotel was accidentally pumped into the harbour.
The Board took steps to get rid of the oil and
charged the hotel company under the provisions of
the by-law which contained somewhat similar
provisions of those of the present by-law. The
Court discussed the difference between private
nuisance and public nuisance stating that plaintiff
had no claim in so far as its right was vested in
private nuisance. At page 644 the judgment refers
to the words of Denning L.J. in Southport Corpo
ration v. Esso Petroleum Co. Ld. et al. 16 where he
states:
The term "public nuisance" covers a multitude of sins, great
and small.
The Hildon Hotel judgment goes on to say [at
page 644]:
... the plaintiff here suffered no personal damage unless it can
be said that the defendants' action invoked a statutory obliga
tion on the plaintiff to expend monies to clean up the pollution.
It is unnecessary however to speculate on the extent to which
public nuisance may cover the present case, for it clearly comes
under the heading of nuisance in art. 4(2) and (3) of the
by-law, supra, and may properly be termed a "statutory
nuisance".
It was the Harbours Board which brought the
action, however. The defendant also refers to the
Supreme Court of Canada case of Langlois v.
Canadian Commercial Corporation" in which the
judgment of Kerwin C.J. stated at page 956:
If the obligation in this case had been incurred on its own
behalf, the decision of the Judicial Committee in International
Railway Company v. Niagara Parks Commission ([1941] A.C.
328, [1941] 2 All E.R. 456, [1941] 3 D.L.R. 385, [1941]
W.W.R. 338, 53 C.R.T.C. 1) would apply. It was there held
that there was nothing to prevent an agent from entering into a
contract on the basis that he is himself to be liable to perform it
as well as his principal and that the Commissioners, having
entered into a certain agreement "on their own behalf", as well
as on behalf of the Crown, had done so on the express terms
that they were to be liable for its fulfilment. By the latter part
of s. 10 of the respondent's Act, the obligation here in question
is to be taken to have been incurred on its own behalf. It is,
therefore, in the same position as if it were not an agent for the
Crown and it is subject to the general law of the province of
Quebec, as the case was fought on the basis that it was the law
of that province that was applicable.
15 (1967), 64 D.L.R. (2d) 639 [B.C.S.C.].
16 [1954] 2 Q.B. 182 [C.A.], at p. 196.
17 [ 1956] S.C.R. 954.
In the case of Grant v. St. Lawrence Seaway
Authority et al. 18 it was held that civil proceedings
for an injunction or a declaration in respect of an
alleged public nuisance are open only to the Attor
ney General suing either alone or on the relation of
another. In either case the Attorney General has
an unfettered discretion in deciding whether to sue
whereas a private person, unless he has sustained
some special damage over and above that affecting
the public at large or unless he is asserting some
special statutory benefit, cannot bring an action to
enjoin a public nuisance. This would appear to
support plaintiff's contention that action is proper
ly brought by Her Majesty the Queen rather than
by the National Harbours Board.
Defendants refer to section 13 of the National
Harbours Board Act, which, in subsection (1),
provides that the Board shall call tenders by public
advertisement for the execution of works unless
inter alia the cost will not exceed $15,000 or there
is a pressing emergency in which delay would be
injurious to the public interest, which is certainly
the case here. Subsection (3) provides, however,
that no contract for the execution of any such
work shall be awarded without the approval of the
Governor in Council in any event for an amount in
excess of $15,000 unless, inter alia, the amount of
the contract as indicated by the tender of the
person to whom the contract is to be awarded does
not exceed $50,000. There were, of course, no
tenders in the present case and the cost greatly
exceeded $50,000. As stated in paragraph 17 of
the agreed statement of facts the Harbour Board
was notified of the collision and the Board's har
bour master and the pollution control officer of the
Department of Transport arrived at the scene of
the collision, whereupon the harbour master
requested that Clean Seas Canada Ltd. dispatch
its equipment and men to the area of the collision
as soon as possible to contain the oil. In accord
ance with an understanding between the Board
and the Canadian Coast Guard, Department of
Transport, based on an Interim National Contin
gency Plan designed for dealing with oil spills, the
Board called upon the Canadian Coast Guard,
Department of Transport and its resources for
assistance whereupon the Department of Trans-
" (1960), 23 D.L.R. (2d) 252 (Ont. C.A.).
port took over, command of the clean-up operations
at the request of the Board, although the Board
continued to provide assistance while all clean-up
costs were paid for by the Department of Trans
port. While the Interim National Contingency
Plan does not have the force of law, defendants do
not contend that the Board and Department of
Transport did not act prudently in the matter and
I do not think it is incumbent upon defendants to
raise the absence of approval by Order in Council
as an issue preventing the National Harbours
Board from claiming the costs incurred in this
clean-up nor the Department of Transport acting
on its behalf by engaging and paying for the
services of Clean Seas, nor that the Crown cannot
claim in the event that the National Harbours
Board, its agent, could not as a result of the lack of
such Order in Council. If anything, it appears to
me that this is another reason why it was prefer
able to bring proceedings in the name of Her
Majesty.
Plaintiff also relies on subsection (10) of section
33 of the Fisheries Act 19 which read at the time of
institution of proceedings as follows:
33....
(10) No civil remedy for any act or omission is suspended or
affected by reason that the act or omission is an offence under
this section, and where, by reason of the occurrence or exist
ence in, upon or adjacent to any water frequented by fish of any
condition resulting from an act or omission by a person that is
an offence under this section, the Minister directs any action to
be taken by or on behalf of the Crown to repair or remedy the
condition or reduce or mitigate any damage to or destruction of
life or property that has resulted or may reasonably be expected
to result from its occurrence or existence, the costs and
expenses of and incidental to the taking of such action, to the
extent that such costs and expenses can be established to have
been reasonably incurred in the circumstances, are recoverable
by the Crown from that person with costs in proceedings
brought or taken therefor in the name of Her Majesty in any
court of competent jurisdiction.
While there was no formal direction by the Minis
ter to clean-up the oil spill, the Minister of Fisher
ies, who happened to be the Member of Parlia
ment for West Vancouver-Howe Sound at the
time, attended personally at the scene of the oil
clean-up and observed and generally supervised
the work that was being done under the direction
19 R.S.C. 1970, c. F-14, as amended by [R.S.C. 1970] (1st
Supp.), c. 17 [s. 3].
of the Ministries of Transport and Environment
(Fisheries) and Clean Seas Canada Ltd. It is
admitted in paragraph 28 of the agreed statement
of facts that he believed he had the power or
authority as Minister of Fisheries to direct that
clean-up action be taken. Under the circum
stances, it would appear there was no need for
written direction, his presence at the scene con
stituting at least approval of what was being done.
Defendants further argue subsection (10) is not
operative unless the violators are guilty of an
offence which was not the case in the present
circumstances.
Subsection (8) of section 33 reads as follows:
33....
(8) In a prosecution for an offence under this section or
section 33.4, it is sufficient proof of the offence to establish that
it was committed by an employee or agent of the accused
whether or not the employee or agent is identified or has been
prosecuted for the offence, unless the accused establishes that
the offence was committed without his knowledge or consent
and that he exercised all due diligence to prevent its
commission.
It may introduce the doctrine of respondeat supe
rior but it was the pilot who was found responsible
by the judgment of Collier J. for the collision
which resulted in the oil spill. He has not been
prosecuted for the offence and, in any event, it was
committed without the knowledge or consent of
the defendant vessel or owners nor was there any
lack of diligence on their part in preventing the
collision. The defendants argue that subsection
(10) merely gives a right of recovery from the
person responsible for the offence—that is to say,
the compulsory pilot, licensed by the Canadian
government itself, so that an estoppel would oper
ate against the present claim.
There is considerable force in the defendants'
argument that in the absence of proof of commis
sion of an offence which is not in issue before the
Court in these proceedings, or in any event an
offence for which defendants can be held liable,
section 33 of the Fisheries Act cannot be invoked
to justify plaintiff's claim. It is true that the
Fisheries Act as a whole did not appear to give
authority for the cleaning up of oil spills despite
the fact that they are undoubtedly severely damag
ing to fisheries. Nevertheless, the Minister was
present and assisted in directing the clean-up and
undoubtedly acted properly in doing so and might
perhaps be said to have been acting on behalf of
the Crown in so doing. In any event, plaintiffs
right to claim does not rely solely on the provisions
of the Fisheries Act.
In further support of proceedings being brought
in the name of the Crown plaintiff also invokes the
doctrine of parens patriae contending that the
Attorney General not only represents Her Majes-
ty's interests but is the guardian of the public
interest generally. This involves the institution of
proceedings in cases of public nuisance. In the text
by G. S. Robertson, The Law and Practice of Civil
Proceedings by and against the Crown and
Departments of the Government [London: Stevens
and Sons, Limited, 1908], I find the statement at
page 2:
The right of the Crown, however, to proceed by prerogative
process is often specifically preserved, and still exists, unless
specifically forbidden; and it is not seldom exercised, in spite of
a special provision for suits by or against a particular Govern
ment department.
The general principle has been recognized in the
American Courts in the case of the State of Cali-
fornia, by and through the Department of Fish
and Game v. S.S. Bournemouth 2° in which at page
929 the general observation appears:
Oil pollution of the nation's navigable waters by seagoing
vessels both foreign and domestic is a serious and growing
problem. The cost to the public, both directly in terms of
damage to the water and indirectly of abatement is consider
able. In cases where it can be proven that such damage to
property does in fact occur, the governmental agencies charged
with protecting the public interest have a right of recourse in
rem against the offending vessel for damages to compensate for
the loss.
There appears to me to be little doubt that an oil
spill constitutes a public nuisance and that it is
important that it should be cleaned up as rapidly
as possible to mitigate the damages caused by it.
Whether this is done by the National Harbours
Board or the Department of Transport it would
not be going too far to say that the Crown is under
at least a moral, if not a legal, obligation to see
20 307 Fed. Supp. 922 (U.S.D.C. 1969).
that this is undertaken. In the case of Attorney
General v. P. Y. A. Quarries Limited, 2' Denning
L.J., as he then was, stated at page 190 in distin
guishing between a public nuisance and a private
nuisance:
The classic statement of the difference is that a public nuisance
affects Her Majesty's subjects generally, whereas a private
nuisance only affects particular individuals.
He goes on to state [at page 190]:
So here I decline to answer the question how many people are
necessary to make up Her Majesty's subjects generally. I prefer
to look to the reason of the thing and to say that a public
nuisance is a nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to
expect one person to take proceedings on his own responsibility
to put a stop to it, but that it should be taken on the responsibil
ity of the community at large.
The question of whether plaintiff can recover for
expenses incurred cleaning up the oil spill from
private property will be dealt with later when I
come to consider the question of damages but I
have little doubt that a serious oil spill, even if it
originated outside the limits of the Port of Vancou-
ver (see paragraph 15 of agreed statement of
facts), which drifted into the harbour and on to the
foreshore, constituted a public nuisance. In the
case of The Attorney-General for the Dominion of
Canada v. Ewen and The Attorney-General for
the Dominion of Canada v. Munn, 22 the cause of
action dealt with a claim for injunctions restrain
ing the defendants, their servants, agents or work
men from permitting offal or remnants of fish or
other deleterious matter to pass into the Fraser
River. At page 470 the judgment states:
The defendant's first ground is that, as the Dominion Legis
lature has expressly legislated with respect to offal, and
imposed fines and imprisonment for any infraction of the law to
be recovered before Justices of the Peace, therefore this Court
has not power to impose an additional penalty by way of
injunction and he relies on the Institute of Patent Agents v.
Lockwood, (1849) App. Cas. 347.
If this was an action to recover damages for allowing the
offal to escape into the river, there would be great force in the
contention, but what the plaintiff seeks to restrain is the
nuisance which arises from the defendant's neglecting to
comply with the law; the nuisance affects the public, and
21 [1957] 2 Q.B. 169 [C.A.].
22 (1895), 3 B.C.R. 468 [B.C.S.C.].
whether or not there was any law prohibiting the placing of the
offal in the river, the defendant would be liable for a nuisance,
even if it arose from doing a lawful act ....
An Australian case in the Supreme Court of
New South Wales, that of The "Wagon Mound"
(No. 2) 23 is of interest. A spillage of oil occurred
from the vessel into the harbour while bunkering.
It was held that although the result of the spillage
was not reasonably foreseeable the defendant was
not liable in negligence but the court found that
the spillage created a public nuisance. The head-
note reads in part:
(i) that plaintiffs could not maintain claim based on private
nuisance because there was no interference with use and enjoy
ment by plaintiffs of their land, but liability for public nuisance
was not restricted to cases of injury to plaintiffs' interests in
their land, nor was it essential that the nuisance should ema
nate from defendant's land; that, if defendant created a nui
sance and there was then a public nuisance on navigable waters
open to the public, defendant was prima facie liable, although
it was not negligent; (ii) that presence of large quantity of oil
on harbour waters constituted a public nuisance; (iii) that
plaintiffs suffered "particular injury" in that they suffered
serious losses which other members of the public did not
suffer....
(The oil took fire in the harbour and damaged
plaintiffs' vessel.)
Defendants contend that the Crown cannot
recover on the basis of a public nuisance having
been caused, as it has not suffered special damage
to property or chattels. The admitted facts dis
close, however, that approximately 211 tons of fuel
oil escaped into waters both adjacent to and in the
Port of Vancouver being deposited in part on the
foreshore and onto beaches below the high water
line. Forty commercial fishermen had fouled hulls
and commercial fishing gear and approximately
$12,600 was paid by Her Majesty to them respect
ing these complaints. Her Majesty owns lands
described in paragraph 30 of the agreed statement
of facts including the foreshore and bed of the
public harbour of Burrard Inlet and Stanley Park.
Oil reached the foreshore at points along approxi
mately 25 miles of coastline (paragraph 32) and
there was a likelihood that if it was not cleaned up
from the beaches further high tides would refloat
and redistribute it onto previously clean area.
23 [1963] 1 Lloyd's Rep. 402 [Aus. S.C.].
There are a number of public beaches, parks and
thirteen marinas in the area and scuba diving takes
place at a place where the underwater region has
been declared a reserve. The Department of Trans
port, on behalf of Her Majesty, administers within
the boundaries of the Port of Vancouver various
government floats and wharves owned by Her
Majesty which were in danger of being fouled if
the oil had not been cleaned up. There were 439
leases respecting properties owned by Her Majesty
in areas surrounding the Port of Vancouver (para-
graph 12). It is difficult to see how defendants can
contend that the Crown has not suffered any spe
cial damage to property or chattels.
Defendants contend, however, that since the
Crown has statutory remedies in the form of fines
for oil pollution and civil liability in certain cir
cumstances, it should be limited to those rémedies.
Reference was made to Part XX of the Canada
Shipping Act inserted by chapter 27 of the Second
Supplement of the 1970 Revised Statutes dealing
with pollution and specifically to section 734 which
creates civil liability and specifically authorizes
proceedings to be instituted by Her Majesty
against the owners of the ships and the owners of
the pollutant to recover the reasonable costs of
reducing or mitigating the damage which may
reasonably be expected to result from the
discharge.
The existence of such a statutory remedy does
not, I believe, deprive Her Majesty of the right to
exercise common law rights available to Her, nor
does the jurisprudence referred to by defendants in
support of this justify such a general conclusion. I
have dealt with the Attorney-General v. Ewen case
(supra) and the case of Barraclough v. Brown, et
al., 24 merely dealt with Court jurisdiction and did
not involve the Crown. The case of Attorney-Gen
eral of Canada v. Brister et al. 25 in the Nova
Scotia Supreme Court led to a divided opinion, the
learned judges dividing 2 to 2 on this issue
although agreeing in the appeal for other reasons.
I find of particular interest the statement of
Smiley J. at pages 72-73:
24 [1897] A.C. 615 [H.L.].
25 [1943] 3 D.L.R. 50 [N.S.S.C.].
In 1 Hals. (2nd ed.), p. 11, para. 11, appears the following
statement taken from the decision of Willes J. in Wolverhamp-
ton New Waterworks Co. v. Hawkesford, 6 C.B. (N.S.) 336 at
p. 356, 141 E.R. 486:
"There are three classes of cases in which a liability may
be established founded upon a statute. One is where there
was a liability existing at common law, and that liability is
affirmed by a statute, which gives a special and peculiar
form of remedy different from the remedy which existed at
common law. There, unless the statute contains words which
expressly or by necessary implication exclude the common
law remedy, the party suing has his election to pursue either
that or the statutory remedy. The second class of cases is
where the statute gives the right to sue merely, but provides
no particular form of remedy. There the party can only
proceed by action at common law. But there is a third class,
viz., where a liability not existing at common law is created
by a statute which, at the same time, gives a special and
particular remedy for enforcing it .... The remedy provided
by the statute must be followed, and it is not competent to
the party to pursue the course applicable to cases of the
second class."
Paragraph 11 proceeds as follows: "In each case, however, in
deciding whether a statutory remedy is, or is not, intended to be
the only remedy for breach of the statutory duty, the particular
statute must be examined. And even where the ordinary
remedy by action for damages is excluded, there may also be a
concurrent remedy by injunction."
In my opinion the Navigable Waters' Protection Act does not
exclude any remedy which existed under the common law
previous to its enactment.
Defendants further contend that the Crown,
having elected the remedy of abatement is unable
to proceed with any other remedy, relying on the
very ancient Baten's Case 26 which held that a
nuisance may be redressed by action, or by the
party aggrieved entering and abating the nuisance,
but in the latter case he shall not have an action
nor recover damages, and on the cases of Ewen
and Brister (supra) and on the case of Lagan
Navigation Company v. Lambeg Bleaching,
Dyeing and Finishing Company, Limited" in
which the headnote states: "The abatement of a
nuisance by a private individual is a remedy which
the law does not favour." Here we are dealing with
the Crown which, through agents, took steps to
abate the nuisance, and under contemporary con
ditions of increasing danger of serious ecological
damage from oil spills, it is indisputable that this
should be done immediately and is not an alterna
tive remedy to claiming compensation for the dam
26 (1599) , 9 Co. Rep. 53 b; 77 E.R. 810 [In Communi
Banco] .
27 [1927] A.C. 226 [H.L.].
ages caused by the spill.
To decide otherwise would constitute an unjust
enrichment for defendants who were admittedly
incapable of cleaning up the spill themselves, but
whose vessel created the nuisance, whether the
action can be based on negligence for which they
are responsible or not.
Defendants made one further argument namely,
that even if the Crown has jurisdiction with
respect to navigable waterways, this is restricted to
areas of federal jurisdiction. It has already been
stated (supra) that as a result of the Reference re
Ownership of the Bed of the Strait of Georgia and
Related Areas, Her Majesty, in the present case,
does not claim ownership of the water rights
within the Georgia Straits. I do not believe that it
follows, however, that Her Majesty in Right of
Canada cannot take any responsibility for abate
ment of a public nuisance occurring therein and
more specifically the area in question, including
Burrard Inlet under the jurisdiction of the Nation
al Harbours Board, which by the Six Harbours
Agreement was declared to be a public harbour,
the property of Canada.
The case of Dominion of Canada v. Province of
Ontario 28 adds little to this contention, merely
confirming that there is a distinction between the
Crown in Right of Canada and the Crown in
Right of a Province, as in the Ewen case (supra).
Before concluding this part of the reasons refer
ence might also be made to section 16 of the
Interpretation Act 29 which reads:
16. No enactment is binding on Her Majesty or affects Her
Majesty or Her Majesty's rights or prerogatives in any manner,
except only as therein mentioned or referred to.
In conclusion, therefore, I find that the present
proceedings are properly brought in the name of
Her Majesty the Queen in Right of Canada
whether they have been brought on behalf of and
in place of the National Harbours Board which
might perhaps have brought them, or as owners of
the works and property in the Harbour of Vancou-
28 [1910] A.C. 637 [P.C.].
29 R.S.C. 1970, c. I-23.
ver transferred to the Board for administration,
management and control, and other real property
within Burrard Inlet inter alia, or whether as a
result of a general right to take action with respect
to a public nuisance and mitigate damages which
might foreseeably result therefrom. There is also
an arguable case that action might perhaps have
been taken by plaintiff under the provisions of the
Fisheries Act, as among the terms and conditions
with respect to the admission of British Columbia
into the Union of the Dominion of Canada on May
16, 1871, it was agreed that Canada would assume
and defray the charges for the protection and
encouragement of fisheries (paragraph 41 of the
agreed statement of facts). It is not necessary to
rely on the Fisheries Act, however, to justify Her
Majesty in bringing the present proceedings.
The jurisprudence does not establish that
because a statutory right is given to the Crown or
to some agent or quasi-agent of the Crown, which
has been given certain rights for administrative
purposes as a matter of convenience, the Crown is
thereby deprived of Her right to institute proceed
ings. See in this connection R. v. Southern Canada
Power Co., Ltd. and The Attorney General for
Canada v. The Attorney General of the Province
of Ontario (both supra).
I now turn to the question of damages. The
Crown in cleaning up the oil spill was not acting
on behalf of defendants by virtue of any express or
implied authority. Private owners of lands on the
foreshore which might have been damaged by the
oil spill would have had an action available to
them against defendants for private nuisance and
possibly for negligence although I make no finding
on this since the issue is not before me. Neverthe
less by taking or authorizing the taking by appro
priate agents of proper measures to contain and
abate the consequences of the oil spill and thus
abate the public nuisance, some benefit was
undoubtedly conferred on such proprietors and a
multiplicity of actions thereby avoided which
inured to the benefit of defendants. While the
Crown has no authority to act on behalf of private
individuals who might have had claims, nor would
it most probably have any legal responsibility
towards them had it failed to do so since their
action would be against defendants, what was done
was reasonable and appears to be a good example
of the parens patriae principle with the Crown,
through its agents, acting as what is referred to in
civil law as "bon père de famille" or "prudent
administrator" as this phrase is usually translated.
It is nevertheless a serious matter to take steps,
however reasonable, to abate claims which but for
this intervention might have been made against
another, and then to claim compensation for the
costs of the work so undertaken, so that the extent
to which plaintiff can be compensated for such
work is a difficult one.
In paragraph 26 of the agreed statement of facts
a summary of costs prepared by the Department of
Transport indicated water clean-up $270,568.03;
beach clean-up $297,598.25; equipment clean-up
and sundries $35,548.07; Total $603,714.35. No
break down of figures was given, this being left to
the reference on the quantum of damages.
Paragraph 24 states that payments totalling
$12,600 were made to approximately 40 commer
cial fishermen who had claimed that the oil had
fouled hulls and commercial fishing gear. These
payments would appear to have been made on a
voluntary basis but as indicated, by the making of
same defendants were relieved of the possibility of
actions by these fishermen.
In the as yet unreported case in the Supreme
Court of British Columbia No. C-773353 National
Harbours Board v. Imperial Oil Limited et al.,
judgment dated April 28, 1981, oil had been
pumped into a wrong fill pipe leading into an
abandoned underground tank where it spilled out
onto the furnace room floor in the bus depot and
eventually entered a storm sewer being carried into
the harbour. It was found that the employee was
negligent but on page 10 the judgment states:
Despite my findings, the plaintiff's action founded in negli
gence must fail. The plaintiff did not show any damage to itself
or to its property by the acts of the defendants. The expense of
cleaning the oil from the water in the harbour arose from the
statutory undertaking placed upon it by the Act and the by-law.
The judgment goes on to state on the same page
that the plaintiff's action in nuisance against the
employee and Imperial Oil Limited based on his
acts in the course of employment must succeed.
Reference was also made to the case of Bethlehem
Steel Corporation v. St. Lawrence Seaway Au
thority, et aî., 3 ° judgment by brother Addy J. This
dealt with economic loss. However, there had been
no damage to the person of the claimant or to
property in which the claimant might have some
actual or potential proprietory interest. It was
found that the general rule is that damage is not
recoverable even where it might have been foresee
able and where the proper cause of relationship
between the tortious act and the damage exist.
Neither of these cases is of much help in deciding
the elements of damage that should be allowed in
the present case.
There was, as of December 4, 1979, the date of
the limitation of liability order, an amount of
$377,733.15 remaining as principal in the limita
tion fund. Since both the payments out of it result
ing from the said order provided for payment of
interest from 1973 and presumably the final judg
ment to be rendered herein after the reference
would make similar provision, it may well be that
there will not be sufficient money in the fund to
settle any very large portion of plaintiffs claim
herein. Nevertheless, a finding has to be made so
that the referee and the parties may be guided as
to what elements of damages may be considered.
In this connection I would allow the entire cost of
the water clean-up, whether within or outside the
harbour limits, the costs of the beach and fore-
shore clean-up on all property belonging to the
Crown, but not on private property, equipment
damage and costs and expenses of cleaning, and
payments made to various claimants, including
fishermen, to the exoneration of defendants
although such payments were voluntary in nature.
ORDER
Questions for determination of this Honourable
Court are answered as follows:
1. Whether the owners of the Erawan are liable to
Her Majesty for damages under the provisions of
30 [[1978] 1 F.C. 464]; 79 D.L.R. (3d) 522 [T.D.].
the National Harbours Board Act, regulations and
by-laws made pursuant thereto.
A. Yes.
2. Whether the owners of the Erawan are liable to
Her Majesty for damages under the Fisheries Act.
A. Possibly not and not essential for purposes of
this claim.
3. Whether the owners of the Erawan are liable to
Her Majesty for damages in common law through
negligence, trespass, public or private nuisance.
A. Defendants are liable to Her Majesty in
common law for public nuisance and, to the
extent that She or a Crown agency on whose
behalf She is suing is the owner of private
property damaged by the oil spill, for private
nuisance.
4. If the owners of the Erawan are found to be
liable to Her Majesty for any of the said clean-up
charges, in what area of damage does liability for
clean-up attach:
(i) water clean-up (in all or some locations)?
A. Liability attaches for this in all locations
affected by the oil spill.
(ii) beach foreshore clean-up (in all or some
locations)?
A. In all beach and foreshore owned by Her
Majesty or by an agency on whose behalf She
is suing.
(iii) both areas (in all or some locations)?
A. See answer above.
(iv) equipment damage and costs and expenses of
cleaning?
A. All such damage.
(v) payments made to various claimants including
fishermen?
A. Such payments, although made voluntarily, to
the exoneration of defendants.
There shall be a reference as to damages. Costs
of this motion are in favour of plaintiff.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.