Update on the MV Marathassa
You’ll recall that in November, 2018 the British Columbia Provincial Court decided that the MV "Marathassa" was not guilty of charges under section 125(1) of the Canadian Environmental Protection Act (CEPA), which prohibits the unauthorized disposal of a substance at sea (see my previous post here: http://www.canadianmaritimelaw.com/2018/11/only-deliberate-disposal-is-offence.html).
In that case, the court concluded that CEPA provision did not apply because the spill in question, an accidental leak of some 2700 litres of fuel oil into Vancouver's English Bay, was not alleged by the Crown to be intentional - i.e. CEPA does not apply to accidental discharges - only intentional ones - and evidence must be led accordingly. Lawyers for the Marathassa essentially (and successfully) argued that the proper legislative regime which relates to allegations of the accidental release of oil into the sea is the Canada Shipping Act, particularly s. 187, which states that:
s. 187. No person or vessel shall discharge a prescribed pollutant, except in accordance with the regulations made under this Part or a permit granted under Division 3 of Part 7 of the Canadian Environmental Protection Act, 1999.
Accordingly, the door was left open for a prosecution under that provision.
On February 7, 2019, the Provincial Court of British Columbia issued its decision on that very prosecution.
In summary, the Crown was able to prove beyond a reasonable doubt that the MV Marathassa discharged a pollutant into the waters of English Bay contrary to section 187 of the Canada Shipping Act, however, the Marathassa was able to establish the defence of due diligence. In the words of the court, that defence was made out because:
“Conclusion on the Due Diligence Defense
 The fuel oil spill on April 8, 2015, related to a mistake of fact by the Marathassa that the vessel was built to industry standards with no defects. That belief was honestly and reasonably held. The defects in the high level alarms and the valve were not foreseeable. All of the alarms were tested on a weekly basis and no concerns arose. The alarms panel on the Bridge was tested every four hours without any concerns.
 The debris in the valve was not apparent to the naked eye and remained in the valve even after the valve was hand and wrench tightened. It was not discovered by the crew when they checked the valve on the night of April 8, by Transport Canada on April 9, or by the crew when they hand and wrench tightened the valve on April 9. It was only discovered when the crew, with the knowledge of the path of the spill, disassembled the valve.”
The case can be found here: https://www.canlii.org/en/bc/bcpc/doc/2019/2019bcpc13/2019bcpc13.html?searchUrlHash=AAAAAQAEIk1WIgAAAAAB&resultIndex=1
|MV Marathassa in Port|