Pay up, Federal Court of Appeal tells Arctic cruise ship operator

Clipper Adventurer owners liable for 2010 accident that put 200 people at risk

By STEVE DUCHARME

A photo from August 2010 shows a Canadian Coast Guard vessel towing the Clipper Adventurer, which had run aground on a shoal, endangering the lives of 128 passengers and 69 crew members. At the time, the ship's operators claimed the vessel had hit


A photo from August 2010 shows a Canadian Coast Guard vessel towing the Clipper Adventurer, which had run aground on a shoal, endangering the lives of 128 passengers and 69 crew members. At the time, the ship’s operators claimed the vessel had hit “an uncharted hazard.” But the shoal they hit had been known since 2007. In 2012, the Transportation Safety Board found evidence of mismanagement on board and lack of preparedness, and in 2017, a Federal Court judge found the ship’s owners were liable for the incident. (FILE PHOTO)

The Federal Court of Appeal has upheld a lower court ruling last year that found the owners of the Arctic cruise ship the Clipper Adventurer liable for costs incurred by Canada when the ship ran aground in Nunavut’s Coronation Gulf in 2010, stranding 128 passengers and 69 crew members.

In a Feb. 7 decision, federal appeal judge Joanne Gauthier said Justice Sean Harrington of the Federal Court of Canada made no error in January 2017, when he ordered the Bahamas-based ship owner Clipper Adventurer Ltd. to pay the Government of Canada $445,361.64 plus interest dating to Sept. 17, 2010 for cleanup costs.

That action was on top of Harrington’s dismissal of a $13.5 million lawsuit filed by Clipper Adventurer Ltd. against the Government of Canada for “the cost of temporary and permanent repairs, payment to the salvers, business interruption, and related matters,” stemming from the ship running aground.

In the latest appeal, Clipper Adventurer Ltd. challenged only the payment owed to the Government of Canada, who they accused of negligence for failing to properly warn mariners of the Coronation Gulf shoal that the Clipper Adventurer ultimately ran aground on.

But Gauthier dismissed that allegation, concluding “this is not a case where no warning was given of the presence of the shoal.”

“Mariners have their own duty of care at common law,” Gauthier continued.

“They must have on board and make use of up to date charts and nautical publications. This duty is informed by the local regulations that apply to the waters they chose to sail in.”

The Canadian Coast Guard Ship Sir Wilfred Laurier discovered the shoal in 2007, and subsequently issued a “Notice to Shipping” on the shoal’s location, which was broadcast for 14 days and subsequently made available to mariners on the Canadian Coast Guard website.

The Canadian Hydrographic Service performed a detailed survey of the shoal in 2010 and issued another notice, Gauthier said, distributed weekly to “interested parties” sailing the region.

“Neither those on board the Clipper nor her managers in Florida made such a request” for that information, Gauthier said, and therefore, “the Clipper did not have a properly updated nautical chart on board.”

Gauthier agreed with Harrington that the Clipper “should have known they were in uncharted shoals” and preceded “at a much slower speed” with assistance from a scout vessel, like a zodiac, as is common practice in those circumstances.

The challenges of Arctic charting, Gauthier explained, is “opportunistic,” and can only be done when circumstances permit.

As such, only 10 per cent of Arctic waters have been surveyed to modern standards, the judge said, and the Clipper Adventurer should have “proceeded with caution” when it left the main shipping corridor and entered an area that was not fully surveyed.

After dismissing the appeal, Gauthier awarded the costs of the Crown’s defence to Clipper Adventurer Ltd., for a total of $5,000.

In 2012, the Transportation Safety Board found the vessel’s operators did not inform themselves about the known hazard that they ran into, did not carry essential equipment on board and did not follow their management company’s own quality, safety and environmental protection program.

2018 02 16 A-64-17_20180207_R_E_O_OTT_20180208121355_GTR_BV2_DE2_2018_FCA_34-2 by NunatsiaqNews on Scribd

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