IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On April 8, 2015, the Motor Vessel Marathassa (“the Marathassa”) was anchored in English Bay.  It was observed by employees of the Port Metro Vancouver (“Port Vancouver”) and the Canadian Coast Guard to have a ring of fuel oil around its hull.  Transport Canada conducted an investigation which determined that approximately 2700 litres of fuel oil had been deposited in the waters around English Bay.  Although most of the fuel oil was recovered or dissipated within 48 hours, there was an environmental impact on the shores of English Bay, and four migratory birds were smeared with patches of oil.

[2]           The Marathassa is charged with an environmental offence of discharging a pollutant into the waters surrounding English Bay on April 8, 2015, and with a further environmental offence of discharging a substance that was harmful to migratory birds.

[3]           The Marathassa is also charged with two offences of failing to implement its shipboard pollution emergency plan by failing to take samples of the fuel oil in the water, and by failing to assist with the containment of the discharged fuel oil.

[4]           Alassia Newships Management Inc. (“Alassia”), the company which operated the vessel and employed the crew, was also charged with various offences.  However, at the time that the trial commenced, that foreign company had not attorned to the jurisdiction of this Court and so the trial proceeded only against the Marathassa.

[5]           The parties agree that all of the charges against the Marathassa are strict liability offences and the Crown need only prove the acts which are the subject of the offences.  In terms of the allegation that the Marathassa discharged fuel oil into English Bay, the Crown must only prove that the fuel oil was discharged by the Marathassa, not that the Marathassa intended to discharge the fuel oil or even knew that it was discharging the fuel oil.

[6]           If the Crown proves beyond a reasonable doubt that the Marathassa discharged fuel oil into English Bay, then the Marathassa may raise a defence, as it has in this case, of due diligence.  To succeed with a defence of due diligence, the Marathassa must prove on a balance of probabilities that either it was mistaken as to facts, which rendered its actions innocent, or it took all reasonable steps to ensure that fuel oil was not discharged.

[7]           The Marathassa did discharge a pollutant into the waters of English Bay which was harmful to migratory birds.

[8]           The discharge was caused by two shipbuilder defects on the brand new vessel, which had only been in operation for three weeks.  The vessel had been built in Japan, a country with a worldwide reputation for quality shipbuilding.  Lloyd’s Register oversaw the shipbuilding, and audited an ocean trial run with the crew in operation of the vessel.

[9]           The two defects were not foreseeable to the owner or crew of the Marathassa and were only discovered after the leak of fuel oil was traced back to the area of the defects.  Those defects were also not foreseeable to the external auditors of the shipbuilding or to two experienced Transport Canada Inspectors, who spent an entire day inspecting the vessel and searching for the source of the fuel oil discharge.

[10]        The Marathassa also had extensive pollution prevention systems in place and had conducted a comprehensive crew selection and training program aimed at safety and pollution prevention, including fuel oil discharges.  The training of the crew continued onboard the ship and the crew performed training drills and equipment inspections regularly throughout the voyage.  As such, the Marathassa has proven a defence of due diligence.

[11]        In terms of the charges that the Marathassa failed to implement its shipboard pollution emergency plan, the Marathassa did implement the plan by taking samples of the fuel oil in the water and by assisting with the containment of the fuel oil.

[12]        As a result, the Marathassa is acquitted of all charges.

[13]        The Marathassa was a newly built bulk carrier which had only been in operation for three weeks prior to the discovery of fuel oil near its hull in English Bay.  The vessel was built in Japan and had travelled to Busan, Korea, where it took on the majority of the fuel oil required for its upcoming journey.  The next stop for the Marathassa was Vancouver, where it was scheduled to pick up a cargo of grain for transportation overseas.

[14]        Near Victoria, on April 4, 2015, the Marathassa picked up a marine pilot, Mr. Carey, who piloted the vessel through the challenging waterways between Victoria and Vancouver to Anchorage B in Vancouver Harbour.  There is a compulsory pilotage area from Victoria to Vancouver which requires certain vessels to retain a marine pilot to navigate through local waters, as those waters can be particularly challenging and local knowledge is imperative.  The marine pilot actually takes over the navigation of the vessel from the Captain and directs the crew as the pilot deems necessary.  Mr. Carey was on the vessel for over seven and a half hours.

[15]        A second marine pilot, Mr. Ritchie, navigated the vessel from Anchorage B to Cascadia Terminal in Vancouver Harbour on April 6.

[16]        Mr. Carey again navigated the vessel on April 7, for two hours, from Cascadia Terminal to Anchorage 12 in English Bay.

[17]        Both pilots relied on the crew to perform challenging duties and neither pilots observed anything of concern about the operation of the vessel or the performance of the crew.

[18]        On April 8, at approximately 4:30 pm, the captain of the Marathassa (“the Captain”) received a telephone call from the vessel’s agent, who advised that Transport Canada had received a report of fuel oil in the water near where the Marathassa was anchored.

[19]        The Marathassa admits that the Crown has proven beyond a reasonable doubt that on or about April 8, 2015, fuel oil was discharged into English Bay contrary to s.187 of the Canada Shipping Act, 2001, S.C. 2001, c 26, and that the fuel oil was harmful to migratory birds.  However, the Marathassa argues that the Crown has not proven beyond a reasonable doubt that the fuel oil came from the Marathassa.  No one testified to seeing it discharged and the Marathassa says that the circumstantial evidence the Crown relies upon is not sufficient to prove the offence.

[20]        The Crown has the onus of proving the offences beyond a reasonable doubt.  In this case, there is no direct evidence that anyone saw the Marathassa discharge fuel oil.  As a result, the alleged offence is based on circumstantial evidence and the Court is asked to draw certain inferences from the evidence.

[21]        It is essential when considering circumstantial evidence that the Court resist the temptation to “fill in the blanks” in the evidence to support the inference that the Crown is urging.  An inference of guilt must be the only reasonable inference that can be drawn from the evidence.  Reasonable alternatives must also be considered, including ones that do not arise from the proven facts.  If there are reasonable inferences other than that the fuel oil was discharged by the Marathassa, then the Crown has not proven the charge beyond a reasonable doubt.  See R. v. Villaroman, [2016] 1000, 1 S.C.R., paras 30 to 35.

[22]        The Crown primarily relies on observations made of fuel oil around the Marathassa, and on statements by the Captain and the Chief Engineer of the Marathassa.

[23]        Several people testified to seeing oil around the Marathassa on April 8 and April 9, 2015.

[24]        Mr. James, who was a harbour patrol officer with the Port Vancouver, was dispatched to English Bay at around 4:30 pm on April 8, 2015.  He saw significant quantities of oil in the vicinity of the Marathassa, which grew in quantity as he got closer to the vessel.  As he boarded the vessel that evening, he smelled a strong odor of fuel oil similar to the odor he smelled in the vicinity of the fuel oil in the water, and he could see fuel oil all around the vessel.

[25]        Mr. Brady, who was with the Canadian Coast Guard (“Coast Guard”), saw fuel oil in the water around the Marathassa on the evening of April 8, which became larger in quantity and concentration as he got closer to the vessel.  At the same time, he saw a bathtub ring of fuel oil around the Marathassa that was concentrated on the port quarter, which was the back left side of the vessel.

[26]        At 5:30 pm on April 8, the crew of the Marathassa noted in the vessel Rough Log Book that the Marathassa had fuel oil all around it.

[27]        Mr. Burt, who was with Western Canada Marine Recovery Corporation (“Western Canada Marine”), which recovered much of the fuel oil around the Marathassa, testified that there was a bathtub ring of fuel oil around the Marathassa when he approached it on the morning of April 9.  Mr. Burt also testified that it appeared that the Marathassa had fuel oil either attached to its hull or coming out of its ballast vents. 

[28]        In the late hours of April 8, or early hours of April 9, Mr. Burt and another employee of Western Canada Marine placed a boom all around the Marathassa to contain the fuel oil near the Marathassa for clean up.  According to Mr. Burt, once the Marathassa was boomed, the fuel oil inside of the boom was growing, but it was not growing outside of the boom.

[29]        Kim Pearce and Robert Whittaker are both employed with the Marine Aerial Surveillance Team with Environment Canada.  They conducted aerial surveillance of English Bay after the report of fuel oil.  Mr. Whittaker testified that he saw fuel oil around the Marathassa on the morning of April 9, and Ms. Pearce also testified that she saw fuel oil around the Marathassa on the morning of April 9.

[30]        Mr. Courschesne was a marine diver retained by the Marathassa to search for any signs of a fuel oil leak from the vessel.  Mr. Courschesne initially testified that on April 9, he found quite a bit of fuel oil coming out of an overboard discharge pipe on the back left side of the vessel.  He clarified in cross-examination that what he actually saw were fuel oil stains on the inside of the discharge pipe, but he could not say definitively that fuel oil came out of the pipe.  The fuel oil stains extended far enough inside of the discharge pipe that it did not seem to him that the fuel oil splashed into the discharge pipe from outside of the vessel, but he could not say for certain.

[31]        It should be noted that the discharge pipe, in which Mr. Courschesne observed traces of fuel oil, was not intended for the overboard discharge of fuel oil.  Rather, it was used to discharge non-toxic fluids overboard, such as water used to rinse parts of the vessel, or water placed in various compartments to balance the vessel when it was not fully loaded with cargo.

[32]        Once Mr. Courschesne reported to the Captain and Chief Engineer that he found fuel oil inside one of the overboard discharge pipes, the Chief Engineer conducted a further investigation of the vessel.  The piping from the overboard discharge pipe led back to a pipe passage compartment.  That compartment is a confined space at the bottom of the vessel where piping from various areas of the vessel passes through.

[33]        The confined area can only be accessed through a manhole on one of the lower floors of the engine room.  The manhole cover is bolted to the vessel floor and is not routinely opened, since it can be deadly to enter a confined area before ventilating it for a period of time.  In order to enter the area, a written form has to be completed, the Chief Officer has to check the air quality to ensure the area has been properly ventilated, and then the Captain has to sign the final approval for entry. 

[34]        The discovery of the fuel oil in the overboard discharge pipe prompted the Chief Engineer to investigate the pipe passage compartment to attempt to trace the source of the fuel oil in the discharge pipe.  When the Chief Engineer entered the pipe passage compartment, after it was adequately ventilated, he found a significant amount of fuel oil in the compartment.

[35]        According to statements made by the Chief Engineer and the Captain to Transport Canada, the observation of fuel oil in the pipe passage was a complete surprise.  The area is a contained area where there should be no fluids.  In addition, the piping system from the pipe passage to the overboard discharge pipe was intercepted by a valve, which was closed at the time.  As a result, fuel oil should not have been able to travel from the pipe passage compartment to the overboard discharge pipe.

[36]        The statements by the Chief Engineer and the Captain to Transport Canada about the reasons for the discharge of the fuel oil were entered into evidence with the consent of the Marathassa at trial.

[37]        According to both the Chief Engineer and the Captain, there were three causes of the discharge of the fuel oil from the Marathassa.  The first cause was that fuel oil leaked from one of the fuel oil tanks into the pipe passage compartment through holes in a fuel tank created by improperly installed fuel alarm sensors.  Although not required by regulation, the Marathassa opted to have fuel alarm sensors installed in all of the fuel tanks as an additional pollution precaution.  To install the alarms, a hole is created in the wall of the fuel tank and a floating sensor is inserted through the hole into the inside of the tank.  If the fuel in the tank rises to the level of the floating sensor, then the sensor will activate an alarm. 

[38]        Fuel alarm sensors are used during the fueling process to ensure that tanks are not overfilled, which could result in spillage.  For that reason, they are also referred to as high level alarms, as they measure the high level of the fuel oil in the tank.

[39]        The housings to the fuel alarm sensors are bolted to the outside of the fuel tank through four additional holes once the floating sensor is inserted inside of the tank.  In total, there are five holes in a fuel oil tank for each of the sensors.  There is one hole through which the floating sensor is placed, and four holes through which bolts are inserted to secure the housing of the sensor to the fuel tank.  Once the housing is properly bolted to the fuel tank, there is an airtight seal created for all five holes.

[40]        When the Chief Engineer investigated the pipe passage compartment, he found three fuel alarm sensors not properly bolted to the side of the fuel tank.  One of the sensors and its housing were hanging on the inside of the pipe passage compartment, leaving five open holes in the fuel oil tank where the sensor and housing should have been attached.  Fuel oil could be observed streaming into the pipe passage from those five open holes.  The housings on the other two sensors were still attached to the fuel tank, but the bolts were either loose or missing and the housings were out of position.  Fuel oil could be seen around the housings of those two sensors and seeping out from the fuel oil tank.  A number of loose bolts were found on the floor of the pipe passage compartment.

[41]        According to both the Chief Engineer and the Captain, the escape of fuel oil into the pipe passage compartment would not have, by itself, led to a discharge of fuel oil from the vessel.  The pipe passage compartment is a contained area and as long as the valve for the piping from the pipe passage is closed, any fluid in the pipe passage compartment cannot escape. 

[42]        When the Chief Engineer investigated the pipe passage and found that fuel oil had seeped in from one of the fuel tanks, he also investigated the valve which closed off the piping in the pipe passage compartment from the piping to the overboard discharge pipe.  When the valve was disassembled, it was found to have a foreign body in it which prevented the valve from making a complete seal.  Fuel oil was also found inside of the valve.

[43]        As the Captain explained to Transport Canada, a critical event occurred on the morning of April 8, 2015, the day that fuel oil was first observed around the Marathassa.  On that day, the crew had washed out one of the cargo holds in preparation to accept a load of grain into the hold.  According to both the Chief Engineer and the Captain, the gap in the seal of the valve between the pipe passage compartment and the overboard discharge pipe allowed fuel oil to be suctioned from the pipe passage into the overboard discharge pipe.  This occurred when water was being suctioned from another area for the cargo cleaning exercise.

[44]        The Marathassa argues that the statements by the Chief Engineer and Captain should be discounted, as they were relying on the report of the diver that there was fuel oil in the overboard discharge pipe and were only providing possible explanations as to how the fuel oil may have got there.  Although it is correct that neither the Chief Engineer nor the Captain personally observed the discharge of fuel oil into English Bay, they are both very experienced mariners who investigated the source of the pollution.  Both the Captain and the Chief Engineer were familiar with the piping arrangement on the Marathassa, and the Chief Engineer provided a piping diagram to Transport Canada on which he demonstrated how the fuel oil was suctioned from the pipe passage compartment through the faulty valve.  The explanations of the Captain and Chief Engineer are very compelling, and the physical evidence accords with their explanations.

[45]        The Marathassa also argues that neither the Chief Engineer nor the Captain testified that fuel oil from the Marathassa was discharged into the water.  Rather, they only explained how the fuel oil may have got into the overboard discharge pipe. 

[46]        It is significant, however, that the Chief Engineer was asked by the Transport Canada Inspector, “Do you know what happen (sic), why the spill?” He was not asked whether he knew how the fuel oil got into the overboard discharge pipe.  The Chief Engineer later stated, “Now to --to start to have pollution we have three times, three case (sic).  The first we have leakage from the sensors, high alarm.”  It is abundantly apparent that the Chief Engineer was providing an explanation of the spill of fuel oil, and the pollution of the water by fuel oil.

[47]        Similarly with the Captain, who stated, “…and this is the first time that I imagine the spillage was coming out from this -- light spillage coming out from my ship.” The Captain further stated that when they learned that there was fuel oil in the overboard discharge pipe, the engineers traced the piping back to the pipe passage compartment, which was then opened and the sensors were found not properly bolted to one of the fuel tanks.

[48]        According to the Captain, that situation, combined with the faulty valve, caused the discharge of fuel oil overboard.  In particular, the Captain stated, “Overboard leakage because of the valve, the local valve did not touch the base, did not closed (sic) properly because of some foreign body in between.”  Clearly, the Captain was referring to the discharge of fuel oil into the water when he referred to the “spillage coming from my ship” and the “overboard leakage” being caused by the faulty valve.

[49]        The totality of the evidence is very compelling that on or about April 8, 2015, the Marathassa discharged fuel oil into the waters of English Bay.  In particular:

[50]        It is a reasonable inference that fuel oil was discharged by the Marathassa into the waters of English Bay during the cargo washing exercise on the morning of April 8, 2015.

[51]        The Marathassa submits that there are reasonable alternatives, such as that fuel oil was discharged by one of the many other vessels in the area.  Alternatively, that the fuel oil was discharged by another vessel not in the vicinity and the tide carried the fuel oil towards the Marathassa.  In either case, the Marathassa argues that the fuel oil may have simply floated into the overboard discharge pipe of the Marathassa.  In support of the alternative theories, the Marathassa relies on the evidence of witnesses that streams of fuel oil were seen to the west of the Marathassa in the early evening of April 8, flowing easterly towards the Marathassa.

[52]        In terms of the theory that another vessel in the vicinity discharged the fuel oil, Mr. James testified that beginning at 6:00 pm on April 8, he checked “all of the vessels" in the immediate vicinity of the Marathassa and none had substantial signs of fuel oil around them or in the immediate area.  At the same time, the Marathassa had a concentration of fuel oil around it.

[53]        Mr. Brady and Mr. Burt both testified that although they checked the other vessels in the vicinity, the Marathassa was the only vessel with a black oil ring around the hull.

[54]        Mr. Whitaker testified that when they conduct aerial surveillance they do not just accept a report that a certain ship is the source of a discharge.  Instead, they check all other vessels in the vicinity.  On April 9, the fuel oil was only around the Marathassa and not any of the other vessels in the vicinity.

[55]        It is not a reasonable inference that fuel oil was discharged by another vessel in the vicinity.

[56]        It is also not a reasonable inference that the fuel oil was discharged by a vessel not in the vicinity, and the tide washed the fuel oil to the Marathassa.  If that were the case, the other vessels in the vicinity of the Marathassa would also have fuel oil around them.

[57]        In terms of some of the fuel oil being spotted west of the Marathassa flowing easterly, the evidence was that the tide flowed to the west of the Marathassa in the morning of April 8, and then changed to flow east towards the Marathassa in the late afternoon.  Therefore, if the Marathassa discharged fuel oil during the hold washing exercise on the morning of April 8, some of the fuel oil would have been pushed westerly in the morning and then pushed back easterly in the late afternoon.  Despite the tides, the Marathassa continued to have a heavy concentration of fuel oil around its hull throughout all of the tidal movements, while the other vessels in the vicinity did not.

[58]        All alternative theories are speculative and do not reasonably support an inference other than that the Marathassa discharged fuel oil into the waters of English Bay.  They also do not explain the presence of the fuel oil in the pipe passage compartment or inside the defective valve, or in the overboard discharge pipe.

[59]        The only reasonable inference is that the Marathassa discharged fuel oil into the waters of English Bay on April 8, 2015, while also discharging cleaning water from a cargo hold.  The Crown has proven that charge beyond a reasonable doubt. 

[60]        By admission of the Marathassa, the Crown has also proven beyond a reasonable doubt that the discharge of fuel oil by the Marathassa was harmful to migratory birds.

[61]        The Defence of due diligence is often available by statute.  In this case, s. 254 of the Canada Shipping Act, 2001, provides that:

[62]        Section 13.17 of the Migratory Birds Convention Act, S.C. 1994, c. 22, similarly provides a defence of due diligence.

[63]        In addition, all strict liability offences are afforded a defence of due diligence at common law.  The defendant will not be found guilty of the offence if the defendant can establish that it was operating under a mistake of fact or took all reasonable steps to prevent the offending conduct. 

[64]        The onus for establishing on a balance of probabilities, that there was a mistake of fact or that all reasonable steps were taken, is fully on the defendant.  The greater the potential harm, the higher the burden.  In cases of pollution, the burden is considered to be very high.  See R. v. Gonder, [1981] Y.J. No. 16, 1981 Carswell Yukon 8 (YKTC), and R. v. Gulf of Georgia Towing Co. Ltd., 1979 CanLII 483 (BC CA), [1979] 3 W.W.R. 84, 10 B.C.L.R. 134 (BCCA).

[65]        In advancing a due diligence defence, the Marathassa was unable to rely on the crew of the Marathassa to testify at trial.  The crew apparently refused to testify because the Crown indicated that it would take the position that the employer, Alassia, was attorning to the jurisdiction of the Court.  Since the crew members were located in foreign countries, the Marathassa could not subpoena the witnesses to trial. 

[66]        The fact that the Marathassa was unable to summons any of the crew to trial does not in any way reduce its obligation to prove on a balance of probabilities that it exercised due diligence.

[67]        The evidence of due diligence presented by the Marathassa consisted of the formal statements of the Captain, Chief Engineer, 2nd Officer and 3rd Officer, which the Crown tendered into evidence, along with various documents primarily tendered by the Crown.  In addition, three expert witnesses testified as to industry standards and practices. 

[68]        Mr. Stenvik testified for the Marathassa.  He was qualified as an expert in the shipping industry. In particular, practices regarding shipping management, including procedures regarding building, delivery, crewing and overseeing operations of bulk carriers engaged in international trade.

[69]        Mr. Behramfram also testified for the Marathassa.  He was qualified as an expert in the history of classification societies, and standards and procedures of classification societies regarding ships engaged in international trade.  His expertise included class involvement during building, certification and delivery, and integrated management system approval, implementation and compliance.

[70]        Captain Nelson was called by the Crown as a rebuttal expert on the defence of due diligence.  He was qualified as an expert in the characteristics, navigation and safe operation of coastal and ocean going cargo vessels, including bulk carriers.  He was also qualified in the area of the training requirements, duties, and responsibilities of captains, officers, and crew in regards to such vessels and those onboard, except for the training requirements of the engineering crew.

[71]        Captain Nelson was further qualified as an expert on the process, procedure, and best practices regarding joining a vessel, and crew familiarization both with respect to being a first crew and a replacement crew.

[72]        All of the experts impressed me as being very knowledgeable in their areas of expertise.  None of the experts were significantly challenged on cross-examination although each of them acknowledged areas in which they had limited or no recent experience.  The weight of their evidence in those areas must be assessed accordingly.

[73]        Overall, I found all of the witnesses to be credible and reliable, with the exception of Inspector Waheed and Captain Yeung, whose testimony I extensively reviewed in my Reasons dated April 20, 2018.

[74]        There were occasions when witnesses clarified their evidence or made concessions on cross-examination.  In those cases, their initial statements are made less reliable by the clarifications and concessions.

[75]        The Crown has argued that the Captain’s credibility should be questioned since he stated that he only saw streams of oil from the west, as opposed to a ring of oil around the hull of the vessel, as observed by the employees of Port Vancouver and the Coast Guard.  However, those observations by Port Vancouver and the Coast Guard were made after 9 pm on April 8, and during the day on April 9.  The Captain’s observations were made after he received a telephone call from the ship’s agent at 4:30 pm.  He took photos of the observations he made, and those photos were reviewed by Port Vancouver.  Port Vancouver verified that the photographs showed patches of oil west of the vessel.  Although the Rough Log Book recorded that oil was surrounding the vessel at 5:30 pm, that observation is not necessarily inconsistent with the observations made at 4:30 pm by the Captain.

[76]        The Captain also stated that when a Barge arrived to deliver oil, neither he nor the Barge personnel thought the fuel oil was coming from the Marathassa.  Similarly, none of the members of Port Vancouver or the Coast Guard knew where the fuel oil was coming from until they formed an opinion at 11:30 pm that the fuel oil was coming from the Marathassa.

[77]        The Crown also says that the statements of the Captain, Chief Engineer, 2nd Officer and 3rd Officer should be carefully scrutinized as the crew members had an interest in protecting themselves and their employer from any wrongdoing.  The statements were taken by a member of Transport Canada who was a former police officer.  The statements were tightly controlled by the interviewer, and often when the witnesses were providing answers the interviewer did not appear to prefer, the witnesses were abruptly cut off by the interviewer.

[78]        Overall, the statements accorded with the documentary evidence and were not inconsistent with the other evidence in any significant way.  The statements also differed in enough ways that it did not appear that the crew had colluded in the information they provided to Transport Canada.  There is simply no reason to discount the statements, which were tendered by the Crown.  I have taken into account that none of the participants of the statements, including the interviewer, spoke English as a first language and so there were often misunderstandings between the parties, which I have noted when necessary.

[79]        The seminal case on the availability of a due diligence defence is R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, where the Court noted at para 60:

[80]        The Marathassa argues that it reasonably mistakenly believed that the vessel was built to international shipping standards and was free of any defects which would cause a discharge of fuel oil.  In support of that argument, the Marathassa points to the extensive regulatory requirements and the external auditing of the shipbuilding process.

[81]        The Marathassa further submits that it took all reasonable steps to avoid the discharge of fuel oil.

[82]        Ships must be registered in a country, which is then known as the ship’s “flag state”.  The country or flag state undertakes responsibility for certification and inspection of the ship in accordance with the requirements of international conventions.  The International Maritime Organization has three lists of flag states, which are distinguished according to the quality of their processes. 

[83]        The Marathassa was registered with a white flag country, which, according to Transport Canada, has the highest standards and safety requirements.

[84]        Flag states typically delegate the responsibility for the inspection and certification of ships to a registered organization called a classification society.  Those classification societies have the technical expertise to carry out the inspections of ships and crew for the purpose of issuing statutory certifications.

[85]        The classification society chosen by the Marathassa was Lloyd’s Register, which is based out of the United Kingdom, and is a world leading classification society.  It acts as a registered organization for many flag states including Canada, and is considered by Transport Canada to be a high ranking classification society with high quality surveyors.

[86]        Lloyd’s Register was responsible for performing verification surveys for the design, construction, and lifetime maintenance of the Marathassa.

[87]        The uncontested evidence from Mr. Stenvik was that Japan is one of the highest ranking shipbuilding communities in the world.  Further, that shipowners pay a premium to Japanese shipbuilders to receive a higher quality and more consistent quality of vessel.  Also, according to Mr. Stenvik, shipbuilders in Japan have very, very good quality assurance systems.  The Marathassa was built by a shipbuilder in Japan, which was approved by Lloyd’s Register. 

[88]        The Marathassa was built to include pollution prevention equipment not required by any international convention.  In particular, the Marathassa was voluntarily built to a Lloyd’s Register ECO standard, which according to Mr. Behramfram, means that the ship is a “safer ship from an environmental pollution perspective.”  One example, is the installation of high level alarms in the fuel oil tanks to prevent accidental overflow and spillage.

[89]        The International Convention of Safety of Life at Sea (“SOLAS”) is an international maritime treaty which governs the construction, equipment and operation of merchant ships, including the Marathassa.  SOLAS requires compliance with the International Safety Management Code (“ISM Code”), which provides an international standard for the safe operation of ships and for pollution prevention.

[90]        The ISM Code requires ships to obtain a Safety Management Certificate.  To do so, the ship must have a safety management system, which must be onboard the ship for the reference of the crew.  The Marathassa’s safety management system was contained in an Integrated Safety Management Manual (“ISM Manual”).  The ISM Manual is specific to types of ships, in this case bulk carriers. 

[91]        Once an ISM Manual is created by a shipowner, an internal audit is required in the shipowner’s office to ensure that the personnel are familiar with the ISM Manual and are implementing it.  Upon completion of the internal audit, an auditor from the flag state does an external audit in the office of the shipowner.  The auditor ensures that the ISM Manual is in compliance with the ISM Code, that the systems are all in place, that the personnel are familiar with the systems and that the systems are working.  If the ISM Manual passes the external audit, the flag state issues a Document of Compliance for six months.  Following a further internal audit and external audit, a Document of Compliance is issued for five years. 

[92]        In this case, the Document of Compliance had been issued in 2013, before the Marathassa was built, and it was still valid in 2015.  In order to maintain the Document of Compliance, the shipowner must conduct an internal audit every year that is shared with the flag state, which then conducts its own external audit to verify that the system is working.  Prior to the Marathassa embarking on its maiden voyage, the safety management systems and the ISM Manual had been subject to at least two internal and two external audits.

[93]        According to Mr. Behramfram, the ISM Manual on the Marathassa not only complied with the ISM Code requirements, it included many non-mandatory items focused on safety and protection of the environment.  Mr. Behramfram testified that the ISM Manual of the Marathassa was one of the more comprehensive safety management systems that he had encountered. 

[94]        That opinion was also shared by Mr. Stenvik, who had not previously encountered an ISM Manual as extensive as the one for the Marathassa.  Notably, the ISM Manual also implemented an Environmental Management System, which was not required by the ISM Code.

[95]        As already noted, the ISM Code requires ships to have a Safety Management Certificate.  In order to obtain an interim Safety Management Certificate, the Marathassa underwent an external audit by Lloyd’s Register onboard the ship on March 13, 2015, to ensure that the Captain and ship officers were familiar with the ISM Manual and had planned arrangements for its implementation.  The external audit also verified that the ISM Manual had been given to the crew of the Marathassa. 

[96]        According to Inspector Waheed, the auditor has checklists of items to review during the external audit, as required by the ISM Code.  Those lists must be kept onboard to set out the details of the audit, and they were onboard the Marathassa.  According to Mr. Stenvik, who has been present for many external audits, the auditor checks the equipment onboard to ensure it is functioning and then puts the crew through a number of drills and procedures to ensure that the crew is familiar with the ISM Manual and is properly implementing it.

[97]        The flag state issued the Marathassa an interim Safety Management Certificate following the audit process, certifying that the requirements of the ISM Code had been met.  According to the experts, Inspector Waheed and the Captain of the Marathassa, interim certificates are issued to new ships for six months, recognizing that it takes time for a crew to become fully familiar with a new ship.

[98]        The Marathassa had numerous other certifications required by international conventions, including an International Oil Pollution Prevention Certificate and a Bunker Oil Pollution Damage Certificate.  The Marathassa also had a Ship Oil Pollution Emergency Plan.

[99]        The fact that the Marathassa was fully compliant with all statutory requirements and had appropriate systems in place is some evidence of due diligence, but it does not establish that the Marathassa took all reasonable steps to avoid the spill.  The  familiarization of the crew with those systems and the ongoing monitoring of the crew in the performance of their duties are also critical.

[100]     Avior Marine Inc. (“Avior”) was the crewing agent for Alassia, the ship manager of the Marathassa.  Mr. Mes, the managing director of Avior, testified about the crew selection for the Marathassa and for Alassia in general. 

[101]     Mr. Mes has been providing crew to Alassia for many years and is familiar with the systems used by Alassia for selecting and training crew.  He impressed me as a forthright and professional individual who is very knowledgeable about crewing in the shipping industry, and for Avior in particular.  According to Mr. Mes, crewing in the shipping industry is regulated in various countries, including the Philippines where Avior operates.

[102]     The Philippines is recognized worldwide for crewing ships, providing over 400,000 seafarers internationally.  Avior recruits and provides quality training of ship officers and crew.  It manages approximately 850 crew on 80 different vessels and has a pool of 1500 seafarers overall.

[103]     According to Mr. Mes, crewing agents like Avior must be licensed to recruit and deploy seafarers.  The licensing is provided by the Philippine Overseas Employment Administration Agency (“POEA”), which is an agency of the Philippine Government.  The licence issued to Avior verifies that the recruitment and placement services provided by Avior comply with the requirements of the Maritime Labour Convention 2006, of the International Labour Organization.  Avior is randomly audited by POEA to ensure compliance.

[104]     Avior also receives certification through an audit process from the Philippine Government verifying that it is complying with the International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers (STCW). 

[105]     In addition, Avior was accredited by Lloyd’s Register for the provision of manpower for ships in accordance with the International Labour Organization’s Maritime Labour Convention.  The accreditation followed a two to three day audit process, and accreditations are conducted on an annual basis.

[106]     Mr. Mes testified that Alassia had a policy of selecting crew who had worked on other ships managed by Alassia, so that the crew members are familiar with the standards, systems and the ISM Manual for the ship.  In the case of the Marathassa, all but the 2nd Officer had previously worked on ships managed by Alassia, and so were familiar with the ship’s safety management systems.

[107]     As part of the recruitment process, Avior verifies the certifications of all of the crew and their sea service.  Avior also ensures that the crew members have all of the required training, and, if not, arranges for extra training.  In the case of the Marathassa, all of the crew had the required certification, training and sea service. 

[108]     According to Mr. Mes, Alassia is one of the stricter ship managers in terms of crew selection.  Alassia also conducts an audit at least once a year to ensure that its procedures are being followed by Avior.

[109]     As the Crown points out, a due diligence defence is only made out with respect to the care taken to avoid the particular event, and is not based on a more general standard of care. 

[110]     In R. v. Imperial Oil Ltd., 2000 BCCA 553, 2000 CarswellBC 2068 (BCCA), the particular event was the escape of a highly toxic effluent from a storage container.  Imperial had a permit which allowed it to discharge effluents to a certain level of toxicity.  Imperial had expected all toxic substances over that amount would be removed by a refinery separator.  The Court of Appeal agreed with the trial judge that Imperial should have investigated the properties of the toxin in question to know whether the separator would be effective in removing it from the refinery’s effluent.

[111]     The Court found that there was information available to Imperial on the toxicity of the substance which Imperial never bothered to investigate.  In particular, a Material Safety Data Sheet produced by the manufacturer had warned that the substance was toxic to rats and rabbits and warned against letting it get into sewers and waterways.  The Court held that it was not an answer that Imperial generally had a good safety system and tested more frequently than required. 

[112]     See also R. v. Island Industrial Chrome Co., 2002 BCPC 97, 2002 CarswellBC 643 (BCPC).  In that case, the Court pointed to care that could have been taken to avoid the particular occurrence of allowing chromium to escape into a waterway.  In particular, it pointed to measures such as written procedures, supervision of employees’ work, an automatic water shut-off and a spill warning alarm.

[113]     So, although the Marathassa met and exceeded all regulatory requirements, which are numerous, it must also demonstrate that it took all reasonable steps to prevent the particular event of a discharge of fuel oil into English Bay.

[114]     The Captain of the Marathassa had worked for Alassia for five years and had specific experience with their safety systems.  He received training for one week on some of the technical equipment on the Marathassa before he arrived in Japan.  After he arrived in Japan, he received another three days of technical training.  He also completed a briefing on various topics, including, “Environmental protection related issues with particular reference to the ISM and other Company environmental management plans”.  The briefing checklist was five and a half pages long and was signed by a member of management, certifying that the results of the briefing were satisfactory for each category of the checklist.

[115]     Along with the Chief Engineer, the Captain also underwent a three week orientation on the Marathassa at the shipyard, which included Saturdays and Sundays.  According to the Captain’s statement to Transport Canada, the ISM system for the Marathassa was well organized and contained everything that was necessary in order to know about the ship.

[116]     The rest of the crew received familiarization on the Marathassa at the shipyard for a little over two weeks prior to leaving port, including Saturdays and Sundays.

[117]     According to Mr. Behramfram and Mr. Stenvik, the industry standard is for the Captain and senior officers to be on the ship two to three weeks prior to departure and the rest of the crew 5 to 6 days before departure.

[118]     By comparison, the Crown’s expert, Captain Nelson, testified that he had one and a half days to familiarize himself on a new ship as a 2nd Officer.

[119]     The familiarization time for the crew of the Marathassa met and exceeded the industry standard.

[120]     Following the familiarization at the shipyard and before the crew was permitted to serve onboard the vessel, the crew had to go through a familiarization briefing with a superior to confirm their knowledge.  In the case of the Captain, the familiarization checklist was two and a half pages and included an area on Environmental Protection Procedures.  It confirmed the Captain’s knowledge on 35 topics relating to pollution, including, “Technical and practical information associated with pollution prevention”, “Recording correct soundings of tanks”, “Ways to minimize leakages in Engine Room”, “Bilge level alarms” and “Operation, maintenance and repair of pollution prevention equipment and systems”.

[121]     Similar checklists were completed for all of the crew, each with a superior officer.  The checklists were directed at the specific duties of the crew member, but all included an area on the ISM Manual requirements and other Company management plans on environmental protection.  The checklists noted the period of familiarization, and whether the crew member had the necessary training and experience to perform their duties and were signed by the crew member and their superior.  The Crown entered all of the checklists into evidence.

[122]     The Crown notes that the 3rd Officer commented in his statement to Transport Canada that the familiarization training was not enough, in his opinion.  The 3rd Officer was asked by Transport Canada how much familiarization he received in Japan and the conversation was as follows:

[123]     The 3rd Officer seems to be echoing the views of the Captain, Inspector Waheed, and the experts, who all noted that the Marathassa was a new ship and the crew would need time to become fully familiar with it.  That accords with the rationale for issuing a six month Safety Management Certificate for new ships, which is done in order for the crew to become familiar with the ship, at which point the crew undergoes another external audit.

[124]     It is important to note that the 3rd Officer was asked how long it would take for him to be familiar with the vessel, not his duties.  When the 3rd Officer was asked to review his duties on the Bridge, he was able to explain them.  The Crown notes that the 3rd Officer stated that there were guides numbered N02 to N018 that contained the lists of duties, and that it was too much for him to remember. 

[125]     On that basis, the Crown argues that the 3rd Officer must not have known his duties as he stated that he could not remember them.  However, it seems apparent that the 3rd Officer was simply stating that there were too many duties in the 17 guides for him to remember and cite on the spot.

[126]     It is significant that when Transport Canada questioned the 3rd Officer about specific duties, he was able to describe how he performed those duties, including bunkering, responding to alarms and activities on the Bridge, or he indicated which manuals or guides he would follow when performing those duties.  For example, he pointed to the rules in the Log Book to be followed by the crew during bunkering.  Similarly, he knew he should follow the list of duties in the N02 to N018 Guides, when performing his duties on the Bridge.

[127]     Although the Crown suggests that there is no evidence that the crew actually completed the familiarization training or completed the checklists, the Crown tendered the checklists for the truth of their contents and Inspector Waheed outlined the process that Transport Canada accepted had been followed.

[128]     In addition, the 3rd Officer confirmed that he had gone through the familiarization and had filled in the checklist form.  The 2nd Officer confirmed that the Chief Mate, 3rd Officer and he had all received familiarization in the areas with which they needed to be familiar.

[129]     Most importantly, the Captain confirmed that all of the crew received their “entire” familiarization, which covered all of the equipment onboard.  The Captain recited examples of the areas of familiarization received by individual crew members.  He also stated that following the familiarization of the crew, he was confident of the crew’s knowledge.

[130]     The Captain further confirmed that he had personally received familiarization training on all of the procedures and manuals made available by the Marathassa to operate the vessel.

[131]     Although it was prudent for the Marathassa to comply with all international requirements and to have safety and pollution prevention systems in place, which met and exceeded industry standards, those systems are of no value if the crew does not follow them.

[132]     In that regard, the Crew was audited by Lloyd’s Register onboard the Marathassa before leaving Japan, and was found to be familiar with the ISM Manual and capable of implementing the requirements.

[133]     There were also systems in place to monitor the familiarization and performance of the crew onboard the Marathassa.

[134]     Each morning, the Captain met with the Chief Mate (also known as the Chief Officer), on the Bridge and reviewed the activities of the previous shift and enquired about any problems.  The Bridge is the area of the ship deck where the navigational activities are carried out and where some of the ship alarm panels are located.  The hierarchy of the deck crew is the Captain (who is in charge of all areas on the ship), Chief Officer, 2nd Officer, 3rd Officer and then other seaman.

[135]     The Engineering area is managed by the Chief Engineer (who reports to the Captain), and includes the 2nd Engineer, 3rd Engineer and other engineering crew.

[136]     After being briefed on the Bridge each morning, the Captain then spent approximately an hour with the Chief Officer reviewing the upcoming activities for the day, including any drills and maintenance to be performed.

[137]     The Captain also met with the 3rd Officer each morning and similarly reviewed the activities over the last shift and the upcoming duties of the day.

[138]     The drills that the crew were required to perform related to safety, security and environmental protection, and training videos were posted online for the crew to review.  According to the Captain, training videos were used a lot on the vessel and the drills were scheduled and well organized.

[139]     The Captain confirmed that all of the drills scheduled by the ISM Manual were always performed by the crew at the times required by the schedule.  The shipowner knew whether the drills were performed because the drills were monitored online.  There was an online system whereby the owner received a report every two hours regarding the activities onboard, including the completion of any drills.

[140]     Each day at approximately 11 am, the Captain began his inspection of any drills or maintenance that were scheduled for that day.  The 2^nd Officer and 3rd Officer joined the Chief Officer to carry out the drills.

[141]     At noon each day, the Captain met with the Chief Engineer to make a report to the shipowner about the activities of the vessel in the previous 24 hours, including, but not restricted to, navigation details, activities in the engine room and calculations for the consumption of fuel oil.

[142]     Before retiring for the evening, the Captain met again with the crew on the Bridge to review whether there were any difficulties and to review the upcoming activities for the overnight period.

[143]     The 3rd Officer verified to Transport Canada that he managed the training videos onboard.  He also recorded the results of the scheduled drills online, and he printed a copy of the results for the Captain. 

[144]     The 3rd Officer further confirmed that weekly inspections were conducted of the equipment onboard.  The 2nd Officer also verified that equipment inspections occurred and that he conducted the inspections required of him as scheduled in the ISM Manual.  The Chief Engineer and the 2nd Officer both stated that weekly testing of all of the alarms were conducted by the crew.

[145]     According to the Captain, the crew members were all successful in their familiarization, and he had no complaints about their work.  He noted that there were some “little details” to iron out as the crew became familiar with a new ship.  When commenting on whether he was satisfied with the performance of the crew, the Captain replied, “For sure.”

[146]     So, although the Crown asserts that there is no evidence that the crew actually completed the familiarization training, there is significant evidence which establishes that they did complete the training.  The Crown tendered the completed and signed familiarization checklists that Transport Canada went through in detail, testifying that they are the standard checklists in the industry.  Various members of the crew verified in statements tendered by the Crown that they completed the familiarization of the vessel training.  Significantly, the Captain verified that every crew member received their entire familiarization training and he was confident of their abilities.

[147]     In support of the statements by the Captain, Chief Engineer and the crew about the onboard training and drills, there were several entries in the official Log Book and Rough Log Book related to drills.  For example, there was an “Oil Spill Drill” on April 4, 2015, and an “Oil Pollution Evaluation” on April 5, 2015, just days before the spill.

[148]     The most compelling evidence of the crew’s familiarization, of course, is the performance of the crew onboard the Marathassa.  The crew was audited by an external auditor onboard the vessel and a Safety Management Certificate was issued.  Transport Canada found it reasonable to rely on the Certificate as proof of a proper external audit of the crew.

[149]     Two marine pilots were on the vessel for several hours on three occasions, putting the crew through complex exercises, and neither pilot had any concerns about the performance of the crew.

[150]     The Captain oversaw all drills by the crew during the voyage as scheduled by the ISM Manual, and the Captain was confident in the abilities of the crew.  The results of the drills were also transmitted to the owner.

[151]     Inspector Gill from Transport Canada spent a full day on the Marathassa putting the crew through various drills, and Inspector Waheed spent an entire day on the vessel also directing the crew to perform various tasks. Neither inspector had any concerns about the performance of the crew.

[152]     The evidence clearly establishes that properly trained crew members were hired to crew the Marathassa, the crew received the proper familiarization training to operate the vessel, an external auditor was satisfied that the crew were familiar with the ISM Manual and were implementing it, and the crew underwent constant testing and monitoring onboard the vessel to ensure that they were executing their duties in accordance with industry standards.

[153]     The Captain further confirmed that the Marathassa conducted all of the equipment inspections as required by the ISM Manual, including all of the alarm systems.

[154]     In order to succeed with a defence of mistake of fact, the defence must establish that the mistaken belief is both honest and reasonable.

[155]     In R. v. MacMillan Bloedel Ltd., 2002 BCCA 510, the company was charged with depositing a deleterious substance in Crabapple Creek.

[156]     MacMillan Bloedel operated a facility with underground pipes in Skidegate in Haida Gwaii.  In 1993, the Ministry of Environment informed MacMillan Bloedel that its underground pipes may be subject to leaks.  As a result, MacMillan Bloedel dug up and tested the pipes, which were found to be sound.  In fact, the pipes were assessed to be in “mint condition” and “like new”.  In 1997, a leak in the pipes caused diesel fuel to leak into Crabapple Creek.  Upon investigation, it was discovered that the leak was caused by microbiologically influenced corrosion, which was likely caused by the excavation of the fuel lines in 1993.

[157]     MacMillan Bloedel defended the charge on the basis of an honest belief that the pipes were in sound condition.  Alternatively, MacMillan Bloedel argued that it took all reasonable care to avoid the incident.  The trial judge rejected the due diligence defence and found MacMillan Bloedel guilty of the charge.  On a summary conviction appeal, the BC Supreme Court accepted the defence of due diligence and set aside the acquittal.

[158]     The Court of Appeal dismissed the appeal of the acquittal on the basis that MacMillan Bloedel had made out the due diligence defence of mistake of fact.  The majority disagreed with the dissenting view that:

[159]     In rejecting that view, the majority noted that the fact that the leak occurred as a result of an unforeseeable cause satisfied the first part of the due diligence defence.  In particular, Sault Ste. Marie at para 60 states, “The defence will be available if the accused reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent or, if he took all reasonable steps to avoid the particular event.” [Emphasis added]

[160]     The Court also noted that the focus must be on the foreseeability of the actions which lead to the event, not the foreseeability of the general risk of contamination.  It is sufficient for the accused to “establish that he did not know and could not have known of the hazard”.  The Court further held that whether the accused demonstrated a mistake of fact under the first branch of the due diligence defence, or took all reasonable steps under the second branch, both must be in relation to the “particular event”. 

[161]     In MacMillan Bloedel, the particular event giving rise to the charge was found to be “the discharge of fuel on May 16, 1997, into Crabapple Creek from a leak in MacMillan Bloedel’s underground pipes at Skidegate.”  The Court held that MacMillan Bloedel did not know about the hazard and honestly believed that the pipes were sound.  The Court noted that the leak was not caused by ordinary corrosion, but by microbiological corrosion, which was not reasonably foreseeable.

[162]     In this case, the particular event was the discharge of fuel oil into English Bay from defects in a fuel tank and through a defective valve.  The Marathassa argues that although the general risk of pollution was foreseeable and preventative measures were created for that risk, the shipbuilding defects which led to the particular event were not foreseeable.

[163]     Relying on Fullowka v. Royal Oak Ventures Inc., 2008 NWTCA 4, R. v. Lonkar, 2009 ABQB 345, at para 40, and R. v. Sunshine Village Corporation, 2010 ABQB 493, at para 90, the Marathassa notes that, “The legal concept of foreseeability incorporates the idea that the event is not only imaginable, but that there is some reasonable prospect or expectation that it will arise…”.

[164]     The Marathassa submits that the existence of two shipbuilding defects were not foreseeable by anyone, including those third parties who were also inspecting the vessel for any clue that the Marathassa had discharged fuel oil.  Further, that the owner, the external auditors, the crew and even Transport Canada were under the mistaken belief that the vessel had been built to industry standards free of all defects.

[165]     The Crown submits that there was no evidence at trial that the Marathassa had an honest belief that fuel tanks would not leak fuel oil into the pipe passage compartment or that the valve would not fail and allow fuel oil to leak into the overboard discharge pipe.  However, the Captain said in his statement to Transport Canada that he never considered that it would be possible to have an oil leak from a brand new ship.  The Captain further stated that no one could imagine that a valve in a brand new vessel would have a foreign body in the base, and that it was impossible to imagine.

[166]     It is noteworthy that individuals from Port Vancouver, the Coast Guard and Transport Canada were on the vessel on April 8 and 9, looking specifically for a source of a fuel oil leak, and none of them considered it prudent to check the pipe passage compartment for a leak from one of the fuel tanks.  In addition, none of them considered it prudent to check all of the valves to ensure they were tight, or, if they did, they did not find any concern.  Inspector Waheed, in particular, knew that there had been a cargo hold washing process on the morning of April 8, and yet there is no evidence that he checked the valve in question, or, if he did, had any concerns about it.

[167]     It is fair to say that not only did the Marathassa have an honest belief that there were no defects in a fuel tank or in a valve, but so did every person who was on the vessel investigating an oil leak.  The test for mistake of fact is that of a reasonable person in a similar situation.  See R. v. Tavares (1996) 1996 CanLII 11084 (NL CA), 144 Nfld. & PEIR 154 (N.L.C.A.) para. 28, where the Newfoundland Court of Appeal noted:

[168]     In R. v. Nitrochem, [1992] O.J. No. 3890, 1992 CarswellOnt 215 (ONCJ Prov. Division), a trucking company had to remove nitric acid from one of its tanker trucks following a motor vehicle accident.  One of the emergency valves on the truck dissolved when the nitric acid was being transferred through an emergency unloading hose, causing a spill of nitric acid.  It turned out that the emergency valve was made from a material called monel, rather than stainless steel, as the trucking company honestly believed. 

[169]     The company called evidence that all of the valves it ordered for its tankers were stainless steel; the tanker in question was a used tanker which the company acquired when it purchased another company; the tanker was described as a “stainless steel tanker”; it was an industry standard that stainless steel tankers have stainless steel valves; the monel valve had been placed on the used tanker as a special order; and monel valves cannot be visually distinguished from stainless steel valves.

[170]     The Court commented at para 98, that if the company had “purchased a new tanker and indicated stainless steel Betts valve, then it is reasonable to assume it will be stainless steel.  This valve was purchased along with a fleet of trucks.”

[171]     While it is prudent to have an inspection conducted of a used vehicle or vessel, it is not expected on a brand new vehicle or vessel.  As Mr. Behramfram noted, it is industry standard for both the external auditor and the owner to rely on the quality control processes of the shipbuilder of the vessel.

[172]     In this case, where the ship was brand new and the construction had passed an external audit, it was reasonable for the owner and crew of the Marathassa to believe that the ship was free of defects.  As such, the honest belief of the Marathassa was also reasonable.

[173]     The Crown notes that a due diligence defence requires that the event be unforeseeable, or that all reasonable steps were taken to avoid the foreseeable risk.  The Crown submits that the leak of fuel oil from the fuel oil tank into the pipe passage compartment was foreseeable, for several reasons.

[174]     The Crown argues that the Marathassa should have checked the faulty valve to ensure that it was fully tightened.  The Crown says that if the crew had checked the valve, they would have discovered the debris and avoided the leak of fuel oil.

[175]     It was the evidence of Mr. Behramfram that valves are certified by the classification society.  Mr. Stenvik and Captain Nelson agreed with Mr. Behramfram that shipowners are not expected to dismantle and inspect ship valves upon taking delivery of a ship.

[176]     According to Mr. Stenvik, valves are inspected before they are installed and then during pressure testing of the piping and tanks.  After the ships is delivered to the new owner, valves will generally be examined every five years.

[177]     Mr. Stenvik also stated that you can tell whether a valve is closed by looking at the spinnaker on the valve which will be higher if it is open and lower if it is closed.  You can also feel the spinnaker for tightness.

[178]     There are numerous valves on a vessel the size of the Marathassa.  According to the expert witnesses, the crew would only be expected to examine valves when they are involved in an operation onboard, to ensure that they are open or closed, as required.

[179]     The Chief Engineer was positive that the valve in question had not been touched during the voyage, as there were no procedures which required the valve to be opened.  So, the valve was in the same closed position during the cargo washing process as it was in when delivered by the shipbuilder.

[180]     According to the Captain, after the Marathassa was apprised of an oil spill on April 8, the crew sounded the tanks and checked the valves.  Nothing was found which indicated a leak may have occurred.

[181]     When the crew examined the subject valve again, after fuel oil was found in the overboard discharge pipe, the valve was fully tight when checked by hand.  It was only when a wrench was used to try to force the valve tighter that some play was found in the valve and it moved a little bit. 

[182]     Mr. Stenvik and Mr. Behramfram both agreed that you would tighten a new valve by hand unless it could not be done by hand, and then you would use a wrench to close the valve.

[183]     Captain Nelson initially stated that you would tighten all valves with a wrench. Later he stated, “the--normally on a new ship, you wouldn’t close a valve with a wheel key.”  Then moments later, he said you would use a wrench on a new valve to give it an extra tug.  The evidence was contradictory, and I prefer the evidence of Mr. Stenvik and Mr. Behramfram that new valves are tightened by hand unless a wrench is required.  Since the defective valve appeared fully tightened by hand, there would be no reason to use a wrench on it.  A wrench was only used after oil was discovered in the discharge pipe and the pipe passage, because the crew then knew that there must be a gap in the valve.

[184]     The Crown points to a log book entry which notes that various valves in the engine room were greased, suggesting that the subject valve may have been opened then.  There is no evidence that the valve in question was one of the valves which was greased, and the Chief Engineer was emphatic that it had never been touched.

[185]     The Crown notes that cargo washing procedures also occurred at sea prior to April 8.  The Crown argues that the valve would have had a gap in it then because of the debris, and crew should have noticed the discharge of oil during those earlier procedures.  However, there is no evidence that any oil was discharged, and the Captain was not certain whether the same pump was used on April 8, as for the earlier washes.  Also, it is not known when prior to April 8, the alarms became dislodged and when oil entered the pipe passage compartment.  The alarms could have become dislodged on April 7, or on any day after the previous cargo washing procedure, in which case there would have been no escape of oil.

[186]     The valve would have appeared closed to all those who observed and/or tried to hand tighten it.  As previously noted, when Inspector Waheed was conducting his detailed inspection on April 9, looking for evidence of an oil leak, he knew there had been a cargo rinsing operation on April 8.  Although valves are a known risk for causing a leak of fuel oil if they are not closed for certain operations, Inspector Waheed either did not check the faulty valve, or, if he did, he did not find anything amiss.  That is because the valve appeared and felt closed.

[187]     Most significantly, the argument by the Crown that the Marathassa could have avoided the spill if the crew had tightened the valve with a wrench is not supported by the evidence.  The evidence is clear that even after the valve was tightened with a wrench, the valve was not fully sealed and there was debris in the valve.  According to Mr. Stenvik, even the smallest gap in a valve seal will cause fuel oil to leak.  The debris was not visible and the crew would have no reason to disassemble the valve without knowing about the fuel oil in the discharge pipe and the pipe passage compartment.  Therefore, even if the crew used a wrench to tighten the valve before the cargo washing exercise, the spill would not have been avoided.

[188]     It was not foreseeable to the crew or to Transport Canada that fuel oil may have leaked through the valve in question.  It was only with 20/20 hindsight that it was recognized that fuel oil must have leaked through the valve in order to reach the discharge pipe.  That knowledge led to the valve being disassembled, at which time debris and fuel oil were then visible.

[189]     The Crown notes that there was a discrepancy between the amount of fuel oil that the Marathassa expected to consume each day on the voyage from Busan to Vancouver and what was actually being consumed, which should have alerted the Captain that fuel oil was missing.  However, according to the Captain, there was not a remarkable discrepancy which would cause the crew to investigate missing oil.  It was the first voyage for the vessel, so the exact rate of expected consumption was unknown.  The vessel had also encountered very rough weather, so it was not unusual to have some discrepancy.  Mr. Stenvik agreed that there are lots of variables on a voyage that can cause a consumption discrepancy and it is only if the discrepancy is significantly large that you would suspect there is a leak.

[190]     The Crown argues that the Marathassa should have physically measured the fuel oil in the fuel tanks each day to ascertain whether fuel oil was missing.  The Crown argued that a significant reduction in fuel oil could indicate that there is a leak.  Although, as already noted, there was not a significant discrepancy in fuel oil consumption during the voyage.

[191]     There were two ways of measuring fuel oil in the fuel tanks on the Marathassa.  One was by relying on the flow meters, which provided instrument readings of the fuel levels.  The other was to physically measure the level of the fuel in the tanks by a process called sounding, which involves inserting a dipstick into the tanks, similar to measuring oil in a motor vehicle. 

[192]     Soundings are the most accurate measurement of the amount of fuel oil in a fuel tank and the ISM Manual required daily soundings.  The Crown says that if the crew had sounded the fuel tanks every day it would have been apparent that fuel oil was missing and the crew would have checked the pipe passage compartment.

[193]     The difficulty is that soundings are not accurate in rough seas because the vessel is being tossed around, causing fuel oil to slosh around in the tanks, resulting in false sounding readings.  Except for a few days of the journey from Busan to Vancouver, the Marathassa was in very rough weather, so the soundings would not have been accurate.  Even if soundings could be taken on the few days of good weather, they could not be compared to soundings taken in poor weather, because those soundings would not be accurate.  So the soundings taken in good weather would not be useful.

[194]     Captain Nelson testified that there are calculation tables that can be used to account for a vessel listing.  However, listing is where the vessel is tilting to one side, and when the fuel is concentrated on one side of the ship.  The Marathassa was not resting on one side, it was rocking strenuously back and forth.

[195]     The Captain, in consultation with the Chief Engineer, decided to rely on the flow meter readings, which was reasonable.  Those readings did not show a significant discrepancy in the consumption of fuel oil from day to day.

[196]     In addition, the crew did sound all of the tanks on the evening of April 8, after fuel oil was observed in the water surrounding the Marathassa, and they did not conclude that there was any missing fuel oil.

[197]     The strongest evidence that soundings of the tanks would not have led the crew to conclude that there was fuel oil missing, is the evidence of Inspector Waheed’s actions.  He demanded that the crew sound all of the fuel tanks again shortly after beginning his investigation of a fuel leak on the Marathassa on April 9, 2015. 

[198]     Despite having all of the previous soundings of the tanks and despite being of the view that the Marathassa was leaking fuel oil, Inspector Waheed did not conclude that fuel oil was missing.  In fact, when Inspector Waheed had completed his investigation at the end of the day, he reported to his superior at Transport Canada that there was no evidence of an oil leak from the Marathassa.  He specifically stated that all of the fuel tanks were sounded and the soundings were “ok”.

[199]     The Captain and Chief Engineer had a valid reason for relying on the flow meter readings during the voyage.  The evidence establishes that even if the tanks had been sounded every day, the soundings would not have indicated that there was any missing fuel oil.

[200]     The Crown further argues that if the crew had sounded the pipe passage compartment, they would have discovered that there was fluid in the pipe passage.

[201]     The ISM Manual requires that empty compartments, like the pipe passage compartment, be sounded regularly, but not daily like the fuel tanks.  The Captain noted that since the vessel had only been in operation for 3 weeks, the empty compartments were all recently inspected and ensured to be dry.  Therefore, there was no reason for the Marathassa to sound the pipe passage so soon after departure. 

[202]     It is notable that Inspector Waheed did not request that the pipe passage be sounded until it was known that fuel oil was in the pipe passage compartment.  As with the crew, it was not foreseeable to Inspector Waheed that fuel oil may have leaked into the pipe passage from holes in a brand new fuel tank on a brand new ship.  It was only foreseeable once traces of oil were found by the diver in the overboard discharge pipe and the piping was traced back to the pipe passage compartment, where oil was also found.

[203]     The Crown suggests that the Captain did not know that there was a pipe passage on the Marathassa.  The Crown relies on comments made by the Captain while interviewed by Transport Canada.  Inspector Waheed asked the Captain when he learned about a pipe passage alarm, and the Captain answered by giving a long explanation of not being aware that there was a duct keel onboard.  Inspector Waheed had been incorrectly referring to the pipe passage as a duct keel.  The Marathassa did not have a duct keel. 

[204]     The Captain explained that he did not think that ships had been built with duct keels for the last 20 years and that the Marathassa did not have a real duct keel.  It appears that the Captain was responding to Inspector Waheed’s earlier assertion that there was a duct keel on the Marathassa.

[205]     It was clear from the Captain’s full statement, that he knew there was a void space where the pipe passage was located and he talked about the specific concerns about void spaces and how they had to be entered.  He also knew that void spaces have to be sounded periodically to check for any unwanted fluids.

[206]     The process for a bulk carrier to take on fuel is called bunkering, and it is a process which presents risks for fuel oil spills.  For that reason, the Marathassa had a comprehensive process for bunkering.  The Crown does not take issue with the recommended procedure, but argues that there is no evidence as to how the bunkers were actually received by the Marathassa in Busan, or whether the procedures in the ISM Manual were followed by the crew.

[207]     The Captain reported in his statement that there is a three step process for bunkering and that he ensured it was followed in Busan. 

[208]     The Captain stated that when they receive instructions from an owner as to the amount of fuel to accept, they have to calculate how much fuel is already onboard to ensure that they will not be over capacity, which could result in spillage.  The crew then calculates how much fuel will be put in each fuel tank and what the target sounding should be.  For example, the target sounding might be that the tanks only be filled to 90 percent capacity.  There are crew members assigned by the ISM Manual to those pre-bunkering tasks.

[209]     The Captain stated that in Busan, he and the Chief Engineer calculated the amount of fuel they could accept and their target soundings for the fuel tanks.  One of the officers does the soundings during the bunkering and provides continuous information about the progress of the bunkering.

[210]     The 3rd Officer indicated in his statement that during the bunkering in Busan, he was on the Bridge and was responsible for monitoring the bunkering barge, along with another seaman.  He stated that the engineers monitor the fueling process.  The 3rd Officer pointed out the Rules for bunkering to Transport Canada as contained in the Official Log Book.

[211]     The 2nd Officer stated that he was also on the Bridge during the bunkering in Busan and one of his duties was to record the times that the bunkering was started and finished, as communicated to him by the engineering crew.  He saw the 2nd Engineer and the 3rd Engineer on the deck taking soundings of the fuel tanks to see whether they had reached the target amount.

[212]     The Chief Engineer stated that when the bunkering was started in Busan, he sent all of the engineers into the engine room to check for any leakage.  When the bunkering was occurring, he stopped the bunkering when the high level alarms were reached for each tank.  The tanks were filled to between 90 and 92 percent of capacity.  When the tanks reached that point, the engineers informed him and he directed them to close the valve on that tank and to open the valve on the next tank to receive bunkering.  He also relied on the high level alarms to indicate when the target capacity had been reached.

[213]     So, the evidence before the Court was that the process for bunkering as contained in the ISM Manual was followed, soundings were done of the tanks during bunkering, the high level alarms were also utilized to assess the capacity of the tanks and the fuel tanks were all checked during the bunkering for any leakage.  In addition, the Marathassa had two surveyors onboard monitoring the bunker process, which is not required by any conventions.

[214]     There is no support for the Crown’s assertion that there is no evidence as to the process followed for bunkering in Busan.

[215]     The Crown also asserted that there must have been some leakage into the pipe passage when the tanks were filled in Busan because the high level alarms were dislodged.  However, it is not known when they became dislodged.  It is known that they were dislodged on April 9, 2015, when they were discovered.  The only reasonable inference is that they were also dislodged on April 8, 2015, which led to a discharge of fuel oil into the pipe passage compartment and through the faulty valve to the overboard discharge pipe.  The position of the alarms prior to April 8, 2015, is not known.  Clearly, they were functioning properly during the bunkering procedures as the Chief Engineer relied on them and the soundings to know when the tanks were filled to target capacity.

[216]     The Crown notes the evidence of Inspector Waheed that he found water still in the cargo hold on April 15, and that the Chief Engineer commented that the cargo hold was draining slowly on April 8.  The Crown argues that the crew should have investigated the slow leaking cargo hold.

[217]     However, the evidence of Inspector Waheed does not accord with the other observations.  On the evening of April 8, Mr. James asked the Captain whether bilges had been discharged from the ship.  Bilges are volumes of water that fill empty cargo holds to balance the ship on ocean voyages.  They are emptied into the surrounding water when the vessel is ready to take on cargo.  The Captain had told Mr. James that bilges had not been emptied, as they had not.  However, one of the holds had been washed with fresh water.  Mr. James inspected the cargo hold and testified that the holds were clean of any fuel oil traces or other substances.  Had Mr. James found water in any of the cargo holds he would have noted it, as he was looking specifically for traces of activity in the cargo holds.

[218]     Mr. Brady also checked the cargo hold at approximately 11:30 pm on April 8, as the Captain told him they had washed the cargo hold and discharged the cleaning water earlier in the day.  Mr. Brady also did not find any concerns with the cargo hold.

[219]     Inspector Waheed acknowledged in cross-examination that Inspector Gill would have checked the cargo holds during his inspection on April 9, to ensure they were clean.  Inspector Gill made no notation that there was any residue water in any of the holds.

[220]     As stated in my Reasons dated April 20, 2018, I did not find Inspector Waheed to be a reliable witness and I found that he tailored his evidence in Court.  Given the inconsistency of Inspector Waheed’s evidence with the other evidence regarding the condition of the cargo hold, I do not accept that on April 15, 2015, the Chief Engineer said the crew had difficulty draining the hold on April 8.  I note that when Inspector Waheed later obtained a formal statement from the Chief Engineer, Inspector Waheed did not ask him whether the crew had difficulty draining the cargo hold, despite the fact that the purpose of the statement was to gather evidence.

[221]     I also reject the evidence of Inspector Waheed that the Chief Engineer also stated on April 15, that no one was monitoring the cargo washing operation for pollution.  That evidence is contrary to the log book entry for the morning of April 8, 2015, which was tendered by the Crown and which states that a pollution watch was conducted.  In fact, there are notations on various dates in the Official Log Book of the crew conducting a pollution watch as required by the ISM Manual.

[222]     Again, I note that Inspector Waheed did not ask the Chief Engineer that question during the formal statement from the Engineer, which was audiotaped for the purpose of gathering evidence.

[223]     Given the lack of reliability of the testimony of Inspector Waheed, and his efforts to tailor his evidence to support the Crown’s case, unless any of his testimony is supported by other evidence, I do not place a lot of weight on it.

[224]     The Crown refers to records of alarm activity aboard the Marathassa and argues that:

[225]     The Crown also argues that the records further show that various alarms sounded throughout the three week voyage and there is no evidence that they were properly attended.

[226]     The Crown further asserts that the pipe passage alarm must have been activated during the bunkering process in Busan.

[227]     Beginning with the three alarms that the Crown says were activated in March and were never reset, the records must have been misinterpreted by Inspector Waheed or must be inaccurate.  Both Inspector Gill and Inspector Waheed went through the Marathassa with a fine toothed comb on April 9, looking for deficiencies and indications that there was a leak of fuel oil.  They specifically checked all of the alarms in the engine room and on the Bridge.  Neither inspector found anything amiss with any of the alarms.  If three alarms were continuously sounding without any response from the crew, Transport Canada would have taken immediate action.

[228]     The Chief Engineer attempted to explain during his statement that the alarm records cannot be relied upon because of something to do with work on the compressor.  However, the interviewer was speaking over top of him and so his full explanation cannot be heard.  Then, his explanation was cut off by the interviewer.

[229]     The simple fact is that alarms could not have been ringing continuously for numerous days right up to April 9, when Inspector Waheed and Inspector Gill specifically examined the alarms for any problems and found none.  In addition, both pilots who were on the ship for several hours on three occasions had no concerns about the performance of the vessel or the crew.  If the crew were ignoring alarms for hours on end, the pilots would have presumably noticed it.

[230]     In terms of the suggestion by the Crown that alarms were sounding throughout the voyage, the evidence of Mr. Stenvik was that several alarms will sound in a day because fuel oil is being transferred from one tank to another, or there is a low fuel level, or there is a high exhaust temperature or because of bilge levels, or for a variety of other reasons.  The Captain noted that there are so many alarms during the course of a voyage that they are not recorded in the Official Log Book because it would take too many volumes to record them all.  The alarms are only recorded if they indicate a problem.

[231]     There is nothing unusual about alarms ringing frequently on a ship the size of the Marathassa.  The key is that they must be investigated.  According to the statements of the Captain, Chief Engineer and two Officers, the alarms were investigated and reported as required. 

[232]     While high level alarms detect the height of the fuel in a fuel tank, the pipe passage alarm measures the presence of fluid in the pipe passage, an area which should be devoid of fluid.

[233]     The Crown argues that the pipe passage alarm must have sounded prior to the spill because there was fuel oil in the pipe passage compartment which the alarm was intended to detect.  There is no evidence, however, about where the pipe passage alarm was located in relation to the location of the fuel oil.

[234]     According to the Captain, the Chief Engineer and the 3rd Officer, the pipe passage alarm had not been activated prior to the spill.  The 3rd Officer said he would have definitely heard the alarm as it had a very loud sound when he heard it on April 14, and it lit up then as well.

[235]     The Captain noted that the pipe passage alarm was often activated after the spill when the clean-up of the pipe passage was occurring, but he was not made aware that it was activated before the area was under reparation.

[236]     The Crown points out that the Captain commented that on April 12, that the pipe passage alarm had been dimmed down so as to not disturb the crew at night.  There is nothing wrong with the alarm being dimmed down after having been activated by ongoing reparation work in the pipe passage compartment.  There is no evidence that it was ever dimmed down prior to the crew undertaking the reparation work. 

[237]     In any event, Inspector Waheed observed the alarm on April 12, despite it being dimmed down, so presumably he would have noted it on the other days had it been activated but dimmed down.  That is especially so on April 9, when he was conducting a detailed inspection and specifically looking at the alarm panels in the engine room and on the Bridge.

[238]     So, although the Crown insists that the pipe passage alarm must have been activated prior to the spill, the evidence strongly suggests otherwise.  In particular, none of the third parties onboard the ship on April 8 or 9, noted the alarm.  Significantly, neither Inspector Waheed nor Inspector Gill, who were specifically looking for alarm activity, noted a pipe passage alarm or any alarm of concern during the many hours they were on the vessel on April 9.

[239]     The Crown further asserts that the Chief Engineer did not even know there was a pipe passage alarm.  However, the Chief Engineer said in his statement that he could not understand why the pipe passage alarm had not sounded when there was fuel oil in the pipe passage, and he sent photos to the Superintendent enquiring why the alarm had not sounded.  Clearly, the Chief Engineer knew there was a pipe passage alarm, that it should have been activated and that it had not sounded.

[240]     It is not known why the pipe passage alarm did not activate on April 8 or 9, when fuel oil was in the pipe passage, but it later did activate frequently when the fuel oil was being moved around by the reparation work.  Given the defects on three other alarms, it is a reasonable inference that the pipe passage alarm may have been operating sporadically.  In any event, it was not activated when it should have been activated, and that would not be foreseeable to the owner or the crew given the regular testing of all of the alarms throughout the voyage.

[241]     It was the evidence of several witnesses that all seafarers are specifically trained to respond to alarms.  It is part of their daily training from the time they are cadets.  Every expert witness, including Captain Nelson, testified that they would expect a crew member to respond to an alarm.

[242]     The Crown points to the evidence of the 2nd Officer that there was no formal training and were no formal procedures by the Marathassa for responding to alarms.  However, there would be no reason for there to be a formal procedure to respond to an alarm.  Every seafarer knows it is their duty to respond to an alarm and how to do so.

[243]     When the 2nd Officer was asked how he would respond to an alarm, he stated that if it were an engine room alarm or a pipe passage alarm, he would notify the Chief Engineer or the engine room.  He further stated that although he did not know what a pipe passage alarm is for, he knew that it was related to the engine room and he would tell the Chief Engineer.  The 2nd Officer went on to say that if the alarms were not engine room alarms, he would notify the Chief Mate or the Captain.  Clearly, the 2nd Officer knew how to respond to alarms.

[244]     The 3rd Officer stated that he was certain that he did not ever hear the pipe passage alarm sound until April 14, when he pointed it out to the Captain. 

[245]     The Chief Engineer gave a statement that if alarms sounded or lit up during normal operations, he would assess the cause of the alarm and take action.  He further stated that no one had reported any activity by the pipe passage alarm.

[246]     The Captain set out the process for a response to alarms which was essentially the same as the Chief Engineer and two officers.  If the alarm required further investigation, the crew member would bring it to the attention of a higher ranking officer and ultimately the Captain, if it could not be resolved.  The assertion by the Crown that the 3rd Officer said he would just let the alarm ring is not accurate.  The 3rd Officer said that if the engineers responded to an alarm in the engine room and it stopped ringing, he would not respond.

[247]     The Crown argues that the 3rd Officer and the Captain did not know that a pipe passage alarm existed prior to the spill.  According to Mr. Stenvik, there are hundreds of alarm systems and alarms on a ship the size of the Marathassa.  It was clear from the statements of the Captain, Chief Engineer, 2nd Officer and 3rd Officer that they all knew that alarms must be responded to and they always responded to alarms.  The 2nd Officer and the 3rd Officer confirmed that if they did not know why an alarm was sounding, they would consult with their superiors. 

[248]     When the Captain was told about the pipe passage alarm, he understood its purpose.  He also indicated that all alarms must be investigated.  There is no reason to conclude that the Captain would not have responded to the pipe passage alarm, or any alarms, if he was advised they had been activated and not resolved.

[249]     There was no requirement for the Marathassa to have a procedure for responding to alarms, because the procedure is well known.  All of the experts, including the Crown expert, agreed that the only procedure is to investigate the alarm and to report it if it cannot be resolved, and that all seamen are aware of that requirement.

[250]     The Chief Engineer gave evidence that all of the alarms were tested on a weekly basis every Saturday for lights and sounds. 

[251]     The Captain verified that the engineers checked the alarm sounds and lights to see if they were responding to activation.  If they found a problem, they would either report it to the Chief Engineer or the Chief Officer, depending on the department that was responsible for the alarm.

[252]     The Captain also stated that on every watch, which is every four hours, the crew on the Bridge tested the operating condition of the light bulbs and buzzers to ensure that the lights and sounds were in operating condition.  That testing appears to differ from, and be additional to, the activation testing of all of the alarms which occurred every Saturday.

[253]     As indicated, there was evidence that the crew on a ship like the Marathassa is divided into two groups.  One group is the engineering crew, who report to the 3rd Engineer, 2nd Engineer, Chief Engineer and the Captain.  The other group is the deck crew, who report to the 3rd Officer, the 2nd Officer, the Chief Officer and the Captain.  According to the Captain, if the pipe passage alarm was sounded, the crew would report it to the engine room, and if not satisfied, to the Captain.  The 3rd Officer also made that statement.

[254]     The Crown notes that the Chief Engineer was asked by Transport Canada who did the testing of the alarms on the Bridge, and he replied that he did not know.  That does not mean that no one tested the alarms on the Bridge, only that Chief Engineer not know the identity of the crew member who did the testing.  The 2nd Officer stated that that he assisted one of the engineers with the testing of alarms on the Bridge.  Specifically, the engineer would call the Bridge and ask the 2nd Officer to verify whether the alarm had sounded. 

[255]     It is reasonable to conclude that the Chief Engineer would not be involved in the physical testing of the alarms and calling the Bridge, but rather supervised the testing done by his engineering crew.  The evidence of the 2nd Officer is clear that alarms were tested on the Bridge.

[256]     In terms of the alarm testing on the Bridge on every four hour watch, the Chief Engineer was not involved in those testing activities as he was not responsible for the activities on the Bridge.

[257]     The Crown points out that the crew on the Marathassa used a Rough Log Book and then later transferred the entries from the Rough Log Book to the Official Log Book.  According to the Captain, the 3rd Officer and the 2nd Officer, it is common for crews to use a Rough Log Book on vessels like the Marathassa.  The fact that notations were not transferred to the Official Log Book for 4 days prior to the spill does not seem problematic, as there is no suggestion that contemporary notes were not made in the Rough Log Book.  In fact, the Rough Log Book contains several entries for each of those days.

[258]     Given the fact that the Marathassa was a new ship which had been subject to several levels of quality assurance, the honest belief by the Marathassa that the high level alarms were properly installed and the valve was free of debris, was reasonable.  The hazards of improperly installed alarms and of debris in a valve were simply not foreseeable.  As noted in MacMillan Bloedel at para 53, “The chain of foreseeability from the cause of the event to the event itself is one and indivisible.”

[259]     The hazards were also not foreseeable to any third parties on the vessel after the spill, and especially were not foreseeable to two inspectors from Transport Canada, both doing comprehensive inspections.

[260]     Since the Defence has succeeded in proving on a balance of probabilities that it was under a mistaken set of facts, it is not necessary to consider the second branch of the due diligence defence.  Satisfaction of the first branch is sufficient to provide a full defence.  Nevertheless, the trial was lengthy and extensive evidence was heard on the second branch of the due diligence defence from many witnesses, including expert witnesses.  Therefore, I will also address the second branch of the test in order to provide a full assessment of the evidence in the event of any further proceedings.

[261]     In R. v. Syndcrude, 2010 ABPC 229, at para 100, the Court identified the following factors for consideration when assessing whether all reasonable steps have been taken to avoid a particular event:

[262]     The gravity of the effect is not limited to the singular incident of pollution, but also the effect of a more widespread occurrence.  In Syncrude, the Court stated:

[263]     Pollution of the environment by oil spills is of the greatest concern, and is one of the primary reasons why the international shipping industry is so heavily regulated.  The gravity of an oil spill in this case is very high, and so the corresponding level of care required of the Marathassa is also very high.

[264]     As previously noted, the test for foreseeability is whether a reasonable person in similar circumstances would have foreseen that there was a hazard.  See R. v. Rio Algom, 1988 CanLII 4702 (ON CA), [1988] 46 C.C.C. (3d) 242 (ONCA) and Lonkar, supra, at para 41.

[265]     The hazards in this case of defective alarms and a defective valve were not foreseeable.  The Marathassa, the crew and Transport Canada all expected that the brand new vessel would be free of those defects.  Several of the witnesses, including the Crown witnesses, expressed that you would not expect to see those types of defects on a brand new vessel.  The Marathassa conducted weekly testing on the activation of all of the alarms, and on every Bridge watch the alarms on the Bridge were tested for lights and sound.  Two Transport Canada inspectors examined all of the alarm systems on April 9, and found no concerns.

[266]     The defect in the valve could not be detected visibly, or by tightening the valve, whether by hand or wrench, as the debris was inside of the valve and not visible.  So although the valve was ultimately tightened as far as possible by hand and wrench, the debris still created a gap through which oil could spill.  All of the experts agreed that the crew would not be expected to dismantle valves upon receipt of the vessel to look for debris.  The only reason the defective valve was dismantled was because the crew realized, with the 20/20 hindsight of knowing that fuel oil travelled from the pipe passage to the overboard discharge pipe, that there must be an internal problem with the valve.

[267]     In Gonder, supra, at para 20, the Court noted that the accused must establish that there were no feasible alternatives that might have avoided or minimized the injury.  The Crown has suggested that greater care could have been exercised in various areas by the Marathassa, or that the Marathassa has not proven on a balance of probabilities that reasonable care was taken.  As already noted, some of those areas of criticism are not relevant to the particular event as they did not impact the outcome, and, in the areas that are relevant, the Marathassa has demonstrated that all reasonable steps were taken to avoid the hazard.

[268]     The evidence is overwhelming that the Marathassa met and exceeded the regulatory requirements and industry standards, including testing by an external auditor, and the Marathassa conducted ongoing inspections, training and drills.

[269]     There is no evidence that there were any economic limitations for the Marathassa from taking all reasonable steps to avoid the event.

[270]     The remainder of the factors outlined in Syncrude are either not relevant to the present circumstances or have already been extensively addressed.

[271]     Based on all of the evidence, I find that the Marathassa:

[272]     Syncrude, supra, at para 99, quoting from Sault Ste Marie at p. 1331, noted that:

[273]     In R. v. Leask, 2012 BCPC 423, the Court found that the master of a fishing boat exercised due diligence by taking steps to instruct experienced crew to make sure that a revival tank was operating as required by the terms of the fishing licence.  The Court noted that,

[274]     In this case, the Marathassa was “double checking”, as it required the Captain and Chief Engineer to supervise the crew, and the owner also supervised the crew online every two hours.  In addition, the crew was required to document all of its duties, inspections and drills.

[275]     In R. v. Pacifica Papers Inc., 2002 BCPC 265, the accused proved a due diligence defence when a contractor moved a discharge hose against the express instructions of the accused, which the Crown alleged resulted in the deposit of a deleterious substance.  The Court found that the Crown did not approve the actus reus of the offence, but also found that the accused acted with due diligence by:

[276]     The Court further found that it was not reasonable to expect Pacifica to stay on site to supervise the work.

[277]     In R. v. Emil K. Fishing, 2008 BCCA 490, the accused had a fishing licence to catch pink and chum salmon, but not sockeye or coho salmon.  The accused owner of the company and vessel testified that he had equipped the vessel with gear for separating and releasing any bycatch.  That gear met the industry standard and should have prevented retention of the bycatch.  The owner was out of the country during the summer fishing season and hired an experienced skipper to operate the vessel.  He had employed the same skipper in three or four previous seasons without any difficulties.  The owner had directed the skipper to ensure that all fishing activities were in compliance with the Fisheries Act and all other applicable laws, and he had no reason to believe that the skipper would not follow those directions.

[278]     Although the owner could not prove the mechanism by which the bycatch was retained instead of segregated, the Court of Appeal upheld the trial court finding that the accused had proven a defence of due diligence.  In particular, the owner had proven that they equipped the vessel with appropriate equipment to segregate the fish, had hired a competent crew, and had instructed the crew to take care not to commit an infraction.  The Court of Appeal noted that whether a system amounts to “reasonable precautions” will depend on the circumstances of the case and the impact of the conduct.

[279]     The Marathassa had a comprehensive safety management system in place that far exceeded the industry standard.  All crew members were tested, both internally and externally, on their knowledge of the system and the ISM Manual.  The crew was tested both on land and while performing their duties onboard the vessel.  Ongoing training videos were viewed by the crew onboard the ship and all scheduled drills and equipment inspections were performed by the crew as required by the ISM Manual, under the supervision of the Captain and other officers.  The results were reported to the owner, who monitored the performance of duties and drills online every two hours.

[280]     If the crew did not respond to alarms, perform the necessary soundings, conduct pollution watches or ensure valves were closed, which is not the evidence, it was reasonable for the Marathassa to believe that those duties were being performed given the extensive training, external testing, ongoing education and frequent verification drills required of the crew.

[281]     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.

[282]     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.

[283]     The Marathassa also took all reasonable steps to avoid the fuel oil spill on April 8, 2015.

[284]     Lastly, the Marathassa is charged with failure to take reasonable measures to implement its SOPEP by “failing to take immediate measures for the containment of the discharged oil”, and by failing to take samples of the oil in the water.

[285]     Section 188 of The Canada Shipping Act, 2001, states:

[286]     The parties agree that the Marathassa was required to have a SOPEP that consisted of various things, including “a detailed description of the action to be taken immediately by persons on board to reduce or control the discharge of oil following the incident.”

[287]     Although the charge alleges that the Marathassa “failed to immediately take emergency measures for the containment of the discharged oil”, that is not the requirement of the SOPEP.  Section 5.2.3 of the SOPEP requires that, “in the event of an oil spill it is important to determine the nature of the oil, its source and to assist with its containment, dispersion (if allowed) and clean-up”.  The Crown argues that the Marathassa failed to contact Western Canada Marine on April 8, to recover the oil in the water.

[288]     The expert evidence established that vessels like the Marathassa do not have equipment on board to remove fuel oil from the water.  They rely, as did the Marathassa, on companies specializing in that type of recovery work.  The Marathassa had a contract in place with Western Canada Marine to contain and recover any spilled oil.  The exact time that the Marathassa contacted Western Canada Marine on April 8, 2015, is not clear, but according to Mr. Davis with Western Canada Marine, both the ship and the Coast Guard hired them to recover the fuel.  They attended at the Marathassa in the late evening of April 8, or early morning of April 9, 2015.  According to the Captain’s statement, he contacted the emergency response team of his office and they contacted Western Canada Marine on the night of April 8, 2015.

[289]     Prior to the diver finding fuel oil in an overboard discharge pipe at approximately 6:00 pm on April 9, no evidence could be found on the ship that the fuel oil in the water around the Marathassa had been discharged from the vessel.  Even Inspector Waheed, who firmly believed that the Marathassa had discharged the fuel oil and was on the vessel for most of the day on April 9, searching for evidence, reported to his superior late in the afternoon that no evidence of a spill from the Marathassa had been found.  The Captain also stated that prior to the diver finding fuel oil in the overboard discharge pipe, he could not imagine that the spill came from the brand new ship.

[290]     Mr. Davies testified that when there is no known source for a spill, the Coast Guard retains Western Canada Marine.  That occurred at approximately 7:30 pm on April 8.  At 11:55 pm, Port Vancouver issued a notice to the Marathassa stating that it was responsible for the oil spill.

[291]     Clearly, the Marathassa was not required to pay a company to recover spilled oil that it did not suspect to be from its ship, as long as the belief was reasonably held, and I have already found that it was reasonably held.  Nevertheless, the Marathassa did retain Western Canada Marine on the night of April 8, and Western Canada Marine went out to the ship that night. There is no evidence that Western Canada Marine could have started the containment process earlier, even though the Coast Guard contacted them at 7:30 pm on April 8, 2015.  When Western Canada Marine arrived at the vessel, the Marathassa “assisted with” the containment by shining search lights on the area to aid in the clean up.

[292]     The Crown also argues that the Marathassa did not contact Transport Canada to report the oil spill, as required.  That argument does not seem to be related to the specific charge of not assisting in the containment of the spilled oil.  In any event, Transport Canada notified the agent for the Marathassa of the oil spill, who then notified the Marathassa.  It would not make sense for the Marathassa to then turn around and notify Transport Canada.

[293]     The Crown also points to the evidence of Inspector Waheed that the Captain did not know whether the Marathassa had a contract with Western Canada Marine.  As I have previously noted, I do not put a lot of weight on conversations related by Inspector Waheed.  In any event, the Captain immediately produced a contract with Western Canada Marine.  He also contacted the owner’s emergency response team, which then contacted Western Canada Marine to begin the containment process.

[294]     The efforts of the Marathassa on April 8, to find and stop the source of any oil spill can also be categorized as “assisting with” containment, as the Marathassa was assisting Port Vancouver to find and contain any ongoing discharge of oil.

[295]     The Crown has not proven beyond a reasonable doubt that the Marathassa did not take reasonable steps to assist with the containment of the spilled oil.

[296]     Section 5.2.3 of the SOPEP requires that, “the 2nd Officer assisted by a seaman and the 2nd Engineer (if necessary) will take oil samples during any spill incident or whenever oil is in the water.”  The section also provides that “samples should be collected of all different grades of bunker/fuel on board and of the oil spilled.”

[297]     The evidence that the Crown relies on to prove the charge is threefold.  First, the Rough Log Book did not contain any reference to samples being taken on April 8.  However, there was also no notation of samples taken of the oil in the water and onboard the ship on the morning of April 9, by Mr. Beaton, who was retained by the Marathassa.  The Crown further notes that no mention of samples being taken were included in the Incident Report dated April 8, 2015.  Other activities that did occur were also not included in the report.  In fact, several portions which should have been filled in were left blank, which is not surprising given that all efforts were being directed towards finding the source of any oil discharge from the ship.

[298]     Finally, the Crown notes that during his interview with Transport Canada, the Captain described the actions he took on April 8, with respect to the oil in the water, and he did not mention samples being taken. He also did not mention other activities that did occur, such as recording in the Rough Log Book that oil was observed around the vessel.

[299]     Therefore, although the lack of notation in the Log Book, Incident Report, and by the Captain of samples being taken on April 8, is some evidence that samples may not have been taken, they are not conclusive because the documents and the Captain also do not mention other activities that did occur.  In addition, Captain Nelson testified for the Crown that vessels have multiple log books, including an Engine Log Book.  There is no evidence that a notation was not made in another log book.  The Crown has not proven beyond a reasonable doubt that samples were not taken of the oil in the water on April 8, 2015.

[300]     If the samples were not taken on the night of April 8, 2015, they were definitely taken on the morning of April 9, 2015.  The SOPEP does not require that the samples be taken immediately, and indicates that the purpose of taking the samples is for evidence of the source of the oil and to preserve evidence if later there is an issue regarding the source of the oil.  There was no evidence of any testing lab onboard the vessel or that a lab would be available to test the samples in the night.  In fact, Transport Canada had to wait until the following day to have the samples they took on April 8, tested.  At the same time, the crew was frantically searching for any source of an oil leak, which was a priority under the SOPEP, which requires immediate action to stop any discharge of oil.  Therefore, even if the only samples were taken on the morning of April 9, the Marathassa took reasonable measures to implement the SOPEP with regard to the collection of oil samples.

[301]     The Crown argues that because the samples were taken on April 9, by someone hired by the Marathassa and not the 2nd Officer, that there was no compliance with the requirements of the SOPEP.  Mr. Beaton was clearly acting as an agent of the Marathassa to perform the duties of the 2nd Officer.

[302]     The Crown has not proven beyond a reasonable doubt that the Marathassa did not take reasonable measures to comply with its SOPEP requirements to assist with containment and to take samples of the oil in the water.

[303]     In addition, the Marathassa has proven a due diligence defence to those charges.  In particular, given the extensive training, verification and ongoing monitoring of the crew, the Marathassa took all reasonable steps to ensure that the crew followed the requirements of the SOPEP.

[304]     The Crown has proven beyond a reasonable doubt that the Marathassa discharged a pollutant into the waters of English Bay on April 8, 2015, contrary to section 187 of the Canada Shipping Act, 2001, and that the Marathassa discharged a substance on April 8, 2015, that is harmful to migratory birds.  The Marathassa has proven a due diligence defence to both charges.

[305]     The Crown has not proven beyond a reasonable doubt that the Marathassa did not take reasonable measures to comply with its SOPEP requirements to assist with containment of the oil spill and to take a sample of the oil in the water during a spill incident.  In addition, the Marathassa has proven a due diligence defence to those charges.

[306]     The Marathassa is acquitted of all charges.