• Sunday, January 20, 2019

Fear in a handful of dust...by James Vander Woude, Bernard LLP - Subscriber Access Only

By BCShippingNews 15 July 2014

A collision between two vessels in which damage occurs is likely to lead to a demand for security with the threat of arrest of one or both of the vessels. Among the categories of claims that support the arrest of a vessel is a claim for “damage caused by a ship.”

The phrase “damage caused by a ship” conjures images of a bulk carrier ramming into a dock, or the 1975 instance of the American aircraft carrier John F. Kennedy colliding with the cruiser Belknap, shearing off the cruiser’s stacks and leaving her superstructure a twisted mass of melted wreckage.

However, what if a vessel is damaged without any physical contact? Can there be “damage caused by a ship” without physical contact between vessels?

A recent Federal Court of Canada case provides an interesting example of “damage caused by a ship” without the vessels in question ever coming into physical contact or even being in motion.

The case

The case is 0871768 B.C. Ltd. v. The Owners and All Others Interested in the Sailing Vessel “Aestival” et al.. 2013 FC 899, where the Court considered whether the Plaintiff had the right to arrest a ship because of damage it had allegedly caused to the Plaintiff’s vessel even though there had been no collision — in fact, neither vessel was even in the water at the time of the alleged damage.

It is important to note that the issue of whether damage had actually been caused to the Plaintiff’s vessel was not before the Court, although that issue has since been heard by the Court and a decision is pending. The above decision strictly focused on whether, assuming the facts presented to the Court to be true, the Defendant vessel had been legitimately arrested.

The facts