• Sunday, February 17, 2019

Farley Mowat’s story...by Glen Krueger, Bernard LLP

By BCShippingNews 15 April 2018
Glen Krueger, Bernard LLP
The history of the Farley Mowat -- fishery vessel...protest vessel...sunken wreck...

Farley Mowat stands as a great author in Canadian literature with a legacy of publications on the Canadian North and involvement in environmental causes. In the recent case of Town of Shelburn v The Ship Known as “Farley Mowat,” 2017 FC 1184, a long and winding story of another kind concluded.

Our story focuses on a vessel which was a long-range, ice-class ship, suitable for traversing the Canadian North about which Mowat himself wrote so eloquently. Originally named the Johan Hjort, the vessel was built in the 1950s as a Norwegian fisheries and research/enforcement vessel. Over the following decades, the vessel would bear the names STM Ocean, Cam Vulcan, M Vulcan and Scandi Ocean.

Enter a new character in our story: in 1996, the vessel was purchased by the marine conversation organization Sea Shepherd Conservation Society. The Society is controversial and has a long history of environmental activism. Sea Shepard operations have used tactics including scuttling and disabling of whaling vessels while at harbour, boarding of whaling vessels at sea and destruction of drift nets. Dashing rogue? Dangerous villain? That’s in the eye of the reader.

In 2002, the Society renamed the vessel the Farley Mowat in honour of Mowat’s long history of environmental advocacy. As the Farley Mowat, the vessel travelled to Antarctica three times to intervene against whaling by Japanese vessels. The vessel was also involved in environmental activism off the coasts of the Galapagos Islands and Costa Rica.

The vessel eventually returned to Canada and, on April 12, 2008, while protesting the seal hunt, the vessel was seized by the Canadian Coast Guard and the crew was arrested. The vessel was towed to Nova Scotia and impounded. Its captain and first officer were deported and later convicted of violating the Fisheries Act and marine mammal regulations.

Is this the end of our story? What is to happen to our hero?

The vessel was eventually purchased by a scrap dealer in 2013. In 2014, the vessel was moved to a berth in Shelburne. The new owner signed a Berthing Agreement on September 10, 2014. No berthing fees are ever paid.

Then, the ironic twist of our story — the vessel, used for years in environmental activism, sank in June 2015. The coast guard responded and attempted to contain the pollution damage. Eventually over 2,000 litres of pollutants was removed from the hull. The cost? $500,000.

For the Farley Mowat, that’s not the end of the indignities nor of the expenses. The Town of Shelburne, which operates the Shelburne Port Authority, commenced an action seeking the berthing fees, various costs and expenses, and removal of the vessel.

In their Statement of Defence, the Defendants claimed that the berthing agreement was orally amended. This amendment was to the effect that the Port knew that the vessel was to be scrapped and that the proceeds of that operation would be used to pay the outstanding fees. They also claim that Shelburne prevented access to the vessel which led to the sinking and that Shelburne also interfered with the sale of the vessel’s engine.

The Defendants went further still and brought a Counterclaim, claiming that Shelburne prevented the Defendants from maintaining the vessel. They sought $60,000 for damage to the engine and other equipment as result of the sinking.

Unsurprisingly, Shelburne denied these allegations. In particular, Shelburne denied that there was an oral amendment to the Berthing Agreement; that it took possession or responsibility for the vessel; or that damage to the vessel arose from anything other than failure of the Defendants to maintain the vessel.

The judicial history of the case is long and winding, akin to a journey of one of the protagonists in Mowat’s novels. While it’s no Lost in the Barrens, it is a helpful example of how these kinds of cases proceed.

On December 30, 2015, Justice Fothergill issued an Order which provided that the Defendants were to cause the vessel to be removed from the port at their own risk and expense. This didn’t happen.

Shelburne next brought a motion in writing seeking an Order to show cause as to why the Defendants should not be held in contempt of Court. In Federal Court, this is a necessary next step to seeking contempt. To bring it in writing is unique though; usually such a motion is done by way of an attendance in Federal Court.

A Show Cause Order was granted by Prothonotary Morneau that extended the deadline for removal by several weeks and required that, if removal did not occur, the Defendants were to appear before the Court to specifically Show Cause as to why they should not be held in contempt. Eventually, a contempt Order was granted by consent of the parties. The Defendant owner would eventually be arrested and imprisoned.

Shelburne then filed a motion for summary judgment to which the Defendants failed to respond. Summary judgment is a tactic that appeals to litigants. They see it as a way to proceed with litigation in a manner that is relatively inexpensive. However, it has a strict test. Per Manitoba v. Canada (2015), 470 N.R. 187 (F.C.A.), the test for summary judgment is that there is no genuine issue for trial. It’s a high bar. It’s a risky move and simple failure of the Defendants to respond is no guarantee of success.

However, based on the contractual terms of the Berthing Agreement, the Court found that there was an ongoing obligation of the Defendants to pay berthage and that there was no genuine issue for trial. In addition to the berthage fees, the Court also granted costs associated with clean-up and maintenance services. This was found based on a term in the Berthing Agreement which set out that the Defendants would be responsible for any loss or damage in connection with the use of the Premises and Terminal, including but not limited to any liability in respect of preventing or abating pollution originating from the vessel. The term was sufficiently broad for there to be no issue for trial relative to the interpretation and application of the term in the agreement. This is a good example of a small investment in drafting at the onset paying dividends in the future. Always seek legal advice when drafting a contract.

Importantly, the Plaintiff still had to prove the case. They did so through sworn affidavits that included exhibits proving the amounts being claimed. The Court scrutinized the invoices of the Plaintiff and found instances where it would not allow claims based on issues such as double recovery and insufficient evidence. It was due to insufficient evidence that sought after interest was disallowed. Another moral of the story: always paper your costs.

The Court declined to grant elevated costs or punitive damages despite the disregard of the Defendant Owner. The Defendant Owner was already found in contempt and sentenced. The Court was not persuaded that there should be any increased costs awarded. Even specified legal costs were discounted, as there were services such as drafting of media releases which the Court felt were not related to the lawsuit.

The vessel was eventually removed from its berth in Shelburne to be turned to scrap. And so ends the long and winding journey of the Farley Mowat. The owner was imprisoned for a period; some of the previous crew were deported; the vessel itself now disappearing.

However, all is not lost as the legacy lives on. In 2015, Sea Shepherd USA purchased a decommissioned US Coast Guard patrol boat. The vessel is christened the MY Farley Mowat.

Glen Krueger is a Maritime Lawyer at Bernard LLP and can be reached at krueger@bernardllp.ca