The Administrator of the Ship-Source Oil Pollution Fund sought a default judgment against Mr Daniel Francis MacNeil. The Administrator had received a claim from the Canadian Coast Guard on 5 January 2023, seeking recovery of expenses relating to the clean-up and containment of oil discharged from the fishing vessel Hydra Mariner at Wright's Cove, Nova Scotia.

The Administrator commenced an action against the 'Owners and All Others Interested' in the Charlotte A Finn, and against Mr MacNeil as the owner of the Hydra Mariner, alleging that he was also the owner of the Charlotte A Finn.

Held: Default judgment against Mr MacNeil.

Although the Administrator commenced an action in personam and in rem, naming the Charlotte A Finn as a defendant, there is no evidence that the statement of claim or amended statement of claim was ever served on that ship. Considering the time limit set out for service of a statement of claim, ie 60 days, it is questionable whether the action against that defendant remains viable.

The Administrator chose to sue the Charlotte A Finn, as a sister ship of the Hydra Mariner, under s 43(8) of the Federal Courts Act, RSC 1985, c F-7, which provides:

Arrest

(8) The jurisdiction conferred on the Federal Court by section 22 may be exercised in rem against any ship that, at the time the action is brought, is owned by the beneficial owner of the ship that is the subject of the action.

The Administrator's reliance on s 43(8) is puzzling. The present motion does not seek judgment against the Charlotte A Finn, and there is no evidence that that defendant was served at any time.

In its decision in Westshore Terminals Limited Partnership v Leo Ocean SA 2014 FCA 231, [2015] 3 FCR 712 (FCA) [65] (CMI113), the Court commented on the 'activation' of in rem jurisdiction as follows: 'It should be borne in mind that until a ship is served with the statement of claim in rem and is arrested (inevitably the service of the action and the arrest of the ship occur simultaneously), the Court's jurisdiction in rem is not exercised.'

Section 91 of the Marine Liability Act, SC 2001, c 6, defines 'owner' as follows:

owner

(a) in relation to a ship subject to the Civil Liability Convention, has the same meaning as in Article I of that Convention;

Section 77 of that Act imposes liability on a shipowner for oil pollution damage:

Liability for pollution and related costs

77(1) The owner of a ship is liable

(a) for oil pollution damage from the ship ... ;

(b) for the costs and expenses incurred by the Minister of Fisheries and Oceans, a response organization within the meaning of section 165 of the Canada Shipping Act, 2001 or any other person in Canada in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from it, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(c) in relation to pollutants, for the costs and expenses incurred by

(i) the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures …

The Administrator has established that Mr MacNeil was the 'owner' of the Hydra Mariner at the time of the incident. On the basis of the evidence submitted, the lack of a defence, the applicable legislation and the test for granting default judgment, the Administrator has shown that judgment should be entered.