B.C. judge rules multimillion-dollar Inside Passage fuel spill fine should go to Heiltsuk Nation
Credit to Author: David Carrigg| Date: Mon, 19 Aug 2019 05:21:54 +0000
A B.C. judge has ruled that close to $3 million in fines imposed on the operator of a tug that hit a reef and sank in the Inside Passage in 2016 be handed to the Heiltsuk Nation.
In a reasons for judgment released last week by provincial court judge Brent Hoy, he said the combined fines of $2.7 million issued under the Fisheries Act, $200,000 under the Migratory Birds Convention Act and $5,000 under the Pilotage Act be put into an environmental damage fund administered to benefit the Heiltsuk Nation.
The Nathan E. Stewart, an American articulated tug-barge travelling the Inside Passage from Alaska to Vancouver, ran aground and sank on a reef next to Athlone Island in the Seaforth Channel close to Bella Bella in the early hours of Oct. 13, 2016.
Court heard that the seven-crew tug left the Port of Vancouver on Oct. 4 to deliver refined petroleum to the Alaskan port town of Ketchikan, often visited by cruise ships doing the Vancouver-to-Alaska Inside Passage run.
Late in the evening of Oct. 12, the second mate relieved the ship master at the helm, made a course adjustment at 12:20 a.m. on Oct. 13 and then fell asleep at the wheel while alone on the upper bridge. At 1 a.m. another crew member could not contact the second mate and was climbing the internal stairs to the upper bridge when the tug collided with Edge Reef at the entrance to Seaforth Channel west of Bella Bella. The Canadian Coast Guard were notified at 1:20 a.m. and the crew tried to surround the vessel with a boom to contain the spill, but it broke apart. Once the crew realized the tug would likely sink they were able to transfer some of the diesel from the tug to the barge. The tug sank at 9:30 a.m. after breaking away from the empty barge and spilled 110,000 litres of diesel and 2,200 litres of lubricants into the water.
The Transportation Safety Board of Canada found the second mate was alone on the bridge — which contravened Canadian maritime law — and was seriously fatigued due to the six-on, six-off roster they were working and the conditions on the bridge at the time of the accident (it was warm, dark, with quiet music playing, the seas were calm and the captain’s seat comfortable).
The tugboat owner and operator, Kirby Offshore Operating, admitted full responsibility for the spill and paid almost $6 million in compensation to the Canadian Coast Guard ($1.94 million), provincial government ($410,000) and the Heiltsuk Nation ($3.6 million).
The sentencing hearing following the guilty plea was held on July 16, 2019, in Bella Bella.
Hoy found the company had not submitted the second mate’s name and certificate of competency in its pilotage waiver in advance of the trip. (Hundreds of vessels that ply the Inside Passage are given a waiver to not to have a pilot on board.) The judge also heard from Heiltsuk Nation members who explained their connection to the site of the spill — legend has the first ancestors of one of the tribes descending from the skies and landing 50 metres from where the spill occurred — and the economic and survival impacts of the spill, including the closure of a traditional clam-bed harvest site.
Handout photo from the Heiltsuk Nation, Oct. 23, 2016, showing the impact of a fuel spill from the Nathan E. Stewart tugboat near Bella Bella, B.C.
The First Nation also asked that Kirby be banned from its traditional waters, but the judge noted he did not have the power to do that.
Judge Hoy pointed out that the offence was not intentional as the operator fell asleep, but could have been prevented using technology to alert the navigator they were in danger, a fatigue awareness program and other preventative systems.
He noted the company had accepted guilt, saving court time, and was remorseful and apologetic.
Hoy noted diesel is “highly deleterious,” with even a small amount enough to kill a fish and that several birds were “oiled.”
“It is a sensitive environment that requires care to guard the well-being of the ocean and wildlife,” he wrote.
He said deterrence was particularly important in this case.
“It is the message to others that must be clear and unambiguous. This is particularly so as the site of the spill is part of the Inside Passage. This waterway is used by cruise ships, ferries, tugs, pleasure crafts and other vessels as they weave their way through innumerable islands by a web of interconnected channels as they transit up and down the B.C. coast.”
Kirby Offshore operates one of the largest tank barge fleets in the United States. In 2018 it had revenues of US $338 million. The company’s most recent financial statement showed a 65 per cent increase in net earnings for the second quarter of 2019 compared to the same quarter in 2018, according to an industry news report. This was due mostly to rising profits from inland and coast tug and barge operations.
Images of the tug Nathan E. Stewart on Nov. 15, 2016. The tug has been welded to the top of a barge to secure it. The tug ran aground and sank on Oct. 13, 2016.