FEATURE
RECOVERABILITY OF DAMAGE TO UNDERWATER CABLES UNDER CANADIAN MARTIME LAW
BY JEAN-MARIE FONTAINE
A
s Canada has a coastline which encompasses three oceans and one of the longest and busiest lake and river systems in the Great Lakes and St-Lawrence Seaway, all of which are crisscrossed by underwater telecommunication cables, accidents involving vessels and underwater cables are unfortunately a regular occurrence in Canada. Cable owner and operators must be aware not only of their right and obligations but also of what losses, expenses and costs can be recovered in the event of a casualty between an underwater cable and a vessel’s anchor, trawl or fishing net. In an article which appeared in last year’s SubTel Foreign Finance, Legal Edition, we discussed the liability of mariners for damage to underwater cables, the corresponding obligations of cable operators and the limits of liability. In this year’s article we explore the types the costs and expenses for repairs to underwater telecommunication cables and other losses that can be recovered from the offending party under Canadian Maritime Law.
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SUBMARINE TELECOMS MAGAZINE
RESPONSIBILITIES OF MARINER AND CABLE OPERATORS
Canadian Courts have imposed on vessel owners, particularly fishing vessels, commercial bulkers and container ships, a duty of care requiring them to act prudently in the operation of vessels, including an obligation to appropriately inform themselves of hazards to navigation by using up-to-date navigation charts, an obligation not to anchor or fish in or near areas where underwater cables are located and, where their equipment, be it an anchor or a fishing net, becomes caught in a telecommunication cable, to drop the equipment in order to save the cable. Permitting a ship to drag anchor so as to come into a collision or become entangled with someone else’s property, such as a cable, is considered prime facie evidence of negligence in the absence of a reasonable explanation or proof of exonerating circumstances. There is a corresponding obligation of the cable operators to take reasonable measures to avoid foreseeable accidents and, where such accidents occur, take reasonable