Liability For Damage To Underwater Cable Under Canadian Maritime Law

Jean-Marie Fontaine, Partner at Borden Ladner Gervais LLP.By Jean-Marie Fontaine
March 19, 2018

Canada has a coastline that encompasses three oceans as well one of the longest and busiest lake and river system in the Great Lakes and Saint-Lawrence seaway.  This coastline and internal waterways are crisscrossed by underwater telecommunication cables crucial to the transfer of data from one part of the country to another, while at the same time being used by thousands of ships every year, including fishing vessels, container ships, bulk cargo carriers and passenger ships.  Accidents involving vessels and underwater cables are therefore almost inevitable and Canadian Courts have had to consider the liability of vessel owners and operators for damages to underwater cables caused by the vessel’s anchor or fishing equipment.  This article proposes to explore the liability of vessel owners and operators for damage to underwater cables, the responsibility of cable operators to protect against such damage and finally, the availability of limitations of liability to ship owners and operators under Canadian Law.

Liability of Mariners

Canadian Courts have not been very forgiving of vessel owners and operators, whether they be large and sophisticated commercial cargo ships or smaller fishing vessels, in circumstances where they damage underwater communication cables.  A recent decision of the Supreme Court of Canada in Société TELUS Communications v. Peracomo Inc., which involved a fishing vessel whose owner cut a telecommunication cable in the Gulf of the St. Lawrence, illustrates well the obligations of vessel operators, the corresponding obligations of cable operators and the circumstances in which limitations of liability would apply.

Owners and operators of a vessel have a duty of care requiring that they act prudently in the operation of vessels.  There are at least three components to this duty of care that have been identified by the Courts, namely (i) an obligation to be appropriately informed of hazards to navigations through the use of up-to-date navigational charts and by consulting notices to mariners issued by Canadian authorities (ii) an obligation not anchor or fish in or near areas where underwater cable are located and, (iii) should they realize that they caught an anchor in their equipment, an obligation to drop the equipment in order to save the cable.

To continue reading the rest of this article, please read it in Issue 99 of the SubTel Forum magazine here on page 32.