Collisions
Case SummariesCollisions – Vessel Data Recorders – Privilege – Accident Investigation Wappen-Reederei GmbH & Co. KG v The “Hyde Park”, 2006 FC 150 This is an important case dealing with the interpretation of sections 28 and 29 of the Canadian Transportation Accident Investigation and Safety Board Act and questions of privilege. [Section 28 of the Act deals with “on-board recordings” (defined as recordings originating from or received on or in the bridge or control room of a ship) and provides that such recordings must be released to an investigator, are privileged and must not be produced in any legal proceeding “unless the court concludes that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording” and must, in any event, not be used against the ship's officers or crew in any legal proceedings. Section 29 of the Act deals with recorded communications between ships and public authorities, such as Coast Guard and VTS, and provides that such records cannot be used against the ship's crew in any legal proceedings.] The case arose out of a collision on 26 September 2005 between the ships “Cast Prosperity” and “Hyde Park” in the St. Lawrence River. Following the collision, actions were commenced by each of the two vessels against the other and an investigation was conducted by the Transportation Accident Investigation and Safety Board (TSB). In the course of the investigation the Voyage Data Recorder from the “Cast Prosperity” was seized under section 28 of the Canadian Transportation Accident Investigation and Safety Board Act. The Voyage Data Recorder records various data including the ship's position, speed and heading, voice communications on the bridge (bridge recordings) and radio communications with other ships and shore stations (VHF recordings). The owners of the “Cast Prosperity” brought this motion, inter alia, to compel the TSB to return the VHF recordings and to provide the parties with copies of the bridge recordings. There were essentially two issues to be decided: first, whether s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act had any application; and, second, whether the bridge recordings should be disclosed. With respect to the application of s. 28, the vessel owners argued that the recordings were actually captured and stored on equipment located in a utility room of the vessel and not on the bridge and that they therefore did not fall within the definition of “on-board recording” in the Act. The motions Judge had little difficulty in dispensing with this submission as the microphones that recorded the conversations were on the bridge and this was sufficient. With respect to the VHF recordings, however, the situation was different. The motions Judge, noting that radio communications were specifically dealt with in s. 29 of the Act, held that they were governed by s. 29 rather than s. 28. She then considered whether s. 29(6) prohibited their use in the present legal proceedings between the owners of the ships. It was noted that the wording of s. 29(6) only prohibited the use of VHF recordings in proceedings against crew members, however, after considering the scheme of the Act and the general context, the Judge held that the prohibition equally applied to the present proceedings involving the owners. Turning to the second issue of whether the privileged bridge recordings should be disclosed by TSB to the parties pursuant to s. 28(6), the Judge noted that the court had to consider four factors, namely: the nature and subject-matter of the litigation; the nature and probative value of the evidence; whether the evidence could be obtained in another way; and, the possibility of a miscarriage of justice. After reviewing the transcripts in her Chambers she concluded that they were of little evidentiary value and held that they need not be disclosed. Collision with Fish Farm – Damages – Mitigation – Interest Omega Salmon Group Ltd. v The “Pubnico Gemini”, 2006 BCSC 59 The Plaintiff was the owner of a fish farm that was damaged when the “Pubnico Gemini” collided with it. Liability for the collision was admitted and the only issues were in relation to damages. Specifically, the Defendants argued that: (i) the damages should be based on the cost to repair the damaged fish pens rather than the cost of replacement; (ii) the amount paid by the Plaintiff to expedite the delivery of the replacement section was excessive; and (iii) the Plaintiff failed to mitigate by not repairing and re-using the damaged section in another of its fish farms. The Court decided all issues against the Defendants holding first that the damaged section was not a stand-alone fish pen but a component of a larger array and, in the normal course, such a single component would never be ordered or manufactured. Moreover, no expert evidence was led by the Defendants as to the cost of repairs and what evidence there was indicated the cost of repairs could exceed the cost of replacement. On the issue of whether the Plaintiff paid an excessive amount to replace the pen the Court held that the pen system was a high end system and that the manufacturing had to be expedited to minimize production losses. The Court considered the amount paid by the Plaintiff was not unreasonable given the urgent delivery requirements. On the final issue, the Court noted that the Defendants had not offered any proof that the damaged section could be re-used or sold for salvage and held that the Defendants' arguments were mere conjecture. The Court then turned to the question of interest and, after reviewing the various authorities on the point, declined to award compound interest and declined to award interest on damages for which the Plaintiff had been reimbursed by its insurer.(Note: The decision not to award interest on amounts for which the Plaintiff had been reimbursed by its insurer is a significant departure from the usual practice and the correctness of this part of the ruling is debatable.) Collision – Small Vessels – Improper lighting – Liability Thatcher v Schell, 2005 BCSC 1121 This case involved a collision on Okanagan Lake between a 26' sailboat operating under power and a 19' motorboat. The collision occurred at dusk. Both vessels were destroyed and the occupants of each were injured. The owner of the sailboat alleged that the collision was caused by the negligence of the other vessel in proceeding at an excessive speed and failing to maintain a proper lookout. The owner of the motorboat argued that the collision was caused by the negligence of the sailboat in failing to have the proper running lights and in turning to port immediately before the collision instead of to starboard as required by the collision regulations. It was uncontested that the driver of the motorboat did not see the sailboat until immediately before the collision and took no steps to avoid the collision. After reviewing all of the evidence the Judge found as a fact that the sailboat was not properly lit and that this was the cause of the collision. The owner/operator of the sailboat was therefore held to be completely at fault. Collisions – Docks – Causation – Damages – Tug and Tow The Queen v The “Delta Pride” et al., 2003 FCT 11 This was an action for damage allegedly caused to a breakwater by the Defendant vessel while manoeuvring. The facts established that one of the tugs assisting the Defendant vessel made contact with the breakwater. The Defendants, the owners of the vessel, argued that they were not liable for any contact between the tug and the breakwater. The Court held that there is a general presumption that the tow is in the control of the tug and that this presumption had not been rebutted. Accordingly, the Court found that there was liability. However, the Court also found that the breakwater was in a deteriorated and weakened condition and that this was a contributing cause. In result, the damages were reduced to take into account the condition of the breakwater. Collisions – Liability of Owner – Limitation Dixon v Leggat, 2003 ONCA 10101 A pleasure craft ran into a rock face in Lake Rosseau, Ontario. As a result of the accident two passengers were injured, one fatally. These actions were commenced against the owner of the pleasure craft and the driver of the pleasure craft, the owner’s brother. At trial, the trial Judge found the driver liable in that he was operating the vessel at an unsafe speed, failed to maintain a proper lookout, and failed to properly navigate the vessel. The trial Judge also held the Canada Shipping Act, in particular s. 566, created a statutory liability on the owner of the boat. On the issue of limitation, the trial Judge found that the operator could limit his liability but that the owner could not. The trial Judge's finding with respect to the liability of the owner of the vessel was appealed. The Ontario Court of Appeal held that the trial Judge erred in his interpretation of s. 566 of the Canada Shipping Act. The Court of Appeal noted that this section merely provided for joint and several liability where there were joint tort-feasors and did not impose liability where none otherwise existed. The Court of Appeal then considered other sections of the Canada Shipping Act also referred to by the trial Judge but held that neither individually nor collectively did they impose a statutory liability on the owner of a boat. The Court of Appeal did, however, confirm that an owner could be liable on the principle of respondeat superior or on the basis of ordinary principles of tort law. In result, the Court of Appeal returned the case to the trial division for a new trial on the issue of the owner's liability.
Collision - Tug and Tow - Towage Conditions - Damages - Standard on Appeal
Gravel and Lake Services Ltd. v Bay Ocean Management Inc., 2002 FCA 465 This was an appeal from the Trial Division wherein the trial Judge apportioned liability for a grounding 75% to the “Lake Charles” and 25% to the “Robert John”. The case arose out of an alleged collision between the “Lake Charles” and the tug “Robert John” in the Port of Thunder Bay. The Plaintiff, the owner of the “Robert John”, alleged that, when the tug and another tug were hooked up to the “Lake Charles” to assist her to berth, the “Lake Charles” negligently drifted into the “Robert John” and caused her to go aground. The Defendants denied there was a grounding and denied negligence. The trial Judge found as a fact that there had been a grounding and further held that the parties were both partly at fault. Liability was apportioned 75% to the “Lake Charles” and 25% to the “Robert John”. The Plaintiff also claimed that its standard terms and conditions entitled it to contribution and indemnity from the Defendants. The trial Judge held, however, that the towage contract was between the Plaintiff and the charterer of the vessel. The owners and managers of the “Lake Charles”were never a party to the agreement and were therefore not bound. On the issue of damages, the trial Judge allowed damages for replacement of a rudder stock on the principle that “no deduction is made from the damages recoverable on account of the increased valued of the tug or the substitution of new for old materials”. The trial Judge disallowed damages for steering gear repairs on the grounds that the damage to the gear resulted from delay in drydocking the vessel and not from the original grounding. The trial Judge also disallowed a claim for re-drydocking to re-install the original propeller holding that this could be done at the next scheduled five year drydocking. On appeal, the Federal Court of Appeal noted that the Appellant’s arguments were virtually all related to findings of fact by the trial Judge and that such findings could not be reversed unless it was established that the trial Judge made a palpable and overriding error which affected his assessments of the facts. With respect to the trial Judge’s apportionment of liability, these findings should not be disturbed unless it can be clearly shown that the trial Judge’s conclusion was based on an error in law or a mistaken conclusion of fact. The Court of Appeal held that these tests had not been met by the Appellant and dismissed the appeal with the exception that the damages were reduced by $7,000.00 to take into account a concession that was made by the Respondent at trial. Collisions - Limitation - Damage to Fishing Net
Capilano
Fishing Ltd. v The "Qualicum Producer", 2001 BCCA 244,
[2001] B.C.J. No. 631 This was an action for damages suffered during the 1997 herring fishery when the Defendant's vessel cut the net of the Plaintiffs' vessel. The Plaintiffs claimed damages for the net, for the value of the lost catch and for the costs of fishing licences thrown away. The Defendants denied negligence and claimed the right to limit liability. On the issue of liability the trial judge found that the Master of the Defendant vessel was negligent in that he was aware of the Plaintiffs’ vessel yet manoeuvred his vessel in a direction that ultimately led to the collision. On the matter of limitation, the trial judge found that the Defendant vessel was well equipped and had a competent Master and crew and, therefore, held that the Defendants were without “fault or privity” and entitled to limit their liability to the amount of approximately $40,000.00. On appeal, the Court of Appeal upheld the finding on liability but overturned the finding on limitation. The appeal court adopted the reasoning from North Ridge Fishing Ltd. et al. v The “Prosperity” et al.,(2000) 78 B.C.L.R. (3d) 388 and held that any owner who permits his vessel to participate in the roe herring fishery is not entitled to limit liability since the fishery compels the sacrifice of safe navigation and good seamanship. (Note: This case was decided under the old limitation of liability regime. Under the new regime the limitation amount is substantially higher ($500,000.00 for vessels under 300 tons) and the owner is entitled to limit unless the claimant establishes a personal act or omission committed with intent to cause loss, or recklessly, with the knowledge that loss would probably result.) Collision - Apportionment of Liability
De
Merchant Estate v Price, 2001 NBQB 98,
[2001] N.B.J. No. 328 This matter
involved a collision between a small runabout and a sailboat under power in a
narrow channel. The main issue in the case was liability and apportionment. The
Trial Judge found the parties equally at fault. The operator of the sailboat was
at fault for not having the proper lights, for operating on the wrong side of
the channel and for failing to take evasive action. The operator of the runabout
was at fault for operating his vessel while impaired by alcohol and for failing
to observe the other vessel. Collisions - Mutual Legal Assistance Act - Standing ALT Navigation Ltd. v United States of America, [2001] N.J. No. 318 This case arose
out of a collision 130 miles off the coast of Massachusetts between the F/V
“Starbound” and an unidentified vessel. As a result of the collision the F/V
“Starbound” sank and three of her crew drowned. The T/V “Virgo”
subsequently called at ports in Newfoundland where she was inspected by
Transport Canada officials and U.S. Coastguard. Three search warrants were
obtained under the Mutual Legal Assistance Treaty and the Mutual Legal
Assistance Act. As a result of the execution of those warrants some 98 exhibits
were seized. The present application was to determine who would have standing at
a subsequent hearing when it was determined what was to be done with the
exhibits seized. The intervenors who requested standing were the owners of the
“Virgo”, the three crew members of the “Virgo” who had been charged in
the United States and were subject to extradition proceedings, The remaining
crew members of the “Virgo”, the owner of the “Starbound” and the
estates of the deceased seamen. The Court granted standing to the owner of the
“Virgo”, the owner of the “Starbound”, the estates of the deceased
seamen, the three crew members who were subject to extradition proceedings and
two other crew members who “were directly connected to the chain of command”
of the “Virgo. Collision - Liability - Damage to Fishing Net Wilson Fishing Co. Ltd. v The “Western Investor”, 2001 FCT 1390 This was another collision action that occurred during the shotgun roe herring fishery, a fishery which the Trial Judge described as “a most unusual kind of maritime adventure - one that compels masters to sacrifice good seamanship for profit”. The Plaintiff alleged that due to the negligence of the Defendants , the Defendant vessel collided with the Plaintiff’s skiff and the Plaintiff’s net became entangled in the propeller of the Defendant ship. As a result, the Plaintiff was unable to participate in the fishery. The Defendant denied liability. The Trial Judge reviewed the circumstances leading to the collision. She found that the Plaintiff’s Master was 100% responsible for creating a situation of imminent peril by failing to keep a proper lookout. She also found that the Plaintiff’s skiff and the Defendant vessel were equally responsible for the collision because they failed to take evasive action. However, she held that the damage to the Plaintiff’s net was not an inevitable consequence of the collision. She found that immediately after the collision the Plaintiff’s net was not entangled in the propeller of the Defendant ship. Rather, the entanglement occurred when the Defendant Master ordered the engines to be restarted too soon after the collision and before the net could be towed a safe distance away. The Trial Judge therefore held the damage to the net was caused solely by the Defendants. On the issue of damages, however, the Trial Judge held that the Plaintiff was not entitled to damages for a lost catch since the Plaintiff had aborted his set before the collision when a third party vessel cut him off. Collision With Wharf - Towage Contract - Exclusion Clause Canadian Salt Company Limited v The "Irving Cedar" et al., (September 6, 2000) No. T-689-95 (F.C.T.D.), [2000] F.C.J. No. 1410 This action arose out of a collision between a ship and a wharf that occurred when the ship was performing ice breaking operations for the Plaintiff in the vicinity of the wharf. The Defendants denied liability on the grounds that they were not negligent and further relied upon an exclusion clause and time for suit provision contained in the contract with the Plaintiff. The Plaintiff denied that the clauses were part of the contract and further argued that on their proper interpretation the clauses did not apply to exclude the Defendants’ liability or extinguish the claim. On the issue of negligence the Court seemed to accept that there was a presumption of negligence on the part of the Defendants given that the ship had struck a stationary object. In any event, the Court did find as a fact that the Defendants had been negligent. With respect to the application of the conditions, the Court found that the conditions applied. In reaching this conclusion the Court emphasized that the conditions had been provided to the Plaintiff by the Defendants together with their quotation and that the Plaintiff had accepted that quotation with only minor changes. The Court accepted that there may have been a subsequent conversation between the Plaintiff and Defendants in which the Plaintiff advised some terms of the contract were not acceptable, however, such conversation occurred after the quotation had been accepted and therefore after the contract had been entered into. The exclusion clause relied upon by the Defendants was as follows:
The Court noted that such clauses must be interpreted against the interest of the person who made it. The Court considered that the clause was unclear and ambiguous and held that it did not apply to relieve the Defendants from liability for damage caused by their negligence to the wharf. The Court next considered the notice and time for suit clause of the contract which provided that notice of a claim had to be given in writing within six months and that suit must be brought within one year. The Court held that this clause was most clear and that as the Plaintiff had not brought suit within one year its action was extinguished. In the result, the Plaintiff’s claim was dismissed. Standing to Sue - Collisions Porto Seguro Companhia De Seguros Gerais v The "Federal Danube" et al., (January 31, 2001) No. T-2057-85 (F.C.T.D.), [2001] F.C.J. No. 152 This was the re-trial of an action that had been previously dismissed by the Federal Court Trial Division in a judgment reported at [1995] 82 F.T.R. 127. That judgment was ultimately overturned by the Supreme Court of Canada and a new trial ordered on the grounds that the Trial Judge erred in refusing to hear three expert witnesses because assessors had been appointed by the court (see [1997] 3 S.C.R. 1278). The Plaintiff was the cargo underwriter who had indemnified the cargo owners for damages suffered as a result of a collision in the St. Lawrence Seaway between the "Beograd" and the "Federal Danube". The Plaintiff argued that the "Federal Danube" was wholly at fault for the collision and liable for the damage to the cargo in the principal amount of $4.4 million. There were two issues in the case; the standing of the Plaintiff to bring the action in its own name and the liability for the collision. On the first issue, the Defendant argued that under Canadian maritime law the Plaintiff ought to have commenced the action in the name of the cargo owners. The Court, however, held that the matter was governed either by the law of Brazil (where the insurance contract was made) or the law of Quebec and that in either case the insurers became subrogated to the rights of their insured upon payment and were entitled to bring the action in their own name. With respect to the second issue, the liability for the collision, the Court held that the "Beograd" was wholly at fault for the collision. The faults found against the "Beograd" included: navigating through the anchorage area rather than in the navigation channel; navigating at an unsafe speed; and, failing to keep out of the way of an anchored vessel. In reaching the conclusion that the "Beograd" was wholly at fault the Court noted that where a vessel underway strikes a vessel at anchor the underway vessel is prima facie at fault unless it is proven the accident could not have been avoided by the exercise of ordinary skill. In the result, the Plaintiff’s action was dismissed. Collisions - Liability - Limitation North Ridge Fishing Ltd. et al. v The "Prosperity" et al., (2000) 78 B.C.L.R. (3d) 388 (B.C.S.C.) This action arose out of a shotgun opening in the roe herring fishery, an event described by the Court as "a most unusual maritime adventure where, from an opening ‘gun’, many vessels -sometimes dozens- would set their nets at speed in very close proximity during a short period of time". During the course of the opening the Defendant vessel "Prosperity" cut the net of the Plaintiffs’ vessel "Savage Fisher" with the result that the Plaintiffs allegedly lost a substantial tonnage of fish. The issues in the case were who was at fault, damages and limitation of liability. On the issue of fault the Court first considered whether Rule 15 of the Collision Regulations (the crossing rule) had any application. The Court held this rule did not apply as the vessels were not actually crossing and neither master considered that they were. The Court next considered Rules 5 (look-out) and 7 (risk of collision). The Court held that there was an insufficient look-out on the Plaintiffs’ vessel which deprived the master of the ability to determine whether a risk of collision existed. With respect to the "Prosperity" the Court held that there was a sufficient look-out of two persons in the wheelhouse but that the master of the "Prosperity" failed to go astern or stop when he should have. The Court ultimately apportioned liability 75% to the Plaintiffs and 25% to the Defendants. Regarding the issue of damages, and specifically the tonnage lost as a result of the net cutting, the Court held that the best approach was to use the average catch of the vessels involved in the opening. Finally, the Court considered the issue of limitation of liability, which was recognized as probably a moot point given the apportionment of liability and assessment of damages. The Court noted that there were two prior decisions that had allowed limitation of liability under similar circumstances and stated that it would have followed those decisions and allowed limitation, if necessary. It is noteworthy, however, that in the absence of precedent the Court indicated that it would not have allowed the Defendants to limit liability. The Court indicated that the decision of an owner to engage in a shotgun herring opening would be sufficient by itself to disentitle the owner to limitation. (Note: In supplementary reasons issued December 6, 2000, [2000] B.C.J. No. 2443, the Court dealt with the issue of costs. The Court awarded the Plaintiffs 25% of their party and party costs and awarded the Defendants 75% of their pre-trial costs (taxed at 70% of special costs) and 75% of their costs from the first day of trial. The special cost award in respect of pre-trial costs was because of delay by the Plaintiffs in the pre-trial proceedings.) Collisions - Similar Fact Evidence Kajat v The "Arctic Taglu", [2000] 3 F.C. 96, 252 N.R. 152 (F.C.A.). This was an appeal from a judgement of the Trial Division in which the Defendants were found 85% at fault for a collision between the fishing vessel "Bona Vista" and a tug-barge combination operated by one of the Defendants. A critical determination made by the Trial Judge was that the accident occurred because of the use of a search light on the tug to warn mariners of the existence of the barge by panning the light up and down the port side of the barge . She found that this was perceived by those on board the "Bona Vista" as a signal of an unseen danger to the port side of the barge causing the "Bona Vista" to turn to port, a manoeuver which resulted in the collision. Her conclusions were based on the evidence of two mariners who each testified that they had encountered the tug-barge combination and that they had interpreted the panning search light as a signal of danger to the port side of the barge and turned to port to avoid the unseen danger. The Defendants argued that the Trial judge erred in allowing the evidence of these two mariners. The Federal Court of Appeal agreed. The court held that the Trial Judge had an obligation to determine whether the similar fact evidence was logically probative, i.e. whether it is logically relevant to determining the matter in issue. The court was unable to conclude from the record whether the Trial Judge had made a specific determination to that effect and, therefore, allowed the appeal and ordered a new trial. (It is noteworthy that the Court of Appeal did not determine that the evidence of the two mariners should not have been admitted by the Trial Judge. The court merely determined that the Trial Judge had not specifically addressed her mind to the appropriate test to be applied before admitting similar fact evidence.) Liability of owner - Pleasure Craft Sutton et.al. v. Petman, (June 14, 1996) Vernon Registry Nos. 14583 & 14612 (B.C.S.C.). This was a motion to dismiss a Third Party action. The matter arose out of a fatal collision between two pleasure craft. One vessel was owned by the Third Party but had been loaned to, and was being operated by, the Third Party's son at the time of the accident. The Defendant, the owner and operator of the second vessel, commenced Third Party proceedings against the owner of the first vessel. The Court dismissed the Third Party action. It was conceded that the Third Party could not be held liable by mere reason of ownership of the vessel (as in an automobile case) but that the Defendant had to show a cause of action and evidence in support. The Court further held that the Third Party could not be held liable under the doctrine of vicarious liability as the Third Party had given possession of the vessel to his son and did not exercise any operational control thereafter. The only basis upon which the Third Party could be held liable was in negligence. The Defendant relied on the fact that the collision occurred at or near dusk and that the lights on the Third Party's boat were not operational. The Court, however, found that the Third Party was not aware the vessel would be operated at night and was not aware the lights were not working. The Court further held that there was no requirement that a boat owner periodically check the operation of the lights when it was not intended to use the boat at night. Liability - Unsafe Speed - Anchor lights - Contributory Negligence - Limitation Conrad v. Snair, (December 7, 1995) No. 109424 (N.S.C.A.). This case involved a collision at night between a Boston Whaler and an anchored unlit sailboat. As a result of the collision, a passenger of the Boston Whaler was seriously injured. The issues concerned the liability for the collision, contributory negligence, and limitation of liability. Both the trial Judge and the Court of Appeal found that the driver of the Boston Whaler was entirely at fault for the collision. The driver was found to have been traveling at an excessive rate of speed and failed to maintain a proper lookout. With respect to the sailboat, the trial Judge and the Court of Appeal held that there was no presumption of fault because of the failure to exhibit an anchor light. They further found that there was a local custom to not display anchor lights. The driver of the Boston Whaler also argued that his passenger was contributorily negligent in that she knew of his propensity to drive his boat in a particular manner. The Court of Appeal held that even if the master was known to be reckless, that would be an insufficient basis for a finding of contributory negligence. Although in light of these findings, the Court of Appeal did not need to decide whether contributory negligence on the part of the plaintiff would be a complete bar to damages, it nevertheless gave the opinion that if the Plaintiff had been negligent, the Provincial contributory negligence statute would apply to apportion damages. Finally, the driver of the Boston Whaler argued that he was entitled to limit his liability under the Canada Shipping Act because the accident occurred while he was acting in his capacity as master and not owner of the vessel. In lengthy reasons the Court of Appeal analyzed the problems that arise where the master is also the owner. Ultimately, the Court agreed with the trial Judge that the owner/master of the Boston Whaler was at fault as owner in failing to ensure his alter ego, the master, traveled at a safe speed. Collision - Fog - excessive Speed - Naval Exercises - Damages - Foreign Currency - Loss of Use Nordholm I/S v The Queen,, (January 8, 1996), No.T-1215-89, (F.C.T.D.) . This interesting case involved a collision between the Canadian Naval vessel "Kootenay" and the "Nordpol" on June 1, 1989, in conditions of fog. At the time of the collision the "Kootenay" was engaged in anti-submarine exercises that required her not to emit any radar or radio signals. The "Kootenay" was observed on radar by those on board the "Nordpol" but she could not be raised by radio and her movements were erratic suggesting she was a fishing vessel. The "Nordpol" therefore maintained her course and speed of 13.5 knots assuming the "Kootenay" would pass astern of the "Nordpol". Of course, the "Kootenay" did not pass astern. A close quarters situation developed and the two ships collided. The Court held that both ships were liable and apportioned liability 70% to the "Kootenay" and 30% to the "Nordpol". The "Kootenay" was held primarily responsible because she created the dangerous situation by participating in naval exercises in busy shipping lanes, in fog, without having given any notice to vessel traffic or shipping and without the use of any navigational aids such as radar. The "Nordpol" was also criticized for excessive speed, for failing to take avoiding action and for failing to appreciate the close quarters situation and risk of collision. On the issue of damages, the Court had to consider what was the appropriate date for conversion of foreign currency and what was the appropriate method of calculating loss of use for a warship. On the first issue, the Court reaffirmed that damages incurred in a foreign currency are to be converted to Canadian dollars using the prevailing rate on the date of the commission of the tort. On the second issue, the Court held that there should be damages for loss of use of the "Kootenay", calculated using the capital cost of the ship. It did not matter that the "Kootenay's" duties were performed by other naval ships. There was still a loss to the Defendant; a loss of a "margin of safety". Apportionment - Speed - Alcohol Impairment - Anchor Lights Ens v Gabany , (January 19, 1996), No.75911/91Q, (Ont.Ct. Gen.Div.). Apportionment of liability was the issue in this small vessel collision case. The Plaintiff's vessel was at anchor and was hit by the Defendant's vessel. The Court apportioned liability 70% to the Defendant and 30% to the Plaintiff. The faults on the part of the Defendant were traveling at night at an excessive rate of speed when having consumed sufficient alcohol to have affected his judgment and vision. The faults on the part of the Plaintiff were not having an anchor light and anchoring his vessel in an area where through traffic was predictable and probable. Damages - Owners Repairs Sanmammas Compania Maritima S.A. v The " Netuno", (August 23, 1995), No. T-2428-89,(F.C.T.D.). The issue in this case was damages. The Plaintiff's ship was hit while moored. The Defendants, who admitted liability, argued that the ship was detained for a longer period than necessary because of other repairs being done at the same time as the repairs to the areas damaged by the collision. On the evidence presented, the Court rejected the arguments of the Defendant. Disabling Safety Devices Rast v Killoran, (June 19, 1995), Vancouver Reg. No.C931711, (B.C.S.C.) This case involved an action for personal injury suffered by a passenger when a small vessel collided with a submerged log. The impact caused the driver to lose his grip on the outboard motor and, as a consequence, to momentarily lose control over the vessel. The facts established that the boat driver had disabled two safety features found on the outboard engine. He had tightened the throttle screw on the outboard engine to prevent wrist fatigue and he failed to use the kill switch lanyard. The driver argued that it was a practice among fishing guides in the area to do these things. The Court, however, found these practices unreasonable and held the driver liable for the injuries to the passenger. Limitation Periods - CSA s.572 - Extension Dupras v. Bezzina, (February 23, 1995), No.214/91, (Ont.Ct. Gen. Div.). This case dealt with an interesting issue concerning the validity and applicability of section 572 of the Canada Shipping Act. Section 572 provides for a two year limitation period in actions involving, inter alia, personal injury suffered by a person on board a vessel. The Plaintiffs had rented a vessel which went dead and was struck by the Defendant's vessel. Four years after the accident the Plaintiffs decided to join the lessor of their boat to the action as a Defendant. The lessor opposed the joinder on the basis that the action against it was time barred by section 572. The Plaintiffs, in turn, challenged the constitutional validity of section 572. The Court held that section 572 was valid legislation. The Court went on, however, to hold that it was at least arguable that section 572 applied only to actions by a person on board one ship against the owner of another ship. The Court further held that it was arguable that section 572(3) gives the plaintiff a prima facie right to have the time within which to commence an action extended unless the extension would prejudice the Defendant. Sailboats - Damages - Loss of Use Teschner v Yarish, (May 24, 1995), No.31653/90 & 54450/90Q, (Ont. Ct. Gen.Div.). This matter concerned a collision between two sailboats shortly before the commencement of a sailing race. The Plaintiff's vessel was on a starboard tack. The Defendant's vessel approached the Plaintiff's vessel on the port side at an angle higher than the perpendicular. The Defendant attempted a starboard tack to cross in front of the Plaintiff but the manoeuvre was not successful and the Defendant struck the Plaintiff's vessel amidships at a ninety-degree angle. The Defendant was held 100% liable for the accident. In addition to damages for cost of repairs and loss of value, the Plaintiff was also awarded damages for loss of use of his recreational sailboat, calculated as a percentage of the capital value.
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