League and Williams Lawyers

Author: Darren Williams

  • The Collision Regulations (ColRegs): Guidelines, or actual rules?

    The Collision Regulations (ColRegs): Guidelines, or actual rules?

    Clearly the Collision Regulations under the Canada Shipping Act 2001 (the “ColRegs”) serve an important purpose in promoting the safe navigation of vessels in international, coastal and non-coastal waters.  Like laws governing motor vehicles on land, these rules of the road reduce the risk of damage through collision by requiring predictable behavior.  Mariners expect other mariners to follow the ColRegs, and these expectations if met lead to fewer collisions and greater efficiency in shipping.  That much is obvious.

    What is not obvious, however, is the extent to which a breach of the ColRegs may lead to a finding of legal liability for an accident.  More than a few mariners have expressed frustrations like, “He broke Rule 15, he must be completely responsible for the accident!  He has to pay for the damage!” only to find an insurance company, an employer, or a court disagree.

    While safety at sea is never a topic to be taken lightly, the title to this article comes, tongue in cheek, from the excuse given by Captain Hector Barbossa (a villain in Pirates of the Caribbean) as to why a pirate’s code of conduct did not apply to him.  Captain Barbossa said  “the code is more what you call guidelines, than actual rules”.  I do not want to appear to compare the seriousness of the ColRegs to something as fantastical as a pirate’s code of conduct, however, a modern court would say that if Captain Barbossa’s coy remark had been made in reference to the ColRegs, he would not be far off the mark.

    Before referring to two recent court decisions on this point, it is important to note some differences between civil claims and criminal proceedings, given that the ColRegs arise in each of these types of court cases.  Civil claims are lawsuits between private parties for compensation, for example, for personal injury or property damage arising from a collision.  These claims are common, and if not pursued directly by the person harmed, are often pursued by their insurer to recover the loss paid to their insured. Such civil claims are distinct from criminal proceedings under the Criminal Code or the Canada Shipping Act 2001, where it is the Crown seeking to punish a person in part to deter other members of society from committing similar wrongs.  Importantly, as can be seen in cases such as the sinking of the Queen of the North, a single act or omission by a mariner can lead to both civil claims for compensation by those harmed, as well as criminal proceedings for punishment by the Crown.

    On the criminal side, a breach of a ColRegs Rule could potentially lead to the Crown seeking a conviction for that particular breach of the regulation, however, prosecutions for single Rule breaches are rare.  Rather, often the breach of a Rule leads to a more serious event, and then the breach of the Rule is brought as evidence in support of a more serious charge under the Criminal Code, such as dangerous operation of a vessel, or as in the case of the Queen of the North, criminal negligence causing death.  As such, the breach of a ColReg Rule does not typically result in a criminal conviction, rather, the ColRegs act as guidelines which are used by the criminal court to measure the reasonableness of the mariner’s conduct in assessing guilt under the Criminal Code.

    An example of this principle playing out in criminal court came when the B.C. Court of Appeal recently (December 16, 2014) released its decision in R. v. Lilgert.  After the Queen of the North officer had been found guilty of criminal negligence causing death and sentenced to four years in prison, his legal team appealed the conviction.  One of the arguments (of several) advanced was that the trial judge erred in instructing the jury that the proper legal test they were to apply was that any breach of the ColRegs was a substantial departure from the practice of a reasonably prudent mariner.  The Court of Appeal dismissed the appellant’s argument in this way:  “as to the contention that the Collision Regulations were [incorrectly] treated as rigid rules rather than guidelines, this complaint cannot be supported when the evidence review of the judge is examined… In my view, the jury would not have taken from [the judge’s instructions] that any breach of the Collision Regulations would establish wanton or reckless disregard or a marked and substantial departure from the norm.  In other words, the Court of Appeal dismissed the argument the judge had incorrectly treated the ColRegs as strict rules rather than guidelines.

    In civil cases, there is no Crown seeking to convict a mariner for a breach of the Criminal Code or a regulation under the Shipping Act 2001.  Instead, private parties are suing one another for compensation for property damage or injury.  Typically, the claimant will allege the defendant was negligent in the navigation of a vessel.  In considering whether someone is negligent, the court must determine what the appropriate standard of care is in the circumstances, whether the mariner’s conduct fell below that standard, and if so, did the failure to meet the standard cause the accident.  In doing so, the court will often refer to the ColRegs as the appropriate standard of care for a mariner.  In other words, the court will use the ColRegs as a guideline for what a reasonably prudent mariner should do in the circumstances.

    An example of this principle playing out in civil court came in a 2014 decision of the B.C. Supreme Court that involved the collision of two pleasure crafts on Okanagan Lake.  In that case, a vessel underway collided with a waterski boat that had stopped to disentangle a towline from its leg.  The stopped vessel alleged it had the right of way as a vessel not under command, or otherwise towing (several people were waiting on an inner-tube tied to the end of the tangled tow line).  The vessel underway alleged the stopped vessel had a duty to avoid the collision and maintain an adequate watch, including using its horn to warn the vessel underway of its presence.   Each party alleged the other was negligent in causing the collision.  The court said the following:  “The test of negligence under maritime law is determined by the actions of the ordinary seaman, rather than the ordinary man”.  The court went on to say:  “An allegation of negligence because of a violation of the Collision Regulations must be considered in light of the principle that a mere breach of a statute, standard or rule is not equivalent to a finding of liability.  Standards and rules help to inform the Court of the standard of care and what accords with those standards”.  In other words, a breach of a ColReg does not lead to the immediate conclusion that the mariner’s conduct was negligent.

    All this being said, readers ought not interpret my comments to mean the ColRegs should not be treated as “rules” in the traditional sense of the word: directions to be respected and followed.  Clearly adherence to the ColRegs is immensely important to maintaining safety at sea.  The point to take from this article, however, is: do not assume that just because you have breached a ColReg that you will be found responsible in a civil or criminal court, and similarly, simply because someone else has breached a ColReg does not mean they will necessarily be responsible to you for your resulting damages.  The focus of the legal inquiry will typically come down to this question: to what extent does the breach of the ColReg demonstrate a sufficient departure from the conduct of a reasonably prudent mariner in the circumstances to warrant responsibility?  The answer will differ in every case.

    This article was originally published as “The Collision Regulations: “…more what you call guidelines than actual rules”?” in the February 2015 edition of the Western Mariner.  Darren Williams is a marine lawyer and principal lawyer at League and Williams LAW in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com

     

  • Estimates and Quotes – How Flexible or Binding are they?

    Estimates and Quotes – How Flexible or Binding are they?

    Quotes and Estimates – Important to Know the Difference

    It is common in marine industry, where vessels and equipment are continuously under repair or replacement, for the question to arise: is the cost of services and materials provided an estimate, or is it a quote?  Unfortunately, this question is often asked after the work is done and the purchaser of the services and materials has received a bill that is much higher than what they expected.  A dispute frequently ensues.  Liens are claimed, lawyers retained, vessels and equipment are seized or arrested, claims are opposed, and the wheels of justice may turn too slowly to satisfy many.

    Readers are well advised to understand, in advance of such problems, how the law determines whether an offer for services and materials is an estimate or a quote.  In a negotiation where a few words spoken or written can make the difference between a flexible estimate or a binding quote, knowing how to conduct yourself can save significant stress and money.

    Estimates versus Quotes:  Best Guesses versus Promises

    An estimate is a best guess of the cost of something the estimate is given for, whether it is for services or materials, or a combination of both.  By definition, an estimate has a degree of flexibility in its accuracy.  This flexibility, however, does not allow the person giving the estimate unlimited scope in its accuracy.  The courts have recognized that a person giving an estimate often does so in the context of holding themselves out as having expertise in providing the services and materials that are the subject of the estimate, and so the person receiving the estimate should be able to rely on the accuracy to a reasonable degree.

    For example, the principles discussed by the B.C. Supreme Court in Golder Associates v. Mill Creek Developments, while not a marine case, are relevant.  In that case, a company providing environmental engineering services sued a land developer for monies owed after it rendered invoices for work that exceeded, what it called an estimate, by 50%.  In the Golder case the court said:

    “…while an estimate for the cost of services to be provided is not a guarantee or warranty at law, it may have contractual effect, in essence setting a limit beyond which fees may not go”;

    and,

    “[weighing] in favour of an estimate having binding effect is the principle that although estimates are necessarily somewhat imprecise, persons in the business of providing work preceded by estimates should be able to do so with some accuracy”.

    Circumstances that are unforeseeable and outside the control of the person giving the estimate allow that person a greater degree of error in giving their estimate, particularly if the error relates to information within the knowledge of the person receiving the estimate that was not disclosed by them.  In the Ontario case of Kidd v. Mississauga Hydro the court said:

    “…the plaintiff here might well have been allowed, because of the vagueness of his estimate, a substantial margin of error.  But where the eventual figure is almost three times the original estimate, it is my view that the estimator should be held to that original figure.”

    In that case, there was nothing the court found that was unforeseeable and out of the estimator’s control that caused the final bill to be three times the estimate.

    On the other hand, a quote is a more precise promise of the cost of the services or materials.  Because it is a promise, a quote is binding.  However, I say “more precise” because, like the reasonable range of accuracy in an estimate, circumstances that are unforeseeable and outside the control of the person giving the quote, may allow that person to avoid being bound by the quote.

    The Objective Reasonable Bystander Test

    When dealing with disputes involving estimates and quotes “the Court must determine if the estimates were made in circumstances which imbue them with contractual effect and, if so, what margin of error may limit the extent to which the estimates are binding” (Golder Associates).  What did the parties agree was the reasonable margins of error in the estimate, or did the parties agree it was in fact a quote?

    Of course each party will tell their own story of what they believe was agreed and these stories invariably contradict each other and are often not reliable; after all, every case involves at least one side’s view that is not accepted by the court.  To avoid this, the law says it is not what a party subjectively believed the agreement to be that is determinative, but “what a reasonable man in the situation of the parties would understand the contract to be” (Aerovac v. Darwin Construction).  This is called the reasonable bystander test.

    In a recent case involving a well-known vessel, the Pacific Yellowfin, an American shipyard sued for amounts the shipyard claimed owing for refastening and re-caulking of the vessel’s hull.   The owner of the vessel had requested a “reasonably accurate estimate” and the shipyard responded with a first estimate and then later a second estimate marked “Final Estimate” with a fax letter referring to the Final Estimate as a “quote”.  Some of the items on the Final Estimate were marked “T&M” for time and materials, but the disputed items were not marked “T&M”, and the shipyard maintained it understood the agreement was that those disputed items did not need to be charged at the amount estimated on the Final Estimate, but rather could be charged at a greater amount if the time and materials expended warranted it.  The court reviewed the documents, and found that “an objective reasonable bystander would conclude that [the shipyard] offered to perform the work and charge the prices for the disputed items that he set out in the Final Estimate” rather than the actual time and materials incurred.

    Best Practices for Suppliers and Buyers

    There are, in my view, several best practices that may be employed by suppliers and buyers to ensure their version of the terms of an agreement is the one the court would find an objective reasonable bystander would also have (ie. the one the court decides is the actual agreement).

    Firstly, for both suppliers and buyers, always confirm the agreement in writing for later reference, even if (worst case scenario) it is just an email or a text.  If the agreement is for a quote, or an estimate, call it by that name – be explicit.  Always use consistent language in your communications from the beginning of negotiations to the end of billing, and do not mix up words like “estimate” and “quote”.

    Secondly, if you are a supplier providing an estimate or a quote, list any factors that might cause the estimate or quote to change, and if they do change, report them to the buyer as soon as possible.  Generally, avoid giving a quote unless the financial upside justifies the risk of being bound to the quote.

    Lastly, if you are a buyer, don’t be shy of asking for a quote rather than an estimate.  Make sure the quote is in writing and refers to itself as a “quote”. If after work starts, the supplier begins to refer to the quote as an estimate, correct them in writing.  Finally, do not withhold information from the supplier that you know would affect the accuracy of their estimate or quote, because otherwise you may not be able to rely on it.

    Darren Williams is the principal lawyer at League and Williams Law Corporation in Victoria B.C. and can be reached for question or comment locally at 250-888-0002, or at info@leaguelaw.com.  Article was previously published in the September 2015 edition of Western Mariner‘s Legal Net.  

  • The Dog Got Us Sued: Liability for Acts of Dog (Video Blog)

    The Dog Got Us Sued: Liability for Acts of Dog (Video Blog)

    The Legal Liability for Dogs

    This week we are talking about legal liability for dogs.  That is, if a dog injures someone or causes property damage, what are the consequences, and how can they be reduced, or even avoided entirely?  This discussion applies to both dogs that you might own, but also dogs owned by others that might be under your care, or even simply because they are on your property.  Dog owners can be very passionate about their dogs, and sensitive to the criticism of others, much like someone would be about their own children.  Indeed, dogs are not only our best friends, they are members of our families.

    This blog is not about any particular breed of dog, or how their owners train or care for them.  Indeed, every breed of dog can be completely harmless, and also quite dangerous, depending on the circumstances.  Rather, this discussion is about how the law may hold the owner of ANY dog responsible for injury, death or damage caused by a dog, and why having insurance is critical.

    Three Ways the Law Holds People Accountable for Dogs

    There are three principle ways that the law holds people responsible for harm caused by a dog.

    The first is under general negligence law. This means that if the behaviour of the dog could cause foreseeable harm to others, the person whose control the dog is under has a responsibility to prevent the harm.  This is true regardless of the ownership of the dog, or the location of the dog.  For example, if you take a friend’s dog to an on-leash park, you let the dog off the leash, and the dog knocks an elderly person to the ground breaking their hip, you will likely be responsible for their injuries.

    The second ground on which you may be legally responsible for injury caused by a dog, is if it occurs on property controlled by you.  This is because in BC, a person who controls property must take reasonable steps to ensure activities conducted on the property do not pose unreasonable risks to others on the property.  For example, you decide to host a backyard barbecue and invite all your friends to bring their dogs.  You might know some of the dogs don’t get along but you hope for the best.  During the barbecue a dog fight ensures, and a guest is badly bitten, suffering nerve damage and they are unable to use their dominant hand to work.  Even though you don’t own the dog, because of your duty to ensure people are reasonably safe in using the property, you may be responsible for the injuries.

    The last legal basis for liability is based on an old legal maxim called scienter – which is Latin for, essentially, knowledge of poor behaviour.  Scienter means that if you own a dog, the dog has demonstrated a dangerous behaviour previously, and you knew that it had, you may be liable if that behaviour hurts someone.  For example, a dog owner is aware their dog likes to chase motorcycles because they have seen the dog chase motorcycles.  One day the owner forgets to tie the dog up and it chases another motorcycle and the motorcyclist loses control and is badly injured.  The dog owner would likely be entirely at fault for the accident.

    These are all tragic, but entirely realistic scenarios.

    How can dog owners reduce their legal risk?

    So, besides having your dog under a degree of control that is appropriate for the circumstances, what can dog owners do to reduce their legal risk?  The answer is: insurance.  Many people don’t know that their homeowners insurance policy includes $1 million in liability insurance that will pay for a legal defence and any money that they have to pay as a result of injury or damage caused by their dog.  This is true even if the accident happens when you and your dog are away from the property, such as at the park.  The same is true of renter’s or tenant’s insurance policies, and such insurance often only costs about $35 per month.  In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were made as a result of a dog causing injury or property damage.  In the last several years the average value of dog related insurance claims has been $35,000 and $50,000.  Obviously, no dog owner wants to be responsible for this type of debt.  If you are not a homeowner or renter, or a family member living with someone who is, you likely do not have liability insurance if your dog gets you sued.  However, you can buy separate liability insurance. Any insurance broker can help you with this.

    In closing, if you are a dog owner, regardless of the breed, the responsible thing to do is ensure you have insurance to protect you, and any person that might be injured by your dog.  Rarely does any dog intend to cause any harm, but unfortunately the intent of a dog matters not when you are the one being sued.  I hope you found this blog helpful and thank you for watching.

    We hope you have learned something from this week’s video blog.  Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call.  We are here to help injured parties get the fair compensation that they are entitled to.

  • When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

    When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

    “Get Off My Ship, You’re Fired”: When is a Mariner Entitled to Severance Pay?

    When is a mariner entitled to a notice of termination of their employment, or to be paid out for the time instead (called severance pay), is an unfortunately common question. In some cases, a mariner is left with no right to severance, but in many others, the mariner may overlook significant entitlements because they do not understand their rights.  There are, of course, always at least two sides to every story, so in the next Legal Net, I will outline the steps a prudent employer should take to terminate an undesirable employee, but for now, a mariner who faces the dismal view of being fired themselves should ask the following question.

    Question 1: Am I Unionized?

    Unionized employees’ rights to dispute termination or seek severance pay are limited by the terms of the collective bargaining agreements (“CBA”) between their unions and their employers.  These CBAs represent a trade-off where the employee assumes certain protections offered by agreement (such as wage rates, benefits, seniority entitlements, pension, a grievance process, etc.), in exchange for giving up other rights.  A unionized employee must dispute their termination through the grievance process under the CBA and cannot pursue severance pay against the employer in any of the processes discussed below.

    Question 2: Am I an Employee, a Contractor, or a Dependent Contractor?

    If you are not a unionized employee, the second question to ask yourself is: am I a true employee, a contractor, or a mix of these types of workers, someone called a dependent contractor?  This is important because only an employee and a dependent contractor are entitled to severance.  A true contractor has no entitlement to notice of their termination outside of what is stated in their contract, if anything.  An employee or a dependent contractor on the other hand, who are people defined by several different criteria but both of whom rely primarily on a single employer for work and tend to be under a greater degree of employer control than independent contractors, are entitled to reasonable notice of termination, if their contract is silent on this issue.

    Question 3: Was I Fired for Just Cause?

    Regardless of whether you are an employee, a contractor or a dependent contractor, if you are fired for cause you are not entitled to severance pay (unless a written contract says otherwise, which would be very unusual). The law says that a mariner can only be fired for just cause if their conduct fundamentally undermined the employment relationship.  The threshold for just cause is high.  Significant dishonesty, theft, and gross negligence are examples of such behavior.  Mere mistakes, irregular lateness, minor insubordination, and so on can only be just cause for termination if the employer provides written warnings in advance that such behavior will result in termination.  The employer bears the burden of proving they had just cause to fire an employee.

    Question 4: Are my rights limited by an employment contract?

    An employee and a dependent contractor can have their rights to reasonable notice of termination limited by terms of a written employment contract.  Such written agreements are relatively rare in the marine industries.  Unless the court finds the employer has conducted themselves in such an egregious way as to dis-entitle them from relying on the written agreement, terms in the contract that restrict the employee from claiming severance beyond the minimum discussed below are unenforceable and the mariner cannot claim more than what they provide.

    Question 5: If there is no contract, or it is not enforceable, what law governs?

    Where there is no employment contract, or it is not enforceable because of the employer’s action, then the employee may be entitled to severance. Entitlement to severance comes from two possible sources: (1) legislation such as the B.C. Employment Standards Act (ESA) (provincial law), and Canada Labour Code (CLC) (federal law), or (2) judge-made law, called common law.

    The vast majority of marine jobs on the West Coast will be subject to the provisions of the B.C. Employment Standards Act (as opposed to the Canada Labour Code), regardless of the jobs involving navigation and shipping, because the work is related to local voyages as opposed to international or inter-provincial voyages.  This distinction is somewhat academic because the protections offered to employees under both the B.C. Employment Standards Act and the Canada Labour Code are largely similar.  Importantly, however, these laws only provide for a minimum severance entitlement, which is roughly equivalent to 1 week for every year of service up to a maximum of 8 weeks. Common law on the other can award one month per year of service depending on the factors discussed below.

    Question 6: Should I choose Employment Standards/Labour Code or a Judge?

    Awards for severance are typically much higher (often by a factor of 2 to 4 times) for long-term employees who seek a severance award in the courts under common law or judge-made law, as opposed to applying to agencies that administer the Employment Standards Act or Labour Code.  This is because judges are not limited by the maximums set by the ESA and CLC when making their awards, although they are limited to what other judges have awarded to terminated employees in similar circumstances.  The high-water mark for severance awarded by a judge is about 24 to 26 months of pay in lieu of notice.  A judge awards severance based on factors that relate to how difficult it will be for the employee to replace their position and income, such as: age, seniority, education, years of service, and the labour market.

    People are often attracted to pursuing their severance claims under the simplified processes provided for by the ESA or CLC, but they often give up significant rewards by not pursuing their claims in front of a judge.  While some employees are concerned about the costs of hiring legal counsel to pursue their claims in front of a judge, employees should know that many lawyers pursue such claims on a contingency basis (no cure, no fee basis, like a ship’s salvage).

    Question 7: The employer will not or cannot pay my severance, now what?

    Mariners hold a uniquely powerful position in their claims for severance because severance claims give rise to a maritime lien.  A maritime lien is a special legal right that allows the mariners to claim a priority for his severance pay over other debts that the employer owes in respect of the vessel.  In other words, mariners owed severance pay can sue the employer and the vessel, arrest the vessel, require the owner to post bail (money) in the amount of the mariner’s severance claim before the vessel can be released from arrest, and where there are multiple creditors pursuing the employer, the maritime lien entitles the mariner to be paid in priority to other creditors including prior mortgage holders. This is an unusual and powerful right that terminated employees in most other (non-marine) occupations do not have.  It must be used carefully but should not be overlooked.

    This article was originally published May 2015 in Western Mariner magazine.  Darren Williams is principal lawyer with League and Williams in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com.

  • A Spirited History: Alcohol on Vessels

    A Spirited History: Alcohol on Vessels

    Alcohol has a Long History with Mariners

    Hardly can there be a more trying career than one with long stints at sea. For as long as we have known alcohol to exist (2700 BC), mariners have consumed it in celebrating their successes, mourning their losses, raising their hopes, and quelling their fears. Since the early 17th century, when it was first reported distilled on sugarcane plantations in the Caribbean and traded by British privateers, rum has been a popular liquor aboard ships. It has become the subject of long standing traditions.

    In December 2014, the issue of drinking aboard vessels caught peoples’ attention when the Royal Canadian Navy implemented a partial ban on drinking at sea. Prior to the partial ban, sailors could consume alcohol while the vessel was at sea, provided they were not on duty in less than six hours. The ban prohibits drinking at sea with the exception of special occasions. The announcement was met with some criticism, and reminded many of when the Royal Canadian Navy stopped issuing a daily ration of rum to sailors in March of 1972. I am grateful to commodore Robert Preston of the Royal Canadian Navy, who was retired for providing the following perspective on the daily “tot”.

    The Daily Tot in the Canadian Navy

    The issue of a daily ration of rum to sailors serving on ships was passed down from the Royal Navy where it originated some 300 year ago. At that time, it was a daily issue of a half pint of neat rum. Over the years, rum issue was regulated by order of a succession of admirals and by 1850, had been reduced from a half a pint per day to two and one half ounces of rum issued to each man. This “tradition” was adopted by the Canadian Navy on its formation in 1910.

    The procedures surrounding the issue of rum, as expected, were closely regulated as rum was a much sought after commodity and the ingenuity of the sailors was boundless in dreaming of weaknesses in the processes surrounding the security which applied to storage and handling of the rum supply and any opportunities the weaknesses provided.

    A short look at the daily procedure of issuing rum on board ships at sea and in harbour reveals the very detailed and precise routine that surrounded the event.

    Rum issue commenced at 1120 in the forenoon with the Bosun’s Mate making the pipe, “Up Spirits”. This brightened the day of every sailor and caused the officer of the afternoon watch to take custody of the keys to the spirit locker, meet with the coxswain and a supply rating and proceed down the many ladders to the spirit locker which was typically located in the very bowels of the ship. The coxswain at this point would have made a record listing each man entitled to his “tot” of rum and the exact amount of rum would be carried from the spirit locker to the location chosen for issuing. (On a fair day it might be on the upper deck or if inclement weather in the main passageway.)  The rum would be poured into a large container from where it would be issued.

    Under the watchful eye of the officer and the coxswain, the supply rating would first issue the correct amount of rum to each of the petty officer’s messes and this would be taken to the respective messdeck as chief and petty officers were permitted to drink their tot unsupervised and at their leisure. Not so for the sailors who would muster at the appointed location and line up with their cups containing a measure of either water or Coke into which the supply rating poured an exactly measured tot of rum. The sailors were required to drink their tot in view of the officer and coxswain to preclude saving it for another day or passing it to a mate.

    When all had been issued their tot, there was usually some left over as attendance at rum issue was voluntary. This excess was referred to as “ullage”. The rules were clear — it was to be irretrievably disposed of in the presence of the officer. By noon, the event was over — each sailor having taken on board 2 and 1/2 ounces of rum and ready to continue his working day.

    It is interesting to note that the coxswain’s tally of daily entitlement did not include officers who as a group were not entitled to the issue of rum. It did not include those sailors who declared themselves “temperance” who were compensated financially with a small addition to their pay. It also did not include those sailors who had incurred the captain’s punishment of “stoppers” usually as a result of issues related to drunken behavior ashore.

    The End of the Issue of the Daily “Tot” in the Navy

    The tradition of rum issue was discontinued in the British Royal Navy in 1971 on a day that will be forever remembered by many as “Black Tot Day”. Canada followed suit the next year, having concluded that the 300 year old practice of a midday issue of rum to those entrusted with the operation and maintenance of today’s complex weapons systems presented certain inconsistencies. The Canadian Navy terminated the daily issue of rum on March 31, 1972. Some have said that ending the daily tot represented progress and others have lamented that, “we have abandoned a tradition that has served us well for over 300 years.”

    Many thanks to commodor Robert Preston (Ret’d) for providing the history of tots in the Navy.

    Alcohol on Non-Navy Vessels, Reasons for a Rationed Approach

    The consumption of alcohol on ships remains extensive, particularly on smaller and less sophisticated commercial vessels and pleasure crafts. While the concerns of what effects alcohol may have on a mariner’s ability to operate a complex naval ship are clearly not the same on other vessels, the effects of alcohol should be closely monitored by owners and masters. The use of alcohol by a crew on a voyage, for example, may mean that the vessel is not legally seaworthy. A vessel’s insurance may be voidable where the owner is aware the crew has consumed alcohol, and the intoxication contributed to an accident. While this was likely not a consideration for the Royal Canadian Navy in banning drinking aboard vessels, as the Navy insures itself, it is a consideration for all other vessels. Although alcohol will obviously have some presence aboard many vessels into the future, its effect should always be closely monitored.

    Article was original published in the March 2015 edition of Western Mariner. Darren Williams is a marine lawyer and principal lawyer at League and Williams in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com.  Commodore Robert Preston, RCN, is enjoying his retirement and possibly the occasional rum.

  • Spied on by my Vibrator? A Peek between the Sheets of BC’s Privacy Laws (Video Blog)

    Spied on by my Vibrator? A Peek between the Sheets of BC’s Privacy Laws (Video Blog)

    Hello, and welcome to this week’s blog on the law.  This week we are taking a peek between the sheets of BC’s privacy laws as they pertain to the ever growing array of internet connected consumer devices that may be collecting your personal information.

    The Case of the Spying Vibrator

    Last week, a Canadian company that manufactures a Bluetooth and Wi-Fi connectable personal massage device, also known as a vibrator, was sued for breaching privacy laws.  Although the lawsuit was commenced in the United States, the defendant company is Canadian, relating to a vibrator commonly sold in BC, and involves privacy laws that are similar to those in force in BC.

    In this recent case the We-Vibe Rave vibrator, which uses Bluetooth or Wi-Fi to connect with a smart phone app and allows users to control various settings on the vibrator remotely over the internet, is alleged to have collected data about the patterns of use of the device, including times and frequency of use.  This lawsuit is reflective of a growing industry of internet connected devices, ranging from vehicles and home thermostats, to refrigerators and washing machines, to other more, shall we say, personal devices.  The evolving industry of connected consumer devices, commonly referred to as the “internet of things” (IOT), poses interesting challenges for privacy laws.

    Importantly, the recent vibrator case alleges that the software used to connect users to the device collects and transmits enough information, including an email address, to enable the person using the device to be identified in the data collected.  None of these allegations have been proven in court.  However, in a world where small and large scale data breaches are common place, the idea that the pattern of use of someone’s vibrator has been collected, and therefore might be disclosed, could be terrifying.   For some, this data might not only be personally embarrassing, but imagine your employer learning the device was in use at 3pm on a weekday when you were at work.  The problems this type of data breach could raise are only limited by your imagination.

    BC Privacy Laws and the Internet of Things

    So, what does BC law do to protect people from their personal information being collected by others?

    BC’s Personal Information Protection Act provides that a business cannot collect “personal information” without a person’s consent.  But what is “personal information”?

    This is answered by a two-part test.

    • Firstly, it must be information that is reasonably capable of identifying a particular individual, either alone or when combined with other available information, such as an email address or IP address, and,
    • Secondly, it must be information that is collected, used or disclosed for a purpose related to the individual.

    Regarding the first part of the test, data that is collected along with the person’s name or email address, is obviously information reasonably capable of identifying that person.  But what about the second part of the test, whether the purpose of collecting the information is related to the individual?

    In the case of an internet connected vibrator, the manufacturer might say they are collecting data about the frequency and duration of use of the vibrator, along with its resulting battery life, as a means of improving future versions of the product or monitoring for defects, and therefore the data collected relates to the device, and not the individual using it.  Sounds logical, right?

    Unfortunately, no.  Although the law is less than clear in this area, when the nature of the data makes it easier to determine the identity of an individual using the device, the more likely the collection of the data is a privacy breach.  For example, data being collected about the mere number of passengers getting on and off a public bus is not a privacy breach because that data does not tell us anything about a particular individual.  However, in the case of consumer items that are typically only used by one individual, such as an internet connected toothbrush, or a vibrator, collecting data from these devices where that person can reasonably be identified, is likely illegal, even if the intended purpose is not to collect data about the individual.

    That said, the exception to this rule against collecting data is where the person has consented to the collection of personal information.  This consent can be express (such as verbally or in writing), or it can be implied.

    The BC Personal Information Protection Act states that a person is deemed (that is, implied) to have consented to the collection and use of their personal information if the purpose of collecting the information would be obvious to a reasonable person, and the person voluntarily provides the information for the purpose.  In other words, if it is not reasonably obvious what the data would be used for, and you did not give up the information for that purpose, the other party cannot collect and use the data.

    On the other hand, a business can only collect and use personal information if (and there are four to parts to this test):

    1. The business provides the person with notice of its purpose in collecting the information,
    2. The person has an opportunity to decline to allow the collection,
    3. The person does not decline to allow the collection and use of the information, and;
    4. The collection and use is reasonable given the sensitivity of the personal information.

    Importantly, the notice of the collection and use of the data must be clear and understandable (in other words, it cannot be legal mumbo-jumbo), and must be given far enough in advance of the information being collected that the person can refuse if they want.  Also, if the business collecting the information uses it for a purpose that is different from what they told the person, or they simply didn’t tell the person what the purpose was, its collection is illegal.

    Read the Fine Print that comes with Internet Connected Devices

    While it would be premature to comment on how this law might play out in the case of a spying vibrator, consumers of internet connected devices should read the fine print that comes with the devices, and ensure they are not buying more than they bargain for.  We hope you enjoyed this peek between the sheets of BC’s privacy laws and have learned something by reading this blog.

    Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.

  • Is an Apology an Admission of Fault?

    Is an Apology an Admission of Fault?

    For Landlubbers, No, for Mariners, Perhaps

    In February of 2001, while conducting a demonstration for civilian observers nine miles off the Hawaiian island of Oahu, the U.S. nuclear submarine Greeneville performed an emergency ballast blow and surfaced directly beneath the Japanese fisheries training vessel Ehime Maru, slicing its hull port to starboard.  The 191 foot Ehime Maru sank in less than 7 minutes with the loss of nine crew members.  The captain of the Greeneville asked to travel to Japan to apologize in person to the families of the victims, but the U.S. Navy declined his request until nearly two years later, after a court of inquiry was convened and found him guilty of dereliction of duty. The Japanese government and the families of victims expressed outrage at the perceived lack of remorse of the captain.

    In July of 2012, the captain of the wrecked cruise ship Costa Concordia was interviewed on Italian television and was reported to have said “when there’s an accident, it’s not just the ship that’s identified or the company. The captain is identified and so it’s normal that I should apologize as a representative of this system”.  In this statement, the captain appears to skirt an outright personal apology for the grounding that is believed to have killed 32 people, presumably concerned that such an apology would be construed as an admission of personal fault, and rather apologized “as a representative of this system”.

    These tragic incidents are important to this article because they demonstrate how different cultures, and laws, perceive the meaning of an apology.  Japanese culture, for example, sees an apology as a sign of remorse and an intention to repair a relationship, but not as an admission of fault.  On the other hand, North Americans and Europeans typically see an apology to be an acknowledgment of wrongdoing, and an admission of guilt.  “Why should I apologize, it wasn’t my fault”, or “how can it not be his fault, he apologized” are common statements reflecting this perspective.

    Concern that an apology is an admission of fault has led to many governments enacting laws that say our apologies cannot be used against us in a court of law.  After such laws appeared in the United States and Australia years prior, B.C. was the first Canadian province (in 2006) to enact legislation that prevents such statements from being relied on in court as evidence that the person making the statement was at fault.  In 2012, the only Canadian provinces or territories not to have enacted such legislation are New Brunswick and Quebec.  The federal government also has not enacted an apology law.

    Importantly, while these provincial laws (sometimes called “safe harbour” laws because they protect the person making the apology) may be effective for non-marine accidents and resulting apologies, it is unlikely that these provincial laws offer the same protection to mariners.

    Why Apology Laws?

    Lawyers generally advise their clients not to apologize for the very reason that many cultures interpret such apologies as admissions of fault and may expose their client to legal action and financial harm.  However, there are other concerns that motivate this advice.  Many insurance policies include terms which void the policy if fault is admitted by the insured.  As well, an insured has a duty to the insurer not to prejudice the insurer’s ability to defend a claim against the insured, and an apology may be viewed as a breach of this duty, jeopardizing the insurance coverage.

    However, there are several studies, mostly conducted by the medical profession and their insurers that show a simple apology can reduce litigation, promote the early resolution of disputes, and even lower the amount disputes are settled for.  In 1994, a U.S. study found that 37% of those interviewed would not have started medical malpractice suits had they received an apology.  In 1987, after losing two medical malpractice cases that cost a total of US$1.5 million, the Veterans Affairs Medical Center adopted an apology policy, which was later credited with preventing all but three cases from going to trial over 17 years, and reducing average settlements from a national average of $98,000 to only $16,000.  In Canada, the government has a keen interest in reducing the number of cases that require court time, so the effect of protecting people who chose to apologize has been given significant attention in recent years.

    The B.C. Apology Act

    In 2006, the B.C. government passed the Apology Act, which provides:

    • an apology does not constitute an express or implied admission of fault or liability by the person in connection with that matter;
    • an apology does not void, impair or otherwise affect any insurance coverage that is available;
    • an apology must not be taken into account in any determination of fault or liability in connection with that matter; and,
    • evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability.

    Why B.C.’s Apology Act does not Apply to Marine Accidents

    While no court case has yet considered this point, it is this lawyer’s opinion that provincial apology law cannot protect mariners from the effect of an apology given for a marine accident in the same way it protects apologies made for non-marine accidents.  For example, the master of a vessel apologizes to the crew of another vessel following a collision while tying-up, he then gets in his car and drives home, rear-ending another motorist at a red light.  As if his day did not go badly enough, the master gets sued by both the owner of the vessel he struck, and the motorist he rear-ended.  The B.C. Apology Act would mean the apology made to the motorist could not be used against the mariner in court, but the apology made to the crew of the vessel could be.

    The reason apology laws cannot protect mariners from their apologies relates to the federal government’s exclusive jurisdiction over navigation and shipping under the Canadian Constitution.  In recent years, Canadian constitutional law has developed to say a provincial law can apply in areas of federal jurisdiction, such as maritime law, but only if the provincial law does not directly conflict with federal law.  In a lawsuit involving a collision or other maritime accident, Canadian maritime law includes the right to rely on an apology at trial, but the provincial law directly conflicts with this right by saying the apology cannot be relied on.  This direct conflict means the provincial law would likely not apply to marine accidents.  Because the federal government has not enacted an apology law of its own, mariners can expect their apologies to be raised as evidence of their fault for a marine accident.  This is not to say mariners should never apologize, but in cases where legal action is possible, it is best to seek legal advice as to the best way to make that apology and what effect that apology might have.

    Originally published in 2012. Download the pdf of this article here.

    Darren Williams is a marine lawyer with League and Williams in Victoria BC.  He may be reached at 250-888-0002 or via email at info@leaguelaw.com.  

  • Video Blog: Speeding Cyclists and BC Law

    Video Blog: Speeding Cyclists and BC Law

    School Zones, Speeding Cyclists and BC Law

    Last week, a local cyclist was ticketed for speeding in a school zone.  The event attracted considerable news attention and a lot of discussion on social media – with many wondering if speeding cyclists are subject to the Motor Vehicle Act.  In this week’s blog, we will discuss how BC’s Motor Vehicle Act applies to bicycles and why this might be.  Viewers should be warned that some of the images in the above vlog may be disturbing to some viewers.

    Despite being call the “Motor” Vehicle Act, section 183 of the BC’s Motor Vehicle Act states:

    In addition to the duties imposed by this section, a person operating a cycle on a highway has the same rights and duties as a driver of a vehicle.

    In other words, all of the rights and duties provided to cars, apply to bicycles as well.  This applies to speed limits, the manner in which bicycles and vehicles enter and leave roadways, and how they negotiate intersections and interact with each other.  In my view, this is a good thing. There is a significant power indifference between motor vehicles and bicycles, and similarly, between bicycles and pedestrians.  Speeding cyclists are a road safety hazard.

    It may seem obvious that, because of the simple physics of mass times velocity, a vehicle can cause more damage to a cyclist, than a cyclist to a pedestrian, but that comparison bears little comfort for a pedestrian who suffered a brain injury when they are knocked to the ground by a careless cyclist.  In other words, an object traveling at speed does not need to weigh even a fraction of what a vehicle weighs in order to cause significant injury.  Section 183 provides for pedestrians the same increase in safety from being injured by cyclists, as it provides cyclists from being injured by motorists.

    Lack of Liability Insurance Carried by Cyclists Put Victims at Peril

    What many people overlook in this debate is that while every person, including a cyclist or pedestrian, injured by a motor vehicle in BC will have some form of insurance coverage to help pay for medical expenses and wage loss while they are injured, the same is sadly not true of pedestrians injured by speeding cyclists.  In other words, ICBC and private automobile insurers will not pay for the medical expenses or wage loss of a pedestrian injured by a cyclist.  It is only if the cyclist has liability insurance through their home or renters insurance that they will have some source of money to help pay for the injured person’s expenses.  If that insurance is not available, the cyclist will be personally responsible to pay for the injured person’s expenses. Often, this can mean personal bankruptcy for the cyclist, as many injuries result in hundreds of thousands of dollars in damages.  Both the injured pedestrian and the cyclist are the ultimate losers in that scenario.

    Imagine for a moment a cyclist speeding though a school zone, colliding with a small child who is crossing the road, leaving the child with a brain injury.  The cyclist would likely have no insurance and the child would be left with minimal resources to pay for medical care and income loss through their life.  In short, there is good reason the safety precautions set out in the Motor Vehicle Act apply to bicycles as well as motor vehicles.

    Inability to Gauge Speed is No Excuse

    In closing, I reviewed one blog in the last few days that questioned whether a cyclist should be ticketed for speeding when bicycles do not have a speedometers and therefore cannot gauge their speed.  This raises an interesting issue that we will cover in more detail in a future blog, but for the time being, it will suffice to say that cyclists should always err on the side of caution if they are unable to reasonably judge their speed.

    If you have a question about this issue topic or another legal issues, please feel free to contact us for a free legal consultation.  We may be reached at our offices at 250-888-0002, or via email at info@leaguelaw.com.

  • Are Waivers (for Accidents) Enforceable in BC? (Video Blog)

    Are Waivers (for Accidents) Enforceable in BC? (Video Blog)

    This week, I am going to talk about the enforceability of waivers, which are incredibly common and powerful clauses in contracts we all come across almost every day.  From getting on a chairlift or a ferris-wheel, to renting a car, a bicycle or piece of garden equipment, or even leaving a jacket at a coat check, waivers are everywhere.  Giving up, or waiving, the right to claim for the consequences of someone else’s carelessness is something we all frequently do.

    Waivers are Agreements not to Sue

    A waiver is a promise not to sue for any injury, death or property damage arising out of the activity, including loss caused by the clear negligence of another person.  British Columbia is the most waiver-friendly province in Canada, and Canada likely the most favourable country in the world for enforcing waivers.

    Insurance companies like waivers because they reduce the number of claims they have to pay out because waivers reduce the likelihood their insured will be successfully sued.  Businesses like waivers because they reduce the cost of their insurance and when a business cannot get liability insurance, a well-drafted and presented waiver offers the opportunity to avoid legal responsibility for the negligence of the business and its employees.

    For many people, the idea that they might be badly injured by the obvious negligence of an another person and have no legal recourse to pay for wage loss or medical expenses, can be frightening. And it should be.

    Waivers are Enforceable When They Meet Legal Tests

    While many waivers are enforceable, they must meet several legal tests.  In order for a waiver to be effective in removing someone’s right to sue for another’s negligence, the waiver must meet the following three part test:

    •  First, the waiver must actually apply to the facts of how the accident occurred;
    • Second, the waiver must not be what’s called unconscionable; and
    • Third, the waiver must not be against public policy.

    Waivers Must Apply to the Facts of the Accident

    So, regarding the first part of the test, does the waiver apply to the facts, this means the court must consider whether the terms of the waiver include a description of the risks that caused the person’s injury.  This means a waiver can only cover potential risks which were in the mind of the person at the time they signed the release.  For example, if you are skiing, it is likely in your mind you might ski off a poorly marked trail and injure yourself, or be injured in an avalanche which could have been prevented.

    You would not, however, contemplate being shot by an employee who was carelessly handling a firearm, or being food poisoned by poor practices in the ski lodge.  In other words, the cause of the injury that the waivers seek to avoid legal responsibility for, must be reasonably described in the waiver and be generally foreseeable by the parties.  Clear language is required if a business operator wishes to release themselves from liability for the negligence of their employees or agents.  The courts must also consider whether the participant actually understood what they signed.

    Generally, by signing a waiver, it is presumed that the participant has read and understood it.  The activity operator is under no special obligation to ensure that participants understand what they have signed.  However, where the operator knew or should have known that a participant was unaware of the legal or practical effects of signing the waiver, they have to take reasonable steps to advise the participant.

    This can arise where the participant was told to sign the waiver in a hurried or casual manner and not given adequate time to read and understand the waiver.

    Waivers Must not be Unconscionable

    The second main requirement of a valid waiver is that it must not be unconscionable.  In other words, even if the waiver applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  To prove that a waiver is unconscionable, the person who signed the waiver and the person relying on the waiver must have been in significantly unequal bargaining positions.  The business operator must also have abused this power to get the participant to agree to an unfair waiver.

    That said, participants almost always have the choice between agreeing to the waiver and participating, or not participating at all.  Courts have upheld waivers even in cases where the participant has traveled long distances to participate in an activity, only to find that if they didn’t accept the waiver they would be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a waiver as an inequality in bargaining power that makes signing the waiver unconscionable.

    Waivers Must not be Against Public Policy

    The third main requirement of a valid waiver is that the waiver must not be against public policy – that is, the waiver is contrary to the interests of the general public as a whole.  The power to overturn a waiver because of public policy is rarely exercised by the courts in BC.  Waivers in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities, however, with reasonable care of the business, should be low risk, and a court might find it is against public policy to enforce a waiver where to do so would discourage routine safety practices.

    When in Doubt, Seek Legal Advice Out

    A properly drafted and presented waiver can provide business owners with strong legal protection from claims.  However, it should never be assumed that a liability waiver will provide complete protection from law suits.  In cases where there has been significant injury or property damage, or death, a judge should be asked to decide whether the waiver is enforceable.

    We hope you have learned something from this week’s blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Liability for Unsafe Premises – BC’s Occupiers Liability Act (Video Blog)

    Liability for Unsafe Premises – BC’s Occupiers Liability Act (Video Blog)

    Unsafe Premises, an Overview of Occupiers Liability Law in British Columbia

    In British Columbia, the law provides that a person who is in physical possession or control over premises has duty of care to see that another person, and that person’s property, is reasonably safe in using the premises (basically, a law against unsafe premises).  This area of law is referred to as “occupiers liability law” because under BC legislation, a person who is in physical possession or control property is called an “occupier”.

    This law often comes into play when someone suffers a fall in a grocery store or a restaurant, slips in an icy parking lot, trips on an uneven sidewalk, or falls down uneven stairs.  Notice, however, that I also said the law applies to people’s property as well.  That is, a person’s property, such as a vehicle, must also be reasonably safe in using another’s premises.

    While we do not like to think of domestic pets or farm animals, such as dogs or horses as “property”, as they can often be part of the family, the law considers them to be property and also provides that these creatures should also be reasonably safe in using another’s premises.  However, the majority of cases in this area of law relate to injuries to people.

    The Law Does not Require Perfection but Merely Reasonable Actions to Ensure Safety

    Some people believe that if they injure themselves when they are on another person’s property, through no fault of their own, that the owner of the property is automatically responsible for having unsafe premises.  This is incorrect.  The law only requires a person to take reasonable steps to see that another person or their property is reasonably safe in using the premises.  In other words, the law does not require perfection in ensuring premises are absolutely safe.  The most common example of injuries on premises are slip and falls on residential or commercial property due to slippery substances such as water, ice, or food.  In these cases, the law requires the person controlling the premises to exercise a reasonable standard of inspection and maintenance for hazards.  This does not mean that the occupier will be liable for any accident, only an accident where reasonable inspection and maintenance could have avoided the accident – where negligence on the part of the property owner has resulted in unsafe premises.

    For example, the courts have found that grocery stores in British Columbia should do regular inspections of their floors about every 30 minutes to two hours depending on the type of store, the area of the store, and how busy it is.  As long as the store has a system to ensure this inspection is occurring, and can show that it actually occurred, the store may not be held liable for an injury even if somebody innocently slips on something such as grapes in the produce aisle.

    As an example, imagine that you walked into a grocery store and ten minutes before you come along another customer spilled grapes on the floor without noticing.  This could totally happen, right?  Then you slip on the grapes before the store employees had a chance to notice them and remove the hazard.  You fall hard onto the concrete floor, perhaps breaking a bone.  It is possible the store would not be liable for your injuries, provided they could show the system they had in place was reasonable and it was being followed, even though the grapes were on the floor for several minutes before you stepped on them.

    Again, the law does not require perfection, or for the occupier to be responsible for any serious injury; rather, it only requires they exercise care that is reasonable in all of the circumstances.

    Failure to Have and to Follow Systems of Inspection & Maintenance will Result in Liability for Unsafe Premises

    That said, I continue to be surprised how large and sophisticated companies, such as large grocery store chains, either fail to have effective systems of inspection and maintenance in place to safeguard the safety of their customer, or simply don’t follow the system they do put in place.

    I hope you have learned something from this week’s blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.