League and Williams Lawyers

Author: Darren Williams

Understanding Marine Collision Regulations: More like Guidelines, than Actual Rules

Clearly the Collision Regulations (“ColRegs”) under the Canada Shipping Act 2001 serve an important purpose in promoting the safe navigation of vessels on 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 behaviour. 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. In this situation, trust that experienced Victoria, B.C. lawyers can help.

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 on 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 that 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 the two pleasure craft on Okanagan Lake. In that case, a vessel underway collided with a water ski 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 these observations 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? As leading Victoria lawyers would always say, the answer will always differ in every case.

Darren Williams is a lawyer and founding partner at League and Williams LaW in Victoria B.C. with expertise in Marine Law, Estate Law and Personal Injury Law in BC and can be reached for question or comment at 250-888-0002, or at dwilliams@leaguelaw.com.

March 3, 2015
Repairer’s Liens – BC Primer for Marine Repairers & Customers

Repairer’s lien are very powerful, but often misunderstood legal tools available to repairers of vessels and marine machinery. The vast majority of repairers do not, in my experience, understand and implement their lien rights effectively, and as a result lose many of the advantages the law intended them to have. One of these rights, for example, is the ability to seize and sell a vessel or machinery, without court involvement, in order to satisfy the repairer’s bill. In this Legal Net, we will refresh marine repairers on the law of liens under the B.C. Repairers Lien Act, and explain the most common mistakes that lead to repairers watching their customer’s ship sail (or machinery leave their yard) without their bill being paid. On the flip side, of course, owners of vessels and machinery are well advised to appreciate the content of this article in order to protect their respective interests.

Before the B.C. Repairers Lien Act existed, marine repairers could rely on their maritime law rights as possessory lienholders. A possessory lien is, among other things, the right of a repairer to keep possession of the item they worked on until they are paid. The claim of a repairer with a possessory lien has priority to payment over most other people who are owed money by the owner. Importantly, this priority was lost if the repairer gave up possession of the item (unless possession was lost due to theft or fraud). The difficulty with keeping possession of the vessel or machinery, of course, was that it often made it difficult for the owner to generate the money necessary to pay the bill. Standoffs were not uncommon: a repairer would hold the vessel/machinery until the bill was paid, and the owner could not pay the bill without use of his property. Generally, this type of dilemma was bad for everyone’s business, including the repairer’s goodwill amongst other customers to whom the owner complained.

The B.C. Repairers Lien Act provides a solution to this dilemma by giving special legislated rights to repairers to keep the priority their possessory lien gave them, while giving up possession of the vessel, if specific procedures are followed. If the procedures are not followed closely, the right to a repairer’s lien, and the right to seize and sell without court involvement, is lost. The must-knows of this procedure are as follows.

Obtain a Signed Acknowledgment of the Bill (the most common oversight by repairers) – The repairer may give up possession of the vessel/machinery without (any or all of) the bill being paid, and not lose their lien, provided the owner signs an “invoice or other statement of account” acknowledging they are aware of the outstanding amount. The owner does not have to agree the amount claimed is actually owed, only acknowledge the repairer claims that it is owed. For example, the owner may argue the bill is too high, or the work was not done correctly or as directed; this dispute need not be resolved before possession is given up, but an acknowledgment of the demand must be signed. If the owner wishes, the acknowledgement may be signed with a written statement that the bill is “disputed” or “under protest”, but the acknowledgement is still valid for the purposes of preserving the repairer’s lien. The Act requires the acknowledgment be “signed”, so an email, text, voicemail or verbal acknowledgment will likely not suffice. The bottom line is: get a signed acknowledgement of the bill, or do not give up possession, even if the owner says: “I’ll send a cheque in the mail” or “I’ll call you later today with my credit card number”. Prudent vessel/machinery owners would ask the repairer to give up possession of their property without signing such an acknowledgment; because if they do, the repairer’s lien would be lost.

Register the Lien Within 21 days of Giving Up Possession – After the owner provides acknowledgment of the debt and the repairer gives up possession of the vessel/machinery, the repairer’s lien continues to exist for 21 days. Before the 21 days expires, the repairer must register the lien in the Personal Property Registry (unless the bill has been paid), which is a public registry of debts secured against personal property (that is, any property other than land). If the lien is not registered within 21 days, it is lost. The lien is best registered by a lawyer, or other person trained in registering liens, because mistakes in the lien particulars can result in the lien being invalid. The cost of registering a lien in most cases should be less than $300. While the lien can be registered without such information, the birth date of the debtor and the serial number of the vessel/machinery can help ensure the lien registration is valid (repairers should obtain this information when the owner signs the acknowledgment of the bill before giving up possession).

Seize within 180 Days of Registration, and Sell – provided the repairer has obtained a signed acknowledgment of their bill, registered their lien, and at least 90 days has passed since payment on the bill was due, the repairer can (without suing in court) seize and sell the vessel to recover their debt. If the repairer has not released the property from their possession, there is, of course, no need to seize it, and the repairer can proceed with advertising (the Act provides the procedure for advertising) and an auction. If the repairer does not have possession, the seizure occurs by the repairer contacting a court bailiff licensed by the B.C. Attorney General; authorized bailiffs can be found on the internet. The bailiff should ask for proof of registration of the lien. The bailiff will seize the vessel/machinery and advertise and conduct an auction of the property in order to pay the repairer’s bill and the seizure expenses. The bailiff will typically require a deposit for their fees. In some circumstances, the value of the vessel/machinery sold will not cover the repairer’s bill and seizure/sale expenses, in which case, the repairer is best off not releasing the property in the first place (in other words, if the bill is close to the total value of the property, resist giving up possession without being paid at least most of the bill). If the sale proceeds exceed the amount of the repairer’s bill and the seizure/bailiff expenses, the excess must be returned to the owner.

Storage Costs – One additional point that is often overlooked by both repairers and owners is that once a repairer asserts a lien, they may not include in the amount of the lien the cost of storing the property. If a repairer includes these charges and sells the property (although the owner proposes to pay all of the bill except for the storage costs), the repairer may expose themselves to a penalty assessed by the court for a wrongful sale. The exception to the rule that storage costs may not be included in a repairers lien claim is if there is a written contract between the repairer and owner that allows such costs to be part of the lien. Prudent repairers will include such a term in their work order form.

Seizure under a Repairer’s Lien v. Arrest – Lastly, I am often asked what the difference is between an arrest, and a lien as described above. The arrest of a vessel is merely a procedural right (in a court action) to prevent the owner of a vessel from moving the vessel. It does not give the repairer’s claim any special rights or priority like a possessory/repairer’s lien does. An arrest does not allow the repairer to sell the vessel without a court order (whereas a repairer’s lien does). While an arrest does not stop the owner from selling their vessel, practically speaking, no buyer will buy a vessel they cannot move. The arrest ensures the vessel remains in one place so that when the repairer sues the owner and obtains a judgment, the vessel is available to sell. However, simply because the repairer can ask the court to sell the vessel does not mean they are first in the line of creditors (there may be other claimants with higher priority, such as salvage liens, port authorities, or other repairers with prior registered liens). Importantly, if a repairer arrests a vessel that is in their possession, it destroys their lien and therefore their priority – so, never arrest a vessel you already have possession of.

Darren Williams is a founding partner of League and Williams and practices in the areas of Marine Law, Personal Injury and Estates Disputes serving clients from across British Columbia. Darren can be reached for question or comment at dwilliams@leaguelaw.com or 250-888-0002.

February 20, 2015
Distracted Driving is the Leading Cause of Accidents and Injuries in BC

No one wants to be involved in a motor vehicle accident. Many times, however, accidents are unavoidable, due to a variety of circumstances including another driver’s distraction behind the wheel. The Insurance Corporation of British Columbia (ICBC) reports that distracted drivers are a leading cause of car crash fatalities and injuries in B.C., with an average of 88 people killed each year as a result of distracted driving.

Being in a car crash is never a pleasant experience. It leads to unexpected costs in terms of car repairs, injuries, and time away from work. Most of the time, crashes result from the actions or inactions of at least one or more drivers who are at fault for the accident. If a driver is drunk or distracted, as shown by the most recent data made available by ICBC, they are far more likely to be found at fault for the accident. Working with lawyers experienced in BC personal injury law and dealing with ICBC is essential to holding the parties responsible accountable for the pain and damage that has been caused by the accident and getting fair compensation.

If you are involved in a motor vehicle accident, it is advisable that while you are at the scene of the accident you collect as much information as you can (if you can), including the other party’s names, driver’s license numbers, vehicle license plate numbers, and contact information from possible witnesses. If possible, take pictures of the scene of the accident, and take note of your surroundings, including the street name, street conditions, and nearby landmarks. Working with BC personal injury lawyers, like those at League and Williams, can ensure that you’re fairly compensated and can alleviate much of the stress of pursuing a personal injury claim.

If you need to speak with a lawyer about your BC accident – contact us at 250-888-0002 or via email at info@leaguelaw.com. If you call after hours, be sure to leave a message and we will return your call as soon as possible. Consultations are free and our philosophy is that we get paid when you do.

(Source: ICBC rates rising due to distracted driving, The Vancouver Sun)

January 21, 2015
Rescuer Law: Compensation for Mariners Injured Rescuing Persons or Property?

“If a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is [his intention to assist], if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.” –Lord Denning (Videan v. British Transport Commission, 1963).

These weighty words raise the interesting question: what is a mariner’s right to compensation for death or injury suffered when responding to danger (to anyone’s life or property) caused by someone else’s negligence?

By way of background, until the early 1900s, rescuers of the victims of negligent actors were denied compensation because the rescuer was seen to have voluntarily assumed the risk of the rescue they embarked on. However, this law discouraged people from responding to those in need of rescue, so courts slowly began to recognize that the response to an emergency situation was not truly voluntary, but rather was brought about by the urgency of the circumstances, and the call of moral duty.

The most prominent maritime case to touch on this issue was the 1972 Supreme Court of Canada decision in the tragic case of Horsley v. MacLaren. Mrs. Horsley was the widow of a passenger who jumped overboard to assist another passenger that had fallen into Lake Ontario. Mrs. Horsely sued Mr. MacLaren, the master of the vessel, accusing him of negligently maneuvering the vessel in his attempt to reach the first victim (he backed stern-to the victim, rather than executing an Anderson or Williamson turn), compelling her deceased husband, another passenger, to jump overboard to assist. Both passengers died of cold shock.

More recently, in 2007, the B.C. Supreme Court considered rescuer law in the case of Smith v. Tucker. Mr. Smith was a taxi driver who stopped to assist Ms. Tucker, whose truck had run out of gas in the middle of a busy intersection in Vernon B.C. While pushing Ms. Tucker’s truck out of the intersection, Mr. Smith severed a tendon in his knee, which despite surgery, resulted in a permanent disability. Although not a maritime case, the reasoning of the court, discussed below, is applicable to maritime rescues.

Over the last 100 years the following legal principles have emerged which now guide courts in deciding whether an injured rescuer has the right to compensation.

There must be imminent danger to person or property.

The reaction of a person will only be deemed to be a true rescue if there is immediate peril to person or property. For example, in the Smith v. Tucker case above, the Court dismissed the claim of the taxi driver, finding that “the defendant’s truck had stopped moving; there was no collision between any vehicles; no one suffered injury as a result of the truck stalling and, regardless of where the defendant’s truck had come to rest, other motorists were sensibly not attempting to drive past her vehicle. The defendant was not trapped in her vehicle, nor was she rendered helpless by the incident. There was simply no situation of imminent peril that would warrant treating the plaintiff’s actions as being those of a rescuer”.

The danger responded to must be caused by someone’s negligence.

An injured rescuer has no right to compensation unless the danger they are responding to was caused by the neglect of another person, as opposed to danger caused by a pure accident arising without fault. For example, a ship’s propulsion system fails despite reasonable maintenance and the ship founders, requiring another vessel to rescue her crew. Such rescuers would not be entitled to compensation if injured during the rescue because the danger was not created by the negligence of the stricken vessels’ crew, but merely by mechanical misfortune.

The actions of the rescuer must be reasonable and foreseeable.

The actions of the rescuer must be in proportion to the interest being saved, and must be within what a reasonable person would expect someone to do in the circumstances. For example, in one case, a car wash employee attempted to prevent damage to a customer’s vehicle, and his employer’s building, by pushing on the hood of the vehicle which had been left in gear by the customer and was idling towards the building. The employee was crushed between the vehicle and the building and sued claiming he was a rescuer. The court denied his claim finding that his actions were neither reasonable nor what someone would expect him to do.

The rescuer’s decisions need not be perfect.

If the effort taken is reasonable, the rescuer will not be barred from recovery simply because they did not adopt the best possible course of action in effecting the rescue.

More deference is given to saving life than saving property.

The courts have found that the instinct to save another’s life is greater than the instinct to save another’s property. A hazardous intervention to save life is more likely to be a natural and probable consequence of a negligent act than one to save property, and therefore in the reasonable contemplation of a reasonable person. This means, generally, a person who is injured while saving life is more likely to receive compensation than a person who is injured while saving property.

Legal duty to act bolsters claim.

Courts will be more likely to grant compensation where the rescuer acts as a result of a legal duty imposed on them (as opposed to simply a moral duty). Two cases involving runaway horses demonstrate this principle. In the first case, a police officer was injured while trying to restrain a horse spooked in a large crowd of people after its owner had left it unattended. In the second case, a passerby stopped to assist a person in distress while restraining a runaway horse in a field, and was injured while climbing the pasture fence. The Court granted compensation to the police officer who was under a legal duty to act in the first case, but not to the passerby who was acting as a voluntary good Samaritan in the second case.

Marine Rescues under the Canada Shipping Act (2001):

The last point above, that a legal duty will assist an injured rescuer in obtaining compensation for their efforts, is significant because there are few industries in which a duty to rescue is imposed by legislation, and marine industry is one of them.

In particular, section 131 of the Canada Shipping Act 2001 provides that the master of a vessel in Canadian waters, on receiving a signal from any source that a person, a vessel or an aircraft is in distress, shall proceed with all speed to render assistance. Section 132 provides that the master of a vessel shall render assistance to every person who is found at sea and in danger of being lost.

Although it appears no court has considered the effect of these sections on rescuer law, in our view, these two sections place clear legal obligations on mariners to render assistance to those in need at sea, and therefore serve to reinforce, or legitimize, the rescuer’s reason for responding, making it more likely the court would award damages. The Supreme Court of Canada in the Horsley v. MacLaren case above considered the equivalent of these sections in the former Canada Shipping Act, but the Court found they did not need to consider the effect of the sections because there was sufficient law regarding the duty of a passenger vessel’s master (without relying on the Canada Shipping Act’s requirements) to find the master had a general duty to ensure the safety of his passengers.

Darren Williams is a founding partner of League and Williams where he practices marine law, personal injury law and estates disputes. Darren can be reached at dwilliams@leaguelaw.com or 250-888-0002.

January 19, 2015
Access to Justice in Peril in BC by Lack of Legal Aid Funding

Lawyers in British Columbia who deal with legal aid cases recently halted their services as a way to pressure the government to increase funding for the system. Members of the Trial Lawyers Association of BC said that “government funding for legal aid has remained the same for 23 years despite inflation and population growth.” This deeply impacts people who are not able to afford a lawyer, as they are denied any legal assistance and their access to justice is jeopardized.

About 40 percent of the people who face criminal charges end up representing themselves because they don’t meet the required conditions to acquire legal aid approval. A staggering number of people in family courts and small claims courts are left without any lawyers.

The government provides $56 million a year for legal aid and the association is urging the government to expand the amount that is directed to legal aid from a tax on the fees of the lawyers. British Columbia lawyers argue that the revenue from the tax was always meant to go exclusively to legal aid. Back in the 1990s, the legal aid budget was sufficient to get everyone a lawyer, however, that is no longer the case.

Justice Minister Suzanne Anton refuted the assertion that the tax was meant to be used exclusively for legal aid, saying, “there is a general misunderstanding that provincial sales tax collected on legal services is being misdirected to general revenue,” and that while the government back then did recognize that the revenue from tax would compensate the costs of legal aid, the tax was never really meant to fund legal aid exclusively. She added that the legal aid budget has been upped to about $74.5 million this year.

However, that still doesn’t match the budget of a decade ago when it stood at around $90 million. New Democrat Attorney General critic, Leonard Krog, criticized the Liberal government for seeking to cut expenditures to the detriment of the British Columbians with low incomes. He argued that getting legal aid when a person has low income has become virtually impossible.

Everyone deserves to have a lawyer at their side when the need arises, and the lawyers at League and Williams support the call for improved access to lawyers via legal aid and join the call for adequate legal aid funding.

(Source: B.C. lawyers withdraw services to protest lack of legal aid funding, The Vancouver Sun, July 7, 2014)

December 4, 2014
BC Cyclist Found at Fault for Passing on the Right

On November 6, 2009, a 16 year-old British Columbian who was riding his bike on a country road was forced off the road by an unidentified driver who was unaware of the cyclist’s presence. As a result, the cyclist fell down a rocky embankment and was injured in his fall. At the time of the accident, the vehicle had stopped in the middle of the road and the bike rider was passing on the right side of the vehicle when the vehicle suddenly moved to the right and forced the bike rider off of the road. The trial court found the driver of the vehicle 70 percent responsible for the accident and the cyclist 30 percent responsible. The Insurance Corporation of British Columbia (ICBC) appealed the decision and the appeal court (Ormiston v. ICBC), found that the cyclist was completely responsible for the accident. The case is important as it illustrates the difficulties that the existing legal framework poses to how drivers and people who use bicycles are to share the road safely and the difficulty that arises when negligence for accidents between drivers and those using bicycles must be decided by the court.

The Facts of the Case

The plaintiff was riding his bike down a hill on a paved rural road. The cyclist was travelling to the left of the “fog line” (the painted white stripe on the road that separates the road and the shoulder) because the shoulder was filled with debris.

A van passed the plaintiff at the top of the hill, and near the bottom of the hill, the van stopped in the middle of the road. The cyclist then proceeded, passing on the right of the stopped van.

The van suddenly moved to the right, cutting off the cyclist and forcing him onto the shoulder, over a concrete barrier and down a rocky embankment. As a result the person on the bike was injured in their fall down the rocky embankment and sought compensation for his injuries from ICBC.

The court’s decision

Using BC’s Motor Vehicle Act which prohibits overtaking on a vehicle’s right side, the court determined that the cyclist was solely to blame for the accident. Lawyers for the cyclist contended that passing the vehicle on its left side would have exposed the cyclist to the danger of oncoming traffic. The Court justified its decision further by explaining that had the cyclist stopped and waited a few moments before overtaking the vehicle on the correct side, the accident would not have occurred.

It could also be noted that had the motorist who had just passed the cyclist determined the position of the cyclist before moving right suddenly, the accident also would not have occurred.

Further, is the application of the law as it applies to motorists, to users of the road who are not motorists, appropriate? Does it enhance road user safety overall?

Cyclists – Are they between a rock and a hard place when it comes to using the road?

As personal injury lawyers, at League and Williams, it is our opinion that the law as it stands does not clearly define how motorists and non-motorists who use the road, including those who ride bikes, are to share the road safely. It is also our view that a strict application of the law as it applies to motorists and non-motorists, such as cyclists, may not promote the safety of all users of the road and may pose significant risks to non-motorist road users and in particular those on bikes. As many of us at League and Williams commute to work by bike on a regular basis, the idea of passing a vehicle that is stopped on the left, strikes many of us as being an unsafe thing to do as it requires transiting across a through lane and would expose a cyclist to the risk of oncoming traffic – at the same time, the idea of being found entirely at fault should an accident happen because a driver fails to ensure that no cyclist is to his right before moving to the right, seems incredibly unfair and unjust.

It is also clear, that the number of people choosing to travel by bike is increasing, particularly in urban centres in British Columbia – where Vancouver recently reported that the number of people commuting by driving was becoming a minority of commuters with people being as likely to get to work either by using public transit or by cycling. The safety of these users of the road needs to be protected as many of these road users are far more vulnerable to injury should an accident happen than drivers and their passengers.

Lawyers who represent cyclists injured in accidents need to be aware of both the actual rules of the road and the realities of safe cycling and they need to advocate effectively on their clients’ behalf to ensure that they can get access to fair compensation. The recent decision of the court is troubling as it demonstrates a disconnect between the rules of the road, road safety, and protecting the most vulnerable users of the road – cyclists and non-motorists.

The lawyers at League and Williams have proven experience representing people who are injured while cycling and can guide them to the best possible resolution. If you are a person who has been injured while cycling – contact us at 250-888-0002 or email info@leaguelaw.com. We provide free consultations and are happy to work with you to get you the best result possible for your cycling injury claim.

December 3, 2014
Legal Services to Trust: Client Reviews

At League & Williams, putting the needs of clients first is at the heart of what we do – we provide legal services that take into account each clients’ unique situation, their goals and needs, and seek to get the best result possible for each client. We pride ourselves on making our clients lives easier by focusing on providing the advice they need and listening to our clients to find solutions that meet their needs. We are committed to our clients and are very successful at delivering results on behalf of our clients. Read our client reviews and hear what our clients have to say about us:

“Darren Williams and his staff have helped me and my business many times in the last 10 years, all with great success. As an owner and manager of a medium-sized business I have relied on his timely advice for employment issues, insurance claims, domestic and international vessel purchases and other common business issues. He advice has always been been effective and he has always seemed genuinely interested in helping me see a problem though. When I haven’t been able to reach Darren, his legal staff are always caring and helpful. I have referred many people to him because I trust his advice.”

– Tracy Ronlund-Neilson

” Our family business is very active in the seafood and marine industry. For more than 12 years Darren Williams has helped us with dozens of business and litigation matters, and always successfully. He understands the marine industry and the people in. He is easy to communicate with and often works late and on weekends to make sure our work is done and we are happy with the result. When he has not been available Emma his assistant and Karina his associate have always been pleasant and helpful. I recommend this law firm.”

– William Strong

If you have a personal injury claim, marine law matter or estate dispute and need legal advice you can trust, contact us at 250-888-0002 or via email at info@leaguelaw.com. We offer free consultations and are committed to client satisfaction.

November 28, 2014
Quality Legal Services are a Function of Firm Values

Have you been in an accident? Have you been cut out of a will unfairly? Do you have a marine issue that needs expert legal advice? Looking for a law firm that puts your interests first? A firm that knows the law and has a reputation for getting the best results possible? When clients work with League & Williams they get a firm that is holistic, effective, competent, compassionate, and responsive. Our clients get quality legal services and trusted advice from lawyers who care about them.

We’re effective.

Lawyers are only effective if they have the skills and experience to properly represent their clients’ interests during a settlement negotiation and at trial. Most clients would prefer not to go to court if their claims can be resolved fairly through respectful negotiations, however, the ability to avoid trial is largely dependent on having an excellent trial record to rely on. Because our trial record is second to none, adjusters and defence lawyers know that we mean what we say and can follow through. Because we take the time to get to know you and make it a point to listen to your issues, we are able to find honest solutions that suit you and that juries find fair and reasonable if we have to go to court. Our goal is to serve as your voice and do what you want us to do, not merely advise you about what we think will get you the most money. Our goal is to get the best result possible from the perspective that matters: that of our clients.

We’re competent.

League and Williams has the knowledge and experience to handle tough cases and to push hard when respectful negotiations fail to achieve the desired result. Although our primary area of practice is personal injury law, we also handle estate disputes, and operate the largest marine law practice on Vancouver Island. Trying to cope with the consequences of an unfair will? Are you being anchored down by a marine law issue? Struggling to recover after an accident? Come and talk to us, we provide free consultations.

We’re compassionate.

Legal problems leave many people feeling stressed out, anxious, and fearful. It is only natural to experience these emotions when big decisions need to be made and there is uncertainty about what should be done. We take the time to listen to our clients. We support our clients every step of the way and are committed to getting them the best result possible.

We’re responsive.

We make it a point to respond to our clients as soon as possible, and seek to communicate with our clients on their terms, we will not hesitate to reach you when it is convenient for you to be reached. Contact us via phone at 250-888-0002 or via email at info@leaguelaw.com. We will do what it takes to respond to your questions, requests, and concerns as soon as possible!

November 24, 2014
Common Car Accident Injuries

In a report issued by ICBC, there was reported to have been roughly 315,000 crashes in BC in 2018 – 30% of car accidents (95,000) resulted in either injuries and/or death. The most common kinds of injuries sustained in car accidents include: soft tissue injuries, fractures, concussions and psychological injuries. Identifying and treating these injuries is often the best way to recover from them and minimize their impact – as such it is important for people who have been in a car accident to seek medical advice and to follow their doctors advice with respect to treatment options. It should also be noted that for those who file an ICBC accident claim, the costs of treatment is often covered by ICBC or may be recovered as part of an injury claim settlement.

Soft Tissue Injuries

Following an accident, it is common for “soft-tissue injuries” to be diagnosed. These injuries include damage to muscles, tendons, and ligaments. These injuries may be caused by the impact of the collision, or by how the body is jostled in the aftermath of an accident. The most common symptom of a soft-tissue injury is pain – either at the site of the injury or at some other part of the body (referred pain). Soft-tissue injuries typically cannot be seen on an x-ray and may be hard to diagnose. As such, it is often difficult for people with soft-tissue injuries to access timely and appropriate treatments.

Fractures

Fractures (broken bones) are another common injury that results from car accidents. Most fractures will be seen on x-rays and if treated properly in a timely way, will heal satisfactorily. However, sometimes fractures do not heal well for a variety of reasons, and some fractures may result in lifelong problems including pain and mobility difficulties.

Many car accident victims find that physiotherapy is helpful in recovering from fractures.

Concussions

Unfortunately, the impact of a collision often results in car accident victims sustaining mild brain injuries with concussions being fairly common. Those who have concussions often experience headaches, blurred vision, dizziness, inability to concentrate, and sensitivity to sounds and light. Some may have difficulty with their memory.

As concussions can result in serious problems, it is important to seek medical advice in order to treat and recover from a concussion.

Psychological Injuries

Car accidents often leave injured victims with psychological injuries including post-traumatic stress disorder (PTSD), depression and anxiety. Many accident victims find working with a psychologist to be helpful in coping with the psychological impacts of a car accident.

ICBC Injury Claims and Recovery

For those who experience car accident injuries, or who have a loved one die in a car accident; regaining quality of life and getting fair compensation for the losses sustained becomes a priority. Having a lawyer who is able to guide a car accident victim and their family through the ICBC claims process and enable them to focus on their recovery and advocate for access to effective treatment for their physical and psychological injuries becomes critical to regaining health and realizing fair compensation.

League and Williams enables their clients to recover from their accidents by providing trusted advice and enabling their clients to focus on their recoveries. Lawyers at League and Williams may be contacted at 250-888-0002 or info@leaguelaw.com to arrange a free consultation.

October 31, 2014
Must the Captain Always Go Down with His Ship?

This is an article by Darren Williams, a founding partner of League and Williams. Darren has written and published over 100 articles on maritime law in Canada. This article was originally published in February 2012.

If not physically, then at least symbolically, the captain must always go down with his ship.

This cold reality of our maritime culture was confirmed by the B.C. Court of Appeals’ on November 24, 2011, the decision regarding the 2006 sinking of the Queen of the North. In that case, the master of the Queen of the North was appealing a Workers Compensation Appeal Tribunal (WCAT) decision that found BC Ferries had not discriminated against the master when they fired him for raising various safety concerns, which were unrelated to the actual sinking, during the investigation into the incident. In essence, the Court confirmed the principle that, while the captain need not physically perish with his ship, he must always take ultimate responsibility for the happenings of his ship, whether they are within his control or not.

The Vessel Goes Down…

It is well known that on the evening of March 21, 2006 the Queen of the North failed to make a scheduled course change and struck Gil Island, sinking with the presumed loss of life of two passengers. At the time of the incident, the master had retired to his quarters for the night (as he was entitled to do), and the second officer (“2/O”) was on a break below, leaving the fourth officer (“4/O”) and quartermaster alone on the bridge.

While an internal BC Ferries inquiry ensued, the Transportation Safety Board (TSB) conducted its own investigation into the incident. The TSB concluded the following factors caused or contributed to the incident: various distractions likely contributed to the 4/O’s failure to order the course change; for the 14 minutes after the missed course change; the 4/O did not adhere to sound watchkeeping practices and failed to detect the vessel’s improper course; when the 4/O became aware that the vessel was off course, the action taken was too little too late to prevent the vessel from striking Gil Island; the navigation equipment was not set up to take full advantage of the available safety features and was therefore ineffective in providing a warning of the developing dangerous situation; the composition of the bridge watch lacked an appropriately certified third person; the working environment on the bridge of the ship was less than formal; the accepted principles of navigation safety were not consistently or rigorously applied; and, unsafe navigation practices persisted (such as listening to music) which, in this occurrence, contributed to the loss of situational awareness by the bridge team.

Meanwhile, in BC Ferries’ inquiry, the 2/O and quartermaster refused to answer questions. The master, who had rightfully been in his cabin when the grounding occurred, said he was unable to explain why the vessel had failed to change course. During this inquiry, the master was asked to list serious safety concerns that might have caused the vessel to go aground, and a list of safety concerns regarding the vessel that BC Ferries had not responded to previously. The master provided a list of 54 issues he had noted over the years, but it was agreed that none of these caused or contributed to the sinking.

…The Captain Must Follow

In January of 2007, following its internal inquiry, BC Ferries advised the master that due to “operational and staff requirements” it no longer required his services. A year later, the master filed a complaint with the Workers Compensation Board. The complaint was based on section 150 of the Workers Compensation Act (known as the “whistle-blower” provision), which provides an employer must not discriminate against an employee because that employee raises, in good faith, occupational safety concerns. The master maintained he was terminated because he raised a lengthy list of safety concerns. BC Ferries, on the other hand, maintained the master was terminated because, in not addressing possible causes of the sinking (but rather a list of unrelated safety concerns), and seemingly trying to defray responsibility for the incident, the employer had lost confidence in the master’s ability to command.

In hearing the master’s complaint, the WCAT made the following important statements: We further find that when a ship sinks, the career of the on-duty exempt Master of that ship is on the line, that is, his or her future employment as a Master is at serious risk. Such a situation may seem unfair where there was no misconduct sufficient to support a just cause termination. Nevertheless the evidence satisfies us that this is a well-known consequence, even an expectation, in the maritime culture where responsibility is absolute regardless of fault.

Captain C testified that it is a maritime tradition that having lost a vessel, the Master of such a vessel would be “looking to move on” to another place of employment in the maritime world. He indicated that it would be his expectation if he were in that situation. Captain C said that if he had captained a ship that sunk he would expect to be relieved of his command and he “would move inland with an oar over my shoulder”.

We have found that the employer terminated the worker’s employment because he was the onduty Master of a ship that sunk [sic] and in that position he was accountable for that accident; further, the employer lost confidence in the worker’s suitability as an exempt Master due to the employer’s perception that the worker failed to accept ultimate responsibility and accountability as Master for the marine accident and due to the employer’s perception that the worker did not appreciate his role as a member of its management team. We have found that these were the sole reasons for the employer’s termination of the worker’s employment.

In reviewing the WCAT decision, and the B.C. Supreme Court judge’s decision that upheld the WCAT decision, the Court of Appeal stated: WCAT ultimately found that [the master’s] raising of safety concerns before the internal inquiry had not been the reason for his termination. Rather, the Tribunal said, it was [the master’s] “failure to address himself to the focus of the [inquiry] and, as requested by the [inquiry] panel, turn his mind to providing them with helpful information about the sinking of the ship……All this, together with the very strong evidence of the maritime ethos which requires a captain to take responsibility for the sinking of his ship, and the concern of Captains C. and T. regarding [the master’s] apparent failure to do so, led the Tribunal to reach the conclusion it did.

Despite this dark reflection on maritime culture, and the tragic events involved, it must not be overlooked that the WCAT emphasized the following in respect of the master’s character and conduct: the grounding and sinking of the ship on March 22, 2006 was a tragedy that cost two people their lives. It was also a tragedy for the worker who had only recently accepted the promotion to exempt Master. By all accounts, prior to the sinking of the ship the employer viewed his performance as a Master as excellent. The worker was asleep in his cabin at the time of the ship’s collision and there is no question that he was entitled to be there at the time. His role in the evacuation and rescue of the ship’s passengers and crew was heroic. Our ruling in this appeal does not detract from the courage and leadership he displayed in the aftermath of the marine accident.

Darren Williams is a marine lawyer with League and Williams in Victoria BC. Darren also practices in the areas of personal injury and estate disputes and may be reached at info@leaguelaw.com or by phone at 250-888-0002.

October 27, 2014