Category: Info Articles

  • 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.

  • In a car accident while at work?  WorkSafeBC or ICBC? (Video Blog)

    In a car accident while at work? WorkSafeBC or ICBC? (Video Blog)

    Injured in a Car Accident While Working – ICBC or WorkSafeBC?

    If you’ve been injured in a motor vehicle accident while working, you are likely confused about what your options are, and whether you should be making a claim through ICBC or through WorkSafeBC (WCB).

    The starting point is this: if you are injured in a single vehicle accident while you were working (for example, your car has run off the road and struck a tree), or you are injured by another motorist who was also operating their vehicle as part of their work at the time of the accident, then you must claim through WCB. You cannot make a claim through ICBC.

    On the other hand, if you are injured in a motor vehicle accident while working, and the person who caused your injuries was not working at the time, then you can claim through either WCB or ICBC. That is, you have the option, or what lawyers call an election.

    So, the obvious question is, why would I choose an ICBC claim or a WCB claim, or vice versa?

    The benefit to making a claim through WCB is that WCB is intended to pay all of your rehabilitation expenses, and 90% of the wage loss you experience immediately after your accident.

    Notice I said intended. Many people become frustrated with the WCB process and they often do not receive the medical treatment they need because WCB terminates benefits, maintaining the condition pre-existed the accident, or the injuries have become permanent and therefore do not qualify as an ongoing claim.

    Seemingly endless reviews and appeals are not uncommon in WCB claims, and injured workers often simply give up on the process out of frustration.

    On the other hand, the benefits to making an ICBC claim as a worker who is not at fault for their injures, is that the worker will receive all of their medical expenses, and 100% of their wage loss, as well as additional monies for pain and suffering that WCB does not pay.

    These additional monies for pain and suffering can be thousands of dollars per month for each month the injury persists.

    However, this compensation must wait until your ICBC claim is fully resolved through either settlement or a court judgment.

    In other words, if you elect to go through ICBC when you could have made a WCB claim, ICBC does not have to pay you any wage loss or medical expenses until your claim is fully settled or heard by the court.

    On that note, it is important to appreciate two things, 98% of cases settle without going to court, and; some law firms, such as ours, pay for the medical expenses that ICBC does not until your claim is resolved.

    So, when it comes to electing between WCB or ICBC, what does all this mean?

    It means that the total compensation you will receive from making an ICBC claim will typically be far greater than making a WCB claim, but you will have to wait longer for that compensation.  That said, when recovering from any injury, being patient is always the best strategy.

    We hope you have learned something from this week’s 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 for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • How Being Represented by a Lawyer Protects Your Medical Records & Injury Claim (Video Blog)

    How Being Represented by a Lawyer Protects Your Medical Records & Injury Claim (Video Blog)

    Lawyers are not always needed, are they?

    Some people think its obvious why they don’t need a lawyer’s help after a car accident.  They weren’t at fault for the accident, so no one is blaming them.  The ICBC adjuster is being friendly and paying for some medical treatment, and perhaps even some lost wages.  The forms ICBC had them sign seem straight forward, and the adjuster and perhaps their doctor, are saying they should be recovered in a matter of weeks.

    Everything seems ok, right?

    Unfortunately, no, it often isn’t.

    Things are often not what them seem after a car accident.  There are several hidden and unexpected traps that unrepresented people do not discover until it is too late.

    Whiplash and Soft Tissue Injuries Sometimes Fail to Resolve as Quickly as Expected

    One common trap relates to the nature of whiplash and other soft tissue injuries, which are the most common type of injury suffered in a motor vehicle accident.  These injuries rarely resolve as quickly as ICBC, or even some doctors, think they should.  People are susceptible to injuries in different ways and in different degrees, and bodies heal differently.

    If your recovery isn’t “normal” according to ICBC, or if you do not recover as quickly as your ICBC adjuster expects or wants, you may suddenly be under suspicion for exaggerating or even faking your injuries.  This allegation, or even the innuendo, is often unfair, insulting, and always stressful.

    Unfortunately, this skepticism is occasionally held by some doctors, however, these are often doctors who have not had the personal experience of suffering similar soft tissues injuries themselves and may base their expectations of your recovery on textbooks or other more fortunate patients.

    Being Represented Means Protecting Your Medical Records

    Unfortunately, ICBC requires people who are not represented by a lawyer to give access to all of their medical records.  This happens when an unrepresented person signs a disclosure document provided to them by ICBC shortly after the accident. From that point on, ICBC has access to any and all medical records ever created about you.

    On the other hand, if you have a lawyer, you do not sign any ICBC disclosure document, and you and the lawyer decide what medical information is relevant to the ICBC claim.  Your lawyer’s job is to make sure that ICBC is getting the right information about your medical history and recovery, not simply what ICBC wants to see.  It is important to appreciate that ICBC will often ask for medical disclosure, saying it is necessary to approve funding for treatment to help you recover.  Indeed, helping you recover is ICBC’s obligation under your insurance benefits.

    Being Represented Means Protecting Your Injury Claim and Your Access to Treatment

    What ICBC typically does not tell you, however, is that the same adjuster that uses those records to approve funding for your treatment, also represents the other driver whose negligence may have injured you, and that same adjuster is using those records, as that other person’s insurer, to build a case against you for why your injuries are not from the accident.  This conflict is not apparent to many people until it is too late.

    Your lawyer’s job is to make sure that this conflict doesn’t compromise your right to ongoing reasonable medical care, and to ensure that you receive your fair compensation from the other driver’s insurance when you are recovered.

    Remember, when you have been injured by someone else’s neglect, standing up for your right to fair compensation is the right thing to do.  Fair is not fraud.

    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.  We only work for injured plaintiff’s and are on your side, our goal is to help you recover as best as possible from your accident and to enable you to focus on getting better.

  • Liability Insurance Included in Renter’s and Homeowner’s Policies (Video Blog)

    Liability Insurance Included in Renter’s and Homeowner’s Policies (Video Blog)

    As a trial lawyer, I frequently see people that are at least surprised, if not financially devastated, because they failed to have proper insurance.  Liability insurance, also known as third-party liability insurance, protects you against being sued by another person for your mistakes.

    Imagine your dog biting someone, or your child injuring someone, bumping an elderly pedestrian who falls and injures themselves, or leaving your stove on and damaging your neighbour’s home. Without proper insurance, the consequences of momentary, common inattention can have ruinous financial consequences.

    Typical liability insurance policies provide $1,000,000 in coverage to pay for legal costs to defend you against lawsuits, and for money that may have to be paid to another person, usually an injured person, because of a settlement with them or a court judgment against you.  Liability insurance coverage for private individuals is typically part of their homeowners insurance.  Although policies differ, almost every homeowner’s insurance policy will provide $1,000,000 in coverage to the owners of the home, and the members of their family living in the home.  Most mortgages require that the home owner carry home owner’s insurance.

    This liability overage will typically exclude coverage for accidents arising out of the use of a vehicle, because that coverage is provided for by your auto insurer (in BC, this is ICBC with extended coverage provided by other insurers).  It will also exclude coverage for intentional acts, such as assault.  The coverage afforded protects you from claims for negligence, both on your property, and off your property.

    What many people do not know is that a renter’s insurance policy also provides liability coverage.  Depending on the part of the province, 20% to 40% of the BC population rent.  Many of these people do not carry renters insurance because most assume it only covers value of your belongings, and many renters do not believe their belongings justify the insurance.

    What most do not realize is that renters’ policies often provide the same $1,000,000 in liability protection that a homeowner’s policy does, and importantly, that the insurance is typically inexpensive.  A renter’s policy that insurers about $20,000 in personal belongings from loss due to fire, theft, or, for example, water damage, also provides $1,000,000 in liability coverage, and often only costs about $25 per month.

    Insurance is often not expensive.  Having a little knowledge about what is available and what it covers is critical.  There are many cases where people have been set back financially for years because they did not have insurance.  The cost for a month of insurance can be as low as the cost of your coffee for a week.

    We hope you have learned something from this week’s 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 for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Waiving Goodbye to Rights in Marine Accidents – Effective Liability Waivers

    Waiving Goodbye to Rights in Marine Accidents – Effective Liability Waivers

    When is a Liability Waiver Effective?

    Giving up, or waiving, the right to claim for the consequences of someone else’s carelessness is something we all frequently do.  A surprising number of activities we regularly engage in involve a written, but often unseen, contract which contains a “waiver” clause, being 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.

    Born and legally tested in the heli-ski and white-water rafting industries decades ago, waivers have grown exponentially in popularity and can now be found in the fine print of almost any activity we undertake, regardless of how risky they are.  From hiring a tug, to stepping aboard a whale watching vessel, to getting on a chairlift, to renting a piece of garden equipment or even leaving a jacket at a coat check, waivers are everywhere.  Indeed, British Columbia is the most waiver-friendly province in Canada, and Canada likely the most favourable country in the world for enforcing liability waivers.

    Insurance companies like waivers because they reduce the number of claims they have to pay out.  Businesses like waivers because they encourage more accessible and affordable insurance, and where business liability insurance is not available for the business, a well-drafted and presented waiver offers the opportunity to avoid legal responsibility for the negligence of the business and its employees.  Some people argue that while waivers deprive people of their otherwise just right to sue for harm caused by a careless person, waivers do allow businesses to operate and thrive (thus provide needed services) where they might otherwise not be able to because of the threat of successful law suits.  The fairness of the bargain, of course, depends on which end of the stick you are on at the time.

    A good example of the use of a liability waiver in the marine context was touched on in our blog where we addressed the sinking of the Leviathan II, and whether whale watching vessels undertake an “adventure tourism” activity or not.  This is an important issue because, although international convention prohibits the use of waivers in vessel passenger agreements, Canadian marine law provides an exemption to this by allowing the vessel owner and operator to rely on a waiver if the vessel is undertaking an “adventure tourism” activity.  The balance of that article addressed the current ambiguity of when a marine activity is an “adventure tourism” activity or not – a surprisingly vague and uncharted area of law.  That said, even if such an activity were adventure tourism, and a waiver was placed in the passenger agreement, the owner and operator of such a vessel could only rely on the waiver if the remaining legal requirements of an enforceable waiver are met.  In other words, having a waiver written in the passenger agreement does not mean it is automatically enforceable.  The following legal test needs to be met for the waiver to be enforceable:

    1. the waiver must actually apply to the facts of how the accident occurred;
    2. the waiver must not be unconscionable; and,
    3. the waiver must not be against public policy.

    Does the liability waiver apply to the facts?

    To answer this, courts have generally split the question in two.  First, the terms of the waiver must include the general circumstances that caused the participant’s injury.  Second, a waiver can only cover matters which were in the mind of the participant at the time the release was signed.

    In answering the first question, the waiver’s language is considered.  The negligence of a person is not a risk people would naturally assume is part of an adventure activity, however risky the activity itself is.  Clear language is required if a tour operator wishes to release themselves from liability for the negligence of their employees or agents.  Ambiguity in the contract is generally interpreted in favour of the injured participant.  In a recent decision, the BC Supreme Court did not uphold a signed waiver.  This case involved a physiotherapist being injured at a training course, but it is relevant to marine activity operators.  The waiver mentioned that there were risks involved in the course’s “techniques and procedures”, but in declining to give effect to the waiver, the court found it did not identify or provide examples of those risks, it did not specify the nature and severity of the risks, and it was ambiguous whether the waiver extended to acts and conduct of other parties beyond the participant’s control.

    Regarding the second part of the question (does the wording of the waiver apply to the facts), courts must 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.

    Is the waiver unconscionable?  

    Even if the waiver applies to the facts of an accident, the court may find the waiver unconscionable (essentially unfair).  To prove that a waiver is unconscionable, the participant and the activity operator must have been in significantly unequal bargaining positions.  The operator must also have abused this power to get the participant to agree to an unfair waiver.  That said, in the context of adventure activities, courts have almost always held that it is not unconscionable to require a participant to sign a waiver that prohibits suing for negligence and injury.  Participants almost always have the choice between signing the waiver and participating, or not participating at all.  Even in cases where the participant has traveled large distances to participate in an activity, only to find that if they didn’t accept the waiver they would be turned away, has the court upheld a waiver.  It would be rare to successfully challenge a waiver on the grounds of conscionability.

    Is the waiver against public policy?

    The final test that a waiver must also pass to be enforceable is to confirm the waiver is not against public policy.  The power to overturn a waiver because of public policy is rarely exercised by the courts (at least in B.C.).  When it is exercised, it is done to maintain the certainty and stability of the use of waivers generally in industry.  Waivers in adventure tourism activities generally do not give rise to public policy concerns because, by definition, these activities have inherent risk (note: this is not to say, for example, the Leviathan II was engaged in adventure tourism when it capsized).  Many marine 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 marine safety.  Examples of when a waiver is more likely not to be enforced on public policy grounds include where an activity operator knowingly or recklessly provides a substandard product or service, or where criminal conduct (including criminal negligence) is involved.

    Properly drafted and presented waivers will provide marine owners and operators in B.C. with strong legal protection from claims, and reduce disincentives for providing innovative and necessary marine services.  However, despite recent advances in marine safety, tragic and costly accidents will continue to occur, and it should never be assumed that a liability waiver will provide complete protection for vessel owners or operators.  In cases where there has been significant injury or property damage, or death, a judge will often be asked to decide whether the waiver is enforceable.

    Darren Williams is marine lawyer specializing in accidents and is a partner with League and Williams Law Corp, in Victoria B.C. Canada and can be reached for comment at, or 250-888-0002.  His emergency phone is 250-589-2174.  Matthew Melnyk is a marine lawyer and co-author.

  • Zombie Ships –  the Perils of Failing to Neutralize Your Vessel Ownership

    Zombie Ships – the Perils of Failing to Neutralize Your Vessel Ownership

    Captain Black decided to sell his tug and barge to a fellow from up the coast who wanted to start a dock building business.  His wife and warmer weather begged for Black’s attention.  Black signed the bills of sale and pushed them across the sticky galley table.  Hiding his delight, Black pulled the bank draft from the buyer’s oily fingers, shook hands briefly and smiled when the buyer said “I will take care of the rest”.  He stepped out of the galley door into the driving rain thinking he had put his old tug and barge behind him for the very last time.

    Many transactions involving the Canadian Register of Vessels (the “Ship Registry”), the small (commercial) vessel register and the vessel licensing system can be, and are, completed without legal help.  The sale and transfer of both pleasure and commercial registered and licensed vessels is common.  The forms and procedures required by Transport Canada are relatively straightforward and in most cases, with attention to detail, the process can go smoothly even for those unfamiliar with registration and licensing procedures.

    That said, it is not uncommon for the registration and licensing of vessels, particularly the transfer of recorded ownership, not to be completed successfully.  There are a variety of reasons for this (and even more potentially negative outcomes) that mariners are wise to be aware of, particularly if they chose to buy or sell a vessel without a lawyer’s oversight.

    Captain Black stirred his margarita slowly and ignored his wife grumbling about “some retirement” as he reached into her beach bag to silence his cell phone.  He had dismissed the first four calls that hour but clearly someone with no respect for Black’s new priorities was trying to reach him.  “Race Rocks ecological reserve”, “holed and hard aground”, “ crane and tanks of diesel aboard”, “registered owner”, “what is your plan”, was all Captain Black’s wife heard as she lowered her sunglasses and watched her husband’s face go from golden brown to pale yellow.  According to the coast guard back in Canada, Black still owned the tug and barge he had sold six months earlier, or at least what was left of them.

    What is a Zombie Ship?

    The concept of a zombie ship, but perhaps not the expression, is common.  A zombie ship is my term for a vessel whose ownership has been terminated but continues to be active without the control of the apparent (registered or licensed) owner.  In other words, zombie ships are vessels (both pleasure and commercial) that are possessed by a new beneficial owner that continue to wander the seas with the appearance of belonging to their previous owners, in many cases causing havoc.  Zombie ships are not a joke and in fact are a common problem.

    How and Why are Zombie Ships Created?

    Zombie ships are typically created when the purchaser of a vessel fails to successfully complete the paperwork necessary to transfer the vessel’s registration or licensing.  In most cases, the vendor is pleased to have disposed of the vessel in return for the purchase monies and does not consider the downstream consequences of the vessel remaining in their name.  There is often an assumption on the part of the vendor that the purchaser of the vessel will be eager to record themselves as the new owner of the vessel and therefore the vendor is safe to assume it will be done.  In many cases, this is a poor assumption and the vendor’s name is never removed from government records, even though their insurance on the vessel was long ago cancelled.

    There are several reasons the transfer of ownership paperwork may not be completed properly.  First, some purchasers are aware that both the Canada Revenue Agency and the B.C. Minister of Finance monitor vessel purchases that are recorded with Transport Canada as a means of tracking what tax is payable on the transfer.  Some purchasers believe they can avoid transfer tax by not recording the transfer and simply leaving the vessel in the vendor’s name.  Second, the registration documents may be rejected by Transport Canada due to errors, and the purchaser fails to follow up and correct the problem so the transfer is never finalized.  The vendor of the vessel does not normally receive notice from Transport Canada that their status as owner has changed, even if the paperwork is successfully completed, so the vendor has no idea whether the paperwork is properly completed unless they check the register.  Third, the purchaser simply may not appreciate they have to do anything to complete the record of their ownership beyond a handshake and the exchange of cash and keys on the dock.  Lastly, nefarious buyers intentionally choose not to change the recorded ownership so their illegal activities with the vessel appear to be carried out in the name of someone else.

    Why are Zombie Ships Dangerous?

    The resulting problem for the vendor is that while they are no longer in control of the vessel, they are exposed to many different liabilities because they remain the recorded owner of the zombie ship.  There are dozens of different offences and penalties under federal legislation that apply to the “owner” of the vessel regardless of whether that person remains the beneficial owner and in possession and control of the vessel.  For example, under section 177 the Canada Shipping Act 2001, an owner is “liable for all expenses incurred in respect of” a vessel detained for a suspected oil pollution offence.  Another example of legal exposure comes from the Fisheries Act, which provides penalties for the negative impacts any vessel (not just a fishing vessel) might have on fish or fish habitat.  Section 80 provides:  “every … owner, … or person actually in charge, either as occupant or servant, shall be deemed to be jointly and severally liable for any penalties or moneys recovered under any provision of this Act or the regulations”.

    Dealing with Zombie Ships

    The best way to deal with a zombie ship is to prevent it from becoming one in the first place.  If you are not working with a marine lawyer, you might do this by taking responsibility for filing the appropriate transfer documentation with Transport Canada; have the purchaser complete their portion of the documentation and provide it to you with the registration fees so that you can register the transfer yourself.  Alternatively, you can closely monitor the purchaser’s steps to record the transfer and confirm with the register the transfer has occurred.   Do not, however, simply assume the purchaser will successfully register the transfer without following up to ensure it has occurred, that is how zombies are allowed to come to life.

    In closing, if you have sold a vessel in recent years you should check the Ship Registry, the small (commercial) vessel register or with the vessel licensing database to ensure the buyer completed the transfer of recorded ownership successfully.  If you have not done this, there may well be a vessel that looks like it belongs to you leaving a wake of destruction along the coast.  If you do find you are the recorded owner of a vessel that no longer belongs to you, immediately contact the buyer to complete the required paperwork.  If you cannot reach the buyer or they are not cooperative, seek the assistance of a lawyer qualified to neutralize the zombie ship, ideally a marine lawyer.

    Darren Williams is a partner at League and Williams Law Corporation in Victoria B.C. and can be reached for question or comment locally 250-888-0002, by emergency cell phone at 250-589-2174 or at dw@MarineLaw.ca.

     

  • The Benefit of an Employment Contract

    The Benefit of an Employment Contract

    A well-written, one-page standard form employment contract can save an employer tens of thousands of dollars on a single employee’s termination, yet they are surprisingly rare.  I would estimate that less than one-third of employers in B.C. have written employment agreements with their employees.  Such agreements are very useful because they can define circumstances where the employer may fire the employee without having to prove they had the just cause discussed below, and can limit the employee’s entitlement to severance to the minimum required by the B.C. Employment Standards Act (which ranges from one week of notice after three months of service, up to 8 weeks of notice after 8 years of service), and limit the employer’s exposure to having to pay the more generous compensation awarded by some courts (which can average about one month for every year of service, up to approximately 24 months).  In many cases, it is less stressful and expensive for an employer not to try to prove they had just cause to fire an employee and simply pay the employee the limited entitlement of severance under the employment agreement, but of course, this benefit only exists if there is an appropriately worded and signed employment contract.  If no agreement exists, the employer must determine whether they have just cause to terminate in order to avoid paying potentially significant severance damages.

    If you have a question about this topic or another legal issue, contact us for a free legal consultation.  Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Young & New Drivers Beware – The Consequences of Restricted Licenses

    Young & New Drivers Beware – The Consequences of Restricted Licenses

    On Friday, June 19, 2015, three young people were rushed to the hospital after the vehicle they were in exited the road and rolled over before coming to a stop in a farmer’s field on Burnside Road in Victoria, BC. The vehicle lost control on a corner that had a posted speed of 30km/h. Police suspect speed was a factor in the collision.

    These young people were extremely lucky that no fatalities occurred. The young driver, however, now faces many different penalties including traffic violation fines, increased insurance rates, driver point premiums, and, because he only had his “N” license, he will likely have his license suspended.

    Many new drivers with their “N” license do not understand the serious nature of violating traffic rules while they are participating in BC’s graduated licensing program. When new drivers have an “N” license, they are likely aware of the rule to display bright green “N” sign while driving, to only have one passenger in the vehicle while driving and to have a blood alcohol level of zero while driving. What many probably aren’t aware of is what happens when an “N” driver fails to follow the rules of the road and gets a traffic ticket. While driving with an “N” license, there are no free passes. When the rules are violated, it is not taken lightly. A single traffic violation can result in a driving suspension of anywhere from 1 to 6 months. In a single incident, an “N” driver can receive a ticket for violating several rules and the more rules violated, the longer the possible prohibition. If too many points are accumulated in one incident or within a period of time the prohibition against driving can be as long as 18 months.

    Further, if a driver with an “N” license is suspended, the 2-year clock starts all over again. This means that the suspended driver is not able to get their full license until 2 full years have passed since the prohibition.

    While it is never worth the risk to violate traffic rules, it is even less worth the risk when new drivers have an “N” license.

    Been injured in an accident?  Even if you are considering dealing with ICBC yourself, it is worth it to talk to an experienced lawyer about your case.  At League and Williams, our experienced lawyers offer free consultations and do not get paid until you do.  We care about your physical and financial recovery – and have the skills needed to get fair compensation for your injuries.  We are conveniently located in Westside Village in Victoria, BC and practice across British Columbia.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com.

  • When is an Employee Entitled to Severance Pay?

    When is an Employee Entitled to Severance Pay?

    4-DW-termination-from-emplyee-perspWhen is an employee 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, an employee is left with no right to severance, but in many others, the employee may overlook significant entitlements because they do not understand their rights. There are, of course, at least two sides to every story, so in future blogs we will outline the steps a prudent employer should take to terminate an unwanted employee, but for now, an employee who faces the dismal view of being fired themselves should ask the following questions.

    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 the 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, some call a dependent contractor? This is important because, in the absence of a contract saying otherwise, 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. Employees and dependent contractors, on the other hand, are entitled to reasonable notice of termination if their contract is silent on this issue. Employees and dependent contractors are people defined by several different legal criteria but both rely primarily on a single employer for work and tend to be under a greater degree of employer control than independent contractors.

    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 just cause you are not entitled to severance pay (unless a written contract say otherwise, which would be very unusual). The law says that an employee can only be fired for just cause if their conduct fundamentally undermined the employment relationship. The threshold for just cause can be 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 clear 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 employee industries. Unless the court finds the employer has conducted themselves in such an egregious way as to disentitle them from relying on the written agreement, terms in the contract that restrict the employee from claiming severance beyond the minimum discussed below are enforceable and the employee cannot claim more than what they provide.

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

    In the absence of a contract, the entitlement to severance comes from two possible sources: (1) legislation such as the B.C. Employment Standards Act (“ESA”) or the federal Labour Code, and (2) judge-made law, called common law.

    Regarding legislation governing severance, the majority of employees will be subject to the provisions of the ESA as opposed to the Labour Code. These laws 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. Employment contracts that limit the employee’s right to severance cannot provide for less than what is stated in the ESA and the Labour Code. Common law on the other hand, which is pursued in a court such as the B.C. Provincial Court or Supreme Court, is often more generous and can generally 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, as opposed to awards given under the ESA or Labour Code. This is because judges are not limited to awarding the amounts set by the ESA and the Labour Code. The maximum severance awarded by a judge can be about 24 to 26 months of pay in lieu of notice, as opposed to 8 weeks under the ESA. 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, specialization, years of service, and labour market conditions.

    People are often attracted to pursuing their severance claims under the simplified processes provided for by the ESA or Labour Code, but they often give up significant awards 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 court, employees should know that some lawyers pursue such claims on contingency (a no cure, no fee basis).

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.