League and Williams Lawyers

Category: Marine Law

Marine Accident: Collision Regulations in Canada

The Collision Regulations (ColRegs) under the Canada Shipping Act 2001 serve an important purpose in promoting the safe navigation of vessels in international, coastal and non-coastal waters. Like laws governing vehicles on land, these rules of the sea reduce the risk of collision by requiring predictable behaviour. Mariners expect other mariners to follow the ColRegs. These expectations, if met, lead to fewer collisions and greater efficiency in shipping. The vast majority of fatal marine accidents occur on commercial vessels, specifically in the fishing industry.

Marine Collision in Québec

In an incident at the Gouin Reservoir in Québec, a group of fishermen in a rowboat were hit by a larger boat. The fishermen were injured and their boat was severely damaged. As the larger boat was headed directly towards their rowboat, the fishermen stood up, waved their arms, whistled and shouted to get the attention of the boat’s captain. They had noticed the boat heading straight towards them from an estimated 1.5 km away. The rowboat was anchored in place, and would not have been able to move out of the way to avoid collision.

The boat continued in its path, without any attempt to slow down or avoid the rowboat. In the last moments before impact, the fishermen jumped out of the rowboat and into the water. A third party that was also fishing, noticed the collision and headed to the scene to rescue the fishermen. They saw one of the fishermen at the bottom of the boat screaming in pain. He was eventually transported to the hospital, where he stayed for two days. He had injured his leg and shoulder, and claimed his shoulder continued to cause pain for four years after the incident.

Federal Maritime Law: Who has the Presumption of Fault?

Federal maritime law applies to all marine collisions in Canada.

Since this was a collision between boats, federal maritime law applied to the case. The fishermen chose to sue the boat’s driver for the property damage and injuries sustained.

When a moving ship collides with a stationary ship, the moving ship is presumed to be at fault. To defend this claim, the defendant had the burden of reversing the presumption of fault. The defendant argued that he didn’t see or hear the fishermen in the rowboat. Even after the collision, he thought that it was simply a rock or tree trunk that he hit. He claimed that since the boat was aluminum, the boat was difficult to see and the fishermen were not wearing brightly coloured life jackets to maximize visibility. The third party witness explained in court that the visibility was good at the time of the collision. They claimed that they had easily seen the small rowboat from approximately 1 km away.

The Court’s Opinion

The judge ruled that the defendant failed to fulfill his obligations according to the ColRegs. The defendant did not prove that this collision was the plaintiff’s fault, or that it was an unavoidable accident. The defendant caused the accident by not paying close attention, and wasn’t using the appropriate equipment to avoid such collisions. He wasn’t using GPS tools which could have detected the rowboat and alerted him before the collision. The court deemed the defendant’s negligence as the sole cause of the collision and awarded the plaintiffs about $50,000 in damages.

How You Can Learn from This Case

While the victims of the collision won their case and received compensation, it’s always preferable to avoid a collision all together. For those planning fishing trips with their friends, we encourage you to wear brightly coloured life jackets at all times on the water. Equipping yourself with loud whistles, or an air horn can help to prevent a marine collision. If you’re someone who operates a large vessel, even if you’re on a familiar route, always use the proper equipment to ensure no accidents take place. It can be difficult to spot small rowboats, however, with the proper equipment and awareness it should not be a problem.

Looking for more information? Read our page on the basics of marine law.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

October 25, 2021
Splitting Liability: When more than one party is at fault for an injury
With the summer (and boating) season fast-approaching, Canadians should be reminded to always be cautious when out on the water. Sadly, improper operation of a boat can easily lead to injury. At Sylvan Lake, Alberta in 2004, a teenaged girl who was tubing behind a 17 foot power boat critically injured her foot. The courts were asked to determine liability for the injury – was it the boat operator, the boat rental company or the girl herself?

The Circumstances Leading to the Injury

The teen was excited for a day at the lake in July as her friends had arranged for a man, Alexander, to rent and operate a boat for the day. Alexander signed the documents and was instructed by the boat rental company, Three Boys, on how to operate the boat. He was taken onto the boat by one of the employees who showed him “how to start the boat, trim the motor, and put the boat into gear.” The group of six spent their day taking turns tubing while Alexander operated the boat.

After some time, Alexander wanted a turn on the tube, and one of the other friends, Majouga, offered to drive while Alexander tubed. Majouga had his boating license and had experience with boating. Majouga did not sign the boat’s rental agreement like Alexander had. Majouga claimed that while Alexander was being instructed at the dock, he could hear everything that was being said; however, he was not on the boat at the time and was not actively instructed on the use and operation of the boat like Alexander.

Boats can be lots of fun in the summer with friends; however, they must be operated safely and carefully.

The teen that ultimately made the injury claim, Wozniak, was on the tube was Majouga was still operating the boat. While Wozniak was tubing, Majouga lost control of the rudder as he tried to slow down. The tube was coming dangerously close boat and Wozniak decided that she needed to jump off the tube in order to avoid contact. At the same moment she jumped, Majouga had also decided to turn the boat, away from the tube. Unfortunately, Wozniak and Majouga both went in the same direction. Wozniak’s foot struck the propeller and was “nearly severed in two.” Wozniak screamed in pain and Alexander immediately pushed Majouga to the side and shut the boat off, stopping the propeller.

As a result, Wozniak suffered irreversible damage to her foot. She is unable to walk normally and cannot walk or stand for extended periods of time. She is also unable to work a job that requires standing for long periods of time. Wozniak began a lawsuit against the boating rental company, Three Boys, the boat operator, Majouga, and the original boat driver/renter, Alexander (Wozniak v. Alexander 2008).

Splitting the Liability – Why the Rental Company was also Liable

Majouga accepted partial liability for the injury; however, he believed that the boat rental company, Three Boys was also partly at fault; Three Boys owed a duty of care to the boat renters. In the moment of the incident, Majouga claims that he “froze up.” He contemplated the following options:
1. Shifting the boat into neutral – he elected not to do this as he didn’t know if this would stop the propeller.
2. Shutting the engine off entirely – he did not do this because he didn’t know what effect this would have.
3. Steer the boat to avoid the tube – he believed this to be the best option.
Majouga claims that he froze in the heat of the emergency because he did not know the proper course of action. “Freezing up” was deemed not something that could have been anticipated and could have been prevented with adequate instruction. The judge stated that “this was a direct result of not having been told that in such an emergency he should kill the engine.”

It was ruled that this accident could have been avoided if Majouga was given proper instruction by Three Boys. The judge used the ‘but for’ test to determine the factual causation of the accident. The judge deemed that, but for the inexperience of Majouga and the absence of appropriate instruction, this accident would not have happened. While the circumstances leading up to Majouga freezing up were not foreseeable, if he was given the proper instructions, he would have been equipped to act and prevent injury.

Three Boys defended the claim by claiming that Majouga was not someone who should have been driving the boat in the first place. They had Alexander sign off on the boats’ rules, prior to departing – Majouga did not read nor sign. The judge explained that Three Boys should have either explicitly told Majouga that he was not to operate the boat or have had him sign the documents. They were aware (or ought to have been aware) that Majouga had his boating license and it was reasonably foreseeable that he would operate the boat during the day.

The judge ruled that both Three Boys and Majouga were equally liable for the injury sustained by Wozniak. She was awarded $228,618 for damages, split evenly between the defendants. The claim against Alexander was dismissed.

Look for more information? Read our page on the basics of marine law in BC.

Have a question about marine law or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
April 12, 2021
Marine Injury: Obligations to those Renting Boats

Recently a houseboat rental company was sued after a mooring line and beaching stake was launched into the windshield of the houseboat striking and injuring the renter on Shuswap Lake. The case of Oddy v. Waterway Partnership Equities Inc. (2017) highlights the responsibility and duty of care required by marine rental companies to those who rent a boat from them.

How the Injury Happened

The victim, Oddy, and her friends were excited for their 5-day vacation to Shuswap Lake on the houseboat named Annalise. Oddy had experience with boating and was confident in her abilities. Waterway Partnership Equities gave specific instructions to the group on how to properly moor the houseboat each night.

Among other instructions, they were instructed to “moor the vessel at night by driving it bow-first onto the beach and then use mooring lines from either side of the stern of the houseboat secured to ‘beaching stakes’ well up on the beach so that each line was at about a 45 degree angle away from the sides of the vessel. The lines on both sides were intended to be taut.”

Oddy was woken up one morning by heavy wind hitting the side of the boat. Oddy noticed that the boat had begun to drift to the side because one of the two mooring lines had loosened and gone slack. This caused the other mooring line to become extremely tight. Oddy decided it would be best to start the boat and drive it back into the beach, bow-first, as originally instructed. As she began to start the boat, the mooring line and beaching stake broke free, launching toward the boat, shattering the wind shield and striking Oddy. As a result, Oddy suffered significant injuries.

Injury Claims for Boating Accidents – What Must be Proven?

Just because an injury has occurred doesn’t always mean that someone will be held liable.

Oddy started a lawsuit at the BC Supreme Court, suing Waterway Partnership Equities Inc. for negligence. Oddy claimed that the mooring lines they were given were too elastic, ultimately causing the beaching stake to loosen and launch at her. The houseboat rental company owed Oddy the standard of care to provide the ship with a mooring system that was reasonably fit to perform its intended purpose.

In the court, it was determined that the mooring lines used on the Annalise were the commonly used mooring lines for this type of houseboat and they were purchased from a reputable vendor. There was no direct evidence that Waterway Partnership Equities should have known that the mooring lines would be incapable of performing their intended purpose. The judge ruled that there was no duty to consult marine experts on these mooring lines or to notify Oddy and her party of the possibility of the mooring line failing. Because of this, Waterway Partnership Equities was not held liable for this injury. The judge concluded that they did not breach the duty of care owed to the victim.

The ruling also mentioned the fact that, even if the duty of care was breached, the beaching stake suddenly releasing and shooting at the houseboat was unforeseeable. “It would not have occurred to the mind of a reasonable man in the position of the defendant.” The case was later appealed to the BC Court of Appeal in 2019. The appeal was also dismissed, concluding that the original ruling was correct.

Even though this injury may not have been the fault of Oddy or her friends onboard the Annalise, she was not eligible for compensation at the expense of Waterway Partnership Equities. A claimant must be able to prove the defendant acted negligently, the injury was caused by that negligence, and that the accident was reasonably foreseeable by the defendant.

Looking for more information? Read our page on the basics of marine law in BC.

Have a question about marine law or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 23, 2021
Private Mooring Buoys and Anchorages – How is the Wild West to be Regulated?

In 2015, BC’s highest court confirmed that the constitutional right to secure a vessel by buoy or anchor is limited to a “reasonable time, for a reasonable purpose”. This decision, and the application of the law that will flow from it, is a significant cautionary marker for all those who rely on private anchorage and mooring buoys along the BC coast. In what could easily fill a small book, this article will briefly summarize the issues and interested parties in what is, under the surface, one of the most controversial marine issues on our West Coast of Canada – private moorage.

What makes the issue of anchoring/mooring controversial is that there are two very different ways of viewing the same fundamental right, the right of navigation. On one hand, many vessel owners interpret the right of navigation, and its included right of anchoring/mooring, as a legal basis for storing their vessel at anchor, or on a buoy, for both short and long periods of time. On the other hand, other vessel owners, upland property owners and other concerned parties, view anchoring/mooring to the seabed (or riverbed) as the use of common (public) property that should not be utilized such that it interferes with others’ use of the same resource (the waterway), or endangers life, property or the environment. What makes matters worse is that the law remains less than clear on what reasonable anchoring/mooring is, and who is responsible for regulating it. These issues are best understood by reviewing the following relevant parties: the Federal Crown, the Provincial Crown, local governments, upland property owners and vessel owners.

The Parties: from the Queen to Vessel Owners

Historically, the Federal Crown has been viewed as the de facto regulator of anchoring/mooring because of it exclusive jurisdiction over “navigation and shipping” under Canada’s Constitution. While only partially correct, this view is likely even less correct under evolving law, as discussed below. The Federal Crown (through Transport Canada) partly regulates anchoring/mooring under two primary laws: the Navigation Protection Act (“NPA”), and the Private Buoy Regulations (“PBR”). The PBR applies to all private (non-governmental) buoys placed as aids to navigation (including mooring buoys) except for those used to mark fishing apparatuses, and sets out the shape, colour, size and responsibilities of those placing the private buoy. The PBR does not restrict the location of mooring buoys. The NPA applies to buoys used for moorage, which are defined as a “work” within the NPA, and is meant to ensure the placement of buoys do not interfere with vessel traffic. That said, Transport Canada will rarely respond to complaints about anchoring/mooring unless the vessel or buoy impedes commercial vessel traffic or is a significant risk to general vessel traffic.

The Provincial Crown in BC is an important party to these issues because, since 1871, BC has had ownership of its “inland seas” (Strait of Juan de Fuca, Strait of Georgia, Johnstone Strait and the Queen Charlotte Strait), as well as ownership of the foreshore (area between low and high tide) and bays. While all Canadians can enjoy the public right of navigation through these waters, there are laws related to the trespassing of these lands. For example, under the BC Land Act, it is an offence of trespass to occupy, possess, or use the seabed without lawful authority from the Province. Individuals, including owners of property adjacent to the foreshore, cannot build or construct private moorage facilities on the foreshores or seabed without a lease or specific permission from the Provincial government. Local governments (for example, cities, municipalities, and regional districts) have not historically been party to the issue of regulating anchoring and mooring. This has recently changed, predominantly as local concern over managing abandoned (derelict) or hazardous vessels has increased. BC Courts have ruled that, provided the seabed (lakebed or riverbed) is within the boundaries of the local government, the local government may enact bylaws that limit anchoring and mooring, provided the purpose of the bylaws is to manage land (the seabed and adjacent upland properties) and not manage navigation. Importantly, the restriction to such bylaws is that they cannot interfere with anchoring or mooring for a “reasonable time, for a reasonable purpose”. In 2015, the BC Court of Appeal (in Kelowna v. Newcomb) cited, with approval, an earlier decision of a BC court regarding anchoring:

There is a common law right to navigation which includes the incidental right to anchor… This is not a right to anchor or moor permanently but it must be exercised reasonably as determined by the circumstances at the time of anchoring such as the weather, loading or unloading of the vessel, or the need for repairs to the vessel. The right to anchor therefore contemplates the right to do so for a reasonable time, for a reasonable purpose.

Some local governments have begun attempting to indirectly define what a “reasonable time, for a reasonable purpose” is, by setting limitations on anchoring to, for example, less than 3 consecutive days, or not more than 4 days per month. To date, no BC court cases have considered what is an appropriate limit, and undoubtedly, that limit will depend on the particular watercourse, and what use is made of it by the public.

Upland property owners are also concerned about how the law is evolving. The Provincial Crown generally recognizes an upland property owner’s right to have unobstructed access to deep water from their property, and hence has historically required an upland property owner’s consent before giving a lease or licence over adjacent seabed to a third party. That said, the Provincial Crown does not generally regulate anchoring and mooring of vessels, and does not typically issue lease or licences for anchorage and mooring buoys. As a result, there are many cases where neither the Federal Crown, the Provincial Crown nor a local government regulate anchoring/mooring in an area. Many desirable bays have become congested with vessels whose owners store the vessel for longer than a “reasonable time, for a reasonable purpose,” impeding other’s use of the waterway, including upland property owners.

In closing, while writing this article I came across the following post in a boating blog: “In BC, the government told me they don’t give water lease for private moorings, so anyone is free to use any mooring they please, legally. I certainly do, after giving it a good shot of reverse to check it out”. This post highlights an interesting misunderstanding held by many people, and why the right of anchoring/mooring can at times be a paradox. Firstly, the Province does not issue leases for mooring buoys, but this does not mean that a mooring can be placed on Crown land (seabed) other than for a “reasonable time, for a reasonable purpose” without it being trespass. After all, that anchor or buoy, if left for an unreasonable time or an unreasonable purpose, is utilizing common property and depriving others of such use. Secondly, arguably that mooring buoy is the personal property of an individual, and attaching an unauthorized vessel to it is trespass to that person’s personal property. The paradox is that, at the same time, that buoy may be trespassing on Crown seabed. This begs the question – who is less in the wrong: the person trespassing on another’s buoy, or the owner of the buoy trespassing on public property? These are issues that can only be answered definitively once the courts have considered them.

Darren Williams is the principal lawyer at League and Williams and leads the personal injury, estate dispute and marine law practices of the firm. This article was previously published in the August 2016 edition of Western Mariner. He can be reached for comment at info@leaguelaw.com or 250-888-0002. League and Williams offers free consultations.

December 16, 2016
The Collision Regulations (ColRegs): Guidelines, or actual rules?

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

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

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

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

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

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

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

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

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

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

October 21, 2016
Estimates and Quotes – How Flexible or Binding are they?

Quotes and Estimates – Important to Know the Difference

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

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

Estimates versus Quotes: Best Guesses versus Promises

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

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

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

and,

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

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

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

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

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

The Objective Reasonable Bystander Test

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

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

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

Best Practices for Suppliers and Buyers

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

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

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

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

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

October 14, 2016
When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

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

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

Question 1: Am I Unionized?

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

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

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

Question 3: Was I Fired for Just Cause?

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

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

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

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

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

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

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

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

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

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

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

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

October 7, 2016
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 17^th 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.

September 30, 2016
Is an Apology an Admission of Fault?
For Landlubbers, No, for Mariners, Perhaps

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

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

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

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

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

Why Apology Laws?

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

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

The B.C. Apology Act

In 2006, the B.C. government passed the Apology Act, which provides:
- an apology does not constitute an express or implied admission of fault or liability by the person in connection with that matter;
- an apology does not void, impair or otherwise affect any insurance coverage that is available;
- an apology must not be taken into account in any determination of fault or liability in connection with that matter; and,
- evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability.
Why B.C.’s Apology Act does not Apply to Marine Accidents

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

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

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

Darren Williams is a marine lawyer with League and Williams in Victoria BC. He may be reached at 250-888-0002 or via email at info@leaguelaw.com.
September 24, 2016
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.
May 15, 2016