League and Williams Lawyers

Category: Previous Publications

Criminal Liability of Employers for Workplace Negligence

Criminal Liability of Employers, the Case of Stave Lake Quarries

Stave Lake Quarries in 2015 was the first employer in B.C. to face criminal liability as it was charged with criminal negligence causing the death of an employee. This article should be of interest to employers and the families of deceased employees because the same legal principles apply across all industries.

Briefly, the facts of the case are that 22-year-old, Kelsey Anne Christian, started work at the Stave Lake Quarries in Mission B.C. in 2007 and was killed on her second day on the job when the truck she was operating flipped over, pinning her underneath. A government investigation concluded that she had not been provided adequate training on the operation of the quarry truck before she was required to operate it. In April 2015, eight years after the accident, the employer and two other employees were charged with criminal negligence.

This is not the first case where an employee has been charged with criminal negligence causing death. Readers will recall the navigation officer of the Queen of the North was convicted of two charges of criminal negligence, causing death and sentencing to four years in prison. It is, however, the first time an employer in B.C. has faced criminal liability and has been charged under the criminal negligence sections of the Criminal Code.

(Mis)Understanding the Law

In reading news articles about this tragic story, my attention was caught by a disturbing quote that the President of the B.C. Federation of Labour made in response to the charges being laid: “we have long held the view that employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” [source: CBC]. My first impression was that the President had been misquoted, but the article went on to provide a further quote: “in every one of those cases, we have said there should be charges and if indeed employers are found to be negligent – then they should face serious penalties including jail time”.

The reason these quotes should be of concern to employers is that they demonstrate a serious, but common, misunderstanding of the law of criminal negligence. Negligence by an employer causing the injury of an employee is a very common occurrence, indeed it happens every day in B.C. An employer may forget to change a light bulb and a worker falls down a dark stair case. An employer delays in replacing a broken wooden ladder, or a malfunctioning power tool, and a worker is injured using it. These are common occurrences of negligence by an employer. One of the fundamental purposes of workers compensation (WorkSafeBC) is to protect employers from injuries (and financial loss) suffered by their employees because of the employer’s negligence. Distinguishing then between common negligence and criminal negligence is of utmost importance.

Common/Simple Negligence versus Criminal Negligence

Common negligence is simply the failure to take reasonably adequate care to prevent harm to others that is foreseeable. In industrial settings, employees and employers cannot be sued by an injured worker for common negligence because the workers compensation system prohibits such lawsuits; in exchange for giving up this right to sue, the injured worker has a right to workers compensation benefits even if they are at fault for their own injuries.

Just as an employer cannot be sued civilly by an employee for the employer’s common negligence, an employer cannot be liable for criminal charges for common negligence either. The Federation of Labour’s statement that “employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” is ironically a dangerous statement as it would mean almost every employer in the province would at some time be exposed to a criminal prosecution. Practically speaking, the government regulation of employer’s negligence is managed by the workplace safety arm of WorkSafeBC, which can levy substantial fines against employers for maintaining unsafe work places.

Criminal negligence on the other hand, the form of negligence alleged in the death of Ms. Christian, is a much more serious form of negligence, and hence the penal sanctions associated with a conviction for criminal negligence. If convicted of criminal negligence, for example, a person can be liable to imprisonment for life. The average sentencing for criminal negligence causing death currently appears to be in the range of 2 to 4 years.

The Legal Test for Criminal Negligence

There have been many court cases that discuss the definition of criminal negligence but it can be concisely defined as having two requirements: (1) a substantial departure from reasonable care and (2) a wanton or reckless disregard for the safety of others.

A substantial departure from ordinary care is significantly different than the degree of error required to find somebody liable for common negligence. A person can be liable for common negligence for even the slightest departure from what a reasonably prudent person would do in similar circumstances. Criminal negligence on the other hand, and its requirement that there be a substantial departure, means the court will look to not only what a reasonably prudent person would do, but also assume a significant margin of error in their judgment. Only if a person’s conduct falls well outside of that ordinary margin of error has the person committed a substantial departure. It can be a difficult concept to understand until it is applied to the facts of the case, and every case is different. In the case of Ms. Christian’s death, the court will need to be convinced that what Ms. Christian’s employer did or failed to do was far removed from what a reasonably prudent employer would have done, and even then, the court will have to be satisfied the second requirement for criminal negligence is also met.

The second requirement for criminal negligence is a wanton or reckless disregard for the safety of others. Wanton or reckless disregard means that a person contemplated the risk of their acts or omissions harming someone and chose to disregard that risk. It is the “yeah, that could happen, but I don’t care” mentality. One reason that criminal negligence charges are rarely brought at all, and particularly against employers, is because this level of disregard for safety is fortunately rare, but more importantly, difficult to prove in court. Although the accused may deny ever considering the risk (and hence cannot be found to have considered it and disregarded it), the court will look at the surrounding facts of the case and conclude whether a reasonable person should have considered the risk and therefore whether the accused should have considered the risk (whether he denies doing so or not). For example, in the Queen of the North sinking, the navigating officer maintained he did not consider striking Gil Island was a risk. Ultimately, the court did not accept that evidence, and found that either he must have considered the risk but chose to disregard it, or that he didn’t consider it when he clearly should have.

In closing, the test for criminal negligence causing injury or death is a high one and employers should not be concerned that they will face criminal liability for simple negligence causing injury to their employees. That said, employers can be heavily sanctioned by authorities such as WorkSafeBC for simple negligence, and so should always maintain safe workplace practices.

Darren Williams is the Principal Lawyer of League and Williams Law Corporation in Victoria B.C. where he focuses his practices on the areas of personal injury law, marine la and estate disputes. He can be reached for question or comment locally 250-888-0002 or at info@leaguelaw.com. This article was originally published in the June 2015 edition of Western Mariner magazine.

October 28, 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
“A Very Stupid Thing” – A Mariner’s Limit of Liability and How it Can be Broken

“[He] is a good man; a decent man; an honest man – a fisherman. However he did a very stupid thing. He cut the plaintiffs’ submarine fibre optic cable in two. It cost them almost $1,000,000 to repair it”.

So begins the judgment in the recent Federal Court of Canada decision, Peracomo Inc v. TELUS Communications Co. (2014). This case is significant to mariners because it provides an important opportunity to understand limits of liability under marine law, and how these limits protect us. Mariners are wise to appreciate the protections offered by these limits of liability, as well as their liability insurance, and how both of these comforts can be lost resulting in financial disaster.

The Peracomo Cable Cutting Case

In Peracomo, Telus maintained a fibre optic cable that had been lawfully laid across the bed of the St. Lawrence River in 1999. The 44 gross tonne fishing vessel Realise, a snow crab long-liner, was owned by Peracomo Inc. and her master (as sole shareholder of Peracomo Inc.). In June of 2006, an anchor on one end of the Realise’s longline became caught on the fibre optic cable, and with much effort was pulled to the surface by the master who then used an electric saw to cut the cable free of the anchor. A few days later, the Realise’s longline anchor became caught on the same cable, and the master again cut the cable.

Telus sued the vessel, the owner Peracomo Inc. and the master for the cost of repairing the cable, which was approximately $980,000. The master testified he believed the cable was not in use, despite the cable being marked on current charts. The vessel owner and master argued the cable should have been buried, but if they were at fault for the damage they were entitled to limit their liability to $500,000 under Canadian maritime law. Telus argued the owner and master had lost their right to limit their liability because the damage was intentionally caused. The vessel owner claimed on its liability insurance, and their insurer denied coverage maintaining the insurance did not cover damage due to the insured’s “willful misconduct”, as this was excluded under the Marine Insurance Act.

The trial judge found the master had intentionally cut the cable, and the defendants were not entitled to limit their liability to $500,000 or require their insurer to cover the loss, because the damage was intentional. The Federal Court of Appeal agreed. The Peracomo case is important because it is the first Canadian case where the limitation of liability in a marine accident has been broken.

What is a Limit of Liability, and Why?

Aside from the Canada Shipping Act 2001, Canada’s core marine legislation is the Marine Liability Act (“MLA”). The MLA gives the force of law in Canada to various international conventions, including the International Convention on the Limitation of Liability for Maritime Claims 1976 (the “Liability Convention”). The Liability Convention is important because it puts a cap, or limit, on what can be claimed for a marine loss such as damage to property, or injury or death of a person.

People entitled to limit liability under the Liability Convention are vessel owners, charterers, managers and operators (masters) and any person with an interest in the ship, as well the ship itself. The limitation covers accidents involving not just seagoing commercial vessels, but inland and recreational vessels as well. In the case of damage to property, the limit of liability is $500,000 for loss caused by a vessel under 300 gross tonnes. For vessels between 300 and 2,000 gross tonnes, the limit is currently CDN$1,493,000. For vessels between 2,001 and 30,000 tonnes the limit is CDN$1,493,000 plus $600 for every tonne over 2,000. The Canadian dollar value of the limit floats based on an International Monetary Fund unit called a Standard Drawing Right or SDR; the values provided are current as of September 4, 2012.

There are various reasons these limits of liability exist, but one of the foremost reasons is to encourage marine enterprise. By establishing limits on liability, mariners are encouraged to engage in more business adventure and risk. Marine insurers, knowing that the liability of their customers is limited, can offer lower insurance premiums, making those adventures more economical for marine businesses to pursue. Clearly, if limitations of liability did not exist, the insurance premiums we pay would be significantly higher, as would our exposure to financial ruin in the event of a significant accident.

How Can the Limit be Broken?

Importantly, the Convention provides that the protection of the limitation of liability can be lost or broken, if the loss was caused by a personal act or omission (a failure to act) either “with the intent to cause such loss” or “recklessly and with knowledge that such loss would probably result”. The limitation has historically been referred to as an “unbreakable limit” for at least two reasons. Firstly, the loss must result from the “personal act or omission” of owners, charterers, managers and operators. Of course, many marine accidents occur because of the acts of an employee of the owner, in which case it is the not the personal act or omission of the owner or operator that caused the loss. In the Peracomo case, it was the owner and operator’s personal act that caused the loss when he cut the cable. The second reason the limitation has been difficult to break is the requirement that the loss be caused intentionally or recklessly with knowledge of the probable result.

Intent is an obvious concept and needs no explanation. In the Peracomo case, the court found the master intended to damage the cable by cutting it to free his anchor. Although the master lost his right to limit his liability on that basis alone, the test for breaking the limitation being intent to cause damages “or” recklessly and with knowledge, so the court went on to discuss whether the master acted recklessly and with knowledge. What is reckless is not as clear as what is intentional. In Peracomo, the court held that recklessness meant an attitude or indifference to the existence of a risk, essentially “turning a blind eye to a risk”, and found that because the master had turned a blind eye to current charts that showed the location of the cable, so he was “reckless in the extreme”.

Fortunately, cases where a mariner loses their ability to limit their liability are rare. However, we should not take the limitation for granted and assume it is “unbreakable” as it is often called. In Peracomo, the court reminded us the limitation of liability provided under the MLA and the Liability Convention are a “privilege”. While most marine accidents occur as a result of an innocent mistake (simple negligence), anyone can have a bad day and do “a very stupid thing”.

Originally published in 2012.

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

August 7, 2015
Criminal Negligence in the Workplace: Marine Employment Lessons

For the first time in B.C. history, the government has charged an employer with criminal negligence causing the death of an employee. Although the facts of the case do not involve the death of a mariner, this article should be of interest to marine employers and the families of deceased mariners because the same legal principles apply across all industries.

Briefly, the facts of the case are that 22-year-old Kelsey Anne Christian started work at the Stave Lake Quarries in Mission B.C. in 2007 and was killed on her second day on the job when the truck she was operating flipped over, pinning her underneath. A government investigation concluded that she had not been provided adequate training on the operation of the quarry truck before she was required to operate it. In April 2015, eight years after the accident, the employer and two other employees were charged with criminal negligence.

This is not the first case where an employee has been charged with criminal negligence causing death. Readers will recall the navigation officer of the Queen of the North was convicted of two charges of criminal negligence causing death and sentenced to four years in prison. It is, however, the first time an employer in B.C. has been charged under the criminal negligence sections of the Criminal Code.

(Mis)Understanding the Law

In reading news articles about this tragic story, my attention was caught by a disturbing quote that the President of the B.C. Federation of Labour made in response to the charges being laid: “we have long held the view that employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” [source: CBC]. My first impression was that the President had been misquoted, but the article went on to provide a further quote: “in every one of those cases, we have said there should be charges and if indeed employers are found to be negligent – then they should face serious penalties including jail time”.

The reason these quotes should be of concern to employers is that they demonstrate a serious, but common, misunderstanding of the law of criminal negligence. Negligence by an employer causing the injury of an employee is a very common occurrence, indeed it happens every day in B.C. An employer may forget to change a light bulb and a worker falls down a dark staircase. An employer delays in replacing a broken wooden ladder, or a malfunctioning power tool, and a worker is injured using it. These are common occurrences of negligence by an employer. One of the fundamental purposes of workers compensation (WorkSafeBC) is to protect employers from injuries (and financial loss) suffered by their employees because of the employer’s negligence.

Distinguishing then between common negligence and criminal negligence is of utmost importance, involving complex analysis that a personal injury lawyer in Victoria can help with.

Common/Simple Negligence versus Criminal Negligence

Common negligence is simply the failure to take reasonably adequate care to prevent harm to others that is foreseeable. In industrial settings, employees and employers cannot be sued by an injured worker for common negligence because the workers compensation system prohibits such lawsuits; in exchange for giving up this right to sue, the injured worker has a right to workers compensation benefits even if they are at fault for their own injuries.

Just as an employer cannot be sued civilly by an employee for the employer’s common negligence, an employer cannot be liable for criminal charges for common negligence either. The Federation of Labour’s statement that “employers who are negligent and cause serious injury or death of workers should be criminally prosecuted” is ironically a dangerous statement as it would mean almost every employer in the province would at some time be exposed to a criminal prosecution. Practically speaking, the government regulation of employer’s negligence is managed by the workplace safety arm of WorkSafeBC, which can levy substantial fines against employers for maintaining unsafe work places.

Criminal negligence on the other hand, the form of negligence alleged in the death of Ms. Christian, is a much more serious form of negligence, and hence the penal sanctions associated with a conviction for criminal negligence. If convicted of criminal negligence, for example, a person can be liable to imprisonment for life. The average sentencing for criminal negligence causing death currently appears to be in the range of 2 to 4 years.

There have been many court cases that discuss the definition of criminal negligence but it can be concisely defined as having two requirements: (1) a substantial departure from reasonable care and (2) a wanton or reckless disregard for the safety of others.

A substantial departure from ordinary care is significantly different than the degree of error required to find somebody liable for common negligence. A person can be liable for common negligence for even the slightest departure from what a reasonably prudent person would do in similar circumstances. Criminal negligence on the other hand, and its requirement that there be a substantial departure, means the court will look to not only what a reasonably prudent person would do, but also assume a significant margin of error in their judgment. Only if a person’s conduct falls well outside of that ordinary margin of error has the person committed a substantial departure. It can be a difficult concept to understand until it is applied to the facts of the case, and every case is different. In the case of Ms. Christian’s death, the court will need to be convinced that what Ms. Christian’s employer did or failed to do was far removed from what a reasonably prudent employer would have done, and even then, the court will have to be satisfied the second requirement for criminal negligence is also met.

The second requirement for criminal negligence is a wanton or reckless disregard for the safety of others. Wanton or reckless disregard means that a person contemplated the risk of their acts or omissions harming someone and chose to disregard that risk. It is the “yeah, that could happen, but I don’t care” mentality. One reason that criminal negligence charges are rarely brought at all, and particularly against employers, is because this level of disregard for safety is fortunately rare, but more importantly, difficult to prove in court. Although the accused may deny ever considering the risk (and hence cannot be found to have considered it and disregarded it), the court will look at the surrounding facts of the case and conclude whether a reasonable person should have considered the risk and therefore, whether the accused should have considered the risk (whether he denies doing so or not). For example, in the Queen of the North sinking, the navigating officer maintained he did not consider striking Gil Island was a risk. Ultimately, the court did not accept that evidence, and found that either he must have considered the risk, but chose to disregard it, or that he didn’t consider it when he clearly should have.

In closing, the test for criminal negligence causing injury or death is a high one and employers should not be concerned that they will be criminally prosecuted for simple negligence causing injury to their employees. That said, employers can be heavily sanctioned by authorities such as WorkSafeBC for simple negligence, and so should always maintain safe workplace practices.

Darren Williams is a lawyer and partner at League and Williams 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 by email at info@leaguelaw.com.

May 29, 2015
Navigating Mariner Severance Pay – Tips for Mariners

“When is a mariner entitled to notice of termination of their employment, or to be paid out for the time instead, often called severance pay?” Unfortunately this is an all too 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—something that could be avoided with the help of an experienced marine lawyer.

There are, of course, 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 unwanted employee, but for now, a mariner 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 might 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 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 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 marine 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 mariner 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 marine jobs on the West Coast will be subject to the provisions of the ESA as opposed to the Labour Code, regardless of the jobs involving navigation and shipping, because the work is often related to local voyages as opposed to international voyages. This distinction is somewhat academic because the protections offered to employees under both the ESA and the Labour Code are largely similar. 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 established lawyers in Victoria, B.C. pursue such claims on contingency (a no cure, no fee basis).

Question 7: The employer will not 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 mariner 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 registered 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.

Facing job loss is challenging and can be tricky waters for any mariner (or maritime employer) to navigate. Consulting with an experienced marine lawyer can ensure that the mariner is treated fairly by their employer and gets access to the full amount of mariner severance pay that they are entitled to. Darren Williams, at League and Williams will provide a free consultation and has a reputation for helping his clients navigate marine law and employment law matters. He may be contacted at 250-888-0002 or by email at dw@marinelaw.ca or dwilliams@leaguelaw.com.

May 27, 2015
Falling Asleep at the Wheel: Negligence, or Gross Negligence?

Many master’s or mate’s positions require long hours where sleep can at times come second to getting the job done. Even where sleep is a scheduled part of the job, unfavourable tides, port schedules, weather and emergencies occasionally require the crew to skip their sleep. Pacing the wheelhouse, coffee in hand, is many a crewman’s prescription for the dreaded head-bob astride the captain’s chair. Few mariners who have taken the wheel of a vessel can deny that at some point in their career they have not drifted off, even for the briefest of moments.

A B.C. Supreme Court case considered whether a master who fell asleep at the wheel of his vessel was guilty of mere negligence, or the more significant gross negligence. The difference between these two legal-wrongs is profound, with gross negligence possibly resulting in the loss of insurance coverage, exposing the mariner to claims from their employer, awards for punitive damages against them, losing the right to limit liability, and even criminal charges. To this end, it is wise for mariners and vessel owners to understand the legal significance of falling asleep at the wheel.

Between midnight and 2:00am in the early morning of August 13, 2003, a small passenger ferry collided with Nose Point on Salt Spring Island B.C. at a speed of 20 knots. When emergency crew arrived and found the engines running, the master, whose torso had deeply deformed the wheel, stated “I think I fell asleep”. A guest who had been sleeping in an aft bunk had been thrown forward into a table and was badly injured. The guest, who was a friend of the master along for the ride, sued the owner and master for her injuries. The court considered whether the master and owner could limit their liability for her injuries to the statutory limit for passenger injuries set out in the Canada Shipping Act 2001 and Athens Passenger Convention (then approximately $300,000). While the court did decide the legislated limit of liability was applicable because the vessel was being used for a commercial purpose at the time of the collision, the court had to consider whether the owner and master were disentitled to rely on the limit because of an exception in the CSA 2001, being that the master or owner had “acted recklessly and with knowledge that [the guest’s] injuries would probably result”.

The court ultimately rejected the claim that the master had “acted recklessly and with knowledge that the [guest’s] injuries would probably result”, citing in part insufficient evidence of what the master’s knowledge was immediately prior to the collision, and allowed the master and owner to limit their liability to approximately $300,000. However, in doing so the court considered the term “recklessly” as it related to falling asleep at the wheel and made the following important points.

Firstly, the court adopted an earlier interpretation that acting “recklessly” in a marine context means the person was acting with “gross negligence”. While simple negligence is acting or failing to act in a manner that a reasonably prudent person would act in the same circumstances, gross negligence is doing so with knowledge that a certain loss would probably result. Put another way, gross negligence is intentionally undertaking an unjustifiable risk. Quoting from a 1949 B.C. Supreme Court judgment involving a motorist falling asleep at the wheel, the court stated:

Sleep does not ordinarily fall upon one suddenly and if the defendant found that it was coming upon him he should have stopped and refreshed himself, for nothing is more dangerous than for a driver to fall asleep at the wheel- an accident is almost inevitable.

In the marine context this means, for example, where a crewman has been up for many hours and takes the wheel understanding he will likely be unable to stay awake for a four hour wheel-turn, and appreciates the vessel may as a result run aground or collide with another vessel, the court may find him grossly negligent.

Secondly, the court considered the difference between whether the master had fallen asleep suddenly or gradually, and how this related to whether they were merely negligent, or whether they were grossly negligent. Although the court found there was insufficient evidence at trial to find whether the master had fallen asleep suddenly or gradually, the court did state:

The absence of scientific or other evidence [in this particular case] concerning how sleep may have come upon [the master] is important because if it was established that sleep did come on gradually, a stronger case could be made for a finding that [the master] ought to have taken some action to avoid what occurred. If sleep came on suddenly, he would have had no opportunity to do anything in anticipation of falling asleep and his conduct would be less blameworthy, constituting negligence, but not gross negligence.

Said another way, the court found that where the circumstances are such that the crewman fell asleep gradually (such as doing the head-bob in the captain’s chair for an hour before finally falling asleep) he may be grossly negligent, whereas falling asleep quickly or after having had rest earlier that day, would amount to only simple negligence. The distinction is somewhat grey, but nonetheless important, as a finding of gross negligence can have profound effects on a mariner’s career. For example, mariners who are employed (as opposed to being contractors) cannot be sued by their employers for their workplace mistakes (such as property damage due to a collision). The exception to this rule, which would allow the employee to be sued, is where the employee was acting maliciously (with intention to harm) or where they are grossly negligent. Damages could easily result in the loss of all of the mariner’s assets. Also, the same characteristics that make for grossly negligent conduct make for the crime of “criminal negligence” under the Criminal Code. A final consideration is that many insurers will not provide coverage for losses that result from either gross negligence or criminal negligence of the owner of the vessel.

There is no escaping the conclusion that if you fall asleep at the wheel you are negligent. The question is whether, in the circumstances, you are grossly negligent because you took the wheel knowing you were more likely than not to nod-off and an accident would result. This can only be determined on a case-by case basis. Both crew who take the wheel and may be sued by their employers, and owners/management who are responsible for putting them there and may lose their right to limit liability (although this is extremely rare), ought to take this into account when considering work/sleep scheduling. While the limits of liability under the Canada Shipping Act 2001 and the Athens Passenger Convention are often referred to as “unbreakable” because the two-part exception to this limited liability (that the master or owner acted recklessly and they knew the injuries would likely result) can be very difficult to prove, cases of falling asleep at the wheel (as opposed to more common accident caused by errors in navigation or machinery failure) provide unique circumstances where these limits where these limits might be broken. In as much as the case discussed above provides a blueprint for prosecuting or defending a claim for gross negligence, every mariner who takes the wheel exhausted after a long day, is well advised to bear it in mind.

Darren Williams is a founding partner of League & Williams in Victoria, BC practicing in the areas of Personal Injury Law, Marine Law and Estates Disputes and can be reached for question or comment at dw@MarineLaw.ca, or info@leaguelaw.com or by phone at 250-888-0002.

May 3, 2015