League and Williams Lawyers

Tag: marine law

  • Criminal Negligence in the Workplace: Marine Employment Lessons

    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.

  • Navigating Mariner Severance Pay – Tips for Mariners

    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.

  • Falling Asleep at the Wheel: Negligence, or Gross Negligence?

    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.

  • Focused on What Matters: Our Client’s Interests

    Focused on What Matters: Our Client’s Interests

    Legal procedures and issues can be frustrating and stressful and often get in the way of meeting business objectives or personal goals.  When legal issues are not given the attention to detail they need, or when lawyers fail to listen to their clients and understand the problems they face, the solutions available and their client’s interests, the frustration and stress continue to mount – or a legal solution is provided that fails to resolve the underlying problems or causes other legal problems down the road.  There is far more to client satisfaction than just providing competent legal services.  League and Williams believes that the best results are only possible when the lawyer handling the case is competent in the law, understands and appreciates their client’s situation, and is committed to putting the needs of that client first.  We have demonstrated our legal competency and our commitment to client satisfaction over our many years of effectively handling a wide variety of personal injury claims, estates disputes and marine law issues.  We not only understand the legal system, but also understand our clients and strive to put their needs first.  This is just one of the things that makes League & Williams (LaW) different from other law firms in British Columbia.

    Legal issues take a huge toll on people, both physically and emotionally, and often takes months or years to put lives or businesses back on track after a legal issue arises.  Having a lawyer who can provide trusted advice and help to make decisions that meets your needs is invaluable.  Having a lawyer who is committed to finding the solutions needed goes a long way towards making legal problems less stressful and frustrating.

    For personal injury cases, you can count on League & Williams to serve only your interests as the injured party. We have no hidden agendas! We guide you through every step of the claim process – right through settlement or trial. We educate you about your claim. We keep in close contact with you and work closely with your team of healthcare professionals who are helping you regain your health and wellness.  We ensure our clients are empowered to recover as best as possible from their injuries.

    For estate disputes, you can expect us to help you understand the options available to remedy an unfair will.  We work with our clients to enable a better understanding of what they are entitled to under BC Estate Law and to empower our clients to gain the benefits that they are entitled to from an estate. Then we guide our clients through the process of disputing a will and asking the court to change the will in accordance with the BC Wills, Estates and Succession Act.  We stand by our clients right through settlement or trial.

    For maritime law, you can trust us to identify key issues in this highly specialized area. Regardless if you are a humble boat owner or a major player in the province’s commercial fishing scene, League and Williams will always be there to lend its legal and technical know-how in the province’s maritime law industry.

    Here at League & Williams, we work with the our client’s interests at heart. Give us a call at 250-888-0002, email at info@leaguelaw.com or visit leaguelaw.com/contact-our-lawyers/ for a free consultation.

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

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

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

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

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

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

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

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

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

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

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

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

  • Repairer’s Liens – BC Primer for Marine Repairers & Customers

    Repairer’s Liens – BC Primer for Marine Repairers & Customers

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

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

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

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

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

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

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

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

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

  • Rescuer Law: Compensation for Mariners Injured Rescuing Persons or Property?

    Rescuer Law: Compensation for Mariners Injured Rescuing Persons or Property?

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

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

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

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

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

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

    There must be imminent danger to person or property.

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

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

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

    The actions of the rescuer must be reasonable and foreseeable.

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

    The rescuer’s decisions need not be perfect.

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

    More deference is given to saving life than saving property.

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

    Legal duty to act bolsters claim.

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

    Marine Rescues under the Canada Shipping Act (2001):

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

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

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

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

  • Legal Services to Trust: Client Reviews

    Legal Services to Trust: Client Reviews

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

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

    – Tracy Ronlund-Neilson

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

    – William Strong

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

  • Quality Legal Services are a Function of Firm Values

    Quality Legal Services are a Function of Firm Values

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

    We’re effective.

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

    We’re competent.

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

    We’re compassionate.

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

    We’re responsive.

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

  • Must the Captain Always Go Down with His Ship?

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

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

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

    The Vessel Goes Down…

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

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

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

    …The Captain Must Follow

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

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

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

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

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

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

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