League and Williams Lawyers

Tag: navigation and shipping

  • Private Mooring Buoys and Anchorages – How is the Wild West to be Regulated?

    Private Mooring Buoys and Anchorages – How is the Wild West to be Regulated?

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

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

    The Parties: from the Queen to Vessel Owners

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

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

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

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

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

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

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

  • Is an Apology an Admission of Fault?

    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.