Kajat v. Arctic Taglu ( The )
T-1724-94
Reed J.
26/8/97
40 pp.
Action, pursuant to Canada Shipping Act, ss. 646, 647, for damages arising as result of wrongful death of husband when his fishing vessel, Bona Vista, colliding with tug/barge combination Arctic Taglu/Link 100-As two vessels approaching each other on almost reciprocal courses, Bona Vista suddenly making abrupt turn to port across bow of Link 100-Tug Arctic Taglu pushing barge Link 100-Tug and barge having combined length of 142 metres-Notch cut into barge's stern, into which bow of Arctic Taglu could fit-Tug/barge owner initially contemplating using `Intercom system' to connect two vessels-Transport Canada employee Burnside of opinion tug and barge would form composite unit, and should carry lighting systems allowing it to be lit as composite unit when pushing ahead-Subsequently different member of Coast Guard, Capt. Keeper, approved lighting arrangements for Arctic Taglu/ Link 100 based on tug/barge owner's assertion not composite unit-Capt. Keeper neither inspecting barge nor seeing diagrams of proposed hydraulic ram connection-Simply provided with lighting plans for approval entitled "Trailer Integrated Tug/Barge"-Instead of Intercom system, custom made system installed on Arctic Taglu/Link 100-Ability to unite tug/barge so as to avoid any independent lateral movement that could cause navigation lights to be misaligned over length of tug/barge combination critical factor when considering tug and barge to be composite unit-In normal operation of custom designed system, two vessels rigidly connected-When tug and barge used in pushing configuration, operated as composite unit-As result of conversation with Capt. Wade of Ottawa office, Capt. Keeper indicating barge should only be lighted in accordance with international rules, not in accordance with Canadian modifications-Capt. Wage of opinion Canadian modifications only applied when impracticable to comply with international rules-Barge lit in accordance with Collision Regulations, s. 24(f)(i) (barge being pushed ahead under international rules)-Tug/barge combination of this type uncommon on west coast of British Columbia-Lighting arrangement used by Arctic Taglu confusing for mariners who had never seen it before-Owners, operators of tug adopting practice of panning searchlight, mounted on tug, along length of barge when approaching vessel apparently uncertain as to what encountering-Mariner could interpret panning of searchlight as indication something in water ahead could not see that was danger to vessel-Use of searchlight, when Bona Vista approaching and close to Arctic Taglu/Link 100, causing Bona Vista's abrupt turn to port-Although Bona Vista not itself properly lighted, mate on Arctic Taglu not confused, misled by lighting; able to ascertain Bona Vista's course, speed without requesting presence of second person in wheelhouse-Weather good, sea calm, visibility clear-Plaintiff's husband's fatigue playing some role in accident-Under collision rules, Arctic Taglu/Link 100 obligated to keep out of way of Bona Vista, Bona Vista obligated to maintain course, speed-Neither vessel navigating in accordance with strict compliance with rules-Both navigating so as to get themselves into close quarters situation-That only one person in wheelhouse in Arctic Taglu/Link 100 contributing to development of situation-(1) Collision occurring as result of use of searchlight in way signalling danger to Bona Vista-Capt. Keeper's failure to adequately investigate whether Arctic Taglu/Link 100 composite unit in pushing mode significant contributing factor to accident-Tug/barge owner's less than candid representations to Capt. Keeper playing role-Capt. Wade's misinterpretation of lighting requirements for barges being pushed by tugs and alleged non-application of Canadian modifications also likely playing some role-Failure of tug/barge to keep further away from Bona Vista, failure of owners, operators to ensure two people on watch at all times, contributing to accident-Plaintiff's husband's fatigue, failure to navigate course keeping Bona Vista at greater distance from Arctic Taglu/Link 100 also contributing to accident-Defendants 85% at fault for cause of accident; plaintiff's husband 15% at fault-(2) Tests for determining Crown liability: (i) whether sufficiently close relationship between parties so that in reasonable contemplation of government decision-maker carelessness on its part might cause damage to plaintiff; and if so (ii) are there any considerations that ought to negate or limit scope of duty, class of persons to whom owed, or damages to which breach of duty giving rise-Standard of care expected of government inspector that of reasonable person-Reasonably foreseeable that if those making decision as to what lights vessel should carry acting carelessly, harm could arise to individuals-Duty of care existed-No explicit exemption from liability excusing carelessness on part of those approving lighting arrangement-Canada Shipping Act, s. 311 requiring steamship inspector to satisfy himself steamship having lights required-Decision must be made in reasonable, not careless, way-To determine appropriate lighting, must first determine whether tug/barge combination composite unit-Requires examination of plans, physical inspection of vessels-Capt. Keeper acting carelessly when approved lighting based on owner's representations alone, especially when alerted to fact different connection of same vessels earlier considered-Negligent in not doing more thorough investigation-Capt. Wade's view international rules taking precedence over Canadian modifications completely contrary to text of Collision Regulations-Wade careless in interpretation of Regulations-(3) Provincial fatal accidents legislation useful guides in interpreting Canada Shipping Act, s. 647(2)-Under such legislation, dependants of deceased entitled to compensation for loss of pecuniary benefit would have received but for death of deceased-Compensation assessed on basis of actual loss suffered, as distinct from needs-Plaintiff claiming loss of financial support, special damages for estate, funeral expenses, separate claim for management fee-Calculation made of probable amount of deceased's disposable income had he lived-Broken down into probable disposable income up to date of trial, and thereafter-Reduction made for personal consumption of deceased and amount consumed by infant son (also killed in collision)-Sufficient lump sum calculated to give plaintiff financial support comparable to that lost as result of death of husband-Court must consider taxes payable on income generated and "gross-up" capital amount to ensure plaintiff net income stream equivalent to pecuniary benefit deceased would otherwise have provided-Lastly, Court having discretion to ensure amount so calculated fair and just-Plaintiff's husband self-employed commercial diver-Harvested red, green sea urchins, sea cucumbers, geoducks (large clams)-Well-educated, intelligent, hard-working, entrepreneurial-Very productive seafood harvester-Had acquired own vessel, sea cucumber licence, red sea urchin licence, attempting to purchase green sea urchin licence at time of death-From February 1992 until July 1993, purchased family home, paid off family, bank loans-Family net worth $213,000-Probable plaintiff's husband would have earned $50,000 in 1993, $75,000 in 1994, $100,000 in 1995 and $150,000 by 1996 net of expenses, but before payment of taxes-Income should be calculated to age 65, initially from seafood harvesting, and later from managing business-Income now received from lease of licences deducted from financial support would have received-Consumption rate of plaintiff's husband, son assessed at 32% until son reaching age 25, when reduced to 28% for husband alone-At least $1,000 allowed for husband's provision of household services i.e. doing major shopping for family, preparing special family meals, renovating, with no reduction because some of services might benefit only him, son or because might be less productive than paid worker-No reduction attributable to contingency Kajats might divorce-Marriage solid-Reduction made to take into account joint mortality rates, in accordance with generally accepted accounting principles-Statistical discount for possibility of remarriage not appropriate in this case-Work environment such that 15% deduction should be made in addition to adjustment for joint mortality-Appropriate case in which to award management fee of 0.75% of fees under management per annum-Although intelligent, competent individual, plaintiff's field not management-Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 311, 646, 647-Collision Regulations, C.R.C., c. 1416.