Kajat v. Arctic Taglu ( The )
T-1724-94
Reed J.
4/12/97
9 pp.
Apportionment of liability-Defendants arguing since plaintiff's husband partly at fault for accident in which lost life, plaintiff should recover no damages-Referring to Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (1995), 126 D.L.R. (4th) 1 (Nfld. C.A.); affd [1997] S.C.J. No. 111 (QL)-Trial Judge in that case finding under Canadian maritime law, contributory negligence complete defence to plaintiff's claim-Nfld. C.A. holding Canadian maritime law applicable to negligence resulting in damage, that law required apportionment in case of contributory negligence either because Nfld. Contributory Negligence Act applied or because Canadian maritime law itself included principle of apportionment-Canadian maritime law not operating to deny plaintiff recovery because some contributory negligence by plaintiff's husband-Permission granted to specifically plead, rely on British Columbia Negligence Act pursuant to Federal Court Rules, R. 420 permitting Court to amend pleadings at any stage-No prejudice arising to any party as result of amendment-Decision in this case based on same alternative bases as those adopted by Nfld. C.A., rather than relying solely on Canadian maritime law-Sea Link defendants 70% at fault, Crown 30% at fault-While Crown servant careless in not investigating manner in which tug/barge combination would operate, to some extent led into this position by less than candid approach of Sea Link's servant, whose concern tug/barge combination not be classified as composite unit because might have lead to increased manning requirements, costs for him-Tragedy would not have occurred had he been less concerned with economic self-interest, more concerned with ensuring safe presentation of vessels to others on water-Although several causes contributing to accident, including another Crown servant's misinterpretation of Regulations, plaintiff's husband's fatigue, bulk of responsibility lying with Sea Link defendants-Panning of search light by tug/barge combination causing plaintiff's husband to abruptly turn his vessel, attempt to cross in front of bow of tug/barge-Conduct of Sea Link defendants (lack of candour, honesty, unsubstantiated allegations) meriting increased award of costs-Taxing officer directed to apply column V, Part II, Tariff B-B.C. Negligence Act not applicable to require apportionment of costs according to liability-Provincial law only applied when gap in applicable federal law-Federal Court Rules, R. 344 providing awarding of costs within trial judge's discretion, including amount, allocation of costs, as well as persons by whom to be paid-Result of proceeding, apportionment of liability, among factors identified to be considered in awarding costs-No gap to be filled by reference to provincial legislation-R. 344 governing award of costs-Plaintiff's award of taxed costs not reduced because of contributory negligence for same reasons justifying increase in costs-Also plaintiff herself not negligent, degree of fault attributed to husband not large-Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by SOR/87-221, s. 2), 420-Negligence Act, R.S.B.C. 1979, c. 298-Contributory Negligence Act, R.S.N. 1990, c. C-33.