Wilson Fishing Co. Ltd. v. Western Investor (Le), 2001 FCT 1390

Date: 20011217

Docket: T-1623-97

Neutral citation: 2001 FCT 1390

                                                    ACTION IN REM AGAINST THE

                                       DEFENDANT SHIP "WESTERN INVESTOR"

BETWEEN:

                                                    WILSON FISHING CO. LTD. and

                                                        VIVIAN BERNARD WILSON

                                                                                                                                                      (Plaintiffs)

                                                                                 and

                                              BRITISH COLUMBIA PACKERS LTD.,

                                              K. SMITH FISHING LTD., owners of the

                                           Motor Vessel "WESTERN INVESTOR" and

                                      the said Motor Vessel "WESTERN INVESTOR",

                                              and all others interested in the said vessel,

                                                                 and KEVIN SMITH

                                                                                                                                               (Defendants)

                                                        REASONS FOR JUDGMENT

SIMPSON J.

Introduction

[1]                 This case concerns a collision at sea. Fortunately, the claim is for lost property and not for loss of life. On March 4, 1997, the Department of Fisheries and Oceans opened a shotgun roe herring fishery in waters near Comox Harbour on Vancouver Island, British Columbia. Shortly thereafter, the Defendants' 300 ton fishing trawler, the Western Investor, collided with an aluminum motor skiff (the "Skiff") which worked with the Plaintiffs' seine fishing vessel, the Fisher Lassie II. This incident will be described as the "Collision". During or after the Collision, the Fisher Lassie II's seine net became tangled in the wheel (or screw) of the Western Investor. The net was damaged and could not be freed and repaired in time to allow the Fisher Lassie II to participate in the fishery. The Plaintiffs say that the damage to their net was caused by the negligence of the captain and crew of the Western Investor and they claim damages in the amount they would have been paid for their catch on the assumption that, but for their torn net, they would have set their net once and made an average catch. In the alternative, the Plaintiffs claim a share of the Western Investor's catch on the basis that the Skiff helped the Western Investor close her net. The Plaintiffs also seek compensation for the damage to their net.

The Roe Herring Fishery

[2]                 The roe herring fishery has fairly recent origins. It started in the 1970s in response to demand from the Japanese market. The roe is found in a sac in the belly of mature female herring prior to spawning. Accordingly, juvenile and male herring have no value in this fishery. The roe is graded according to its percentage of the weight of the entire fish and its quality depends on colour and density. Mature roe is the most valuable.

[3]                 At the relevant time, all aspects of the roe herring fishery were regulated by the Department of Fisheries and Oceans (the "DFO"). It issued licenses and set the specifications for the equipment. It also controlled the shotgun opening and closing of the fisheries with VHF radio announcements and, in 1997, a fishery could last for a few minutes or a few hours.

[4]                 The roe herring fishery of March 4^th, 1997 (the "Fishery") was, to say the least, a congested affair. Captain Smith of the Western Investor testified that, at the opening of the Fishery, there were 30-40 trawlers in motion within 1200 feet of his vessel. They were all trying to position themselves over schools of herring and were preparing to release their skiffs and set their nets the moment the DFO opened the Fishery. In his decision in North Ridge Fishing Ltd. v. Prosperity (The) (2000), 78 B.C.L.R. (3d) 388, ("North Ridge") Mr. Justice Lowry described the roe herring fishery in the following terms in paragraphs 1 and 51 of his judgment:

A shotgun opening in the roe herring fishery was a kind of high stakes race for large seine trawlers that was organized by the Department of Fisheries and Oceans. It was a most unusual maritime adventure where, from an opening "gun", many vessels - sometimes dozens - would set their nets at speed in very close proximity during a short period of time. A great deal of money could be made from the sale of the roe, but the financial risks and the potential for damage to boats and equipment was high.

As indicated at the outset, large trawlers are operated in a high stakes competition for fish which forces them to maneuver at speed in close proximity. Masters are encouraged to catch as much herring as they can in what is most often a very short period of time. Their encouragement lies not only in the prospect of substantial financial reward for themselves and the vessel's owner, but also, no doubt, in the knowledge of the cost of participation and the need to do well to secure continuing employment in The Fishery. It is an activity where an owner's instructions to exercise caution, and even to put safety first, must for all practical purposes be lost in the priority of making a large catch. As I said at the outset, is a most unusual kind of maritime adventure - one that compels masters to sacrifice good seamanship for profit.

[5]                 The profit motive played a significant role in this case. The evidence disclosed that one set of the net could be worth as much as $500,000. As will be seen, I have concluded that the profit motive explains much of the otherwise inexplicable conduct of those who participated in the events preceding and following the Collision.

The Parties and their Witnesses

[6]                 In 1997, the Fisher Lassie II was owned by the Plaintiff, Wilson Fishing Co. Ltd. The company, in turn, was owned by the Plaintiff Captain Vivian Wilson ("Captain Wilson"). At the time of the Collision, he was in command of the Fisher Lassie II. He participated in this litigation and was examined for discovery, but he died before trial and left the Fisher Lassie II to two of his grandsons. One of them is Mr. Boyd Wilson. He is now the captain of the Fisher Lassie II and holds a class 4 fishing master ticket. Boyd Wilson was aboard the Fisher Lassie II as first mate on the day of the Collision and he gave evidence at trial about the events of that day. Irvin Brodowich, who was the operator of the Skiff at the time of the Collision, also gave evidence for the Plaintiffs. He will be referred to as the "Skiff Operator".

[7]                 The Plaintiffs' third trial witness was Mr. Bill Wilson. He is Boyd Wilson's father and Captain Wilson's son. He is also a commercial fisherman and operates his own boat. Bill Wilson is the executor of his father's estate and is now the president and a director of the Plaintiff Wilson Fishing Co. Ltd. Although he was not aboard the Fisher Lassie II at the time of the Collision, he gave evidence for the plaintiff company and testified, inter alia, about the arrangements it had made for the sale of the herring it expected to catch during the Fishery.

[8]                 The Defendants' Western Investor is jointly owned by the corporate Defendants. However, no representatives of British Columbia Packers Ltd. appeared at trial. Mr. Kevin Smith ("Captain Smith") is the principal of K. Smith Fishing Ltd. and he was in command of the Western Investor during the Fishery. He gave evidence about the events leading up to and following the Collision. Mr. Al Johannsen also testified for the Defendants. Although he is a ticketed Master, he was serving as port lookout on the Western Investor prior to the Collision.

The Equipment

[9]                 Both the Fisher Lassie II and the Western Investor used regulation 225 fathom nets. Since one fathom is 6 feet, the nets were 1350 feet long. Once deployed, a net hangs vertically to form a 40 fathom high wall in the water. The bottom is weighted by lead weights on a line called the "lead line" which runs along the net's bottom. At the top, corks on the "cork line" keep the net afloat. A "breast line" runs through rings along the end of the net between the cork and lead lines.

[10]            The Skiff is constructed of welded aluminum. It is 19 feet long and approximately 9 feet wide. It has an open cockpit and is powered by a shaft-driven 110 to 120 horsepower diesel motor. In the Fishery, the Skiff was manned by a crew of two - the Skiff Operator and his helper.

[11]            The skiff plays an important role in deploying or "setting" the net. Before a set begins, the skiff rests in a cradle above the water at the trawler's stern. When it is in this position a line is run from the skiff through the rings holding the net's breast line and back to the skiff. This line is tightened so that the breast line and the end of the net are bunched. When a set begins, the trawler's Captain sounds a horn and the skiff is lowered to the water and released. At this time, the net is attached to the skiff's bow. The skiff then pulls the bunched end of the net off the stern of the trawler by operating in reverse at full throttle as the trawler moves forward. A few seconds into a set, the skiff's helper stows the skiff's painter. Next, he releases the line holding the breast line so that the net can sink and begin to form a wall. Eventually, after about one quarter or approximately 335 feet of the net is in the water, the weight of the net has eliminated the trawler's forward momentum and it is safe to turn the skiff around so that it tows the net off its stern.

[12]            The net is traditionally set as the fishing trawler moves forward and away from the skiff in a circle to the right. The intention is to form a wall around a school of fish which has been located on the sonar and depth sounders found in the trawler's wheelhouse. When the trawler completes its circle by returning to the skiff the set is complete. Thereafter, the net is closed at the bottom so that it forms a bowl-shape. This step is called "pursing" the net. After the net is pursed the fish are tested. If they are of good quality they are pumped out of the net.

The Evidence

Setting the Fisher Lassie II's Net

[13]            Boyd Wilson testified that, during the Fishery, Captain Wilson was alone in the Fisher Lassie II's wheelhouse when she began her set. He acknowledged that his grandfather was responsible for keeping a lookout both ahead and behind the Fisher Lassie II and for monitoring the sonar equipment to ensure that he set over fish and did not end his set with an empty net. He also acknowledged that, with all these responsibilities, it would be hard for Captain Wilson to keep a proper lookout to the stern.

[14]            Boyd Wilson testified that the Skiff began the set at full reverse throttle. The Skiff Operator gave similar testimony. He said that, at the instant the Skiff was released, it was pulled forward towards the Fisher Lassie II very briefly until its reverse thrust overcame the trawler's pull. Then, once the net started to come off the trawler's stern he kept the Skiff in full throttle reverse to keep it from being pulled forward. Eventually, as more net entered the water, the drag from the trawler reduced and the Skiff's throttle was slowly eased back to the degree necessary to stay in position. The Skiff Operator admitted that he had been told by Captain Wilson to keep the Skiff under constant reverse power until it was turned around. However, his evidence was clear that constant reverse did not mean constant reverse at full throttle.

The Collision

[15]            Captain Smith, who was at the helm of the Western Investor, Boyd Wilson, who was standing behind the Fisher Lassie II's wheelhouse, and the Skiff's Operator were the witnesses who saw the Collision unfold.

[16]            Captain Smith first observed the Fisher Lassie II when she was 100 feet ahead of the Western Investor and just off her port bow. At that time, the Fisher Lassie II had not released her Skiff and he expected to pass her at a safe distance of about 40 feet. He testified that, when he realized that the Skiff had been released and that it was moving in reverse into the Western Investor's path, he was travelling forward at 5-6 knots.

[17]            It took Captain Smith 5 or 6 seconds to decide how to react and, when he did, he put the Western Investor into full reverse. At that time, the Skiff was about 70 feet ahead and travelling, in reverse, into the Western Investor's path at a speed of 1 knot or 1.7 feet per second. It did not appear to Captain Smith that the crew of the Skiff was aware that the Western Investor was bearing down on them until just before he lost sight of them. Captain Smith did not see the actual Collision because the Skiff disappeared under the Western Investor's bow. However, he heard a bang and estimated that the Collision occurred 6 or 7 seconds after he put the Western Investor into reverse. Neither vessel was damaged in the Collision.

[18]            Smith was questioned about why he did not steer to starboard or use his bow thrusters in an effort to avoid the Collision. He testified that he had no time to turn and that he did not consider doing so.

[19]            Boyd Wilson testified that, when the Collision occurred, the Fisher Lassie II was just about to start her first turn. It is made when the net is ¼ or 330 feet deployed. Accordingly, he estimated that between 240 feet and 300 feet of the Fisher Lassie II's net had been set. He also said that, at the moment of the Collision, the Skiff Operator and his helper were standing on the Skiff's port side with their hands raised in an effort to ward off the Western Investor.

[20]            Boyd Wilson further testified that, from his vantage point, the Skiff disappeared, in reverse, around the far side of the Western Investor's starboard bow. The next time he saw the Skiff it had been turned around and the rope holding the Fisher Lassie II's net had been taken off its bow and attached to its stern.

[21]            The Skiff Operator also testified for the Plaintiffs. He said that when the Fisher Lassie II began her set, he looked over his shoulder and noticed that the Western Investor was over 100 feet away. However, he concluded that the Western Investor could easily turn to avoid the Skiff and he expected the Western Investor to take that action. He said that he recognized no danger from the Western Investor until 5 to 10 seconds before the Collision. He also testified that, by the time of the Collision, the Skiff's painter had been stowed and the net's breast line had been released. For this reason, he was sure that at least 40 fathoms or 240 feet of net were in the water and that the Fisher Lassie II was approximately 20 seconds into its set. However, he acknowledged that the first quarter marker on the net had not yet been reached.

[22]            The Skiff Operator testified about his failure to take evasive action by putting the Skiff in neutral or forward gear to avoid the Collision. He said that the set was his bread and butter for the next 6 months and that there was no question of taking any action which would risk driving over the net's lines. He was very clear. Even with a 300 ton trawler about to hit his Skiff, he was not prepared to risk sacrificing the Fisher Lassie II's set.

Post-Collision

[23]            Captain Smith said that, at the moment of Collision, his main engine stalled and an alarm sounded. He thought that his own net was caught in his wheel because he was setting his net directly off his stern. However, he also said that the Western Investor never moved in reverse before the Collision. The only effect of putting his trawler into full reverse was to slow its rate of forward travel and Captain Smith testified that, even after the Collision, he was still moving ahead at 3 knots. He asked his crew to check and was told that there was no net in his wheel. Once he received this advice, he asked his engineer to restart the engine. However, it started in reverse gear because it had stalled in that gear. After being started in reverse, the engine stopped again and Captain Smith had it restarted a second time in neutral and then had it put in forward gear.

[24]            The Skiff Operator, Boyd Wilson and Captain Smith all agreed that the Skiff was pulled down each time the Western Investor's engine was restarted. This, they said, meant that the Fisher Lassie II's net had become caught in the Western Investor's wheel. As well, Boyd Wilson testified that, when the Western Investor's engine was first restarted, he saw the Western Investor's stern swing into the Fisher Lassie II's net.    Finally, the Skiff Operator testified that, after he turned the Skiff around and moved away from the Western Investor's bow, the lines between the Skiff and the Fisher Lassie II's net were clear.

The Issues

[25]            The following questions must be considered:

A)       Liability

          1.        Was Captain Wilson keeping a proper lookout to the stern before he released the Skiff?

          2.        Did Captain Smith see the Skiff at the first reasonable opportunity?

          3.        When Captain Smith first saw the Skiff travelling in reverse into the path of the Western Investor - was the Skiff moving quickly or slowly? The answer to this question will depend on how much net the Fisher Lassie II had managed to set.

          4.        Did Captain Smith take all reasonable measures in addition to reversing his engines to avoid the Skiff? In particular, should he have turned or used his bow thrusters to move to starboard?

          5.        Did the Skiff Operator take all reasonable measures to avoid the Western Investor? In particular, should he have taken the Skiff out of reverse gear so that it moved forward towards the Fisher Lassie II and out of the path of the Western Investor?

          6.        Why did the Fisher Lassie II's net become tangled in the Western Investor's wheel? Was it as a result of the Collision or because the Western Investor subsequently backed over the Fisher Lassie II's net?

B)       Damages

          7.        Did the Skiff assist the Western Investor with the completion of her Set?

          8.        What is the proper measure of damages? In particular, are the Plaintiffs entitled to be compensated for the value of the catch they might have made absent damage to the Fisher Lassie II's net? If yes, are the Plaintiffs entitled to the entire value given that 50% of the catch would have belonged to another party? As well, what is the value to be assigned to the catch the Fisher Lassie II might have made, given that it was to be sold in the independent segment of the roe herring market?

Discussion and Findings

A)       Liability

          Issue 1

[26]            Rule 5 in the Collision Regulations to the Canada Shipping Act, C.R.C., c. 1416, as amended by SOR/83-202 ("Rule 5") requires that every vessel maintain a proper lookout. I have concluded that this rule was broken by Captain Wilson. This may have been because he had too many responsibilities and was preoccupied with his sonar equipment or he may have exercised bad judgment and mistakenly concluded that there was room for his set. A third possibility is that he realized that he was short of space but, given the profit motive, he gambled that the Western Investor would turn and make room for his set. I am not able to say why he failed to keep a proper lookout. I have only concluded that he did fail in this regard and therefore set his net in front of the Western Investor creating a situation in which the Collision could occur.

Issue 2

[27]            It is important to recall that the events leading up to the Collision occurred rapidly. According to the Skiff Operator who, in my view, was in the best position to testify on this point, the Skiff had been setting the Fisher Lassie II's net for at least 20 seconds before it was hit. Although he described this evidence as a guesstimate, it was based on his recollection that the painter had been stowed and the breast line had been released before the Collision. He also said that, by the time a painter is stowed, 30 fathoms of net or (185 feet) have been set and, on that basis, because the breast line had also been stowed, he was certain that at least 40 fathoms of net were set. I find this evidence credible because it is based on the time taken to perform tasks the Skiff Operator has repeated many times. For this reason, I believe that the Skiff was approximately 20 seconds into its set with approximately 250 feet of net deployed at the time of the Collision.

[28]            Captain Smith was not asked to estimate the time between his first observation of the Skiff after Fisher Lassie II began her set and the Collision. His evidence only indicates that 11 or 12 seconds passed between the time he first saw the Fisher Lassie II with her Skiff still attached and the Collision. This would mean that an even shorter period than 11 or 12 seconds separated the release of the Skiff from the Collision.

[29]            I have not found this evidence to be credible when compared to the Skiff Operator's more reasoned estimate. Further, it is my conclusion that Captain Smith did not actually see the Fisher Lassie II start her set and did not notice the Skiff for some seconds after she had been released. This could be explained by the fact that Captain Smith was looking to starboard where his net was setting or at his sonar. It may also be explained by the fact that Mr. Johannsen, who was the port lookout was not present in the Western Investor's wheelhouse when the Fisher Lassie II released her Skiff. This is evidenced by his statement that, before he left the wheelhouse, he surveyed the situation and saw no traffic which was going to be in the way of the Western Investor's set. I should note here that I have placed little reliance on the balance of Mr. Johannsen's evidence. He said that, after he reached the Western Investor's deck, he saw the Fisher Lassie II setting directly in front of the Western Investor. Yet, all the other witnesses placed the Fisher Lassie II off the Western Investor's port side. I do not mean to suggest that Mr. Johannsen was untruthful, but I think his perceptions may have been distorted by the fact that he observed the Fisher Lassie II while he was tripping over pipes on the Western Investor's deck.

Issue 3

[30]            The Skiff Operator said that the Skiff was stationary when the Collision occurred and Boyd Wilson agreed, although he acknowledged that he was not in a good position to gauge the Skiff's forward motion. Captain Smith, on the other hand, said the Skiff was moving at 1 knot, in reverse, into the path of the Western Investor. On this point, I have concluded that, since the Fisher Lassie II's net was at least 40 fathoms set, the Skiff, if it moved at all, was moving at significantly less than 1 knot by the time the Collision occurred.

Issue 4

[31]            It is also my conclusion that, even though he did not see the Skiff as soon as the Fisher Lassie II's set began, Captain Smith had sufficient time and space to avoid the Collision. He took 5 or 6 seconds to react after he saw the Skiff heading into his path. After those 5 or 6 seconds his bow was still 70 feet from the Skiff. In my view, his reaction time was slowed and his judgment about the appropriate response was adversely affected by the commercial reality of the Fishery. Because of the profit motive, he was not prepared to jeopardize the size of his set. His immediate response, as the Captain of a 300 ton trawler bearing down on an open aluminium Skiff, should have been to swerve to starboard and reduce speed. However, had he turned to starboard he would have reduced the circumference of his set and, in turn, the volume of his catch, and because he could slow down without risking the dimensions of his set, that was all he did. Captain Smith testified that he "sacrificed his set" when he put the Western Investor into reverse. However, I do not believe he ever had any intention of sacrificing his set.

Issue 5

[32]            Captain Smith was not alone in having his judgment clouded by the economics of the Fishery. The Skiff Operator also failed to take all reasonable steps to avoid the Collision because he was unwilling to jeopardize the Fisher Lassie II's Set. His commitment to the set was quite incredible given the personal risk that he and his helper faced in the Skiff. He could have moved the Skiff forward out of the Western Investor's path, but chose not do so for fear of tangling the net's lines in the Skiff's propellor. Because the Skiff was 19 feet long, he could probably have moved forward at least 15 feet without risk but he was not prepared to take even the slightest risk.

[33]            In my opinion, the Skiff Operator and Captain Smith both breached Rule 8 of the Collision Regulations ("Rule 8") which requires that the action taken to avoid a collision be positive and taken in ample time in a manner consistent with good seamanship.

[34]            The defendants rely on Rules 15, 16 and 17 of the Collision Regulations. They deal with power vessels which are crossing with a risk of collision. However, for the reasons given by Lowry J. in North Ridge, I am not persuaded that the crossing rules can sensibly be applied in a roe herring fishery. He said at paragraph 26 of his reasons:

It is difficult to imagine more congested waters than those on which a shotgun herring opening is in progress. The circumstances under which the vessels are operated while setting their nets at speed afford virtually no opportunity for the kind of assessment required to permit a vessel to determine whether she bears the obligations of a give-way or, for that matter, a stand-on vessel. Generally, the situation is changing virtually by the second as each vessel sets her entire net within a couple of minutes with none keeping a steady or settled course for any period of time.

Issue 6

[35]            The evidence is clear that, immediately after the Collision, the Fisher Lassie II's net was not in the Western Investor's wheel. The Western Investor's crew said its wheel was clear and the Skiff Operator said that he had clear lines when he was towing the net away from the Western Investor's bow. In my view, the Fisher Lassie II's net became tangled because Captain Smith committed three errors (the "Errors"). Firstly, he ordered his engineer to start the Western Investor's engine too soon after the Collision. Once he was told his wheel was clear, he did not give the Skiff sufficient time to tow the Fisher Lassie II's net to a safe distance from his trawler. This error probably occurred because he was angry that his set had been delayed and because he was anxious to close and purse his net. Again, in my view, it was the profit motive that caused him to act with inappropriate haste. This might not have mattered but for the second error which he committed when he asked his engineer to restart the main engine forgetting that it had stalled in reverse gear and remained in that gear. As a result of this error, Captain Smith backed the Western Investor into the Fisher Lassie II's net and, at this juncture, caught it in Western Investor's wheel. Knowing the net was caught in his wheel, Captain Smith committed the third error. He had his engine restarted (albeit in neutral) and then had it put in forward gear. Although his evidence was that he had hoped to free the net, his action did not have the desired effect. Instead, it further entangled the Fisher Lassie II's net in the Western Investor's wheel.

[36]            There is no doubt in my mind that Captain Smith's negligence was the immediate cause of the damage to the Fisher Lassie II's net.

Conclusions about Liability

[37]            Because of Captain Wilson's failure to keep a proper lookout, I have concluded that the Fisher Lassie II was 100% responsible for creating a situation of imminent peril in which there was the possibility of a Collision. However, the Collision was not the inevitable consequence of Captain Wilson's action.    Both the Skiff Operator and Captain Smith could have taken and were required to take evasive action which would have avoided the Collision. Because they both breached Rule 8, I have determined that the Skiff and the Fisher Lassie II are equally responsible for the Collision and for the fact that the Fisher Lassie II's net came to be in close proximity to the Western Investor.

[38]            However, the damage to the Fisher Lassie II's net was not an inevitable consequence of the Collision. It was Captain Smith's Errors which resulted in the damage to the net.    Accordingly, I have concluded that the Defendants are jointly and severally responsible for the damage to the Fisher Lassie II's net.

B)       Damages

Issue 7

[39]            If the Skiff assisted the Western Investor to complete her set, the evidence discloses that the assistance was minor and completely unintentional. The Skiff Operator made it clear that he was dismayed when he realized that his very slow towing of the disabled Western Investor after the Collision was moving it towards its Skiff. He had no intention of helping the Western Investor complete its set and there is no suggestion that that was Captain Wilson's objective. As well as being unintended, any assistance was insignificant and does not, in my view, entitle the Fisher Lassie II to claim a portion of the value of the Western Investor's catch.

Issue 8

[40]            Finally, I come to the Fisher Lassie II's claim to the value of one average catch and I have concluded that these damages cannot be recovered because they are too remote. The evidence was clear that, at the time the Fisher Lassie II's net was damaged, Captain Wilson had long since aborted his first set. He was unable to complete its set because he had been cut off by a boat called the Savage Eagle which had set in front of the Fisher Lassie II.

[41]            This fact distinguishes this case from others in which nets which contained fish were damaged in mid-set. In such cases the average catch for the fishery at issue was treated as a reasonable substitute for the loss of an actual catch. Unfortunately, in this case, there was no actual catch that was disrupted or lost because of the Western Investor's actions.

[42]            The Defendants did not dispute that the Fisher Lassie II would have had time to set her net once more if her net had been undamaged. The difficulty, in my view, is that it would be pure speculation to assign any measure of success to a second set. Although the herring were plentiful, numerous boats would have set their nets before the Fisher Lassie II could have begun a post-Collision set. In these circumstances, the Fisher Lassie II might well have had difficulty finding a spot where she could set over fish. In this regard, I am mindful of the comments made by Warren J. in Capilano Fishing Ltd. v. Qualicum Producer (The) [2000] B.C.J. No. 72, 2000 BCSC 91 (Q.L.), in which he said at paragraph 36: "From time immemorial fish have been among the more elusive of prey. The only certain catch is the one stored on board."

[43]            Bill Wilson testified that it cost $2,500.00 to $3,000.00 to repair the Fisher Lassie II's net. This was not disputed. Accordingly, the Defendants will be jointly and severally liable to the Plaintiffs for the sum of $3,000.00

                   "Sandra J. Simpson"                     

JUDGE

Ottawa, Ontario

December 17, 2001