Kajat v. Arctic Taglu (The), docket T-1724-94

T-1724-94

ACTION IN REM AGAINST

THE SHIPS "ARCTIC TAGLU" AND "LINK 100"

AND IN PERSONAM

BETWEEN:

BIRGIT KAJAT,

Plaintiff,

- and -

THE SHIP "ARCTIC TAGLU", THE OWNERS AND ALL

OTHERS INTERESTED IN THE SHIP "ARCTIC TAGLU",

THE SHIP "LINK 100", THE OWNERS AND ALL

OTHERS INTERESTED IN THE SHIP "LINK 100",

SEA-LINK MARINE SERVICES LTD.,

MALCOLM BRUCE BROPHY,

GARY McKRAE, and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

as represented by the MINISTER OF TRANSPORT,

Defendants.

REASONS FOR JUDGMENT

REED J.

     On July 21, 1993, at approximately 2:43 a.m., the fishing vessel Bona Vista collided with a tug barge combination, the Arctic Taglu/Link 100. The tug, the Arctic Taglu, was pushing the barge, the Link 100. The plaintiff's husband, Henryk Kajat, and five other people, including the six year old son of the plaintiff and her husband, were aboard the Bona Vista. All those abroad the Bona Vista perished.

     The collision took place near the eastern entrance to Active Pass in the Straight of Georgia. The Bona Vista was returning to Vancouver Harbour. Mr. Kajat had taken four visitors from Germany, his sister and her husband and their two teenage children, together with his own son, on a trip to the west coast of Vancouver Island. The vessel left Vancouver on the evening of July 14, 1993. On the evening of July 19, 1993, Mr. Kajat telephoned his wife from Ucluelet to say that they had finished their trip, and providing the weather was good, she should expect them home the following evening.

     The Arctic Taglu/Link 100 was en route from Vancouver Harbour to Schwartz Bay, Vancouver Island. The Arctic Taglu/Link 100 operated five days a week carrying trailers to Vancouver Island. It normally left Vancouver Harbour around 11 p.m., Monday to Friday nights, arriving in Schwartz Bay approximately four and a half to five hours later. It would then unload, reload and return to Vancouver Harbour. It was on one such voyage that the Arctic Taglu/Link 100 and the Bona Vista collided. The collision occurred when, as the two vessels were approaching each other on almost reciprocal courses, the Bona Vista suddenly made an abrupt turn to port across the bow of the Link 100. The Bona Vista was stuck amidship on its starboard side by the bow of the Link 100 and rolled underneath the barge. A question crucial to the plaintiff's claim is why the Bona Vista made this abrupt course change directly into the path of the Arctic Taglu.

Causes of the Accident - Liability

     Tug pushing barge combinations are uncommon on the west coast of British Columbia. The Arctic Taglu/Link 100 is the only one of its type in operation in the area. The lighting arrangement in use by the Arctic Taglu/Link 100 was confusing for mariners who had never seen it before. As a result its owners and operators adopted a practice of using a searchlight, mounted on the tug, to play forward along the length of the barge when vessels coming towards it seemed uncertain as to what they were encountering. Had the tug/barge combination been lit as a composite unit, it would have been immediately recognizable by mariners, as a single vessel of large size.

     Searchlights are often used to attract another vessel's attention to impending danger. The conclusion is inescapable that the collision between the Arctic Taglu/Link 100 and the Bona Vista occurred as a result of the use of the searchlight by the operator of the Arctic Taglu/Link 100, in a way that signalled a danger ahead to the Bona Vista. It turned abruptly to port to try to avoid that danger.

1. Vessel Descriptions - Approval of the Lighting for Arctic Taglu/Link 100

     The Bona Vista had a gross tonnage of approximately 14 tons and was 12.5 metres in length. The Arctic Taglu/Link 100 had a combined gross tonnage of approximately 2,634 tons (394.49 and 2,240 respectively). The tug and barge had a combined length of approximately 142 metres (31.12 metres and 111.25 metres respectively). The Arctic Taglu was originally an ice breaker. The Link 100 was a flat-topped barge, originally of United States registry, carrying the name Los Plumas. Both vessels were modified so that they might operate together as a tug pushing barge combination. The barge had a notch cut into its stern, into which the bow of the Arctic Taglu could fit. The barge was fitted with hydraulic rams, also called snubbers that connected to the tug by pressure applied against friction pads that were mounted on the tug. (This is not an exhaustive description of the modifications.)

     Sea-Link Marine Services Ltd., the owner of the Arctic Taglu/Link 100, initially contemplated using what was referred to in the evidence as an ÅIntercom systemÅ to connect the two vessels. Mr. Peter Brown is the president of Sea-Link Marine Services Ltd. On April 26, 1988, he wrote to Mr. Burnside, the Regional Manager, Ship Safety Branch, Transport Canada, to obtain an opinion on whether the tug and barge fitted with such a system would be considered a composite unit for the purposes of the Collision Regulations .¹ (The Coast Guard at the time was a part of Transport Canada). If the combination was classified as a composite unit, there was a possibility an additional crew member would have to be employed in manning the vessel. Mr. Brown's letter stated that since the tug could operate to either tow or push the barge, the tug did not become a composite unit with the barge. Mr. Burnside responded to Mr. Brown's letter stating that he did not agree but he was forwarding the materials that had been enclosed with Mr. Brown's letter to Ottawa for decision. The material enclosed included an Intercom sales brochure, documents prepared by the naval architects, Cleaver & Walkingshaw Ltd., concerning the modifications that were planned to the tug and barge, and guidelines issued by the United States Coast Guard concerning what was considered to be an integrated tug/barge combination in that jurisdiction.

     Mr. Burnside's opinion that the tug and barge would form a composite unit was shared by officials in Ottawa. An internal memorandum of May 31, 1988, from Mr. Stewart, Canadian Coast Guard Ship Operations, Ottawa, to a Mr. Flood also in the Ottawa office, documents this decision. That memorandum states that the tug and barge should carry lighting systems that would allow it to be lit as a composite unit when pushing ahead and to be lit as a traditional tug towing barge arrangement when used in the latter fashion. It is not clear from the evidence when this opinion was communicated to Mr. Brown.

     In any event, on June 13, 1988, Mr. Brown wrote to a different member of the Coast Guard, a Captain Keeper, in Vancouver. Mr. Brown sought approval for lighting arrangements that he proposed for the Arctic Taglu/Link 100. The letter stated that the Arctic Taglu and Link 100 would not be rigidly connected as a composite unit and that it was planned that the barge would carry two lighting systems, one for use in international waters (to comply with the international rules) and one for use in Canadian waters (to comply with the Canadian modifications). Both the international rules and the Canadian modifications thereto are part of the Collision Regulations.

     Mr. Brown did not send Captain Keeper any plans or material describing the snubber mechanism he planned to use for connecting the tug and barge. The mechanism was different in some respects from that on which the opinions of Mr. Burnside and Mr. Stewart had been based. Captain Keeper was not at the time aware of the earlier communication with Mr. Burnside. The lighting arrangements for the Arctic Taglu/Link 100 were approved by Captain Keeper, on June 20, 1988, on the basis of Mr. Brown's assertion that the tug and barge were not a composite unit. Captain Keeper wrote to Mr. Brown by letter dated June 20, 1988, indicating that he saw no problem with the lighting arrangements Mr. Brown was proposing. Mr. Brown was instructed, however, that the barge should be lighted only in accordance with the international rules and not in accordance with the Canadian modifications. This instruction appears to have been the result of a conversation Captain Keeper had with Mr. Wade in the Ottawa office.

     Subsequent to Captain Keeper's approval of the lighting, Mr. Wade, on June 28, 1988, sent a memorandum to Captain Keeper restating his earlier direction that the lighting on the Link 100 should accord with the international rules only and not with the Canadian modifications. Mr. Wade enclosed with his memorandum a copy of the May 31, 1988 memorandum from Mr. Stewart to Mr. Flood, and told Captain Keeper that from the diagrams they had seen at an earlier time, they had considered that when pushing ahead the tug/barge arrangement was a composite unit and should therefore display navigation lights as such. The memorandum continued:

Based on your inspection of the tug/barge it sounds as though it is not a composite unit which makes me question if we are both talking about the same arrangement. Please confirm.

If your tug/barge arrangement is not a composite unit and represents the traditional pushing arrangement, the tug would exhibit lights in accordance with Rule 24(c) and the barge would display sidelights in accordance with Rule 24(f)(i). ...

(underlining added)

     In fact Captain Keeper had not inspected the tug and barge. Captain Keeper had not seen any diagrams of the hydraulic ram connection that was proposed for the Arctic Taglu/Link 100. He was provided with lighting plans for approval, which carried the project title "Trailer Integrated Tug/Barge". A traditional tug pushing barge combination is one in which the tug and barge are alongside each other, tied together, with the stern propellers of the tug slightly beyond the stern of the barge. The tug in that configuration ÅpushesÅ the barge. The Arctic Taglu/Link 100 was not of this configuration. An arrangement of hawsers (mooring wires) did play a role in the connection of the Arctic Taglu and Link 100.

     Captain Keeper responded to Mr. Wade's June 28, 1988 memorandum on July 11, 1988. He advised Mr. Wade that the owner of the Arctic Taglu/Link 100 had decided not to proceed with the Intercom system but instead had incorporated a "traditional mooring arrangement" between the tug and the barge. He informed Mr. Wade that a unique feature of the system was that the tug fitted into a notch in the barge and that hydraulic rams were to be fitted to help compensate for the interaction of the tug with the barge in moderate seas. He stated that the rams were not mechanically connected to the tug and in "no way" was the barge "rigidly connected" to the tug by mechanical means, other than by traditional mooring wires. Captain Keeper was relying on information provided by Mr. Brown. He had never seen the rams in operation. They had not been installed at this time. He had not seen plans or other information concerning how they would operate. He had not attempted to compare the system that was to be installed with that considered earlier by Mr. Burnside and Mr. Stewart, which they had determined would connect the tug and barge as a composite unit. He knew that a system of hawsers or mooring wires was a part of the system.

     Captain Keeper inspected the Arctic Taglu/Link 100 on August 11, 1988, but not for the purpose of determining whether the unit was a composite unit for navigation lighting purposes. The lighting had by that time been approved and installed. He was asked by his superiors to inspect the visibility from the wheelhouse and the adequacy of the emergency towing, fire and life boat safety operations. At trial he stated that he observed the snubbers at that time to see if they operated, as he expected, but that he did not expect any movement between the tug and barge because the seas were calm. I do not believe the conclusion that he would have one draw, that is, that he addressed his mind, at that time, to the issue of whether or not the tug/barge combination constituted a composite unit for lighting purposes. The Arctic Taglu was inspected on an annual basis by the Coast Guard and safety inspection certificates were issued.

2. Composite Unit

     The system installed on the Arctic Taglu/Link 100 was different in some respects from the Intercom system described in the materials originally sent to Mr. Burnside. Mr. Brown had had a system custom made for the Arctic Taglu/Link 100. The reasons for doing so were: the Intercom system was more expensive than that eventually adopted; the Intercom system could not be ready in time for the planned entry into service of the Arctic Taglu/Link 100; the waters the Arctic Taglu/Link 100 would traverse were not so high as to require all the elements of the Intercom system.

     Captain Batchelor gave evidence that as a mariner the critical factor, when considering a tug and barge to be a composite unit, is the ability to unite them so as to avoid any independent lateral movement that could cause the navigation lights to be misaligned over the length of the tug/barge combination. In his opinion a slight horizontal deflection is not significant as this would emulate the longitudinal flexing of a ship. A "composite unit" is defined in the Collision Regulations² as:

a pushing vessel and an associated pushed vessel that are rigidly connected and that are designed as a dedicated and integrated tug and barge combination.

(underlining added)

     In the custom designed system, which was eventually fitted onto the Arctic Taglu/Link 100, the hydraulic rams do not connect to the tug in the same manner as described in the Intercom sales brochure and in the other materials that accompanied the letter of April 26, 1988 to Mr. Burnside, which he and Mr. Stewart reviewed. Hard rubber friction pads are mounted on the tug to which the rams connect. In both systems, however, the rams are not intended or designed to move as against the tug when the barge is being pushed. In the custom made system, the hydraulic rams on the barge are connected to the tug by the application of 20 tons pressure on each side. In normal operation there is no movement of the rams as against the tug. If it seems as though such is likely to occur (detected by a squealing noise the rams will make) operators are instructed to reduce speed or find a course in less heavy seas which minimizes or eliminates the possibility of movement occurring. Motion between the two can cause damage to the system and can be costly. It is clear that the two vessels are rigidly connected when the custom designed system is in use.

     In both the Intercom system and the custom designed system, the rams have an internal mechanism that allows the connected vessels to pivot about the axis of the rams and thus pitch independently. In both systems the tug can either push or tow the barge. In both systems what can be described as the lateral movement of the vessels is restrained so that the tug motions match the barge motions.

     Captain Batchelor's report describes the mechanism that is used to connect the Arctic Taglu/Link 100 in the pushing mode as follows:

The connection between the tug and barge is by way of a large flat ended "V" -shaped notch at the stern of the barge into which fits the bow of the tug. Once in the notch, two snubbers, (hydraulic rams) mounted on the stern of the barge, impinge on either side of the bow of the tug with a force of 3,000 p.s.i. from each direction. In addition, there are several wire mooring lines that run from the towing winch on the deck of the tug out through an arrangement of sheaves at the stern of the tug thence forward to the securing points on the stern of the barge as displayed in Drawing 817-1 "General Arrangement". With this arrangement, the two vessels are securely united only allowing for slight longitudinal movement between the two vessels.

. . . .

The combination of the construction of the notch, the action of the snubbers, and the wire ropes used to secure the "ARCTIC TAGLU" to the "LINK 100" preclude any horizontal motion between the two vessels. If the longitudinal action becomes too severe due to stress of weather then the pushing mode is discontinued and the "ARCTIC TAGLU" takes the "LINK 100" in tow in a conventional manner.

     It is clear that when the tug and barge were being used in the pushing configuration that they operated as a composite unit. The tug and barge were rigidly connected and they had been designed as a dedicated and integrated combination.

3. Expert Evidence

     Expert evidence concerning navigation lighting, navigation conduct and other related matters was called. Captain Wilson gave expert evidence at the request of the defendants. His demeanour on the stand demonstrated that he was not an objective and credible witness. Many of his answers on cross-examination were evasive. He was clearly acting as an advocate and his answers reflected this lack of objectivity. His evidence is not reliable. Captain Batchelor, on the other hand, answered questions in an open, considered and reasonably objective manner. He presented convincing evidence on, among other matters, the confusing nature of the lighting arrangement, the fact that the searchlights could be used in a manner that would impair one's night vision, the appropriate navigational conduct of a prudent mariner. His evidence is to be preferred to that of Captain Wilson.

4. Approved Lighting Arrangement

     I turn next to the lighting arrangement that was approved for the Arctic Taglu/Link 100 and the relevant Collision Regulations. As noted, if a tug pushing a barge is determined to be a composite unit the combination is required to be lit as a single vessel. Rule 24(b) of the Collision Regulations so provides.³ If the tug and barge are not classified as a composite unit, then, the tug is to be lit in accordance with Rule 24(c).

(c)      A power-driven vessel when pushing ahead or towing alongside, except in the case of a composite unit, shall exhibit:

(i)      instead of the light prescribed in Rule 23(a)(i) or (a)(ii), two masthead lights in a vertical line,

(ii)      sidelights,

(iii)      a sternlight.

(underlining added)

The barge that is being pushed ahead, under the international rules, is to be lit in accordance with Rule 24(f)(i):

24(f)          . . . .

(i)      a vessel being pushed ahead, not being part of a composite unit, shall exhibit at the forward end, sidelights,

. . . .

(underlining added)

The Canadian modifications to Rule 24 start with subsection (j):

Towing and Pushing_Canadian Modifications

24(j)      Notwithstanding paragraphs (e) and (h) [paragraphs (e) and (h) relate to vessels or objects being towed], within Canadian waters or fishing zones, where it is impracticable for a barge being towed to comply with paragraph (e) the barge shall exhibit the lights prescribed in paragraph (k) to (m).

(k)      Subject to paragraphs (l) to (n), every barge shall carry one all-round white light at each end of the barge.

(l)      Where two or more barges are grouped together, the group may be lighted as a single barge.

(m)      Subject to paragraph (n), where two or more barges are grouped together, the total length of the group exceed 100 metres and the group is lighted as a single barge, the group shall carry an all-round white light located as closely as possible at the middle point of the group, in addition to the lights prescribed in paragraph (k).

(n)      A barge being pushed ahead shall carry, instead of the all-round white lights prescribed in paragraph (k) and (m), white lights that show an unbroken light over an arc of the horizon of 225 degrees and are fixed so as to show the light from right ahead to 22.5 degrees abaft the beam on either side of the barge.

. . . .

(underlining added)

Subsection 3(3) of the Collision Regulations provides:

3. (3) Where there is any inconsistency between a provision of the Rules and a provision of the Rules that falls under the heading "Canadian Modifications", the latter provision prevails to the extent of the inconsistency.

     Mr. Brown in his letter of June 13, 1988, to Captain Keeper, advised that his intention was to light the tug in compliance with Rule 24(c) and to light the barge in compliance with both Rule 24(f) and Rule 24(n). He intended to operate the two barge lighting systems independently so that when in international waters the lighting would be in accordance with the international standard (Rule 24(f)) and when in Canadian waters the lighting would be in accordance with the Canadian modification (Rule 24(n)). As noted, Mr. Brown was instructed not to light the barge with alternative systems but to comply only with the international requirements. Mr. Wade's position was that the Canadian modifications only applied when it was impracticable to comply with the international rules.

     The relevant provisions of the Collision Regulations are not a model of clarity. Mr. Wade's interpretation was based on Rule 24(j). Rule 24(j), however, only applies to barges being towed, not to barges or vessels being pushed. I accept that there is merit in having vessels lit in accordance with international rules, to the greatest extent possible, because Canadian waters are frequented by vessels from many countries. However, Mr. Wade's assertion that the intention was to depart from the international rules for both barges towed and barges pushed ahead, only when it is impracticable to comply with the international rules, is not reflected in the text of the rules. His view that the international rules take precedence over the Canadian modifications does not accord with the text of the Regulations. Mr. Brown's original proposal would appear to be the correct interpretation. Mr. Brown complied with the Coast Guard's instructions and lit the barge in accordance with 24(f)(i).

     Captain Batchelor's evidence, which I find reliable, was that had the Arctic Taglu/Link 100 been lit in accordance with the Canadian modifications, a mariner would have had a better appreciation of the direction of travel and the aspect of the Arctic Taglu/Link 100. An additional white light would have been mounted on the barge. It is clear, in any event, that the confusion, which existed as a result of the lighting arrangement that was approved, would have been obviated had the Arctic Taglu/Link 100 been lit as a composite vessel.

5. Searchlight Use

     The lighting on the Arctic Taglu/Link 100 was confusing to mariners who had never encountered that vessel at night before. The owner and operators of the Arctic Taglu/Link 100, almost from the beginning of its operation, adopted the practice of panning the searchlights on the Arctic Taglu/Link 100 forward up and down the length of the Arctic Taglu/Link 100 when mariners appeared to be confused. This occurred more often in the summer when more fish boats and recreational vessels were travelling at night, than it did at other times of the year. A confused vessel was identified by its erratic behaviour, e.g., one moment heading straight for the Arctic Taglu/Link 100 and the next not. Captain Batchelor gave evidence, on the basis of his observations of October 17, 1996, that when confronted with the Arctic Taglu/Link 100 lighting arrangement for the first time, he would have been confused and unsure of what vessel or vessels were approaching and in what direction they were proceeding. The side lights on the barge were mounted on standards on the deck of that barge. Captain Batchelor stated that the initial sighting would be the masthead lights which indicate a tug with a tow (two masthead lights, one above the other, with no forward masthead light). When the sidelights become visible, from a distance, this could be interpreted in a number of ways and would probably be interpreted as a tug towing a barge where the barge is not tracking in alignment with the tug, as often happens. A third sidelight would subsequently appear depending on the angle at which the two vessels were approaching each other. Two red and one green sidelight or two green and one red sidelight would be seen at the same time. Mr. Kaverek gave evidence that he found the lights confusing because he initially interpreted the two sets of sidelights as two vessels, while his radar told him there was only one. His confusion was compounded when he subsequently saw two port side red lights and one green light.

     Insofar as the use of the searchlight on the Arctic Taglu is concerned, operators were instructed to aim the searchlight forward along the centre line of the barge. On the night in question, the light was panned up and down the trailers that were being carried on the port side of the vessel, not down the centre. The light was operated by hand from inside the wheelhouse of the Arctic Taglu. The height of the light and the direction in which it was aimed was controlled manually by pulling on and twisting the appropriate handle.

     As Captain Batchelor's evidence demonstrates, the searchlight could easily be aimed in a way that impaired the vision of the operator of the approaching vessel. More importantly, however, the operator of that vessel could interpret the panning of the searchlight as an indication that there was something in the water ahead that he could not see and that was a danger to his vessel. Rule 36 of the Collision Regulations provides that if it is necessary to attract the attention of another vessel, a vessel "may direct the beam of her searchlight in the direction of the danger, in such a way as not to embarrass any vessel".⁴ Both Mr. Parkin and Mr. Kaverek interpreted the use of the searchlight by the Arctic Taglu/Link 100 as signalling danger when they encountered it. Mr. Kaverek's evidence was that searchlights would often be used by tugs, for example, towing a log boom, to illuminate the logs behind them as a courtesy to an oncoming vessel because the logs would not show on the radar, and they were a danger for the oncoming vessel. Mr. Parkin gave evidence that he did not know what the operator of the Arctic Taglu/Link 100 was doing when he panned the searchlight forward along the side of the Arctic Taglu/Link 100. He thought the operator was trying to show him something in the wake such as a tow cable that he could not see. Both Mr. Parkin and Mr. Kaverek interpreted the use of the searchlight by the Arctic Taglu/Link 100, as a signal that there was a danger on the port side of that vessel. They both decided to make an abrupt turn to port, full throttle ahead, across the bow of the Arctic Taglu/Link 100 to avoid the danger that they thought lay ahead. This evidence is not direct evidence of what occurred in the case of the Bona Vista. It is evidence, however, that demonstrates that experienced mariners could interpret the use of the searchlight by the Arctic Taglu/Link 100 as a signal that danger lay ahead on the port side of that vessel. The evidence also demonstrates that, in such circumstances, experienced mariners might make what otherwise would seem to be an irrational decision and turn abruptly to port across the bow of the Arctic Taglu/Link 100, to avoid the danger they thought lay ahead. The evidence of what occurred in the case of the Bona Vista comes from Mr. McKrae.

6. Mr. McKrae's Evidence

     Mr. McKrae, the mate on the Arctic Taglu/Link 100, is the only witness to the accident still alive. He was the only person in the wheelhouse of the Arctic Taglu at the time of the accident. I found the evidence he gave at trial, and on discovery, in some respects, to be unreliable. I do not believe he was telling the truth when he said he never discussed the accident with Mr. Brown shortly after it occurred. I do not believe his evidence concerning the distance which the Bona Vista was ahead of the Arctic Taglu/Link 100 (one mile) when he shone the searchlight. I do not believe his estimate of the distance that existed between the two vessels, at which they would have passed, had the Bona Vista not made its abrupt turn to port (600 feet). His evidence concerning the distances, in all the circumstances of the accident, is not credible. His description of the accident shortly after it occurred, as reported by Mr. Brown, is accepted as more accurate. Also significant is the fact that the original notes for the Arctic Taglu's log for the night of the accident have disappeared.

     Mr. Brown's evidence was that Mr. McKrae reported to him that he had made two relatively small course alterations to starboard, totalling about 10 degrees, just before the accident. In response to these alterations the fish boat, the Bona Vista, just kept coming. Mr. Brown's evidence on discovery was that:

... It appeared to Mr. McKrae that the fish boat was going to safely pass down his port side. When the fish boat was in the -- or just -- prior to the fish boat getting immediately forward and to port of the "Link 100". He shone the searchlight over the barge to show the barge and the cargo on it, which helps other vessels see what's there and what's coming, and that's a practice that has been used ever since we went into operation, help illuminate it. He did that. And immediately after that the "Bona Vista", who was now immediately off our port bow, swung across the bow of the "LINK 100", and the collision occurred.

Q Did Mr. McKrae tell you how far apart they were going to be when they passed?

A He figured at somewhere probably in the order of 100 feet-plus, as I recall.

⁵

. . . .

Q And did you ask him about any changes in his speed?

A I'd asked him if he slowed down and he said, no, he hadn't until the "BONA VISTA" made the manoeuvre that put him directly in front of the barge.

Q Did you ask him the time lapse between when he shone his searchlight down the barge and the "BONA VISTA" changing its course?

A Not specifically, but I gather it was in very close proximity to one another.

Q What did you gather that from?

A The fact that he told me that he had turned the searchlight on and shone it on the barge and it was very shortly after that the "BONA VISTA" made its course change and pulled up in front of the barge.

⁶

The conclusion is inescapable that it was the use of the searchlight, when the Bona Vista was approaching and close to the Arctic Taglu/Link 100, that caused the Bona Vista's abrupt turn to port and its attempt to cross, at full throttle, in front of the bow of the Arctic Taglu/Link 100.

7. Other Circumstances

     I turn then to some of the other circumstances surrounding the accident. The Bona Vista was not itself properly lighted at the time of the collision. The operator of the "Tyee No. 1", a fish packer that overtook the Bona Vista on its entrance to Active Pass, and which preceded it through Active Pass, reported to Vessel Traffic Services (VTS) that a fish boat was coming through the pass and was running without proper navigational lights. It was running with bow (docking) lights and a mast light. This information was relayed to the Arctic Taglu. Mr. McKrae's evidence was that as far as he was concerned this improper lighting caused him no concern. He indicated that fish boats ran with this kind of lighting all the time. He was not confused or misled by the lighting; he was able to ascertain the Bona Vista's course and speed without requesting the presence of a second person in the wheelhouse with him.

     When there is fog or mist, white lights at the bow of a vessel can impair the operator of that vessel's vision because of "backscatter". On the evening in question, although the weather for the general area included isolated showers, the conditions around the area of the collision were good, the sea was calm and the visibility was clear. I cannot conclude that the use of the bow lights played a role in the collision.

     The Bona Vista because of its small size was not required to participate in the VTS system. There were two radios on board the Bona Vista. It seems probable that one was tuned to channel 16, the Coast Guard emergency channel. A prudent mariner, even a non-participant in the VTS system, would monitor the VTS channel when travelling through Active Pass, although according to Captain Batchelor many do not. Whether Mr. Kajat was monitoring the VTS channel is unknown. Mr. McKrae's evidence, however, was that the Bona Vista's course was normal. It was not erratic. It gave him no cause for concern and he thought the two vessels would pass safely.

     Mr. McKrae's evidence was that he did not try to contact the Bona Vista by radio because his experience was that it was almost impossible to contact fish boats who are non-participants in VTS unless you know the name of the vessel. I cannot conclude that Mr. McKrae's failure to try to contact the operator of the Bona Vista by radio was negligent.

     Mr. Kajat was an experienced and well trained navigator. Mr. Zemojtal's evidence shows him to have been careful and prudent. On the night in question the Bona Vista was equipped with radar and it was in use.

     Mr. Kayak was the only person aboard the Bona Vista with navigational experience. The voyage from Ucluelet to the place of collision would take about eighteen hours for the Bona Vista to complete. I reject counsel for the defendants' hypothesis that Mr. Kajat was not in the wheelhouse at the time of the accident but had gone into the forecastle to sleep. Counsel for the defendants' hypothesis is based on the fact that when the bodies were removed from the vessel all except the six year old boy were found in the forecastle and the door thereto was jammed shut. The evidence was that it was Mr. Kajat's practice to sleep on a bunk behind the wheel in the wheelhouse, at all times, including when others were navigating the vessel. The evidence is that there was only space for three, perhaps four, if two are skinny, to sleep in the forecastle and that Mr. Kajat's practice was to leave the door thereto (including the hinged top) open when people were sleeping below, to allow for ventilation. The location of the bodies after the collision, when the vessel had been rolled under the bow of the Link 100 coming to rest upside down on the starboard side of that vessel, is not reliable evidence of where the respective individuals were immediately before the accident.

     It would be out of character for Mr. Kajat to have left the wheelhouse. It would have been out of character for him to have entrusted the wheel to another (e.g., his brother-in-law) in such close proximity to Active Pass. Those who observed the navigation of the Bona Vista as it entered the Active Pass and on leaving it (Mr. Helin, Mr. McKrae) described it as normal. While the voyage from Ucluelet, if it was undertaken in a continuous fashion would have been eighteen hours, there are long stretches when it would have been possible for Mr. Kajat to sleep while one of his adult relatives (albeit newly trained) manned the wheel. At the same time, I am not prepared to discount his fatigue as having some role in the accident.

     According to Mr. McKrae's report to Mr. Brown, the Bona Vista and Arctic Taglu/Link 100 were going to pass with approximately 100 feet between them. Captain Batchelor gave evidence that a safe passing distance was usually considered to be twice the length of your vessel. For the operator of the Arctic Taglu/Link 100 this would be approximately 800 feet, although I understand that 600 - 700 feet was acceptable.

     When the Bona Vista was first sighted by the Arctic Taglu/Link 100, as it exited Active Pass, the Bona Vista would have been on its starboard side. Under the collision rules the Arctic Taglu/Link 100 thereby became the "give way" vessel and the Bona Vista became the "stand-on" vessel. In such a situation the Arctic Taglu/Link 100 was obligated to keep out of the way of the Bona Vista and the Bona Vista was obligated to maintain its course and speed.⁷

     At the time of the collision the two vessels were passing port to port. Neither vessel navigated in accordance with the strict wording of the 'Rules of the Road'. The Arctic Taglu/Link 100 did not reduce its speed, nor take early and substantial action to keep well clear of the Bona Vista. Captain Batchelor gave evidence that the Arctic Taglu/Link 100 should have made a substantial course change to starboard by at least 0238 hours. The Bona Vista appears to have made some alteration to port despite the obligation to maintain course and speed.

     At the time of the collision Mr. McKrae states that he believed the Arctic Taglu/Link 100 to be the "stand on vessel". His evidence as to whether the Bona Vista was off the port or starboard bow of the Arctic Taglu/Link 100 when he first saw her and whether he knew in what direction she was going is somewhat inconsistent. I conclude that he sighted the Bona Vista off the starboard bow and knew she was proceeding in a direction that constituted a crossing situation under the Rules, a situation in which the Arctic Taglu/Link 100 would be the "give way" vessel. Once a vessel becomes a "give way" vessel, according to the rules, it remains such until the two vessels pass safely. I reiterate that Mr. McKrae's evidence was that he was not concerned about the course the Bona Vista was navigating. It was the course vessels heading for Vancouver took all the time. I note that the Bona Vista was not headed for the same destination as the "Tyee No. 1". Both the Arctic Taglu/Link 100 and the Bona Vista navigated so as to get themselves into a close quarters situation.

     Insofar as the Arctic Taglu/Link 100 is concerned, the fact that there was only one person on watch in the wheelhouse at the time undoubtedly contributed to the development of the close quarters situation. Section 7 of the Ship's Deck Watch Regulations, C.R.C. c. 1481 provides that a vessel the size of the Arctic Taglu should have a deck watch comprised of two people, one of them being in charge. Captain Batchelor and Mr. Lorenz, as well as other witnesses gave evidence that there should have been two people on watch. Captain Hill was the most emphatic in this regard.

8. Radar Tracking Information

     The location of the two vessels was tracked at five minute intervals by radar operated by VTS. Charts were put into evidence that had straight lines drawn between these points. The lines are based on an assumption that the vessels travelled at a constant course and rate of speed between the two points. The lines are not a record of the actual path travelled by the vessels between the two points. The joining of the points by straight lines gives the impression that the vessels changed their courses at the points. In fact the vessels could have changed direction before or after the particular point and in a much more gradual fashion than the straight lines on the chart indicate. In addition, the radar fixes themselves identify probable locations. The vessel could be within 700 feet, in any direction, of the point plotted although its most probable location is near the centre of the circle described by the 700 foot radius. The Arctic Taglu was on autopilot until approximately two miles distant from the Bona Vista. The Bona Vista being a much lighter vessel that the Arctic Taglu/Link 100 had less ability to maintain directional stability than the latter.

     It is not known exactly where the two vessels were during the minutes immediately preceding the collision. Counsel for the defendants (Sea Link defendants), mainly through cross examination of some of the plaintiff's witnesses and on the basis of assumptions, attempted to construct a theory of the accident which I reject. It was an attempt to build a very precise analysis on a foundation of imprecision.

Conclusion Re: Liability

     The tragedy was caused by the operator of the Arctic Taglu/Link 100 using the searchlight to pan forward, up and down the length of the port side of the Link 100 when the Bona Vista was close and approaching. This signalled a danger ahead to the Bona Vista and caused it to turn abruptly to port to attempt to avoid the anticipated danger.

     The use of the searchlight by the operator of the Arctic Taglu, to reveal the size and configuration of the Link 100, was a practice adopted by the owners and operators of that vessel because the lighting arrangements in use were confusing to mariners who had not seen them before. The failure of the Coast Guard officials, specifically Captain Keeper, to adequately investigate whether or not the Arctic Taglu/Link 100 constituted a composite unit, in its pushing mode, was a significant contributing factor to the accident. Mr. Brown's less than candid representations to Captain Keeper played a role. Mr. Wade's misinterpretation of the lighting requirements for barges being pushed by tugs and the alleged non-application of the Canadian modifications likely also played some role. The failure of the Arctic Taglu/Link 100 to keep further away from the Bona Vista and the failure of its owners and operators to ensure that two people were on watch at all times contributed to the accident. I cannot discount the fact that at the time of the collision Mr. Kajat was likely somewhat fatigued and that the failure to navigate a course that kept the Bona Vista at a greater distance from the Arctic Taglu/Link 100 also contributed to the accident. As between the defendants and the plaintiff, I find the defendants' faults were 85% of the cause of the accident and Mr. Kajat was 15% at fault.

Crown Liability

     Counsel for Her Majesty the Queen in Right of Canada ("Crown") argues that, in any event, no liability on her part exists because: (1) while Captain Keeper may have had a duty to the owners of the Arctic Taglu/Link 100, he did not owe a duty of care to Mr. Kajat; (2) he was not acting in his capacity as a steamship inspector under section 311 of the Canada Steamship Act when he approved the lighting plans; (3) under subsection 311(1) of the Canada Shipping Act, a steamship inspector is required to satisfy himself that the navigation lights are in accordance with the Collision Regulations and Captain Keeper satisfied himself that this was the case on August 11, 1988; (4) all that is required of Captain Keeper in reviewing the plans is that he act reasonably and in good faith and this he did; (5) insofar as Mr. Wade is concerned, he does not have a duty to be legally correct in his interpretation of the regulations _ his duty is to act reasonably and in good faith and this he did.

     The applicable tests for determining Crown liability are set out in [1984] 2 S.C.R. 2">Kamloops v. Neilsen, [1984] 2 S.C.R. 2, and Just v. British Columbia, [1989] 2 S.C.R. 1228. In the former, quoting Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), it was held⁸ that one must ask whether: (1) there was a sufficiently close relationship between the parties so that in the reasonable contemplation of the government decision-maker carelessness on its part might cause damage to the plaintiff; and, if so, (2) are there any considerations that ought to negate or limit the scope of that duty, the class of persons to whom it is owed or the damages to which a breach of the duty may give rise? In answering these questions an examination of the relevant legislation is important and, particularly, whether the decision in question is an operational or policy decision. In the Just decision the principles set out in [1984] 2 S.C.R. 2">Kamloops were approved and explained further. It is sufficient to quote from the headnote:

... As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists, the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.

In determining what constitutes a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons at a lower level of authority. The characterization of such decisions rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of the standard of care required of the government agency must be considered.

The manner and quality of an inspection system is clearly part of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment. The standard of care imposed upon the Crown might not be the same as that imposed upon an individual. The frequency and method of inspection must be reasonable in light of all the surrounding circumstances. The governmental agency should be entitled to demonstrate that, balanced against the nature and quantity of the risk involved, its system of inspection was reasonable in light of all the circumstances, including budgetary limits and the personnel and equipment available to it.

(underlining added)

     Counsel for the Crown referred to a number of cases: [1983] 1 S.C.R. 205">Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; G. (A.) v. Supt. of Fam. & Child Service, [1990] 1 W.W.R. 61 (B.C.C.A.); Swanson Estate v. Canada (1991), 80 D.L.R. (4th) 741 (F.C.A.); Inland Feeders Ltd. v. Virdi (1981), 32 B.C.L.R. 451 (B.C.C.A.); Lake v. Collision Outfitters Ltd. (1990), 58 B.C.L.R. (2d) 22 (B.C.S.C.); [1936] S.C.R. 88">Harris v. The Law Society of Alberta, [1936] S.C.R. 88. None of these decisions derogate from the principles set out in the [1984] 2 S.C.R. 2">Kamloops and Just decisions. Some of them were decided at an earlier time than [1984] 2 S.C.R. 2">Kamloops and Just and, therefore, their weight must be assessed with that in mind. Some relate to statutory provisions and duties that are quite different in character from that in issue in this case. Some are decided by courts other than the Supreme Court of Canada. Insofar as the Swanson Estate decision is concerned, I think that it is important to note that the standard of care expected of a government inspector was stated to be that of a reasonable person. The Court of Appeal, at 752, stated:

The government is not an insurer; it is not strictly liable for all air crashes, only for those caused by the negligence of its servants. The standard of care required of these inspectors, like every other individual engaged in activity, is that of a reasonable person in their position. What is required of them is that they perform their duties in a reasonably competent way, to behave as would reasonably competent inspectors in similar circumstances, no more and no less. In evaluating their conduct, courts will consider custom and practice, any legislative provisions and any other guidelines that are relevant. The risk of harm and its severity will be balanced against the object and the cost of the remedial measures. In the end, the court must determine whether the employees of the defendant lived up to or departed from the standard of care demanded of them, in the same way as in other negligence cases: see, generally, Fleming, The Law of Torts, 7th ed. (Sydney: Law Book Co. Ltd., 1987), at p. 96.

(underlining added)

     The purpose of navigation lights (sidelights) is to signal to other vessels on the water attributes of the vessel carrying those lights as well as the position and movement of the vessel in relation to the observer. The owner of the vessel (the Arctic Taglu) was obligated to comply with the directions of the Coast Guard, if he wished to operate the Arctic Taglu/Link 100. It was reasonably foreseeable that if those making the decision as to what lights a vessel should carry acted carelessly, harm could arise to individuals in the position of Mr. Kajat. A duty of care existed.

     It seems obvious that the plan approval process, engaged in by the Coast Guard, was designed to allow vessel owners an opportunity to obtain approval before proceeding with installation of the relevant components or equipment on a vessel, and thereby to avoid spending money needlessly, in a case where approval would not have been subsequently forthcoming. Thus, as a matter of practice, the plan approval was part of the approval process under subsection 311(1). Once plan approval is given a ship owner proceeds in accordance with that approval. In this case, Mr. Brown changed the lighting arrangement he had planned to install because he was told by the Coast Guard to do so.

     As noted, I am not persuaded that Captain Keeper, when he travelled on the vessel on August 11, 1988, addressed his mind to whether the vessel was a composite unit for lighting purposes. That decision had already been made by him at the plan approval stage. He was asked by his superiors to investigate very specific elements on August 11, 1988 _ visibility from the wheel house, emergency, fire and lifeboat equipment and procedures. I do not believe him when he says he looked at that time to see if the snubbers worked, as he thought they would, in order to confirm his earlier decision regarding the lighting arrangement.

     The decision to approve the lighting was clearly an operational and not a policy decision. I have been referred to no explicit statutory exemption from liability that would excuse carelessness on the part of those approving the lighting arrangement. Subsection 311(1) of the Canada Shipping Act provides:

When a steamship inspector inspects any steamship, he shall satisfy himself that the steamship has the navigation lights and other equipment required under the Collision Regulations and that it has the proper certificated officers, navigating and engineering, required under this Act, and a certificate shall not be given to any steamship unless it has the navigating equipment and certificated officers.

(underlining added)

While the statutory requirement is that the inspector "shall satisfy himself", that does not mandate a completely subjective decision. The decision must be made in a reasonable and not a careless way.

     Mr. Lorenz, the Superintendent for Technical Operational Services, Ship Safety Branch, Western Region, gave evidence regarding inspections and plan approval. He stated that in order to determine the appropriate lighting, as required by the Collision Regulations, the Ship Safety Branch must first determine whether or not a tug and barge combination is a composite unit and then determine the appropriate lighting. He stated that to properly assess whether the vessels were a composite unit, he would expect that the plans would be examined and the vessels physically inspected. (In his opinion, technically, there was only a requirement for plan approval of the barge.) Mr. Lorenz gave evidence that if he were the inspector he would definitely want to see how the tug and barge worked together before approving the lighting.

     It is clear that Captain Keeper acted carelessly when he approved the lighting on the basis of Mr. Brown's representations alone, especially, in view of the fact that he was alerted by Captain Wade to the fact that an earlier snubber type connection for these same two vessels had been considered by those reviewing the plans to constitute the tug and barge, in the pushing mode, a composite unit. Unfortunately, Captain Keeper was too naive and trusting. He accepted Mr. Brown's representations at their face value. I have no doubt that both Captain Keeper and Captain Wade acted in good faith. There was however negligence on the part of Captain Keeper in not doing a more thorough investigation before approving the lighting system.

     I turn then to the argument that in interpreting the Collision Regulations, Captain Wade did not need to be legally correct, he need only act honestly and in good faith. Counsel refers to the [1936] S.C.R. 88">Harris decision, the Inland Feeders decision and the Lake decision (supra). [1936] S.C.R. 88">Harris is a 1936 decision and it concerns a decision of the benchers of the Law Society of Alberta who misinterpreted the law in the course of exercising a judicial function. The Inland Feeders case, a 1981 decision, dealt with a situation in which the plaintiff had relied upon the opinion of the director of planning for the defendant regional district with respect to the interpretation of zoning by-laws. In both the [1936] S.C.R. 88">Harris and Inland Feeders cases the court found that there was no carelessness on the part of the decision-makers, although their decisions were wrong. In the Lake case a failure to ensure that a guide carried the minimum insurance required by-law was found not to establish liability. The decision in question was held to be a policy decision, not an operational one, and there was no evidence that the plaintiff's husband had relied on the Crown to ensure that the guide was insured. These cases do not assist the Crown in this case. Captain Wade stated that in his view the international rules took precedence over the Canadian modifications. This is completely contrary to the text of those Regulations. He stated that the Canadian modifications only applied to vessels being pushed when it was impractical to follow the international rules. The rules, even on a superficial reading, are not susceptible to that interpretation. It is hard to believe that Captain Wade even turned his mind to the text of the Regulations. Rather, he appears to have simply proceeded on the basis of his personal assumption as to what they said. Captain Wade was careless in his interpretation of the Collision Regulations.

Damages - Quantum

     The plaintiff brings her action, pursuant to Part XIV of the Canada Shipping Act, for damages arising as a result of the wrongful death of her husband. Section 646 and subsection 647(2) are the relevant provisions.⁹ Counsel argues that the principles applicable to provincial fatal accidents legislation, such as the British Columbia Family Compensation Act, R.S.B.C. 1979, c. 120, can be useful guides in interpreting subsection 647(2). I agree. Under such legislation, dependants of a deceased are entitled to compensation for the loss of the pecuniary benefit they would have received but for the death of the deceased. Compensation is assessed on the basis of the actual loss suffered by the dependants, as distinct from their needs. These principles are set out, for example, in the Alberta Court of Appeal decision in MacDonnell v. Maple Leaf Mills Ltd. (1972), 26 D.L.R. (3d) 106, at 110, with reference to the Fatal Accidents Act of that province.¹⁰

     In the present case, the plaintiff claims damages for the loss of financial support and special damages for estate and funeral expenses. There is also a separate claim for a management fee. Two experts were called to give opinions as to Mrs. Kajat's loss of past and future financial support. The plaintiff called Mr. John McKellar, an actuary, and the defendants called Mr. Douglas Hildebrand, an economist. Both experts used a method to calculate loss of support that was set out by the British Columbia Court of Appeal in Cogar Estate v. Central Mountain Air Services Ltd. (1992), 72 B.C.L.R. (2d) 292, at 295. I accept that method as appropriate. The method is comprised of the following steps. A calculation is made of the probable amount of the deceased's disposable income had he lived. This can be broken into two time periods _ the probable disposable income up to the date of the trial and the probable disposable income thereafter. A reduction is then made for the personal consumption of the deceased and, in this case, the amount that would have been consumed by Jan. Contingencies are then reviewed to determine if a further reduction is required. In this way the probably loss to the plaintiff as a result of the death of her husband is determined.

     In order to determine how much should be awarded by the Court to compensate for this loss, a lump sum is calculated that is sufficient, when invested, to give the plaintiff financial support comparable to that which she lost as a result of the death of her husband. In [1978] 2 S.C.R. 342">Keizer v. Hanna, [1978] 2 S.C.R. 342, the following comments are found:

The appellant is entitled to an award of such amount as will assure her the comforts and station in life which she would have enjoyed but for the untimely death of her husband. If one is speaking of contingencies, I think it is not unreasonable to give primary attention to the contingencies, and they are many, the occurrence of which would result in making the award, int he light of events, entirely inadequate. An assessment must be neither punitive nor influenced by sentimentality. It is largely an exercise of business judgment. The question is whether a stated amount of capital will provide, during the period in question, having regard to contingencies tending to increase or decrease the award, a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased.

The proper method of calculating the amount of a damage award under The Fatal Accidents Act is similar to that used in calculating the amount of an award for loss of future earnings, or for future care, in cases of serious personal injury. In each, the Court is faced with the task of determining the present value of a lump sum which, if invested, would provide payments of the appropriate size over a given number of years in the future, extinguishing the fund in the process. This matter has been discussed in detail in the decisions of this Court in Andrews v. Grand & Toy Alberta Ltd.; Thornton v. The Board of School Trustees of School District No. 57 (Prince George); and Arnold v. Teno, which are being delivered with the decision in the present case.

     Mr. McKellar and Mr. Hildebrand used this "Exhausting Fund Principle" in calculating the awards each considered should be made. Mr. McKellar states in his report:

... Under this method, given period of loss, a lump sum is determined such that the lump sum and the investment income resulting from the investment of such a lump sum, is exactly sufficient to meet the assumed financial support over the given period, and nothing remains of the lump sum at the end of the period.

     Once the amount of such fund has thus been determined, the Court must consider the taxes payable on the income generated and "gross-up" the capital amount to ensure the plaintiff a net income stream equivalent to the pecuniary benefit the deceased otherwise would have provided. Lastly, the Court is vested with a discretion to vary the amount so calculated to ensure that it is fair and just.¹¹ That is, if the award that has been calculated is inordinately high, it may be adjust downward. If it is too low it may be adjusted upwards.

     I turn then to the evidence. Mr. Kajat was a self-employed commercial diver. He worked harvesting, both red and green sea urchins, sea cucumbers and geoducks (large clams). He was well-educated, intelligent, hard-working and entrepreneurial. He was well trained as a diver and a very productive seafood harvester. Mr. Rajkowski's evidence was that Mr. Kajat could harvest three to four times the amount of other divers, that he had "better than double the average level of productivity".

     Mr. and Mrs. Kajat emigrated to Canada in September 1989. They brought with them enough funds to purchase part of a fishing boat and part of a salmon licence. At the time of his death Mr. Kajat had acquired his own vessel, a sea cucumber licence and a red sea urchin licence. He was attempting to purchase a green sea urchin licence. It normally takes two to three months to meet the quota limit allowed under a red sea urchin licence. Sea cucumbers have a short harvesting season of two weeks per year, and the quota limit allowed under a licence can usually be met in two to three working days. Mr. Kajat had the opportunity to work for Mr. Rajkowski harvesting geoducks when he was not working for himself. The geoduck season is a year round one. Mr. Rajkowski gave evidence concerning the substantial income that can be made by a commercial diver who is a seafood harvester off the British Columbia coast.

     From the time of the acquisition of the Bona Vista in February 1992 until the accident in July 1993, Mr. and Mrs. Kajat were able to purchase a family home and pay off family and bank loans. At the time of the accident they had accumulated assets valued at $409,000.00. They had debts totalling approximately $196,000.00 and their family net worth was approximately $213,000.00. In his 1991 Income Tax Return, Mr. Kajat reported net earnings of $33,364.00. In his 1992 Income Tax Return, Mr. Kajat reported net earnings of $34,233.00 from his fishing income plus $2,856.00 in unemployment insurance benefits. Although income tax returns can provide a convenient means of proof of probable future income, they are not necessarily conclusive evidence of the value of a deceased's disposable income and his future income stream.¹² This is particularly true, in this case, because the immediately preceding year to the year of Mr. Kajat's death was the start up year of his own business.

     Estimating lost or future income is always somewhat of a speculative exercise.¹³ In the case of a self-employed person the difficulties are compounded. On the basis of the evidence I conclude that it is probable that Mr. Kajat would have earned $50,000.00 in 1993, $75,000.00 in 1994, $100,000.00 in 1995 and would have been earning $150,000.00 a year by 1996. In each case net of expenses but before the payment of taxes.

     Seafood harvesting is, physically, a very arduous job. Mr. Zemojtal gave evidence that at 50 years of age he was still diving and that he intended to continue to do so. He knows others, even older than he who continue to dive. Mr. Kajat spent long periods of time away from his family while engaged in seafood harvesting. Mrs. Kajat testified that it was her husband's future goal to start a business on land once he was satisfied that the income from his seafood harvesting business was stable and secure. When the business was secure, Mr. Kajat planned to manage that business from land and dive only during peak periods. Even if Mr. Kajat stopped working as a diver in the seafood harvesting business around age 50, I am persuaded that his income would not have dropped. He would have continued to manage the business he had built, from land, supplementing that income with some other land based business. The evidence shows him to have been a very hard working, energetic and entrepreneurial individual. His income should be calculated to a retirement age of sixty-five, initially from seafood harvesting directly, and later from managing his seafood harvesting business as well as from other land based business or businesses. Being self-employed, Mr. Kajat may have been an active income earner well past the age of 65. For the purpose of this damage assessment, however, I assume a retirement of age 65.

     I reject the suggestion that Mr. Kajat would have taken a year off, around age 50, to sail around the world, at which time he would have had no income. Sailing around the world was a dream he talked about. His wife was not sure she would like to do it. This was an ephemeral dream only.

     The income Mrs. Kajat now receives and will receive in the future, from leasing the licences her husband worked himself, when he was alive, must of course be deducted from the financial support that she would have received had her husband not died. She received a gross rental income for the red sea urchin licence of $10,000.00 in 1994, $30,000.00 in 1995, $45,000.00 in 1996, and $65,000.00 in 1997 (for an eighteen month period). Both experts assumed a $45,000.00 rental income for future years. I accept those estimates. There was also income from the rental of the sea cucumber licence, which should be added to the amount that is to be deducted. I leave it to the experts to convert the gross income figures set out above into disposable income (by deduction of the relevant tax liability attached thereto).

     I turn then to the amount of Mr. Kajat's disposable income that should be deducted as attributable to Mr. Kajat's own consumption and not that of Mrs. Kajat or to common expenses. Amounts attributable to Jan's personal consumption must also be subtracted. This calculation is based on the total family income and therefore Mrs. Kajat's income becomes relevant to the calculation. Mr. McKellar assessed a consumption rate by Mr. Kajat and Jan of 28% of the net family income until Jan became independent at the age of twenty-five. After that he estimated that Mr. Kajat's consumption would rise from its previous 18% to 23.14% of the family net income. Mr. Hildebrand adopted much higher rates: 45% for Mr. Kajat and Jan, until Jan became independent at age 21, and after that time 36.3% for Mr. Kajat. The main differences between Mr. McKellar and Mr. Hildebrand's calculations arise because Mr. McKellar treated some expenses as common, in the sense that they would not be reduced because of Mr. Kajat's death, while Mr. Hildebrand apportioned part of these to the personal consumption of the individual. In other cases, Mr. McKellar attributed a smaller proportion to Mr. Kajat's personal consumption and to Jan's personal consumption that did Mr. Hildebrand.

     One example of this different treatment is that relating to shelter. Mr. McKellar treated shelter as a common expense that should not be reduced. In his view, Mrs. Kajat would probably pay the same amount each year, in order to maintain the household, even though her husband and child had died _ the death of a spouse or child does not affect the number of rooms or the size of the residence required to maintain a particular standard of living. Mr. Hildebrand, on the other hand, assumed that 30% of the cost of shelter was an expense personal to Mr. Kajat and Jan. The Kajat family home is a modest one. While Mr. Kajat used part of the basement to store his diving equipment, and some space was used for records relating to the seafood harvesting business, and Jan had his own room, it would be unreasonable to reduce the amount of the award Mrs. Kajat should receive by treating the areas as separate personal consumption expenses. It misconstrues the compensatory purpose of the damage award to do so.

     Other areas of expenditures with respect to which the share attributable to Mr. Kajat and Jan's consumption was noticeably lower, in Mr. McKellar's report than in Mr. Hildebrand's, are: household operation; furnishings, transportation; recreation; reading materials and miscellaneous. Mr. McKellar's estimates better reflect this family's lifestyle and accord with the compensation purpose of a damage award than do Mr. Hildebrand's. Some of the evidence given on cross-examination indicates that Mr. McKellar's estimates are, however, in some areas low. They should be adjusted upwards slightly to reflect a consumption rate of 32% by Mr. Kajat and Jan, prior to Jan reaching independence at age twenty-five, and a 28% consumption rate for Mr. Kajat thereafter.

     As noted, also relevant to this calculation are Mrs Kajat's earnings. There is no dispute as to these amounts. She earned $29,500.000 in 1993 and $19,667.00 in 1994 (working for eight months of that year). She enrolled in a fulltime Batchelor of Arts program in September 1994 and graduated in the spring of 1997. Apart from some earnings arising from part-time work, she had no earnings in 1995, 1996 or to date in 1997. She has been accepted into the Master of Library Science program (a two year program) for September 1997, and expects to graduate in the spring of 1999. It is probable, then, that she will have no earnings in 1998 and approximately $20,000 in 1999 (assuming she works for one half of that year). This last is based on the assumption that she will earn $40,000.00 a year as a librarian once she has graduated. She has degrees in library science from both Poland and Germany and worked as a university librarian in the latter country before immigrating to Canada. I accept that it is more probable than not that after graduation she will obtain work as a librarian and not remain a library technician. She has library experience and the job prospects in British Columbia for that profession are better than for many others.

     It is usual to consider also whether an amount should be added, as part of the loss, on account of the household services Mr. Kajat provided. Both Mr. McKellar and Mr. Hildebrand assumed $600.00 per annum on the basis of statistical averages. Mr. Hildebrand reduced this estimate by 20% up to the age of 65, and 40% thereafter on the ground that some services might be of benefit only to Mr. Kajat and Jan, and that Mr. Kajat might be less productive than a paid worker. The Kajats purchased their family home in January 1993. Mr. Kajat did substantial renovations almost immediately, from the time of the purchase, until shortly before the arrival of their visitors in July of that year. Mrs. Kajat testified that she and her husband had plans to renovate the basement and to renovate the kitchen. Dr. Rotecka's evidence confirms Mrs. Kajat's testimony concerning Mr. Kajat's skills and efficiency in this area. Mr. Kajat did major shopping for the family and enjoyed preparing special family meals. He was able, during certain times of the year, to be home for significant blocks of time. Since Mr. Kajat's death Mrs. Kajat has had to hire people to do the renovation work he would otherwise have done, and now realizes how costly it can be. On the basis of the evidence, I conclude that at least $1,000.00 a year should be allowed for Mr. Kajat's household services, with no reduction being made because some of those services might be of benefit only to him and Jan or because he might be less productive than a paid worker. I emphasize that the $1,000.00 estimate is a very conservative one. The evidence shows Mr. Kajat to have been a very energetic and skilled individual in house renovation and repair. The type of work he performed around the house was more than that of a handyman.

     What then of contingencies? Should the amount be reduced on account of negative contingencies (e.g., the possibility of Mr. and Mrs. Kajat's marriage breaking down followed by a divorce; the possibility of either Mr. or Mrs Kajat, or both of them, dying before they reached age 65; the possibility that Mr. Kajat would suffer some disability so that he would become unable to work; the possibility that Mrs. Kajat will remarry and her new husband will provide her with support). Mr. McKellar did not reduce his calculation by reference to any contingencies. Mr. McKellar's position is that assessing contingencies is a matter for the Court. He also pointed out that while actuarial evidence is useful in assessing contingencies, as they relate to groups of individuals, they are not necessarily useful when attempting to assess the relevance of these factors for one individual within the group. Contingencies for an individual must be assessed by reference to the circumstances of that particular individual. I understand that statistical averages are resorted to when particular evidence about an individual's circumstances is not available, or is such that it does not take the individual out of the general category.

     On the basis of the evidence presented in this case, there should be no reduction in the amount of an award attributable to the continency that the Kajats might become divorced. Their marriage was a very solid one. They immigrated to Canada from Germany, having lived close to each other in Poland and having been brought up there. Witnesses gave evidence concerning the strength of their marriage and their dedication to each other.

     The evidence concerning their respective health histories and life style was not such that I can conclude that the statistical averages regarding joint mortality rates should not apply. A reduction should be made taking into account the joint mortality rates, in accordance with generally accepted accounting principles, in the manner Mr. McKellar suggests.

     With respect to the possibility that Mrs. Kajat will remarry, she is relatively young, and one could understand her being attracted to, and attracting a permanent male companion. Many uncertainties surround such a possibility however. She has expressed the view that she is not interested in establishing such a relationship unless it has a quality approaching that of the relationship she lost when Mr. Kajat died. The extent to which any new companion might provide a level of support comparable to that which Mr. Kajat would have provided is speculative. I cannot conclude that a statistical discount for the possibility of remarriage is appropriate.

     The defendants argue that Mr. Kajat worked in a highly dangerous occupation. Dr. Pettit gave evidence concerning the number of deaths and injuries arising in the commercial diving industry. He conceded, however, that deaths and injuries occur most often when people are poorly trained and inexperienced. Mr. Kajat was highly trained and very experience. Mr. Zemojtal's evidence demonstrates this. Mr. Kajat's work environment was one, however, in which there is scope for accident. One can not ignore that he, personally, suffered two accidents in 1991 - 1992, one leading to approximately two months when he did not work. On November 21, 1991, Mr. Kajat caught his forearm between a rope and hydraulically powered pulley that was being used to unload sea urchins. This led to him being unable to work from November 21, 1991, to January 15, 1992. He received workmen's compensation benefits during that time. In early 1992, the fishing vessel that he and his then partner owned, the Jan-Ty-Lee, sank when the steering broke in rough seas. The vessel was abandoned as it could not be anchored and was drifting towards the rocks. The crew, including Mr. Kajat, were not injured in the accident. It was after this incident that Mr. Kajat purchased the Bona Vista.

     Counsel for the plaintiff argues that there is jurisprudence stating that it is not mandatory in all cases to adjust a calculation of probable loss of support downward to account for negative contingencies. In this case, the work environment is such that I have concluded that in addition to the adjustment for the joint mortality contingency a deduction of 15% should be made.

     With respect to the tax gross-up, I accept Mr. McKellar's assumptions and methods, this includes his use of a 4.0% post-trial, long term inflation rate and of a portfolio of investments limited to bonds. I ask the plaintiff's actuary, Mr. McKellar, to provide me with a calculation respecting Mrs. Kajat's loss of support, in accordance with the methods he used, as modified, by the findings set out in these reasons. I will then consider whether the amount is fair and just, that is whether it should be adjusted either upwards or downwards.

     There is no dispute concerning the amount to be awarded as special damages.

     I think this is an appropriate case in which to award a management fee. Mrs. Kajat is an intelligent and competent individual but her field is not financial management. I understand that a management fee of 0.75% of the funds under management per annum is an appropriate sum to be awarded for this purpose.

OTTAWA, Ontario.

August 26, 1997.

                             Judge

__________________

¹

C.R.C. c. 1416 as amended by SOR/78-528, SOR/79-238, SOR/80-742, SOR/81-831, SOR/83-202, SOR/85-397, SOR/87-25, SOR/88-10, SOR/88-322, SOR/90-702, SOR/91-275, SOR/93-112, promulgated pursuant to s. 562.11 of the Canada Shipping Act, R.S.C. 1985, c. S-9.

²

S. 2.

³

24(b)      When a pushing vessel and a vessel being pushed ahead are rigidly connected in a composite unit they shall be regarded as a power-driven vessel and exhibit the lights prescribed in Rule 23.

Rule 23(a) provides:

(a)      A power-driven vessel underway shall exhibit:

(i)      a masthead light forward,

(ii)      a second masthead light abaft of and higher than the forward one; except that a vessel of less than 50 metres in length shall not be obliged to exhibit such light but may do so,

         (iii)      sidelights,

(iv)      a sternlight.

⁴

Rule 36:      If necessary to attract the attention of another vessel any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these Rules, on may direct the beam of her searchlight in the direction of the danger, in such a way as not to embarrass any vessel. Any light to attract the attention of another vessel shall be such that it cannot be mistaken for any aid to navigation. For the purpose of this Rule the use of high intensity intermittent or revolving lights, such as strobe lights, shall be avoided.

⁵

Transcript, v. 12, pp. 40-41.

⁶

Transcript, v. 12, pp. 50-51.

⁷

See Collision Regulations, Rules 15, 16 and 17.

⁸

p. 107.

⁹

9.

     646. Where the death of a person has been caused by a wrongful act, neglect or default that, if death has not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused under circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court, against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of the wrongful act, neglect or default if death had not ensued.

647(2) In every action described in subsection (1), damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the dependants in such shares as may be determined at the trial.

¹⁰

R.S.A. 1955, c. 111.

¹¹

Cogar Estate v. Central Mountain (1992), 72 B.C.L.R. (2d) 292 at 309.

¹²

Waddams, The Law of Damages, 194 (at 6-5); Mallery v. Soo Security Motorways Limited (1961), 38 W.W.R. 48 (Sask. Q. B.).

¹³

[1978] 2 S.C.R. 342">Keizer v. Hanna, [1978] 2 S.C.R. 342.