Outdated marine law puts plaintiffs at disadvantage, says Thomson Rogers' Stacey Stevens
This article was created in partnership with Thomson Rogers Lawyers
Boating is a popular Canadian summer pastime. Currently, there are more than 15 million Canadians partaking every year and over 250,000 lakes and waterways in Ontario alone. But whether they're tubing, fishing, or enjoying an evening cruise, this activity is rife with risk. In fact, according to a study undertaken by the Canadian Red Cross, 40 per cent of drowning deaths and 50 per cent of water related fatalities result from boating, with careless operation of the boat being a key contributor each year.
Unfortunately for injured boating victims, their ability to recover damages is limited by the Marine Liability Act (MLA) and the International Convention Limitation Liability for Marine Claims 1976. These pieces of legislation, when read together, result in a combined limitation on liability for all personal injury damages to $1.5 million — and ultimately, "leaves injured people and their families undercompensated after suffering catastrophically devasting injuries, despite the fact that it was recently increased from $1 million" says Stacey Stevens, partner at Thomson Rogers Lawyers.
"The limitation of liability is outdated and doesn't recognize the seriousness of the injuries that can occur in boating accidents," she adds.
The limitation on liability clause is found in s. 29 of the MLA and article 4 of the convention. It applies to any "ship" that is less than 300 gross tonnage which captures any personal watercraft owned by an individual in Canada. The reasoning behind limiting the liability of shipowners is to allow them to maintain insurance coverage and keeps their costs more predictable. It also helps people affected by a marine incident by making sure that shipowners have money available to compensate for losses and damages and can speed up the process, without forcing those affected to go through a long court case.
There is an exception to the limitation on liability, Stevens notes, but she calls it "a high bar." Article 4 of the Convention, portions of which are incorporated into the MLA at Schedule 1, provides protection in some circumstances against the limitation on liability in s. 29:
Article 4 Conduct barring limitation A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.
The wording of this exception makes it almost impossible to avoid the limitation, Stevens says, pointing to Woodbury v. Woodbury where she acted for the plaintiff. She calls the decision in that marine claim "a heartbreaker and illustrative of the inadequacy of the limitation on liability."
In 2007, nine-year-old Nash Woodbury suffered catastrophic injuries while being pulled on a tube behind a boat driven by his father on Ontario's Rice Lake. The father swerved to miss a stationary boat, and the tube collided with the other watercraft. Nash sustained an open skull fracture and other severe injuries, and it was determined he would require 24/7 attendant care for the rest of his life.
At trial, the court found the operator, Nash's father, liable for the injuries Nash sustained — "We had no problem establishing recklessness based on the facts of the accident," Stevens notes —he was not keeping proper lookout, was driving at excessive speed, and made a sudden change in course that caused the tube to swing out in a wide arc and strike the stationary boat.
However, when applying the exception test the court found that while driver was operating the boat recklessly in the moments prior to the collision and taking an enormous risk, there was still a good chance the accident would not have happened had there not was another boat in his path. The judge ruled that the moment the accident became "probable" was the moment the driver saw the other boat therefore "his sharp turn of the boat, in order to avoid the collision, was not found to be reckless (43)."
“While I appreciate the judge’s line of reasoning, in the end it was the driver’s reckless behavior that prevented him from seeing the other boat before the emergency situation that caused him to make the sharp turn,” says Stevens.
Although, in the end, the damages totaled over $16 million plus costs and disbursements, they were reduced to $1 million because of the limitation of liability wording at the time.
"We were so close," Stevens says. "Since that case there are other notable boating accidents that are now in litigation. These accidents involve multiple fatalities and injuries and in all of them, the plaintiffs will likely be undercompensated."
Ultimately, the limitation on liability puts plaintiffs in a position where there's a high likelihood that in where there are serious or multiple injuries sustained in a boating accident, the injured people and their families are likely not going get full and proper compensation for their injuries or losses. Effectively, "greater protection is being offered to the insurer and negligent party than the innocent accident victim," Stevens says, adding this will only be exacerbated going forward given the ongoing rise in the number of pleasure crafts on Ontario's waterways.
"If the purpose of tort law is to remedy the wrong done by the offender, to discourage harmful and negligent acts, and set a standard of conduct for people to abide by, then the limitation on liability in boating claims falls short."
