Federal Court Decisions

Date: 19971204

Docket: 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 ORDER

REED, J.

[1]      On August 26, 1997, reasons were issued consequent on the trial of this action, which had taken place from June 2 to June 25, 1997. In the reasons for decision of August 26, 1997, the plaintiff's actuary, Mr. McKellar, was asked to recalculate the amount of loss suffered by the plaintiff by reference to certain conclusions set out in those reasons. In addition, at the request of counsel, some issues had not been argued at trial (e.g., prejudgment interest, limitation of liability, costs).

[2]      This led to a video-conference on September 23, 1997. At that time, Mr. McKellar's report was submitted. It presented two sets of calculations; one based on the assumption that Mr. Kajat would have continued to provide household services until the retirement age of 65; the other was that he would have done so during the joint lifetime of him and his wife. Mr. McKellar was not certain from the reasons of August 26, 1997, which assumption the Court was applying. During the September 23, 1997 video-conference, agreement was expressed as to the relevant prejudgment interest that should form part of the final order. Counsel for the plaintiff also identified his concern that the order should include the relief sought in the Statement of Claim against the vessel "Arctic Taglu".

[3]      While counsel for the plaintiff was prepared to present his argument on costs, seeking increased costs, and did so, the opposing counsel were not in a position to respond to that argument. An in-person hearing was requested, to address this issue and to present argument on the apportionment of liability. This request was agreed to, however, scheduling difficulties led to the abandonment of a further in-person hearing. Written submission on those issues were therefore submitted.

[4]      These reasons relate to the outstanding issues and I ask counsel for the plaintiff to prepare a draft order for my signature, approved as to form by opposing counsel, on the basis of these reasons.

[5]      Firstly, calculation of loss should be based on the provision of household services during the joint lives of Mr. and Mrs. Kajat. Secondly, the order should reflect the prejudgment interest that has been agreed to by counsel. Thirdly, its form should include, as counsel for the plaintiff asked, the relief sought against the vessel.

[6]      I turn, then, to the apportionment of liability. Both counsel for the defendants raised the argument that since Mr. Kajat had been partly at fault for the accident, the plaintiff should recover no damages. They referred to the decision in Bow Valley Husky (Bermuda Ltd.) et al. v. Saint John Shipbuilding et al. (1995), 126 D.L.R. (4th) 1 (Nfld. C.A.). Leave to appeal that decision to the Supreme Court was granted and the appeal was heard on June 19, 1997; judgment was reserved. The trial judge in that case had found that under Canadian maritime law, contributory negligence was a complete defence to a claim by a plaintiff. The plaintiffs were therefore denied recovery. The Newfoundland Court of Appeal held, as described in the headnote to its decision, that Canadian maritime law was applicable to the negligence that had resulted in the damage on the oil rig and that that law required apportionment in the case of contributory negligence. This was held to be so either because the Newfoundland Contributory Negligence Act, R.S.N. 1990, c-33, applied, or, alternatively, because Canadian maritime law itself included the principle of apportionment.

[7]      I am of the view that Canadian maritime law, in a case such as the present, does not operate to deny the plaintiff recovery because there was some contributory negligence on the part of Mr. Kajat. In case it is necessary to specifically plead and rely on the British Columbia Negligence Act, R.S.B.C. 1979, c. 298, I accede to counsel for the plaintiff's request that the Statement of Claim be amended now to add the following paragraph:

"26A. The Plaintiff pleads and relies on the Negligence Act, R.S.B.C. 1979, c. 298 as amended."

[8]      Federal Court Rule 420 provides that the Court may amend pleadings at any stage of the proceeding. No prejudice arises to any party as a result of the amendment. I prefer to base the decision in this case on the same alternative bases as those adopted by the Newfoundland Court of Appeal, rather that rely solely on Canadian maritime law. It is important that the plaintiff not be inadvertently prejudiced by an oversight in the pleadings.

[9]      The defendants presented submissions concerning the apportionment of liability as between them. Each, of course, sought to persuade the Court that the other bore most of the fault for the accident. I apportion the fault, between the defendants, as 70% applicable to the Sea Link defendants and 30% to the Crown. While Captain Keeper was clearly careless in not investigating the manner in which the tug pushing barge combination would operate, he was to some extent led into this position by the less than candid approach of Mr. Brown.

[10]      The evidence shows that Mr. Brown was concerned that the Arctic Taglu/Link 100 not be classified as a composite unit because this might have led to increased manning requirements, that is, increased costs for him. Had he been more concerned with ensuring a safe presentation of his vessels to others on the water, and less with economic self-interest, this tragedy would not have happened. I am not overlooking the fact that there were a number of causes that contributed to the accident, including, for example, Mr. Wade's misinterpretation of the Regulations, and Mr. Kajat's own fatigue. However, the bulk of the responsibility lies with the Sea Link defendants. Not only was Mr. Brown less than candid in his approach to the Coast Guard, but also, as noted in the reasons of August 26, 1997, it was the use of the searchlight by the operator of 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.

[11]      I turn then to the arguments on costs. They are two in number: (1) whether the plaintiff should be awarded an increase in costs above what is provided for in column III of Part II of Tariff B; (2) whether the plaintiff should recover only 85% of whatever costs are assessed.

[12]      With respect to increased costs, I agree with counsel for the plaintiff that the Sea Link defendants took extreme positions. The lack of candour, indeed lack of honesty, of some of the pivotal witnesses set up road blocks for the plaintiff that she should not have had to face. In addition, the disappearance of the last page of the log book remains inexplicable. Openness and candour on the part of witnesses such as Mr. McKrae and Mr. Brown would surely have led to a settlement of substantial portions of this action; this should have occurred.

[13]      Also, the emotionally charged allegation that Mr. Kajat had left his six year old son alone in the wheelhouse, at 2:43 a.m., just outside of Active Pass, and that this negligence led to the accident, smacks of emotional intimidation. Mrs. Kajat described the distress she felt when she learned of it and the emotional stress that was caused by the evidence of the diver who described the location of the bodies and how he found them - the evidence replied upon by the Sea Link defendants for the allegation. Common sense dictates that this allegation was an unreasonable one.

[14]      Counsel for Mrs. Kajat wrote to counsel for the Sea Link defendants on April 8, 1997:

We write further to your letter of March 26, 1997, wherein you allege as a particular of negligence that:

"Mr. Kajat, the only person with any marine experience, was not in the wheel house just prior to the collision leaving his six year old son as the sole occupant of the wheel house".

This particular of negligence is inflammatory and cannot be substantiated by any of the evidence disclosed in the testimony of the witnesses on discovery or in the documents produced in this litigation. Please provide use with the factual basis which you rely on in support of this allegation.

If you intend to advance this allegation at trial, we are putting you on notice that we well seek further costs against your clients should you fail to prove this allegation. We suggest that you consider withdrawing this allegation.

[15]      I agree that the conduct of the Sea Link defendants merits an increased award of costs. I do not think it is appropriate however to award solicitor-client costs or a lump sum amount. I shall direct the taxing officer to apply column V of Part II of Tariff B to the taxation of the plaintiff's costs. Subject to that direction the taxing officer, of course, still has to exercise his discretion under subsection 346(1.1) of the Rules. I agree with counsel for the Crown that the Crown should not be liable for any increase in costs arising out of the Sea Link defendants' conduct. Both counsel for the Crown and counsel for the Sea Link defendants agreed however that item 7 should be taxed under column V and the Sea Link defendants agreed that item 12 should also be taxed under that column. With those considerations in mind I ask counsel for the Crown, in co-operation with counsel for the plaintiff, to propose a draft provision to accomplish the intent of the above reasoning for inclusion in the draft order to be submitted to me.

[16]      I will consider next the argument that the plaintiff, since her husband was held to be 15% at fault for the accident, should only recover 85% of her costs. Counsel for the defendants argued that if the apportionment of liability as between Mr. Kajat and the defendants was made in reliance on the British Columbia Negligence Act, then, the apportionment of costs should also be governed by that Act. That Act provides:

3(1)      Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

[17]      I am not persuaded that the British Columbia Negligence Act applies. Provincial law is only applied when there is a gap in the applicable federal law. In this case Federal Court Rule 344 provides that the awarding of costs is in the discretion of the trial judge, including the amount and allocation of those costs as well as the persons by whom they are to be paid. Among the factors identified to be taken into account in awarding costs are: the result of the proceeding and the apportionment of liability. There is no gap to be filled by reference to provincial legislation.

[18]      Thus, whether the apportionment of liability is effected pursuant to Canadian maritime law simpliciter, or by reliance through that law on the relevant provincial negligence legislation, Rule 344 governs the awarding of costs.

[19]      If I am wrong in this approach and the cost award is governed by section 3 of the British Columbia Negligence Act, then, I must consider whether this is a situation in which the Court should "order otherwise". Thus, the decision to be made under either that Act or under Rule 344 is not essentially different.

[20]      I have concluded, for many of the same reasons that justified an increase in costs, that it is appropriate in this case that the plaintiff's award of taxed costs not be reduced because the Bona Vista was held to be 15% at fault for the accident. In addition to those reasons, I note that it was not the fault of the plaintiff herself that contributed to the accident and the degree of fault attributed to her husband is not large.

    

                                 Judge

OTTAWA, ONTARIO

December 4, 1997