Digests

Wilson Fishing Co. v. British Columbia Packers Ltd.

T-1623-97

2001 FCT 1390, Simpson J.

17/12/01

20 pp.

Action for damages to net--Defendants' 300-ton fishing trawler, Western Investor, collided with aluminum skiff which worked with plaintiff's seine fishing vessel, Fisher Lassie II--During or after collision Fisher Lassie II's seine net entangled in wheel of Western Investor--Plaintiffs alleging damage to net caused by negligence of captain, crew of Western Investor--Claiming damages in amount would have been paid for catch, assuming that, but for damage, would have set net once and made average catch--Department of Fisheries and Oceans regulated roe herring fishery--Also controlled shotgun opening, closing of fisheries with VHF radio announcements--In 1997 fishery could last few minutes or few hours--Roe herring fishery congested affair--30-40 trawlers in motion within 1200 feet of Western Investor--All trying to position themselves over schools of herring, preparing to release skiffs, set nets moment DFO opened fishery--Profit motive significant herein--One set of net could be worth as much as $500,000--In setting net, trawler lowers aluminum skiff to water and releases it--Net attached to skiff's bow--Skiff then pulls bunched end of net off stern of trawler by operating it in reverse at full throttle as trawler moving forward--After about 335 feet of net in water, weight of net eliminating trawler's forward momentum, and safe to turn skiff around so that tows net off its stern--Net traditionally set as trawler moving forward and away from skiff in circle to right--Intention to form wall around school of fish located on sonar, depth sounders--When trawler completing circle by returning to skiff, set complete--Net closed at bottom so that forms "bowl"--Captain of Fisher Lassie II alone in wheelhouse when began set--Responsible for keeping lookout both ahead, behind Fisher Lassie II and for monitoring sonar equipment--Skiff began set at full reverse throttle--Eventually throttle eased back to degree necessary to stay in position--When Captain of Western Investor realized skiff released, moving in reverse into his path, took 5 or 6 seconds to decide to put ship into full reverse--Collision occurred 6 or 7 seconds later--Skiff operator testifying skiff's painter stowed and net's breast line released at time of collision, although first quarter marker on net not yet reached--Testified set "bread and butter" for next six months so would not risk losing set by taking evasive action--At moment of collision, Western Investor's main engine stalled--When Captain asked engineer to restart engine, started in reverse because had stalled in that gear--Engine stopped again, and restarted in neutral and then put in forward gear--Collision Regulations, R. 5 requiring every vessel to maintain proper lookout--Captain of Fisher Lassie II broke this rule--100% responsible for creating situation of imminent peril in which possibility of collision--Both skip operator and captain of Fisher Lassie II could have taken, required to take evasive action to avoid collision in accordance with R. 8--Both skiff, Fisher Lassie II equally responsible for collision and for fact Fisher Lassie II's net came to be in close proximity to Western Investor--But damage to net not inevitable consequence of collision--Errors of captain of Western Investor led to damage to net--Defendants jointly and severally responsible for damage to Fisher Lassie II's net--If skiff assisted Western Investor to complete her set, assistance minor, completely unintentional--Fisher Lassie II not entitled to claim portion of value of Western Investor's catch--Claim to value of one average catch cannot be recovered because too remote--At time Fisher Lassie II's net damaged, captain had aborted first set because cut off by another boat--Cases in which nets containing fish damaged in mid-set distinguished as no actual catch herein that was disrupted or lost because of Western Investor's actions--Fisher Lassie would have had time to set net once more if net undamaged--But pure speculation to assign any measure of success to second set--Defendants jointly and severally liable to plaintiffs for sum of $3000 (cost to repair net)--Collision Regulations, C.R.C., c. 1416, Rr. 5, 8.