Fisheries Law

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By Brad Caldwell

 

SALVOR OF ZODIAC RECEIVES $240 SALVAGE SETTLEMENT and $77,000 DAMAGE AWARD FOR FALSE IMPRISONMENT CAUSED BY UNGRATEFULL VESSEL OWNER    Western Fish and Seafood  August 2003

 

 In determining the amount of remuneration to be paid to a successful salvor, one of the factors often looked at by the courts is the degree of danger the salvor was in while rescuing the vessel.  Traditionally these dangers have included such factors as darkness, high winds and seas, cold temperatures and strong tides.  Another danger that is sometimes encountered by salvors, but rarely discussed, is the danger posed by an ungrateful vessel owner.   In a rather bizarre case recently decided by the Supreme Court of British Columbia, a salvor was awarded substantial damages for false imprisonment and false arrest caused by such an owner.  

 The salvor in this case was Gutz Hanisch, a long time resident of Rose Harbour, an isolated community at the southern end of the Queen Charlotte Islands.  The vessel owner in this case was Parks Canada as represented by one of its park wardens working in Gwaii Haanas National Park Reserve in the Queen Charlottes.  The salved vessel was a 13.8 foot Zodiac with outboard motor and auxiliary equipment.  On a stormy July night in Rose Harbour, Mr. Hanisch observed the Zodiac, which had broken loose from the Parks Canada charter vessel, being driven by northerly winds towards the rocky shore of the harbour.  Before it could be driven onto the rocks, he removed his clothes, entered the water, and got aboard the Zodiac. Since the high winds made it impossible to return it to the Parks Canada boat, he secured it safely in a creek mouth by tying it to an overhead bridge.  He then radioed the park warden on the charter vessel in the harbour, advised him of the location of the Zodiac and also advised that he would like some compensation for his services.   Although some of the facts were hotly disputed at trial, the facts as found by the trial judge were that the Mr. Hanisch told the park warden that the Zodiac would be floated at high tide in the morning.  Although he told the warden that he was going to talk to his lawyer about a salvage claim, at no time did he ever tell the warden that he could not pick up the boat.  In addition, he never restrained the boat or did anything to prevent the park warden from picking it up.

 Sometime that same evening Parks Canada telephoned the R.C.M.P. detachment at Sandspit and complained that Mr. Hanisch had possession of the Zodiac and was refusing to return it.  The next morning the park warden spoke on the telephone to a different R.C.M.P. constable who advised him that the police were not going to get involved in what they viewed as a civil dispute.  Apparently the park warden refused to accept this advice and expressed the view that his attendance was necessary because of his concern for “officer safety”.  Accordingly, with some reluctance the constable agreed to attend at Rose Harbour. Upon attending aboard the charter vessel at Rose Harbour the constable once again suggested the matter was a civil dispute and asked the park warden to make one more attempt at obtaining the release of the vessel without police assistance. After moving the charter vessel to a safe anchorage, the park warden went to the beach and proceeded to move the Zodiac and engine from its moorage location.  While in the process of doing so, a friend of the salvor’s attended and read the park warden a letter (prepared based upon advise received from the salvor’s lawyer) stating “I am giving you possession of this vessel . . . without prejudice to my salvage claim.”   At this point, instead of advising the constable that possession of the boat was being surrendered to him, the park warden radioed the constable informing him nothing had changed in the salvor’s position and requested that he come ashore.  In the meantime, the salvor arrived on the scene and read the letter to the park warden two more times.   When the constable arrived on the scene the salvor attempted to read the letter to him, but the constable refused to allow him to do so.  The salvor then turned and walked away advising that he was going to attend to personal matters.  The constable then advised him he “could not leave because matters had to be addressed” (para. 50 of the court’s reasons for judgement).  When the salvor indicated he had gear on the beach that he might lose as the tide rose, the constable apparently said, “if you are not back in five minutes, you will be arrested for mischief” (para. 50).  Shortly thereafter, Mr. Hanisch’s maritime lawyer spoke to the constable on the phone and advised him that his client had the status of a salvor of the boat and that he had turned it over to Parks Canada.  He advised him that since the salvage was a civil matter he had no right to arrest Mr. Hanisch and that any arrest would be an abuse of process.  Despite this advice, Mr. Hanisch was arrested and transported by helicopter to Sandspit, where he was photographed and fingerprinted  like a common criminal and placed in jail for about 30 minutes before being released on a promise to appear in court.  It then took him three days to find a flight back to Rose Harbour.

 In September of 1999, the Crown proceeded with its charge that Mr. Hanisch committed “mischief by obstructing interrupting, or interfering with the lawful use and enjoyment of the Zodiac.”  At the Preliminary Hearing the court dismissed the charges on the grounds that the Crown had failed to meet the “very low threshold”  (para. 68) required to commit him to trial.  At some point, Mr. Hanisch also advanced his civil claim for salvage and settled his claim to salvage with the Department of Recreation for a modest $240. 

Subsequent to the dismissal of the criminal prosecution, Mr. Hanisch commenced a civil action against both the park warden and the R.C.M.P. constable in the Supreme Court of British Columbia for false arrest, false imprisonment and defamation of character.  In May of 2003 the matter came on for trial and in a judgement that was very critical of both the park warden and the constable, Mr. Justice Harvey (a former Crown Counsel) awarded the following:  (1) $25,000 damages for false imprisonment, false arrest and defamation; (2) $50,000 for punitive damages; and (3) $2,500 for out of pocket type expenses related to attending at the criminal prosecution.  In responding to the numerous defences raised by the Crown, the court made a number of comments that bear repeating.   

Since a salvor does not have a possessory lien over a salved vessel (unless it is a derelict), the Crown attempted to argue the Mr. Hanisch had interfered with the park warden’s lawful use of the Zodiac by refusing to return it.  In response to this argument the court said, “[t]he short answer to [the constables’s] misconception of the law of mischief is that there was not and could not have been the commission of the crime on the day before, because the property in question, the vessel, could not have been used during the occurrence of a major storm which did not abate until the following day.” In addition, the court also noted that the constable made no inquiries of his own and ignored the statement of a witness to the effect that the Zodiac was not being withheld.  By refusing to listen to Mr. Hanisch’s attempt to read him the letter to the park warden, the constable also refused to allow him to avail himself of a colour of right defence.  This is a defence (to a charge of mischief) that one has an honest belief in a state of facts or civil law that, if it existed, would negate the criminal intent of the offence.

 With respect to the issue of punitive damages the court said as follows: 

I am satisfied that the plaintiff was subject to conduct that was beyond high-handed in the case . . . [of the park warden].  He was the architect of a plan to use the retrieval of a boat by the plaintiff to harm him economically, and in the criminal perspective, to deny him his liberty.  This is what he was able to do not only by manipulation of the evidence, but as well, by deception in the perspective of not truthfully informing [the constable] . . . of the status of the matter on the morning of July 27^th, before the plaintiff was arrested. In this regard, I am satisfied that . . . [the park warden’s] behaviour was oppressive and was motivated by malice.  Such misconduct offends the court’s sense of decency, and as such, the plaintiff is entitled to punitive damages from the defendant [park warden]. (para. 152)

 

. . . [the constable’s] conduct is more related to a failure of his duty.  It is not suggested and I do not find that his conduct was motivated in the same manner as [the park warden], but his abject failure to investigate the situation and his apparent inability to appreciate what he had done, in my view, warrants his inclusion in this category of damages.  (para. 153)

 

Here I have found  . . .  a perversion of the application of the rule of law in such a manner that an innocent man was deprived of that liberty in circumstances which can only be described as outrageous.  The manner in which the plaintiff was dealt with after the arrest simply adds to the outrage.  Further, to date he has not received an apology from those responsible.   (para. 155)

 

With respect to the law and practice of salvage, this case is an extreme example of one of the many risks faced by salvors, namely:  an ungrateful vessel owner.  In this particular case, if the vessel owner had simply accepted Mr. Hanisch’s letter reserving his right to claim salvage, the entire case could likely have been resolved for the very modest salvage fee of $240 eventually accepted by Mr. Hanisch. 

 

With respect to the law of false arrest, a court once said, “it is hard to calculate how far news of this kind [arrest] may spread and what harm it may have done.  Few persons who witnessed this arrest are likely to be aware of his subsequent acquittal. The ripples from the boulder thrown into the water by the defendants may spread far.  The degradation consequent upon the experience suffered by the plaintiff is sore and not easily forgotten.” It is hoped that the publication of this article will help to publicly vindicate Mr. Hanisch. 

 

This case is currently under appeal by the Crown.

  Postscript:  This case was appealed and the judgment against the fisheries officer was upheld.  The judgment against the police officer was varied to take away the award for punitive costs.  See:  2004 BCCA 539

Brad Caldwell is a Vancouver based lawyer and former fisherman whose practice is primarily devoted to fisheries, maritime and insurance matters. The citation for this case is 2003 BCSC 1000. It can be viewed on the Supreme Court of B.C. website at https://www.courts.gov.bc.ca/