This case involved a collision between the net of the fishing vessel Savage Fisher (plaintiff) and the fishing vessel “Prosperity” in the 1997 herring seine fishery. This fishery was described by the trial judge as a “high stakes race . . . where from an opening ‘gun’, many vessels,sometimes dozens,would set their nets at speed in very close proximity during a short period of time.” The issues in this case included:
1) The application of Rule 15 (Crossing Situation) of the Collision Regulations;
2) Apportionment of fault;
3) Tonnage of fish caught; and
4) Limitation of Liability.
With respect to the application of Rule 15, the court ruled that this was not a crossing situation because “the Crossing Rule can only apply where what would be a give-way vessel can ascertain the future course of the stand-on vessel from observing her movement and making due allowance for the nature of the locality”. In rejecting the application of the Crossing Rule, the court pointed out that the Crossing Rule must always be read with the Responsibility Rule (Rule 2), which refers to the precaution to be taken by ordinary seam or by the special circumstances of the case.
Apportionment of Fault
With respect to apportionment of fault, the court apportioned 75% of the fault to the plaintiff based primarily upon the “woefully inadequate” look out being kept by the vessel (there was no assistant in the wheel house). In addition, the court found that the master of the plaintiff vessel also failed to exercise the caution that good seamanship dictated because he was being driven by his desire to maximize his catch.
The court also assessed 25% of the fault to the defendant vessel for not taking earlier measures to avoid the collision when it ought to have been apparent that one was going to occur.
Tonnage of Fish Caught
Given the uncertainties in the evidence regarding the amount of fish caught in the damaged net, the court followed the approach taken in two previous cases and made an award based upon the daily average of all of the vessels at the opening.
Limitation of Liability
Although the amount of the award made this issue largely academic, the court reviewed limitation of liability under the pre-1997 amendments to the Canada Shipping Act and found that it would have allowed the vessel to limit. The court advised that it would have done so based upon two previous decisions of the court. However, it questioned the correctness of those earlier decisions by expressing the view that it would not have been prudent for any owner to allow its vessel to partake in such a shotgun style opening.
Editor’s Note: As a result of a change of management approach from an overall quota fishery to an individual (shared) quota type fishery, these types of high intensity shotgun openings no longer occur at same intensity as they used to on the British Columbia coast.