Snow Valley Marine Services Ltd. v. Seaspan Commodore (Tug)

Snow Valley Marine Services Ltd. v. Seaspan Commodore (Tug)
Court (s) Database
Federal Court Decisions
Date
2015-03-10
Neutral citation
2015 FC 304
File numbers
T-1012-12
Decision Content
Date: 20150310
Docket: T-1012-12
Citation: 2015 FC 304
Ottawa, Ontario, March 10, 2015
PRESENT: The Honourable Mr. Justice Manson
ADMIRALTY ACTION IN REM AGAINSTS THE TUG “SEASPAN COMMODORE” AND THE BARGE “SEASPAN SURVIVOR” AND IN PERSONAM
BETWEEN:
SNOW VALLEY MARINE SERVICES LTD
Plaintiff
and
THE OWNERS AND ALL OTHERS INTERESTED IN THE TUG “SEASPAN COMMODORE” AND THE BARGE “SEASPAN SURVIVOR”, THE “SEASPAN COMMODORE”, THE “SEASPAN SURVIVOR”, SEASPAN MARINE CORPORATION, RAY NICOL AND JOE ZIZIC
Defendants
and
MIKE HANSEN AND MIKE COLLINS
Third Parties
JUDGMENT AND REASONS
I. Background. 2
II. Issues. 5
III. Analysis. 6
A. Liability. 6
IV. Witnesses and documentary evidence. 10
A. Plaintiff’s witnesses. 10
(1) Ronald Michael Hansen. 10
(2) Mr. James Archibald. 15
(3) Captain Donald Rose, Plaintiff’s Expert 20
B. Defendants’ witnesses. 26
(1) Joe Zizic. 26
(2) Captain Don Westmoreland. 30
(3) Captain Richard Dodds. 32
(4) Mr. James Allen Decker 35
(5) Christopher Small, Defendants’ First Expert Witness. 39
(6) Gary Harlow, Defendants’ Second Expert 42
V. Analysis. 44
A. Preliminary Hearsay Objections. 45
B. Qualifications of the Warnoc crew.. 46
C. Responsibility for the safety of the tow line attached from the tow post of the Warnoc to the Survivor barge’s anchor or chain. 47
D. Responsibility for the safety line attached from the Survivor barge’s dozer boat crane to the Survivor’s anchor and anchor chain. 48
E. Question of the Resulting Damages for the loss of the Warnoc. 48
F. Interest 52
SCHEDULE “A”. 54
I. Background [1] This action is concerned with the unfortunate events that led to the sinking and loss of the Plaintiff’s vessel, the assist tug “Warnoc” (formerly known as the “Night Shift”), on October 5, 2011.
[2] The two main issues for the Court to decide are the liability of the parties and quantum or value of damages in respect of the value of the Warnoc, at the time of the loss in October 2011.
[3] The parties’ agreed statement of facts is set out in the following paragraphs [4] to [20].
[4] The Warnoc was a tug owned by the Plaintiff Snow Valley Marine Services Ltd. [“Snow Valley”], and was used for making up log tows in Minette Bay, towing booms of logs in and out of Minette Bay and assisting in the loading of log barges at Clio Bay, British Columbia.
[5] Snow Valley was from time to time retained by log owners to assist Seaspan Marine Corporation [“Seaspan”] in loading log barges at Clio Bay near Kitimat, British Columbia. Payments for the services rendered by Snow Valley were made by the log owners and not by Seaspan.
[6] Prior to October 4, 2011, Snow Valley was instructed by the owner of a shipment of logs to assist by delivering their logs to the log barge the “Seaspan Survivor” [“Survivor”]. The Warnoc attended at Clio Bay on October 4, 2011 to provide that assistance.
[7] Snow Valley and the Warnoc’s crew did not initially set, or attempt to recover, the anchor from the Survivor, which was done by the crew of the Seaspan tug, the “Seaspan Commodore” [“Commodore”].
[8] When the mate, Ray Nicol, and the deckhand, Nestor McCreery, of the Survivor retrieved her stern anchor after she was loaded, her anchor came up fouled, causing it to be lifted in a cross ways position and tangled with chain.
[9] Mr. Nicol, now deceased, had a Certificate of Competency as a Master, Intermediate Voyage, and was 66 years of age at the time of the accident.
[10] The employees of Snow Valley on the Warnoc assisted with efforts to untangle the chain from the anchor. Those employees were Mike Collins and Mike Hansen – both of whom were experienced operators of vessels like the Warnoc.
[11] Mr. Collins was at the helm of the tug at all materials times. He had worked on vessels for eighteen years and was very familiar with the Warnoc once she was purchased by Snow Valley.
[12] Mr. Nicol attended on board the Warnoc during the efforts to untangle the anchor chain.
[13] Joe Zizic, the head barge loader with Seaspan, instructed Mr. Decker to lower a safety line from the dozer boat crane on the aft end of the Survivor. A photocopied schematic of the stern of the Survivor as built is attached as Schedule A.
[14] Mr. Nicol attached a line from the Warnoc to either the anchor or anchor chain, but it is not agreed how or where it was attached.
[15] Mr. Hansen attached the other end of the line which Mr. Nicol had attached to the anchor to the tow post at the stern of the tug.
[16] Mr. Hansen decided how to attach the tow line to the tow post.
[17] When the anchor came free, it fell rapidly and the weight of the anchor and chain sunk the Warnoc in deep water, throwing Mr. Collins, Mr. Hansen and Mr. Nicol into the water.
[18] The Warnoc, including a new Kort nozzle, shaft, and propeller had been purchased by the Plaintiff for $57,000.00 plus taxes on June 6, 2008.
[19] The Warnoc was insured at all material times for $180,000.00.
[20] The Plaintiff paid $218,400.00 for the Inlet Prowler, as a replacement vessel for the Warnoc.
[21] Counsels’ agreed Book of Documents and Agreed Statement of Facts were very helpful in streamlining this proceeding.
II. Issues A. What is the liability, due to negligence, for either or both parties?
B. If there is liability found for the Defendants, what is the measure of damages owing to the Plaintiff?
[22] For the reasons that follow, I find:
a. The sole negligence that caused the accidental sinking and loss of the Plaintiff’s vessel the Warnoc was by the Seaspan Commodore’s and Seaspan Survivor’s mate, Ray Nicol, and his crew, in failing to properly and safely secure a safety line from the Survivor’s dozer boat crane to the Survivor’s five ton or more anchor and anchor chain. The fact that neither of the Warnoc’s crew, Mr. Hansen and Mr. Collins, were Master mariners, or that they were responsible to properly secure the tow line from the Warnoc’s stern tow post to the Survivor’s anchor and chain, did not contribute to the resulting sinking and loss of the Warnoc;
b. I find that the Plaintiff’s damages resulting from the loss of the Warnoc to be in the amount of $257,000, as assessed in accordance with the principles set out below.
III. Analysis A. Liability [23] The Plaintiff argues that the negligence causing the sinking of the Warnoc was solely that of the employees of Seaspan in the management of the “Seaspan Survivor”, in failing to properly secure a safety line to the anchor from the dozer boat crane on the Survivor. Captain Dodds admitted that the care and management of the Survivor and the tug the Commodore were his responsibility. He admitted that he delegated that responsibility to his mate, Mr. Nicol, who he left in charge of the management of the Survivor. Mr. Nicol had prior experience in clearing fouled anchors, whereas Captain Dodds did not.
[24] Moreover, the Plaintiff submits that the critical failure in the plan to free the fouled anchor involved the safety line. Using the safety line to make the operation of freeing the fouled anchor safe was planned and carried out by Mr. Nicol and Mr. Zizic. The crew of the Warnoc had no knowledge of the anchoring arrangements on the Survivor and played no part in the decision to deploy and use the safety line. Mr. Zizic and Mr. Decker admitted that Mr. Nicol instructed the dozer boat crane line to be dropped for use as a safety line, and that Mr. Nicol instructed the loaders when to stop dropping the safety line and when to raise it. Mr. Hansen’s evidence is that he was present at the stern of the Survivor to make sure that Mr. Nicol did not fall in while securing the line; and the attachment of the safety line was entirely done by Mr. Nicol. Mr. Nicol ordered Messrs. Zizic and Decker to stop pulling up on the safety line when it appeared to be lifting the anchor and chain. None of the loaders saw where the safety line was attached to the anchor or chain but they felt tension on the line. Mr. Decker admitted that in his experience as a loader and logging operator, he had never before done a “blind pull”, where he could not see the attachment to the object he was lifting.
[25] The Plaintiff also points out that the Incident Report, Exhibit 1(41), was prepared by Captain Dodds on the morning of the accident. He prepared it to the best of his ability from information gathered from all of the eye witnesses as noted on that report. Those eye witnesses included Mr. Nicol, Mr. Zizic, some of the other loaders, and Mr. Collins and Mr. Hansen of the tug. In that report, Captain Dodds notes that the safety line was attached to the “spot at ‘anchor chain’ & anchor wire joint”. The evidence including Exhibit 1(35) show that joint to be 90 feet of chain away from the anchor. The Incident Report Exhibit 1(42) prepared by Captain Westmoreland after discussions with Mr. Nicol shows that there was a 60 foot bight of chain which fell with the anchor when it released. Whether it was 60 or 90 feet, after the anchor fell, the safety line was attached at a considerable distance above the anchor.
[26] The Defendants argue that the Plaintiff’s case against them is based on the position that Mr. Nicol supervised, directed, and was otherwise “in charge” of the operation to unfoul the anchor, which the Defendants deny and say has not been proven by the evidence at trial.
[27] The position of the Defendants is that the accident resulted from the actions of the Plaintiff’s employees, Mr. Collins and Mr. Hansen, in not looking out for the safety of their vessel and, in particular, tying the line from the anchor to the Warnoc’s stern tow post, in such a manner that it could not be released in the event of the anchor free-falling.
[28] The Defendants submit that the cause of the accident was the failure of the master and mate of the Warnoc, as they are described in paragraph 11 of the Statement of Claim, to take reasonable steps to ensure the safety of the vessel. It was they who attached the tow line in a manner that did not allow it to be released in the event of danger to the vessel, and they operated the Warnoc, all of which caused her sinking.
[29] Moreover, the Defendants refer to section 109 of the Canada Shipping Act, 2001 SC 2001 c 26, which requires that:
Safety of persons
109. (1) The master of a vessel shall take all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.
Protection from hazards
(2) If the master of a vessel is informed of a safety hazard, the master shall, unless the master determines that the hazard does not exist, take reasonable measures to protect the vessel and persons on board from the hazard, including eliminating it if feasible. If it is not feasible to eliminate it, the master of a Canadian vessel shall notify the authorized representative.
Sécurité des personnes
109. (1) Le capitaine d’un bâtiment prend toutes les mesures utiles pour assurer la sécurité du bâtiment et des personnes qui sont à son bord ou qui le chargent ou déchargent lorsqu’elles utilisent l’équipement à bord.
Protection contre un danger
(2) Lorsqu’on lui signale un danger pour la sécurité, le capitaine doit, sauf s’il est d’avis que celui-ci n’existe pas, prendre les mesures indiquées pour protéger le bâtiment et les personnes à bord contre le danger, notamment en l’éliminant si cela est possible. S’il ne peut l’éliminer, le capitaine d’un bâtiment canadien en avise le représentant autorisé.
[30] The Defendants state that neither Mr. Collins nor Mr. Hansen were properly qualified to operate the tug as they did not have a Master, Limited certificate as required by the Marine Personnel Regulations SOR/2007-115, s 212(2) & (4), Table 1 [“Regulations”]. Table 1 requires that a master of a vessel like the Warnoc have a certificate for a Master, Limited for a vessel of less than 60 gross tonnage. Neither Mr. Collins nor Mr. Hansen complied with that requirement or held any certificates. Furthermore, Mr. Archibald knew that they had no certificates and nevertheless allowed them to operate the Warnoc, contrary to the Regulations.
[31] Further, Capt. Rose, Capt. Dodds, Capt. Westmoreland and Mr. Archibald all agreed at trial that the person in command of a vessel is responsible for her safe operation.
[32] It is the Defendants’ position that the Plaintiff has not established any direction or instruction from Mr. Nicol that caused this accident. The only thing that Mr. Nicol may have done that contributed to the accident was the manner in which he attached the line from the Warnoc to the fouled anchor configuration, which did not cause the loss. The loss was caused by the method of tying the line to the tow post in particular and by the overall lack of care by Mr. Collins and Mr. Hansen for the vessel.
[33] An overview of the parties’ witnesses and documentary evidence at trial is useful in analyzing the issues raised in reaching my decision.
IV. Witnesses and documentary evidence A. Plaintiff’s witnesses [34] Mike Collins, one of the two crew members of the Plaintiff’s vessel the Warnoc, could not be located and did not testify at trial.
(1) Ronald Michael Hansen [35] Mr. Hansen was a boom man for approximately sixteen years before leaving the industry. He worked for Snow Valley for approximately eight years and was one of the two-man crew on board the Warnoc the night of the incident which resulted in her sinking. He estimated having spent approximately one third of his time at Snow Valley working aboard the Warnoc.
[36] Mr. Hansen does not hold any certificates of competency as a seaman. His knowledge of the industry is based entirely on his experience in the field working on sidewinders, dozer and tug boats. He has been involved in many log barge loadings, including many loadings of the Survivor.
[37] Mr. Hansen testified as to some of the features of the Warnoc, confirming that she had two controls: one in the wheelhouse, and another at the stern. Both controls were in view of the stern tow post which was in the centre of the boat width-wise.
[38] He further confirmed that the Warnoc is often run by a two person team in barge loading operations, with neither one in charge and both sharing responsibilities. Generally the hitch he would use in such operations when affixing a tow line to a tow post is called a suicide hitch. It is used in cases where a line might need to be released quickly; if you slack the line at all, it comes off the post easily, or if pressure is backed off leaving some slack in the line, it can release itself. At the time of the incident, Mr. Hansen was really only aware of a suicide hitch being used for such work.
[39] On the night of the incident, Mr. Hansen testified that nothing was unusual about the loading or the tow until the moment of the sinking. After the anchor was discovered to be fouled, the Warnoc took the mate of the Survivor, Ray Nicol, and the deck hand, Nester McCreery, to the stern of the Survivor to look at the anchor and meet with the four loadermen, who had returned to assist in the operation.
[40] Throughout the manoeuvres, Mr. Collins was at the stern controls of the Warnoc. Mr. Hansen testified that he and Mr. Collins did whatever Mr. Nicol told them to do throughout the process of trying to untangle the chain from the anchor.
[41] Before attempting to free the anchor there was a meeting held at the stern of the barge. Mr. Nicol was on board the Warnoc with a radio, and Mr. Zizic, the head loader, was on the barge with the other loadermen, also with a radio. They discussed strategies and mentioned concern over securing the anchor safely with a line. When Mr. Nicol and Mr. Zizic seemed comfortable with the safety line being attached from the dozer boat crane to the fouled anchor and chain, everyone moved to start the operations. Mr. Hansen testified that he was not involved in the discussion and largely did not hear what was being said, other than Mr. Zizic’s safety concerns.
[42] After Mr. Nicol tied the dozer boat crane line to somewhere on the fouled anchor and chain, the Seaspan staff first attempted to raise and lower the anchor a few times with its own winch (without a line attached to the Warnoc), but these efforts were unsuccessful.
[43] Mr. Hansen states that at some point, Mr. Nicol attached a line to somewhere on the fouled anchor and chain. Mr. Hansen fed him the rope and generally stood by in case he fell into the water. Mr. Hansen then attached the line to the Warnoc’s tow post using a suicide hitch. Subsequently, Mr. Hansen heard a portion of a radio conversation between Mr. Nicol and Mr. Zizic, confirming that the dozer boat crane line was attached safely to the anchor. The tow line being used was typical of what is found on the Warnoc, having a small splice on one end large enough to attach a shackle, but not large enough to fit over the tow post. Exhibit 5 is an example of a tow rope like the one that was allegedly used on the night of the incident.
[44] Once the line was attached to either the anchor or chain of the Survivor and the tow post of the Warnoc, Mr. Collins gave a bit of gas to put tension on the line, then sped up quickly. After a few attempts, Mr. Hansen remembered the boat sinking suddenly, stern straight down. He went into the water last and swam to the Survivor. He confirmed that he did not raise any concerns or make suggestions to Mr. Nicol and Mr. Zizic throughout the operations.
[45] Mr. Hansen has worked on the boat that Snow Valley purchased to replace the Warnoc after she sank, the Inlet Prowler. He confirmed that she “pretty much” does the same work, but is harder to handle and does an inferior job to the Warnoc in many regards.
(a) Cross-examination [46] Mr. Hansen confirmed that while he was a boom man for approximately sixteen years, he has never held a certificate of competency as a mariner.
[47] He has worked on multiple Snow Valley boats including the Warnoc, the Gulf Prince, the Jack Point and the Inlet Prowler.
[48] In addressing the multiple corrections to his testimony at discovery, he stated that while his discovery was more contemporaneous to the incident, he was on medications for an ankle injury at the time which lead to him to think less clearly. Though he originally said that it was cable and chain wrapped around the fluke fouling the stern anchor of the Survivor on the night in question, he was less certain at trial. However, he remembered that the engine hatch on the Warnoc was closed that night, and emphasized that it is never open during such operations. He did admit that it is possible Mr. Collins had suggested using the Warnoc to try and pull the anchor free, but could not be certain.
[49] When reviewing Mr. Nicol’s drawing representing the incident he disagreed with his characterization of how the tow line was attached to the fouled anchor and chain, which showed a line looped around the anchor or chain and back to the Warnoc’s tow post, when he remembered a single line from the tow post to the anchor and chain.
[50] He did not recall any discussion on the way back to the marina in Kitimat with Mr. Nicol, and the loadermen about blame or fault for the sinking of the Warnoc. He did admit that he and Mr. Collins were not under contract to stay and help free the anchor but that normal practice was to stay until the barge had left.
(b) Re-examination [51] Mr. Hansen stated that on the night of the accident, Mr. Collins only acted on Mr. Nicol’s orders throughout the attempts to free the fouled anchor. At some point during this process, one of the loaders asked if everything was safe and Mr. Nicol confirmed it was.
(2) Mr. James Archibald [52] Mr. Archibald has been the President and co-owner of Snow Valley since its incorporation approximately nine years ago. At the time of the October 5, 2011 sinking of the Warnoc, Snow Valley owned multiple vessels, three of which (the Gulf Prince, the Jack Point and the Warnoc), were tugs.
[53] Snow Valley is regularly contracted by logging companies to assist in the loading of log barges. The Warnoc was used most frequently for bringing log booms from Minette Bay to Clio Bay, then acting as an assist tug to barges as they loaded. Though Mr. Archibald has been involved in upwards of 1200 barge loadings throughout his career, he was not frequently involved in them in 2011.
[54] The Warnoc was registered as a vessel under five tonnes and Mr. Archibald’s position is that she did not require mariner certifications to operate. She was purchased for $57,000 in June of 2008 under the name Night Shift while not in operating condition. She had two controls, one in the wheelhouse and one at the stern; the tow post is fully visible from both. A “minor-major” refit was required in order to put her into working condition after purchased, at the end of which the boat was surveyed for insurance purposes by Blue Wave Marine Surveyors and valued at $170,000-$180,000. The Warnoc was insured for $180,000, and remained insured at that value until she sank.
[55] In January of 2011, the Warnoc underwent a four-month complete refit, taking her out of the water from January to April of 2011, the preparations for which began even earlier. Mr. Archibald testified that he had discussed conducting a second survey of the Warnoc with Captain Rose to potentially insure her at a higher value after her refit, but was unable to schedule one before the incident.
[56] Captain Rose did see the Warnoc in person on multiple occasions during and after the refit, and was on board her at least once. He did not conduct an official survey, but did visually survey her to give verbal advice on the work being done. Mr Archibald testified that he did not know where Captain Rose obtained the figure of $300,000 worth of work having been done on the Warnoc in writing his report assessing her value.
[57] In going through multiple invoices submitted for work done, Mr. Archibald admitted that his bookkeeper might have erred in assigning portions of invoices to work on the Warnoc versus other boats owned by Snow Valley. In many cases, vendors did not separate work done by boat on their invoices, making such a task complicated.
[58] The ambiguous and inconclusive list of invoices makes quantification of the value of the refit difficult to ascertain. However, the major refit of the Warnoc in 2011 did include such changes as:
• changing the style of the wheelhouse;
• rebuilding the engine;
• sandblasting the inside of the boat (the outside having been sandblasted and repainted in 2008);
• new rubber fendering;
• new bulwarks;
• electrical changes.
[59] On the evening of October 4 and into the early hours of October 5, 2011, the Warnoc was operating as an assist tug boat to the loading of the Survivor, with All-West Trading and North Coast Log Handling being Snow Valley’s clients. She was run by two boom men, Mike Hansen and Mike Collins. Mr. Archibald testified to it being regular practice at Snow Valley for two boom men to operate a tug together, sharing responsibilities equally. Further, after the loading of a barge is complete, it is a regular occurrence for the assist tug, in this case the Warnoc, to standby to move people back and forth from the barge to the tug. Mr. Archibald further testified to it being regular practice to use a “suicide hitch” when affixing something to be towed to the tow post, when requiring manoeuvrability or if there is risk of a mishap. The hitch is designed to come off if the boat sinks or rolls over, without human intervention.
[60] Mr. Archibald first learned of the October 5, 2011 accident after receiving a phone call from Captain Dodds of the Commodore, informing him there was a mishap and in an effort to free a fouled anchor. He remembered Captain Dodds saying “your boat sunk. Everybody’s safe, got them onboard, they’ve dried up and they’re on their way to town.” Mr. Archibald then drove to the marina, to meet his crew and offered to take them to the hospital; they declined.
[61] Having arrived on the same water taxi, the head loader, Joe Zizic, approached Mr. Archibald and allegedly apologized, stating that Ray Nicol gave the command to proceed, notwithstanding Zizic’s safety concerns.
[62] Mr. Archibald understood that the tow line from the Warnoc had been used in the efforts to free the Survivor’s anchor.
[63] After the incident, Mr. Archibald attempted to purchase another tug to do the work of the Warnoc, but was unable to find another pod-hulled vessel of comparable size available. He purchased the Inlet Prowler instead, which is a conventional hulled tug, with a draft of approximately two feet more than the Warnoc. The purchase price was $195,000, plus tax.
[64] The Inlet Prowler required some equipment upgrades and repairs before being moved to Kitimat and put to work. She does the same work as the Warnoc, but with more difficulty and more restrictions. Because of her deeper draft and the dangers associated with running a conventional hulled vessel aground, the window of opportunity to operate the Inlet Prowler between Minette Bay and Clio Bay is much smaller than with the Warnoc. The Inlet Prowler has run aground twice since she was purchased; in one case causing damage to a second boat positioned to keep her upright, and in the other, sustaining damage herself.
(a) Cross-examination [65] When purchasing the Warnoc, Mr. Archibald clarified that the new Kort nozzle, propeller and shaft that were included in the purchase, were installed as he was buying her or shortly afterwards, not prior to his purchase. This was done before the insurance survey of 2008, conducted two weeks after he purchased the Warnoc.
[66] With respect to the major refit of the Warnoc, it is Mr. Archibald’s opinion that work done on a vessel can increase her value dollar for dollar, or more in some cases. Further, he believes that repairs and smaller refits can sometimes increase a vessel’s value.
[67] In having the Warnoc surveyed again, Mr. Archibald admitted that while Captain Rose had been to Kitimat and surveyed other Snow Valley vessels twice since the major refit of the Warnoc, it was not possible to schedule a survey for her at those times.
[68] Mr. Archibald confirmed that when Mr. Collins and Mr. Hansen were operating the Warnoc, they shared their duties. He admitted that whoever is running the vessel is responsible for her safety, and if asked to do something unsafe, they should refuse to do so.
[69] Mr. Archibald also clarified that it is common practice for an assist tug to move the Seaspan crew from the barge to the tug and vice versa during loadings, and that given it is not part of the contracted work, it is done for free, to save the crew the hassle of calling a service boat every time they need a lift.
[70] After the Warnoc sank, Mr. Archibald contacted Mr. Harlow to help him locate a replacement vessel, having used his services before. He insisted that he only asked Mr. Harlow to locate some comparables. The remainder of the investigations was conducted by himself and Captain Rose, eventually resulting in the purchase of the Inlet Prowler.
[71] As a replacement vessel, while the Inlet Prowler does the job of the Warnoc to some degree, she is more difficult to operate and more limited in her capacity to work, as she is larger and with a deeper draft. As a result, Mr. Archibald has had to use other vessels in Snow Valley’s fleet, which leaves them unavailable for other work.
[72] Mr. Archibald admitted that the length of time an engine on a boat lasts depends on many factors, but that despite having stated that the Inlet Prowler needed a completely refit engine shortly after purchase, she has been operating for nearly four years without one thus far.
(b) Re-examination [73] Mr. Archibald confirmed that the draft on the Inlet Prowler, while laden, is approximately nine feet. Due to her deeper draft, at times he needs to use two vessels to do the work the Warnoc could do on her own, which reduces the work he can contract for since an extra vessel is tied up.
(3) Captain Donald Rose, Plaintiff’s Expert [74] Captain Rose has over forty-eight years of experience in the marine industry, and has testified in Court as an expert witness and a consultant on marine matters. He has also conducted vessel valuation and condition surveys and reports accepted by underwriters and the Courts. In addition, he has operated pod hull tugs ranging in size from 16’-30’, and power from 110bhp to 335bhp, and was aboard the Warnoc three times prior to her sinking. He has also driven a sister vessel to the Warnoc. The Defendants accepted his qualifications as a Master Mariner and marine surveyor.
[75] He is currently the Master of the Vancouver Division of the Company of Master Mariners, among other titles. He was asked by the solicitor for the Plaintiff to estimate the fair market value of the Warnoc as of October 4, 2011, as well as her particular value to her owner. He delivered this opinion in a report dated September 11, 2013. He was also asked to provide a market value estimate for the Warnoc by Captain James Archibald in 2011, and delivered his opinion in a report dated December 16, 2011.
[76] Captain Rose based his estimate on personal knowledge of the vessel, receipts for new equipment installed, invoices for work done, research on comparable vessels, personal knowledge of the marine industry, and personal knowledge of RSL Shipyards, where the Warnoc was built.
[77] Captain Rose outlined that the Warnoc’s primary purpose was the towing of log rafts from Minette to Clio Bay, and assisting log barges in Clio Bay. The navigation channel from Minette Bay to Douglas Channel is shallow and formed by sand and mud bars that shift, occasionally changing the regular depths of areas of the channel, resulting in an increased likelihood of contact with the bottom.
[78] Captain Rose is of the opinion that the Warnoc was well suited to this type of work because of her “shallow draught, good pulling thrust and flat bottom typical of her pod hull configuration”. He enumerated a number of reasons that flat bottom pod hull tugs, like the Warnoc, are so well suited:
• they do not lay over on their side when grounded, and can turn with relative ease;
• their wide flat surface means they do not tend to dig into the bottom;
• they have greater stability than a similarly sized conventional hull;
• when bottom work is necessary a soft sandy bottom where the tide will clear is sufficient (they do not need supports to be held upright); and
• they have greater thrust than a conventional hulled tug of similar power because: (1) the drive shaft is horizontal with the propeller at right angles to it, thrusting straight back (and not angled down), (2) the hull allows for good flow of water to the propeller reducing cavitation and slippage.
[79] In Captain Rose’s opinion, the Warnoc had been completely retrofitted and brought up to like-new condition. He was provided invoices from Snow Valley and a detailed description of the improvements made. In his opinion, Mr. Archibald generally demands a high standard and quality of work in repairs and improvements to vessels owned and operated by Snow Valley. The improvements listed as made to the Warnoc, from 2008 to 2011, are as follows:
• fitted with a Kort Steering nozzle and renewed steering system;
• sandblasted hull inside and out, then the metal was prepped and painted;
• old bulwarks were removed and replaced with new ones;
• renewed cooling system for the main engine;
• deteriorated metal on the deckhouse was cut away and replaced;
• after deck plating was cut away and replaced;
• new windows, seats, matting, and heater in the deckhouse;
• new engine monitoring gauges installed in the wheelhouse;
• complete rewiring with new light fixtures;
• new window wipers;
• new batteries with new box installed;
• new exhaust system;
• rebuilt main engine and reduction system;
• new bilge pumps and plumbing were installed;
• new floodlights;
• new RADAR and two new marine VHFs; and
• new auxiliary fuel tank.
[80] Captain Rose compared the characteristics and performance of the Warnoc and her replacement, the Inlet Prowler, which was the most suitable vessel available immediately after the Warnoc sunk. She cost $218,400 to purchase (inclusive of tax), required $36,326.18 in immediate repairs and work, and is due for another $25,000 in work to rebuild the engine. This brings the total cost of the Inlet Prowler to $279,726.18. He is of the opinion that even with the repairs and work, the Inlet Prowler is not as efficient as the Warnoc, for the following reasons:
• 2’ deeper draught reducing the tidal window in which she can transit;
• conventional hull with a high angle of dead rise from keel to chine resulting in a tendency to lay over on her side when in contact with the bottom, and difficulty turning when aground;
• she must be docked on a proper grid when bottom work is necessary;
• she has a tendency to dig into the bottom as a result of being equipped with a Kort Nozzle, making her difficult to free; and
• does not pull with as much thrust and burns more fuel per hour.
[81] In his December 16, 2011 report to Mr. Archibald, Captain Rose valued the Warnoc at between $325,000 and $350,000 and he continues to hold this opinion. He also estimated the cost of replacing the Warnoc with a new vessel at $600,000.
[82] After the Warnoc sank, Mr. Archibald requested Captain Rose’s help in his initial search for a replacement vessel once receiving some suggestions from Mr. Harlow. Captain Rose visited a number of boats for Mr. Archibald as well as accompanied him once he arrived in Vancouver. One of these vessels was a pod hulled vessel called the North Arm Logger, listed at $150,000. In Captain Rose’s opinion she was in terrible condition and not worth purchasing and refitting.
(a) Cross-examination [83] Captain Rose began doing insurance surveys in 2009. He stated that the value of a vessel has at least something to do with the work she is needed for; generally though, a vessel is worth what someone will pay for her.
[84] He has regularly done surveys for Snow Valley and believed he had been aboard the Warnoc in July and October of 2010. He then clarified he had seen the Warnoc since her refit, while she was on the dock in Kitimat, sometime after April 2011 when doing a survey of another Snow Valley vessel. He could not survey the Warnoc at the time, due to time constraints and offered to do so at a later date.
[85] Though Captain Rose had been aboard her a number of times, he never charged for any work related to the Warnoc. Any experience he had with her was more serious than a casual glance, but was not based on a full professional survey.
[86] He agreed that the Plaintiff is not the only company operating in Minette and Clio Bay offering log booming and towing services, and confirmed that other conventional hull boats regularly operate there.
[87] It was his opinion that an engine rebuild would have had to happen on the Warnoc at some point, as is the case with any vessel. He agreed that every 21,000 hours of use is a reasonable average for an engine before a rebuild is necessary. He was unaware that the Inlet Prowler was going to have a rebuild four years after her purchase.
[88] In assessing the value of the Warnoc, Captain Rose considered the listed items of work included in his report, and admitted that a number of them are small in cost and added value. He insists though that he reached his estimate with the aid of contacting ship yards in the Vancouver area to determine what the work would cost. He further based his opinion on the value of the Warnoc to her owner.
[89] Defense Counsel presented two listings of boats Captain Rose had surveyed: the Coast 12 and the Pacific Hawk. He valued the first at $225,000 after a survey conducted in 2012. The vessel is currently listed at $80,000 in a bankruptcy sale, though he is not certain of her current condition. The second vessel was valued at $550,000 after a 2009 survey and eventually sold for $250,000. The owner had no more work for the Pacific Hawk and was willing to sell at a discount.
[90] Captain Rose held a master certification from 1971-2009 and agreed that a master is in control and command of their vessel and is responsible for her manoeuvres and her safety. If something unsafe is suggested then it should not be followed.
(b) Re-examination [91] Captain Rose stated that if a senior mariner from a towing tug comes aboard a smaller vessel, it would be natural for the operator of the smaller vessel to assume the senior mariner would make sure operations were safe, at least in part since he is at risk himself.
[92] He further stated that the invoices provided for work on the Warnoc do not give a complete picture of the value of the vessel, as they do not account for a great deal of the labour, time and work expended that are also relevant to such a calculation.
B. Defendants’ witnesses (1) Joe Zizic [93] Mr. Zizic is the head loader for the Survivor and has been in the logging industry for over twenty years. He became a crane operator in April of 2000.
[94] He has been to Clio Bay at least fifty times on the Survivor since 1993 and more on other barges, using the same loading procedure and type of assist vessels. Mr. Zizic confirmed that it is common practice for an assist tug, like the Warnoc, to be the last to leave an area once the loading of a log barge is complete.
[95] He confirmed that the stern anchor on the Survivor is attached to 90 feet of chain, then a long cable. While a report from Captain Westmoreland of Seaspan suggested that the aft pintle crane should have been used in the operation instead of the dozer boat crane, Mr. Zizic disagreed. The aft pintle crane on the Survivor is not long enough to have reached over the stern of the boat to be used on October 5, 2011, unlike some other log barges.
[96] On the night of the incident, Mr. Zizic was working with three other loaders. They had begun to leave Clio Bay on the water taxi, the Northern Lights, after a normal loading when they were called back to the barge by Captain Dodds to assist in freeing the Survivor’s fouled stern anchor. Mr. Zizic is not customarily involved in the raising and lowering of the anchors, but the Captain thought he might be able to help in the event of a mechanical issue.
[97] After arriving on the Commodore and changing into their uniforms, Mr. Zizic and the other loaders then returned to the Survivor, saw the fouled anchor from aboard the Northern Lights and boarded the Survivor. They gathered at her stern to meet with the crew of the Warnoc and Mr. Nicol (who was also aboard the Warnoc), and Mr. McCreery.
[98] At no point did Captain Dodds give any instructions as to what was to be done. Mr. Zizic stated that Mr. Nicol had been “left in charge” during his discovery, but later clarified at trial that he was left in charge of the barge itself and Mr. McCreery, not the Warnoc or her crew.
[99] Mr. Zizic stated that at the meeting at the stern of the Survivor there was discussion of the weight capacity of the dozer boat crane and whether or not it would be able to hold the anchor with a safety line, as well as plans of action. It was estimated the anchor weighed five tonnes; Mr. Zizic added another tonne for the chain making a total of six tonnes he thought the dozer boat crane might have to hold, a weight he was comfortable with.
[100] It is Mr. Zizic’s recollection that Mr. Collins initially suggested using the Warnoc to try and pull the anchor free and that Mr. Hansen had said nothing. He further recalled that no one objected to the plans discussed at this meeting.
[101] Before any attempts to free the anchor, a safety line was tied from the dozer boat crane to somewher