Is a ship operator liable for his/her wake?
The short answer to this question is yes.
In Canada, there is no legislation that expressly provides that a vessel is responsible for its wake, however, provisions in the Collision Regulations requiring safe speed and lookout have been used to establish liability for ships whose wake was unreasonably large/dangerous. This makes good sense since there is a direct correlation between a ship’s speed and its wake size.
The relevant sections of the Collision Regulations are Rules 5 and 6 which provide that:
Rule 5 – Lookout
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.
Rule 6 - Safe Speed — International
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
Although the Collision Regulations refer to “collisions”, it is generally accepted that a ship’s wake can cause a “collision” such that physical contract between a ship and other property is not required. In Chamberland v. Fleming, 1984 CanLII 1289, the operator of a jetboat, whose wake caused a canoe to capsize killing its passenger, was found liable for failing to keep proper lookout and proceeding at a high speed “without looking back to see whether the canoe would be affected by the waves created by the boat.” In addition, Canada has modified Rule 6 of the Collision Regulations to expressly provide that ships which are passing another vessel at work (such as dredges which are particularly sensitive to wakes) must proceed at a speed that will not adversely affect the vessel at work:
In the Canadian waters of a roadstead, harbour, river, lake or inland waterway, every vessel passing another vessel or work that includes a dredge, tow, grounded vessel or wreck shall proceed with caution at a speed that will not adversely affect the vessel or work being passed, and shall comply with any relevant instruction or direction contained in any Notice to Mariners or Notice to Shipping.
Notably, the Department of Fisheries and Oceans frequently issues “no wake” advisories. Failure to comply with such advisories is obviously a clear path to establishing liability.
Wakes can also cause significant shoreline erosion. In these cases, liability is harder to establish since the property owner must prove a direct causal connection between the wake and erosion – a difficult task if there are other natural forces are at play. It is also more difficult to pinpoint liability on a specific ship when many ships incrementally contribute to the erosion.