Bow-Wave Liability
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.