Recreational Boating, Death, and Personal Injury

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 1065-1087

1065

CHA PTER 25

RECREATIONAL

BOATING, DEATH,

ANDPERSONAL INJURY

A. INTRODUC TION

Maritime torts giving rise to death or personal injury at sea may arise

in a wide variety of situations. The most common include injuries on

board, groundings, collisions between ships, and collisions with sta-

tionary objects such as cables, jetties, and bridges. The resulting loss

may include loss of life or personal injury, loss of earnings, loss of com-

petitive advantage, and future care costs.

Various aspects of maritime tort law are addressed in the chapters

in this volume on maritime collisions and allisions, carriage of passen-

gers, and limitation of liability for maritime claims. For the most part,

these chapters address damage to property, personal injury and death

in a commercial operation. This chapter focuses on personal injury and

death as a result of recreational boating accidents and in non-commer-

cial vessel operations in a Canadian maritime law context.

1) Differences between Commercial and Recreational

Operations

In most cases recreational boating in Canada involves vessels that are

under 15 gross tonnage and that are considered “pleasure craft” as de-

f‌ined in the Canada Shipping Act, 2001.1 The Act def‌ines pleasure craft

1 SC 2001, c 26 [CSA, 2001].

PART VII: SPECIAL ISSUES IN M ARITIME LAW1066

as “a vessel that is used for pleasure and does not carry passengers.” For

the purposes of the def‌inition “a guest on board the vessel, if the vessel

is used exclusively for pleasure and the guest is carried on it without

remuneration or any object of prof‌it,” is not a passenger.2

The Small Vessel Regulations3 set out the requirements for the con-

struction, equipping and licensing of pleasure craft. The Regulations

also deal with the requirements for the reporting of accidents involving

pleasure craft.4

Personal watercraft are a sub-group of pleasure craft. A personal

watercraft is a vessel less than four metres in length that uses an internal

combustion engine powering a water-jet pump as its primary source of

propulsion, and that is designed to be operated by a person or persons

sitting, standing or kneeling on the vessel and not within the conf‌ines

of the hull.5

The liability legislation in place in relation to maritime matters, the

Marine Liability Act,6 does not refer to pleasure craft but rather contains

certain liability regimes depending on whether the vessel is or is not

operated for a “commercial” or “public purpose.”7

2) Licensing of Vessels and Operators

A pleasure craft licence is a document with a unique licence number for

the pleasure craft. The number allows search and rescue personnel to

access important information in an emergency.

The law requires all pleasure craft powered by a 10 horsepower

(7.5 kW) or more engine, to have a pleasure craft licence,8 unless they

have a vessel registration.9 There is a C$250 f‌ine if a person is found

operating a vessel without a licence. The operator must carry a copy of

2 Ibid, s 2(b)(ii).

3 SOR/2010-91.

4 Ibid, s 1100.

5 Ibid, s 1.

6 SC 2001, c 6 [MLA].

7 See the def‌inition of passenger in s 24, ibid. Limitation of liability for vessels not

operated for a commercial or public purpose is C$1,000,000 for personal injury

or death.

8 See Small Vessel Regulations, above note 3, Part 1.

9 Vessels less than or equal to 15 gross tonnage used for commercial purposes with

propulsion motors 10 horsepower or more are required to be registered under the

Small Vessel Register. Vessels more than 15 gross tonnage used for commercial

purposes or vessels that require a marine mortgage are required to be registered

in the Canadian Register of Vessels. Vessels less than or equal to 15 tonnage used

for pleasure purposes have the option of being registered under both systems.