Rescuer Law: Compensation for Mariners Injured Rescuing Persons or Property?

“If a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger.  He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is [his intention to assist], if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.” –Lord Denning (Videan v. British Transport Commission, 1963).

These weighty words raise the interesting question: what is a mariner’s right to compensation for death or injury suffered when responding to danger (to anyone’s life or property) caused by someone else’s negligence?

By way of background, until the early 1900s, rescuers of the victims of negligent actors were denied compensation because the rescuer was seen to have voluntarily assumed the risk of the rescue they embarked on.  However, this law discouraged people from responding to those in need of rescue, so courts slowly began to recognize that the response to an emergency situation was not truly voluntary, but rather was brought about by the urgency of the circumstances, and the call of moral duty.

The most prominent maritime case to touch on this issue was the 1972 Supreme Court of Canada decision in the tragic case of Horsley v. MacLaren. Mrs. Horsley was the widow of a passenger who jumped overboard to assist another passenger that had fallen into Lake Ontario.  Mrs. Horsely sued Mr. MacLaren, the master of the vessel, accusing him of negligently maneuvering the vessel in his attempt to reach the first victim (he backed stern-to the victim, rather than executing an Anderson or Williamson turn), compelling her deceased husband, another passenger, to jump overboard to assist.  Both passengers died of cold shock.

More recently, in 2007, the B.C. Supreme Court considered rescuer law in the case of Smith v. Tucker.  Mr. Smith was a taxi driver who stopped to assist Ms. Tucker, whose truck had run out of gas in the middle of a busy intersection in Vernon B.C.  While pushing Ms. Tucker’s truck out of the intersection, Mr. Smith severed a tendon in his knee, which despite surgery, resulted in a permanent disability. Although not a maritime case, the reasoning of the court, discussed below, is applicable to maritime rescues.

Over the last 100 years the following legal principles have emerged which now guide courts in deciding whether an injured rescuer has the right to compensation.

There must be imminent danger to person or property.

The reaction of a person will only be deemed to be a true rescue if there is immediate peril to person or property.  For example, in the Smith v. Tucker case above, the Court dismissed the claim of the taxi driver, finding that “the defendant’s truck had stopped moving; there was no collision between any vehicles; no one suffered injury as a result of the truck stalling and, regardless of where the defendant’s truck had come to rest, other motorists were sensibly not attempting to drive past her vehicle.  The defendant was not trapped in her vehicle, nor was she rendered helpless by the incident.  There was simply no situation of imminent peril that would warrant treating the plaintiff’s actions as being those of a rescuer”.

The danger responded to must be caused by someone’s negligence.

An injured rescuer has no right to compensation unless the danger they are responding to was caused by the neglect of another person, as opposed to danger caused by a pure accident arising without fault.  For example, a ship’s propulsion system fails despite reasonable maintenance and the ship founders, requiring another vessel to rescue her crew.  Such rescuers would not be entitled to compensation if injured during the rescue because the danger was not created by the negligence of the stricken vessels’ crew, but merely by mechanical misfortune.

The actions of the rescuer must be reasonable and foreseeable.

The actions of the rescuer must be in proportion to the interest being saved, and must be within what a reasonable person would expect someone to do in the circumstances.  For example, in one case, a car wash employee attempted to prevent damage to a customer’s vehicle, and his employer’s building, by pushing on the hood of the vehicle which had been left in gear by the customer and was idling towards the building.  The employee was crushed between the vehicle and the building and sued claiming he was a rescuer.  The court denied his claim finding that his actions were neither reasonable nor what someone would expect him to do.

The rescuer’s decisions need not be perfect.

If the effort taken is reasonable, the rescuer will not be barred from recovery simply because they did not adopt the best possible course of action in effecting the rescue.

More deference is given to saving life than saving property.

The courts have found that the instinct to save another’s life is greater than the instinct to save another’s property.  A hazardous intervention to save life is more likely to be a natural and probable consequence of a negligent act than one to save property, and therefore in the reasonable contemplation of a reasonable person.  This means, generally, a person who is injured while saving life is more likely to receive compensation than a person who is injured while saving property.

Legal duty to act bolsters claim.

Courts will be more likely to grant compensation where the rescuer acts as a result of a legal duty imposed on them (as opposed to simply a moral duty).  Two cases involving runaway horses demonstrate this principle.   In the first case, a police officer was injured while trying to restrain a horse spooked in a large crowd of people after its owner had left it unattended.  In the second case, a passerby stopped to assist a person in distress while restraining a runaway horse in a field, and was injured while climbing the pasture fence.  The Court granted compensation to the police officer who was under a legal duty to act in the first case, but not to the passerby who was acting as a voluntary good Samaritan in the second case.

Marine Rescues under the Canada Shipping Act (2001):

The last point above, that a legal duty will assist an injured rescuer in obtaining compensation for their efforts, is significant because there are few industries in which a duty to rescue is imposed by legislation, and marine industry is one of them.

In particular, section 131 of the Canada Shipping Act 2001 provides that the master of a vessel in Canadian waters, on receiving a signal from any source that a person, a vessel or an aircraft is in distress, shall proceed with all speed to render assistance.  Section 132 provides that the master of a vessel shall render assistance to every person who is found at sea and in danger of being lost.

Although it appears no court has considered the effect of these sections on rescuer law, in our view, these two sections place clear legal obligations on mariners to render assistance to those in need at sea, and therefore serve to reinforce, or legitimize, the rescuer’s reason for responding, making it more likely the court would award damages.  The Supreme Court of Canada in the Horsley v. MacLaren case above considered the equivalent of these sections in the former Canada Shipping Act, but the Court found they did not need to consider the effect of the sections because there was sufficient law regarding the duty of a passenger vessel’s master (without relying on the Canada Shipping Act’s requirements) to find the master had a general duty to ensure the safety of his passengers.

Darren Williams is a founding partner of League and Williams where he practices marine law, personal injury law and estates disputes.  Darren can be reached at dwilliams@leaguelaw.com or 250-888-0002.