Tofino Marine Adventure Tourism Incidents

Marine “Adventure Tourism” Incidents – A Leviathan in Uncharted Waters

The recent tragic capsizing of the Leviathan II, a whale watch vessel, sadly highlights one of the most uncharted areas of Canadian marine law that exists today.  When is a vessel engaged in an activity considered to be “adventure tourism” and how does being on a vessel engaged in “adventure tourism” affect the legal rights of its owners, operators and passengers when an incident occurs?  This is a question that courts in Canada have not yet had to answer, despite its importance and the growth of the “adventure tourism” industry.

The Background – the Athens (Passenger) Convention

As most readers will already be familiar with the general factual background of the capsizing of the Leviathan II, I will focus on outlining the legal backdrop of passenger claims for such incidents.

The legal rights of passengers on non-pleasure vessels operated along Canada’s coastline (and within it rivers and lakes) are governed by the Marine Liability Act (“MLA”).  Enacted in 2001, the MLA adopted as law, with some modification, the international Athens (Passenger) Convention.  As a law, the Athens Convention represents a trade-off of rights between passengers and vessel owners/operators (for convenience I refer to them collectively as “owners”).  The Convention allows vessel owners to limit their financial responsibility to injured or deceased passengers (and their dependents) to approximately $320,000 per passenger, as well as a cumulative limit for multiple claims arising from one incident (this cumulative limit depends on the tonnage of the vessel).  In exchange, owners cannot demand the passenger waive their right to sue when they agree to sell the passenger passage on the vessel.  Such “waivers” are otherwise contained in the fine print of many activities we undertake everyday, from buying a ski-lift ticket to renting a bicycle.  Also, in exchange, in cases of shipwreck, collision, stranding, explosion, fire or defect in the ship, the passenger does not have to prove the incident was caused by the owner’s negligence; their fault is presumed.  In sum, the MLA balances the rights of passengers and their dependents to compensation for an incident with the financial vulnerability of vessel owners in order to protect an adequate and safe supply of public marine transportation in Canada; a country that boasts the longest coastline and greatest number of lakes in the world.

The relevant twist to this legal regime came in 2009 when the MLA was amended, providing for an exclusion for “adventure tourism” activities.   This exclusion meant that if a vessel was engaged in an activity that met the definition of “adventure tourism” then the owner could include a waiver in its passenger contract (meaning the passenger waived their right to sue for injuries or death).  The corresponding compromise for the owner was that the owner could no longer limit their financial liability in the case of an incident to the same extent as they could before.  When this exclusion was enacted, there was likely a presumption on the part of vessel owners that it made no difference that they lost the right to a lower limit of financial responsibility because a diligent adventure tour operator would use an effective waiver in their ticket sales procedure.  In other words, a higher limit of financial responsibility did not matter because the waiver meant it would never be called on.  The exclusion provided greater legal and financial certainty to owners and their insurers.

The Uncharted Law – When is an Activity “Adventure Tourism”?

The exclusion for vessels engaged in adventure tourism activity is not as clear as it may first sound.  When is a vessel in fact participating in an “adventure tourism” activity, such that it can rely on a waiver to stop an injured passenger (or their dependents) from suing?  As the courts have yet to answer this question, these are uncharted waters.

The MLA provides that an adventure tourism activity is one that fulfills all of the following conditions: (1) it “exposes participants to an aquatic environment”, (2) “normally requires safety equipment and procedures beyond those normally used in the carriage of passengers”, (3) is one where the “participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers” and (4) “its risks have been presented to the participants and they have accepted in writing to be exposed to them”.  Only if the activity meets all of these characteristics is it an “adventure tourism” activity in which the passenger can be bound to a waiver.

What is interesting about these criteria?  It is not the first criterion; if you are on a boat on water, you are likely exposed to an “aquatic environment”.  The fourth criterion is also largely uncontroversial; it simply refers to whether the owner has presented the waiver to the passenger and the passenger has signed or otherwise agreed to it in writing.  It is the second and third criteria that will be the subject of legal argument.

The second criterion requires that the activity be one that “normally requires safety equipment and procedures beyond those normally used in the carriage of passengers”.  This is problematic.  Simply put, what is normal?  Transport Canada regulates the minimum safety equipment for passenger vessels, but is that standard normal, or is what the industry participants adopt normal?  For example, there are many tour operators that provide their guests with exposure suits, such as passengers on open deck, rigid hull inflatable boats.  Is the provision of this equipment normal (even though it is not required by Transport Canada)?  If it is normal for this type of a vessel, then the second criteria is met and the operator may be conducting an “adventure tourism” activity and can rely on a waiver.  What about a vessel like the Leviathan II, which had enclosed and exposed passenger spaces and passengers were not provided with exposure suits or required to wear life jackets (in compliance with Transport Canada regulations).  Arguably, the passengers on the Leviathan II were not involved in an adventure tourism activity (and could not be bound by a waiver) because they did not require safety equipment and procedures beyond normal for a passenger vessel.

The third criterion is also problematic.  That criterion requires that “participants are exposed to greater risks than passengers are normally exposed to in the carriage of passengers”.  What risks are normal in the carriage of passengers?  “Normal” typically refers to an average or baseline.  Is this average risk based on the typical risks to passenger carriage in a geographic area, or on a type or size of vessel, or a combination of these factors?  Clearly the risks to passengers are different between carriage on the SeaBus across the Vancouver Harbour then on a transit aboard a small enclosed passenger vessel crossing Queen Charlotte Sound.  Are either normal?  Would the riskier transit mean that the owner of the vessel could bind the passenger to a waiver simply by requiring them to wear an exposure suit for example? There are countless different fact patterns that raise questions like these.

Clarity in this area of law will only be charted when judges are asked to answer questions like the ones above.  Unfortunately, that clarity will only come as a result of lives lost or irreparably harmed.

Darren Williams is marine lawyer specializing in injury claims and is a partner with League and Williams Law Corp, in Victoria B.C. Canada and can be reached for comment at dwilliams@leaguelaw.com, or 250-888-0002.  His emergency phone is 250-589-2174.