Two boats collided on Christina Lake. One boat carried six people, including a police sergeant, Mr Chernoff, to a stargazing spot on the lake. This boat was owned by Mr Kinakin, who also operated the boat on this trip. When they reached the spot, Mr Kinakin turned off the engine and switched off the lights for the best experience. Another boat, owned by Mr Chilcott, carried four people, including himself, from the north end to the south end of the lake. Mrs Chilcott was operating the boat at an estimated speed of 20-25 miles per hour when it collided with Mr Kinakin's boat.

The trial Judge held that Mr Kinakin, Mr Chilcott and Mrs Chilcott were negligent. The Judge apportioned 75 per cent liability to Mr Kinakin. He did not comply with the light display requirements under the Small Vessel Regulations. His boat lights were switched off and there was an improper and ineffective lookout. His liability was not limited by ss 647 and 649 of Pt XIV of the Canada Shipping Act, RSC 1970, c S-9. The Judge apportioned 25 per cent liability to the Chilcotts. The burden rested on Mrs Chilcott to demonstrate that the cause of the collision was not due to her non-compliance, but she did not discharge this burden. It was reasonable to expect some boat traffic to be present at that time and her speed was 'somewhat excessive'. A reasonable speed would be one half the distance of visibility, or approximately 7 miles per hour in these circumstances. The Judge found no contributory negligence on the part of Mr Chernoff. Mr Chernoff knew virtually nothing about boating. Instead, Mr Kinakin, who was an experienced boater, should have warned people of the possible dangers of going out onto the lake and turning the lights off.

Mr Kinakin, Mr Chilcott and Mrs Chilcott appealed the trial Judge's decision. Mr Kinakin submitted that ss 647 and 649 of the Canada Shipping Act should have been applicable to limit his liability. Mr Kinakin argued that he could enjoy the limitation of liability provided for a master in s 649. The decisions to stop the boat at the viewing spot and turn off the lights were master's decisions which rendered him at fault as a master, but not as an owner. The words 'any person acting in the capacity of a master' included anyone exercising one of the functions of a master. Mr Kinakin contested the compatibility of the Judge's interpretation of ss 647 and 649 with the LLMC 1957. Mr Kinakin also submitted that a greater degree of fault should have been attributed to the Chilcotts.

The Chilcotts submitted that Mr Kinakin was to blame for the collision. Mr Kinakin's boat could not be detected and Mrs Chilcott had to assume that vessels underway on the lake would comply with the fundamental requirements of the Regulations. However, the Chilcotts, they argued, were not negligent. The Regulations only required travel at a safe speed so that the vessel could take effective action to avoid collision and stop within an appropriate distance. They were travelling at half speed and so could change speed to effect a safe passing if lights were observed.

All three also submitted that Mr Chernoff was contributorily negligent. Mr Chernoff was a senior police officer and at the time of the accident, head of an investigating team for the co-ordinated law enforcement unit and so should have advised Mr Kinakin of the potential hazards of this activity.

Held: Appeal dismissed.

Mr Kinakin failed to discharge the burden of establishing that he, as owner, was in no way at fault or privy to what occurred. While his failure to keep a lookout arose in the course of his exercise of the functions of a master, the decision to turn off the boat lights was made ashore as owner and was akin to taking a boat not equipped with lights out onto the lake at night. It was not the first time that he had taken people out in his boat on similar stargazing tours. Accordingly, he did not qualify for the limitation of liability in s 647 even though it applied to non-commercial pleasure craft and its limitation of liability did not offend the Charter of Rights and Freedoms.

Section 649 extended the limitation to 'any person', including an owner who was at fault, but only if it was established that at the relevant time he was acting in his capacity as master rather than owner. The intent of the scheme of the section would be contradicted by an interpretation that an owner who was not performing the function of master could still limit liability as master because the definition of master included 'every person who has command or charge of the vessel' (s 2). Articles 6.1-6.3 of the LLMC 1957 also assisted the interpretation of s 649. Article 6(3) provides that '[w]hen actions are brought against the master or against members of the crew such persons may limit their liability even if the occurrence which gives rise to the claims resulted from the actual fault or privity of one or more of such persons. If, however, the master or member of the crew is at the same time the owner, co-owner, charterer, manager or operator of the ship the provisions of this paragraph shall only apply where the act, neglect or default in question is an act, neglect or default committed by the person in question in his capacity as master or as member of the crew of the ship.'

It was an exaggeration to say that Mr Chernoff knew virtually nothing about boating, but his experience was far less than that of Mr Kinakin, who had owned and operated his boat on Christina Lake for six years. Proper measures for his own safety did not require Mr Chernoff to take any steps and he could assume that Mr Kinakin was acting competently and with proper concern for the safety of those aboard.

Accordingly, the 75:25 apportionment was upheld.