Whether the result of unexpected storms, human error, inexperience or recklessness, tragic boating accidents occur every year in Ontario as we try to make the most of our summers and are drawn to the many beautiful lakes and rivers in our province.
In autumn of 2018, three separate boating accidents resulted in fatalities. In early September, a tragic boating accident occurred near Rockport on the St. Lawrence River and led to the death of an 11-year-old boy. The boat was carrying the boy’s father and 4 other children when it flipped and capsized in rough water, but only the 11-year-old could not be saved and remains missing. In the same month, another fatal accident occurred in the Bracebridge area lake and involved a man who was thrown from his boat and drowned. Finally, in October 2018, Ontario Provincial Police led a search for one of three men who were in a boat on Lake of the Woods when it capsized and ultimately caused the death of all 3 boat occupants.
The three men in the latter accident were not wearing a floatation device. And, while a life jacket doesn’t guarantee survival when you land in the water in rough weather or in very cold temperatures, failure to wear a floatation device strongly correlates with fatal injuries in recreational boating accidents. In order to highlight the importance of wearing a floatation device to save lives, Ontario police pointed to three separate boating accidents in April 2017 - the accidents resulted in the death of a 23-year-old Scarborough man, a 28-year-old woman from Halton Hills, a 22-year-old Richmond Hill man and two others, and in each of the cases none of the boaters were wearing a life preserver.
Liability for Boating Accidents
In Ontario, you are not required to carry insurance coverage for liability or damage to your motorboat, jet ski or other motorized watercraft. Without such coverage, if your boat is damaged while being stored or if you cause damage while driving, you likely have to pay for the repair out of pocket. However, the greatest financial risk to boat owners can occur if the owner or driver of the boat causes injury to someone else on the water, a passenger in the boat or a water-skier being pulled behind the boat. In such a case, the injured person is entitled to sue the boat owner for any losses associated with their injury, similar to civil actions arising from automobile accidents.
Anyone who drives a boat is subject to the same driving laws that apply to motor vehicles. This means that you can be criminally charged if you are driving while impaired by alcohol or drugs. And, if the driver of a boat causes an accident due to their recklessness or inattention, they can similarly be held liable for any injuries that result. However, one difference between watercraft and automobiles is the fact that the ‘no fault’ accident insurance you carry on your car or truck does not provide personal injury benefits if someone is injured in a boating accident involving your boat.
Some boat owners choose to protect themselves by purchasing Protection and Indemnity insurance which is a marine insurance that provides coverage for damage to the boat as well as for personal injury. With this coverage, the insurance company is also obligated to help with investigation of your case and in providing a defence if you face a personal injury lawsuit arising from a boating accident you are alleged to have caused.
Canada’s Marine Liability Act (MLA) gives anyone who was injured during the operation of a pleasure craft the right to sue for damages against the boat owner or operator. If the boat caused, or partially contributed to, an individual’s injury and the accident was deemed to have been your fault or caused by driver negligence, the boat owner can face significant legal liability. The Act states that the maximum liability amount is determined by the boat’s tonnage, rather than the nature of the injury, and the maximum applies regardless of how many people are making a claim. For accidents involving boats or vessels that are less than 300 gross tonnage, accident victims may seek compensation to a maximum of $1 Million for injuries or loss of life. However, if the vessel was being driven recklessly or criminally (such as, while intoxicated), an accident victim may be entitled to claim more than $1 million “since the boat operator would have to be familiar with boating safety regulations or known that the harm was foreseeable”.
Boat owners and operators are also potentially liable if a mechanical problem with the boat of a lack of seaworthiness resulted in a person’s injury, and the owner/operator should reasonably have known about the danger or state of unrepair. And, if negligence in the maintenance and operation of a boat resulted in someone’s death, close relatives of the deceased person may file a wrongful death action against the boat owner to compensate for losses the accident victim would have suffered if they survived.
In Ontario, boaters are required to have a life jacket or personal floatation device (PFD) on board for each person on the boat. If someone drowns under conditions where they may have been saved had they been wearing a PFD and the boat owner knowingly failed to have enough PFD’s onboard, the boat owner may be liable in a wrongful death claim.
Not unlike a motor vehicle accident, if you were involved in a boating accident that caused injury to any person, you must report the boating accident to police. And, if you sustained injuries in the boating accident, it’s a good idea to seek medical attention even if you initially believe your injuries are not serious, since symptoms sometimes arise days and weeks after an accident and can worsen if treatment is delayed. Finally, talk to a boating accident lawyer at Stevenson Whelton MacDonald & Swan to have your questions answered and find out how to best proceed in order to obtain compensation for any financial and/or psychological losses arising from your injury.