Carter Smith Jr v Nicolaas Bersma

• Jurisdiction: Antigua and Barbuda
• Judge: Floyd, J.
• Judgment Date: 12 January 2012
• Judgment citation (vLex): [2012] ECSC J0112-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV 2009/0718
• Date: 12 January 2012

[2012] ECSC J0112-1

EASTERN CARIBBEAN SUPREME COURT

HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV 2009/0718

Between:

Carter Smith Jr.

Claimant

and

Nicolaas Bersma

Defendant

Appearances:

Lenworth Johnson for the Claimant

Kendrickson Kentish & Kathleen Bennett for the Defendant

Floyd, J.

1 This is a claim arising out of an incident that occurred on February 12, 2007 during the course of a fishing charter in the waters off the northern coast of Antigua. The claimant seeks compensation for injuries, loss and damages suffered during that charter based on a failure of the defendant, his servants or agents, to carry out the service of the fishing charter with reasonable care and skill. Alternatively, the claimant claims his loss was caused by the negligence of the defendant, his servants or agents.

2 The defendant disputes the claim and alleges any injuries, loss or damages suffered by the claimant were caused by an act of God/act of nature.

3 The matter was initiated by way of Claim Form and Statement of Claim filed on December 2, 2009 wherein the claimant enumerated his injuries and his losses, claiming special damages, general damages, costs and interest.

4 By way of a Defence filed on April 12, 2010, the defendant denied the breach of any implied term and negligence, denied liability according to the principle of res ipsa loquitur and sought to limit his liability, if any, in accordance with the terms of the Antigua and Barbuda Merchant Shipping Act, 2006 of the Laws of Antigua and Barbuda 1992, as amended.

5 The trial of this matter took place on April 13, 2011 and April 29, 2011 with both sides calling evidence. A Bundle of Agreed Documents was filed on April 5, 2011. At the commencement of trial, the parties reached agreement as to the admission of two further bundles filed on April 5, 2011 being the Documents Not Agreed and the Additional Trial Documents.

THE EVIDENCE

6 The claimant, Carter Smith Jr., provided a witness statement and testified. He and his party were on a family vacation. They met at the defendant's boat at approximately 6:30 am on February 12, 2007 at Shell Beach for a fishing trip. The wind and waves were so strong it took 15 minutes to steady the boat in order to board. Wind gusts were 15 to 20 miles per hour. At sea, the waves were 6 to 8 feet high. Mr. Smith Jr. was seated in the front or bow of the boat. No safety instructions, no life jackets, and no advice to move to the rear or stern of the boat were given by the defendant and his crew.

7 At approximately 7 am, in open sea, a large wave hit the boat. Mr. Smith Jr. was thrown up into the air 3 to 4 feet, landing hard on his back. He was injured as a result. He was taken to hospital and transferred to a medical centre later that day. He was discharged on February 17, 2007. On February 20, 2007, he was transferred by air ambulance to the USA, his home.

8 Mr. Smith Jr. received a variety of medical care in different hospitals and underwent several surgeries. He received psychotherapy, physiotherapy, and counselling. He recovered reasonably well but still suffers from back pain and is unable to take part in many activities he previously enjoyed.

9 Employment for Mr. Smith Jr. was effected and he was forced to change occupations. His income was effected and although he had medical insurance he was put to a variety of expenses. A good deal of documentation was filed with the court, on consent of all parties and includes income tax returns and medical material.

10 Carter Smith Sr., father of the claimant, testified and provided a witness statement. He indicated that while on board the defendant's boat, no safety instructions, no life jackets and no advice to move to the rear of the boat were given. He was seated in the bow or front of the boat. Weather conditions were rough and windy and it took at least 2 passes to secure the boat for boarding. Wind gusts were approximately 20 miles per hour and waves were 5 to 8 feet high.

11 Approximately 15 minutes into the trip, a major wave hit the boat, throwing Mr. Smith Sr., the claimant and another witness, Hill Griffin, into the air. Mr. Smith Sr. and Mr. Griffin landed on cushioned seats while the claimant landed on fibreglass and was injured.

12 Mr. Griffin testified and provided a witness statement. He is the brother in law of the claimant. The wind and the waves made boarding the defendant's boat difficult. No life jackets and no safety instructions were given. Waves were 5 to 8 feet high. While in fairly open water, a very large wave hit the boat, throwing the 3 members of his party into the air. The claimant fell onto the floor of the boat on his back. Mr. Griffin described the water in the marina as fairly calm and conditions were safe, however, as the boat progressed, waves increased in size. The boat was then in consistent waves until the particularly large wave struck.

13 The defendant, Nicolaas Bersma, testified and gave a witness statement. He indicated that he was retained by the claimant and his party to provide a boat for a fishing charter. The claimant and his party boarded the defendant's boat at approximately 6:50 am on February 12, 2007. There was a crew of 3 including the captain/pilot, the first mate and Mr. Bersma. Mr. Bersma stated that he always indicates where life vests are located during fishing charters. The defendant stated that it is his standard procedure once everyone is settled in the boat to conduct an orientation and he did so on this occasion. He would explain the operation of the toilet and show where life vests are. Three inch decals also indicate life vest locations. He explains there are 2 life rafts on board. Nothing is said about wearing life vests because it is not comfortable to wear them while fishing.

14 Once the vessel reaches the open sea, the defendant examines the conditions and makes a judgement call as to how to proceed. He then explains to passengers that he may have to relocate them if the sea gets rough. However, in this case, the boat never made it to open sea before the wave struck. Therefore, no such indication was ever given. A passenger unfamiliar with seafaring ways might consider the location to have been open sea, however, the defendant stated it was not. The defendant testified that the boat was just about to enter the open sea, however, his witness statement at Paragraph 6 stated that the vessel "was exiting the calm waters in the channel between Bird Island and Long Island entering the open sea (when) a swell approximately 3 feet struck the vessel".

15 The defendant indicated there was no difficulty boarding the boat. There was quite a bit of wind but the water was calm. The wind was nowhere near 15 to 20 miles per hour. The configuration of the marina made it difficult to manoeuvre the boat to the dock. As the boat moved along, the waves were approximately 1 to 2 feet high leading up to the channel. Near the mouth of the channel, there were waves of 3 to 4 feet maximum height. That is when the incident occurred which threw the claimant into the air. The claimant was dislodged from his seat but he was not precipitated 3 to 4 feet into the air. That would not have been possible due to the speed the boat was proceeding at. The boat was travelling at 15 to 18 miles per hour. At that speed, the claimant would have landed in the back of the boat if he had risen 3 to 4 feet. The defendant denied wind gusts of 20 miles per hour. The defendant was beside the console and the 2 man crew was behind the console. The boat, a Boston Whaler, was approximately 6 months old at the time of the incident. The captain was Wayne Adams, however, in the channel the pilot, Bernard Savory, took over. Fifteen minutes into the trip, Mr. Savory assumed control of the boat.

16 Although the defendant acknowledged that the boat hit something and people were dislodged from their seats, he did not see the wave that caused the incident. Although the defendant estimated the waves to be 3 to 4 feet in height at the time, he testified that he did not see the wave that struck the boat. His witness statement referred to a swell of approximately 3 feet striking the boat but he did not actually see the wave. The defendant agreed that the wave may have been higher than 3 feet or the angle of the wave may have caused a significant "jolt" to the boat. He stated the Boston Whaler is a boat designed to withstand 3 foot waves. He agreed that it is possible a wave of 5 to 7 feet could cause an impact throwing people into the air. Although he estimated the waves to be 3 to 4 feet, he agreed it was possible that the waves were 5 to 6 feet. The defendant stated that he did not deem it necessary to make a judgement call and move people to the back of the boat. He has done that from time to time but did not do so in this case as he did not see the wave that struck the boat.

17 The defendant indicated he usually checks the weather forecast every day before charters, however, he could not recall if he checked it before this trip. He finds the "met office" forecasts "fairly" accurate. The forecast from the Meteorological Services Office for this date is found at Pages 22-23 of the agreed documents bundle. It indicates moderate seas with swells of 5 to 6 feet. Small craft were advised to exercise caution against breaking swells.

18 Bernard Savory testified and gave a witness statement. He is a marine engineer who has operated boats for 30 years. He acted as the pilot that day steering the boat through the channel. He described the sea as calm inside the reef. Wind gusts of no more than 10 miles per hour. Conditions were normal. If sea conditions had been rough, persons in the front of the boat would have been soaked and they would have been told to move to the rear of the boat.

19 Mr. Savory was steering the boat. He took over the controls 1 ¹/₂ to 2 minutes before the incident. The...