Citation: Capilano Fishing Ltd. et al. Date: 20000117 v The Owners and All Others Docket No.: C972709 interested in the ship Registry: Vancouver "Qualicum Producer" et al. 2000 BCSC 91 IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CAPILANO FISHING LTD., AND ALL OTHERS INTERESTED IN THE PRODUCTION OF THE F/V "FRANCISCAN NO. 1" and J.S. McMILLAN FISHERIES LTD. PLAINTIFFS AND: THE OWNERS AND ALL OTHERS INTERESTED IN THE SHIP "QUALICUM PRODUCER", ARNOLD PATRICK RECALMA and MARK RECALMA DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE WARREN Counsel for the Plaintiffs: M.L. Smith A. Karr (Articling Student) Counsel for the Defendants: N. Daugulis S. Nossal Place and Dates of Hearing: Vancouver, B.C. May 31, June 1-4, June 7-11, June 21-24, 1999 Introduction [1] The plaintiff Capilano Fishing Ltd. ("Capilano") is the owner/master of the fishing vessel Franciscan No. 1. The other plaintiffs are the captain and crew as well as all others interested in the proceeds of the catch. The plaintiff J.S. McMillan Fisheries Ltd. ("McMillan") had purchased the necessary licenses for the venture. The claim by Capilano is as the owner of the net damaged by the defendants. The plaintiffs, save for Capilano and McMillan, say that they are members of a "pool" or a joint undertaking of a commercial enterprise and, accordingly, the pure economic loss defence pleaded by the defendants is not applicable. McMillan's claim is limited to one-half the cost of the licences it paid and not for any of the lost profits. [2] On March 25, 1997 there was an opening of the herring roe fishery off Barclay Sound in the northwest waters of British Columbia. These openings are generally of very brief duration and result in a veritable hurricane of motion on the part of the participating boats. On this occasion there was the usual flurry of activity preceding the opening of the herring fishery in Spiller Channel during which time those boats intent upon setting their nets maneuvered for position and tried to ensure that each was in a position of the greatest opportunity to take advantage of the opening immediately after it was announced. [3] John Brajcich is the captain of the Franciscan No. 1. He testified that his vessel was slightly to the south of the vessel Qualicum Producer which was owned by the defendant Arnold Recalma and operated by his son, the defendant Mark Recalma. Captain Brajcich said the Qualicum Producer was closer to shore. Both captains had been maneuvering in a circle and following a large school of herring which was moving at speed northward up Spiller Channel. At the announcement each began to "set his net". Each captain maintains he started first and there was a great deal of evidence led as to the custom or "Rules of Conduct" dealing with the right of way in a herring roe opening. Whichever boat set first, clearly it was more or less a simultaneous set. [4] It is clear from the video made at the time, and from the wake left by each vessel as shown in the still photos, that the Franciscan No. 1 was embarked on a circuit turning to the right, or starboard, trailing its net and skiff. The Qualicum Producer, to the north of the Franciscan No. 1, started its set by going almost straight out from the beach with the Franciscan No. 1 astern and to its starboard. When the Qualicum Producer had approximately 55 fathoms of its net out, it began its own turn to starboard at which point in time the Franciscan No. 1 was visible from the wheelhouse. The two vessels crossed, the plaintiff maintaining a steady course turning to starboard across the bow of the Qualicum Producer while the Qualicum Producer turned more sharply to starboard. Captain Mark Recalma testified that when he saw that the Franciscan No. 1 had "corked" him and there was the risk of colliding with the Franciscan's net he put the boat into neutral. He did hit the net of the Franciscan No. 1 and some considerable length of the Franciscan's net became tangled in his propeller or propeller shaft with the result that Mark Recalma was only able to close his set after some 15 or 20 minutes and then only by having his skiff pull the end of the net to his boat. The net of the Franciscan No. 1 collapsed and was only closed after the crew of both vessels tied off the net some time later. [5] The Franciscan No. 1 had a substantial portion of her net pulled both up and down by the snagging and the plaintiff says that this action allowed his catch to escape into the net of the Qualicum Producer. When the Franciscan No. 1 was able to eventually close its net, it recovered 33 tons of fish with little commercial value. The Qualicum Producer on the other hand had a catch of 450 tons of herring with considerable commercial value. [6] The plaintiffs' claim is for damages to the herring seine net and for a lost catch of 600 tons of herring and for the loss of opportunity to continue fishing as well as for the value of the licences thrown away. Save for the plaintiff McMillan, the plaintiffs also advance a claim for restitution for unjust enrichment and they seek an accounting of profits with a tracing of the respective catches. Lastly there is the claim by the plaintiffs other than McMillan for punitive damages. The plaintiffs all claim maritime interest and costs. [7] The defendants deny that there was any fault on the part of the master and crew of the Qualicum; rather they submit that the Franciscan's master was in breach of regulations when he set his net in dangerously close proximity to the defendants' vessel thereby creating a hazardous situation. Further, the defendants deny there was any recoverable loss suffered by the plaintiffs, or if there were, then the plaintiffs caused or contributed to their loss and that in any event the defendants are entitled to limit their liability under the provisions of the Canada Shipping Act, R.S.C. 1985, c. S-9. s. 574 ff. Liability [8] The key to my determination of the issue of liability lies largely in the evidence given by Mark Recalma when, in his direct testimony, he said that when his net was out about "55 fathoms" and he heard one of his crew shout that the Franciscan No. 1 was "setting into us", he turned his boat to starboard. This meant that Mark Recalma turned his vessel into the direction of the plaintiff, a course maneuver that ultimately led to running into the net of Captain Brajcich. Under cross examination Captain Recalma said that before altering course from northeast to south he was warned that the plaintiff was setting to the south and he was aware the plaintiff was ahead of him. He also knew of the dynamics of his vessel and that his ship did not "turn on a dime". He estimated his speed at the turn at 8 mph yet on his evidence at the discovery he testified he was setting his net at close to 10 knots. Later still he said he was at full speed until he put the engine into neutral when he saw that he was going to hit the plaintiffs' net. [9] I find that his efforts to avoid contact with the net of the Franciscan No. 1 were too late given his course change and speed. [10] While the custom of the industry does not permit one boat to "cork" another, that is, to go into the set of another, from my view of the video made at the time and the oral evidence of the witnesses, Captain Recalma's vessel was heading in a more or less straight northeasterly line away from shore until he turned to starboard. The plaintiffs' vessel, however, was on a turning course to starboard throughout his set. I cannot conclude that the plaintiff set his net inside the set of the defendant but, in any event, it was Captain Recalma who had the opportunity to slow or stop his vessel before he altered his course. He was aware of the plaintiff's vessel at that time and I find that he took a calculated risk that he could complete his manoeuver and close his net without snagging the plaintiffs' net. He failed and the plaintiffs' net was snagged. Recovery - Tort [11] The plaintiffs say that the measure of damages in tort ought to be to place the plaintiffs in the position they would have been had the tort not been committed: restitutio in integrum. Where there has been a loss of goods or other property the measure of damages then is the market value of the goods lost or, in other words, the replacement cost of the goods. The plaintiffs rely on the decision in The Volturno, [1921] 2 A.C. 544 (H.L.) where the House of Lords ruled that the loss must be measured on the basis of the market value of the goods lost. At p. 563, Lord Wrenbury said: If the plaintiff had been damaged by the defendant tortiously depriving him of three cows the judgment would be: Declare that on January 1 the plaintiff suffered by the defendant's tort a loss of three cows. Declare that on January 1 the plaintiff would have been entitled to go into the market and buy three similar cows and charge the defendant with the price. ... The defendant is not bound to supply the plaintiff with cows. He is liable to pay him damages for having, on January 1, deprived him of cows. The plaintiff may be going out of farming and may not want cows, or, when judgment is given, he may have enough already. The plaintiff is not bound to take cows and the defendant is not bound to supply them. The defendant is liable to pay the plaintiff damages, that is to say, money to some amount for the loss of the cows: the only question is, how much? The answer is, such sum as represents the market value at the date of the tort of the goods of which the plaintiff was tortiously deprived. [12] The plaintiffs say that the leading authority on the measure of damages where there is no ready market in the thing converted is Hall v. Barclay, [1937] 3 All E.R. 620 (C.A.) Lord Justice Greer, at p. 623, said: ... the only question is, what is the right measure of damages to be applied in reference to a claim for conversion of property which has been found by the judge to have been converted by the respondent company on January 6, 1936. In my judgment, it is an undoubted fact that there are two rules with which we begin in ascertaining how the damage should be ascertained. The first is this: A plaintiff who is suffering from a wrong committed by a defendant is entitled, so far as money can do it, to be put into the same position as if he had not suffered that wrong. That is what is referred to as resitutio in integrum. The second principle which is accepted is that what he is entitled to, as damages for conversion or detention in respect of the article so detained or converted and not returned, is the value of that article. Then the question is, what is the meaning of "the value of that article"? Where you are dealing with goods which can be readily bought in the market, a man whose rights have been interfered with is never entitled to more than what he would have to pay to buy a similar article in the market.... But, if he cannot get them in the market, what is his position? He must do that which is analogous to getting them in the market, namely, he must go to the only people from whom he can get goods to put him into the same position as he would have been in if his [property] had never been taken away from him.... [emphasis mine] [13] The plaintiffs also say that the loss can be measured by the probable profits of the enterprise upon which they were embarked. In S.M. Waddam, The Law of Damages, Looseleaf ed. (Toronto: Canada Law Book, 1991-), the author notes at pp. 5-40 and 5-42 that the most common claim for business loss is loss of profits: the profit the plaintiff would have made but for the wrong. And although often difficult to estimate, probable lost profits have been awarded in a wide variety of circumstances. [14] Alternatively, the plaintiffs submit that they are entitled to the value of the licence costs for entry to the herring roe fishery totalling $240,000, one-half of which were borne by the pool members and the other half by the plaintiff McMillan. This is a recoverable loss alternative to the claim for lost profits if the licence costs thrown away were a foreseeable loss by the tortfeasor. The plaintiffs say that because it is well known in the industry that there are licence costs for engaging in the herring roe fishery, clearly such a loss was foreseeable. While the plaintiffs can point to no cases where licence costs thrown away were recoverable in tort, they rely on the decision of the British Columbia Court of Appeal in Sunshine Vacation Villas Ltd. v. Hudson's Bay Company (1984), 58 B.C.L.R. 33 (C.A), where the plaintiff was held to be entitled to damages for expenses incurred. The court followed the decision of the English Court of Appeal Anglia T.V. Ltd. v. Reed, [1971] 3 All E.R. 690 (C.A.), which permitted a recovery for costs thrown away as an alternative to a claim for lost profits: see also Leroux v. Molgat (1985), 67 B.C.L.R. 29 (S.C.). Recovery - unjust enrichment [15] The plaintiffs' claim for unjust enrichment is based upon the income the defendants earned from their herring catch which the plaintiffs say was landed at the expense of the plaintiffs. Whether the defendants' entire catch came from the plaintiffs' net or there was a mixing of some of the fish with that caught by the defendants, the plaintiffs submit the circumstances here meet the three criteria for recovery in the independent cause of action recognized by the Supreme Court of Canada in Pettkus v. Becker (1980), 117 D.L.R. (3d) 257 (S.C.C.): an enrichment, a corresponding deprivation and an absence of any juridical reason for the enrichment. See also Peel (Municipality) v. Canada (1992), 98 D.L.R. (4th) 140 (S.C.C.). This claim is advanced on the basis of either the Qualicum Producer netting the entire catch of the Franciscan No. 1 because it lifted the net of the Franciscan No. 1 or because at least some of the Franciscan's catch was wrongfully mixed with the Qualicum Producer's catch making it impossible to distinguish one from the other. The plaintiffs say that where there has been such a mixing, the law holds the innocent party is entitled to the whole and at the utmost value possible: Sandeman & Sons v. Tyzack and Branfoot Steamship Company Limited, [1913] A.C. 680 (H.L.); Spence v. Union Marine Insurance Co. (1868), L.R. 3 C.P. 427; Colwill v. Reeves (1811), 2 Camp. 575; and Lupton v. White (1808), 15 Ves. 432. [16] The Supreme Court of Canada in Lamb v. Kincaid (1907), 38 S.C.R. 516 held that where the defendant had wrongfully mixed some placer materials belonging to the plaintiff with its own, the entire mix became the property of the plaintiff. [17] In any event, the plaintiffs say that even if mixing has not been established they are entitled to recover because the defendants profited from their wrongful activity and there need be no demonstrable transfer of wealth from the plaintiffs to the defendants. In Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, Corona revealed some confidential information it had to Lac with a view to entering into a joint venture. The confidential information was used by Lac to acquire mineral rights and the Supreme Court held Lac liable for breach of confidence and that Corona was entitled to pursue a restitutionary claim even though Corona did not have actual property rights to the mineral claims. [I would note here that in Lac Minerals there was a specific finding that Corona would have acquired the rights but for the wrongful act of Lac.] [18] Thus, the plaintiffs argue that under any approach, the plaintiffs have a proprietary interest in the catch of the Qualicum Producer and the defendants hold the proceeds in trust. [19] The defendants say that the evidence of the tonnage which the plaintiffs say was lost from the net of the Franciscan No. 1 is unreliable and that the evidence of the witnesses called by the defendants is to be preferred. The defendants point to the fact that the plaintiffs' witnesses all stood to gain financially from this law suit, unlike the witnesses for the defendants, many of whom were attending the trial at some personal sacrifice. The defendants' counsel also relies upon what he says is the superior equipment used by the Recalmas as well as the evidence of Dr. Thorne that the equipment used by the plaintiffs was reliable only for fish detection and not fish counting. The evidence of Captain Brajcich and other witnesses for the plaintiffs when they testified to seeing a large quantity of fish on their equipment, and to seeing boiling when the two vessels were alongside at a time when the plaintiffs' net was lifted by the Qualicum Producer, is not a reliable basis for establishing loss and their estimate that approximately 600 tons of fish were lost ought not to be accepted. [20] The defendants submit that there is authority which deals with the method of quantifying damages in net fouling situations and the Court must, accordingly, consider the total catch of that particular opening in relation to the total number of vessels fishing that day, including the plaintiffs. In Wishing Star Fishing Co. v. The B.C. Baron, [1987] F.C.J. No. 161 (Q.L.), (T.D.) Joyal J. said: I should find that absent any more accurate method of fixing the quantity of fish lost when the process of pursing up is aborted through a large rip in the net, when accurate sonar or echo sounder measurements are difficult to make, and keeping in mind other contingencies like the fish escaping before the purse line has been made taut, or through the opening near the vessel's hull, the formula adopted by Dube J. in R.A. Roberts Fishing Ltd. v. Canada (Department of Fisheries and Oceans), [1986] F.C.J. No. 666 (Q.L.) (T.D.), the total amount of fish caught divided by the number of vessels involved in the fishery minus the amount of fish actually caught by the plaintiff vessel] provides at least some rational basis for the estimation. [21] According to the evidence of John Davidson of the Department of Fisheries and Oceans, the total catch of all nine vessels involved in that opening, after an adjustment for some duplication, was 1,318.3 tons, or an average, according to the defendants, of 146.478 tons per boat. The defendants argue that using the above formula the loss of fish to the Franciscan No. 1 was 113.044 tons [146.478 (average per boat) - 33.434 (actual catch of the Franciscan No. 1) = 113.044 tons]. Tonnage Limitation and the Canada Shipping Act [22] In any event, the defendants submit that the liability of the owner of the Qualicum Producer is limited by the provisions of the Canada Shipping Act, supra. Because I am of the view that this defence is available to the defendants under the circumstances before me, it is necessary to review portions of the Act in relation to the facts which I find have been established. [23] The relevant portions of the sections of the Act relied upon by the defendants are: 575.(1) The owner of a ship, ... is not, where any of the following events occur without his actual fault or privity, namely, ... (d) where any loss or damage is caused to any property ... through (i) the act or omission of any person, whether on board the ship or not, in the navigation or management of the ship, ... liable for damage beyond the following amounts: (f) ... an aggregate amount equivalent to one thousand gold francs for each ton of that ship's tonnage. . . . 577.(1) Sections 575 and 576 extend and apply to... (c) the manager or operator of a ship and any agent of a ship made liable by law for damage caused by the ship... and to any person acting in the capacity of master or member of the crew of a ship ... where any of the events mentioned in paragraphs 575(1)(a) to (d) occur, whether with or without his actual fault or privity. [emphasis added] [24] This limitation is only available where a described event, including a net fouling, happens without actual fault and privity on the part of the owner. The burden is on the owner to establish a complete absence of fault or privity. The burden is a heavy one, and is not a burden discharged by a simple demonstration that the acts were not the sole or next or chief cause of the mishap: "Rhone" v. "Peter A.B. Widener" (1993), 101 D.L.R. (4th) 188 (S.C.C.). At page 210 Iacobucci J. said: Negligence on the part of a master of a ship in the performance of his or her navigational duties does not amount to actual fault or privity on the part of the corporate shipowner. Courts have viewed masters as the "hands" of a shipping company. Obviously, if it were otherwise a corporate shipowner's right to limit its liability would be virtually non-existent. However, having said that, the courts have moved away from allowing shipowners to wash their hands completely of all responsibility for matters of navigation by leaving everything to the discretion of their masters. Whereas in the past it may have been sufficient for a shipowner to discharge its responsibility by merely showing that it appointed a competent master, a number of decisions now make it clear that there exists an overall duty on a shipowner to supervise properly the navigation of its vessels: ... [citations omitted; emphasis added] In such instances, the focus of inquiry is on whether a shipowner acted as an ordinary reasonable shipowner in the management and control of its shipping operation (e.g., in the selection of its crew and supervision of the navigation of its vessels): ... Courts have further applied a "reasonable likelihood" test in determining whether the exercise of particular duty by a shipowner would have prevented the impugned damage. For example, in [B.C. Telephone Company v. Marpole Towing Ltd.(1970), 17 D.L.R. (3d) 545 (S.C.C.)], Ritchie J. accepted that damage caused by the negligent navigation of a ship does not give rise to actual fault or privity on the part of the shipowner where the navigational error committed by he master could not have been foreseen by the shipowner. [25] In Sea Queen Fisheries Ltd. v. B.C. Packers Ltd., [1984] B.C.J. No. 1261 (Q.L.) (S.C.), Oppal J. was dealing with a case where two vessels were engaged in herring fishing off the west coast of Vancouver Island using seine nets. The plaintiff's net was found to be torn allowing the escape of fish, the result of being cut by the propeller of the defendants' vessel. The defendants relied upon the limitations set out in the Canada Fishing Act, supra. Oppal J. held at para. 17 of his reasons for judgment: In this case the vessel owner should be allowed to limit its liability pursuant to the Act. [The] master of the defendant ... ship was described in evidence as being competent and experienced in herring fishing by means of a seine net. While he was clearly negligent in this instance, it surely cannot be said that this incident took place with the "privity or fault" of the shipowner. The owner has no good reason to believe that [the master] would navigate his vessel so close to the plaintiffs' vessel as to sever the net. [Plaintiffs' counsel] submits that the owner has a duty to inform the master of the exact distance the boat should be kept away from other boats. This surely is a matter of common sense. But the evidence is that the standard of common practice of the community is that the boat should not be "too close" to other boats. There is no specific figure adduced as to what is "too close." It is obviously a matter of discretion for the master to determine under the existing circumstances. There is no common practice with respect to specific distances that vessels should keep from other vessels while fishing with seine nets. So far as the owner of the vessel was concerned [the master] was an experienced master. The owner was entitled to rely on that experience. There was no evidence that the owner ... had actual knowledge of behaviour or propensity of [the master] to fish too close to other vessels. Moreover, there is no evidence of the owner having actual knowledge of incompetence or negligence on the part of the master and thereby failing to take steps to correct matters. It is clear from the evidence that this incident was an isolated one.... [26] In Meeker Log & Timber Ltd. v. "Sea Imp VIII" (1994), 1 B.C.L.R. (3d) 320 (S.C.), Lowry J. held that, unlike an habitual practice of dangerous navigation which would fall within the obligation of an efficiently managed tug boat company, one error in navigation did not constitute a fault or privity on the part of the shipowner. [27] The evidence going to the competence and experience of Captain Mark Recalma was extensive. Although primarily from the vessel's owner and Mark Recalma himself, other witnesses testified to his thoroughness and skill, including for example the evidence that Mark Recalma puts his crew through exercises prior to an opening in order to ensure that each member is familiar with the operation. [28] Mark Recalma holds a Master III license, he has been involved in fishing since he was a little boy and he has commanded his own boat since 1973. He was master of a stern trawler from 1983 until 1988 which he and his father acquired in 1979. This vessel was sold in 1989 and thereafter Mark Recalma took over the Qualicum Producer. Mark Recalma testified that his father taught him navigation beginning when he was 7. He has taken sonar courses and instructed in its use in the United States. He has participated in commercial fisheries in Nicaragua, Chile, Peru and Washington State and he has also fished using a seine net in the waters off New England and the Maritimes. There is no evidence of any other involvement in similar incidents. [29] The Qualicum Producer was modified extensively in 1996 and the vessel widened and additional superstructure installed. It is 68 tons with a length over all of 64.6 feet. The vessel is powered by a 6 cylinder Mitsubishi with a maximum 400 horse power at 1500 rpm. The stern of the boat has a "beaver tail" designed to keep nets from fouling the propeller. The boat has many new electronic features designed primarily to help locate fish. Mark Recalma described his boat as top of the line and well maintained. Mark Recalma said that the crew on board included three other masters and experienced skiff operators and deck hands and that he had practised a setting with the crew prior to this opening. [30] The net used by Mark Recalma differed from that used by Captain Brajcich in that it is deeper and heavier using lead weights that are from 16 to 20 lbs. and it has more web. The Recalma net is 16 strips with a lead line with 2 lb. weights every fathom, two strips down from the cork line. Mark Recalma said that these features allow the net to sink faster and reach a deeper depth, whereas the net used by the Franciscan No. 1 had a tendency to billow before sinking. [31] I conclude from all of the evidence that Captain Mark Recalma was an experienced and competent master who was commanding a well equipped vessel with an experienced crew. I cannot conclude on the evidence that the limitations permitted under the Act are not available. Put another way, I am satisfied that the defendants have discharged the heavy burden of proof required to establish entitlement to the limitation under the Act. Assessment of loss [32] In my view of the evidence, there is a great deal of conflict between the two sides as to the quantity of fish within the plaintiffs' set. Captain Brajcich gave evidence of an extremely large school that he had set on that day. His estimate was based upon his observations on his sonar and seeing a "boil" or "put up", both indicating a large amount of fish in his area. This evidence is supported by his son, Paul Brajcich, an experienced fisherman who was operating the sonar, and by another pool member, Captain Blomly, who later brought his vessel alongside. Each of these witnesses is experienced in the industry. In conflict with their evidence is that of other, equally experienced fishers. Captain Hulbert was manning a sonar on the Qualicum Producer. His evidence was that up to half way through the Producer's set, he saw "no substantial" fish in the area of the plaintiff's set. [33] Captain Philip Bass was also in the wheelhouse of the Producer. He was operating a MAK Omni sonar capable of showing a 360 degree view at ranges varying from 60 meters to 1600 meters. He was experienced with the equipment as he has operated two of them and a Furuno on his purse seiner in the Maritimes. I was impressed with his qualifications and the objectivity of his evidence. He testified that as the Qualicum Producer made its turn to starboard he could see no significant numbers of fish where the plaintiff was setting. He said that at the time he did not see what the plaintiff was setting on: he saw only a small bunch of fish. He testified that there absolutely was not 400 to 600 tons of fish in the plaintiff's net and that he would have seen any fish moving there in his sonar. Unlike Captain Hulbert who left the wheelhouse at the half-way mark, Captain Bass remained at the sonar until the net of the Qualicum Producer was closed. He was firm in cross examination that the plaintiff had not set on many fish. [34] Lastly, there is the evidence of Dr. Thorne which essentially is that it is impossible to accurately estimate the abundance of fish using commercial sonar equipment which are used to locate fish, not to number them. [35] In sum, I prefer the evidence adduced by the defendants on the question of both the location and the quantity of fish that were within the grasp of the Franciscan No. 1. There were three qualified fishers in the wheelhouse of the Qualicum Producer and, from their interpretation of the signals to their equipment, I am satisfied that the overwhelming bulk of the school was not within the reach of the Franciscan. Rather, I find that the defendant Mark Recalma had embarked upon what was to be a successful set, he having been further to the north of the plaintiff and in a superior position. The defendants urged me to consider the catch statistics of Captain Brajcich in support of their submission that he could not possibly have a catch of the size he claimed. I do not think there is anything to be gained by consideration of the historic catches of Captain Brajcich. He is an experienced mariner but too much depends upon time, tide and the whims of herring to be useful in determining what he would have caught on this particular occasion. [36] Given the conflict in the evidence and the fact that I prefer the evidence of Captains Bass and Hulbert over the evidence of Captain Brajcich on this subject, I cannot find that the plaintiff has proved on a balance of probabilities that he had set upon the substantial catch he described. The most I can conclude on the conflicting evidence is that it was likely not 33 tons and not 600 tons. Rather, some fish were lost but I cannot determine how many. From time immemorial fish have been among the more elusive of prey. The only certain catch is the one stored on board. Dube J., in R.A. Roberts Fishing Ltd. v. Canada (D.O.F.), [1986] F.C.J. No. 666 (Q.L.) (T.D.), expressed the uncertainty this way: As mentioned earlier, it is generally accepted by purse seine fishermen that herring can still be lost at any moment, until the fish has been safely pumped on board the vessel. [37] As for the plaintiffs' claim founded on unjust enrichment, the defendants rely upon the decision of Lowry J. in Networth Industries Ltd. v. "Cape Flattery" (1 December 1997), Vancouver C953623 B.C.S.C. (B.C.S.C.). At page 9 of his reasons, Lowry J. said: I am unable to accept that, in the circumstances of this case, there is a rule of law that enables the plaintiffs to make out a case of unjust enrichment where there may well have been no unjust enrichment enjoyed by the defendants at all. There simply is no evidentiary basis on which it could be said that Cape Flattery would not have caught 305 tons of herring in the absence of fish swimming into the net from the net of the Prospect Point. In the first place I do not consider there to be any evidence that there was any actual mixing of fish. Whether any appreciable volume of fish that escaped the Prospect Point's net actually entered the net of Cape Flattery before it was completely closed can be no more than speculation in the extreme. But, more importantly, I do not accept that it is the law of this province that a plaintiff who bears the burden of proving the existence of an unjust enrichment can discharge that burden as the plaintiffs attempt to do. In my view, quite apart from questions that arise about the capture and conversion of wild species of fish, it cannot be that where two fishing vessels set upon a large school of fish and, through negligence, one fouls the net of the other so that the catch in the fouled net escapes, the mere entry of an undetermined number of fish into the net of the wrongdoer will, without more, serve to enable the victim to assert that the entire catch belongs to him such that its sale amounts to the wrongdoers' unjust enrichment, particularly when no such draconian remedy is necessary to fully compensate the victim for his loss. [emphasis added] [38] Lowry J. then went on to rule that the plaintiff's claim for unjust enrichment founded on the tort of negligence was not well grounded. While he said that he did not intend to hold that there could never be a cause of action for unjust enrichment based upon negligence, the torts supporting a claim for unjust enrichment were, for the most part, based upon proprietary torts: conversion, detinue, trespass to land and goods, and so on, the so-called "anti-enrichment" wrongs as opposed to what he termed the "anti-harm" wrongs of assault, nuisance, and negligence, in relation to which it is impossible to make restitutionary awards - to elevate the prevention of enrichment to the level of primary purpose - even though they sometimes lead to the enrichment of the wrongdoer. I agree with his analysis. Punitive damages [39] The claim for punitive damages is based upon what the plaintiffs submit was the cavalier conduct of Mark Recalma amounting to a cynical disregard for the rights of the plaintiffs: Broome v. Cassell & Co. Ltd., [1972] A.C. 1027 (H.L.). In Wasson v. California Standard Co. (1964), 47 D.L.R. (2d) 71 (Alta. C.A.), Macdonald J.A., at p. 80, said: When a trespass is committed, as it was in the case at bar, it seems to me that a substantial sum of exemplary or punitive damages should be awarded, for the general benefit of society, against the trespasser, to demonstrate that the Courts afford a protection to an individual against the violation of his personal rights, and also to serve as a warning and example to deter others from committing similar offenses. The imposition of such damages should discourage the wilful and wanton invasion or disregard of the rights of others. [40] Wasson was a case where the defendants had entered onto the plaintiff's land without permission in order to undertake a geological survey and in the process damaged a quantity of timber on the plaintiff's land. At p. 79 of the reasons, Smith J.A. observed: To proceed as the appellants did in this case was a reckless and wilful invasion of the rights of the respondent for which there was no justification in law; indeed I consider that the doing of the injury to the respondent was accompanied by insolence and arrogance.... Neither in this Court nor in the trial Court was any attempt made by he appellants to justify their conduct. [41] Were I of the view that the evidence supported a finding that the actions of Mark Recalma were a wilful and wanton invasion of the rights of the plaintiffs, I would have no hesitation in awarding punitive damages although I am of the view that they, too, are likely limited by the provisions of the Canada Shipping Act. However, I can find nothing more in the actions of the defendant Mark Recalma than that he was engaged in a determined and active pursuit of the fish he had set upon and that he made one error in navigational judgment: in short, he was negligent and he did not set out to deliberately, wantonly or wilfully interfere with the rights of the plaintiffs. The claim for punitive damages is not allowed. Conclusion [42] Other than McMillan, the plaintiffs, as members of a well known and regularly employed arrangement in the fishing industry, clearly fall within the common marine adventure exception otherwise barring claims for pure economic loss. In the words of Lowry J. in Networth Industries Ltd. v. "Cape Flattery", supra: ... I see no clear reason why those involved cannot be said to be embarked on a common marine adventure sufficient to create the necessary proximity to give rise to a duty of care owed to all by one who causes physical damage which impairs the earning capacity of either vessel. [43] The plaintiff McMillan, however, is another matter. It was not part of the pool. It did not share in any of the risks of the venture and it would not share in any of the profits. It had a contractual arrangement with the pool to acquire any catch at the going rate, the consideration for which was to provide the licence for the pool at a discount. This is a contractual relational economic loss not recoverable by McMillan. [44] The defendants are liable to the plaintiff Capilano for the damage to the net used by the Franciscan No. 1 and to the other plaintiffs, save McMillan, for the loss suffered as a result of the defendant Mark Recalma's negligence. The value of any lost catch should be determined by the method employed in R.A. Roberts Fishing Ltd., supra, and Wishing Star Fishing Co., supra. I do not find that the master and crew of the Franciscan No. 1 contributed to the loss. [45] The cost of repairing the damage to the net was $2,828.35 plus GST; there were license costs thrown away and, applying the formula in R.A. Roberts, supra, the most that the successful members of the pool could recover is the value of 113.044 tons. Under the U.F.A.W. agreement that value is set at $300 a ton for crew members and double that for a captain. These facts are moot, however, because I have concluded that the liability of both of the defendants is limited by the provisions of the Canada Shipping Act, and any recovery is limited to roughly $40,000. If counsel are not able to work out the precise amount of the recovery under these Reasons, then counsel may make written submissions. [46] Absent some exchange between the parties which could affect the issue of costs, the plaintiffs, save for McMillan, are entitled to their costs. "The Honourable Mr. Justice Warren" __________________________________ The Honourable Mr. Justice Warren