RONALD SABADASH Claimant - v. -, 2011 NSSM 2

Claim No: 338379 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Sabadash v. 20175208 Nova Scotia Ltd., 2011 NSSM 2 BETWEEN: RONALD SABADASH Claimant - and - 2175208 NOVA SCOTIA LIMITED and DANIEL F. MacNEIL Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on December 7, 2010 Decision rendered on January 5, 2011 APPEARANCES

For the Claimant self-represented For the Defendants James Youden Counsel BY THE COURT: 1 This is a somewhat unusual case involving damage done to a boat while moored in the Bedford Basin, allegedly by some larger boats, also moored, during a tropical storm. 2 The Claimant owns a sailboat, the Wind Warrior, which he moors at the Dartmouth Yacht Club’s (“the Club”) facility in the Wright’s Cove area of Bedford Basin.

The Club has a designated area in which it has attached some 50 mooring “balls” or “buttons.” Members are assigned mooring balls to anchor their boats at times when they are better moored in open water than at a wharf. Areas of high wind and wave activity, such as during tropical storms, are such an occasion, because boats at wharfs can do damage to each other during such events. 3 It is the Halifax Port Authority (“the Authority”) which has jurisdiction over the Bedford Basin, and which has assigned the mooring field to the Club. 4 The Defendant Daniel MacNeil owns a working vessel called the Mattuna Mariner.

He has for many years moored his vessel in Wright’s Cove at a mooring ball which he installed.

On the day in question, his boat was rafted together with two other vessels of similar size, namely the Hydra Mariner and the Scotia Diver, owned by the corporate Defendant. 5 More will be said below about the history and location of this mooring ball, but suffice it to say here that the MacNeil ball appears to be outside the Club’s mooring field - although on the day in question the Defendants’ boats clearly drifted into the Club’s mooring field. 6 On September 4, 2010, Nova Scotia was visited by Tropical Storm “Earl,” which brought severe weather including very high winds.

This storm was tracked for many days before it arrived, which gave people plenty of time to make preparations. 7 As I understand the evidence, most boats of any size can weather high winds and rough seas if moored in open water. Members of the Club were advised in advance of the storm that they could not leave their boats at the wharf, and would be assigned mooring spots if they needed them. Some owners opted to pull their boats out of the water altogether.

The Claimant accepted the mooring spot assigned by the Club. 8 During the storm, the three vessels owned by the Defendants drifted into the Club’s mooring field, and made contact with the Claimant’s vessel. The latter suffered damage which will cost in excess of $2,500.00 to repair. Although the Defendants insisted that there was no clear proof that the damage was caused by their vessels, the inference is irresistible that the much larger vessels did the damage. From a liability point of view, I do not think it matters which vessel hit which vessel.

It was a natural consequence of the wave action and the proximity of the vessels under such conditions, that the smallest of the vessels took the brunt of the damage. 9 I believe the relevant questions for me to ask, are whether any or all of the vessels had a right to be moored where they were, and whether either or both of the owners created a situation where it was foreseeable that damage could result, and whether a corresponding duty arose to attempt to avoid such damage.

Mooring rights 10 Both the Claimant and the Defendant MacNeil claim to have a right to moor where they did. The Claimant relies on the fact that the Authority specifically granted the Club the right to have its members moor in this mooring field. The Defendant MacNeil claims that he had mooring rights going back many years, which he says were recognized by the Authority. 11 I do not believe that this Court is in a position to determine whose mooring rights are superior, and may not even have legal jurisdiction to do so.

Such a determination should only take place in a court of competent jurisdiction, with all parties participating - including the Club and the Authority.

Although there was a representative of the Club present to give evidence, the Club itself was not represented and there was no one from the Authority in attendance. 12 Assuming that both parties had some legitimate mooring rights, this would not be a tenable situation in the long term, and it would fall to the relevant authorities to work out how those rights can be reconciled, or perhaps negotiated to become more workable. 13 However, as I will observe below, I do not believe that any party can stand totally on his rights to moor where he did.

Other facts 14 The controversy over the MacNeil mooring spot predates the events giving rise to the claim. The Club had observed the fact that this spot was close to its mooring field, and had complained to the Authority, which had in turn sent a letter in April of 2010 demanding that the Defendant remove his mooring ball. The Defendant refused to give way, pleading his rights. It does not appear that the Authority has done anything further to resolve the issue. 15 The Claimant produced evidence which suggests that the Defendant MacNeil’s mooring ball is not where it was when his supposed rights were established.

He says that the ball has been moved such that it is now much closer to the Club’s mooring field, and in particular to the mooring spot where his vessel was moored on the day in question. 16 Satellite images available on Google Earth were taken several years ago, and represent clear evidence of where the Defendants’ vessels were being moored at that time. Mr. MacNeil dates his rights to moor there back to 1997. 17 However, in 2008 his mooring ball broke free and had to be entirely replaced.

The evidence before me, which includes GPS readings taken by the Claimant and essentially confirmed by the Defendant MacNeil, supports the view that the MacNeil mooring ball is placed some distance away from where it had been since the late 1990's. This location appears to be closer to what is now the Club’s mooring field, and creates a situation containing greater risk that something could occur as did on September 4, 2010.

The law 18 Superficially, one might think that the closest parallel to this case involves automobile accidents; however, there is very little guidance to be found in the precedents involving automobiles. Parked cars rarely, if ever, collide and do damage to each other. Still, the claim is essentially one of negligence. In matters generally, everyone has a duty to act reasonably where the failure to do so may cause damage to another person or to property. 19 The issue of whether or not any or all of the parties had a right to moor their boats where they did, is only part of the analysis.

To use a motor vehicle analogy, even if I have a right to be driving in my own lane, if I see another vehicle entering my lane improperly, I would have a legal duty to yield rather than to stand on my rights and allow an avoidable collision to ensue.

20 The evidence satisfies me that the Defendant MacNeil knew, or ought to have known, that his mooring ball was situated in such a way that under certain wind conditions, given the length of the line that holds his boats to the ball, and the amount of slack in the chain that anchors the ball to the sea floor, his vessels could impinge on the Club’s mooring field. The fact that he contested the notice from the Authority in April 2010 may demonstrate that he believed in his rights, but also fixed him with knowledge that there was a risk associated with the status quo.

I believe that this created a legal duty to avoid or minimize such a risk, or accept the consequences. 21 I find that the Defendant MacNeil caused or contributed to the situation of danger. The remaining question is whether anyone else shares the blame. The law recognizes that it is not always possible to attribute 100% liability to one party or the other. The Contributory Negligence Act contains the following provisions: Apportionment of liability 3

(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

Interpretation of Section (2) Nothing in this

Section operates so as to render any person liable for any damage or loss to which his fault has not contributed. Determination of degrees of fault 4 Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree to which each person was at fault.

Questions of fact 5 In every action, the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact. 22 The Tortfeasors Act further recognizes that a claimant may not have sued every person who might potentially be liable for the damage, and provides certain provisions for further proceedings against, and contribution from, such other potential tortfeasors. 23 Under all of these provisions, and the common law, the principle is clear that a Claimant can recover 100% of his damages against any tortfeasor who is liable to some extent.

He only receives a partial recovery if he himself is partly responsible. 24 There is virtually no evidence that the Claimant himself knew or ought to have known that his vessel was in any danger. He took the spot assigned by the Club, and while he was generally aware of the Defendants’ vessels in the area, I do not believe his knowledge made it reasonably foreseeable that his vessel was in any jeopardy. 25 There is some evidence that suggests that the Club ought to have been aware of the possibility of the Defendants’ vessels entering its field, creating a situation of danger.

There is also evidence that might implicate the Authority as well. However, as I have observed, neither is a party to this action and my observations do not amount to a finding of legal responsibility. 26 As such, as between the Claimant and the Defendants, I find that the Claimant is blameless while the Defendant MacNeil is

at least partly responsible for having created a situation of danger. That there may be other potentially responsible parties does nothing to diminish his liability to the Claimant. 27 I am not able to place any legal responsibility on the corporate Defendant, 2175208 Nova Scotia Limited, as there was no evidence that the owners of that company had the same knowledge as did MacNeil. It would appear that the company owners were relying solely on MacNeil and it is not sufficient to create liability simply because that their vessels were part of the trio of vessels anchored together.

There would have to be some specific knowledge of the danger, under the particular circumstances here. 28 I therefore find that the Claimant is entitled to judgment against the Defendant MacNeil only. The claim as against the corporate Defendant will be dismissed. Damages 29 The Defendants did nothing to cast doubt on the repair estimates that the Claimant produced.

The repair consists of the following elements: Replace bow pulpit railing $1689.20 Removal and installation 520.73 Bow light replacement 44.95 HST 293.13 Total $2,548.01 30 The only costs claimed were filing costs of $89.68, which shall be added to the above for a total judgment of $2,637.69. Eric K. Slone, Adjudicator