On 22 March 2006, the Queen of the North grounded on Gil Island in Wright Sound, approximately 135km south of Prince Rupert, British Columbia. Rescue efforts failed to recover a number of passengers, and the relatives of these unfortunate victims of the disaster brought claims against the defendant vessel, operators, and certain crewmembers.
These claims were brought under Canada’s Marine Liability Act, which incorporates articles 1-22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Section 6 of the MLA provides a right of action to named defendants for losses ‘resulting from’ the death of their relative, including loss of care and companionship. Art. 14 of the Athens Convention provides that no claim for loss may be brought other than in accordance with the Convention.
The Plaintiffs claimed for general damages, loss of care/companionship/services etc, and also for punitive and aggravated damages. Defendants admitted liability but applied to the Court for an Order striking the claims for punitive and aggravated damages as unrecoverable under the MLA. They argued that as s.6 of the MLA provides only for recovery of losses “resulting from death” the plaintiffs’ claims must be restricted to compensatory damages.
Punitive damages (sometimes called “exemplary damages”) are not compensatory, but serve to punish wrongdoers and act as a deterrent to others (see Hill v Church of Scientology, e.g.). The Court noted a number of authorities in which the analogous language at Art 17 of the Warsaw Convention was held to limit claims to compensatory damages (including the American case Re Air Disaster at Lockerbie Scotland). The Court also reviewed certain cases involving dependant claims brought under relevant family law legislation, which also (with one notable exception) restricted recovery to damages ‘resulting from’ the wrongful act and excluded recovery for punitive damages, which are not related to the loss sustained.
Aggravated damages, by contrast, are compensatory in nature and are awarded in cases where the oppressive conduct of the defendant increased the plaintiff’s humiliation, grief, fear, or similar mental distress. “They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.” (Hill v Scientology). Accordingly they are compensatory in nature, but non-pecuniary (e.g. not related to a quantifiable loss).
The Court was satisfied that, while compensatory in nature, aggravated damages would flow from the behaviour of the defendants, not from the death of the passenger, and were therefore not damages ‘resulting from’ the death of the passenger as required by s.6. The Court also reviewed the history of the development of fatal accidents legislation, noting that fatal accidents legislation had been introduced to remedy to provide a statutory right of action to dependants that would otherwise have no standing to bring any claim at all. While these statutes and their common law development had broadened the bases on which claims might be brought (including the identification of care and companionship as a compensable head of damages) at all times recoverable amounts were restricted to pecuniary damages. It is the loss of the services and support of the deceased, and not the grief caused by their loss, that is compensable at law.
In the result, the plaintiffs claims for punitive and aggravated damages arising out of the disaster were struck: such damages are not recoverable under the MLA or similar legislation.
McDonald v Queen of the North (Ship), 2008 BCSC 1777.