Hogan v. Buote 2012 PESC 10

The plaintiff, Brian Hogan, was hauling his lobster traps on the waters off Prince Edward Island when the defendant, Darryl Buote, spotted him. Buote lost sight of Hogan’s boat momentarily and when he next saw Hogan’s boat, it was too late to avoid a collision. The boats collided and Hogan’s boat was damaged.

The Collision Regulations made pursuant to the Canada Shipping Act, particularly Collision Rule 15(a), governed the issue of liability:

When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.

This Rule would give the right of way to Buote as he was on Hogan’s starboard side. However, this Rule is modified by Subrule 18(iii), the relevant part of which states that a “power-driven vessel underway shall keep out of the way of a vessel engaged in fishing”.

The court concluded that Hogan did not fall under this exception for vessels engaged in fishing, stating at paragraph 18,

The simple act of fishing is insufficient to meet the definition. There must be a restriction on manoeuvrability caused by the fishing nets, lines, trawls or other fishing apparatus in order to bring a boat within the definition.

The court found that Hogan’s restriction on maneuverability was negligible in this case and was no restriction at all. The court also rejected Hogan’s argument that the custom in the area is that fishermen give way to boats that are hauling or setting traps.