BC Court of Appeal – No Negligence in Case of “Catapulting” Mooring Rope

Reasons for judgement were published today by the BC Court of Appeal upholding a trial dismissal of a negligence claim involving a mooring rope which ‘catapulted’ into a Plaintiff causing injury.

In today’s case (Oddy v. Waterway Partnership Equities Inc.) the Plaintiff was injured when “a stake embedded in a beach, and attached by the mooring rope to the houseboat, broke free and was catapulted back towards the houseboat“.  The stake struck the Plaintiff causing significant injuries.

The Plaintiff argued

“the rope was too “elastic” to moor houseboats, and if its “anchor” failed while the rope was under tension, it would recoil toward the boat risking injury to anyone in its path“.

The claim was dismissed at trial.  The Court of Appeal dismissed the appeal noting the rope was commonly used in the industry and no negligence was established.  In reaching this decision the Court provided the following reasons:

[17]         In my view, the evidence supports the judge’s finding that Waterway did not breach the standard of care. The finding does not rest on a palpable and overriding error. Nova Braid is widely and commonly used in the industry, even though Waterway’s principal competitor and largest renter of houseboats on the lake uses a different, less elastic rope. Mr. Baldwin confirmed that Nova Braid is by far the most common line sold for mooring vessels, including houseboats. The rope is sold for all kinds of mooring applications and is designed as a general purpose mooring rope. He described it as a “great all around rope”. Western Marine had sold the rope to other houseboat companies renting houseboats on Shuswap Lake. His evidence supported, and did not undermine, Nova Braid’s suitability as a mooring rope for houseboats on Shuswap Lake.

[18]         Mr. Baldwin did not personally advise Waterway about the suitability of Nova Braid. With respect, Ms. Oddy puts misplaced weight on his evidence. His evidence did not foreclose the judge’s acceptance that Waterway had made a corporate decision to buy the Nova Braid, in part on the recommendation of Western Marine—its long-standing supplier with knowledge of Waterway’s needs. Mr. Baldwin was not personally involved in the transaction and his evidence did not establish that Western Marine was not consulted by Waterway.

[19]         Moreover, Ms. Anderson, the operation manager for Waterway, gave evidence about how Waterway made the decision (in which she was personally involved) to buy Nova Braid. She explained that Waterway had been happy with the performance of the nylon rope that it had used previously. She described the instructions she gave Waterway’s purchaser and the information she received from him about his consultations with Western Marine to ensure that the mooring lines “would work and be durable enough and hold the weight for what [Waterway’s] application was”. She said Waterway’s purchaser “was working with Western Marine to supply [Waterway] a product that would work with [its] houseboats.” She said that Western Marine supplied a product that was “best suited for [Waterway’s] application”. She understood that if there were a better or more suitable product “[Waterway’s] sales rep would have recommended something better”. She made the decision to purchase Nova Braid based on her view that the purchaser and Waterway’s representative from Western Marine knew Nova Braid was the best product for Waterway’s application. Ms. Oddy’s counsel elicited this evidence in cross-examination. Mr. Millar, Waterway’s Chief Operating Officer, confirmed that Waterway purchased Nova Braid on Western Marine’s recommendation.

[20]         In my view, the judge was entitled to rely on this evidence to infer that Waterway had conducted itself reasonably in buying Nova Braid. Ms. Anderson was being cross-examined as Waterway’s witness and was providing information about Waterway’s conduct, some of which had been delegated to its purchaser. It was open to the judge to find that Waterway’s reliance on Western Marine to supply it with a suitable mooring line was reasonable and satisfied the standard of care. It would, also, have been a fair inference from the evidence that Nova Braid met the industry standard.

[21]         Similarly, the evidence supports the judge’s conclusion that Waterway was under no duty to consult an engineer or other marine specialist before using Nova Braid. First, the judge was entitled to accept that there is no history of accidents in which mooring stakes have been catapulted back towards a houseboat by ropes under tension. No witness testified to knowing of mooring line recoiling and catapulting beaching stakes through the air. This is true also of Mr. Kyllo, a principal of the main competitor of Waterway. The evidence went only so far as to indicate that stakes have been pulled out of the sand and mooring lines have broken. The observation of Mr. Kyllo that you “don’t want the rope to be able to cause a projectile with a pin” is of little practical assistance to the judge in the absence of evidence that Waterway knew or ought to have known of this as a genuine risk or that Nova Braid actually posed that risk. As I regard the matter, Mr. Kyllo recognized a theoretical risk associated with an “elastic” mooring rope. He chose a “static” rope. No doubt his choice of rope may have been reasonable, but his evidence, without more, did not establish that Nova Braid was an unreasonable choice, even if one among many of its properties was that it was more “elastic” than the mooring line he chose.

[22]         The judge’s conclusion does not rest on palpable and overriding error.

[23]         Second, in an exchange between the judge and the Ms. Oddy’s expert, it became clear that there was nothing inherent in the appearance or feel of the rope, as compared to other ropes, that would put a person on notice of a possibility that Nova Braid might be unsuitable for this particular purpose. This evidence also supports the judge’s conclusion that Waterway was not under a duty to warn houseboat users of this specific risk.

[24]         Mr. Hart said all that could possibly be said in an attempt to demonstrate palpable and overriding error, but I see no basis upon which an appellate court could properly interfere with the judge’s conclusion that Waterway satisfied the standard of care owed to Ms. Oddy. That conclusion is a positive finding rooted in the evidence. It is not a conclusion that relies on, or is capable of being affected by, the burden of proof. As I have said, the judge’s findings do not engage a presumption of negligence. Even if the Marine Liability Act applied to the circumstances of this case, it would not affect the outcome.

[25]         Given my view that this Court is not entitled to interfere with the judge’s conclusion on the standard of care, I think it neither necessary nor desirable to comment on whether Ms. Oddy’s arguments on the application of the Marine Liability Act and remoteness of damage have any merit.

[26]         I would dismiss the appeal.