Tofino whale watching disaster survivors launch class-action lawsuit
Published Tuesday, April 5, 2016 2:15PM PDT Last Updated Tuesday, April 5, 2016 7:18PM PDT
Two German brothers who were on board the ill-fated Leviathan II when it capsized last year have launched a class-action lawsuit against the Tofino tour operator.
In a statement of claim filed in B.C. Supreme Court, Christian and Dirk Barchfeld allege that Jamie’s Whaling Station was negligent in its sailing on Oct. 25, 2015, which resulted in injuries and the death of six passengers. Company owner Jamie Bray and ship captain Wayne Dolby are also cited in the documents.
The claim alleges the company operated in conditions “when they ought to have known it was unsafe to do so in the sea conditions,” and the crew wasn’t properly trained or experienced to operate the vessel.
It adds that the company did not have proper procedures in place to safely evacuate passengers in the event of a capsizing.
Investigators with the Transportation Safety Board have concluded the vessel’s stability was compromised because most of the passengers and crew were gathered on the port side of the top deck when it was struck by a large wave.
The suit claims that even though waves reached heights of two-metres, the captain at no point advised crew or passengers on the open top deck to put on lifejackets, or keep them easily accessible.
Dolby and his crew did not warn passengers before the vessel “tipped violently to the left” and capsized, the claim states.
“Within seconds, Dirk was underwater,” it reads, adding that he was able to grab onto a single life-ring along with several other passengers.
“The group… attempted to get back to the ship but it was floating away from them too quickly. Approximately 25 minutes after, Dirk and other passengers saw a male body floating face-down in the water, but they were unable to reach him.”
An hour after plunging into the water, the group was rescued by fishermen, according to court documents.
Meanwhile, Dirk’s brother Christian remained trapped in the capsized vessel, and was “thrown about the cabin as though he were in a washing machine,” the claim reads.
He tried unsuccessfully to break windows to get out of the ship, according to his lawyer.
He says he managed to get out of the ship through a door along with two other women, but “he realized his legs were entangled in ropes and cables and he could do nothing to untangle them.”
“Finally a fishing boat arrived and rescued him,” the claim reads.
“The rescuers cut the ropes… and got Christian aboard their boat, where he lost consciousness for approximately 35 minutes while being transported back to land.”
The brothers were rushed to hospital in Tofino, where Christian was treated for hypothermia, extreme shock and cuts and bruises, according to his lawyer.
Both experienced “significant physical and psychological trauma,” the suit claims, as well as “tremendous anxiety and anguish during the several hours it took before they received news that they had both survived the tragedy.”
The suit also claims that Christian suffers from frequent headaches, poor sleep, and frequently suffers nightmares.
He has also been diagnosed with PTSD, characterized by insomnia, depression and flashbacks, particularly when driving in the dark.
They are seeking unspecified damages from the company, including out-of-pocket expenses for lost and damaged belongings, and loss of income.
Jamie’s Whaling Station issued a statement in response to the claim, declining to comment on specifics because it is now before the courts.
"What we can say is that the well-being of our passengers and crew has always been our main concern. We have reached out to offer assistance where we can to passengers who have been impacted by the tragic accident, and of course we will continue to do so," said spokeswoman Corene Inouye.
The company added the civil suit isn't unexpected given the seriousness of the accident, but defended the boat captain and crew and denied they were negligent.
"The claim does say that this was a very sudden and unexpected event. That is consistent with everything we know about this accident being caused by a rogue wave."
None of the claims against the company have been proven in court.