In what will undoubtedly prove to be a seminal case in Canadian maritime law, for the first time, Canadian authorities have laid criminal charges against a crew member in connection with a fatal marine collision.

The criminal charges were laid almost four years after the sinking of the British Columbia passenger ferry, the Queen of the North, which ran aground at full speed near Gil Island, on March 22, 2006. The collision resulted in the presumed death of two passengers, whose bodies were never recovered.

On March 17, 2010, the Royal Canadian Mounted Police (the “RCMP”) charged Fourth Officer Karl Lilgert with criminal negligence causing death, in connection with the incident. Mr. Lilgert was on the bridge of the vessel and was the navigating officer responsible for steering it, when the collision occurred.

A subsequent two-year Transportation Safety Board (the “TSB”) investigation determined that the cause of the incident was human error, and that, at the time the vessel ran aground, Lilgert was engaged in a “personal conversation” with the only other person on the bridge, vessel quartermaster Karen Bricker, with whom Lilgert had recently ended a relationship. Lilgert mistakenly believed that he had ordered Bricker to make a critical course change away from Gil Island, but had in fact not done so. A third crew member, Second Officer Keven Hilton, was on a lunch break at the time of the collision, contrary to vessel protocol.

Lilgert, Bricker, and Hilton were subsequently dismissed by B.C. Ferries, the crown corporation that operated the vessel. Bricker and Hilton, however, have not been criminally charged in connection with the incident.

The charges were laid in British Columbia Provincial Court in Vancouver. Mr. Lilgert was released on $5,000 bail on the condition that he does not come in contact with 17 listed crew members, abstains from operating a vessel in a professional capacity and attends the Royal Canadian Mounted Police (“RCMP”) detachment in Grand Forks, British Columbia, within a week, for fingerprinting and photographing. According to defence counsel, Mr. Lilgert will plead ‘not guilty’ at his next scheduled court appearance on April 14, 2010.

The case has been the subject of a number of wrongful death lawsuits.

In McDonald v. Queen of the North (Ship), 2008 BCSC 1777, the British Columbia Supreme Court held that under the Athens Passenger Convention and the Marine Liability Act, a plaintiff cannot recover punitive or aggravated damages in a wrongful death action. The lawsuit was commenced by the daughters of one of the deceased passengers. Shortly thereafter, in January 2009, the British Columbia Supreme Court approved an out-of-court settlement in the case. The children of the other deceased passenger had earlier settled their claim.

In Kotai v. Queen of the North (Ship), 2009 BCSC 1405, the British Columbia Supreme Court adjudicated the individual claims of six plaintiffs in an ongoing class action lawsuit filed by some of the survivors of the incident. In October 2009 the court awarded non-pecuniary damages for post-traumatic stress disorder, psychological injuries and depression in amounts ranging from $500 to $14,000, to three of the plaintiffs, while rejecting the claims of the other three plaintiffs.

According to plaintiffs’ counsel in the class action suit, there remain 44 survivors whose claims are still pending. Counsel suggested that the criminal charges against Mr. Lilgert, would likely have no bearing on the outcome of the class action proceeding, given that liability has already been admitted by B.C. Ferries.

It remains to be seen how the criminal proceedings will unfold, given that Mr. Lilgert has already admitted responsibility for the incident. The charges carry a maximum penalty of life imprisonment.