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If in doubt, don’t throw it out Forsey v. Burin Peninsula Marine Service Center... By Megan Nicholls A Vancouver lawyer with Bernard LLP - Subscriber Access Only

By BCShippingNews 30 April 2016

A cautionary tale for ship repairers and ship owners alike is recounted by the Court of Appeal in Forsey v. Burin Peninsula Marine Service Center, 2015 FCA 216. Among other interesting legal points, this case highlights the importance of preserving key evidence after an incident has occurred. In particular, it illustrates the legal concept of “spoliation” — the intentional destruction of evidence relevant to ongoing or contemplated litigation, where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation.

In this case, the Plaintiff, Maxwell Forsey, owned the commercial fishing vessel Eastern Gambler (“Vessel”). The Defendant was Burin Peninsula Marine Service Center (“Burin”), a Fortune, Newfoundland and Labrador vessel storage and repair outfit.

During the summer of 2011, Mr. Forsey brought the Vessel to Burin for routine maintenance. She was lifted from the water by Mr. Forsey’s employees and a cradle was constructed to secure her. Cribbing material was transported from Burin’s storage area to the vicinity of the Vessel. Mr. Forsey’s employees supplied and installed the keel blocks that were used to keep her upright. Two pieces of “cribbing” supported each side of the Vessel. Once she was cradled, Burin’s employees performed general maintenance and repairs to the Vessel over the following few weeks.

In the early morning of July 10, 2011, heavy winds swept through the Burin Peninsula. A retired truck driver, who happened to be on Burin’s premises, heard a loud noise and shortly thereafter saw the Vessel lying on the ground on its starboard side. Burin’s employees worked to minimize the damage to the Vessel, staunching the oil leaking from the engines, up-righting it using a hydraulic lift, and re-cradling it. However, the Vessel had suffered serious structural damage and was declared a total loss as a result of the fall.