Maritime: Birkenfeld v. Kendall

The judicial system does not operate to further personal crusades into maritime accidents once a wrong has been remedied.  So ruled the Court of Appeal in long-running litigation following an accident at the yachting venue prior to the Athens Olympics.

The Court was told that US Olympic windsurfer, Kimberly Birkenfeld, was seriously injured while training prior to the Athens Olympics after a collision between her craft and a support boat skippered by Bruce Kendall, part of the New Zealand yachting squad.  She was left partly paralysed and would have drowned but for Mr Kendall’s quick rescue.

Ms Birkenfeld sued for compensation.  She claimed $15 million general damages.  The accident occurred outside New Zealand and was not covered by accident compensation.  In the High Court, she was awarded damages of just over $560,000, based on the no-fault formula for compensation calculated  under the Marine Transport Act 1994 together with an international convention governing liability for marine accidents.  This limits liability for damages to a sum fixed by the weight of the vessel involved in the accident; in this case the vessel was a lightweight rigid inflatable boat being used by Yachting New Zealand.

Yachting New Zealand immediately offered to pay some $743,000 to Ms Birkenfeld.  It was willing to pay extra immediately in order to finalise all litigation.

This led the High Court to order a stay of proceedings on the basis that Ms Birkenfeld was receiving all she was entitled.  Ms Birkenfeld declined the offer.  The Court of Appeal was told that the money has since been paid to the Public Trust to be held in trust on her behalf.

Ms Birkenfeld appealed to the Court of Appeal seeking a ruling that Mr Kendall caused the collision due to his negligence.  Liability is disputed.

Ms Birkenfeld claims she was run down while stationary with her sail in the water.  Mr Kendall  claims she hit him from behind at speed while he was trying to take evasive action.  There do not appear to be any independent witnesses to the collision.

Apart from the question of compensation, Ms Birkenfeld said the public interest requires a ruling as to who was negligent in order to provide lessons for the future.

The Court ruled that it was not for the judicial system to decide negligence in these cases of marine accidents.  Legislation provides a formula for compensation with limitations on liability and also establishes a system of enquiries into the cause of maritime accidents, if such an enquiry is considered necessary.  It was not necessary for a parallel system of enquiry to operate through the courts using judges who have no maritime experience.

Birkenfeld v. Kendall – Court of Appeal (4.12.08)

01.09.002