Two survivors of the deadly Tofino whale-watching boat tragedy have filed a class-action lawsuit in B.C. Supreme Court.
Christian and Dirk Barchfeld are brothers from Germany who were on vacation when the Jamie’s Whaling station boat they were passengers on capsized near Tofino, killing six people last October.
Vincent Genova wants the class action certified on behalf of all survivors and the families of dead.
“They should have first of all cancelled the trip and if they chose not to cancel it perhaps they should have taken a different route or gone elsewhere. This coupled with the fact that they took the ship in an area notorious for being potentially treacherous.”
The men describe how “suddenly and without warning” the vessel tipped violently and capsized, throwing them into the chilly waters.
The suit goes on to paint, in minute by minute detail, a chilling picture of the chaos that ensued.
“Dirk and several other passengers crowded together, trying to hold onto [a] single life ring, while being submerged by two-meter waves … approximately 25 minutes after the capsize, Dirk and the other passengers saw a male body floating face down in the water, but they were unable to reach him.”
“Meanwhile, Christian, who was still trapped on the lower, indoor deck of the capsized vessel was thrown about the cabin as though he was in a washing machine.”
Dirk describes how his group huddled together in the icy water slick with oil and kelp, until an eventual rescue by local fishermen.
Christian describes almost giving up after losing strength “from the exertion of clinging to the capsized vessel,” and how rescuing fishermen had to cut his legs free of rope.
LISTEN: Barchfeld brothers lawyer Lawyer Vincent Genova explains the case
The suit says both brothers suffered tremendous anxiety and anguish during the several hours it took before they received news they had both survived.
Christian says he was hospitalized for cuts, bruises, hypothermia and severe shock, while Dirk suffered leg scratches and a shin wound.
Since the tragedy, court documents say the pair experienced significant physical and psychological trauma as a result of the ordeal.
Christian claims he suffers from poor sleep, frequently interrupted by nightmares, and has difficulty concentrating at work as a dental technician.
He also claims a psychiatrist has diagnosed him with post-traumatic stress disorder, characterized by insomnia, depressive exhaustion, flashbacks, particularly while driving in the dark, and anxiety.
Dirk says he’s also received psychiatric treatment at his own expense for depression and secondary to post-traumatic stress disorder.
Genova says his clients are suing for negligence after suffering significant physical and psychological trauma as a result of the deadly capsizing.
“Technically called post-traumatic stress disorder having witnessed people perishing, feeling that they were on the brink of losing their lives as well, not knowing if their brother survived the accident, so this is something very fresh, this matter only happened a few months ago, and frankly I don’t see them overcoming this in the foreseeable future.”
The men claim at no time did the captain or crew suggest passengers put on their life jackets, despite two-meter high waves crashing into the side of the vessel.
And they allege the captain, “with 20 years experience at sea, knew or should have known that the waters he steered into were hazardous,” and should have recognized the danger of so many passengers on the top deck in rough weather.
The brothers claim the company should have known the sea conditions were unsafe, had a lack of safe evacuation procedures, a failure to inform passengers to wear life jackets, failure to ensure an “appropriate emergency notification” would be transmitted, and breached their contracts with other class members.
The plaintiffs are filing for general, special and punitive damages.
None of the allegations has been proven in court.
The class-action has not yet been certified.