Tofino whale-watching capsizing: Leviathan II survivors file potential class-action lawsuit

Two German brothers who survived the capsizing of a whale-watching boat off Tofino, B.C., last fall are suing, claiming the capsizing was "preventable" and alleging negligence by the company, owner and captain.

Christian Barchfeld and Dirk Barchfeld were passengers on the Leviathan II, owned by Jamie's Whaling Station Ltd., when it capsized on Oct. 25, killing six of the 27 people on board.

They have filed a potential class-action lawsuit, on behalf of all passengers, which details their own physical and psychological trauma, with one brother saying he was tossed from the ship and the other describing being trapped inside.

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The lawsuit, filed Friday in B.C. Supreme Court, describes how the Barchfelds, on vacation in Canada, booked the whale-watching tour that morning, scheduled to depart at 1:30 p.m. PT. the same day.

Waters were calm at first, and the boatload of tourists watched whales for about 45 minutes, according to court documents. Then, in choppy swells, the Leviathan II headed toward rocks known for sea lions.

Most of the passengers and crew were on one side of the top deck when the vessel was hit by a wave and suddenly capsized, according to the Transportation Safety Board.

Like being in a 'washing machine'

The court documents give an account from the Barchfelds of their experience during the capsizing, which their lawyer says has "dramatically changed their life" and left both with post-traumatic stress disorder.

Dirk Barchfeld, who was on the middle deck, was thrown underwater, but came to the surface within about 10 seconds, he says in the documents.

He could see the capsized ship to his left, propeller still rotating.

He crowded onto a life ring with several other passengers, and tried to reach the ship, but couldn't. They could see a male body floating face-down.

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Christian Barchfeld, who had been inside the ship, "was thrown about the cabin as though he were in a washing machine," according to the lawsuit.

When he recovered, the water was up to his chest and slowly rising.

"He was desperately looking for an escape door," said his Toronto-based lawyer Vince Genova.

"It was basically something out of a movie, he had to swim underwater trying different avenues of escape, unsuccessfully for the most part, until the very last moment."

Eventually, he found a door that would open, and clung to the outside of the vessel, while being slammed by waves.

Christian Barchfeld's leg was wrapped with rope and cables, and he almost gave up hope clinging to the vessel, until fishermen arrived and cut him free. He's been plagued by flashbacks, insomnia, anxiety and nightmares since the ordeal, and is being treated for PTSD, according to documents.

Captain should have known, brothers claim

The statement of claim alleges the ship's captain, Wayne Dolby, should have known that the large swells in the area were hazardous, and the vessel's stability would be affected by having most passengers on one side of the top deck.

Genova says the capsizing was "preventable," and the trip should have been cancelled or discontinued due to weather conditions.

"The vessel was put out there for whale watching when it should not have been," he told CBC News.

It also alleges the brothers' survival and rescue were not aided by the ship's captain or any other crew members of the Leviathan II, and they weren't properly advised on use of life-jackets.

They are seeking compensation for damages, and to hold the defendants accountable, said Genova. The lawsuit doesn't specify a dollar figure for damages.

A statement of defence has not yet been filed by the defendants, Jamie's Whaling Station, owner Jamie Bray, or Dolby. 

Jamie's Whaling Station response

One of the defendants in the lawsuit, Jamie's Whaling Station, told CBC News on Tuesday it does not believe the vessel operator or crew were in any way negligent.

A spokesperson for the company said it could not comment specifically on the lawsuit because it is 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 Corene Inouye, director of operations at Jamie's Whaling Station, in an emailed statement. 

The company also stated that "given the seriousness of the accident, it is perhaps not unexpected that some passengers have sought legal assistance."

None of the allegations have been proven in court.