Two passengers on board the whale-watching boat that sank off the coast of Vancouver Island in October 2015 have launched a class action lawsuit against the owner, and the boat’s captain.
Christian and Dirk Barchfeld, both from Germany, are seeking damages for psychological and physical harm following the capsizing and sinking of the Leviathan II off the coast of Tofino in October 2015, which claimed six lives.
The owner of Jamie’s Whaling Station, Jamie Bray, and the Leviathan II’s captain, Wayne Dolby, have been named in the possible class action suit by the brothers.
READ MORE: Owner of whale-watching tour makes first statement about tragic sinking
In the claim filed by Christian and Dirk, they recall the tragedy in detail.
Dirk was on the middle deck of the Leviathan II when the vessel capsized and ended up in the water. He was able to find a life ring to hold onto, eventually gathering with other passengers in the water. Dirk claims he and a group of passengers were in the water for about 45 minutes before being rescued by local First Nations fisherman.
Boats from the Ahousaht First Nation were among the first on the scene and responded after seeing an emergency flare go up from the sinking boat.\
WATCH: Survivors of Leviathan II disaster launch lawsuit
However Christian, along with two other female passengers, was still trapped on the lower, indoor deck of the boat being “thrown about the cabin as though he were in a washing machine,” according to the lawsuit.
He goes on to describe a scene where there was water filling the inside of the cabin and passageways being blocked by debris. After several attempts of diving and looking for a way out, it was when the boat slightly tilted backwards that he says he was able to locate and open another to door and escape.
In his statement Christian says his legs were entangled in ropes and cables while he clung to the side of the boat and that “he was losing strength in the cold water and… almost gave up hope of surviving his ordeal.” Eventually he and the two women were rescued by a fishing boat.
The brothers were both taken to the hospital in Tofino where Christian was hospitalized and treated for cuts, bruises, hypothermia and severe shock.
WATCH MORE: ‘You could hear people screaming’: Heroes recount rescuing survivors of whale-watching tragedy
Following the sinking and returning home to Germany, Dirk and Christian claim they have experienced significant physical and psychological trauma like PTSD, insomnia, depression, anxiety and nightmares.
Citing “known hazards of the area and the specific risks posed by the weather conditions on the day of the tragedy,” the lawsuit claims Dolby “knew or should have known that the waters he steered into were hazardous, that the vessel’s stability would be affected by having the majority of passengers on one side of the top deck and that, in those circumstances, a large swell from the opposite side taken broad-side could capsize the vessel.” Due to those circumstances, the lawsuit claims Dolby and by extension, the owner, were “negligent in their operation of the Leviathan II and were directly responsible for the pain, suffering and loss of life, which resulted from this tragedy.”
None of the Barchfelds claims have been proven in court.
At the time of the sinking, 21 people were rescued in varying degrees of health and six people died in the whale-watching incident.
Class action lawsuits in B.C. are opt-in only, which means those who choose to be a part of this lawsuit will be included.
The Barchfelds are the first to launch a class action suit in this fatal whale watching accident.
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