For cases involving personal injury or fatalities to persons on board a ship or caused by a ship, the first step is to determine whether the injured person is a "passenger" within the meaning of Part 4 of the Marine Liability Act. If the injured person is carried under a contract of carriage (either domestic or international) they are a "passenger" within the meaning of Part 4. If the injured person is carried on a ship that is being operated for a commercial or public purpose, they are also a "passenger" within the meaning of Part 4. On the other hand, if the injured person is carried on a ship used for pleasure purposes and not under a contract of carriage, they are not a "passenger" within the meaning of Part 4.
If the injured person is a "passenger" within the meaning of Part 4 of the Marine Liability Act, then the liability regime in Part 4 (and the commentary under the section "Carriage of Passengers") applies.
If the injured person is not a "passenger" within the meaning of Part 4 of the Marine Liability Act, then the general common law of negligence applies.
If personal injury results from a collision between two ships the limitation period is two years as set out in s. 23(1) of the Marine Liability Act.
If the claim is for personal injury not caused in a collision between two ships and not to a passenger (and not a claim by a dependant), the limitation period is three years as set out in s. 140 of the Marine Liability Act.
Claims for personal injury or fatalities are subject to the limitations of liability set out in Part 3 of the Marine Liability Act. These limits are addressed in the section entitled "Limitation of Liability" and the actual limits depend on the size of the ship. For ships less than 300 tons (which will be most pleasure craft), the limit is C$1,000,000. The limitation can only be broken if the plaintiff proves that the loss resulted from the personal act or omission of the defendant “committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result”. This is a very strict test and the author is not aware of any case where the test has been met. In fact, the Supreme Court of Canada described it as "a virtually unbreakable limit" in Peracomo Inc. v. Telus Communications Co., 2014 SCC 29.
Claims by dependants of an injured or deceased person are governed by Part 1 of the Marine Liability Act which gives dependants the right to bring a claim against the wrongdoer in circumstances where the injured or deceased person could have brought a claim. "Dependant" is defined in section 4 and includes spouse, common law spouse, children, grandchildren, grandparents and brothers and sisters.
The damages recoverable by a dependant include loss of care, guidance and companionship (s.6(3)(a)) as well as the actual value of the loss of past and future financial support.
A claim by a dependant is subject to a two year limitation period pursuant to s. 14 of the Marine Liability Act and is also subject to limitation of liability.
The database contains 23 case summaries relating to Personal Injury and Maritime Law. The summaries are sorted in reverse date order with 20 summaries per page. If there are more than 20 summaries, use the navigation links at the bottom of the page.
Mary-Ellen Hawkins v. The Margaret Elizabeth No.1, T2515-94
The plaintiff was injured when a vessel departed from a wharf. This case is essentially an assessment of damages.
Hawkins v. The "Margaret Elizabeth No.1" et al., 1997 CanLII 6107
This case concerned a 17 year old plaintiff who was injured when the rigging of a fishing vessel struck a light pole on a wharf causing it to fall and strike the Plaintiff. The Plaintiff brought this action against the fishing vessel. The fishing vessel in turn brought a third party action against the Crown as owner of the wharf. The fishing vessel was held 100% liable for the accident. The Court rejected the third party claim finding that the Crown was not aware of any defects in the light poles and that any defects were hidden and would not have been discoverable on a reasonable inspection. The Plaintiff was awarded in excess of $438,000.00.
Martin v. Derrach, 1997 CanLII 4614
This was a claim for personal injury damages arising out of a water skiing accident. The Plaintiff was being towed behind the Defendant's Jet Ski when she collided with an anchored boat and severely injured her right leg. Although there was no spotter aboard the Jet Ski, the parties agreed that the absence of a spotter was not causative. The Court held that the Jet ski driver clearly had a duty to take reasonable care for the safety of his skier and that this duty required he drive safely and on a course in which the skier would be safe from collision. The Court, however, found that the driver had done so and that the collision was caused by the skier deliberately choosing to ski a path in close proximity to the anchored power boat. In result, the action was dismissed.
Sarabia v. The Oceanic Mindoro, 1996 CanLII 1537 (BC CA)
In this matter a seaman was injured while his ship was at Vancouver. His employment contract provided that all actions arising out of or by virtue of the contract were to be heard by the Courts of the Philippines. The issue in the case was whether this wording was wide enough to include claims in negligence against the shipowner. At first instance, the Court held it was not and refused the shipowner's application for a stay of proceedings.On appeal, the Court of Appeal held that the contract was clear and ordered the proceedings stayed.