Canadian Maritime Law - 1995 Cases
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Marine Insurance
Fraser River Pile & Dredge Ltd. v Can-Dive Services Ltd. (1995),
9 B.C.L.R. (2d) 260,
(B.C.S.C.).
This case was an action by the owners and underwriters of the derrick
barge "Sceptre
Squamish" against the charterer of the barge. The "Sceptre Squamish" was lost
in a storm off
Little River when it was left by the charterer unattended in heavy weather. A
main issue in the
case was whether the charterer could rely on terms and conditions in the
owner's hull policy in
defence of the action. The policy contained a waiver of subrogation clause
that waived
subrogation against charterers. It also contained an "additional insureds"
clause that gave the
owner permission to charter and made the charterer an additional insured under
the policy. The
owners and underwriters argued that the charterer was not entitled to rely on
these terms because
it was not a party to the policy. They invoked the doctrine of privity that
states third parties
cannot take advantage of a contract to which they are not a party even though
that contract may
expressly confer benefits upon them. The only exception to this rule is where
one of the parties to
the contract contracted on behalf of the third party as agent or trustee.
The Court agreed with
owners and underwriters that the doctrine of privity applied and embarked on a
lengthy analysis of
the agency exception to the doctrine. The Court ultimately concluded that the
charterer could not
come under the exceptions to the doctrine of privity because, at the time the
policy was entered
into, the owners did not have express authority to contract on the charterer's
behalf and the
charterer failed to later ratify the contract. In result, the charterer was
found 100% liable for the
loss of the " Sceptre Squamish" . This case was overturned on appeal to the British Columbia Court of Appeal (October 27, 1997, Action no. CA020806).
Snair v Halifax Insurance, (1995), 145 N.S.R. (2d) 132,
(N.S.S.C.).
In this matter the Plaintiff sought a declaration of coverage. The
Plaintiff had earlier been
found 100% liable for a very serious boating accident that rendered his
former housemate a
quadriplegic. The insurer denied coverage on the grounds of an exclusion in
the policy excluding
coverage to " any person residing in your household" . The Court held that by
the time of the
accident the assured and the injured party " were no longer a unit that
possessed the elements of
intimacy and community" such that the exclusion could apply. In any event, the
Court held that
the insurer was estopped from denying coverage on the grounds that it had
defended the assured
in the liability action for over four years. During this period, no denial of
coverage was ever
issued, no reservation of rights letter was sent and the assured was never
asked to sign a non-waiver agreement.
Lewis v Canada, (July 20, 1995), No. T-1028-93, (F.C.T.D.).
This case concerned a total loss of a vessel due to fire. At the time of
the fire the vessel
was under the command of someone other than the assured. The policy, however,
contained a
provision that prohibited anyone other than the named insured from operating
the vessel without
the prior approval of the insurer in writing. The Plaintiff, assured, claimed
he had sought and
obtained verbal approval to substitute another as master. The insurer denied
that any approval had
been sought or given. The Court found in favour of the insurer and held that
there had been a
breach of warranty and, accordingly, there was no coverage under the policy.
Lockwood v Moreira, (March 17,1995), No. 92-CQ-26633A, (Ont. Ct.
Gen.Div.).
In this matter the insured pleasure craft was broken into by vandals who
used citronella
candles in the interior of the vessel. As a consequence, a thick sooty
substance covered the
interior of the vessel. The assured made a claim under the insurance policy
and the insurers
responded by having the interior of the vessel cleaned. The assured was not
satisfied with the first
cleaning so the insurers authorized a second cleaning. The assured was still
not satisfied and took
the position that the only way the vessel could be restored to its original
condition was by
removing the deck and replacing the interior at a cost of $100,000. The Court
held that the
insurer's obligation under the policy was to restore the boat to substantially
the same condition it
was in before the vandalism, which had been done. The insurer was not required
to restore the
boat to the exact condition it was in before the vandalism. The Court further
rejected a claim of
bad faith against the insurer, holding the insurer had responded promptly to
the claim and without
malice.
Poirier v Laurentian Casualty Co., (November 8, 1995), No. 65F,
(Ont.Ct. Gen.Div.).
This case concerned a claim under an insurance policy for theft of a boat
and trailer
allegedly left on the side of a road when the trailer tire became flat. The
Court held that the
assured and his witnesses were not credible and concluded the assured had
failed to prove his
case. In reaching its conclusion the Court took into account that the assured
had serious financial
problems and the vessel was for sale at the time of the alleged theft.
Mackay v Scott Packing and Warehousing Co., (December 22,
1995), No.A-205094, (F.C.A.).
The Plaintiff in this case had entered into a contract with the Defendant
moving company
for the carriage of his personal possessions to England. A large number of
articles became lost or
damaged during transit. The Defendant accepted liability but argued that it
was entitled to rely
upon a limitation clause in its contract with the Plaintiff. The Plaintiff
argued the limitation clause
did not extend to cover the negligence of the Defendant and, in any event, it
would be
unconscionable or unreasonable to allow the Defendant to rely on the clause.
Both the Trial Judge
and the Court of Appeal rejected the Plaintiff's argument. The clause in
question limited the
Defendant's liability for any loss or damage " howsoever caused" . The Court of
Appeal held that
the phrase " howsoever caused" was wide enough to encompass negligence. The
Court of Appeal
further held that there was no unconscionability or inequality of bargaining
power and it would
not be unreasonable to enforce the clause.
Bertex Fashions Inc. v Cargonaut Canada Inc., (May 29, 1995),
No. T-651-93, (F.C.T.D.).
The issue in this case was the liability of a freight forwarder for
damage to cargo shipped
under a through bill of lading issued by the forwarder. The forwarder argued
that it acted only as
agent for the Plaintiff and was therefore not liable. The Court held, however,
that the forwarder
was liable as a carrier. The factors leading to this conclusion were the
forwarder undertook to
carry the goods, the forwarder charged the Plaintiff a lump sum as freight not
as commission, and
the Plaintiff was totally uninformed and unaware of the identity of the actual
carriers.
Sanmammas Compania Maritima S.A. v The " Netuno" , (August 23,
1995), No. T-2428-89,
(F.C.T.D.).
The issue in this case was damages. The Plaintiff's ship was hit while
moored. The
Defendants, who admitted liability, argued that the ship was detained for a
longer period than
necessary because of other repairs being done at the same time as the repairs
to the areas
damaged by the collision. On the evidence presented, the Court rejected the
arguments of the
Defendant.
Rast v Killoran, (June 19, 1995), Vancouver Reg. No.C931711,
(B.C.S.C.).
This case involved an action for personal injury suffered by a passenger
when a small
vessel collided with a submerged log. The impact caused the driver to lose his
grip on the
outboard motor and, as a consequence, to momentarily lose control over the
vessel. The facts
established that the boat driver had disabled two safety features found on the
outboard engine. He
had tightened the throttle screw on the outboard engine to prevent wrist
fatigue and he failed to
use the kill switch lanyard. The driver argued that it was a practice among
fishing guides in the
area to do these things. The Court, however, found these practices
unreasonable and held the
driver liable for the injuries to the passenger.
Dupras v Bezzina, (February 23, 1995), No.214/91, (Ont.Ct.
Gen. Div.).
This case dealt with an interesting issue concerning the validity and
applicability of section
572 of the Canada Shipping Act. Section 572 provides for a two year limitation
period in actions
involving, inter alia, personal injury suffered by a person on board a vessel.
The Plaintiffs had
rented a vessel which went dead and was struck by the Defendant's vessel.
Four years after the
accident the Plaintiffs decided to join the lessor of their boat to the action
as a Defendant. The
lessor opposed the joinder on the basis that the action against it was time
barred by section 572.
The Plaintiffs, in turn, challenged the constitutional validity of section
572. The Court held that
section 572 was valid legislation. The Court went on, however, to hold that it
was at least
arguable that section 572 applied only to actions by a person on board one
ship against the owner
of another ship. The Court further held that it was arguable that section
572(3) gives the plaintiff
a prima facie right to have the time within which to commence an action
extended unless the
extension would prejudice the Defendant.
Teschner v Yarish, (May 24, 1995), No.31653/90 & 54450/90Q,
(Ont. Ct. Gen.Div.).
This matter concerned a collision between two sailboats shortly before
the commencement
of a sailing race. The Plaintiff's vessel was on a starboard tack. The
Defendant's vessel
approached the Plaintiff's vessel on the port side at an angle higher than the
perpendicular. The
Defendant attempted a starboard tack to cross in front of the Plaintiff but
the manoeuvre was not
successful and the Defendant struck the Plaintiff's vessel amidship at a
ninety-degree angle. The
Defendant was held 100% liable for the accident. In addition to damages for
cost of repairs and
loss of value, the Plaintiff was also awarded damages for loss of use of his
recreational sailboat,
calculated as a percentage of the capital value.
Daniele v Creglia, (October 6, 1995), No. 4028-93, (Ont. Ct.
Gen. Div.).
This was an action by a Plaintiff/passenger against an owner/master for
damages for
personal injury suffered when a small vessel crashed into a breakwater. The
Court held that the
owner/master was clearly negligent in traveling at an excessive rate of speed
and in not
maintaining a proper lookout. The only real issue was whether the owner could
limit his liability
pursuant to the Canada Shipping Act. The Court held that the Defendant as
owner was not
entitled to limit his liability because, knowing the practice and intention of
his alter ego, the
master, he failed to ensure his alter ego would travel at a safe speed.
Meeker Log and Timber Ltd. v The "Sea Imp VIII", (1995), 8
B.C.L.R. (3d) 143, (B.C.S.C.).
The Court held that the exchange rate to be used for converting SDRs to
Canadian Dollars is the rate in effect on the date the fund is
established, whether the fund is established by judgment or payment into
court.
Valley Towing Ltd. v Celtic Shipyards (1988) Ltd., (July 31,
1995), No. T-1492-95, (F.C.T.D.).
In this matter a barge under tow of the Plaintiff's tug collided with and
caused extensive
damage to various docks and vessels. The Plaintiff tug owner admitted
liability and commenced
limitation proceedings. The Plaintiff then brought a motion for a stay of all
proceedings upon
payment of the limitation fund ($42,000) into Court. The Court allowed the
Plaintiff's motion
but only in part. Other actions were allowed to proceed for the purpose of
obtaining security for
the respective claims.
Fraser River Pile & Dredge Ltd. v Empire Tug Boats Ltd., (1995),
92 F.T.R. 26, (F.C.T.D.).
The tug owner was held liable when the crane on a barge hit and damaged
the Cambie Street bridge. The Court held the tug owner had the duty to inspect
the tow, including the height of the crane, to ensure it was suitable for the
intended voyage.
St. Lawrence Cement Inc. v Wakeham & Sons Ltd., (1995), 86
O.A.C. 182, (Ont.C.A.).
This action involved a stranding of a barge due to the negligence of the
tug. The towage
contract specifically provided that the barge owner would be responsible for
insurance on the
barge and cargo and further provided that the towage was to be at the sole
risk of the barge
owner. At Trial, the Judge found that these provisions did not relieve the tug
owner of liability
for the loss. On appeal, however, the Court of Appeal held that the agreement
to insure could
have no purpose other than to relieve the tug owner of liability. It further
held that the "sole risk"
clause operated so as to relieve the tug owner from liability for negligence.
In reaching both these
conclusions the Ontario Court of Appeal unfortunately (and probably
unnecessarily) relied on
American authority stating that the only basis upon which a tug owner could
be held liable is in
negligence and not as a bailee. It is not at all clear that a tug owner will
not be liable in bailment
for damage caused to an unmanned tow. In Fraser River Pile & Dredge Ltd. v
Empire Tug Boats
Ltd. Madame Justice Reid of the Federal Court pointed out the distinctions
that flow from an
unmanned as opposed to a manned tow and questioned whether a tug could not be
held liable in
bailment for damage caused to an unmanned tow.
Hamilton Marine & Engineering Ltd. v CSL Group Inc., (May 3,
1995), No.T-162-89,
(F.C.T.D.).
This matter involved the capsizing of a tug while it was assisting a
larger vessel to undock.
At issue in the case was the liability for the capsizing. The Federal Court
Trial Division canvassed
the rights and duties of tug and tow in such situations. It held that there is
a presumption the tug
is under the control of the tow and that the tow has a duty to ensure it does
not cause damage to
the tug. On the other hand, and notwithstanding that the tow is in command, a
tug has the duty to
look out for its own safety.
R. v The "Front Climber", [1995] N.B.J. No. 249, (N.B. Prov.Ct.).
The "Front Climber" pleaded guilty to a charge of pollution under the
Canada Shipping
Act. Approximately 25 to 30 litres of oil had been discharged in St. John
harbour. The cause of
the discharge was a failure to fully close a valve. The ship was fined $2,000.
An interesting point
in the case was whether the ship could be given an absolute or conditional
discharge, in lieu of a
fine. The Court held that the discharge provisions of the Criminal Code
applied only to natural
persons and were therefore not available to ships.
R. v The "Argus", [1995] N.B.J. No. 507, (N.B. Prov.Ct.).
The ship "Argus" pleaded guilty to an accidental discharge of 3 to 5
barrels of oil into the
waters of St. John harbour. The cause of the discharge was a crew member
opening the wrong
valve. The Court analyzed the various factors that should be taken into
account in sentencing and
ultimately ordered a fine of $23,000. An interesting issue in the case was
whether the Crown
could introduce evidence of prior convictions against ships in the same
ownership as the "Argus".
The Court held that the "offender" was the ship and not its owner and,
therefore, prior
convictions against sisterships were not admissible.
Bow Valley Husky v Saint John Shipbuilding Limited, (1995),
130 Nfld. & P.E.I.R. 92,
(Nfld. C.A.).
In this important case the Newfoundland Court of Appeal confronted the
issue of whether
contributory negligence by a Plaintiff barred the Plaintiff from recovering
damages in a matter
governed by Canadian Maritime Law. The Court followed the decisions rendered
by British
Columbia Courts and held that Provincial contributory negligence statutes
could be applied to
matters otherwise governed by Canadian Maritime Law. The Court also went on to
hold that,
even if Provincial statutes did not apply, it would nonetheless refuse to
apply the contributory
negligence bar. The Court declared that maritime law no longer included a
contributory
negligence bar and that liability should be apportioned based on fault. Leave to
appeal to the Supreme Court of Canada has been granted.
Marley Co. v Cast North America (1983) Inc. et.al., (March 31,
1995), No. T-2718-93,
(F.C.T.D.).
The Plaintiff in the case had entered into a contract with CAST for the
carriage of a
container of goods from Illinois to Holland via Montreal. CAST in turn entered
into a contract
with a rail carrier for carriage of the container to Montreal. The container
was damaged while
being loaded in Illinois. The Plaintiff joined both CAST and the rail carrier
as Defendants. The rail
carrier brought a motion to dismiss the claim on the basis that the Federal
Court was without
jurisdiction. The Court held that its maritime jurisdiction under section
22(2)(f) of the Federal
Court Act did not extend to the rail carrier because the rail carrier was not
a party to the through
bill of lading. The Court held that section 22(2)(f) only gives it
jurisdiction against the actual
parties to the through bill of lading. Accordingly, section 22(2)(f) would
give the Court
jurisdiction against CAST but not the rail carrier. The Court went on,
however, to dismiss the rail
carrier's motion on the grounds that it was possible the Court might have
jurisdiction pursuant to
section 23(c) of the Federal Court Act. Section 23(c) gives the Federal Court
jurisdiction over
extra-provincial works and undertakings. The Court found that there was
insufficient evidence to
determine this issue.
Feoso Oil Limited v The "Sarla", [1995] F.C. 68, (F.C.A.)
This was a motion for summary judgment involving a claim by the
Plaintiff for non-payment of an invoice relating to bunkers supplied to the
Defendant ship. The ship had been under a time charter although it was not
clear whether the charter had come to an end before the bunkers were ordered.
The Defendant owners resisted the claim and the motion for summary judgment on
the grounds that the bunkers were not ordered by or on behalf of the owners.
The Court of Appeal re-affirmed the general principle that an action in rem
cannot be sustained unless the bunkers (or other necessaries) were supplied
to the ship at the request of owners or by someone acting on their behalf and
with authority to bind them. The Court held, however, that the evidence as to
who ordered the bunkers was contradictory and that there was an issue of
credibility that could not be resolved on a motion for summary judgment. In
result, the Court held that there was a genuine issue for trial.
Atlantic Shipping (London) Ltd. v The "Captain Forever", (June
12, 1995), No. T-1165-95,
(F.C.T.D.).
In this matter the Plaintiff had commenced arbitration proceedings in
England for
reimbursement of moneys paid for bunkers under a charter party, and had
negotiated security for
the bunkers claim. The Plaintiff later commenced action for breach of charter
party and for the
bunkers claim. The Plaintiff sought a much higher sum as security. The issue
in the case was
whether the Plaintiff was entitled to re-arrest the ship and to claim a higher
sum as security. The
Court held that there was nothing preventing the Plaintiff from doing so in
respect of the claims
not included in the arbitration.
Ferguson v Arctic Transportation Ltd., (December 7, 1995), No.
T-1941-93, (F.C.T.D.).
This was an action by the Plaintiff against the Defendant shipowner for
personal injuries
suffered by the Plaintiff while the Defendant ship was transiting the Panama
Canal. At the time of
the accident the Plaintiff was employed as a Pilot by the Panama Canal
Commission. The
Defendant in the case had previously joined the Panama Canal Commission as a
Third Party and
now sought leave, against the wishes of the Plaintiff, to have it added as a
Defendant. The Court
refused the Defendant's motion. In doing so, the Court held that the Plaintiff
has the prima facie
right to choose the Defendants against whom it wishes to proceed and that this
right should only
be departed from in exceptional circumstances.
Valley Towing Ltd. v Celtic Shipyards (1988) Ltd.,
(August 22, 1995), No. T-1492-95,
(F.C.T.D.). This was an application in limitation proceedings for
inspection of a ship's steering system.
The shipowner contested the application arguing that it would be inconvenient
and that it should
not be done until all claimants in the limitation proceedings were known. The
Court
acknowledged that the inconvenience of the shipowner was a matter to take into
account but held
that early inspection and discovery were preferable in limitation proceedings.
In result the
inspection was ordered.
Fraser River Pile & Dredge Ltd. v Empire Tug Boats Ltd., (March
20, 1995), No.T-11631-93,
(F.C.T.D.).
The issue considered in this decision is the proper subject matter for
expert opinions and
the form such opinions should take. The Court rejected an expert's affidavit
relating to
navigational and managerial practices on the grounds that the report did not
adequately
distinguish facts from opinions. Further, the Court relied on other
jurisprudence and held that
evidence relating to the standard of care to which a tug company is to be held
is not expert
evidence. The expert's evidence of his own experiences were admitted, but not
as expert
evidence.
Key Marine Industries Ltd. v The "Glen Coe", (1995), 92 F.T.R.
313, (F.C.T.D.).
The Plaintiff in this matter applied for default judgment against the
Defendants. The
Plaintiff had effected service of the Statement of Claim on the ship but had
not served the owners
and no Statement of Defence had been filed. The filing of a defence would have
amounted to an
appearance in the action by the owners and would have converted the In Rem
action into an In
Personam action. The Court held that because the owners had not been served
and had not filed a
defence the Plaintiff was not entitled to judgment against them.
Humble v The "Queen of Alberni", (October 19,1995), Vancouver
Reg. No.C940031, (B.C.S.C.). This was an application by the Defendant
for a stay of the Plaintiff's action on the grounds
that there were similar actions pending in the Federal Court of Canada. The
Defendant wanted all
actions consolidated. The British Columbia Supreme Court refused the
application on the basis
that the Plaintiff's claim might be time barred in the Federal Court and the
Federal Court actions
concerned some matters which were not relevant to the Plaintiff.
Arbella S.A. v The "Aghia Markella", (1995), 94 F.T.R. 229,
(F.C.T.D.).
The subject matter of this dispute was whether the Defendant had breached
a charter party
when it failed to supply the ship on the date specified. The reason the
Defendant could not supply
the ship is that it had been detained by Canadian Coast Guard. The Plaintiff
argued that the
arbitration clause was inoperative because, at the time it was entered into,
the parties did not
contemplate that the dispute would relate to Canadian Coast Guard. The Court
disagreed and
referred the matter to arbitration in London.
Trans-Continental Textile Recycling v The "Erato II" and "MSC
Giovanna", (November 9,
1995), No. T-2754-94, (F.C.T.D.).
In this matter the Defendant sought to rely on a jurisdiction clause in a
bill of lading that
selected New York as the proper forum. The Plaintiff opposed the Defendant's
motion for a stay
on the grounds, inter alia, that the Defendant had attorned to the
jurisdiction of the Federal Court.
The Defendant had filed a Statement of Defence in the action and draft
Affidavits of Documents
had been exchanged between the parties. It was not until nine months after the
defence had been
filed that the Defendants brought their motion for a stay. The Court concluded
that the
Defendants had given every indication of attornment to the jurisdiction and
refused the motion for
a stay.
Donohue Inc. v The "Ocean Link", (March 14, 1995), No.
T-1692-92, (F.C.T.D.).
In this matter the Court refused a motion for a stay of Third Party
proceedings on the
grounds that, first, the Court could not determine on the evidence before it
whether a contract
with a jurisdiction clause existed and, second, it was likely that if the stay
was granted two
separate actions would proceed.
Conagra International S.A. v Seamotion Navigation Ltd.,
(January 13, 1995), Vancouver Reg.
No.A934848, (B.C.S.C.).
In this matter the Defendant shipowner attempted to enforce an
arbitration agreement
contained in a charter party. The case concerned a shipment of wheat from
Canada originally
intended for Iraq. The case was unusual in that, because of the embargo on
shipments to Iraq, the
shipment was resold at sea and redirected to Malta. New bills of lading were
issued at the request
of the shipper so that the new buyer could obtain title to the shipment. The
new bills of lading
contained a term that incorporated all provisions of the Charter Party
"including arbitration
clause". The shipowner relied on the new bills of lading as incorporating the
arbitration clause in
the Charter Party. The Court, however, held that the new bills of lading were
not intended to
create a new contractual obligation between the shipper and the shipowner but
were merely
intended to redirect the shipment and to act as documents of title. The
application for a stay was
refused.
Usach Technologies Inc. v Lamprecht Transport Ltd., (May 5,
1995), No. T-1928-94,
(F.C.T.D.).
In this matter the Court enforced a jurisdiction clause, contained in a
through bill of
lading, in favour of Switzerland. The Plaintiff attempted to argue that the
clause had not been
properly brought to its attention but the Court held that the Plaintiff knew
of the existence of the
clause and accepted it.
Sarabia v The "Oceanic Mindoro", (1995) 9 B.C.L.R. (3d) 348,
(B.C.S.C.).
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. The Court held it was not
and accordingly
refused the shipowner's application for a stay of proceedings.
Swinburne et. al. v Dike et.al., (May 9, 1995), Vancouver Reg.
No. C917404, (B.C.S.C.). This was a summary judgment application by a
group of small vessel owners against a
marina for damage caused to their vessels when the marina broke apart during a
severe storm. In
defence of the claims the marina relied upon an exclusion clause in the
moorage contracts that
exempted it from liability for "loss of or damage to any property of the
owner". The Court held
that this clause did not apply to vessels which, in other parts of the
contract, were distinguished
from other property. In doing so the Court relied upon the well established
principle that
exclusion clauses must be clear and unambiguous and that any ambiguity would
be strictly
construed against the person attempting to rely on the exclusion. The Court
further held the
exclusion clause was not sufficient to exculpate the marina from its duty to
warn of the dangerous
condition of the docks.
Gaudet v Gallien Boats Ltd., (January 23, 1995), No. GSC12753,
(P.E.I. S.C.).
This was an action against a boat builder for damages in negligence and
for breach of the
implied warranties under the Sale of Goods Act. The Defendant had installed a
breather on the
Plaintiff's engine. The motor was subsequently damaged when a nut from the
breather became
lodged in a piston. The Defendant was held liable for the damages.
Seamaid Fishing Ltd. v 328174 B.C. Ltd., (September 27, 1995),
Vancouver Reg. No.C923584,
(B.C.S.C.).
This was an action in negligence for failure on the part of a
manufacturer of rebuilt
injectors to warn of defects in the injectors. In December, 1988, twelve fuel
injectors, rebuilt by
the Defendant, were installed in the Plaintiff's vessel. In April, 1989, one
of these injectors failed
after only 200 hours service when a tip broke off. In that same month another
injector installed on
a second ship also failed when a tip broke off. In August, 1990, another of
the injectors in the
Plaintiff's vessel failed when the injector tip broke off and serious engine
damage resulted. The
Court acknowledged that there was a duty to immediately warn of any defect or
danger in the
injectors. However, the Court found that the chances of a third injector
failure were very remote
and, accordingly, the manufacturer was under no duty to warn of this remote
possibility.
Joys v Canada, (October 4, 1995), No.A-467-94, (F.C.A.) .
This unusual case concerned whether a commercial fishing licence could be
seized under
the provisions of the Customs Act. The facts of the case were that the fishing
vessel "Lloyd B.
Gore" had been spotted by the U.S. Coast Guard returning from the South China
Sea. The vessel
was tracked and was ultimately seized with a cargo of marijuana. The vessel
and her commercial
fishing licence were subsequently declared forfeit. The vessel had a value of
$85,000 and the
licence had an estimated value of between $300,000 and $400,000. The Court of
Appeal held,
however, that the licence was not a "conveyance" under the Customs Act and was
therefore not
subject to forfeiture.
Pacific Shipyards Ltd. v Canada, (December 18,1995), No.
T-302-94, (F.C.T.D.).
The issue in this case concerned the proper regime for measuring the
tonnage of ships
under construction during the period from 1993-1994. The issue arose because
of significant
changes to guidelines published by Transport Canada on April 8, 1993, and
amendments to the
Tonnage Regulations effective October 17, 1994. The Court held the new
guidelines did not apply
to ships where the keel had been laid or construction commenced before April
8, 1993. The Court
further held, however, that the new Regulations applied to all ships less
than 24 m. in length
whose tonnage had not been ascertained by October 17, 1994, regardless of when
the keel was
laid or construction commenced. This case was upheld on appeal; Pacific Shipyards Ltd. v Canada (board of Steamship Inspection), (May 23, 1997) No. T-A-58-96(F.C.A.).
Carriage of Goods
Collisions
Limitation of Liability
Tug and Tow
Pollution
Canadian Maritime Law
Admiralty Practice
Miscellaneous -
Arbitration/Jurisdiction Clauses,
Marinas,
Sale of Goods,
Negligent Repair,
Fishing Licences,
Ship Building
Arbitration/Jurisdiction
Clauses
Marinas
Sale of Goods
Negligent Repair
Fishing Licences
Ship Building
