Case SummariesNote: In Canada the Marine Liability Act extends the application of the Athens Convention to non-paying passengers carried on a vessel used for purposes other than pleasure. Accordingly, many personal injury cases are dealt with under the Athens Convention and those cases are summarized under Carriage of Passengers. Also, as personal injury is subject to limitation of liability, the page entitled Limitation of Liability is relevant. For limitation/prescription periods, see the page entiled Limitation Periods. The Collisions section may also contain information relevant to some personal injury claims.
Tubing Accident - Summary Judgment -Liability
Woodbury v. Hamilton, 2012 ONSC 4817,
The plaintiff was injured when riding in a tube being pulled behind a vessel operated by the first defendant. The tube crashed into a boat being operated by the second defendant. At the time of the incident the second defendant also had a tube at the immediate stern of the vessel upon which three children were sitting and waiting for a ride. The first defendant failed to deliver a statement of defence. The second defendant brought this motion for summary judgment on the grounds that there was no evidence of any negligence on his part.
Decision: Motion dismissed.
Held: There was some evidence to support a finding the second defendant was negligent in either moving his boat towards the centre of the bay or in failing to notice the other boat earlier. This is not a case in which a motion Judge can fully appreciate the evidence and make the findings necessary to render summary judgment.
Fatal Injury - Damages
McDonald v. The "Queen of the North", 2009 BCSC 1129,
This was an application under the B.C. Infants Act for court approval of a settlement reached with the plaintiffs, the two surviving children of one of the passengers who died as a result of the sinking of the “Queen of the North” on 22 March 2006. The Court assessed the headings of loss of love, guidance and affection, past loss of financial support, loss of future financial support and loss of inheritance and approved the settlement as entirely fair and advantageous to the infants. The total amount of the settlement approved was $200,000.
Fatal Accident - Limitation Periods - Application of Provincial Statutes
Frugoli v. Services Aériens des cantons de L'Est inc., 2009 QCCA 1246 ,
This was an action by dependents of two persons who were presumed drowned when the boat they were in capsized. The boat had been chartered and operated by the defendant. The issue was whether the limitation period was the three year period prescribed in the Quebec Civil Code, the two year period prescribed by s. 14(2) of the Marine Liability Act (MLA”) or the two year period as prescribed by Art. 16(2) of the Athens Convention as enacted by the MLA. Due to a mistake by plaintiff’s counsel, the action was commenced more than two years after the accident but less than three years. The Trial Judge reviewed the various authorities and held without much difficulty that the claim should be subject to federal maritime law and not the Quebec Civil Code. The Trial Judge next considered whether it was the two year period in the MLA or the two year period in the Athens Convention that applied and whether the period could be extended. The issue was relevant because Art. 16(3) of the Athens Convention provides that “the law of the court seized of the case shall govern the grounds of suspension or interruption” of the limitation period. The Trial Judge held that the “law of the court seized of the case” meant Canadian maritime law. The Trial Judge then thoroughly reviewed the authorities and ultimately held that there was no discretionary power to extend the limitation period under maritime law except with respect to a collision action governed by s. 23 of the MLA. Finally, the Judge was of the view that in any event an error of counsel was not sufficient grounds for interruption or suspension of the limitation period in the circumstances. On appeal, the Quebec Court of Appeal held that it was “perfectly clear” the matter was governed by Canadian maritime law, that the provincial legislature had no jurisdiction and that the provincial limitation statute had no application. The Court of Appeal next addressed the issue of whether the court had a discretion to extend or suspend the two year limitation period in the MLA and agreed with the Trial Judge that the express inclusion of the discretionary remedy in s. 23 of the MLA dealing with collisions implied, as a matter of statutory interpretation, that there was no discretion for other limitation sections of the MLA. Although this was sufficient to dispose of the appeal, the Court of Appeal went on to consider whether there was inherent jurisdiction to extend the limitation period and held that there was not.
Personal Injury - Duty of Care of Boat Rental Company – Damages
Wozniak v. Alexander, 2008 ABQB 430,
The Plaintiff was seriously injured while tubing when her foot was nearly severed by the propeller of the towing boat operated by one Defendant. The operator admitted liability but alleged liability should be shared with the company from whom the boat was rented. The Court held, first, that a duty of care was owed by the rental company. In fact, this seems to not have been seriously contested. The Court then found that the rental company had breached this duty by not taking adequate steps to determine the experience level of those who would be operating the vessel and by not giving adequate instruction. In particular, none of the vessel’s occupants were instructed on towing procedures or how to “kill” the engine and when that should be done. With respect to causation, the Court recognized the “but for” test was the appropriate test and held that “but for” the inexperience of the operator and the lack of proper instruction, this accident would have been avoided. The Court then apportioned liability equally between the operator and boat rental company. The Court awarded: general damages for loss of pleasure and enjoyment of life at $120,000; cost of future care and housekeeping at $40,000; and loss of earning capacity at $50,000.
Capsize - Fatal Injury - Dependents Claims - Damage Assessment
Wilcox v. The Miss Megan, 2008 FC 506,
This was a case in which the Defendant admitted liability for a fatal injury when a fishing vessel capsized. The deceased drowned. Claims were made under the provisions of the Marine Liability Act by the deceased’s widow, three adult children and brothers and sisters. The first issue was whether the brothers and sisters could make a claim under the MLA. The Prothonotary held that they were clearly entitled by s. 4(c) of the Act. The Prothonotary next considered the pecuniary damages. The Prothonotary rejected the Defendant’s argument that a deduction should be made for successful mitigation by the widow holding that a widow had no obligation to mitigate. The Prothonotary also said that the appropriate means of accounting for personal expenditures by the deceased in a two income household was to use the “cross-dependency method” (which applies a dependency rate to family income as opposed to personal income). The Prothonotary next considered whether two of the dependents were entitled to damages for loss of valuable services provided by the deceased and held that they were. Finally, the Prothonotary considered damages for loss of care, guidance and companionship. The Prothonotary noted that the MLA provided no guidance as to how these damages should be calculated and further noted that the provinces seemed to have taken two distinct approaches; a conventional award or an award based on assessment of the evidence on a case by cases basis. The Prothonotary held that legislation in Ontario bore the closest resemblance to the MLA and adopted the Ontario case by case approach. In assessing actual damages the Prothonotary consulted the Ontario cases for guidance. The Prothonotary awarded the widow and a disabled daughter $75,000 each for loss of care, guidance and companionship. The other two children were awarded $25,000 each. The siblings were each awarded $15,000. The Defendant appealed the order of the Prothonotary but the Appeal Judge upheld the decision in its entirety.
Capsize - Fatal Injury - Criminal Negligence
R. v. Broadwith, 2007 BCSC 1910,
The accused was the Captain of a houseboat that capsized resulting in the death of a passenger. He was charged with criminal negligence causing death. Although the Court accepted the evidence of the Crown’s expert that the house boat was overloaded and was destined to capsize because of this, the Court held that the Crown had failed to prove the Captain’s conduct amounted to criminal negligence. One of the critical findings leading to the acquittal was that the Captain was not aware there were an excessive number of passengers on board. The sinking occurred because two passengers pushed the boat away from the dock before the Captain had given his safety speech and before he could count the number of passengers onboard.
Constitutional Law – Occupiers Liability Act – Personal Injury on Wharf
Jackson v. Fisheries and Oceans Canada, 2006 BCSC 1492,
This case concerned the constitutional applicability of the Occupiers Liability Act of British Columbia to a slip and fall that occurred while the Plaintiff was walking down a ramp from the shore to a wharf administered by Fisheries and Oceans Canada. The Defendants argued that the Occupiers Liability Act had no application as the matter was to be governed by Canadian Maritime Law. The Judge considered the decision of the Supreme Court of Canada in Ordon v Grail,  3 SCR 437 but held that a provincial statute could incidentally affect matters coming within the exclusive jurisdiction of Parliament. The Judge noted that the Defendants needed to show that the subject matter of the Plaintiff's claim “is so integrally connected to maritime matters as to be legitimate Canadian Maritime law within federal competence” and held that they had failed to do this. It is noteworthy that the Judge considered the case of Peters v ABC Boat Charters,  B.C.J. No. 2345, where it was held that the Occupiers Liability Act applied to a slip and fall on board a ship, and was asked to not follow it on the grounds that it had been implicitly overruled by Ordon v Grail. The trial Judge held, however, that Peters v ABC Boat Charters was still good law.
Personal Injury – Fishing Lodge – Defect – Failure to Warn – Limitation
Cuppen v. Queen Charlotte Lodge Ltd. et al, 2006 BCCA 443,
The Plaintiff was a guest at the Defendant's fishing lodge. He was provided with a fishing boat by the Defendant and was injured while operating the boat. The trial Judge found that the boat veered suddenly and dramatically through no fault on the part of the Plaintiff. The Plaintiff was thrown against the starboard side of the boat and suffered a serious break to his right femur. The trial Judge found that the accident was caused by a defect in the boat but was not able to determine the particular defect and was therefore not able to conclude that the Defendant was negligent in equipping the boat with a defective steering system. The trial Judge further found, however, that a number of complaints had been made to the Defendant about the steering systems by previous guests and held that the Defendant was liable for failing to properly warn the Plaintiff about possible problems with the steering and for failing to take steps to address the complaints. A further issue in the case was whether the applicable limitation of liability was that contained in Part 3 of the Marine Liability Act (Limitation of Liability for Maritime Claims) or Part 4 of the Marine Liability Act (Carriage of Passengers). The trial Judge held that the limitation in Part 4 only applied where there was a contract of carriage and that in this case there was no such contract, the Defendant having merely provided the Plaintiff with a boat to fish. Accordingly, the applicable limitation was $1 million as provided in Part 3 of the Marine Liability Act. In result, the Plaintiff was awarded damages of an amount in excess of $300,000. An appeal by the Defendant to the Court of Appeal for British Columbia was dismissed on the grounds that the arguments on appeal related primarily to questions of fact.
Limitation of Liability – Personal Injury – Fault or Privity
Vukorep v. Bartulin, 2005 BCCA 142,
In July 1998 the Plaintiff was injured on board the Defendant's pleasure craft when the vessel hit a wave from a passing ferry. At the time of the accident the vessel was being operated by the Defendant who was also the owner. The Defendant brought this application for a determination of whether he could limit his liability pursuant to s. 575 of the Canada Shipping Act. The trial Judge dismissed the application on the grounds that the Defendant failed in his capacity as owner to install after market handholds for passengers and that this brought the Plaintiff's injury within his “actual fault or privity” as owner. On appeal, the British Columbia Court of Appeal held that the trial Judge had erred by not considering whether the absence of handholds rendered the pleasure craft unseaworthy. The Court found as a fact that the installation of such handholds is not a common practice and accordingly held that the vessel was seaworthy. In the result, the appeal was allowed and the Defendant was entitled to limit his liability. (Note: The limitation provisions considered in this case were based on the 1957 Limitation Convention which was replaced in Canada on 10 August 1998 by Part 3 of the Marine Liability Act. The new provisions are based on the 1976 Convention on Limitation of Liability for Maritime Claims and the 1996 Protocol.)
Fatal Accidents - Limitation Periods - Application of Provincial Prescription Statute
Nicholson v. Canada,  3 FC 225,
This was a summary judgment motion by the Crown for an order dismissing the claims of the Plaintiffs as time barred. The Plaintiffs were the dependents and the executor of the deceased who died when his vessel hit a rock and sank. The Plaintiffs alleged that the accident was caused by the breach of statutory duties on the part of the Coast Guard. The accident occurred on April 2, 1992, but the action was not commenced until March 30, 1994. The Defendant argued that the applicable limitation period was one year from the time of death as prescribed by section 649 of the Canada Shipping Act. (Note: This provision has since been amended and the limitation period is now two years.) The Plaintiffs argued that the discoverability principle operated to extend the time bar under the circumstances of the case, that the court had inherent jurisdiction to extend the limitation period, that there was a non-statutory cause of action to which section 649 did not apply, that the tolling provision of the Ontario Limitations Act applied, and that, in any event, the claim of the estate was not covered by section 649. The court dealt with each of these arguments. With respect to the discoverability principle (i.e. that the limitation does not run until the Plaintiff is aware of the material facts giving rise to a cause of action) the court held that this principle applied but that it did not assist the Plaintiffs as they were aware of the material facts at the conclusion of the inquest into the death of the deceased yet they did not commence their action within one year from that date. With respect to the inherent jurisdiction of the court to extend the limitation period, the court held that, in the absence of a clear statutory authority it had no such jurisdiction. (Note: This is contrary to the decision of the Ontario Court of Appeal in Dreifelds v Burton, (March 6, 1998) No. C 2456 &: C24580 (Ont. C.A.) but is consistent with the decision of the British Columbia Supreme Court in Vogel v Sawbridge, (April 3, 1996) No. 24638 Kelowna Registry.) With respect to the alleged common law non-statutory cause of action, the court held that there was no such cause of action. With respect to the argument that the tolling provisions of the Ontario Limitation Act applied, the court held that the incorporation of the tolling provisions would be inconsistent with the statutory scheme set out in Part XIV of the Canada Shipping Act. Finally, with respect to the action by the executor of the estate of the deceased, the court held that this action (which was newly created by the Supreme Court of Canada in Ordon Estate v Grail,  3 S.C.R. 437) was not time barred as it was not a claim by dependents and was governed by the two year limitation period in the Ontario Trustee Act as incorporated by section 39 of the Federal Court Act. (Note: It is not apparent why the limitation period in the Ontario Trustee Act would apply to the action by the executor as that action is a common law action and is not based on the Trustee Act.)
Personal Injury - Burden of Proof - Limitation Period
Ferguson v. Arctic Transportation Ltd., 1998 CanLII 7914,
This was an action for damages for personal injury. The Plaintiff was a Panama Canal Pilot. At the time of the accident he was one of three Pilots on board the barge "AMT Transporter", ex the "Arctic Tarsiut", when she was transiting the Panama Canal. He was injured when an emergency tow line secured to the sides of the barge apparently became snagged, whipped up and hit him. The Plaintiff alleged that the Defendants were negligent and the barge was unseaworthy in that the emergency tow line had been improperly secured. The trial judge, however, dismissed the Plaintiff's claim. She found that the barge had been prepared for transit through the canal by a reputable contractor, that the Panama Canal Commission had approved the method of securing the tow line and that the Panama Canal Commission inspectors had inspected the work after it was done. The trial judge further noted that at the time of the accident the barge was under the exclusive control of Panama Canal Commission employees. Accordingly, the trial judge found that the Plaintiff had failed to prove negligence or unseaworthiness.
A second issue in the case concerned the applicable limitation period. The Defendant argued that the matter was governed by Panamanian law which provided for a one year limitation period. The Plaintiff argued that the matter was governed by section 275 of the Canada Shipping Act which provides that in the absence of a limitation period in the act itself the case should be governed by the law of the Port of registry (i.e.. Canada). The trial judge held that section 275 applied only to seamen working on Canadian ships and that it had no application to an accident involving a foreign pilot in foreign waters. Consequently, she found that the action was time barred.
Personal Injury - Liability of Wharf Owner
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.
Water Skier - Contributory Negligence
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.
Stay - Jurisdiction Clause - Injury to Seaman - Employment Contract - Foreign Law
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.
Personal Injury - Damages
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.