The limitation periods that apply to claims governed by maritime law are not always easy to identify or locate. The following table identifies the federally prescribed limitation periods for many of the more common claims subject to maritime law. For those claims for which there is not a specific limitation period, s. 140 of the Marine Liability Act now provides for a general limitation period of three years.
Federally Prescribed Limitation Periods
|Type of Claim||Limitation Period||Statute/Convention|
|Personal Injury - Death||If personal injury results from a collision
between two ships the limitation period is two years as set out below.
If personal injury is caused to a passenger the limitation period is two years as set out below.
If the claim is for personal injury not caused in a collision between two ships and not to a passenger, the limitation period is three years.
|Marine Liability Act, s. 23(1)
Athens Convention, Art. 16 r.1 (Marine Liabiity Act, Sched. II)
Marine Liability Act, s. 140
|Property Damage||If property damage results from a collision
between two ships the limitation period is two years as set out below.
If the property damage is to cargo that is carried under a contract of carriage subject to the Hague-Visby Rules the limitation period is one year as set out below.
If the claim is for property damage not caused in a collision between two ships and not to cargo covered by the Hague-Visby Rules, the limitation period is three years.
|Marine Liability Act, s. 23(1)
Hague-Visby Rules, Art.III, r.6 (Marine Liabiity Act, Sched. III)
Marine Liability Act, s. 140
Claims arising as a consequence of collision between two ships including claims for property damage, personal injury and fatalities
|23. (1) No action may be commenced later than two years after the loss or injury arose to enforce a claim or lien against a ship in collision or its owners in respect of any loss to another ship, its cargo or other property on board, or any loss of earnings of that other ship, or for damages for loss of life or personal injury suffered by any person on board that other ship, caused by the fault or neglect of the former ship, whether that ship is wholly or partly at fault or negligent.||Marine Liability Act, s. 23(1)|
|Carriage of Goods
Claims against the carrier and ship for loss of or damage to goods carried subject to the Hague-Visby Rules
|Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen.||Hague-Visby Rules, Art.III, r.6 (Marine Liabiity Act, Sched. III)|
|Carriage of Goods - Indemnity
Claims against third parties for indemnity in respect of amounts paid for loss of or damage to goods carried subject to the Hague-Visby Rules
|6.bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself.||Hague-Visby Rules, Art.III, r.6bis (Marine Liabiity Act, Sched. III)|
Claim by Dependants of injured person
14. (1) No action may be commenced under subsection 6(1) later than two years after the cause of action arose.
|Marine Liability Act, s. 14(1)|
Claim by Dependants of deceased person
14. (2) No action may be commenced under subsection 6(2) later than two years after the death of the deceased person.
|Marine Liability Act, s. 14(2)|
|Contribution - Indemnity
Claims against third parties for contribution or indemnity
20. (1) No claim may be made under section 18 later than one year after the date of judgment in the proceeding or the date of the settlement agreement.
(2) A claim under section 18 is not defeated by any period of limitation or prescription, or by any requirement for notice, that is applicable to the original claim in respect of which contribution or indemnity is sought.
|Marine Liability Act, s. 20(1)|
Claims under s. 51 of the Marine Liability Act against owner of a ship for pollution
(a) if pollution damage occurred, before the earlier of (i) three years after the day on which the pollution damage occurred, and (ii) six years after the occurrence that caused the pollution damage or, if the pollution damage was caused by more than one occurrence having the same origin, six years after the first of the occurrences; or
(b) if no pollution damage occurred, within six years after the occurrence.
|Marine Liability Act, s. 51(6)|
Claims against the administrator of the Ship Source Oil Pollution Fund
a) within two years after the day on which oil pollution damage occurred and five years after the occurrence that caused that damage, or
(b) if no oil pollution damage occurred, within five years after the occurrence in respect of which oil pollution damage was anticipated.
|Marine Liability Act, s. 85(2)|
Claims by passengers for personal injury, death or loss of or damage to baggage
|Any action for damages arising out of the death of or personal injury to a passenger or of the loss of or damage to luggage shall be time-barred after a period of two years.||Athens Convention, Art. 16 r.1 (Marine Liabiity Act, Sched. II)|
matters governed by Canadian maritime law
140. Except as otherwise provided in this Act or in any other Act of Parliament, no proceedings under Canadian maritime law in relation to any matter coming within the class of navigation and shipping may be commenced later than three years after the day on which the cause of action arises.
|Marine Liability Act, s. 140|
Where there is no Federal Limitation Period
Note: The discussion below has been superseded by the enactment of a general limitation period of three years for claims governed by Canadian maritime law and for which there is no specific limitation period. (s.140 - Marine Liability Act) However, as s. 140 only came into force on 21 September 2009, the discussion below may still be relevant for some older claims and, in any event it explains the mischief that s. 140 was intended to correct.
Prior to the decision of the Supreme Court of Canada inOrdon v Grail,  3 S.C.R. 437 (the summary of this important decision can be found here), it was generally thought that the limitation periods prescribed in the general limitation statutes of the various provinces of Canada would apply in those situations where there was no federally prescribed limitation period.Ordon v Grail now makes it extremely doubtful that the provincial limitation statutes will apply of their own force to maritime matters and means that there may be no limitation periods for certain types of claims.
Section 39 of the Federal Court Act provides a partial solution to the problem of the lack of a federal limitation statute of general application.
39. (1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in that province.
(2) A proceeding in the Court in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose.
Section 39 differentiates between actions arising within a single province and actions arising in more than one province or outside of any province. For actions arising within a single province, section 39(1) incorporates the general limitation act of the province. Thus, such actions will be subject to the limitation period prescribed by the province (which can vary depending upon the province and type of claim). For actions arising in more than one province or completely outside of a province, section 39(2) prescribes a six year limitation period.
It might be argued that section 39 of the Federal Court Act provides a solution to the problem of a lack of a federal limitation statute of general application. However, section 39 is not an appropriate solution to the problem created by Ordon v Grail. An obvious and apparent difficulty with section 39 is that the limitation period will differ depending on where the cause of action arose. A further, and even more important, difficulty with section 39 is that it applies only to actions commenced in the Federal Court. It has no application whatsoever to actions commenced in the superior courts of the provinces and many maritime actions are commenced in those courts.
The state of the law in Canada (before the enactment of s. 140 of the MLA) in respect of those matters governed by Canadian maritime law and for which there was no federally prescribed limitation period created a multiplicity of limitation periods and rules that differed depending on the court and the jurisdiction. If action was commenced in the Federal Court and all of the elements of the cause of action arose within a single province, the applicable limitation period was as prescribed by the Limitation Act of that province. If action was commenced in the Federal Court and the elements of the cause of action arose in more than one province or outside of any province, the applicable limitation period was 6 years as prescribed by s.39(2) of the Federal Court Act. If action was commenced in the superior court of a province and regardless of where the cause of action arose, s.39 of the Federal Court Act did not apply and there was probably no limitation period.
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.
Carriage of Goods - Limitation Period - Counterclaim
Hapag-Lloyd Container Line GmbH v. Moo Transport & Commodities Inc., 2009 FC 201,
The issue in this case was whether a counterclaim for damage to cargo and non-delivery should be dismissed on the grounds that the counterclaim was made out of time. The moving party relied upon a clause in the bill of lading that stipulated the carrier would be discharged from all liability unless suit was brought within one year (almost identical wording to the limitation period in the Hague/Hague-Visby Rules). The Court gave effect to the clause noting that this wording had the effect of completely excluding any cause of action rather than merely barring a remedy. In result, the counterclaim was dismissed.
Pleadings - Amendment - Limitation Period
Bank of the West v. The 26' Well Craft Scarab (Ship), 2007 FC 1112 (CanLII),
The Defendant marine insurer sought leave to amend its pleading to plead a limitation period contained in its policy. At first instance the Prothonotary denied the application without giving reasons. On appeal, the motions Judge noted the general rule is to allow amendments at any stage of an action provided there is no prejudice or injustice to the other party that cannot be compensated for in costs. Given that the proceeding had not advanced significantly and the Plaintiff was unable to identify any particular prejudice, the Judge allowed the appeal and gave leave to the Defendant to plead the limitation period defence.
Personal Injury - Athens Convention - Limitation Period - No Power to Extend - Applicable Law
Russell et al. v. MacKay, 2007 NBCA 55,
The Plaintiff was a passenger on a whale watching vessel and was injured at sea when she tripped over a cooler while leaving the washroom on the vessel. The accident occurred on 3 August 2003 but action was not commenced until 20 July 2006. The Defendants brought this motion to dismiss the Plaintiff's claim on the grounds that it was statute-barred by the two year limitation period in the Athens Convention as enacted by the Marine Liability Act. The Plaintiff argued that the applicable limitation period was six years as provided the New Brunswick Limitation of Actions Act. Alternatively, the Plaintiff argued that the Court had the discretion to suspend or interrupt the running of the limitation period. The trial Judge concluded that the Plaintiff's claim was in pith and substance in relation to navigation and shipping and governed by federal Canadian maritime law and not the provincial limitations statute. The trial Judge then considered whether the court had a discretion to suspend or interrupt the running of the limitation period. The trial Judge referred to art. 16(3) of the Athens Convention which provides that “The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods...”. The trial Judge held that the phrase “law of the court seized of the case” referred to Canadian maritime law and not the law of New Brunswick. The trial Judge noted that a three part test had been established to determine when an extension of a limitation period should be made under s. 572(3) of the Canada Shipping Act and that this was the appropriate test to apply. The test was: 1. did the Plaintiff have a valid prima facie case; 2. was the Defendant aware of the claim and would it suffer prejudice by an extension, other than the loss of the limitation defence; and 3. having regard to all the circumstances, was it in the best interest of justice that time be extended. Applying this test the trial Judge held it was in the best interests of justice that the limitation period be interrupted or extended.
On appeal to the New Brunswick Court of Appeal, the Court of Appeal agreed with the trial Judge that the case was to be governed by federal maritime law and further agreed that the limitation period was to be found in the Athens Convention but disagreed with respect to the powers of the court to suspend or extend the limitation period. Specifically, the Court of Appeal said that the trial Judge erred in relying upon and applying the test flowing from the old s. 572(3) of the Canada Shipping Act which dealt with collisions between ships (as does its successor in s.23 of the Marine Liability Act ) not injuries to passengers. The Court said that Art. 16 of the Athens Convention did not include any power to extend the limitation period and held that superior courts do not have inherent powers to extend limitation periods. The Court of Appeal next considered the meaning of Art. 16(3) and noted that the reference to the law of the court seized of the case did not imply such law would necessarily provide grounds for suspension or interruption. The Court held that there was no federal legislation that would provide grounds for suspension or interruption. Finally, the Court considered whether the law should be reformed to include a power to suspend or interrupt a limitation period and suggested, without deciding, that 1) waiver; (2) estoppel; (3) absence from the jurisdiction; (4) infancy; and (5) mental incompetency might be grounds. However, as the evidentiary record supported none of these grounds, the matter was not decided.
Collision - Limitation Period - Extension
Rioux v. Bégin, 2007 QCCQ 4119,
The issue in this case was whether the Court should exercises its discretion under s.23(2) of the Marine Liability Act to extend the limitation period. The Plaintiff was an infant and the limitation period had apparently been missed because legal advisors thought the provincial limitation period of two years applied. The Court granted the request for an extension. (Note: Unfortunately, this decision is only published in the French language, a language in which the author is not fluent, and it is not entirely clear to the author why the extension was granted.)
Marine Insurance – Bad Faith – Limitation Period - Pleading – Striking – Reasonable Cause of Action
Forestex Management Corp. et al. v. Underwriters at Lloyds et al., 2004 FC 1303,
“Many years ago when small boys wore suspenders and ships had gender...” So begins the Reasons for judgment of Prothonotary Hargrave in this application by the Defendants to strike out the Statement of Claim of the Plaintiff. The facts were that on 4 August 2000 the “Texada” went aground in a passage in the Queen Charlotte Islands and was subsequently declared a constructive total loss. The Plaintiff gave underwriters notice of the casualty on 8 August 2000 and underwriters denied coverage for breach of the trading warranty on 10 August 2000. The Plaintiff subsequently commenced an action against underwriters for coverage under the policy of insurance. That action was, however, dismissed following a status review on 9 January 2003. The dismissal was appealed by the Plaintiff but the appeal was not served. The Plaintiff attempted to bring on a motion ex parte to extend the time to serve the appeal but was ordered to serve the underwriters. This was not done and the Federal Court of Appeal dismissed the appeal for delay on 13 January 2004. The Plaintiff subsequently commenced the present action against underwriters alleging bad faith. The Defendant underwriters filed a Statement of Defence and brought the present motion to dismiss the action on various grounds. However, as they had filed a Statement of Defence the Prothonotary held that they were only entitled to argue that the Statement of Claim failed to disclose a reasonable cause of action. The thrust of the Defendants argument was that there could be no action for bad faith without an initial finding that there was coverage under the policy. The Prothonotary first considered the requirements of an action for bad faith. He reviewed American and Canadian authorities and noted that although a claim under a policy and a claim for bad faith are two distinct causes of action they are related in that a claim for bad faith cannot succeed unless there is a finding that there is coverage under the policy. He next considered the effect of the dismissal of the claim under the policy and held that an order dismissing an action for delay does not set up a res judicata defence and therefore, subject to any time bar defence, does not prevent a Plaintiff from re-commencing an action. The Prothonotary next considered whether there was a limitation period that would bar the Plaintiff from re-commencing an action on the policy. The Court was referred to s. 39 of the Federal Court Act which incorporates provincial limitation periods and was urged to apply the one year limitation period set out in section 22(1) of the British Columbia Insurance Act. However, the Prothonotary questioned whether the British Columbia Insurance Act extended or ought to extend to marine insurance, a federal undertaking. The Prothonotary did, however, apply the two year limitation period in the British Columbia Limitations Act and applying that period held that the action was not time barred. (The denial of coverage occurred on 10 August 2000 and the bad faith action was commenced on 9 August 2002.) Accordingly, the Prothonotary noted that the existing bad faith action could be amended by adding a supporting claim under the policy and held that if this was done it was not plain and obvious and beyond doubt that the Plaintiff's action could not succeed. In result, the motion to strike the claim was dismissed.
Freight - Set-off - Hague-Visby Rules - Limitation/Prescription - Exculpatory Clauses
Mediterranean Shipping company S.A. v. Sipco Inc., 2001 FCT 1046,
The Plaintiff in this action claimed against the Defendant for ocean freight owing in respect of the carriage by sea of nine containers from Toronto to the Persian Gulf. The Defendant admitted non-payment of freight but alleged that it was entitled to a set-off and brought a counterclaim alleging breaches of the contract by the Plaintiff. Specifically, the Defendant alleged that seven of the containers were shipped together, that six of those seven containers arrived on time at the port of discharge, that the seventh container did not arrive until months after its scheduled arrival, and that as a consequence the clearance through customs of all of the containers was delayed. The issues in the case were the entitlement to set-off and whether the Plaintiff had been negligent in its handling of the containers. On the first issue the Trial Judge reviewed the Anglo-Canadian authorities and concluded that there could be no right of set-off against freight under a contract for the carriage of goods by sea unless the contract specifically provided otherwise. As the contract did not provide otherwise, there was no right of set-off. The Trial Judge next turned to the counterclaim. The first defence raised against the counter-claim was that the claim had not been brought within the one year time period fixed by the Hague-Visby Rules. The success of this argument depended upon whether the prescription period set by the Rules ran from the date of discharge or the date of actual or constructive delivery to the consignee. The Trial Judge held that the prescription period runs from delivery not discharge and that any clauses in a bill of lading declaring delivery takes place at discharge are null and void. The Trial Judge further held that delivery takes place on the day the last piece of cargo is delivered, the seventh container in the case at bar. Accordingly, the Judge held the counterclaim had been commenced within time. The Judge next considered various defences raised by the clauses in the bill of lading, namely: a scope of voyage clause which gave the carrier complete discretion as to the ports at which to call; a period of responsibility clause which provided the carrier was not liable for damages occurring in the period before loading or after discharge; and a clause providing that there could be no claims for failure of the carrier to meet arrival or departure dates. The Judge held that these various clauses were contrary to the Hague-Visby Rules and therefore null and void pursuant art. 3 r. 8 of the Rules. The Judge next considered the damages suffered as a consequence of the breach of contract by the Plaintiff but found that the Defendant had failed to prove any damages. In result, therefore, the claim for freight was allowed and the counterclaim was dismissed.
Collisions - Limitation - Small vessels
Leggat Estate v. Leggat,  O.J. No. 1301,
In this case, also decided under the old limitation regime, the Court held that the operator of a small vessel was entitled to limit his liability but the owner was not. The owner appealed. The decision of the appellate court is summarized above Dixon v Leggat.
Limitation Period - Extension of Time
Croisieres A.M.L. Inc. v. Goelette Marie Clarisse Inc., 2000 CanLII 16153 ,
This was an application to extend the two year limitation period set by s. 572(1) of the Canada Shipping Act for the commencement of an action against a ship for damage to property or personal injury. The evidence showed that the Plaintiff had sent the Defendant a notice of its claim within the two year period. The Defendant acknowledged the notice and requested the Plaintiff send relevant documentation “without prejudice and without making any admission”. No further evidence or explanation was offered. The Court held that the evidence was not a sufficient explanation by the Plaintiff of the delay and dismissed the application.
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.)
Suit Time Extensions
Riva Stahl GmbH v. The "Bergen Sea" et al., 1999 CanLII 8093,
This was an appeal from a decision of the Trial Division in which an application for summary judgment by the Defendants based on a time limitation defence was allowed. The case illustrates the dangers to Plaintiffs of suit time extensions. The Plaintiffs in the case obtained a suit time extension from the shipowner to June 13, 1995. This extension was conditional on the Plaintiffs obtaining a similar extension from charterers. The Plaintiffs did obtain a suit time extension from charterers but it was to a date of June 30, 1995. This extension was also conditional on the Plaintiffs obtaining a similar extension from owners. The Plaintiffs were unaware of, or failed to appreciate that, the extensions were not similar in that they expired on different days. The Plaintiffs issued a Statement of Claim on June 28, 1995, two days before the charterer's extension expired but after the owner's extension had expired. Both Defendants brought a summary judgment application to dismiss the action as being out of time. The Trial Division granted the application holding that there was no binding agreement to extend suit time to either June 13, 1995 or June 30, 1995, and further holding that the Defendants had not waived the time bar defence and were not estopped from raising it by reason of their continued negotiations with the Plaintiffs. The Court of Appeal agreed with the Trial Judge that there were no effective time extensions in place when the action was commenced and that there was no waiver or estoppel.
Definition of Canadian Maritime Law - Applicability of Provincial Statutes - Fatal Accident Limitation Period
Ordon Estate v. Grail,  3 SCR 437,
This case is essential reading for all Canadian maritime law practitioners. It concerns four separate actions commenced in the Ontario Court General Division. The actions involved two boating accidents which resulted in fatalities and in serious personal injury. The actions gave rise to similar legal issues. The issues were:
Do the superior courts of the provinces have jurisdiction over maritime fatal accident claims or are such claims within the exclusive jurisdiction of the Federal Court?;
When can provincial statutes of general application apply to maritime negligence claims? Specifically:
Do the provisions of the Ontario Family Law Act allowing claims for loss of care, guidance and companionship by dependants (including common law spouses and siblings) apply to boating accidents?
Do the provisions of the Ontario Trustee Act allowing the estate of a deceased person to bring an action for damages apply to boating accidents?
Do the provisions of the Ontario Negligence Act apply to boating accidents?
Is the the limitation period for fatal boating accidents one or two years?
The Supreme Court of Canada held as follows:
Provincial superior courts have an inherent general jurisdiction over maritime matters that can only be taken away by clear and explicit statutory language. The provisions of the Canada Shipping Act granting jurisdiction over fatal accident claims to the "Admiralty Court" (which is defined as the Federal Court) do not expressly exclude superior court jurisdiction. Therefore the superior courts have concurrent jurisdiction with the Federal Court over maritime claims.
The determination of whether a provincial statute is constitutionally applicable to a maritime negligence action involves a four part analysis:
Step 1: First, it must be determined whether the matter at issue is within the exclusive federal legislative competence over navigation and shipping, ie. is the subject matter under consideration so integrally connected to maritime matters so as to be legitimate Canadian Maritime Law;
Step 2: If the answer to step 1 is yes, the second step is to determine whether Canadian Maritime Law provides a counterpart to the statutory provision. If it does, Canadian Maritime Law applies;
Step 3:If there is no counterpart provided by Canadian Maritime Law, the third step is to consider whether the non-statutory Canadian Maritime Law should be altered in accordance with the principles of judicial reform established by the court, ie. to reflect the changing social, moral and economic fabric of the country. Such changes should only be incremental. Changes with complex or uncertain ramifications should be left for the legislature. Additionally, in making changes to Canadian Maritime Law the courts should consider the fabric of the broader international community of maritime states and the desirability of maintaining uniformity in maritime law;
Step 4: Finally, and only if the matter cannot be resolved through the application of steps 1 through 3, the court must determine whether the provincial statute is constitutionally applicable to a maritime claim. The Supreme Court noted that matters within exclusive federal jurisdiction are subject to provincial statutes of general application provided the provincial laws do not go to the core of the federal jurisdiction. If they do, they will be read down. The Court held that Maritime negligence law is a core element of federal jurisdiction over maritime law and that it would therefore be constitutionally impermissible for a provincial statute to regulate this area of law. The Court cautioned that they were not saying that no provincial statute could ever apply in any maritime context, however, the Court was of the opinion that this would be a relatively rare occurrence.
With respect specifically to the application of the Ontario Family Law Act to boating accidents, the Supreme Court applied the above analysis and held that Canadian Maritime Law should be reformed to allow claims by dependants for loss of guidance, care and companionship in respect of both personal injury accidents and fatal accidents. The Court further held that "dependants" should include common law spouses but not siblings. Because the Court was able to incrementally reform Canadian Maritime Law to address the issues raised it did not need to consider the constitutional applicability of the Family Law Act (step 4) except with reference to whether siblings could be plaintiffs and, on this issue, the Court held the Family Law Act should be read down so as not to apply to maritime negligence actions;
With respect to the application of the Ontario Trustee Act, the Supreme Court also held that Canadian Maritime Law should be reformed to allow a claim by an executor of a deceased. Accordingly, the Court did not decide the constitutional applicability of the Act;
With respect to the application of the Ontario Negligence Act, the Supreme Court noted that Canadian Maritime Law includes a general regime of apportionment of liability resulting in joint and several liability and contribution among tortfeasors. Thus, once again, having found a remedy in Canadian Maritime Law the Court did not address the constitutional question of whether the Negligence Act applied;
The final issue considered in the case was whether a fatal accident claim is subject to a one or two year limitation period. The issue arises because section 649 of the Canada Shipping Act provides that the limitation period for a fatal accident is one year whereas section 572(1), which deals with collisions, provides for a two year limitation period. The Court held that the plaintiff's claims prima facie came within section 572(1). The Court further held that the ambiguity created by the two sections must be resolved in favour of allowing the plaintiff to rely on the longer period.
Fatal Diving accident - Application of Canadian Maritime Law - Limitation Periods
Dreifelds v. Burton, 1998 CanLII 5013,
This was an appeal from a decision of the Ontario Court General Division. The case concerned a fatal scuba diving accident in Lake Ontario. A chartered vessel was used to take the divers to the dive site but the vessel was otherwise not involved in the accident. The deceased died from a gas embolism. The issue in the case was whether the accident was governed by Canadian maritime law and the one year limitation period in the Canada Shipping Act or by the two year period in the Ontario Family Law Act. Both at the trial level and on appeal it was held that the case was not governed by Canadian maritime law and that the two year period in the Family Law Act applied. The Court of Appeal noted that "not every tortious activity engaged in on Canada's waterways is subject to Canadian maritime law. Only if the activity sued about is sufficiently connected with navigation or shipping... will it fall to be resolved under Canadian maritime law."
It is noteworthy that the Court of Appeal said, in obiter dicta, that if the case was governed by the one year limitation period in the Canada Shipping Act, the Court would nevertheless have the inherent jurisdiction to extend the one year limitation period and would have done so in the absence of any prejudice to the Defendants. (Editor's Note: Compare this to the decision of the British Columbia Supreme Court in Vogel v Sawbridge et.al.(April 3, 1996) No. 24638 Kelowna Registry (B.C.S.C.) where that Court refused to recognize any such inherent jurisdiction.)
Smallwood v. Hill, 1997 CanLII 3522,
This was an appeal from an order under s. 572 (3) of the Canada Shipping Act extending the time in which to issue a Statement of Claim. The facts of the matter were that a boating accident occurred on August 4, 1990, but action was not commenced by the injured Plaintiff until January 26, 1995 i.e.. 30 months after the two year limitation period in s. 572(1) of the Canada Shipping Act had expired. The cause of the missed limitation period was solicitor's negligence which was then compounded by the solicitor's failure to do anything about the mistake when it was drawn to his attention. The Court of Appeal noted that this was a marginal case but nevertheless held that the motions judge had not erred in exercising his discretion in favour of an extension of time.
Sidmar N.V. v. Fednav International Ltd., 1996 CanLII 3989,
This matter concerned the interpretation of various agreements to extend suit time in a carriage of goods case. The cargo was carried by sea from Belgium to Detroit and Chicago under bills of lading which provided that suit should be brought in Canada. The carrier granted suit time extensions which were conditional on any subsequent actions being filed in Detroit. The Shipper, however, commenced the actions in the Federal Court of Canada pursuant to the jurisdiction clauses in the bills of lading. The Federal Court of Appeal held that the provision in the suit time extension agreement requiring suit to be filed in Detroit was invalid as contrary to the Hague-Visby Rules.
Fatal Accidents - Application of Provincial Legislation - Limitation Periods
Vogel v. Sawbridge et.al., No. 24638 No. 24639 Kelowna Registry (B.C.S.C.) ,
This was a summary trial to dismiss two actions as time barred. The actions arose out of the deaths of two persons aboard the yacht "Kingfisher" while it was moored at Nanaimo Harbour, British Columbia. It was alleged in the Statement of Claim that the deaths were caused by the faulty operation of a heater in the yacht which emitted high levels of carbon monoxide. The deaths occurred on December 22, 1992 but actions were not commenced until December 21, 1994. The Plaintiffs claimed relief under the Family Compensation Act of British Columbia. The British Columbia Supreme Court, following the earlier decision of the British Columbia Court of Appeal in Shulman v McCallum  7 W.W.R. 567, held that the actions were governed by Canadian Maritime Law and not the provincial Family Compensation Act. Accordingly, the Court held that the actions were governed by the fatal accident provisions of the Canada Shipping Act and that the applicable limitation period was therefore the one year period provided by s.649 of that Act. The Court refused to exercise any inherent jurisdiction to extend the limitation period stating that to do so would conflict with and abrogate the clear provisions of a statute which contained no curative provisions. EDITORS NOTE: This decision should be read and relied upon with care given the subsequent Supreme Court of Canada decision in Ordon v Grail.
Limitation Periods - CSA s.572 - Extension
Dupras v. Bezzina, 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.