Docks, Wharves & Marinas

Wharfs – Safe Berth – Tug and Tow – Damage to Barge – Bailment Mercury Launch & T

Mercury Launch & Tug Ltd. v.  Texada Quarrying Ltd.,  2006 FC 464, 

The barge “MLT HWY” was damaged when she broke her moorings in extreme weather and grounded upon nearby rocks. The Plaintiff was the owner of the barge, which had been moored at the Defendant's facility for the loading of a cargo of crushed stone. The Plaintiff's tug, which had towed the barge to the facility, was moored to a buoy 0.75 miles from the facility awaiting the completion of the loading. The contract between the Plaintiff and the purchaser of the cargo, who was not a party, provided, inter alia, that the Plaintiff was to have the care, custody and control of the barge at all times. The Plaintiff alleged that the Defendant was a bailee of the barge and had the onus of proving the absence of fault on its part. The Plaintiff further alleged that the Defendant had failed to provide a safe berth, failed to provide sufficient mooring lines and failed to monitor the weather or advise it of developing bad weather. The Court noted that bailment involved a transfer of possession and required a high degree of physical control over the chattel and further noted that the Defendant had accepted the barge at its berth, had assumed responsibility for providing lines, had monitored and adjusted the lines, and maintained a barge loader at the berth to keep an eye on the barge. The Court further noted, however, that the Master of the tug knew he was responsible for deciding whether the barge should leave the berth because of bad weather and that the Plaintiff expected the Master to make this decision. The Court said that if the barge had been manned or if the tug had remained at the berth she would have had no difficulty in concluding there was not a bailment. The fact that the tug was 0.75 miles away and moored to a buoy did not alter this conclusion. In the Court's view “the keys to the barge were not delivered to” the Defendant and there was no bailment. The Court further said that even if there had been a bailment it would not have reversed the onus of proof as it was not a “pure bailment”. The Court next considered the various allegations regarding safe berth and negligence. The Court concluded that the berth was not unsafe merely because the barge had to be removed in bad weather as this was a well known fact. The Court rejected the other allegations of negligence, finding that the cause of the loss was the failure of the Master of the tug to monitor the deteriorating weather at the dock and his failure to remove the barge from the dock.

Marinas – Moorage – Wrongful Seizure – Damages - Loss of Use of Pleasure Craft – Punitive Damages

Mosquito Creek Marina v. Malecek,  2006 BCPC 139, 

In this matter the Defendant had moored her pleasure vessel at the Plaintiff's marina for a number of years. During that time moorage was paid, sometimes in cash, to the marina's bookkeeper. The bookkeeper had apparently not been recording all payments received and was fired. The new bookkeeper after reviewing the books determined the Defendant owed $15,000 in back moorage and, when the Defendant refused to pay, had her boat removed from the water as incentive for her to pay. The vessel was damaged when it was being removed from the water. The marina brought this action for the moorage allegedly owed and the Defendant counter-claimed for the damage to her vessel, loss of use during the wrongful seizure and for punitive damages. The claim for moorage was dismissed on the grounds that the marina was unable to establish any amount owing. The counter-claim for the damage to the vessel was allowed including an award for the diminution in the value of the vessel as a consequence of the damage. The counter-claim for loss of use during the wrongful seizure was also allowed in the amount of $1,000. The claim for punitive damages was, however, dismissed on the grounds that the marina believed it had some authority to remove the vessel.

Fishing and Recreational Harbours Act – Seizure and Sale of Vessel

Canada  v. Cote, 2005 CanLII 33542, 

In this matter a vessel had been moored in an area of the harbour controlled by the municipality and the owner had refused to move the vessel when requested to do so. The municipality then seized and detained the vessel and brought this application for the sale of the vessel under s.19 of the Fishing and Recreational Harbours Act. The Court allowed the application and ordered the vessel sold by public tender with the proceeds to be paid to cover the costs of sale and the costs of the seizure and maintenance of the vessel.

Marinas - Exclusion Clauses

Dryburgh  v. Oak Bay Marina (1992) Ltd., 2001 FCT 671, 

This was an action for damages caused to a pleasure craft when docks at the Defendant marina broke apart during a severe wind storm. The claim was against the marina and its President. The Plaintiff alleged that the marina was poorly designed and constructed and that the President oversaw the design and construction. The Defendants argued that they were protected by an exclusion clause in the moorage contract signed by the Plaintiff. The exclusion clause provided:

“All vessels, boathouse and ancillary equipment of the Owner stored or moored on the Company’s premises shall be solely at the Owner’s risk, and the Company shall not be responsible under any circumstances for any loss oher caused by negligence of the Company, its servants or agents or the acts of third parties, or otherwise.”

On the face of the contract were the names of three entities, one of which was the Defendant marina. There was a mark in the box next to the name of the Defendant Marina. The Plaintiff argued that the exclusion clause did not apply to relieve the Defendants of liability because the identity of “Company” was ambiguous, the clause did not extend to past defects in design or construction of the marina, and the clause did not apply to the Defendant President. On the first point the Prothonotary held that it was clear that the contract was between the Plaintiff and the Defendant marina. On the second point, the Prothonotary noted that the exclusion clause was very broadly worded. It referred to any loss or damage without limitation. The Prothonotary held that to interpret the contract in the manner suggested by the Plaintiff would be to distort the contract and produce an unrealistic result not in accord with commercial reality. On the final point, the Prothonotary held that the President was protected by the test set out by the Supreme Court of Canada in London Drugs Ltd. v Kuehne & Nagel Ltd., [1993] 1 W.W.R. 1, in that, by implication it was intended that the benefit of the exclusion clause would extend to the President and the President was acting in the course of his employment. In the result, the exclusion clause was enforced and the Plaintiff’s claim was dismissed. An appeal by the Plaintiff was dismissed for substantially the same reasons as given by the Prothonotary. The Appeal Judge did note that he found it difficult to accept that the term “Company” as used in the exclusion clause should be interpreted to include the Defendant’s President but, given the decision of the Supreme Court of Canada in London Drugs Ltd. v Kuehne & Nagel Ltd. he concluded that view was not open to him.

Vessel Storage - Bailment

Laursen  v. Bemister, 1999 CanLII 6059, 

This was an action in negligence, breach of contract and bailment against the Defendant in respect of damage to the Plaintiffs' vessels that were stored in the Defendant's barn when the roof collapsed under a snow load. The action was dismissed. The court held that the Defendant was aware of the potential risk from snow accumulation but took reasonable steps, including daily inspections, to care for the Plaintiffs' property. Thus, the Defendant was not negligent and had complied with the implied term of the contracts that he would use reasonable care in storing the Plaintiffs' property. On the issue of bailment, the court held that the relationship between the Plaintiffs and Defendant was one of licence and not bailment. In reaching this conclusion the court found that the Plaintiffs had not provided the Defendant with access to their chattels nor the means of moving same and that the barn was open to all. Therefore, the court held, the Defendant did not have exclusive possession of the Plaintiffs' chattels, a necessary element of bailment.

Marinas - Interpretation of Contracts

LeCleir Bros. Contracting Ltd v. Canoe Cove Marina Ltd., 1999 CanLII 6199, 

This case concerned the interpretation of a marina moorage contract. The Plaintiff had moored his boat and boathouse at the Defendant marina for many years. The moorage agreement gave the Defendant the right the cancel the agreement and demand the immediate removal of the Plaintiff's personal effects. It also provided for a right of renewal upon 30 days. The Defendant damaged the Plaintiff's boathouse. As a consequence, the relationship deteriorated and the Defendant sent a letter purporting to terminate the agreement at the end of its annual term. In response, the Plaintiff purported to exercise the right of renewal. The Defendant argued that the renewal was ineffective as the agreement had been terminated. The court held that the letter terminating the agreement was ineffective as the Defendant had elected to allow the agreement to continue until the end of its terms. The court further held, however, that the renewal clause in the agreement was too vague and uncertain to be enforceable as it did not stipulate the rent payable. The court further held that the agreement was subject to the implied terms that it would not be terminated without good reason and that, in the event of termination, reasonable notice would be given.

Wharfage

Robin Maritime Inc. v. Chemarketing Industries, 1998 CanLII 8624, 

This was an action for wharfage dues. The Plaintiff, an agent for the vessel owner, paid wharfage dues to the Port of Montreal and sought reimbursement from the Defendant, the charterer of the vessel and consignee of the cargo. The Plaintiff claimed that it either paid the charges as agent for the Defendant or that it was entitled to be reimbursed pursuant to the terms of the charterparty between the Defendant and vessel owners. The Court held that the Plaintiff acted only as agent for the vessel owner and had never been appointed as agent for the Defendant. Further, the Court held that the claim for wharfage was made out of time as the terms of the charterparty required that any claims against the charterers be presented within 90 days of discharge. An alternate claim based on unjust enrichment was also dismissed.

Marinas - Damage to Vessels - danger to Warn - Exemption clauses

Swinburne  v. Dike, 1995 CanLII 2374, 

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.