Cox v. Brown

This was a summary trial for a declaration that the Defendant was entitled to limit her liability under the Canada Shipping Act. The facts were that a small motor boat operated by the Defendant struck a swimmer in Okanagan Lake. At the time, the Defendant was operating the boat without the permission of the owner, the Defendant’s father. (An action against the owner was dismissed by consent as a result of a summary trial application brought by the owner.) The Plaintiff argued that as the Defendant did not have the permission of the owner to operate the vessel she was not "acting in the capacity of master" and was therefore unable to limit. The Court, however, held that it was bound by the decision of the British Columbia Court of Appeal in Whitbread v Walley, (1988) 26 B.C.L.R. (2d) 120, a case in which the operator was entitled to limit notwithstanding that the vessel was being operated without the permission of the owner. (This case was, of course, appealed to the Supreme Court of Canada [1989] 2 S.C.R. 1273, on the issue of whether operators of pleasure craft generally could limit liability.) A second issue in this case was the appropriate date for converting gold francs to dollars where there had been no payment into Court. The Court held that the appropriate date was the date of judgment.