Brooks Aviation Inc. v. Boeing SB-17G

This was an application by the Plaintiff for summary judgment in respect of a claim for salvage. The res was a B-17 aircraft that had crash landed on a lake in Labrador during the winter of 1947. The following year the aircraft sank during the spring thaw. The wreck was discovered by the Plaintiff in July 1998. The Plaintiff sought a declaration for the following relief: that the Federal Court had exclusive jurisdiction to determine the salvage claim; that the Plaintiff had a maritime lien; that the Plaintiff had possession of the res and that other parties are enjoined from interfering with the Plaintiff’s salvage rights; and, that the Plaintiff was entitled to a full and liberal salvage award. On the question of jurisdiction the Court noted that the Federal Court had maritime jurisdiction and that the law of salvage was a traditional area of maritime law. The Court specifically considered whether section 449 of the Canada Shipping Act limits the law of salvage to aircraft on or over the seas, tidal waters or Great Lakes. The Court held, however, that this section did not limit the traditional maritime law which had been extended to aircraft. (Note: In reaching this conclusion the Court refused to follow a contrary decision Smith v Smith, [1979] 4 WWR 665.) The Court then turned to the salvage claims. It noted that a claim of salvage requires: that the res be in peril; that the salvor be a volunteer; and that the salvage be successful. The Court found that the res was in peril and that the Plaintiff was a volunteer but, as the aircraft had not yet been recovered, the salvage was not yet successful. Accordingly, the Court held that the Plaintiff did not yet have a salvage claim. However, the Court did indicate it was prepared to protect the Plaintiff’s priority rights as finder of the res upon further application of the Plaintiff.