Ferguson v. Arctic Transportation Ltd., docket T-1941-93

Date: 19980508

Docket: T-1941-93

BETWEEN:

     JAMES L. FERGUSON

     Plaintiff

     - and -

     ARCTIC TRANSPORTATION LTD. AND THE OWNERS

     AND ALL OTHERS INTERESTED IN THE SHIPS

     "AMT TRANSPORTER", "ARCTIC NUTSUKPOK",

     "ARCTIC IMMERK KANOTIK", "ARCTIC KIBRAYOK",

     "ARCTIC KIGGIAK", "ARCTIC TUKTA",

     "ARCTIC TENDER", "ARCTIC TENDER II"

     AND "J. MATTSON"

     Defendants

     - and -

     PANAMA CANAL COMMISSION

     Third Party

     REASONS FOR JUDGMENT

REED, J.:

[1]      The plaintiff claims damages as a result of injuries he suffered on February 12, 1992 while working as a pilot aboard the Arctic Tarsiut. The vessel has since been sold and renamed the AMT Transporter. At the time of the accident, the vessel was transiting the Panama Canal. The plaintiff was a Panama Canal Commission ("PCC") pilot and employee.

[2]      The plaintiff suffered injuries when an insurance wire that was attached to the vessel became snagged on something under the water as the vessel was exiting Miraflores Locks. The wire, which given its diameter can also be described as a cable, became taut, whipped up and hit the plaintiff, throwing him backwards, unconscious to the deck of the barge.

[3]      The insurance wire is a steel emergency tow line that runs along the edge of the barge deck from the bow to the stern. There is one on each side of the barge. The wire is secured to the deck edge with d-shaped steel clips that have been welded in place. It is not necessary to describe the details of how the wire operates except to say that should a barge become separated from the tug that it is towing, the tug can retrieve the barge by picking up a buoy that floats off the stern of the barge. The buoy is attached to a trailing line that, in turn, is attached to the insurance wire tacked along the edge of the deck of the barge. The buoy, trailing line and insurance wire are pulled aboard the tug in order to finally access a chain towing bridle that is stowed on the deck of the barge and that is attached to the bow-end of the insurance wire. This bridle is then attached to the tug and a new towing mechanism is in place. This operation makes it necessary to be able to pull the insurance wire free from its clips along the deck edge of the barge and the wire must be located outboard of any obstructions on the barge.

[4]      The defendant Arctic Transportation Ltd. ("ATL") was the owner of the Arctic Tarsiut at the relevant time. It was also the owner of the other vessels listed as defendants in the style of cause. When the word "defendant" is used in these reasons it refers to ATL.

[5]      The plaintiff's claim is simple: the wire became snagged under water as the vessel was exiting Miraflores Locks; in order for this to have happened the wire must have been protruding outside or dangling over the deck edge of the vessel; in order to be in that position the wire could not have been properly secured on the deck; the securing of the wire was ATL's responsibility; ATL is therefore responsible for the accident and for the injuries to the plaintiff.

[6]      I have reached the conclusion that the plaintiff's action can not succeed. I do not think it necessary for the purpose of expressing my reasons to recount in detail all of the evidence. My reasons can be stated in fairly brief terms. They will be set out below under three headings: burden of proof, plaintiff's lack of credibility, and choice of law - limitation period.

Burden of Proof

[7]      First and foremost, the plaintiff has not met the burden of proof required of him. He has not proven on the balance of probabilities that there was a causal linkage between his injury and negligence on the part of the defendant.

[8]      Counsel for the plaintiff bases his argument on two alternative but similar grounds: (1) the owner of a vessel has a duty to ensure that the vessel is seaworthy (i.e., suitable for the purpose for which it will be used) and, if damage occurs as a result of failing to do so, this will be presumed to be the owner's fault; (2) when damage-causing events occur for which there is no explanation and circumstantial evidence points to actions of the defendant as being the cause, a presumption of negligence by the defendant arises.

[9]      I will deal first with the arguments as to the applicable law and then set out the relevant facts. No evidence was presented with respect to the law of Panama as it relates to the substance of the plaintiff's claim. Thus I must assume that insofar as the merits of the plaintiff's case is concerned Panamanian law is the same as the law of Canada. Counsel for the plaintiff argues, that Canadian law applies in any event, for another reason. This will be considered later.

[10]      The jurisprudence with respect to the presumption of seaworthiness to which the plaintiff referred, by and large, deals with disputes concerning contracts of carriage where seaworthiness plays the role of an implied warranty: Consolidated Grain and Barge Co. v. Marcona Conveyor, 716 F.2d 1077 (5th Cir. 1983); Ingram Industries Inc. v. Eagle Towing, Inc., 1986 AMC 414 (D. Ala.); The Lena, 49 F. Supp. 191 (Dist. Ct. N.Y. 1943) at 192; The Rondout, 53 F. Supp. 736 (Dist. Ct. N.Y. 1944); Parks, Law of Tug, Tow and Pilotage (1994); Derby Company v. A.L. Mechling Barge Lines Inc., 258 F. Supp. 206 (D. La. 1966). The only cases that do not fall into this category are Standard Marine Insurance Co. v. Whalen Pulp & Paper Mills (1922), 68 D.L.R. 181 (B.C.C.A.), which dealt with an obligation under a contract of marine insurance, and Stevens v. East-West Towing Company Inc., et al., 649 F.2d. 1104 (5th Cir. 1981), where an allegation of unseaworthiness was raised in a negligence action brought against a barge owner relating to injuries suffered by a deckhand on the tug towing the barge (the allegation was rejected on facts of the case). Most of the cases cited were decided by the Courts of the United States where the tort of unseaworthiness plays a role comparable to that covered by the tort of negligence in Canadian law, see Carver, Carriage by Sea, vol. I, (1982, 13th ed.) at paras. 146 - 158. Under U.S. law, the loss must be occasioned by the unseaworthiness (supra para. 143), and the burden lies on the party asserting unseaworthiness to prove that such existed (supra para. 158). It is sufficient for present purposes to refer to the general principles of negligence that form part of Canadian law, and without regard to the U.S. tort of seaworthiness.

[11]      In addition to the U.S. jurisprudence concerning unseaworthiness, counsel for the plaintiff cited the decision in Hammond v. Rogers - The Christina, [1850] 13 E.R. 841 (P.C.) at 845 as authority for the proposition that the master of a tug remains responsible even when a pilot is in control of the tug. He refers to section 41 of the Pilotage Act, R.S.C. 1985, c. P-14:

Nothing in this Act exempts the owner or master of any ship from liability for any damage or loss occasioned by the ship to any person or property on the ground that

( a) the ship was under the conduct of a licensed pilot; or

( b) the damage or loss was occasioned by the fault, neglect, want of skill or wilful and wrongful act of a licensed pilot.

[12]      These authorities are not relevant to present circumstances. The Hammond case dealt with a situation in which the master was found partly responsible for the damage; therefore the defendant could not take advantage of the compulsory pilotage defence that then existed. The Pilotage Act does not apply to pilots taking vessels through the Panama Canal even if Canadian law were the proper law of the tort. The Pilotage Act provisions refer to pilots licenced under the authority of that Act.

[13]      In [1969] S.C.R. 481">National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481, the Supreme Court stated that a defendant's obligation to disprove negligence should occur only where certain conditions are met. Those conditions are set out, at page 489, quoting from Mr. Justice Laidlaw in McCreary v. Therrien Construction Co. Ltd. and Therrien, [1952] 1 D.L.R. 153 (Ont. C.A.), citing Lord Justice Atkin in The "Ruapehu" (1925), 21 Ll.L. Rep. 310 at 315:

"...3The bailee knows all about it ; he must explain. He and his servants are the persons in charge; the bailor has no opportunity of knowing what happened. These considerations, coupled with the duty to take care, result in the obligation on the bailee to show that that duty has been discharged3." [underlining added]

Mr. Justice Ritchie went on to say the following at page 489:

Although Mr. Justice Laidlaw and Lord Atkin referred to this as "a principle" it might, in my view, be more accurately described as a rule of evidence and as it is one which has the practical effect of placing on the bailee the heavy onus of proving a negative (i.e., that he was not negligent) it should, in my opinion, only be invoked in cases where all the considerations stipulated by Lord Atkin can be found to be present. [underlining added]

[14]      In Farrell v. Snell, [1990] 2 S.C.R. 311, the Supreme Court dealt with the question of when the burden of proof shifts from the plaintiff to the defendant. Mr. Justice Sopinka, writing for the Court, stated at page 321, that in a civil case there are two broad principles:

1.      that the onus is on the party who asserts a proposition, usually the Plaintiff;

2.      that where the subject-matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it.

He continued at page 326, with the explanation that:

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

He concluded at page 327, that it was not appropriate to reverse the burden of proof "for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone".

[15]      In Waddle v. Wallsend Shipping Company, Ltd., [1952] 2 Ll.L.R. 105 (Q.B.), Mr. Justice Devlin dealt with a claim by a wife for the death of her husband when a vessel sank. With respect to the presumption of seaworthiness he said, at page 139:

... [In] Scrutton on Charter-parties, 15th ed., p. 98, [the following is found]:

Where a ship shortly after leaving port and without any apparent reasons sinks or leaks, the mere facts afford prima facie evidence of unseaworthiness, which must be rebutted. This has sometimes incorrectly been stated as a presumption of law, upon the authority of Lord Eldon. There is no legal presumption in the matter or any real shifting of the burden of proof. But the inference of fact arising under such circumstances is some discharge of the burden and in the absence of any evidence to explain the disaster otherwise may be a complete discharge.

I do not think this involves anything more that the sort of presumption that is ordinarily raised by the res ipsa loquitur rule. The prima facie presumption is of value only if no further evidence is elucidated. As soon as further evidence is adduced, a plaintiff has to make out his case on the whole of the evidence. Since in the end the plaintiff has not satisfied me that, on the balance of probability, the vessel was at the material time in a dangerous condition, she fails. Alternatively, the plaintiff fails if, at the end of the evidence, there are two possible explanations, each equally consistent with the evidence, and one involves no liability.

And lastly, the Supreme Court has recently dealt with the doctrine of res ipsa loquitur in Fontaine v. British Columbia (Official Administrator) (Court File 25381, March 19, 1998). The Court quotes from its prior decision in [1972] S.C.R. 165">Hellenius v. Lees, [1972] S.C.R. 165:

"The doctrine applies (i) when the thing that inflicted the damage was under the sole management and control of the defendant, whereof someone for whom he is responsible or whom he has a right to control; (ii) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, with a person for whom he is responsible, must have been negligent. There is, however, a further negative condition; (iii) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate, for the question of the defendant's negligence must be determined on that evidence."1 [underlining added]

The Court then goes on and suggests that the maxim ought to be considered expired and no longer used as a separate component in negligence actions:

... After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.2

[16]      I turn then to the facts of this case. ATL was engaged in activities relating to oil and gas exploration in the Canadian Arctic. In the mid to late 1980s that exploration began to decrease. ATL found it increasingly difficult to find work in the Arctic. It decided to take some of its equipment and vessels to the east coast, through the Panama Canal, in the hope that they could be sold at a better price than was available on the west coast, or, alternatively, that they could be employed in connection with Hibernia or the North Sea oil exploration. Also, the barge Arctic Tarsiut and the tug Arctic Nutsukpok were to be used in the short term to tow some oil rigs from the Mississippi River to Venezuela. Captain Friis was Marine Operations Manager for ATL and as such was responsible for making arrangements to move the equipment through the Panama Canal. A reputable ship's agent, C.B. Fenton & Co. S.A., was engaged by ATL to aid and advise it with respect to the transit of the vessels and equipment through the Canal.

[17]      ATL knew that special requirements existed for transiting the Panama Canal and before the Arctic Tarsiut left Esquimalt some work was done for this purpose (e.g., the installation of pipe railings around and above the cleat wells and the addition of chocks). Work was also done on the vessel to prepare it for towing the oil rigs, and it was brought up to American Bureau of Shipping Standards. The Salvage Association provided advice and recommendations with respect to the proposed voyage and prepared a survey report of the vessel.

[18]      The voyage from Esquimalt to Balboa was not particularly arduous - no particularly difficult weather was encountered - there was no occasion on which the insurance wire had to be used. Captain Friis flew to Balboa to be there when the vessels arrived.

[19]      As noted, ATL knew that PCC requirements would need to be met before the vessel could transit the Canal. ATL also knew this would require work being done in Panama. C.B. Fenton recommended to Mr. Friis that Subservices Inc., a Panamanian company that was engaged in the business of preparing vessels for transit of the Canal, be engaged to do the work. Mr. Friis agreed.

[20]      Before a vessel is allowed to go through the Canal it must meet the regulations and directives imposed by the PCC. One such requirement is that there be no protrusions over the deck edge of vessels. Barges such as the Arctic Tarsiut ("dead tows", i.e., having no power of their own) are always inspected and are not allowed to transit the Canal unless approved for transit by PCC inspectors. Shortly after it docked in Balboa, the Arctic Tarsiut was inspected, on February 10, 1992 by Captain Boyer, a PCC Port Captain. On that occasion Mr. Friis was not present. Captain Boyer dealt directly with a representative of Subservices Inc. and told him what was required.

[21]      Among the changes that were to be made before the Arctic Tarsiut would be approved for transit were: the erection of plywood pilot shelters (to protect the pilots from the weather); the provision of port-a-pottys; the addition of a double bitts at the stern; the removal of some pipe railing in front of the cleat wells; removal of a tripping hazard arising from the existence of timbers (dunnage) on the deck; the erection of temporary stanchions connected by 12 thread rope safety lines along the open edges of the barge including the stern; the securing of the insurance wire.³ Options were given by Captain Boyer as to how the insurance wire might be secured, and the method chosen - securing the line outboard of the stanchions by fastening it with either temporary clips or ties to the stanchions or other fixtures on the barge - was approved by Captain Boyer.

[22]      The vessel was inspected a second time by Captain Boyer around 1700 hours on February 11. The required work had already been started by Subservices Inc. On this occasion Mr. Friis was present as was a representative of Subservices Inc. and a Captain Pusztai. Captain Pusztai was training to be a PCC inspector.

[23]      There is conflict in the evidence as to the state of the insurance wires at the time of the 1700 hours February 11 inspection. Captain Pusztai gave evidence that he clearly remembered that the wires were all properly secured. He did qualify this evidence slightly saying that he may have returned by himself after the end of his shift, without Captain Boyer, and at that time seen the wires secured. Captain Boyer's evidence was that the wires were not secured at that time and he made a notation to that effect in the Port Captain's Log.⁴ Captain Friis' evidence was that Subservices Inc. had decided that the securing of the insurance line was to be done last, after the temporary stanchions and safety lines were in place, and this did not occur until later. I accept the evidence of Captains Boyer and Friis over that of Captain Pusztai.

[24]      Captain Friis was on and off the vessel several times on the evening of February 11 to see what progress was being made. Another PCC inspector, Captain Tassell, attended on the vessel at 2100 hours. It was dark by this time. Being in the tropics, darkness comes early and suddenly. Mr. Friis' evidence was that where the lighting was poor, Subservices Inc. was working by flashlight. As of 2100 hours Subservices still had not finished. Captain Tassell made a note of this in the Port Captain's Log and wrote "... Sub Services [sic] is to call when they complete the Dead tow".

[25]      Subservices finished their work around 0030 hours on February 12. Mr. Friis went back to his hotel once he became confident that Subservices Inc. would finish the work that night. Captain Tassell inspected the vessel at 0120 hours on February 12 and approved it for transit through the Canal.

[26]      Not only are vessels not allowed through the Canal until they are inspected and approved for transit by PCC inspectors, they are taken through the Canal by PCC employees.

[27]      At the time of the accident the Arctic Tarsiut was manned by three pilots, twelve deckhands and a bosun, who were all PCC employees. No employee of the defendant was on the barge. It was being pulled by the Arctic Nutsukpok, which was also under the control of PCC employees; these were a pilot, a bosun and four deckhands. Captain Young, the master of the Arctic Nutsukpok, was on board to operate the engine of the tug under the direction of the PCC pilot. A PCC assist tug, the UNIDAD, was fixed cut style at the stern of the barge. The pilots on the barge controlled this three vessel flotilla.

[28]      Each of the three pilots on the barge was control pilot for one third of the voyage between the port of Balboa and Gamboa, a location half way through the Canal. The other two pilots on the barge acted as "assist pilots" when they were not control pilot. The accident occurred just as Captain Boullosa was handing over responsibility as control pilot to Captain Ferguson. Captain Ferguson prior to that time had been on the port side of the vessel. He moved to the starboard side to take up his duties as control pilot. It was the starboard insurance wire that became caught and was the cause of his injury. The third pilot, Captain Cook, was located near the stern of the vessel.

[29]      The moving of vessels through the Canal locks is largely done by locomotives that run along tracks at the edge of the Canal. The Canal has a concrete centre wall thus creating two lanes (an east and a west lane). The flotilla was transiting northward via the west lane. The tug Arctic Nutsukpok was attached to two locomotives, one on the centre wall and one on the side wall of the west lane. The Arctic Tarsiut was attached to four locomotives: two towards the bow of the vessel, one on the centre wall and one on the side wall; two towards the stern of the vessel, one on the centre wall and one on the side wall. Each locomotive is attached to the vessel by one or two cables (lines). On the starboard side of the Arctic Tarsiut there was one locomotive attached to the bow by two lines and one towards the stern attached by two lines. The locomotives are attached to the respective vessels before they enter the locks and are detached on exit. The attachment and detachment are done by the PCC deckhands on the vessel and PCC lock workers on the locks. The attachment and detachment, the speed at which the locomotives move through the locks, and the length of the lines connecting the locomotives to the vessel (which in turn controls the angle of the vessel vis à vis the Canal wall) are all determined by PCC employees. The PCC lock master walks with the tow through the locks.

[30]      The Miraflores Lock has two chambers. The barge was very wide. It has a beam of 1053. The lock lane has a width of 1103with a 1083 restriction in places. There was a certain amount of buffeting of the vessel as the water entered each chamber so that the barge was jolted against the sides of the Canal. The vessel was very light; it was not loaded except for equipment stowed on its deck. Captain Young, now deceased, gave evidence at the inquiry, held two days after the accident, that the vessels were being taken through "too fast" and that he had said to the pilot on the tug at the time "Gee, you're scaring me to death". Going through the Panama Canal was not an everyday experience for him - he had worked on the locks on the St-Lawrence Seaway. The PCC pilots who gave evidence (Ferguson and Boullosa) said it was a normal passage. Captain Cook was not called. I do not accept Captain Boullosa's evidence as reliable. It was clear that he really did not remember the events. He was trying to be helpful by giving answers but I had no confidence in their accuracy. Comments on Captain Ferguson's credibility will be made later.

[31]      In my view, these circumstances do not raise a presumption that negligence by the owner of the vessel or by someone for whom it was responsible caused the accident.

[32]      There was no evidence that there were latent defects in the fastening of the insurance wire or that there was any condition relating thereto prior to the vessel's arrival in Balboa that might have caused the accident. The vessel was prepared for transit in Balboa by a reputable contractor. The work was undertaken with PCC inspectors identifying the work to be done, approving the method planned to accomplish that work, and inspecting the work after it was done.

[33]      On the morning of February 12, 1992, when the barge left Balboa the starboard insurance line was not hanging outboard or over the deck edge. Captain Young said the insurance line was secured inboard. Those boarding the Arctic Tarsiut did not see any difficulties with the starboard insurance line, even though they boarded from that side. The evidence was that had any of the PCC employees seen a safety hazard either at the beginning of the voyage or later they would have moved to have it corrected.

[34]      From the time the Arctic Tarsiut left the dock in Balboa until the accident, the Arctic Tarsiut was under the exclusive control of the PCC. It was taken from the dock at Balboa to the entrance of Miraflores Lock. There it was in contact, on its starboard side, with the centre wall and ran down that centre wall some 900 feet. It entered the first chamber after taking on locomotive lines, and was raised in that chamber. It proceeded into the next chamber, and was raised in that chamber. All of those activities - the running down the centre wall, the taking on of locomotive lines with deckhands working in the vicinity of the insurance lines, the movement of locomotive lines, the movement up in the two chambers with the contact between the barge and the chamber walls, and the movement out of the chambers - all provided opportunities for the dislodging of the insurance line.

[35]      This is simply not a situation in which it can be said that a presumption arises that the accident was caused by the negligence of the defendant or someone for whom it was responsible. Counsel invites me to conclude that, because the securing of the port side wire after the accident appeared to be inadequate, I should conclude that the securing of the starboard wire before the accident was in that state. That is not a conclusion I am willing to make.

Plaintiff's Lack of Credibility

[36]      The second difficulty with the plaintiff's case is that there are serious problems of credibility with respect to many areas of his evidence. There are serious problems respecting proof of injury. There is no doubt the plaintiff was injured - he was knocked unconscious; he was attended by paramedics and taken to the hospital in an ambulance. He left the hospital the same day to recover at home under the care of his wife who was a nurse. A very serious credibility problem arises, however, with respect to the extent of his injury.

[37]      On March 9, 1994, the plaintiff underwent a medical examination by Dr. Villarin at the McDonald Army Community Hospital at Fort Eustis,Virginia, to enable him to renew his Master's licence. On the medical form, in the box labelled "stiff joints, old fractures, deformities and other major defects" one finds the word "none". Both Dr. Villarin and the plaintiff signed this form. Since he was found to be medically fit to do the job, he was able to renew his licence. At that time he was in receipt of worker's compensation payments. On April 17, 1993, he had been given a worker's compensation award for "permanent partial loss of use of right shoulder" and " permanent partial loss for use of left knee". He received a lump sum award of $64,193.27 for the period March 30, 1992 to April 3, 1993 and $4,995.52 per month from then until October 3, 1994.

[38]      On November 11, 1992, the plaintiff and a Dr. Cheville (Gorgas Army Hospital) signed a medical form identical to that described above. In the relevant boxes on the form the following is found:

. . . .

STIFF JOINTS, OLD FRACTURES, DEFORMITIES & OTHER MAJOR DEFECTS: 1. Episodic locking of L. knee - probable cartilage tear. 2. Rt. tardy ulnar nerve palsy from Dec. 1991 work injury. 3. Rt. shoulder traumatic impingement syndrome.

REMARKS & MEDICATION (DOSAGE, FREQUENCY, HISTORY WHILE ON MEDICATION, SIDE EFFECTS ETC.)

at the present time the combination of conditions above related to a December 1991 work injury make ladder climbing unsafe. They should all improve with time. [underlining added]

[39]      When the plaintiff was asked in cross-examination about the reference to a December 1991 work related injury, he first stated that he had never told Dr. Cheville that he had had an accident in 1991; the implication being that Dr. Cheville had made a mistake. His evidence was also that he did not remember the 1991 injury. His medical records show an injury in December 1991, as well as one in 1986 and another in 1988.

[40]      Much of the medical opinion evidence relies upon the plaintiff's own reporting of his medical condition (the pain he was allegedly experiencing, his alleged need to use a cane, and his difficulty in relying on his left knee and using his right hand). The reliability of this evidence then depends on the plaintiff's credibility. There are numerous occasions when the medical evidence points to a lack of reliability insofar as the plaintiff's evidence is concerned.

[41]      When the plaintiff was examined in Vancouver by Dr. Werry for the purposes of this trial, not all his medical records were made available in a timely fashion. While Dr. Werry said he read all the records, he did not appear to have taken into account, in forming his opinion, the record of the pre-February 1992 work related injuries suffered by the plaintiff (injuries of 1986, 1988 and 1991). I prefer to think that Dr. Werry was careless rather than untruthful and that his failure to adequately review the records of previous injuries arose because the records were not provided to him in a timely fashion. Dr. Hawkins' evidence is more persuasive. His conclusion was that the plaintiff had not provided sufficient objective evidence of any disability that he might have; his right hand problem was not sufficiently disabling to require him to be off work; and, if there was a serious knee problem, which Dr. Hawkins doubted, it might readily be corrected by arthroscopic surgery. This is surgery of a relatively non-invasive kind that several doctors had recommended but which the plaintiff refused to undergo. In his evidence at trial one of the reasons he gave for his refusal was that there was no pain in his knee; it was in his leg.

[42]      The plaintiff's evidence in other areas also lacks credibility. He asserts that he suffered a significant loss of income as a result of the accident. At the time of the accident he had one year to go before he would reach the compulsory retirement age for a pilot on the Panama Canal (age 62). After the accident he continued to work, not as a pilot but in the Port Captain's office. His salary remained at approximately the same level it had been when he worked as a pilot. He claims to have lost the opportunity to earn overtime. The date for compulsory retirement for him as a pilot was February 19, 1993. He retired voluntarily from the PCC on January 2, 1993, and moved back to his home in the United States. There were jobs available at the time with the PCC for which he was qualified (e.g., as a training instructor) but he did not apply for them. His job search in the area of his home in Newport News, Virginia, was very limited. He has not had a resume since 1992. He was, of course, in receipt of his full pension and any employment income he received would have been additional income for him.

[43]      The plaintiff bases his claim for loss of earnings on the assertion that had the accident not occurred he would have continued working as a pilot, as a "retired annuitant" for the PCC. Alternatively, he says he would have worked as a Master on an ocean going commercial vessel and earned wages similar to those he earned as a Panama Canal pilot. The first is highly speculative. There is no reliable evidence concerning the availability of such jobs or that he would have been likely to have obtained one. With respect to his assertion that he planned to go to sea as a master of a commercial vessel, this is simply not believable: he had been working as a PCC pilot since 1974; he had no recent experience as master of a commercial vessel; he had had no training in that line of work in recent years.

[44]      There are many areas of Captain Ferguson's evidence that are not credible, for example, his statement that the Arctic Tarsiut did not "touch" the walls of the lock chambers when being within them. Also, in other documentation before the Court, he had no compunction about making statements that can be characterized as designed to mislead the Court. In a motion filed with the Court on June 24, 1996, appealing the prothonotary's decision that he be required to pay into Court $50,000 as security for costs, he described himself as being "so impecunious" that the order requiring him to pay this amount could not be complied with. In an affidavit signed by him on July 31, 1996, he stated that his current savings amount to U.S. $13,000 and that except for assets owned jointly with his wife his sole asset was a vehicle worth approximately U.S. $20,000. His income tax returns show employment income in 1992 and the preceding years of over U.S. $100,000 annually. This did decrease in the years 1993 - 1996. In 1996, his total taxable income was $157,613.48 of which $74,476.51 was capital gains and $10,406.80 was interest income. His evidence is not reliable.

Choice of Law - Limitation Period

[45]      I turn last to the defendant's argument that the plaintiff's case is in any event statute barred because Panamanian law applies to the cause of action, and under that law the limitation period is one year.

[46]      The applicable choice of law in a tort claim that arises in another jurisdiction is described by Professor Tetley in International Conflict of Laws (1994) at 427 - 438. I do not think it necessary to set out a description here. It is only necessary to note that whether one uses the place of the tort, the place of the damage, or the place having the most substantial connection with the claim (the proper law of the tort), all lead to the conclusion that Panamanian law is the applicable law in this case.

[47]      Counsel for the plaintiff argues that section 275 of the Canada Shipping Act, R.S.C. 1985, c. S-9, applies and pursuant to that section Canadian law must apply. Section 275 provides:

Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws, if there is in this Part any provision on the subject that is hereby expressly made to extend to that ship, the case shall be governed by that provision, but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered.

Section 275 is found in Part III of the Canada Shipping Act. That part is entitled "Seamen". It deals with matters such as the hiring and firing of seamen, the payment of their wages, apprenticeship indentures, and working conditions on Canadian ships. Section 275 applies to matters that arise in that context. It does not apply to an action by a foreign pilot with respect to a tort claim that arose out of events occurring in a foreign jurisdiction.

[48]      The plaintiff argues that the law of Panama, in any event, would require that Canadian law be applied, being the law of the port of registry of the vessel on which the tort occurred. Counsel argues that despite the general rejection of renvoi as applicable to conflict of law issues, especially tort claims, this Court should accept the renvoi and apply Canadian law.

[49]      The argument that the law of Panama would require the application of Canadian law is based on Article 557 of the Maritime Code of the Republic of Panama:

TITLE VI: PRINCIPLES OF PRIVATE INTERNATIONAL LAW.

Article 557: Except as otherwise provided by international treaties ratified by the Republic of Panama, the rights and obligations of the parties to an action filed in the Panamanian Maritime Courts shall be determined in accordance with the following special principles of private international law and, in the cases not expressly covered by this Chapter, in accordance with that established by the civil law. [underlining added]

. . . .

6.-With respect to the tort liability of shipowners, masters, officers, crew members and any other person who renders services aboard a vessel for damages caused or which may be caused to property, to any of said persons or to any other persons that are aboard the vessel, the laws of the vessel's country of registry.

7.-With respect to the claims of stevedores, dock workers, other port workers, third persons rendering services to the vessel related to maritime commerce or others who are found temporarily aboard while the same is in port, unless there is an agreement to the contrary in cases of contractual liability, the laws of the country where the event or events that gave rise to the complaint occurred even though these occurred aboard the vessel.

[50]      The plaintiff relies upon the interpretation of those provisions given by Mr. Jaen-Guardia, an expert in Panamanian law. It is argued that the Panamanian Maritime Court would apply Canadian law to the plaintiff's claim in accordance with Article 557(6). I find the evidence of Mr. Pitty, another expert on Panamanian law, more persuasive than that of Mr. Jaen-Guardia. Mr. Pitty's opinion was that under Panamanian law no conflict of laws issue would arise: the law of Panama would apply pursuant to the general principle of the territorial application of law. This is reinforced, in his view, by the opening words of Article 557 underlined above. Also, it was his opinion that when article 557(6) is read in light of the commentary of the drafters thereof, it is clear that it was not intended to cover a situation such as the present. In his view Article 557(6) applies when the vessel in question is outside the territory of the Republic of Panama. He concluded that, even if a Panamanian Court were to find that a conflict of laws issue did exist, it would apply Article 557(7) not 557(6) to this case. In his view a "third party" referred to in that Article includes PCC employees and they are subject to the law of the place where the accident happens.

[51]      Mr. Jaen-Guardia interprets article 557(7) as applying only where the vessel is "in port" and this he says means "at the dock". I prefer the interpretation of Mr. Pitty. Mr. Jaen-Guardia's interpretation would mean that persons such as the plaintiff would be subject to the laws of different countries, depending upon the flag of the vessel they were working on from one day to the next. This is not a sensible result. Also, Mr. Jaen-Guardia's interpretation would mean that a different law would apply depending upon whether services were provided to a vessel tied at the dock or to the vessel when it was at anchor in the harbour. This also is not a sensible result. Both Mr. Pitty and Mr. Jean-Guardia gave evidence that one of the principles in accordance with which the Code is interpreted is that its provisions should not be presumed to lead to absurd results.

[52]      In my view, the law of Panama applies to this cause of action. It is clear that limitation periods are part of the substantive law when the law of another jurisdiction is applied, see Tolofsen v. Jensen, [1994] 3 S.C.R. 1002. The period of limitation in Panama is one year. The relevant provisions of the Civil Code of Panama presented to the Court by Mr. Jaen-Guardia are Articles 1706 and 1711:

Article 1706: The civil action to claim for indemnification for defamation or tortious or actionable defamation or in order to demand civil liability due to non-contractual obligation and which emanate from an act of fault or negligence which this Code refers to in Article 1644, the prescription time is the period of one year, which starts to run from the moment in which the offended or the injured knows of his or her condition.

. . . .

Article 1711: The prescription of the actions shall be interrupted through the filing of a legal action before the Court, through the extrajudicial or private claim from the creditor and or any other act of acknowledgement of the credit from the obligor or debtor.

[53]      The translation of Article 1706 is not an accurate translation. The words "of his or her condition" are not found in the original Spanish version. Also, I accept Mr. Pitty's opinion that the limitation period runs from the time that the plaintiff knew of his injury. In this case that was February 12, 1992. This action was not brought within a year of the date. Mr. Jaen-Guardia gave the opinion that the limitation provision is prevented from running (is "interrupted") because an action was brought in a Florida Court in March of 1993, and the defendant was made aware as early as April 1992, as a result of correspondence to it, that the plaintiff was alleging that the defendant was responsible for his injuries. I am not prepared to accept that the writing of a letter by a prospective plaintiff to a prospective defendant interrupts the running of the one year prescription applicable to a tort claim. The relevant text of the Code provision relates to "creditors" and acknowledgment of "credit" from the obligor or debtor.

Conclusion

[54]      The plaintiff's claim fails because the law applicable to the cause of action is Panamanian law, under which the limitation period is one year. This claim was not started within that period.

[55]      If the limitation provision was interrupted under Panamanian law, then, there being no proof of the applicable Panamanian tort law, I would be required to assume that it is the same as Canadian law and apply Canadian law. Also, if I am wrong in my conclusions with respect to the content of Panamanian law and if the renvoi should have been accepted, then, Canadian law would apply. In such circumstances, the plaintiff still could not succeed. The plaintiff has not proven on the balance of probabilities that the accident arose as a result of the negligence, either in whole or in part, of the defendant.

[56]      If I am wrong in these conclusions, the amount of the award to which the plaintiff would be entitled, in any event, would be very small. His failure to prove permanent injuries; his failure to mitigate his loss by seriously seeking other employment; the fact that there was virtually no loss of income in the year after his accident, after which he voluntarily retired just before he reached compulsory retirement age as a pilot, means that at most an award for loss of income would be no more than in the neighbourhood of U.S. $20,000. As far as pain and suffering is concerned, if his claim had merit, the award would be in the neighbourhood of Cdn $35,000.

[57]      Since the plaintiff's claim against the defendant has not been proven, there is no third party claim in issue.

[58]      Judgment will issue in accordance with these reasons.

    

                                 Judge

OTTAWA, ONTARIO

May 8, 1998.

__________________

     ¹      Para. 18.

     ²      Para. 27.

     ³      The relevant Port Captain's Log entry reads:
             The barge will require safety lines/rails, a double bitt installed on the stern (the existing chocks are too close to the existing bitts to serve both the tug lines and motor wires), two toilets, removal of timers on deck (12 x 12 timbers obstruct clear passage for and aft), re-securing of wire pennants on deck (they are tripping hazards liable to be stripped off in the locks), removal of steels pipes blocking the large hull cleats, installation of pilot boarding stantions port and starboard and installation of two pilot shelters on the main deck and one on the foc'sle.

     ⁴          Inspected the barges "Arctic Tarsiut" (DK18C) and "Arctic Immerk Kanotick" (DK16A). The "Arctic Tarsiut" is not ready at this time. The bitt has been installed on the stern but they did not remove the timber obstructing same. Safety lines have been installed, but the wire on deck has not yet been secured. None of the pilot shelters have been secured to the deck, and the foreman informs me that in lieu of removing the timbers obstructing passage, they will make cat walks around the cleat wells. ...