Date: 20040213
Docket: T-341-03
Citation: 2004 FC 227
Ottawa, Ontario, this 13th day of February, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
WILLIAM ISEN
Plaintiff
- and -
STEPHEN SIMMS and MARLA SIMMS
Defendants
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. William Isen, the Plaintiff in this action, has asked this Court to determine a question of law by way of Special Case motion pursuant to Rule 220(1)(c) of the Federal Court Rules, 1998. That rule allows this Court to determine questions before, or in lieu of, the trial. By Order dated June 2, 2003, Prothonotary Tabib ordered that the Court determine the answer to the following question:
Do the facts and circumstances that gave rise to an incident which caused personal injury to Stephen Simms on August 1, 1999 constitute "claims arising on any distinct occasion involving a ship with a tonnage of less than 300 tons", pursuant to section 577(1) of the Canada Shipping Act?
[2] Mr. Isen owned a 17 foot boat - a 1998 Mercruiser Calais Bowrider. Mr. Isen had an engine cover for his boat, which he used to secure with a 3 foot bungee cord when the boat was being transported on a boat trailer.
[3] On August 1, 1999, after a day of recreational activities on Lake Muskoka, the boat was placed on a boat ramp. Mr. Isen then backed a 1997 Pontiac Transport motor vehicle, with the attached boat trailer, into the waters of Lake Muskoka, where the boat was placed on the trailer. The vehicle and trailer, with the boat on it, were moved by Mr. Isen to level ground.
[4] Mr. Simms, a Defendant and friend of the Plaintiff, was standing near the boat. Mr. Isen fastened one of the hooks of the bungee cord to a cleat on the starboard stern gunwale of the boat, stretched the cord across the width of the boat, and hooked the other end of it to the cleat on the port stern gunwale. While Mr. Isen was checking if the bungee cord was secure on the port cleat, the bungee cord slipped from his fingers and flew across the width of the boat. The metal hook struck Mr. Simms in his right eye.
[5] Mr. and Mrs. Simms, the Defendants in this action, have commenced an action in the Ontario Superior Court of Justice claiming damages against Mr. Isen as a result of the injuries Mr. Simms sustained to his eye. Mr. and Mrs. Simms claim damages in the amounts of $2,000,000.00 and $200,000.00 respectively, plus pre-judgement interest. Mr. Isen denies liability for the injuries sustained by Mr. Simms.
[6] Mr. Isen commenced this action pursuant to s. 581 of the Canada Shipping Act, R.S.C., 1985, c. S-9, as amended by an Act to Amend the Canada Shipping Act (Maritime Liability), S.C. 1998, c.-6 Canadian Shipping Act ("Canada Shipping Act"). The essence of his claim is that he seeks to limit his liability, if any, to $1,000,000.00.
[7] In an agreed statement of facts, the parties agree that Mr. Isen is a "shipowner" and that his boat is a "ship" as defined in s. 576(3) of the Canada Shipping Act. Further, the parties agree that the dispositive issue is whether the Simms' claims arise from an occasion "involving a ship".
[8] For the reasons that follow, I conclude that the question should be answered in the affirmative. That is, the claims arise from an "occasion involving a ship with a tonnage of less than 300 tons".
Analysis
Jurisdiction
[9] The parties agree that the Federal Courts Act grants the Federal Court concurrent original jurisdiction where a remedy is sought under Canadian maritime law, or any other law of Canada relating to navigation and shipping matters (Federal Courts Act, s. 22). This jurisdiction is broadly defined in s. 22 of the Federal Courts Act to include "any claim ... caused by a ship either in collision or otherwise" and "any claim ... in connection with the operation of a ship ..." (Federal Courts Act, s. 22(2)(d) and (g)). This jurisdiction extends to all claims, whether arising on the high seas, in Canadian waters or elsewhere (Federal Courts Act, s. 22(3)(c)).
[10] The application of Canadian maritime law extends to non-tidal waters and even torts occurring on land, if sufficiently connected to navigation and shipping (ITO - International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Whitbread v. Walley, [1990] 3 S.C.R. 1273 at paras. 23-24). The Supreme Court has also held that limitation of liability provisions are part of Canadian maritime law and include activity on Canada's inland waterways (Whitbread, supra). It further held that the tortious liability of owners and operators of pleasure vessels should be regarded as a matter of maritime law that comes within Parliament's jurisdiction in respect of navigation and shipping (Whitbread, supra).
[11] The Simms submit that the incident that gives rise to this motion concerned the manipulation of a bungee cord to transport a cargo by trailer on land. It had nothing to do with navigation and shipping. I disagree. The hooks of the bungee cord were applied to the ship. The cord was used to secure an engine cover to the boat. The incident arose immediately following use of the boat on a lake and just before it would be transported to another lake. To my mind, this is an incident that occurred on land but is sufficiently connected to navigation and shipping to bring it within the admiralty jurisdiction of this Court (ITO International Terminal Operators Ltd., supra).
[12] The Federal Court has held that the negligent stuffing of a container, while on land, for loading and carriage by sea is sufficiently connected with shipping so as to invoke admiralty jurisdiction (Peter Cremer Befrechtungskontor GMBH v. Amalgamet Canada Ltd., [1989] F.C.J. No. 136 (T.D.) (QL), aff'd [1990] F.C.J. No. 850 (F.C.A.) (QL)). If handling cargo on land for carriage by sea is sufficiently connected with shipping and navigation, I fail to see how handling of the ship itself is not. I conclude that this Court has jurisdiction to hear the motion before it. I will now turn to the issue of the statutory provisions upon which Mr. Isen seeks to rely.
Limitation of Liability Provisions
[13] The limitation of liability provisions were previously found in sections 575 and 576 of the Canada Shipping Act, which were repealed and replaced with sections 577 and 581 (Bayside Towing Ltd. v. Canadian Pacific Railway Co., [2001] 2 F.C. 258 (T.D.)). The current limitation of liability regime is identical to sections 577 and 581 of the Canada Shipping Act, although they now form part of the Marine Liability Act, S.C. 2001, c. 6 (s. 28 and s. 33). At the time the incident between the parties occurred, August 1, 1999, the applicable legislation was the Act to Amend the Canada Shipping Act (Maritime Liability). This legislation was in force between May 12, 1998 and May 10, 2001 when the Marine Liability Act took effect.
[14] Section 577 of the Canada Shipping Act is a substantive provision and provides that the maximum liability of a shipowner for claims arising on any distinct occasion "involving a ship" with tonnage of less than 300 tons, is in respect of claims for loss of life or personal injury, $1,000,000.00.
[15] Section 581 of the Canada Shipping Act is a procedural provision and provides for the powers of the Admiralty Court (the Federal Court) and the right of a shipowner to invoke limitation of liability. The Canada Shipping Act provides that, where a claim is made against a person in respect of liability that is limited, that person may make an application to the Admiralty Court and that Court may take any steps it considers appropriate to give effect to the right to limit. This specifically includes enjoining any person from commencing or continuing proceedings before any Court in relation to the claim. In these proceedings, Mr. Isen is not asking that I enjoin the Defendants from continuing their proceedings in the Ontario Superior Court. Rather, he seeks certain injunctive relief in relation to the limit of liability, if any, to Mr. Simms.
Was the incident one "involving a ship"?
[16] In general, the Court's interpretation of any legislative provision should promote the legislative purpose of that provision and produce a reasonable and just outcome. Further, absurd consequences should be avoided, as it is assumed that the legislature does not intend these (Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at 41; Ruth Sullivan, "Dreidger on the Construction of Statutes, 3rd Edition" (Toronto: Butterworths Canada Limited, 1994) Chapter 5, pages 131 to 135).
[17] The legislative purpose of this provision is to protect shipowners from unlimited pecuniary liability arising from acts of navigation. For reasons of public policy, Parliament wanted to ensure that shipowners are able to readily insure their ships at a reasonable premium (Bayside Towing, supra). Section 12 of the Interpretation Act states that legislation should be interpreted in a manner that best ensures the attainment of its objects. Nevertheless, this does not mean that the provisions of a statutory provision should be expanded beyond what reasonably attains its objectives.
[18] The Defendants described the incident as involving a bungee cord, not a ship. To my mind, this is an artificial distinction. In their view, the ship was a fortuitous background feature and not a central actor or cause of the events that unfolded. The Defendants seem to be arguing that, if the ship did not directly cause Mr. Simms' injury, it was not involved in the incident. I think that this interpretation of the word "involve" is overly narrow, and not consistent with either the case law cited by the parties or the dictionary definitions provided by them.
[19] In R. v. Hannam, [1986] A.J. No. 1397 (QL), the Alberta Court of Queen's Bench had to consider whether a vehicle was "involved in an accident" in the course of deciding whether the accused failed to stop at the scene of an accident. The accused raced with an another vehicle on a city street. The two vehicles made no contact. The racer in the other vehicle lost control and collided with a traffic pole. The accused did not stop or slow down. In concluding that the vehicle of the accused was involved in the accident, Justice O'Leary held:
In my view, the word "involved" does not import any element of cause or contribution to a particular accident. A person may be involved in an accident without causing it or contributing to its cause. I do not wish to attempt to define the scope of the word "involved" as used in this particular section.
[20] Without attempting to define the word, "involve", it appears to have a meaning that is broader than "cause" (Hannam, supra). It also means "implying" or "relating to" (T1 T2 Limited Partnership v.Canada (1994), 23 O.R. (3d) 66 as well as "entangled" (Health Sciences Assn. of British Columbia v. British Columbia (Industrial Relations Council) (1992), 91 D.L.R. (4th) 582 at 597.
[21] Applying this broader concept of the word, the incident, on first impression, implied that the ship was present, that the incident related to the ship and that the ship was entangled in the events that occurred. The presence of the ship in this case was not merely fortuitous, nor was it a simple background feature. Rather, it was a central actor in the events that unfolded. Put simply, the ship's engine is what necessitated the cover and bungee cord. Without a ship, therefore, the bungee cord would have had no purpose. For this reason, it cannot be said that the presence of the ship was merely fortuitous.
[22] The Defendants raise a line of cases involving limitation of liability provisions in highway traffic legislation with respect to damages "occasioned by a motor vehicle". In those cases, it has been held that the limitation provisions apply only if the motor vehicle is being used in its character as a motor vehicle and not when it is used for another purpose to which it has been adapted, as, for example, a stationary pumping machine or a shovel ([1969] S.C.R. 354">F.W. Argue, Ltd. v. Howe, [1969] S.C.R. 354; Dixon Cable Laying Co. Ltd. v. Osborne Contracting Ltd. (1974), 49 D.L.R. (3d) 243; Jenkins and Jenkins v. Bowes Publishing Co. (1991), 3 O.R. (3d) 154; Heredi v. Fensom, [2002] 2 S.C.R. 741). In my view, there is a significant distinction that ought to be made between the terms "occasioned by" and "involved in". The first, as supported by the case law referred to, requires some element of cause. The words "involved in" are broader and do not require the establishment of an element of cause. While the presence of the ship, on these facts, must be more than mere happenstance, it does not require the ship to be the final causative link in a chain of events.
[23] The Defendants further argue that, if the ship was an actor, then it had a role other than a ship on that occasion. In their view, the ship, in these circumstances, was no different than a load of wood being transported by a trailer. They point to the use of the bungee cord to tie down the cover only when the boat was being transported by the trailer.
[24] In my view, this argument should not succeed. Although the incident occurred on dry land while the ship was being transported from one lake to another, it was still a ship. It was not being used as anything other than a ship. In fact, the act of hooking the bungee cord to the ship was with a view to prevent the ship cover from flapping in the wind. This is an act of securing the ship and its apparel and is very analogous to the mooring of a ship.
Conclusion
[25] For all of these reasons, I do not think that it would be unreasonable, unjust or absurd for s. 577(1) of the Canada Shipping Act to be interpreted as proposed by Mr. Isen. Accordingly, I conclude that the facts and circumstances that gave rise to an incident which caused personal injury to Stephen Simms on August 1, 1999 constitute "claims arising on any distinct occasion involving a ship with a tonnage of less than 300 tons", pursuant to section 577(1) of the Canada Shipping Act.
[26] In my discretion, in the circumstances of this Special case motion, I decline to award costs.
ORDER
THIS COURT ORDERS THAT:
1. The question posed to this Court pursuant to Rule 220(1)(c) of the Federal Court Rules, 1998 is answered in the affirmative as follows:
The facts and circumstances that gave rise to an incident which caused personal injury to Stephen Simms on August 1, 1999 constitute "claims arising on any distinct occasion involving a ship with a tonnage of less than 300 tons", pursuant to section 577(1) of the Canada Shipping Act.
2. No costs are awarded.
"Judith A. Snider"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-341-03
STYLE OF CAUSE: WILLIAM ISEN v. STEPHEN SIMMS et al
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 9, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: February 13, 2004
APPEARANCES:
Marc D. Isaacs FOR THE PLAINTIFF
David R. Tenszen FOR THE DEFENDANTS
SOLICITORS OF RECORD:
LAXTON, GLASS & SWARTZ LLP FOR THE PLAINTIFF
Toronto, Ontario
THOMSON, ROGERS FOR THE DEFENDANTS
Toronto, Ontario
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