Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., 2002 FCT 184

Date: 20020220

Docket: T-588-00

Neutral citation: 2002 FCT 184

BETWEEN:

                                            EARLY RECOVERED RESOURCES INC.

                                                                                                                                                          Plaintiff

                                                                              - and -

                              GULF LOG SALVAGE CO-OPERATIVE ASSOCIATION,

             HER MAJESTY IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA

                                                                              AND

                                               JIM DOYLE, MINISTER OF FORESTS

                                                                                                                                                    Defendants

                                                            REASONS FOR ORDER

                                 Delivered from the bench in Vancouver, British Columbia

                                                          on Friday, February 15, 2002

HUGESSEN J.

[1]                 The plaintiff sues the provincial Crown for salvage of certain logs which it says it has taken from the tideway in the navigation channel of the Fraser River . The Crown is named as defendant, I am told, either as the owner or as one having a beneficial interest in the salvaged logs. It has resisted the claim on the basis that the Log Salvage Regulation for the Vancouver Log Salvage District, B.C. Reg. 220/81 ("the provincial regulations"), adopted under the provincial Forest Act, (R.S.B.C 1996, c. 157) exclude the claim because that Act and those regulations enact a comprehensive scheme with respect to the salvage of logs in the Fraser River amongst other places. The plaintiff in turn seeks a declaration of invalidity of the provincial legislation as trenching upon the federal legislative power with respect to navigation and shipping.

[2]                 The defendant now moves for summary judgment seeking dismissal of the claim on the basis that it is excluded by the provincial regulations and the legislative scheme that I have mentioned and that, those regulations and that scheme being primarily upon a matter of property and civil rights in the province, are intra vires and valid.

[3]                 On the view I take of the matter, it is not necessary for me to decide whether or not the provincial regulations are valid. As I have said, it is the province which has moved for summary judgment and the plaintiff has not brought a cross-motion for summary judgment. That means that I cannot give a declaration in the plaintiff's favour other than to decline the invitation issued to me by the province to dismiss the action. That invitation in effect denies the jurisdiction of this Court on the ground that the claim is not within the scope of Canadian maritime law.

[4]                 Central to the decision I have to make is the Canada Shipping Act, (R.S.C. 1985, c. S-9) and the incorporation by it into Canadian domestic law and more particularly into Canadian maritime law of the International Convention on Salvage, 1989, which incorporation was effected in Canada as of July 1996. That convention broadens the scope of the traditional view of marine salvage. The most relevant provisions of it are:

THE STATES PARTIES TO THE PRESENT CONVENTION,

RECOGNIZING the desirability of determining by agreement uniform international rules regarding salvage operations,

NOTING that substantial developments, in particular the increased concern for the protection of the environment, have demonstrated the need to review the international rules presently contained in the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea, done at Brussels, 23 September 1910,

CONSCIOUS of the major contribution which efficient and timely salvage operations can make to the safety of vessels and other property in danger and to the protection of the environment,

CONVINCED of the need to ensure that adequate incentives are available to persons who undertake salvage operations in respect of vessels and other property in danger,

HAVE AGREED as follows :

[...]

Article 1

Definitions

For the purpose of this Convention:

(a) "Salvage operation" means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.

(b) "Vessel" means any ship or craft, or any structure capable of navigation.

(c) "Property" means any property not permanently and intentionally attached to the shoreline and includes freight at risk.

[...]

Article 19

Prohibition of salvage operations

Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention.

[...]

Emphasis added

[5]                 The defendant cited to me three eighteenth and nineteenth century decisions of the English Courts: Nicholson v. Chapman (1793), 2 H.Bl. 254 at 257; 126 E.R., Raft of Timber (1844) 2 W. Rob. 251; 166 E.R. 749 and The Gas Float Whitton No. 2, [1896] P. 42, aff'd (sub nom Wells v. The Owners of the Gas Float Whitton No. 2), [1897] A.C. 337 (H.L.). Those cases held that rafts and booms could not be the subject of a claim for salvage which was limited in the view of the English Admiralty Court to ships and their cargos. In my view, and whether or not those decisions were ever part of the law of Canada, they have now been decisively displaced by the Convention and Parliament has clearly legislated so as to extend the concept of marine salvage to include "property" such as logs and booms of logs within the scope of the law of salvage. It is not suggested that that legislation is incompetent.

[6]                 The plaintiff says, and there is evidence to support that contention, that the logs salvaged by it were in danger. That is enough, at this stage of the case, to allow the matter to proceed in this Court. It may, of course, be that the logs here in question would even have been the subject of a claim for salvage in the traditional sense. They were apparently found floating in the navigation channel of the river and had no identifying marks upon them. Thus they might have been part of the cargo of a log barge which would have, of course, brought them within the traditional view of salvage although I must concede that as a practical matter, it is more probable that they had either escaped from a boom or had entered the river free floating. It is not necessary for me to make any finding upon that question (although I note that it underlines the artificial nature of the traditional distinction between cargo and other salvaged property.)

[7]                 It is to be noted that the province has not in any way impugned the federal legislation so that a finding of the latter's applicability necessarily excludes the application of the provincial legislation. I think that concession by the province is entirely proper for recent case law has been very clear that the federal power in the area of maritime law and navigation and shipping is very broad indeed and I make reference to the well-known cases which were extensively cited in argument before me of ITO- International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752. 28 D.L.R. (4th) 641, Whitbread v. Walley, [1990] 3 S.C.R. 1273, 77 D.L.R. (4th) 25, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1, Ordon Estate v. Grail, [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193 and others.

[8]                 It was urged upon me that the preparatory works to the 1989 Convention do not show that logs and log booms were within the contemplation of the drafters and reference is made to an article by Lord Justice Kerr in this regard : M. Kerr, "The International Convention on Salvage 1989 - How it Came to Be" (1990) 39 I.C.L.Q. 530. In my view, the omission of specific mention of logs and booms is of very little consequence. The words used by the drafters could not have been any broader and the fact that they did contemplate specifically in their preliminary works such things as buoys and fishing gear makes it plain to me that they did not intend any restriction and did not express any restriction. I simply cannot accept that there was any implied intention to exclude such things as logs and booms. It may be that the reasons that they were not discussed is because this country and perhaps the United States are really the only principal maritime nations in which an important part of commercial shipping takes place in the form of logs and booms. That may also be an explanation for the early view of the English Admiralty Court where, of course, the commerce in floating timber was never of the kind of importance that it has played for many years on both coasts of this country.

[9]                 I conclude accordingly, that the claim as asserted is apparently within the jurisdiction of this Court as relating to salvage. That does not, of course, mean that the claim is well-founded or that it will succeed in due course. It does mean that it can go forward to trial and it also means that the provincial regulations whether they are viewed as invalid, inoperable or simply inapplicable do not play any role in the determination of the plaintiff's claim for damages. It also means, of course, that the motion must be dismissed.

                                                                                                                                                                 Judge                     

Toronto, Ontario

February 20, 2002