Docket: T-520-10
Citation:
2016 FC 287
Ottawa, Ontario, March 7, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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J.D. IRVING,
LIMITED
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Plaintiff
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and
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SIEMENS CANADA
LIMITED, MARITIME MARINE CONSULTANTS (2003) INC., SUPERPORT MARINE SERVICES
LTD., NEW BRUNSWICK POWER NUCLEAR CORPORATION, BMT MARINE AND OFFSHORE
SURVEYS LTD., AND DANIEL MACPHERSON carrying on business as MACPHERSON MARINE
GROUP
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Defendants
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SUPPLEMENTAL REASONS AND JUDGMENT
[1]
On January 22, 2016 Judgment and Reasons were
issued in this matter (2016 FC 69). However, as indicated in paragraph 329 of
that decision, given my findings as to recklessness, it was unclear whether MMC
and Bremner still required a ruling on the issue of whether, pursuant to
Article 1(4) of the Convention on Limitation of Liability for Maritime
Claims, 1976, as amended by the Protocol of 1996 to amend the Convention
on Limitation of Liability for Maritime Claims, 1976 (collectively,
the “Limitation Convention”), they are persons for whose act,
neglect or default JDI, as a shipowner, is responsible, thereby entitling MMC
and Bremner to limit their liability. I stated that I remained seized of the
matter and that if the parties required a decision on that ground then supplemental
reasons would be issued. By way of letter to the Court dated January 26, 2016,
counsel for MMC and Bremner indicated that those parties do seek an Article
1(4) determination. Accordingly, these supplemental reasons and judgment
address that issue. The content of the original decision will not be repeated
in these supplemental reasons but is hereby incorporated by reference.
[2]
The discrete issue is, therefore, whether MMC
and Bremner are entitled to the benefit of the limitation pursuant to Article
1(4) of the Limitation Convention, which states as follows:
If any claims set out in Article 2 are made
against any person for whose act, neglect or default the shipowner or salvor is
responsible, such person shall be entitled to avail himself of the limitation
of liability provided for in this Convention.
[3]
It is not disputed that JDI is a “shipowner” as
defined by Article 1(2) of the Limitation Convention. It is MMC and
Bremner’s position that they are persons for whose act, neglect or default JDI,
as a shipowner, is responsible and, therefore, they are also entitled to limit
their liability. In this regard, MMC and Bremner interpret Article 1(4) to
extend the class of persons entitled to limit liability to include independent
contractors, provided that the shipowner is responsible for the actions of the
independent contractor as a matter of law.
[4]
This position is based primarily on the
following excerpt from Limitation of Liability for Maritime Claims, 4th
ed, (London: Lloyds, 2005) at 13, by Patrick Griggs:
Article 1(4) of the 1976 Convention extends
the right to limit to “any person for whose act, neglect or default, the
Shipowner or Salvor is responsible” …
This wording appears to extend the class of
those entitled to limit liability. Whereas Article 6(2) of the 1957 Limitation
Convention and section 3(2) of the 1958 Act afforded the right to limit to the “Master,
members of the crew and other servants of the Owner…acting in the course
of their employment”, Article 1(4) of the 1976 Convention is apparently wide
enough to encompass agents and independent contractors such as stevedores
provided the shipowner is responsible for their actions as a matter of law.
It is by no means clear what is meant by the
word “responsible”. Given a restricted interpretation it could mean that, for
example, a stevedore must show, contrary to The “White Rose”, that he is
a “servant” of the Shipowner before he can establish an independent right to
limit. Given a wider interpretation it may only be necessary for the stevedore
to show the Shipowner was “responsible” for him being involved.
In the context of claims for damage to
cargo, Art III, rule 1, of the Hague-Visby Rules places an obligation on the
shipowner before and at the beginning on the voyage to exercise due diligence
to make the ship seaworthy. In The “Muncaster Castle” [[1961] 1
Lloyd’s Rep 57] the House of Lords held that, as far as this obligation is
concerned, the shipowner is liable if the vessel was unseaworthy as a result of
the acts or omissions of independent contractor whom he has engaged. It would
seem to follow that an independent contractor who renders a ship unseaworthy by
his act, neglect of default will be able, if he is sued by the owners of the
damaged cargo, to limit his liability under the 1976 Convention.
[5]
MMC and Bremner submit that s 43(2) of the Marine
Liability Act, SC 2001, c 6 (“MLA”) extends the application of the
Hague-Visby Rules, as stipulated therein, in respect of contracts for the
carriage of goods by water. Further, that the House of Lords in Riverstone
Meat Co Pty Ltd v Lancashire Shipping Co Ltd, (“Muncaster Castle”), [1961]
AC 807, [1961] 1 Lloyd’s Rep 57 [Muncaster Castle] found that the
requirement in the Hague-Visby Rules to exercise due diligence to make the ship
seaworthy imposed a non-delegable personal obligation on the shipowner such
that it is responsible if any employee or agent, including an independent
contractor, fails to exercise due diligence in making the ship seaworthy before
and at the beginning of the voyage.
[6]
MMC and Bremner further submit that the concept
of the non-delegable nature of the obligation to provide a seaworthy ship was
endorsed by the Supreme Court of Canada in Wire Rope Industries Ltd v
British Columbia Marine Shipbuilders Ltd, [1982] 1 S.C.R. 363 [Wire Rope].
There the Supreme Court found that the use of a defective tow line socket
rendered a tug unseaworthy. Therefore, the charterer of the tug would escape
liability only “by proving that it had exercised due
diligence to make the tug seaworthy”. Based on the facts of that case,
the exercise of due diligence could not be proven by reference to the fact that
the charterer had contracted out work, in connection with the tow line that
failed, to a reputable and experienced contractor. However, the Supreme Court ultimately
held that the charterer had met its burden of proof that it exercised due
diligence because the failure was due to a latent defect that no amount of
diligence on the part of the charterer could have detected.
[7]
Based on the principles described in Muncaster
Castle and Wire Rope, MMC and Bremner assert that an independent
contractor or expert who renders a ship unseaworthy by his act, neglect or
default saddles the shipowner, JDI in this case, with personal legal
liability. To the extent that the “SPM 125” was not seaworthy, JDI “is responsible for any shortcomings of his agents or
subordinates in making the [vessel] seaworthy at the commencement of the
transportation of the particular cargo” (The Frey (1899), 92 F
667, cited in Charles Goodfellow Lumber Sales Limited v Borromée Verreault,
Captain Fernand Hovington and Verreault Navigation Inc, [1971] S.C.R. 522 and
in turn cited in Wire Rope).
[8]
MMC and Bremner also submit that the
non-delegable obligation to provide a seaworthy ship arises both as a result of
the Hague-Visby Rules and as a part of general maritime law. It includes the
suitability of the ship to carry the particular cargo and the manner in which
it is stowed. The task of making the “SPM 125” seaworthy was a core function
of JDI and the role of MMC and Bremner in preparing the loadout plan was in
furtherance of that core function. The concept of “responsibility” in Article
1(4) speaks to this relationship. According to MMC and Bremner, if the “SPM
125” was unseaworthy then JDI is liable to Siemens and that liability is
neither distinguished or diminished by engaging MMC and Bremner to carry out
the duty. Thus, MMC and Bremner are persons for whose act, neglect or default
JDI is responsible.
[9]
MMC and Bremner concede that this is a novel
argument and advise that they have been unable to identify any jurisprudence,
Canadian or international, that addresses the issue.
[10] I would first note that the evidence is clear that MMC contracted
with JDI, pursuant to the Irving Equipment PO, to provide naval architecture
services for the subject cargo move. Further, that JDI and MMC had a
longstanding relationship, that MMC provided particular expertise that JDI
indicated it did not have in-house, and that MMC and Bremner were described by
JDI as part of its team. It is also without question that MMC and Bremner were
required to and did provide advice on the suitability and use of the “SPM 125”
for the safe loading and transport of the LP Rotors.
[11] However, in my view, this does not suffice to make MMC and Bremner
persons for whose act, neglect or default JDI, as the shipowner, is “responsible” which would entitle them to avail of limitation
under Article 1(4).
[12] MMC is an independent corporate entity, unlike Atlantic Towing or
Irving Equipment which are divisions of JDI. There is no evidence or
suggestion that Bremner was retained by JDI in his personal capacity or that he
was an employee of JDI. There is also no suggestion that Bremner, at any time,
acted other than in his capacity as a principal of MMC. Rather, MMC acted as
an independent contractor in providing naval architectural services to JDI.
[13] The relationship of an employer and an independent contractor,
unlike that of employer and employee or servant or agent, typically does not
give rise to a claim for vicarious liability. In this case, the evidence is
that JDI entered into contract for services with MMC. MMC provided naval
architectural services that JDI did not have in-house. JDI did not supervise
or control MMC’s work. MMC is an independent corporate entity that was in business
on its own account. In sum, the nature of the relationship between JDI and MMC
was not one that attracted vicarious liability. Therefore, while MMC may have
been retained by JDI on many occasions in the past and JDI may have relied on
MMC for provision of naval architectural services, under Canadian law this is
not sufficient to make JDI vicariously liable or responsible for MMC’s acts or
omissions (671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 59
at paras 46-47; 1292644 Ontario Inc (Connor Homes) v Canada (National
Revenue), 2013 FCA 85 at paras 23, 39-41; KLB v British Columbia, 2003
SCC 51).
[14] Thus, in my view, the mere fact that JDI contracted with MMC to
provide naval architectural services that were a necessary part of, or integral
to, or a core function of the cargo move is insufficient to found legal
responsibility as described in Article 1(4).
[15] Secondly, the Griggs article, relied upon by MMC and Bremner, states
that it is by no means clear what is meant by the word “responsible”
as used in Article 1(4). Griggs acknowledges that this could be interpreted
broadly or narrowly. This potential for diverging interpretations is evidenced
in Shipowners’ Limitation of Liability (Frederick, MD: Aspen,
2012) at 35 by Barnabas WB Reynold and Michael N Tsimplis. The authors of that
text state that the purpose of the words “persons for
whose act, neglect or default the shipowner or salvor is responsible” is
to prevent a claimant circumventing the right to limit by suing the wrongdoer
rather than the ship, the previous success of that approach having led to the
introduction of Himalaya clauses (see Adler v Dickson (The Himalaya), [1954]
2 Lloyd’s Rep 267 and, for their acceptance in Canadian law, London Drugs Ltd
v Kuehne & Nagel International Ltd, [1992] 3 S.C.R. 299).
[16] Reynold and Tsimplis go on to say that the extension of the right to
limit to persons for whom the shipowner is responsible clearly covers the
master and crew members when they act within the scope of their employment. “However, anyone who can show that he is linked to the
shipowner in a way that makes the shipowner responsible would be entitled to
limit liability” (p 35). They suggest that under English law this could
include pilots because their negligence makes the shipowner liable, although
pilots are also entitled by statute to limit their liability to a much lower
limit. However, the authors also state that independent contractors and others
involved in the shipping business may not fall within the definition, including
ship’s agents, stevedores and classification societies (see also Michael
Tsimplis and Richard Shaw, “The Liabilities of the Vessel” in Yvonne Baatz, ed Maritime
Law, 3d (UK: Routledge, 2014) 222 at 277-278).
[17] Further, Aleka Mandaraka-Sheppard notes in Modern Maritime Law,
Volume 2: Managing Risks and Liabilities, 3rd Edition (New York:
Routledge, 2013) at p 746-747 that Article 1(4) is mainly concerned with
granting an independent right of limitation to those people for whose act,
neglect or default the shipowner, or manager, or operator, or salvor will be
vicariously liable.
[18] As to whether independent contractors are included in Article 1(4), Mandaraka-Sheppard
uses the example of a ship repairer. When ship repairers are appointed by the
shipowner to repair their ship, and the repairer’s negligence causes the ship
to be unseaworthy, which causes loss to third parties, the shipowner will be
constructively liable to the third parties for such loss. Not because he is
vicariously liable for the negligence of the independent contractor (Salsburry
v Woodland, [1970] 1 QB 324 at pp 336-337 per Widgery LJ), but because of
his direct liability to the claimant based on his non-delegable duty under
Article III, Rule 1 of the Hague-Visby Rules (Muncaster Castle). The
shipowner may then limit as against this constructive liability. The authors
conclude that the repairer may be sued separately and, as the repairer is not
included in the category of people under Article 1(4), claimants would be able
to bypass the limitation provisions of the Limitation Convention.
[19] Mandaraka-Sheppard also comments on other independent contractors
such as stevedores, whose treatment under the Limitation Convention would
depend on how a court will interpret the meaning of the word “responsible” in Article 1(4). A shipowner is not
normally vicariously liable for a stevedore’s negligence at common law. However,
stevedores may be included within the category of persons failing within Article
1(4), if the shipowner were responsible for the acts and omissions. The author
does not elaborate on what this might mean.
[20] In my view, given the ambiguity that arises from the wording of
Article 1(4) and the various possible interpretations of that Article,
demonstrated in the above texts, it is necessary to examine The Travaux Préparatoires
of the LLMC Convention 1976 and of the Protocol of 1996 (the “travaux”),
as compiled by the Comité Maritime International (“CMI”), in an effort
to ascertain the intention of the Member States as regard Article 1(4) within
the context and purpose of the Limitation Convention.
[21] As set out in my reasons issued on January 22, 2016, at paragraph
260, international conventions, as well as the legislation implementing them in
Canada, such as the MLA, are to be construed in accordance with the Vienna
Convention on the Law of Treaties, Can T.S. 1980 No 37 (“Vienna
Convention”) (Peracomo FCA citing Yugraneft Corp v Rexx
Management Corp, 2010 SCC 19 at para 19; Pushpanathan v Canada (Minister
of Employment and Immigration), [1998] 1 S.C.R. 982 at para 51). Article 32
of the Vienna Convention permits reliance on the travaux and the
circumstances in which the treaty was concluded as supplementary means of
interpretation for ambiguous provisions.
[22] In this matter the travaux indicate that some delegations
suggested that the right to limit liability should be accorded not only to
operators (owners, charterers, etc) and their servants, but also to other
persons rendering services in direct connection to the operation of the ship, such
as stevedores and salvors, and also to the owner, shipper or receiver of goods
carried in the ship.
[23] In that regard, it had been proposed that limitation of liability be
retained for owners, operators and charterers as in the 1957 Convention and
that the right be extended to certain persons rendering services in direct
connection within the navigation or management of the ship and to salvors. As
to whether “contractors” who are exposed to limitation claims should also be entitled
to protection, such as owners, shippers and receivers of cargo carried in the
ship, this proposal was rejected. It was noted that under the 1957 Convention
(Article 6) “servants” of the owner, “acting in the course of their employment” were
entitled to limit their personal responsibility in the same way as their
principal, and that:
…The idea is that a person for whom the
principal is responsible shall be able to limit; otherwise the principal’s own
protection may be impaired. It was suggested to replace the word servants with
the wide term “servants or agents”, but it was felt that “agents”
might include persons for whom the principal has no vicarious liability. It
was also pointed out that the restrictive words “acting in the course of their
employment” were too narrow, for instance in the case where the Shipowner is
held liable for the crew acting outside of their employment.
…
The solution adopted in the Draft is to
relate the employees’ right to limitation directly to the fact that the
principal is responsible for his “act, neglect or default” (p 35).
(emphasis added)
[24] During one session of the Legal Committee of the Intergovernmental
Maritime Consultative Organization (“Committee”), as it was then known, focus
was on those persons who were not covered by the 1957 Convention, since shipowners,
operators and charterers would retain the right to limit under the new 1976 draft.
Two categories of persons were discussed. First, the category of certain “contractors” such as owners, shippers and receivers
of cargo. It was explained that the CMI had decided not to extend the circle
of limitation, because of the complexity of possible effects in insurance costs
and the implication of such extension on non-maritime activities. A second
category of persons, being those rendering service in the “loading, stowing or discharging of the ship” fell
outside the scope of the concept of the “management of
the ship” as found in the draft articles, which focused on services
rendered while the ship was in operation. The inclusion of such persons was
not agreed in the CMI deliberations, although some States were understood to
extend the right of limitation to such persons through national laws.
[25] The definition of “shipowner” was also subject to debate, the
proposal being that the term shipowner would include the owner, charterer,
manager and operator of a sea-going ship, and any person rendering services in
direct connection with the navigation or management of the ship. This proposal
was rejected. The debate included the following:
The extent to which
independent contractors, employed by the operator, but for whose acts he is not
liable, should be protected by limitation of liability has been the subject of
extensive discussion within the CMI. It was suggested that such protection
should be given to “any person rendering service in direct connection with the
operation of the ship” or, alternatively, “any person rendering service in
direct connection with the navigation, management, or the loading, stowing or
discharging of the ship”. The first alternative was rejected by the
International Sub-Committee and not raised again at the Conference. With
respect to the second alternative a majority in the Sub-Committee only favoured
the inclusion of “the navigation of the ship” and this was also the outcome in
the Commission. In the Plenary Session of the Conference, however, the text as
it now stands was carried with a substantial majority.
The inclusion of
the words “in direct connection with the navigation… of the ship” means that
pilots can always limit their liability whether the shipowner is responsible
for them or not (compulsory pilotage). The same applies to shorebased personnel
who render navigational aid to the ship, berthing masters etc.
The word
“management”, which is also used in Article 1, § 1 (b) of the 1957 Convention,
is more difficult to construe in the light of the solutions favoured by the
Conference. It is quite clear that loading, stowing and discharge fall outside
the scope of the term. It is equally clear that a ship repairer who renders
service to the ship whilst it is out of commission (lying at the yard, etc.)
cannot limit his liability pursuant to this provision. On the other hand,
travelling ship repairers rendering service whilst the ship is in operation are
covered by the words “in direct connection with the management of the ship”.
[396] The term “management” may not be
the best expression of the thought which lies behind it, but it is strongly
felt by a majority in the CMI that the term “navigation” alone is too narrow.
A person who is
deemed to be rendering service “in direct connection with the navigation or
management of the ship” can invoke limitation of liability for all limitable
claims, not only for claims arising out of the service rendered. A travelling
ship repairer who takes a turn as a helmsman can limit his liability for his
default as such.
[26]
Additionally:
Twenty-fifth Session
[2] 8. Discussion of Article 1 at the twenty-third session
had centred on the question of whether, and to whom, the right of limitation
should be extended apart from the shipowner, manager or operator and whether it
would be necessary or desirable to specify the type of craft comprised in the
concept of the “sea-going ship”.
11. A majority of
the Committee did not favour defining the term shipowner to include a “person
rendering service in direct connexion with the navigation or management of the
ship”, considering the language in paragraph 2 too broad. Travelling ship
repairers, tank cleaners, husbanding agents and others who might be involved in
some aspects of “management” fell into a vague category which should not, in
the general view of the Committee, be embraced in the term “shipowner” for limitation
purposes.
…
[27] The recorded debate of State delegates on the scope of Article 1(2)
also demonstrates that the CMI considered, during drafting, the possibility of
extending the limitation to include persons other than the shipowner. The discussion
referred primarily to compulsory pilots and salvors, but it appears that it was
generally agreed that it would not extend to all kinds of persons who rendered
services to the ship.
[28] This debate extended into the drafting of Article 1(4). The
Committee noted that with regard to vicarious liability, some delegates
preferred the wording of Article 6 of the 1957 Convention referring to the “Master, Members of the crew and other servants”. The
Committee preferred the new Article 1(4) wording, “any
persons for who act, neglect of default the shipowner or salvor is responsible”
and the debate concerned whether the further addition of persons “having provided pilotage services” should be adopted.
This addition was proposed because it was recognized that pilots,
particularity those of public pilotage services, including compulsory pilots,
are not always considered servants of the shipowner but should be entitled to
limit liability in the same way as a shipowner.
[29] Ultimately, the wording pertaining to pilots was not adopted. During
the debate, however, the United States delegate introduced a proposed amendment
to the wording of Article 1(4). This was to delete the word “responsible” and
substitute the phrase “legally liable at law in the absence of a contract”.
The aim being to limit, as far as possible, extension of the right to invoke
limitation as there was concern that the proposed text of Article 1(4) appeared
to permit shipowners entitled to limitation to extend that right to other
persons by contract. The Canadian delegate stated that he shared the concern
of the United States delegate and thought that a recommendation that the word “responsible”
being replaced by “liable” (which had a slightly narrower meaning) might
suffice. The Norwegian delegate stated that Article 1(4) was designed to
establish the principle that all persons for whom the shipowner had “civil
responsibility” were entitled to invoke limitation and that the scope of that
principle would normally be determined by national law. The Norwegian delegate
felt that the United States’ proposal might be interpreted as inadvertently
excluding such civil responsibility which was not the intention. The United
Kingdom delegate agreed. Ultimately, the United States delegate reconfirmed
that his delegation’s intention was indeed to reduce the categories of persons
entitled to invoke limitation. However, the United States was prepared to
withdraw its proposal and agree to the use of “responsible” if Article 1(4) was
understood in this narrow sense and if the Committee agreed to that
interpretation.
[30] In my view, the travaux provide no clear answers. However,
what can be taken from them is that there was certainly no explicit intention
to extend the category of persons who are entitled to limit their liability pursuant
to Article 1(4) to include independent contractors. If anything, the travaux
tend to suggest that the underlying premise of Article 1(4) is that
“responsibility” remains tied to the vicarious liability of the shipowner and
that a narrow interpretation was intended. While this may perhaps extend to
protect pilots in specific circumstances, it does not appear to have been
intended to further extend the category of persons captured by Article 1(4).
Nor do the travaux make any reference to a shipowner’s obligation to
exercise due diligence in making its ship seaworthy pursuant to the Hague-Visby
Rules as a basis for extending Article 1(4) responsibility to third party
contractors or others.
[31] Accordingly, because the category does not appear to have been
intended to extend to include independent contractors, and because JDI, as the
shipowner, is not vicariously liable for the acts, neglect or default of its
independent contractor, in my view, MMC and its principal Bremner are not
entitled to limit their liability pursuant to the Limitation Convention.
[32] This view is also in keeping with the history and purpose of the Limitation
Convention, set out in detail in my reasons issued on January 22, 2016. It
will be recalled that a balance was struck between ensuring suitable
compensation to claimants for loss or injury suffered and the need to permit
shipowners, for public policy reasons, to limit their liability to an amount
that was readily insurable at a reasonable premium. This was accomplished by
establishing limitation as high as a shipowner could cover by insurance at a
reasonable rate and the creation of a virtually unbreakable right to limit
liability.
[33] Shipowners are defined in the Limitation Convention as
meaning the owner, charterer, manager or operator of a seagoing ship. To
achieve its policy goals, the Limitation Convention facilitates shipowners
obtaining favourable insurance rates by making liability amounts predictable
based on the amount of the limitation. At the same time, by capping a
claimant’s recovery, it encourages quick resolution without litigation. The
balance effected by the Limitation Convention between recovery and
predictability assists in maintaining the international transport of goods by
ship, which is of critical importance to modern global trade. In my view, it
is not clear that the policy underlying the limitation was also intended to
extend to independent contractors who, presumably, are capable of obtaining
their own insurance or entering into contractual terms with the shipowners to
address any risks and liability that may arise from the goods or services that
they provide in connection with the ship.
[34] For the reasons set out above, I am not convinced that Article 1(4)
was intended to extend the right to limit liability to independent contractors
such as MMC. However, MMC and Bremner submit that the non-delegable obligation
of JDI, as a shipowner, arising pursuant to Article III, Rule 1, of the
Hague-Visby Rules, to exercise due diligence to make the “SPM 125” seaworthy,
establishes that JDI is “responsible” for MMC and Bremner’s acts, neglect or
default pursuant to Article 1(4) of the Limitation Convention, if their
actions caused the “SPM 125” to be unseaworthy. I am also not persuaded by
that submission.
[35] Part 5 of the MLA concerns liability for carriage of goods by water.
Section 41 defines the Hague-Visby Rules as the rules set out in Schedule 3 of
the MLA and embodied in the International Convention for the Unification of
Certain Rules of Law relating to Bills of Lading, concluded at Brussels on
August 25, 1924, in the Protocol concluded at Brussels on February 23,
1968, and in the Additional Protocol concluded at Brussels on December
21, 1979. Subsection 43(1) of the MLA states that the Hague-Visby Rules have
the force of law in Canada in respect of contracts for the carriage of goods by
water between different states as described in Article X of those Rules. Subsection
43(2) extends this application in respect of contracts for the carriage of
goods by water from one place in Canada to another place in Canada, either
directly or by way of a place outside Canada, unless there is no bill of lading
and the contract stipulates that those Rules do not apply.
[36] The Hague-Visby Rules are set out in Schedule 3 of the MLA. They
define “carrier” as including the owner or the charterer who enters into a
contract of carriage with a shipper. The following Articles are also relevant:
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Article II
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Article II
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Risks
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Risques
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Subject to
the provisions of Article VI, under every contract of carriage of goods by
water the carrier, in relation to the loading, handling, stowage, carriage,
custody, care and discharge of such goods, shall be subject to the
responsibilities and liabilities and entitled to the rights and immunities
hereinafter set forth.
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Sous réserve
des dispositions de l’article VI, le transporteur, dans tous les contrats de
transport des marchandises par eau, sera, quant au chargement, à la
manutention, à l’arrimage, au transport, à la garde, aux soins et au
déchargement desdites marchandises, soumis aux responsabilités et
obligations, comme il bénéficiera des droits et exonérations ci-dessous
énoncés.
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Article
III
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Article
III
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Responsibilities
and Liabilities
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Responsabilités
et obligations
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1 The carrier
shall be bound, before and at the beginning of the voyage, to exercise due
diligence to
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1 Le
transporteur sera tenu avant et au début du voyage d’exercer une diligence
raisonnable pour :
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(a) make the
ship seaworthy;
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a) mettre le
navire en état de navigabilité;
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(b) properly
man, equip and supply the ship;
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b)
convenablement armer, équiper et approvisionner le navire;
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(c) make the
holds, refrigerating and cool chambers, and all other parts of the ship in
which goods are carried, fit and safe for their reception, carriage and
preservation.
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c) approprier
et mettre en bon état les cales, chambres froides et frigorifiques, et toutes
autres parties du navire où des marchandises sont chargées, pour leur
réception, transport et conservation.
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2 Subject to
the provisions of Article IV, the carrier shall properly and carefully load,
handle, stow, carry, keep, care for and discharge the goods carried.
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2 Le
transporteur, sous réserve des dispositions de l’article IV, procédera de
façon appropriée et soigneuse au chargement, à la manutention, à l’arrimage,
au transport, à la garde, aux soins et au déchargement des marchandises transportées.
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Article IV
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Article IV
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Rights and
Immunities
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Droits et
exonérations
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1 Neither the
carrier nor the ship shall be liable for loss or damage arising or resulting
from unseaworthiness unless caused by want of due diligence on the part of
the carrier to make the ship seaworthy, and to secure that the ship is
properly manned, equipped and supplied, and to make the holds, refrigerating
and cool chambers and all other parts of the ship in which goods are carried
fit and safe for their reception, carriage and preservation in accordance
with the provisions of paragraph 1 of Article III.
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1 Ni le
transporteur ni le navire ne seront responsables des pertes ou dommages
provenant ou résultant de l’état d’innavigabilité, à moins qu’il ne soit
imputable à un manque de diligence raisonnable de la part du transporteur à
mettre le navire en état de navigabilité ou à assurer au navire un armement,
équipement ou approvisionnement convenables, ou à approprier et mettre en bon
état les cales, chambres froides et frigorifiques et toutes autres parties du
navire où des marchandises sont chargées, de façon qu’elles soient aptes à la
réception, au transport et à la préservation des marchandises, le tout
conformément aux prescriptions de l’article III, paragraphe 1.
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Whenever loss
or damage has resulted from unseaworthiness, the burden of proving the
exercise of due diligence shall be on the carrier or other person claiming
exemption under this article.
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Toutes les
fois qu’une perte ou un dommage aura résulté de l’innavigabilité, le fardeau
de la preuve, en ce qui concerne l’exercice de la diligence raisonnable,
tombera sur le transporteur ou sur toute autre personne se prévalant de
l’exonération prévue au présent article.
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2 Neither the
carrier nor the ship shall be responsible for loss or damage arising or
resulting from
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2 Ni le
transporteur ni le navire ne seront responsables pour perte ou dommage
résultant ou provenant :
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(a) act,
neglect, or default of the master, mariner, pilot or the servants of the
carrier in the navigation or in the management of the ship;
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a) des actes,
négligence ou défaut du capitaine, marin, pilote ou des préposés du
transporteur dans la navigation ou dans l’administration du navire;
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(q) any other
cause arising without the actual fault and privity of the carrier, or without
the fault or neglect of the agents or servants of the carrier, but the burden
of proof shall be on the person claiming the benefit of this exception to
show that neither the actual fault or privity of the carrier nor the fault or
neglect of the agents or servants of the carrier contributed to the loss or
damage.
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q) de toute
autre cause ne provenant pas du fait ou de la faute du transporteur ou du
fait ou de la faute des agents ou préposés du transporteur, mais le fardeau
de la preuve incombera à la personne réclamant le bénéfice de cette exception
et il lui appartiendra de montrer que ni la faute personnelle ni le fait du
transporteur n’ont contribué à la perte ou au dommage.
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Article IV
bis
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Article IV
bis
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Application
of Defences and Limits of Liability
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Application
des exonérations et limitations
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1 The
defences and limits of liability provided for in these Rules shall apply in
any action against the carrier in respect of loss or damage to goods covered
by a contract of carriage whether the action be founded in contract or in
tort.
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1 Les
exonérations et limitations prévues par les présentes règles sont applicables
à toute action contre le transporteur en réparation de pertes ou dommages à
des marchandises faisant l’objet d’un contrat de transport, que l’action soit
fondée sur la responsabilité contractuelle ou sur une responsabilité
extracontractuelle.
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2 If such an
action is brought against a servant or agent of the carrier (such servant or
agent not being an independent contractor), such servant or agent shall be
entitled to avail himself of the defences and limits of liability which the
carrier is entitled to invoke under these Rules…
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2 Si une
telle action est intentée contre un préposé du transporteur, ce préposé
pourra se prévaloir des exonérations et des limitations de responsabilité que
le transporteur peut invoquer en vertu des présentes règles.
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[37] The premise of MMC and Bremner’s position appears to be that if MMC
caused the “SPM 125” to be unseaworthy, then JDI will have breached its non-delegable
duty and will be responsible for the acts and omissions of its independent
contractor. However, to succeed in establishing that responsibility it would
have to have been established at trial that the “SPM 125” was unseaworthy at
the commencement of the voyage and that MMC and Bremner, as JDI’s independent
contractors, had caused this. Yet, in their written submissions, MMC and
Bremner concede that the evidence in fact suggests that the “SPM 125” was
seaworthy. Indeed, the evidence put forward at trial by JDI, MMC and Bremner
was most certainly not aimed at establishing unseaworthiness, rather Bremner’s
evidence was that the “SPM 125” was suitable for the intended voyage. There
was no evidence that the “SPM 125” was unseaworthy or that JDI or MMC or
Bremner had failed to exercise due diligence in this regard. On this basis
alone, MMC’s position cannot succeed. I fail to see how it can be sufficient
to claim an entitlement to limit one’s liability pursuant to Article 1(4) by
simply asserting the possibility of a “responsibility” arising if a particular
set of unproven facts occur.
[38] Moreover, the Limitation Convention provisions were intended
to reduce litigation arising from maritime claims to which it applies. Importing
the need to establish unseaworthiness to permit independent contractors to
avail themselves of the limitation as parties for whom the shipowner is
responsible pursuant to Article 1(4) would seem to have the very real potential
of complicating limitation actions and increasing litigation.
[39] In summary, for all of these reasons, I am not convinced that MMC
and Bremner, as independent contractors, are persons for whose acts, neglect or
default JDI, as shipowner, is responsible pursuant to Article 1(4). Accordingly,
MMC and Bremner are not entitled to limit their liability pursuant to the Limitation
Convention.
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