The Supreme Court of Canada has brought down a Maritime law case (Isen v. Simms) that removes the limitation of liability for ships that are being transported on dry land. Will this apply to a ship in dry dock?
Here are the headnote facts:
After a day of recreational boating on a lake, S and I removed the boat from the water on a trailer and prepared it for transport on the highway in a parking lot near the water. I, the owner of the boat, was stretching a bungee cord over the engine cover to secure it when the cord slipped from his grasp and hit S who suffered an eye injury. S and his wife brought a personal injury action for damages totalling $2.2 million in the Ontario Superior Court. I denied liability and also applied to the Federal Court for a declaration that, in the event he was found liable, his liability would not exceed $1 million pursuant to s. 577 of the Canada Shipping Act. The Federal Court and the majority of the Federal Court of Appeal both held that the claim was a maritime law claim and was subject to the limitation of liability set out in s. 577.
Held: The appeal should be allowed.
The Court held:
However, I am unable to agree with Nadon J.A. that the securing of the engine cover was a part of the removal process. The actions of the respondent had nothing to do with navigation of the boat on water and everything to do with preparing the boat to be transported on Ontario’s highways. Once the boat was being secured for highway transport it was no different than any other type of cargo that is transported on the highway. It is the provincial legislatures that have jurisdiction over the carriage of cargo on provincial highways. The fact that the cargo is a boat does not bring under federal law a matter that is, in pith and substance, subject to provincial law.
27 Bungee cords or other devices are often used to secure cargo prior to road transport to ensure the cargo is not damaged during road transport and does not pose a hazard to other users of the road. The law concerning the standard of care and liability of the respondent in this situation should be that applied to other users of Ontario highways who make preparations to transport some form of cargo. Indeed, it is the other users of the road who may collide with, or otherwise be affected by, a trailered boat and/or non‑secured cargo while on the highway. It would be anomalous that provincial law would apply to the carriage of other goods on Ontario highways, but that maritime law would apply when the goods are a boat.
28 I am in substantial agreement with the analysis of Décary J.A. which he summarized at para. 98 of his dissenting reasons:
The accident occurred on land. The injury was caused on land by a person who was neither on the boat nor in the water. There is no contract for carriage of goods by sea. There are no goods at issue. Nothing has happened on water which could be said to be directly or even indirectly related to the accident. There is no issue as to the seaworthiness of the ship, the issue at best being one as to the roadworthiness of a boat being prepared on land for road transportation. There are no in rem proceedings. There are no concerns of good seamanship. There are no specialized admiralty laws, rules, principles or practices applicable. The accident has nothing to do with navigation nor with shipping. There is no practical necessity for a uniform federal law prescribing how to secure the engine cover from flapping in the wind when a pleasure craft is transported on land in a boat trailer. The sole factor possibly connected to maritime law is that the pleasure craft had just come out of the water and was still being secured on the trailer when the accident happened. This, clearly, is not enough to constitute an integral connection with navigation and shipping and an encroachment of civil rights and property. [Emphasis in original.]