MARITIME LAW |
Torts |
Isen v. Simms
T-341-03
2004 FC 227, Snider J.
13/2/04
12 pp.
Determination of question of law--Plaintiff owned 17-foot boat, 1998 Mercruiser Calais Bowrider--Plaintiff used 3-foot bungee cord to secure engine cover when boat transported on boat trailer--While checking if bungee cord secure, cord slipped from plaintiff's fingers and flew across width of boat --Metal hook struck male defendant in right eye--Defendants commenced action in Ontario Superior Court of Justice claiming damages against plaintiff in amounts of $2,000,000 and $200,000 respectively--Plaintiff commenced this action pursuant to Canada Shipping Act (Act), s. 581, seeking to limit liability, if any, to $1,000,000--Parties agreed plaintiff "shipowner" and his boat "ship" as defined in Act, s. 576(3)-- Question for determination: whether facts and circumstances giving rise to incident causing personal injury constituting "claims arising on any distinct occasion involving a ship with a tonnage of less than 300 tons", pursuant to Canada Shipping Act, s. 577(1)--Defendants described incident as involving bungee cord, not ship--Distinction artificial--In defendants' view, ship fortuitous background feature and not central actor or cause of events--Defendants seem to be arguing, if ship did not directly cause injury, ship not involved in incident-- Interpretation of word "involve" overly narrow, and not consistent with either case law or dictionary definitions-- Without attempting to define "involve", meaning broader than "cause"--Also means "implying" or "relating to"--Applying broader concept of word, incident implied ship present, incident related to ship and ship entangled in events that occurred--Ship central actor in events--Ship's engine necessitated cover and bungee cord--Without ship, bungee cord would have had no purpose--Although incident occurred on dry land while ship being transported from one lake to another, still a ship--Not being used as anything other than ship--Act of hooking bungee cord to ship to prevent ship cover from flapping in wind--Act of securing ship and apparel very analogous to mooring of ship--Question answered in affirmative--Canada Shipping Act, R.S.C., 1985, c. S-9, ss. 576(3) (as am. by S.C. 1998, c. 6, s. 2), 577(1) (as am. by S.C. 2001, c. 6, s. 121), 581 (as am. idem, s. 123).