Laing v. Boreal Pacific
T-1713-96
Reed J.
17/2/99
22 pp.
Unseaworthiness-Claim under marine insurance policy, for loss occasioned by accident in Georgia Strait in November in which plaintiff lost excavator overboard-Defendant insurance company, invoking Marine Insurance Act, s. 37(4), refusing to compensate losses on ground vessel not seaworthy for voyage undertaken-Seaworthiness varying with nature of voyage undertaken: where, what type of weather conditions to be expected-Stowage of cargo factor in seaworthiness-When policy covering both vessel and cargo, however, vessel will not be seaworthy if in order to save ship, cargo must be jettisoned-Excavator herein loaded onto deck, not secured in place by chains or blocking-Plaintiff not accompanied by anyone-Had successfully transported excavator in this fashion (alone and unsecured) on three previous occasions-Action dismissed-Many inconsistencies in plaintiff's story-Plaintiff stated did not consider it safe to voyage with vessel when winds over 20 knots, but when started out, 20-knot winds existed, with forecast for increasing winds and deteriorating weather conditions-Furthermore, knew erratic conditions exist in Georgia Strait, especially in November-Also stated did not secure excavator to vessel because if problem developed, excavator would take vessel to bottom with it-Fact plaintiff did not hold Master of Small Craft certificate not cause of loss, nor fact barge not inspected-Undermanning of vessel not reason for finding unseaworthiness-Excavator should have been secured-Vessel too heavily laden, excavator not stowed in safe manner for sea conditions reasonably expected to encounter-Plaintiff privy to unseaworthiness, i.e., had knowledge not only of facts constituting unseaworthiness, but also "blind eye" knowledge that those facts rendered ship unseaworthy-Marine Insurance Act, S.C. 1993, c. 22, s. 37(4).