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T-3308-76
Gloria Paré and Bernadette Caron Paré (Plain- tiffs)
v.
Rail & Water Terminal (Quebec) Inc., Les Char- geurs Unis Inc., Transport Desgagné Inc. and Le Groupe Desgagné Inc. (Defendants)
Trial Division, Addy J.—Quebec, April 14; Ottawa, April 29, 1977.
Maritime law Jurisdiction Action in Federal Court for tort committed at sea Action against employer barred by Quebec Workmen's Compensation Act and the federal Mer chant Seamen Compensation Act Whether plaintiffs retain a right of action under Maritime law Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 22 and 43 Canada Shipping Act, R.S.C. 1970, c. S-9, ss. 541, 647, 719 and 720 Merchant Seamen Compensation Act, R.S.C. 1970, c. M-11, ss. 12, 13 and 14 Workmen's Compensation Act, R.S.Q. 1964, c. 159, ss. 4 and 8.
The Aigle d'océan, a coaster described by the plaintiffs as a leaky bucket, was shipwrecked causing the death of its chief engineer, the plaintiffs' son. The defendants bring this applica tion to dismiss the action on the grounds that the Court lacked jurisdiction and that the action is barred under the Workmen's Compensation Act. They also argue that the action is not well-founded in law and that no legal relationship existed between the plaintiffs and defendants, save Rail & Water Terminal (Quebec) Inc.
Held, the application is allowed in so far as it refers to Transport Desgagné Inc. and Le Groupe Desgagné Inc. for no legal relationship was shown to exist between them and the plaintiffs. The application is allowed with respect to the sea- man's employer, Rail and Water Terminal (Quebec) Inc. the charterer. Both the Merchant Seamen Compensation Act and the Workmen's Compensation Act bar the employee himself, or in the case of a deceased employee, his dependents, from instituting a court action for any accident which occurred during the course of his employment. On the other hand, maritime law gives the parents of the deceased sailor the right to bring an action against the person responsible, and it is not necessary for the parents to be dependents of the deceased. Since the employee himself and his dependent relatives are barred from bringing an action against the employer in the courts, it would be extraordinary to conclude that the non- dependent relatives of the employee retained this right, bearing in mind that the object of all laws, both provincial and federal, governing workmen's compensation is to constitute a compre hensive code governing the legal rights and relationships be tween employers and their employees with respect to substan tive law and procedure, and also bearing in mind the fact that the right of recourse of an employee's representatives for damages for a tort caused by his employer is intrinsically connected with the remedy which the employee himself would have enjoyed had he survived. The application, with respect to
Les Chargeurs Unis Inc., the owner of the ship, is dismissed for although the owner of a ship under exclusive possession of a charterer is normally freed from all liability to third parties, the owner's liability to ensure the reasonable seaworthiness of the vessel, so as not to constitute a danger to those who intend to use it, is not reduced. The plaintiffs have a right to compensa tion for all losses legally attributable to such a wrong.
Sandeman v. Scurr (1866) L.R. 2 Q.B. 86, followed. APPLICATION.
COUNSEL:
Jacques Paquet for plaintiffs. Guy Vaillancourt for defendants.
SOLICITORS:
Tremblay, Pinsonnault, Pothier, Morisset & Associates, Quebec, for plaintiffs.
Langlois, Drouin, Roy, Fréchette & Gau- dreau, Quebec, for defendants.
The following are the reasons for order ren dered in English by
ADDY J.: Following a conditional appearance, the four defendants have made a joint application to dismiss the action on the following grounds:
1. That the Court lacks jurisdiction.
2. That the remedy is barred under the Work- men's Compensation Act'.
3. That the claim is not well founded in law.
4. That there exists no legal relationship be tween the plaintiffs and any of the defendants, except Rail & Water Terminal (Quebec) Inc.
SUMMARY OF FACTS CONTAINED IN THE STATEMENT OF CLAIM
The following facts must be taken as having been established for the purposes of this motion to dismiss the action:
1. The plaintiffs are the father and mother of the late André Paré, who died intestate and, therefore, before having appointed an executor; they were receiving $1,000 a year from the deceased.
2. The following are the defendants: Rail & Water Terminal (Quebec) Inc., the bareboat charterer of the ship Aigle d'océan, and Les
1 R.S.Q. 1964, c. 159, as amended.
Chargeurs Unis Inc., owner of the said ship, and there is no allegation as to why the other defendants are parties to this action.
3. The cause of action arises out of the ship wreck of the Aigle d'océan which occurred west of the entrance to Ungava Bay on August 20, 1975, and which led to the death of the said late André Paré, who was at the time the chief engineer on the ship.
4. The Aigle d'océan was a coaster, that is, a home-trade vessel which, according to the defi nition given in section 2 of the Canada Shipping Act 2 , means a ship used for home-trade voyages. "Home-trade voyage", as defined in this Act, means a voyage not being an inland or minor waters voyage between places within the follow ing area: Canada, the United States other than Hawaii, St. Pierre and Miquelon, the West Indies, etc.
5. The defendants are alleged to be jointly and severally liable for the death, since the ship was a "leaky bucket" not suitable for putting to sea, dangerous and decrepit, not equipped with a suitable lifeboat, with no qualified crew, and carrying improperly stowed cargo; furthermore, the captain himself was at fault and responsible for the shipwreck.
6. Rail & Water Terminal (Quebec) Inc., the bareboat charterer of the ship, was the employer of the late André Paré and was paying him.
REASONS AND CONCLUSIONS
1. Maritime law is within the jurisdiction of the Federal Government 3 .
2. Jurisdiction in this area was conferred on the Federal Court specifically (see Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sections 22 and 42).
3. Before the conflicts of jurisdiction with the common law courts which occurred more than two centuries ago, the Admiralty Courts in England enjoyed complete jurisdiction over torts and the wrongful acts committed on board a ship at sea.
2 R.S.C. 1970, c. S-9.
3 The British North America Act, 1867, s. 91(10).
This jurisdiction was later considerably restricted by certain decisions of common law courts, which were upheld on appeal. However, since at least 1861, at which time a new Admiralty Act was enacted by the Parliament of the United Kingdom, a right of recourse for a tort exists in maritime law, even where there has not been a collision between two ships. See The Sea Gull °, The Sylph', and Wyman v. The "Duart Castle" 6 . (See also the words "or otherwise" in section 22(2)(d) of the Federal Court Act.)
4. This right of recourse also exists in the case of a claim for bodily injury. See The Beta', Wyman y. The `Duart Castle" 8 , and Monaghan v. Horn 9 . Since the last case, which was decided in 1882, a right of recourse has been created in Canada where the person dies, and this right may be exercised by the parents of the deceased (plaintiffs in the case at bar) for damages caused by the death (see the Federal Court Act, sections 22(2)(d) and (g) and 43(1); the Canada Shipping Act, R.S.C. 1970, c. S-9, sections 644 and 719; and also the following cases: McLeod v. The Ontario-Minnesota Pulp and Paper Company Limited 10 and Flipper Draggers Ltd. v. "Ocean Rockswift"").
5. The jurisdiction of the Exchequer Court was based on an Act of the Canadian Parliament en titled the Admiralty Act 12 , enacted pursuant to a power granted by section 3 of an Act passed by the British Parliament in 1890 entitled the Colonial Courts of Admiralty Act, 1890 13 .
6. Not only was the admiralty jurisdiction of the Exchequer Court transferred to the Federal Court, but this jurisdiction was also extended by the Federal Court Act itself; see sections 22 and 42 and also the following cases: The Robert Simpson Montreal Limited v. Hamburg-Amerika Linie
° Chase's Decisions (1865-69) 4th C.C. of U.S. 145.
5 (1867) L.R. 2 A. & E. 24.
° (1899) 6 Ex.C.R. 387.
(1869) L.R. 2 P.C. 447.
8 (1899) 6 Ex.C.R. 387.
9 (1881-2) 7 S.C.R. 409.
10 [1955] Ex.C.R. 344 at p. 346.
11 [1970] Ex.C.R. 48.
12 (1891) 54-55 Viet., c. 29.
17 (1890) 53 & 54 Vict., c. 27, s. 3.
Norddeutscher 14 ; Antares Shipping Corporation v.
The "Capricorn" 15 ; Barberlines AIS Barber Steamship Lines, Inc. v. Ceres Stevedoring Com pany Ltd. 16
7. There can be no doubt that this action is based on maritime law and not on provincial civil law (see the Canada Shipping Act, sections 718, 719, 720 and 541(a) and (e)). The recent judgments of the Supreme Court of Canada in Quebec North Shore Paper Co." and McNamara Construction (Western) Ltd. 18 therefore do not apply.
8. It thus follows that this Court has the jurisdic tion required to entertain claims such as those brought by the plaintiffs.
9. However, in so far as the defendants Transport Desgagné Inc. and Le Groupe Desgagné Inc. are concerned there is in the statement of claim no statement as to the existence of any legal relation ship whatsoever between them and the plaintiffs. For this reason, the motion will be allowed in so far as it refers to these two defendants and the action is dismissed.
10. In the case of the claim against the defendant Les Chargeurs Unis Inc., it is worth noting that it is the bareboat charterer who normally bears com plete responsibility for the actions of the captain and crew and for any torts occurring by reason of the operation of the ship, since the charterer has exclusive possession of it and is in control of its operations. In such a case, the owner is, by that very fact, freed from all liability toward third parties for damage resulting from the operation of the ship. See Sandeman v. Scurr 19 .
However, this does not in any way reduce the owner's liability to ensure that the ship is reason ably seaworthy, and that it does not constitute an actual danger for those who intend to use it. This is a well-established common law principle (see section 452 of the Canada Shipping Act and also section 647(2)(a) of this Act when interpreted a contrario).
'4 [197 3] F.C. 1356 at pp. 1361 and 1368.
15 [1973] F.C. 955.
16 [1974] 1 F.C. 332 at p. 335.
17 (1977) 71 D.L.R. (3d) 111.
18 (1977) 75 D.L.R. (3d) 273.
' 9 (1866) L.R. 2 Q.B. 86 at p. 96.
There is indeed an allegation against the defend ant Les Chargeurs Unis Inc., the owner of the ship Aigle d'océan, to the effect that, to the knowledge of this defendant the said ship was so unseaworthy when it was chartered that it could be described as a "leaky bucket".
If the allegation against this defendant were established the plaintiffs' right to be compensated for all losses legally attributable to such a wrong would follow.
In the case of this defendant, the motion to strike the claim must therefore be dismissed unless there exists another statutory provision to the contrary.
11. The defendant Rail & Water Terminal (Quebec) Inc. is the bareboat charterer of the ship and the employer of the deceased sailor. The provi sions of the Merchant Seamen Compensation Act 20 and of the Workmen's Compensation Act 2 ' should be considered. If the Merchant Seamen Compensation Act applies, the Board has exclusive jurisdiction under sections 12, 13 and 14 of this Act to hear any claim against this defendant and the Federal Court therefore has no jurisdiction.
The same is true in a case where, under section 4 of this Act, the Workmen's Compensation Act applies, because section 13 of the latter Act gives the Commission exclusive jurisdiction to hear any claim against an employer. Section 15 also pro tects an employer from all other proceedings.
Rail & Water Terminal (Quebec) Inc. is prob ably an employer within the meaning of these Acts. What is certain is that one of these two Acts applies. It is not necessary for the purposes of this motion to decide the question as to which of these Acts should govern the compensation, since the Federal Court in any case has no jurisdiction.
12. Both of these Acts also bar the employee himself, or in the case of a deceased employee, his dependents, from instituting a court action for any
20 R.S.C. 1970, c. M-11.
21 R.S.Q. 1964, c. 159, amended.
accident which occurred during the course of his employment. On the other hand, maritime law gives the parents of a deceased sailor the right to bring an action against the person responsible, and it is not necessary for the parents to be dependents of the deceased. The question therefore arises as to whether the parents of a deceased employee, if they are not his dependents, do not nonetheless retain a right of recourse under maritime law, since they do not appear to have been expressly divested of this right by either of the two statutes governing workmen's compensation to which I have just referred.
Since the employee himself and his dependent relatives are barred from bringing an action against the employer in the courts, it would be extraordinary to conclude that the non-dependent relatives of the employee retained this right, bear ing in mind the object of all laws, both provincial and federal, governing workmen's compensation, the first and fundamental aim of which is to constitute a comprehensive code governing the legal rights and relationships between employers and their employees with respect to substantive law and procedure, and also bearing in mind the fact that the right of recourse of an employee's representatives for damages for a tort caused by his employer is intrinsically connected with the remedy which the employee himself would have enjoyed had he survived.
13. The motion should therefore be allowed in the case of the claim against the defendant Rail & Water Terminal (Quebec) Inc.
14. There remains only the question of considering the last argument raised by counsel for the defend ants. The plaintiff Gloria Paré allegedly received $2,000 in compensation under the Quebec Work- men's Compensation Act. According to this coun sel's argument, if this Act applies, the plaintiff in the case at bar has no right of action, even against a third party such as the defendant Les Chargeurs Unis Inc. under section 7(3) of this Act. The provisions of this section can hardly be interpreted in such a way as to lead to this result. Moreover, section 8 of the same Act eliminates any possible doubt in this respect. It reads as follows:
8. Notwithstanding any provision to the contrary and not withstanding the fact that compensation may have been obtained under the option contemplated by subsection 3 of section 7, the injured workman, his dependants or his repre sentatives may, before the prescription enacted in the Civil Code is acquired, claim, under common law, from any person other than the employer of such injured workman any addition al sum required to constitute, with the above-mentioned com pensation, an indemnification proportionate to the loss actually sustained.
See also the following decisions interpreting this section: Adam et Schering Corp. Ltd. v. Bouthillier 22 ; Henry v. McMahon Transport Limitée 23 ; Manchester Liners Limited v. Roussy 24 ; and The `Giovanni Amendola" v. Marjorie Manz LeVae 25 .
Even if the Quebec Workmen's Compensation Act applies, the said plaintiff Gloria Paré still retains his right of recourse against this defendant but can only obtain damages in excess of the $2,000 already received; the first $2,000 can be collected only by the Workmen's Compensation Commission.
ORDER
THE COURT ORDERS AND ADJUDGES THAT:
1. This motion be granted and the action against the three defendants Rail & Water Terminal (Quebec) Inc., Transport Desgagné Inc. and Le Groupe Desgagné Inc. be dismissed.
2. The names of these defendants be struck from the style of cause.
3. The claim against the defendant Les Chargeurs Unis Inc. may be prosecuted by the two plaintiffs.
4. The plaintiffs be entitled to amend their claim accordingly within ten days of the date of this order.
5. Since the same counsel was acting for the four defendants who presented a joint defence, and since the result is divided, the costs of this motion shall remain to be disposed of at the discretion of the judge hearing the action against the defendant Les Chargeurs Unis Inc.
22 [1966] Q.B. 6, see especially at bottom of page 23.
23 [.1972] C.A. 66, see especially at bottom of page 70.
24 [1965] Q.B. 454.
25 [1960] Ex.C.R. 492.
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