A recent decision of the Supreme Court of British Columbia, Sperling v. Queen of Nanaimo (Ship), 2014 BCSC 326, clarified issues arising out of the potential conflict between maritime limitations and provincial limitations statutes:
- Passenger claims for injury arising out of carriage by sea are Maritime Law Claims;
- The 2-year time-bar under Art 16 of the Athens Convention applies only to carriers, not other potential defendants; and
- The 3-year time-bar under s.140 of the MLA applies to marine liability claims not otherwise subject to a specific time-bar under that Act.
Canadian Maritime Law is a with the subject-matter jurisdiction of the federal government under s.91 of the Constitution Act 1867 and of the Federal Courts under ss.2 and 22 of the Federal Courts Act. The provisions of the Athens Convention are adopted into Canadian Maritime Law under Part 4 of the Marine Liability Act (MLA), including the time bar for claims in respect of death of or injury to passengers at Art 16.1:
Any action for damages arising out of the death of or personal injury to a passenger or for the loss of or damage to luggage shall be time-barred after a period of two years.
Additionally, the MLA has a general time bar provision at s.140:
Except as otherwise provided in this Act or in any other Act of Parliament, no proceedings under Canadian maritime law in relation to any matter coming within the class of navigation and shipping may be commenced later than three years after the day on which the cause of action arises.
B.C. law also provides for a standard two year limitation period at s.6 of its new Limitation Act. Unlike the Athens Convention, however, B.C. law also provides a “discoverability rule” such that the time-bar runs only from the time the plaintiff discovers the basis for the defendant’s liability (if not immediately known), rather than the date of the accident. Also, under B.C. procedural rules, on a motion to join a party to the action the Court was entitled to add a party if “in the opinion of the court it would be just and convenient”: the expiry of a limitation period is only a factor in a joinder decision, not necessarily a bar.
The plaintiff alleges that she was injured when the passenger ferry Queen of Nanaimo struck the dock at the Village Bay Terminal on Mayne Island, British Columbia, on 3 August 2010. She brought her claim against the vessel in rem, the carrier BC Ferries, as well as ‘John Doe’ individuals and corporations, in August 2012, one day before the two year anniversary of the incident.
An investigation into the incident revealed that mechanical problem contributed to the incident, implicating two suppliers not named in the report: Kamewa and Rolls Royce. This investigation report was provided to the plaintiff’s counsel in May 2011 (prior to the issuance of the original Statement of Claim) but it was not until nearly three years after the incident that the plaintiff brought a motion to add those parties.
The proposed defendants resisted based on the strict 2-year limit in the Athens Convention; the plaintiff argued that B.C. laws on discoverability and joinder should apply to the Athens Convention limit to save their claim. The plaintiff also argued that the motion was merely to ‘correct’ the John Doe names to proper names, and was not the addition of a party at all.
The Court rejected the plaintiff’s argument that the Claim was merely being “corrected” from the “John Doe” names to the names of the proposed defendants. While this is in fact the practice, it requires that the allegations contain sufficient specificity that the alleged tortfeasor could recognize themselves (see paras. 21-29). In this case, the allegations against the John Doe individuals and ABC Company were so vague that they could compass hundreds of individuals and companies.
In analyzing the 2-year limitation on passenger claims at Art 16, however, the Court found that while the article was not specifically limited to carriers, the section pertained to limitations and defences for the carrier as against the passenger, and therefore that the 2-year time bar applied only in favour of carriers against passengers, and not in favour of the proposed manufacturers.
The Court had no difficulty identifying the claim as being one subject to Canadian Maritime Law, however, and accordingly the motion to add the proposed defendants had been brought prior to the expiry of the general 3-year time-bar at s.140 of the MLA. So, the claim will proceed against the manufacturers.
Accordingly, it was not necessary for the Court to consider either whether the plaintiff had exercised due diligence in trying to discover the identity of the manufacturers or whether the discoverability principle under B.C. law would apply to time-bars imposed under Canadian Maritime Law, interesting issues that will wait for another case to be determined.
The plaintiff enjoyed only partial success on the motion, however, because their attempt to add the parent companies of each of the manufacturing entities was rejected.
The Constitution Act, 1867, 30 & 31 Vict, c 3
Federal Courts Act, RSC 1985, c F-7
Marine Liability Act, SC 2001, c 6
Sperling v. Queen of Nanaimo (Ship), 2014 BCSC 326 (CanLII)
Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL)
Adoption: 13 December 1974; Entry into force: 28 April 1987;
2002 Protocol: Adoption: 1 November 2002; Entry into force: 23 April 2014
Limitation Act, SBC 2012, c 13