Sea-Link Marine Services Ltd. et al. v. Doman Forest Products Limited

In Carriage of Goods by Sea on (Updated )

A cargo of lumber was partially lost during carriage on “SEA-LINK YARDER” a dumb barge under tow between ports on Vancouver Island. During a portion of the transit on the outer coast of Vancouver Island the tug and tow encountered heavy weather and the cargo shifted resulting in loss of some cargo and damage to the barge. A claim was initially made for damage to the cargo and the barge owner counterclaimed for damage to the barge. The cargo claim was settled and discontinued and the action proceeded on the counterclaim. The carriage was subject to an agreement that placed responsibility for loading and lashing on the shipper. The tug crew had inspected the lashing, recommended additional lashings and attached the lashing to the barge’s side wall fittings. The lashing was done by the crew because the shipper’s employees were concerned about doing so. This was the second voyage between the parties. In the previous voyage, the tug crew had told the shippers more cargo could be loaded next time. No information had been provided to the Master by the owner as to the barge’s load lines or stability or the amount of cargo it could carry. The Court held that the agreement placed responsibility for loading on the shipper and the tug crew did not intermeddle in the loading with respect to the lashing. The shippers argued that the barge owner, if held partially responsible, could not recover as the damages could not be separated, however, referring to Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, the Court held that principles of contributory negligence could be applied in maritime law. The shippers also argued that the tug Master had been negligent in proceeding with the tow or continuing with the tow given the weather forecasts for gales and the actual weather conditions. The Court found no negligence in this regard. The shippers also argued that the barge was unseaworthy on various grounds including that the Master did not know how much cargo it could carry and the barge was loaded below its load lines. The Court, however, found the barge was not unseaworthy. Nevertheless, the Court did find that there were errors on the part of the Defendants and apportioned liability 60% to the shippers and 40% to the Defendants. Unfortunately, the particular faults of the Defendants warranting the apportionment are not clear from the judgment.