Facts: This was a summary trial on a point of law. The plaintiff sought damages when she was injured on a passenger ferry. The applicants, who constructed and supplied the ferry’s propulsion system, sought to limit their liability pursuant to Article 11 of the Athens Convention on the basis that they were “servants or agents” of the carrier. The applicants argued that an agent is anyone who performs work for a carrier that the carrier would otherwise be required to perform itself, thus bringing them within “agent” for the purpose of the Convention. The applicants argued that since the pleadings of negligence made against them were the same as the carrier, the plaintiff admitted the applicants did work the carrier would have otherwise had to perform itself. The plaintiff argued that the applicants were not agents but rather independent contractors or subcontractors of the carrier.
Decision: Application dismissed.
Held: The Court noted the decision of the Federal Court in J.D. Irving, Ltd. v. Siemens Canada Ltd. in which Strickland J. said it was not clear that policy considerations behind the limit of a ship owner’s liability were intended to extend to independent contractors. The Court could not infer that the pleadings were drafted with making the admission that the applicants were agents, finding the pleadings included allegations related to design and construction as well as maintenance and repairs. Extensive evidence of what work the applicants preformed and how they preformed it would be necessary, and the Court could not decide the point of law raised without hearing evidence of the relationship between the applicants and the carrier, including what work the applicants were engaged to perform and what acts or omissions of the applicants caused or contributed to the ferry collision. This would be for the trial judge to decide.