Facts: This was a summary trial dealing with the defendant’s limitation of liability. In October 2011 the defendant operated a vessel carrying five people to inspect a riverbank erosion site along a provincial highway. On the way back from the erosion site, the vessel hit a sandbar or other object and the plaintiff was injured. The defendant charged an hourly rate for the transportation which was paid by the company contracted by the Ministry of Transportation and Infrastructre to provide highway maintenance services on provincial roadways. The sole question was whether the defendant’s liability was limited by the Athens Convention having force in Canada through Part 4 of the MLA. To be decided by the Court was if plaintiff was on the vessel pursuant to a “contract of carriage”, and if not, whether the plaintiff was excluded from the Athens Convention by the exclusions set out in s. 37(2)(b) of the MLA.
Decision: Plaintiff was on board pursuant to a contract of carriage, exclusions under s. 37(2)(b) do not apply.
Held: Four elements are required for finding a “contract of carriage” under the Athens Convention exists:
- a contract;
- made by a carrier;
- for the “carriage by water”; and
- whether the plaintiff was a “passenger”.
The Court found there was a contract between the company contracted to provide highway maintenance services and the defendant to transport certain individuals on the vessel in exchange for payment, based on the defendant’s evidence and conduct of the parties. The Court then turned to decide if the contract was made by a “carrier”, holding that it was, finding the “carrier” was the Ministry of Transportation and Infrastructure and the company it contracted with to maintain the highway along the riverbank, with the “preforming carrier” being the defendant operator of the boat. The Court had no difficulty in finding that the trip was “carriage by water” as it was for the transportation of the plaintiff on the river. The Court rejected the plaintiff’s claim she was not a passenger as she was not privy to the contract of carriage, holding that the wording of s. 37(2)(a) MLA (“the carriage by water, under a contract of carriage, of passengers”) was drafted by parliament to delineate “the contract of carriage” from “passengers”. The effect of this drafting means a contract of carriage does not have to be made directly between the carrier and with the individual “passengers”. The Court found all elements of “contract of carriage” applied and therefore the Athens Convention applied to this case.
This was not the end of the matter as the Court was required to consider the exclusions under s. 37(2)(b). If one of the exclusions was applicable, the Athens Convention would not apply to the claim. The plaintiff argued she was “any other person employed or engaged in any capacity on the board a ship on the business of the ship”, therefore falling under the exclusion in 37(2)(b)(i). The Court looked to the discovery evidence of the vessel operator who made a distinction between the work conducted by the five persons on the vessel to review the riverbank erosion site, and his role as “just the guy driving the boat”. The Court found that the “business of the ship” was to transport the plaintiff and her colleagues, and as the plaintiff was not employed or engaged in the “business” of that transportation, the exclusion in s. 37(2)(b)(i) did not apply. The Court then examined the exclusion in 37(2)(b)(ii) which bars the Athens Convention from applying if the a person was carried on board a ship other than a ship operated by a commercial or public purpose. Although the defendant used the vessel for primarily for pleasure and did not insure the vessel for commercial purposes, the defendant provided his services for a fee, and the Court concluded that the vessel was used for a commercial purpose on the day the plaintiff was injured. With no exception applicable, the Athens Convention applied to this case.