Bradley Buckley and his father, Joe William Buckley, went fishing on the Lund Outfitter, operated by Joe William Buckley. James Buhlman operated the Crestliner with Bradley Buckley’s two young children as his passengers. The two vessels were owned by Eagle Lake Sportsmen’s Lodge. Use of the boats was included in the vacation package purchased by the Buckley family. On the return trip to the lodge, the Crestliner collided with the Lund Outfitter. As a result of the collision, Bradley Buckley and Joe William Buckley were injured. The Buckleys sued Buhlman for negligence, launching a claim for CAD 8.2 million plus interest and costs. Buhlman brought this limitation of liability action.

Held: The motion for summary judgment would be granted. Buhlman's liability to the Buckleys would be limited to CAD 1 million pursuant to s 28(1) in Part 3 of the Marine Liability Act SC 2001, c 6, (the MLA) exclusive of pre-judgment interest.

Part 3 of the MLA is based on the LLMC 1996. Part 4 of the MLA is based on the Athens Convention 1974. Part 4 of the MLA was addressed by Justice Brown of the British Columbia Supreme Court in Cuppen v Queen Charlotte Lodge Ltd (2005), 2005 BCSC 880, 32 CCLT (3d) 103 [88]-[89]:

Part 4 of the Act provides for liability for carriage of passengers by water. For Part 4 to apply, the plaintiff must be a passenger for the purposes of the Convention (the Athens Convention, Part 1 of Schedule 2 to the Act). Article 1(4) of the Convention defines a passenger as the person carried in a ship, under a contract of carriage, or one who accompanies a vehi-cle [sic] or live animal which are covered by a contract for carriage of goods. A contract of carriage is defined as a contract made for the carriage by sea of a passenger. The carrier is defined as a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier.

Part 4 of the MLA clearly applies to the normal contract of carriage ie that of one who is carried from one point to another by a carrier. The Buckleys were not under a contract of carriage for the purpose of being 'carried from one point to another by a carrier', so Part 4 of the MLA does not apply. It has also been held that Part 3 of the MLA applies to pleasure craft, while Part 4 does not; see Gundersen v Finn Marine Ltd (2008), 2008 BCSC 1665, 302 DLR (4th) 266.

Section 28(1) in Part 3 of the MLA applies to 'maritime claims', defined as being a claim described in art 2 of the LLMC 1996 for which a person referred to in art 1 of the LLMC 1996 is entitled to limitation of liability. The Buckleys' claims clearly falls within the scope of art 2.1.a of the LLMC 1996. The injuries sustained occurred aboard a ship, the Lund Outfitter, and in direct connection with the operation of another ship, the Crestliner. Canadian maritime law applies to incidents involving non-commercial vessels that occur on wholly inland navigable waterways: Whitbread v Walley [1990] 3 SCR 1273. It is also common ground between the parties that the two ships involved in the incident were each approximately 20 tons, well within the tonnage amount referred to in s 28(1) of the MLA.

There is also no doubt that the Buckleys' claim was a 'maritime claim' within the meaning of s 28(1) of the MLA. The definition of 'maritime claim' in s 24 of the MLA incorporates by reference art 2.1.1 of the LLMC 1996, which includes claims for 'personal injury … occurring on board or in direct connection with the operation of the ship'. The 'ship' here meant the ship seeking to limit liability. The Buckleys sought recovery for injuries sustained 'in direct connection with the operation' of the Crestliner.

Section 28(1) of the MLA sets out the maximum liability for a maritime claim as being either CAD 1 million for claims for loss of life or personal injury and CAD 500,000 for any other claim, other than the claims 'mentioned in section 29'. One of the questions to be determined was accordingly whether s 29 of the MLA applied. In their submissions, counsel for both parties focused on the nature of the operation of the two pleasure craft; ie, whether it was for commercial or recreational purposes. Heneghan J held that this focus was misplaced. It was not the purpose of the 'voyage' that was the subject of ss 28 and 29 of the MLA, but the role of the vessel for which limitation of liability was sought. The key question was the status of the Buckleys in relation to the Crestliner (whether the Buckleys were on board the Lund Outfitter for a commercial or recreational purpose was irrelevant).

To engage s 29(1) of the MLA, the individual claiming damages had to be a ‘passenger’ on the vessel said to be liable. For the purpose of this subsection, 'passenger' was defined by reference to art 7.2.a or art 7.2.b of the LLMC 1996, namely 'under a contract of passenger carriage' or someone accompanying a vehicle or livestock under a contract for the carriage of goods. Since neither of the Buckleys fitted the definition of a 'passenger' on the Crestliner vessel, s 29(1) of the MLA did not apply. Similarly, in order to engage s 29(2) of the MLA, the injured person must be claiming against the vessel on which they were aboard. The Buckleys were not aboard the Crestliner. They were not 'persons carried on a ship [that is, the Crestliner] other than under a contract of passenger carriage' as described in s 29(2) of the MLA.