Mr Snair (the appellant) was the owner of a Boston Whaler. Boston Whalers 'plough' the water at low speeds and 'plane' or skim the surface at speeds above 15 miles per hour. Between plowing and planing, the bow is raised and motion is wobbly; forward visibility is limited, but the craft levels and visibility are restored when it begins to plane. On the evening of 12 August 1988, the Boston Whaler collided with an anchored yacht, the Wind Shadow II, owned by Mr Snow. The yacht had no lights on. Mr Snair had been turned to Ms Conrad (the respondent) while talking to her. When he glimpsed the sailboat out of the corner of his eye, he took vigorous and appropriate evasive action, swinging hard to his right, but was a fraction of a second too late to avoid the accident. The respondent suffered severe head injuries. The guardians of the respondent brought an action on her behalf against the appellant.

The Supreme Court of Nova Scotia found that the appellant was solely to blame for the accident because he had been travelling at an excessive speed without keeping a proper lookout. The Court also found that the appellant was not entitled to limit his liability under ss 575 and 577 of the Canada Shipping Act, RSC 1985 c S-9 (the Act): see Conrad v Snair (CMI997).

The appellant appealed. The two most substantial issues on appeal were whether Mr Snow should be found to have caused or contributed to the accident because his boat did not display an anchor light and whether the appellant should be entitled to limit his liability as owner of the Boston Whaler because he was operating it as master pursuant to s 577 of the Act.

Held: Appeal dismissed.

Canadian maritime law, including jurisdiction over tortious liability arising out of collisions in navigable waters, is under exclusive federal jurisdiction: Whitbread v Walley [1990] CanLII 33 (SCC), [1990] 3 SCR 1273, 1289 (CMI961). The Act applies to pleasure craft as well as to commercial vessels.

The first instance Court was right to find that the appellant must bear full responsibility for causing the damages suffered by the respondent.

The first instance Court correctly interpreted the law and applied it to the facts. The key finding is that the appellant's faults, in his capacity as owner, 'were contributing factors leading to the accident'. The first instance Court's conclusion would ordinarily have disposed of the matter. Still, it does not fully address the appellant's argument on appeal that he is entitled to shelter as the owner behind the limitation on his liability as the master.

Under s 575 of the Act, only an owner can limit his liability. Section 577 extends that limitation to charterers or others with an interest in the ship analogous to that of the owner. What is extended, however, is defined in s 575 which must be seen as the governing provision. Where s 577 causes difficulty is in the last paragraph, which begins by extending that limitation to masters or crew members but ends by excluding the key provision of 'actual fault or privity' inherent to the s 575 limitation on liability. It is on that portion of s 575 that the appellant bases his argument that the limitation on the appellant's liability in his capacity as the master has the effect of limiting his liability as the owner.

The liability of owners who are also masters would always be limited if they could shelter behind the limitation of the master. Section 575, with its requirements as to 'actual fault or privity', would not apply to them. This appears to be contrary to the intention of the statute. It can lead to such anomalies as the owner-master of a vessel who caused damage because he or she failed to equip the ship properly, or failed to engage a competent crew, seeking to limit his or her liability by proving that he or she operated the boat negligently in his or her capacity as the master.

LLMC 1957 is the source of s 575 of the Act. Article 6.3 of the LLMC 1957 makes it clear that the contention of the appellant must fail. The limitation of liability accompanying the fault of the owner-master in his capacity as the master is a wholly different concept, resting on different principles and arising from different considerations, from the limitation of liability available to an owner-master in his or her capacity of the owner. One does not shelter the other. The LLMC 1957 is clear on this point. Sections 575 and 577 of the Act must be interpreted as giving expression to an international Convention to which Canada is a signatory nation. The language of the statute should not contradict with the language of the LLMC 1957.

The Act is clear. To limit liability under s 575, the appellant must discharge the heavy onus of showing himself free of actual fault or privity, in his capacity as owner. If he is also the master or a crew member, his liability in that capacity is limited under s 577. Whether or not the appellant enjoys limited liability under s 577 is not a consideration in determining whether he has a right to limit his liability in his capacity as owner under s 575. Unlike the LLMC 1957, the Act does not refer specifically to the owner-master. However, the principle stated above is the same, whether the owner and the master are two individuals or one individual acting in two different capacities.

For these reasons, the appellant's argument runs counter to the clear meaning of ss 575 and 577 of the Act as well as the LLMC 1957 and cannot be sustained.