Doug Cuppen (the plaintiff) was a guest of the Queen Charlotte Lodge Ltd (the defendant). The plaintiff was on a boat provided by the defendant when the boat veered suddenly to the left and went into a hard spin. The plaintiff was injured in the boating accident and brought this action seeking damages for personal injury, loss of income and loss of opportunity from the defendant. The defendant submitted, and the plaintiff acknowledged, that the Marine Liability Act, SC 2001, c 6 (the Act) applied to limit the amount of damages the plaintiff might recover in this action. The plaintiff submitted that the applicable section was Pt 3, s 28(1) of the Act, which provided for a maximum liability of CAD 1 million. The defendant argued that Pt 4 of the Act applied and the limit of liability was CAD 350,000.

Held: The plaintiff's action was allowed.

Part 4 of the Act provides for liability for the carriage of passengers by water. For Pt 4 to apply, the plaintiff must be a passenger for the purposes of the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention 1974). Article 1.4 of the Athens Convention 1974 defines a passenger as the person carried in a ship, under a contract of carriage, or one who accompanies a vehicle 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 the contractual carrier or by a performing carrier.

Part 4 of the Act clearly applies to the normal contract of carriage of passengers, namely, that where passengers are carried from one point to another by a carrier. The plaintiff did not have a contract of carriage with the defendant. The defendant provided the plaintiff with a boat so that he could fish while he was a guest at the lodge. Thus, the Court concluded that Pt 3, s 28 of the Act applied to this claim, and that the limitation of liability is CAD 1 million.