Tham Van Nguyen (the plaintiff) was a passenger on a boat owned and operated by Trung Quang Le (the defendant). The defendant was operating the boat on the Fraser River, at or near Matsqui Bar, when he suddenly steered left, causing the plaintiff to fall from the boat into the water. The plaintiff was struck by the boat propellors and injured. The accident was caused solely by the negligence of the defendant.

On 31 July 1995, the defendant filed an amended statement of defence in which he pleaded the applicability of certain provisions of the Canada Shipping Act RSC 1985 c S-9 (the Act). The defendant said that, although he was liable to the plaintiff, according to ss 575, 577 and 579 of the Act his liability was limited. On 2 July 1996, the plaintiff wrote to the defendant seeking his consent to the filing of an amended statement of claim. The proposed amended statement of claim included certain 'housekeeping' amendments as well as further particulars of the plaintiff's alleged injuries and loss. The amendments concerned the particulars of negligence. The defendant opposed the proposed amendments. On 29 January 1997, the plaintiff filed a reply which he delivered to the defendant on 31 January 1997, in which the plaintiff merely denied that the defendant was entitled to the benefit of the provisions of the Act. The plaintiff said that the accident occurred with the actual fault or privity of the defendant.

The plaintiff applied for leave to amend his statement of claim and reply. Leave was required as this action had been set for trial.

Held: Application denied.

The Act provides certain limitations of liability for the owners, operators, masters and crew of ships which fall within its ambit. Where the owner of a ship and its master are different persons, the effect of the sections seems clear. According to s 575, the owner's liability for personal injury suffered by a person on board the ship is limited if the injury occurred without the owner's actual fault or privity. According to s 577(1)(c), if the ship is managed by or operated by some other person, the limitation of liability is extended to that manager or operator if the injury occurred without the actual fault or privity of the manager or operator. Furthermore, the limitation of liability is extended to 'any person acting in the capacity of master', whether the injury occurred with or without that person's actual fault or privity.

Moreover, it appears from Walithy Charters Ltd v Doig (1979) 15 BCLR 45 (SC) that the applicable law is as follows. Where a person is both the owner and the master of a ship and where that person's negligent acts or omissions cause personal injury and damage to a person onboard the ship, that person is not entitled to limit his or her liability pursuant to s 575 of the Act because it cannot be said that the injury occurred without the person's actual fault or privity. However, if the person can prove (the onus being upon him or her) that he or she commits the negligent acts or omissions while he or she is acting in the capacity as master and not while acting in the capacity as owner, ie performing the functions associated with the master as opposed to those associated with the owner, then his or her liability will be limited, not by the operation of s 575 but by the operation of s 577, because he or she will then fall within the definition of 'any person', albeit an owner, 'acting in the capacity of master'.

It will be proper for the plaintiff to plead in reply which of the acts or omissions of the defendant which causes or contributes to the plaintiff's injury are committed by the defendant while acting in the capacity of owner of the boat so as to identify the facts which, according to the plaintiff's argument, will take the case outside of s 577 of the Act. But the reply cannot raise a new cause of action nor should the reply plead new particulars of the defendant's negligence. They ought to be pleaded in an amended statement of claim. In a case such as this where the owner and master are the same person, and it is that person's conduct alone which is alleged to be negligent, it is hard to understand how it would be possible to allege, by way of reply, some act or omission which contribute to the injury in respect of which the owner is actually at fault or to which he is privy which is not one of the particulars of negligence upon which the plaintiff relies in asserting his cause of action.

The plaintiff suggests that the allegations in the proposed amended reply are of the same essential character as those in the amended statement of claim and do not allege additional particulars of negligence. It seems that the plaintiff, in alleging that the accident occurred with the actual fault or privity of the defendant has formulated the amended reply in an attempt to take the case out of s 575 of the Act. The plaintiff has misunderstood the effect of Walithy Charters Ltd v Doig. Because the owner and master are the same, s 575 of the Act is not available to him. He is actually at fault and privy to every negligence or omission. Therefore, it makes no sense in this situation nor is there any need for the plaintiff to resort to the artificial device of pleading that the defendant (as owner) permits himself to do something (as master) or fails to prevent himself from doing something (as master) or fails to properly instruct himself (as master).

Therefore, the Court will not permit the reply to be amended as sought, though the Court will permit an amended reply which identifies those particulars of negligence in the amended statement of claim which the plaintiff alleges relate to the defendant in his capacity as master of the ship.