On 27 March 1983, John Whitbread (the appellant) took a 32-foot pleasure craft called Calrossie from Coal Harbour located in the Inner Vancouver Harbour. Calrossie was owned by Robert Greenwood and John Horn (the second and third respondents) and registered as a ship under the Canada Shipping Act. The appellant set out for Wigwam Inn just north of the city of Vancouver. On the way the appellant asked his passenger, Robert Walley (first respondent) to take over the helm. The appellant then moved to a seat away from the controls and fell asleep.

While the first respondent was at the helm, the Calrossie hit rocks in an area of water known as Indian Arm. The appellant suffered spinal injuries that resulted in quadriplegia. The appellant sued the respondents in tort. The first respondent denied negligence but pleaded contributory negligence and applied for a declaration that he could limit his liability under ss 647 and 649 of the Canada Shipping Act RSC 1970 c S-9 (the Act), which mirror the provisions of the LLMC 1957, to approximately CAD 103,000 based on the statutory formula and the value of the gold franc at the time of the trial.

At first instance (CMI972) the Judge held that ss 647 and 649 of the Act did not, as a matter of statutory interpretation, apply to persons engaged in the operation of pleasure craft. On appeal the Court of Appeal of British Columbia (CMI973) reversed that decision. It held that Calrossie came within the definition of 'ship' in s 1 of the Act and that the Act was legislation in respect of 'navigation and shipping' and within Parliament’s jurisdiction under s 91(10) of the Constitution Act 1867.

The appellant was granted leave to appeal to the Supreme Court.

Held: Appeal dismissed.

The fundamental question of the appeal is whether, with reference to s 91(10) of the Constitution Act 1867, are ss 647 and 649 of the Act constitutionally valid and constitutionally applicable to this action?

The question whether ss 647 and 649 of the Act are 'constitutionally applicable to this action' only arises if it becomes apparent that they are within federal competence when applied to certain types of suits, such as those arising in the context of commercial shipping, but beyond federal competence if applied to suits arising, as here, from the operation of pleasure craft. The question will then be whether the impugned provisions should be 'read down' in accordance with a presumption of constitutional validity.

The first question to arise is that of the 'pith and substance' of ss 647 and 649. If ss 647 and 649 are found to be legislation that is in pith and substance in relation to matters within Parliament's exclusive jurisdiction over navigation and shipping, the inquiry is at an end, for it would then be immaterial that they also affect matters of property and civil rights.

The decisions of this Court in International Terminal Operators Ltd v Miida Electronics Inc 1986 CanLII 91 (SCC), [1986] 1 SCR 752 (ITO) and QNS Paper Co v Chartwell Shipping Ltd 1989 CanLII 35 (SCC), [1989] 2 SCR 683 (Chartwell), leave no room for any other conclusion than that the impugned provisions are in pith and substance legislation in respect to the body of uniform federal law that is compendiously referred to as Canadian maritime law. It follows that they are intra vires Parliament, and that this conclusion is in no way dependant on any application of the double aspect or necessarily incidental doctrines.

The failure of the parties to deal with ITO and associated cases may also have been caused by an assumption that Canadian maritime law does not encompass tortious liability arising from accidents that occur on a body of water such as Indian Arm, which is within the province of British Columbia, rather than on the high or Canadian seas. Such an assumption would be erroneous, however. This Court made it clear in ITO, at p 779, that Canadian maritime law was: ' "the maritime law of England as it has been incorporated into Canadian law", and it is in turn clear that the maritime law of England was not limited to torts committed on the British or high seas but extended to torts committed within the ebb and flow of the tide'. When one considers that much of maritime law is the product of international Conventions, it would be incredible if the legal rights and obligations of those engaged in navigation and shipping arbitrarily changed as their vessels crossed the point at which the water ceased or, as the case may be, commenced to ebb and flow.

Legal uniformity is particularly pressing in the area of tortious liability for collisions and other accidents that occur in the course of navigation. As is apparent from even a cursory glance at any standard text in shipping or maritime law, the existence and extent of such liability falls to be determined according to a standard of 'good seamanship', which is in turn assessed by reference to navigational 'rules of the road' that have long been codified as collision regulations. It is self-evident that the level of government that is empowered to enact and amend these navigational 'rules of the road' must also have jurisdiction in respect of the tortious liability to which those rules are so closely related. Parliament's power to enact collision regulations has never been challenged; nor has it ever been contended that these regulations do not apply to vessels on inland waterways. They are in fact routinely applied to determine the tortious liability of such vessels. It follows that the tortious liability of the owners and operators of these vessels should be regarded as a matter of maritime law that comes within the ambit of Parliament's jurisdiction in respect of navigation and shipping.

It is also clear that Parliament must, as a matter of practical necessity, have jurisdiction in respect of the tortious liability of pleasure craft as well as that of commercial vessels. It may be the case that pleasure craft and commercial vessels will to some degree operate in different geographic spheres, the former predominating on many bodies of inland water and the latter predominating on waterways that come within the traditional domain of maritime law. But it follows from the commercial use of inland waterways that the two types of vessels will in many circumstances share the 'same navigational network'. This is the case not only because commercial vessels regularly ply the inland waterways but also because the phrase 'pleasure craft' encompasses everything from the small motor boat to large ocean-going yachts. The connection between tortious liability for negligent navigation and the navigational rules of the road comprised in the collision regulations would be just as applicable to the meeting of a pleasure craft and a commercial ship as it would be to the meeting of two commercial ships. Pleasure craft and commercial ships share the same waterways and (in many cases) the same port facilities 'so that their operations are necessarily closely integrated'. This integration points to the need for a uniform regulatory and legal regime in the case of navigation and shipping as much as it does in the case of aeronautics. It points, in other words, to the need for a broad reading of the relevant head of federal jurisdiction.