By her notice of civil claim, filed 2 August 2012, the plaintiff sought damages for personal injuries sustained when the ferry Queen of Nanaimo hit the dock at the Village Bay Terminal on Mayne Island on 3 August 2010. The plaintiff was a passenger on the ferry and she alleges that the ‘hard docking’ caused her to be thrown from her chair and to strike her head on a nearby pole.
The notice of civil claim, which was entitled at least in part as an ‘admiralty action in rem against the ship Queen of Nanaimo and in personam’, sued the ship itself, its owners, BC Ferry Services Inc, Prime Mover Controls Inc and three loosely identified defendants called John Doe 1, ABC Company and John Doe 2.
The plaintiff now applied to either correct a pleading ‘misnomer’ by amendment or alternatively to add parties as defendants in the lawsuit.
The proposed defendants opposed the application primarily on the ground that the plaintiff’s claim was barred by the federal legislation governing maritime negligence law, namely the Marine Liability Act, SC, 2001 (the MLA).
The plaintiff argued, among other things, that:
The application was filed on 2 August 2013, 3 years less a day from the date of accident.
Held: There was insufficient particularity to ‘point the litigating finger’ at any distinct person and unlike the circumstances described in previous cases, this was clearly not a case of ‘true’ misnomer but was in truth an application to add new parties.
The court rule applicable to adding parties to an application requires consideration of whether it would be ‘just and convenient’ to have those issues determined by adding the proposed defendants as parties.
Turning to the limitation issue, the court held:
Discussing the Athens Convention, Kent J reiterated that:
As to whether the 2 year limitation period pursuant to art 16 of the Athens Convention applied to the plaintiff’s proposed claim against the new defendant, Kent J held that, while many, indeed most, of the provisions in the Athens Convention 1974 expressly refer to ‘the carrier’, art 16 contains no such limitation. It simply refer to ‘any action for damages arising out of … personal injury to a passenger’. The words ‘any’ and ‘arising out of’ have broad application and, on one reading, could capture the proposed claim against the proposed new defendants.
In the absence of Canadian case law on this point, regard would be had to the Scottish case, Cairns v Northern Lighthouse Board [2013] CSOH 22, where the Court held, among other things, that the Athens Convention 1974 had no application to the plaintiff’s claim against her employer, who was not a carrier but liable to the plaintiff as her employer. In consequence, the claim against her employer was not time-barred as the time limitation in the Athens Convention 1974 did not apply.
Kent J accordingly held the correct interpretation of art 16 of the Athens Convention 1974 was to limit its application to carriers. It was apparent from reading the entire Convention that its whole purpose was to address liability of carriers, and it made sense for the limitation period provided by art 16 to be similarly restricted.
Turning to s 140 of the MLA, which provides for a 3 year time limit from the day on which the cause of action arose, Kent J held that the common law ‘discoverability principle’ applied, and time would begin to count in this case at the earliest from when the investigation report was first provided to the plaintiff’s counsel. Three years from that date had not yet expired, so the plaintiff’s present application was in time.
Kent J went on to hold that Ulstein Maritime Ltd and Rolls-Royce Canada Limited would be added as defendants in the action, but Kamewa Canada Inc, Rolls-Royce PLC and Vickers PLC would not, as it was neither just not convenient for the latter claims to proceed.