The respondent, Patricia Mackay, sought damages for the personal injuries she suffered as a result of a fall on board the appellant's vessel while on a whale-watching excursion. The appellant, Dana Russell, submitted that the action was time-barred. That submission raised two questions: first, whether rights and liabilities arising from a mishap such as the fall at issue here, should be determined on the basis of federal law. If the answer to this question was affirmative, then art 16.1 of the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention 1974), which had the force of law in Canada by virtue of s 37 of the Marine Liability Act, SC 2001, c 6 would apply. Article 16.1 prescribed a two-year limitation period and would bar the action. However, if the answer to the abovementioned question was negative, then the pertinent limitation period would be six years by virtue of s 9 of the Limitation of Actions Act, RSNB 1973, c L 8. The second question arose only if federal law applied, and it was whether a judge was at liberty to extend, suspend or interrupt the running of the limitation period imposed by art 16.1 of the Athens Convention 1974.

The trial Judge found that, first, the respondent's claim was in relation to navigation and shipping and therefore federal law, including art 16 of the Athens Convention 1974, applied. Second, art 16.1 of the Athens Convention 1974 prescribed a two-year limitation period for any action for damages arising out of personal injury to a passenger. Third, art 16.3 of the Convention could be used as a possible source to extend the two-year limitation period. This was because art 16.3 of the Convention was the legislative successor to s 572 of the Canada Shipping Act, RSC 1985, c S 9 and that both provisions dealt with the same subject matter. Section 572 prescribed a two-year limitation period for claims for personal injuries suffered on board a vessel caused by the fault of another vessel, but also expressly conferred on any court having jurisdiction the power to extend that period 'to such extent and on such conditions as it thinks fit'. The trial Judge concluded that Parliament, by adopting art 16.3 of the Athens Convention 1974, intended the same regime to govern 'suspensions and interruptions' in the running of the limitation period set by art 16.1 of the Convention. The trial Judge exercised a judicial discretion in favour of the respondent and ordered that the running of the two-year limitation period be deemed to have been suspended or interrupted: see MacKay v Russell 2006 NBQB 350 (CMI1101).

The appellant appealed on the ground that the trial Judge erred in concluding that he had jurisdiction to relax the two-year limitation period prescribed by art 16.1 of the Convention. The appellant contended that the trial Judge's conclusion grounded on a false premise, namely that art 16.3 of the Convention replaced s 572 of the Canada Shipping Act 1985, which, prior to its repeal, expressly invested Courts with power to extend the prescribed limitation period. According to the appellant, that false premise led the trial Judge to effectively rewrite art 16.3 of the Convention by adding a discretionary judicial power to suspend and interrupt limitation periods that was never intended by its drafters.

Held: Appeal allowed.

The trial Judge was right to find that Canadian maritime law applied. However, he was wrong to extend the two-year limitation period set by art 16.1 of the Athens Convention 1974 and erred in law in deeming the running of that period suspended or interrupted.

The Athens Convention 1974 applied to the carriage of passengers, both domestically and internationally. It also applied, subject to exceptions, to all passengers regardless of whether they were aboard under a contract of carriage. Therefore, the respondent's action was captured by the broad wording of art 16.1 of the Convention. The respondent conceded that the trial Judge erred in concluding that art 16 of the Convention was the legislative successor of s 572 of the Canada Shipping Act 1985 and in finding that both provisions dealt with precisely the same subject matter. In fact, art 16 of the Convention targeted any action for damages for personal injury to a passenger and did not provide for any judicial discretion to extend the limitation period. It was also noteworthy that art 16.3 of the Convention referred to the law of the Court seized of the case as the source for any grounds of suspension and interruption rather than extension or postponement. Article 16.4 of the Convention addressed the issue of extending the limitation period set by art 16.1. However, it only identified two means by which such an extension can be effected: first, a written declaration by the carrier; and second, an agreement in writing executed by the parties after the cause of action has arisen. In this case, however, neither of them had been fulfilled. Therefore, the trial Judge erred in law in concluding that he had jurisdiction, whether inherent or otherwise, to extend the limitation period prescribed under art 16.1.

According to authorities, the adoption of art 16.3 of the Convention also did not imply that the law of the Court seized with the case necessarily featured grounds for suspension or interruption. Neither party had unearthed federal legislation that would provide grounds for suspension and interruption within the meaning of art 16.3.