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:

1. The 2 year limitation period incorporated into the MLA by way of the Athens Convention 1974 does not apply to the simple ‘product liability’ claim made against the proposed additional defendants.
2. The 3 year ‘ultimate’ limitation period in s 140 MLA expires three years ‘after the day on which the cause of action arises’, a concept which engages the common-law principle of discoverability to the benefit of the plaintiff on the facts of this case.

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:

• Maritime law falls within the federal government’s exclusive jurisdiction over navigation and shipping under s 91(1) of the Constitution Act 1867. The limitation periods applicable to various marine liability claims are provided for in the MLA.
• By s 37 of the MLA, arts 1 to 22 of the Athens Convention 1974 have the force of law in Canada (including art 16, setting out the time bar for actions).
• In addition, s 140 of the MLA provides for a 3 year catch all limitation period from the day on which the cause of action arose. 

Discussing the Athens Convention, Kent J reiterated that:

• Art 3 creates a right of action by a passenger against a carrier for personal injury occurring in the course of the carriage due to the fault or neglect of the carrier.
• Art 6 provides for contributory fault on the part of the passenger to be taken into account. Articles 7 and 8 impose limits of liability on the part of the carrier for personal injury or damage to luggage respectively.
• Art 14 expressly bars actions against a carrier for damages for the personal injury of the passenger 'otherwise than in accordance with this Convention'.
• Art 16 addresses limitation periods, providing that any action for damages arising out of the personal injury to a passenger shall be time-barred after a period of 2 years from the date of disembarkation of the passenger.
• It also provides that the law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no cases shall an action under the Convention be brought after the expiration of a period of 3 years from the date of disembarkation of the passenger.

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.