On 27 March 1983, John Whitbread (the plaintiff) took a 32-foot pleasure craft Calrossie from Coal Harbour located in the Inner Vancouver Harbour. Calrossie was owned by Robert Greenwood and John Horn (the second and third defendants) 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 plaintiff asked his passenger, Robert Walley (first defendant) to take over the helm. The plaintiff then moved to a seat away from the controls and fell asleep.

While the first defendant was at the helm, the Calrossie hit rocks in an area of water known as Indian Arm. The plaintiff suffered spinal injuries that resulted in quadriplegia. The plaintiff sued the respondents in tort. The first defendant 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 in 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.

The plaintiff submitted, first, that ss 647 and 649 violate ss 7 and 15 of the Canadian Charter of Rights and Freedoms, Pt I of the Constitution Act, 1982, being Sch B of the Canada Act 1982 (UK), 1982 c 11. Second, the Act, properly construed, applies only to persons engaged in the business of shipping or other maritime commerce, and does not apply to a pleasure yacht such as the Calrossie. Third, the first defendant was not at the time of the accident a master of the Calrossie, and was therefore not entitled to protection under s 649 of the Act. Fourth, ss 647 and 649 violate s 1 (b) of the Canadian Bill of Rights RSC 1970, App III.

Held: Judgment for the plaintiff.

In order to promote or encourage maritime commerce, there may be a need to limit liability on the owners and masters of commercial vessels as was done by ss 647 and 649. However, there is no such need (in the interest of promoting maritime commerce) to create legislation protecting owners and masters of pleasure vessels such as the Calrossie. Looking at the authorities giving consideration to the purpose of the Act, it is clear that Parliament did not intend that ss 647 and 649 would have application to owners and masters of pleasure vessels such as the Calrossie.

The Act dates back many years, to a time when the only definition of a ship was a 'vessel used in navigation, not propelled by oars'. Given this definition, what ships, if any, were intended to be excluded from the Act? The answer is those propelled by oars which, no doubt, were vessels used as pleasure craft. The legislature must have intended to exclude non-commercial ships used exclusively for pleasure.

Sections 647 and 649 are within the competence of Parliament. The sections should be 'read down' to exclude limitation of liability in respect of non-commercial ships used exclusively for pleasure and, in particular, the Calrossie. In view of the finding respecting the validity of the limitation sections insofar as pleasure craft are concerned, it is unnecessary to resolve the issue as to whether or not ss 647 and 649 offend s 1(b) of the Canadian Bill of Rights, and the further question of whether or not the first defendant was a master of the Calrossie.

[For the successful appeal to the British Columbia Court of Appeal see Whitbread v Walley (CMI973).]