LIMITATION OF LIABILITY: INJURY FROM BUNGEE CORD
"INVOLVING A SHIP"
Isen v. Simms, 2004 FC 227
A boat owner was attempting to fasten a bungee cord
to a cleat on the port stern gunwale. As he checked to see if it
was secure, the hook slipped from his fingers, flew across the width
of the boat and struck the plaintiff's eye. In the action of the
plaintiff for damages against the boat owner, the latter brought
an application in Federal Court to limit his liability under Section
577 of the Canada Shipping Act (now the Marine Liability Act).
Section 577 of the Canada Shipping Act provided that
the maximum liability of a shipowner for claims arising on any distinct
occasion "involving a ship" with tonnage of less than
300 tons, is in respect of claims for loss of life or personal injury,
The issue was whether the incident was one "involving
The owner described the incident as involving a bungee
cord, not a ship. The court disagreed, holding that this interpretation
of the word "involve" was overly narrow, and not consistent
with either the case law or the dictionary definitions provided
The court observed that the word "involved"
does not import any element of cause or contribution to a particular
accident. In the words of the court:
Applying this broader concept of the word, the incident,
on first impression, implied that the ship was present, that the
incident related to the ship and that the ship was entangled in
the events that occurred. The presence of the ship in this case
was not merely fortuitous, nor was it a simple background feature.
Rather, it was a central actor in the events that unfolded. Put
simply, the ship's engine is what necessitated the cover and bungee
cord. Without a ship, therefore, the bungee cord would have had
no purpose. For this reason, it cannot be said that the presence
of the ship was merely fortuitous.
In addition, the court found that the act of hooking
the bungee cord to the ship was with a view to prevent the ship
cover from flapping in the wind, an act of securing the ship and
its apparel analogous to the mooring of a ship.
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