May 2004

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, $1,000,000.00.

The issue was whether the incident was one "involving a ship".

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 by them.

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.
RVA