Fernandes Hearn LLP - Canadian Law Firm

April 2006

In The United Kingdom A Waverunner Is Not A Ship!

In another example of how British Courts and Canadian Courts appear to be parting ways in maritime law, the English Court of Appeal in R. v. Goodwin [2005] E.W.C.A. Crim 3184, held that a Yamaha Waverunner did not meet the definition of "ship" under the Merchant Shipping Act (U.K.). The case was recently appealed to the House of Lords and leave to appeal was refused.

The English Court of Appeal held that the waverunner was not a vessel "used in navigation". This has certain implications for owners of such vessels involved in accidents. The operator and owner, for example, may not be able to limit liability.

In Canada, under the Marine Liability Act, an owner and operator are entitled to limit liability for injuries and property damage to $1,000,000 for vessels under 300 tons. The Act defines in section 25 ship "any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion." The wording in section 25 has been modified from the previous wording in the Canada Shipping Act which simply defined ship as a vessel "used in navigation". The words "solely or partly for" navigation are slightly different.

The English Court of Appeal's ruling centers on the theme of the legislation. "The primary concern of this legislation is shipping carried on as a business." The Court goes on to find that operating a waverunner for pleasure does not meet this intent and further that "navigation" implies a purpose of going from one place to another. It therefore held that using a waverunner for thrills was not navigation.

Canadian courts have come to the opposite result. In Chamberland v. Fleming in 1984 (under the old wording used in the Canada Shipping Act "used in navigation") held that a jet ski operator could limit liability under the Canada Shipping Act. The Alberta Court of Queens Bench implicitly recognized that the jet ski was ship. Similarly the Supreme Court of Canada in Whitbread and Walley, in 1988 held that the provisions of the Canada Shipping Act relating to limitation of liability applied to pleasure craft. The argument that the intent of the Act, which was derived from the U.K. Merchant Shipping Act, was commercial application was rejected. In 1996, in Cox v. Brown, the British Columbia Supreme Court held that an operator of a vessel used in water skiing could limit liability under the Act. The vessel was "used in navigation" despite the fact there was no purpose of going from one place to another.

Certainly in Canada owners and operators of personal watercraft appear to be in a better position to limit their liability for personal injuries, death and property damage than their counterparts in the United Kingdom.