The plaintiff claims damages for personal injuries allegedly sustained when the Queen of Nanaimo, a ferry on which she was a passenger, collided with the dock at Mayne Island, British Columbia, on 3 August 2010. In addition to British Columbia Ferry Services Inc (BCF), the owner and operator of the ferry, the present applicants, Ulstein Maritime Ltd and Rolls Royce Canada Ltd, are also named as defendants in this action. They are alleged to have been involved in 'the design, construction, installation, maintenance, service, inspection, refit and/or repairs of the operating systems, equipment and/or machinery of the Ferry, including but not limited to those relating to its propulsion, braking and/or steering systems'.

The applicants seek a declaration under r 9-4 of the Supreme Court Civil Rules that any liability they may have to the plaintiff is subject to a monetary limit of about CAD 325,000. That limit is contained in the Athens Convention 1974, which is made part of Canadian law by the Marine Liability Act, SC 2001, c 6, s 37 (the MLA). The limit in the Athens Convention applies to claims against 'carriers' and their 'servants or agents' (art 7.1). BCF did not appear on this application, but for present purposes, is assumed to be a 'carrier'. The issue is whether the applicants qualify as 'agents' of BCF in order to gain the benefit of the monetary limit.

Held: Application dismissed.

Section 37 of the MLA gives the Athens Convention 1974 the force of law in Canada and extends its application to maritime transportation between places in Canada. Article 3.3 of the Convention makes a carrier liable for the negligence of its servants or agents and says: 'Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship'. A passenger, such as the plaintiff, who claims damages resulting from a collision therefore benefits from a presumption of negligence, which the defendant has the onus of rebutting. This presumption reverses the onus of proof, which is normally on the plaintiff. However, while giving a passenger the benefit of a presumption of negligence, the Convention also imposes a monetary limit on recoverable damages. Article 7.1 states in part: 'The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 175,000 units of account per carriage'. Article 11 extends the benefit of the monetary limit to servants or agents of a carrier acting within the scope of their employment. However, Article 13.1 removes that protection where it is proved that damage resulted from an act or omission 'done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result'.

The plaintiff’s primary pleading is that the Applicants were not agents of BCF, but independent contractors or subcontractors.

The applicants say that common law definitions of, and distinctions between, servants (employees), agents, and independent contractors do not apply to the interpretation of international agreements such as the Athens Convention. Those agreements are meant to apply in multiple jurisdictions under many different legal systems. In JD Irving Ltd v Siemens Canada Ltd, 2016 FC 69 (CMI3) [260], the Court said that in interpreting such Conventions it 'should not be controlled by domestic precedents, but rather by broad principles of general acceptance'. The applicants say that Conventions similar to the Athens Convention, and international jurisprudence on them, have established a broader definition of agency. Under that broader definition, an agent is anyone performing work for a carrier that the carrier would otherwise be required to perform itself. That definition can apply to an independent contractor, depending on what services the contractor performs. According to the applicants, the relevant distinction is between contractors who repair or maintain a vessel, including installing necessary equipment, and those who manufacture or modify a vessel or its components. The former are agents of the carrier; the latter are not. The applicants rely on the decision of the United States District Court, In Re Air Crash Disaster Near Peggy’s Cove, Nova Scotia on September 2, 1998, MDL No 1269, 2002 US Dist LEXIS 3308 (ED Pa), for that argument. At issue in that case was a motion by the defendants to dismiss all claims for punitive damages on the ground that such claims are precluded by the Warsaw Convention.

The plaintiff does not agree that the extended definition of agency applies, and says common law definitions remain relevant. The plaintiff relies in part on JD Irving Ltd v Siemens Canada Ltd, 2016 FC 287 (CMI117). In this second Irving decision, involving a different Convention and different liability limitation, Strickland J considered the questions of agency and vicarious liability with reference to Canadian authorities, and not international ones. In addition, Strickland J said (at [33]) that it is not clear that the policy considerations behind the limit of a shipowner’s liability were intended to extend to independent contractors.

This issue cannot be properly or appropriately answered under r 9-4. Even on the definition of agency that the applicants contend for, the allegations against them in the pleadings are not limited to matters falling within that definition. They include allegations related to design and construction as well as maintenance and repairs. And, even if the monetary limit might otherwise apply, the plaintiff seeks to use the exemption from it in art 13.1 of the Convention. The ruling that the applicants seek is not likely to be decisive or shorten the trial. Extensive evidence of what work the applicants performed, and how they performed it, will still be necessary. The point of law raised is not one that can be resolved without hearing evidence. It will be for the trial Judge to decide what the relationship was between the applicants and BCF, what work the applicants were engaged to perform, which of the applicant's acts or omissions, if any, caused or contributed to the collision, and whether those acts or omissions were negligent, deliberate, or reckless. The Court will only be in a position to consider how the provisions of the Athens Convention are to be interpreted and applied when the necessary findings of fact have been made.

Having found that the issue cannot be determined under r 9-4, there is no need to deal with the plaintiff’s submission that this application is res judicata, as a result of what was said by Kent J in a previous decision in this case. (That was a decision on an application to add the applicants as defendants in this action, and is indexed at Sperling v Queen of Nanaimo (Ship), 2014 BCSC 326 (CMI252).)