T-1018-76
Navigation Harvey & Frères Inc. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Quebec, April 26;
Ottawa, May 13, 1977.
Maritime law — Negligence — Notice necessary to sue
Crown — Vessel damaged at federal wharf — Rocks on
mud-bottom — Low-tide mooring after defendant repaired
wharf — Crown Liability Act, R.S.C. 1970, c. C-38, ss. 4(4),
4(5).
The M/V Nord de l'Île, a schooner-type vessel owned by the
plaintiff, was damaged while moored at the defendant's wharf.
The accepted practice of the port is for the vessel to tie up to
the wharf while the tide is in, to go aground when the water
level drops to almost nothing, and to leave with its load when
the water level again is high enough. The damage occurred
when the vessel came to rest on a pile of large rocks that had
accumulated on the river-bed after rolling down the wharf,
during or shortly after a recent wharf repair operation. The
defendant argues that the proceedings are barred because the
plaintiff did not give the notice required by the Crown Liability
Act.
Held, the action is allowed. Although subsection 4(4) of the
Crown Liability Act requires notice in writing within seven
days, subsection 4(5) gives the Court the power to release
plaintiff from the failure held against him. Defence counsel
argued that subsection 4(5) only applies in cases involving the
death of the injured person, but such an interpretation would
make the provision meaningless. The section has a dual pur
pose. Firstly, it provides freedom from the obligation to give
notice in the case of death of the person injured. Secondly, in
all other cases (provided neither ice nor snow is involved) it
allows the person injured to be released from his failure to give
notice in writing if the judge is of opinion that the Crown was
not prejudiced thereby and that it would be an injustice to bar
the proceedings for that reason alone; the second reservation
appears most reasonable if one is to avoid attributing a purely
and strictly formal effect to this requirement of notice in
writing. Considering the personalities of the parties involved
and the circumstances surrounding the incident, the case at bar
would scarcely provide a more suitable opportunity for applying
the second reservation.
ACTION.
COUNSEL:
Pierre Blouin for plaintiff.
Yvon Brisson for defendant.
SOLICITORS:
Blouin, Legris & Simard, Quebec, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: Plaintiff is the owner of the M/V
Nord de l'Ïle, a small, flat-bottomed, schooner-
type, 350-ton vessel, which it has used for several
years to carry pulpwood between Trois-Pistoles
and Trois-Rivières on the St. Lawrence River in
the Province of Quebec. The boat is made to be
grounded regularly and is always loaded in the
same way at Trois-Pistoles: it ties up to the wharf
while the tide is in, goes aground when the water
level drops to almost nothing, and leaves again
with its load when the water is high enough.
On May 23, 1975, the Nord de l'Île was moored
at the wharf at Trois-Pistoles. While it was being
loaded in the usual way the captain realized that
the grounding was not occurring normally: he
heard "cracking sounds" suggesting that the boat
was not resting on a level surface, and he even
noticed that the cabin door frame was twisted
slightly. Later, when the tide came in again, it was
pointed out to him that water was getting into the
hold. The pumps were able to handle it, however,
and he felt the boat could leave as scheduled.
Upon arriving in Trois-Rivières, however, having
realized on the way that water was still getting in
and that the vessel appeared to be really damaged,
the captain lost no time in informing his employ
ers. It was easy to discover what had happened: the
damage had been caused when the vessel went
aground during loading on a pile of large rocks
that had accumulated on the river-bed after rolling
down from the wharf, the outer wall of which had
been repaired a few days earlier.
Plaintiff is asking defendant for $6,350 in losses
which it claims to have sustained as a result of
damage to its vessel. It bases this action on the
obligations incumbent on defendant as owner and
caretaker of the Trois-Pistoles wharf, for use of
which, moreover, defendant collects tolls. Plaintiff
charges defendant with neglecting to keep the
approaches to the wharf in good order by removing
the rocks which had piled up on the muddy
bottom, and which constituted an obvious danger
to vessels accustomed to go aground there, a
danger of which no warning was given to users
before the accident occurred.
Defendant acknowledges that the use, mainte
nance and repair of the wharf were her responsibil
ity and under her management, through her offi
cers and agents (Government Harbours and Piers
Act, R.S.C. 1970, c. G-9; Public Works Act,
R.S.C. 1970, c. P-38). She does not dispute the
presence of rocks on the river-bed where plaintiff's
vessel chose to go aground, or deny that the rocks
had fallen from the wharf, which she had been
obliged to repair a few days earlier. She also
admits that, once informed of the incident, her
officers lost no time in closing off the dangerous
part of the wharf until the necessary work could be
carried out. She claims, however, that plaintiff
failed to send the notice required by section 4(4) of
the Crown Liability Act, R.S.C. 1970, c. C-38 and
that the proceedings are therefore barred. She
adds that in any case it has not been proved that
the damage allegedly sustained by the vessel was
due solely to the small number of rocks accumulat
ed on the bank of the river, or that this damage
resulted in such large losses.
In my opinion, only one of these three means of
defence is valid.
1. I do not accept the argument of law based on
failure to give notice in writing. It is true that
subsection 4(4) of the Crown Liability Act
requires notice in writing within seven days, but
the following subsection immediately adds:
4. (5) In the case of the death of the person injured, failure
to give the notice required by subsection (4) is not a bar to the
proceedings, and, except where the injury was caused by snow
or ice, failure to give or insufficiency of the notice is not a bar
to the proceedings if the court or judge before whom the
proceedings are taken is of opinion that the Crown in its
defence was not prejudiced by the want or insufficiency of the
notice and that to bar the proceedings would be an injustice,
notwithstanding that reasonable excuse for the want or insuffi
ciency of the notice is not established.
This enactment gives me the power to release
plaintiff from the failure held against him, and I
intend to exercise this power. Counsel for the
defendant has maintained that subsection 4(5)
could not operate in this case, since in his opinion
it applies only in cases involving the death of the
person injured. Such an interpretation appears
inadmissible to me and would, moreover, make the
provision -meaningless. It seems clear to me that
the section has a dual purpose. First, it provides
freedom from the obligation to give notice in the
case of the death of the person injured; this first
reservation is easily understandable in view of the
ambiguous and uncertain situation brought about
by any death. Secondly, in all other cases (pro-
vided neither ice nor snow is involved) it allows the
person injured to be released from his failure to
give notice in writing if the judge is of opinion that
the Crown was not prejudiced thereby and that it
would be an injustice to bar the proceedings for
that reason alone; this second reservation also
appears most reasonable if one is to avoid attribut
ing a purely and strictly formal effect to this
requirement of notice in writing. Considering the
personalities of the parties involved and the cir
cumstances surrounding the incident, the case at
bar could scarcely provide a more suitable oppor
tunity for applying the second reservation. The
evidence indicates, moreover, that the authorities
were in fact informed immediately of what had
occurred, that on the following day they contacted
the captain of the damaged vessel and the presi
dent of plaintiff company, and that they immedi
ately took the necessary steps to protect future
users of the wharf. Defendant cannot claim preju
dice, and in my opinion it would be an injustice in
the circumstances to bar the proceedings solely
because formal notice in writing was not given.
2. I am further of opinion that the evidence
shows clearly that plaintiff's vessel was damaged
by running aground on the accumulated rocks, and
the resulting losses are defendant's responsibility
because her officers failed in their duty by not
taking care to correct an abnormal situation which
they knew existed and which they realized—or at
least should have realized—would be dangerous to
those using the wharf (cf. in particular, Don-
nacona Paper Co. Ltd. v. Desgagné [19591
Ex.C.R. 215).
3. Defendant is right, however, in arguing that
plaintiff has not proved all the damage it claims. I
am quite willing to take into account, as counsel
for the plaintiff urges me to do, the special circum
stances, in particular that the necessary repairs
could not be carried out immediately, and were
finally done in large part by the crew members
themselves using materials that plaintiff had in its
warehouses, and that in fact the people involved in
this case are a group of sailors from Île aux
Coudres who are not accustomed to use very accu
rate systems of accounting. The fact remains, how
ever, that this is a legal proceeding, and that in
assessing the losses sustained by a plaintiff, and
the earnings prevented, the Court cannot take into
account damages that are claimed but not ade
quately proved.
With regard to the damages claimed in para
graph 12 of the declaration and set out in detail in
the statement produced as Exhibit P-6, I accept
only sixty per cent of the first two items, taking
into account the fact that the damaged parts were
several years old, and moreover were not replaced
by new ones. Furthermore, I dismiss the claim for
the cost of labour, since the repairs were carried
out by crew members whose wages will be taken
into consideration later in assessing the earnings
prevented. However, I accept the amounts indicat
ed in connection with the last three items. This
leaves an amount of $2,330.40 under this first
heading.
With regard to the damages claimed in para
graph 13 for earnings prevented while the repairs
were being carried out, I accept the figure given in
the evidence of $300 per day, including the crew's
wages, or $900 for the three days of inaction.
With regard to the damages claimed in para
graph 14 for the cost of oil used by the vessel's
pumps between the time of the accident and the
time of the repairs, this need not be taken into
account since defendant is not responsible for the
fact that repairs were not undertaken immediately.
It is therefore my opinion, for the reasons just
indicated, that plaintiff is entitled to obtain from
defendant compensation for damage amounting to
$3,230.40, suffered on May 23, 1975 when its
vessel was damaged alongside the wharf at Trois-
Pistoles, Quebec.
Judgment will therefore be rendered according
ly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.