T-3308-76
Gloria Paré and Bernadette Caron Paré (Plain-
tiffs)
v.
Rail & Water Terminal (Quebec) Inc., Les Char-
geurs Unis Inc., Transport Desgagné Inc. and Le
Groupe Desgagné Inc. (Defendants)
Trial Division, Addy J.—Quebec, April 14;
Ottawa, April 29, 1977.
Maritime law — Jurisdiction — Action in Federal Court for
tort committed at sea — Action against employer barred by
Quebec Workmen's Compensation Act and the federal Mer
chant Seamen Compensation Act — Whether plaintiffs retain
a right of action under Maritime law — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 22 and 43 — Canada
Shipping Act, R.S.C. 1970, c. S-9, ss. 541, 647, 719 and 720
— Merchant Seamen Compensation Act, R.S.C. 1970, c.
M-11, ss. 12, 13 and 14 — Workmen's Compensation Act,
R.S.Q. 1964, c. 159, ss. 4 and 8.
The Aigle d'océan, a coaster described by the plaintiffs as a
leaky bucket, was shipwrecked causing the death of its chief
engineer, the plaintiffs' son. The defendants bring this applica
tion to dismiss the action on the grounds that the Court lacked
jurisdiction and that the action is barred under the Workmen's
Compensation Act. They also argue that the action is not
well-founded in law and that no legal relationship existed
between the plaintiffs and defendants, save Rail & Water
Terminal (Quebec) Inc.
Held, the application is allowed in so far as it refers to
Transport Desgagné Inc. and Le Groupe Desgagné Inc. for no
legal relationship was shown to exist between them and the
plaintiffs. The application is allowed with respect to the sea-
man's employer, Rail and Water Terminal (Quebec) Inc. the
charterer. Both the Merchant Seamen Compensation Act and
the Workmen's Compensation Act bar the employee himself, or
in the case of a deceased employee, his dependents, from
instituting a court action for any accident which occurred
during the course of his employment. On the other hand,
maritime law gives the parents of the deceased sailor the right
to bring an action against the person responsible, and it is not
necessary for the parents to be dependents of the deceased.
Since the employee himself and his dependent relatives are
barred from bringing an action against the employer in the
courts, it would be extraordinary to conclude that the non-
dependent relatives of the employee retained this right, bearing
in mind that the object of all laws, both provincial and federal,
governing workmen's compensation is to constitute a compre
hensive code governing the legal rights and relationships be
tween employers and their employees with respect to substan
tive law and procedure, and also bearing in mind the fact that
the right of recourse of an employee's representatives for
damages for a tort caused by his employer is intrinsically
connected with the remedy which the employee himself would
have enjoyed had he survived. The application, with respect to
Les Chargeurs Unis Inc., the owner of the ship, is dismissed for
although the owner of a ship under exclusive possession of a
charterer is normally freed from all liability to third parties, the
owner's liability to ensure the reasonable seaworthiness of the
vessel, so as not to constitute a danger to those who intend to
use it, is not reduced. The plaintiffs have a right to compensa
tion for all losses legally attributable to such a wrong.
Sandeman v. Scurr (1866) L.R. 2 Q.B. 86, followed.
APPLICATION.
COUNSEL:
Jacques Paquet for plaintiffs.
Guy Vaillancourt for defendants.
SOLICITORS:
Tremblay, Pinsonnault, Pothier, Morisset &
Associates, Quebec, for plaintiffs.
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for defendants.
The following are the reasons for order ren
dered in English by
ADDY J.: Following a conditional appearance,
the four defendants have made a joint application
to dismiss the action on the following grounds:
1. That the Court lacks jurisdiction.
2. That the remedy is barred under the Work-
men's Compensation Act'.
3. That the claim is not well founded in law.
4. That there exists no legal relationship be
tween the plaintiffs and any of the defendants,
except Rail & Water Terminal (Quebec) Inc.
SUMMARY OF FACTS CONTAINED IN THE
STATEMENT OF CLAIM
The following facts must be taken as having
been established for the purposes of this motion to
dismiss the action:
1. The plaintiffs are the father and mother of
the late André Paré, who died intestate and,
therefore, before having appointed an executor;
they were receiving $1,000 a year from the
deceased.
2. The following are the defendants: Rail &
Water Terminal (Quebec) Inc., the bareboat
charterer of the ship Aigle d'océan, and Les
1 R.S.Q. 1964, c. 159, as amended.
Chargeurs Unis Inc., owner of the said ship, and
there is no allegation as to why the other
defendants are parties to this action.
3. The cause of action arises out of the ship
wreck of the Aigle d'océan which occurred west
of the entrance to Ungava Bay on August 20,
1975, and which led to the death of the said late
André Paré, who was at the time the chief
engineer on the ship.
4. The Aigle d'océan was a coaster, that is, a
home-trade vessel which, according to the defi
nition given in section 2 of the Canada Shipping
Act 2 , means a ship used for home-trade voyages.
"Home-trade voyage", as defined in this Act,
means a voyage not being an inland or minor
waters voyage between places within the follow
ing area: Canada, the United States other than
Hawaii, St. Pierre and Miquelon, the West
Indies, etc.
5. The defendants are alleged to be jointly and
severally liable for the death, since the ship was
a "leaky bucket" not suitable for putting to sea,
dangerous and decrepit, not equipped with a
suitable lifeboat, with no qualified crew, and
carrying improperly stowed cargo; furthermore,
the captain himself was at fault and responsible
for the shipwreck.
6. Rail & Water Terminal (Quebec) Inc., the
bareboat charterer of the ship, was the employer
of the late André Paré and was paying him.
REASONS AND CONCLUSIONS
1. Maritime law is within the jurisdiction of the
Federal Government 3 .
2. Jurisdiction in this area was conferred on the
Federal Court specifically (see Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, sections 22 and
42).
3. Before the conflicts of jurisdiction with the
common law courts which occurred more than two
centuries ago, the Admiralty Courts in England
enjoyed complete jurisdiction over torts and the
wrongful acts committed on board a ship at sea.
2 R.S.C. 1970, c. S-9.
3 The British North America Act, 1867, s. 91(10).
This jurisdiction was later considerably restricted
by certain decisions of common law courts, which
were upheld on appeal. However, since at least
1861, at which time a new Admiralty Act was
enacted by the Parliament of the United Kingdom,
a right of recourse for a tort exists in maritime
law, even where there has not been a collision
between two ships. See The Sea Gull °, The
Sylph', and Wyman v. The "Duart Castle" 6 . (See
also the words "or otherwise" in section 22(2)(d)
of the Federal Court Act.)
4. This right of recourse also exists in the case of a
claim for bodily injury. See The Beta', Wyman y.
The `Duart Castle" 8 , and Monaghan v. Horn 9 .
Since the last case, which was decided in 1882, a
right of recourse has been created in Canada
where the person dies, and this right may be
exercised by the parents of the deceased (plaintiffs
in the case at bar) for damages caused by the
death (see the Federal Court Act, sections
22(2)(d) and (g) and 43(1); the Canada Shipping
Act, R.S.C. 1970, c. S-9, sections 644 and 719;
and also the following cases: McLeod v. The
Ontario-Minnesota Pulp and Paper Company
Limited 10 and Flipper Draggers Ltd. v. "Ocean
Rockswift"").
5. The jurisdiction of the Exchequer Court was
based on an Act of the Canadian Parliament en
titled the Admiralty Act 12 , enacted pursuant to a
power granted by section 3 of an Act passed by the
British Parliament in 1890 entitled the Colonial
Courts of Admiralty Act, 1890 13 .
6. Not only was the admiralty jurisdiction of the
Exchequer Court transferred to the Federal Court,
but this jurisdiction was also extended by the
Federal Court Act itself; see sections 22 and 42
and also the following cases: The Robert Simpson
Montreal Limited v. Hamburg-Amerika Linie
° Chase's Decisions (1865-69) 4th C.C. of U.S. 145.
5 (1867) L.R. 2 A. & E. 24.
° (1899) 6 Ex.C.R. 387.
(1869) L.R. 2 P.C. 447.
8 (1899) 6 Ex.C.R. 387.
9 (1881-2) 7 S.C.R. 409.
10 [1955] Ex.C.R. 344 at p. 346.
11 [1970] Ex.C.R. 48.
12 (1891) 54-55 Viet., c. 29.
17 (1890) 53 & 54 Vict., c. 27, s. 3.
Norddeutscher 14 ; Antares Shipping Corporation v.
The "Capricorn" 15 ; Barberlines AIS Barber
Steamship Lines, Inc. v. Ceres Stevedoring Com
pany Ltd. 16
7. There can be no doubt that this action is based
on maritime law and not on provincial civil law
(see the Canada Shipping Act, sections 718, 719,
720 and 541(a) and (e)). The recent judgments of
the Supreme Court of Canada in Quebec North
Shore Paper Co." and McNamara Construction
(Western) Ltd. 18 therefore do not apply.
8. It thus follows that this Court has the jurisdic
tion required to entertain claims such as those
brought by the plaintiffs.
9. However, in so far as the defendants Transport
Desgagné Inc. and Le Groupe Desgagné Inc. are
concerned there is in the statement of claim no
statement as to the existence of any legal relation
ship whatsoever between them and the plaintiffs.
For this reason, the motion will be allowed in so
far as it refers to these two defendants and the
action is dismissed.
10. In the case of the claim against the defendant
Les Chargeurs Unis Inc., it is worth noting that it
is the bareboat charterer who normally bears com
plete responsibility for the actions of the captain
and crew and for any torts occurring by reason of
the operation of the ship, since the charterer has
exclusive possession of it and is in control of its
operations. In such a case, the owner is, by that
very fact, freed from all liability toward third
parties for damage resulting from the operation of
the ship. See Sandeman v. Scurr 19 .
However, this does not in any way reduce the
owner's liability to ensure that the ship is reason
ably seaworthy, and that it does not constitute an
actual danger for those who intend to use it. This
is a well-established common law principle (see
section 452 of the Canada Shipping Act and also
section 647(2)(a) of this Act when interpreted a
contrario).
'4 [197 3] F.C. 1356 at pp. 1361 and 1368.
15 [1973] F.C. 955.
16 [1974] 1 F.C. 332 at p. 335.
17 (1977) 71 D.L.R. (3d) 111.
18 (1977) 75 D.L.R. (3d) 273.
' 9 (1866) L.R. 2 Q.B. 86 at p. 96.
There is indeed an allegation against the defend
ant Les Chargeurs Unis Inc., the owner of the ship
Aigle d'océan, to the effect that, to the knowledge
of this defendant the said ship was so unseaworthy
when it was chartered that it could be described as
a "leaky bucket".
If the allegation against this defendant were
established the plaintiffs' right to be compensated
for all losses legally attributable to such a wrong
would follow.
In the case of this defendant, the motion to
strike the claim must therefore be dismissed unless
there exists another statutory provision to the
contrary.
11. The defendant Rail & Water Terminal
(Quebec) Inc. is the bareboat charterer of the ship
and the employer of the deceased sailor. The provi
sions of the Merchant Seamen Compensation
Act 20 and of the Workmen's Compensation Act 2 '
should be considered. If the Merchant Seamen
Compensation Act applies, the Board has exclusive
jurisdiction under sections 12, 13 and 14 of this
Act to hear any claim against this defendant and
the Federal Court therefore has no jurisdiction.
The same is true in a case where, under section
4 of this Act, the Workmen's Compensation Act
applies, because section 13 of the latter Act gives
the Commission exclusive jurisdiction to hear any
claim against an employer. Section 15 also pro
tects an employer from all other proceedings.
Rail & Water Terminal (Quebec) Inc. is prob
ably an employer within the meaning of these
Acts. What is certain is that one of these two Acts
applies. It is not necessary for the purposes of this
motion to decide the question as to which of these
Acts should govern the compensation, since the
Federal Court in any case has no jurisdiction.
12. Both of these Acts also bar the employee
himself, or in the case of a deceased employee, his
dependents, from instituting a court action for any
20 R.S.C. 1970, c. M-11.
21 R.S.Q. 1964, c. 159, amended.
accident which occurred during the course of his
employment. On the other hand, maritime law
gives the parents of a deceased sailor the right to
bring an action against the person responsible, and
it is not necessary for the parents to be dependents
of the deceased. The question therefore arises as to
whether the parents of a deceased employee, if
they are not his dependents, do not nonetheless
retain a right of recourse under maritime law,
since they do not appear to have been expressly
divested of this right by either of the two statutes
governing workmen's compensation to which I
have just referred.
Since the employee himself and his dependent
relatives are barred from bringing an action
against the employer in the courts, it would be
extraordinary to conclude that the non-dependent
relatives of the employee retained this right, bear
ing in mind the object of all laws, both provincial
and federal, governing workmen's compensation,
the first and fundamental aim of which is to
constitute a comprehensive code governing the
legal rights and relationships between employers
and their employees with respect to substantive
law and procedure, and also bearing in mind the
fact that the right of recourse of an employee's
representatives for damages for a tort caused by
his employer is intrinsically connected with the
remedy which the employee himself would have
enjoyed had he survived.
13. The motion should therefore be allowed in the
case of the claim against the defendant Rail &
Water Terminal (Quebec) Inc.
14. There remains only the question of considering
the last argument raised by counsel for the defend
ants. The plaintiff Gloria Paré allegedly received
$2,000 in compensation under the Quebec Work-
men's Compensation Act. According to this coun
sel's argument, if this Act applies, the plaintiff in
the case at bar has no right of action, even against
a third party such as the defendant Les Chargeurs
Unis Inc. under section 7(3) of this Act. The
provisions of this section can hardly be interpreted
in such a way as to lead to this result. Moreover,
section 8 of the same Act eliminates any possible
doubt in this respect. It reads as follows:
8. Notwithstanding any provision to the contrary and not
withstanding the fact that compensation may have been
obtained under the option contemplated by subsection 3 of
section 7, the injured workman, his dependants or his repre
sentatives may, before the prescription enacted in the Civil
Code is acquired, claim, under common law, from any person
other than the employer of such injured workman any addition
al sum required to constitute, with the above-mentioned com
pensation, an indemnification proportionate to the loss actually
sustained.
See also the following decisions interpreting this
section: Adam et Schering Corp. Ltd. v.
Bouthillier 22 ; Henry v. McMahon Transport
Limitée 23 ; Manchester Liners Limited v. Roussy 24 ;
and The `Giovanni Amendola" v. Marjorie Manz
LeVae 25 .
Even if the Quebec Workmen's Compensation
Act applies, the said plaintiff Gloria Paré still
retains his right of recourse against this defendant
but can only obtain damages in excess of the
$2,000 already received; the first $2,000 can be
collected only by the Workmen's Compensation
Commission.
ORDER
THE COURT ORDERS AND ADJUDGES THAT:
1. This motion be granted and the action against
the three defendants Rail & Water Terminal
(Quebec) Inc., Transport Desgagné Inc. and Le
Groupe Desgagné Inc. be dismissed.
2. The names of these defendants be struck from
the style of cause.
3. The claim against the defendant Les Chargeurs
Unis Inc. may be prosecuted by the two plaintiffs.
4. The plaintiffs be entitled to amend their claim
accordingly within ten days of the date of this
order.
5. Since the same counsel was acting for the four
defendants who presented a joint defence, and
since the result is divided, the costs of this motion
shall remain to be disposed of at the discretion of
the judge hearing the action against the defendant
Les Chargeurs Unis Inc.
22 [1966] Q.B. 6, see especially at bottom of page 23.
23 [.1972] C.A. 66, see especially at bottom of page 70.
24 [1965] Q.B. 454.
25 [1960] Ex.C.R. 492.
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.