Stein Estate (Plaintiffs)
v.
The ships Kathy K (also known as Storm Point),
and S.N. No. 1, Egmont Towing & Sorting Ltd.,
Shields Navigation Ltd., Leonard David Helsing
and James Iverson (Defendants)
Trial Division, Heald J.—Vancouver, July 9;
Ottawa, October 19, 1973.
Practice and procedure—Shipping accident—Damages
awarded yachtsman's dependants—Motion by defendants to
apportion damages—Rule 1908 not applicable.
Stein's widow and children were awarded damages in
consequence of his death in a shipping accident. The
defendants applied for an order requiring the plaintiffs to
have the damages apportioned.
Held, the motion must be dismissed. Rule 1908 was not
applicable.
MOTION.
COUNSEL:
J. Cunningham for plaintiffs.
Brander Smith for defendants.
SOLICITORS:
Macrae, Montgomery, Hill and Cunning-
ham, Vancouver, for plaintiffs.
Bull, Housser and Tupper, Vancouver, for
defendants.
HEALD J.—Consideration of this motion was
referred to me by the Order of Collier J. dated
July 9, 1973.
After consideration of the written submis
sions filed by counsel for both parties, I. have
concluded that the motion should be dismissed.
The total sum awarded by my Judgment of
October 24, 1972 represented a family loss. In
such circumstances, what is important to the
defendant is the total sum of damages awarded
and when that sum has been assessed by the
judge, unless there is any question as to money
in court, the task of the defendant-is over. The
defendant is ° not concerned in the apportion-
ment as between the various plaintiffs'. Counsel
for the defendants certainly took the position at
the hearing before me that the matter of appor
tionment amongst the widow and children was
purely a matter for the plaintiffs and the Court
and was of no concern to the®defendants. My
Reasons for Judgment dated October 24, 1972
and the formal Order thereunder dated Novem-
ber 29, 1972 make it clear that the plaintiffs
(italics mine) only were given leave to apply
further to allocate the damages.
However, the defendants in this motion rely
on Federal Court Rule 1908 which', they submit,
entitles them to an Order requiring the plaintiffs
to apply for an Order of the Court allocating the
damages.
In my view, Rule 1908 does not apply to the
circumstances here. Rule 1908 deals with a con
ditional judgment. The judgment here is not a
conditional judgment, that is*to say, it is not a
"condition" of the plaintiffs being entitled to
enforce the payment of their judgment against
the defendants that the amount thereof be
apportioned (see paragraph 2—Order dated
November 29, 1972). Accordingly Rule 1908
does not apply.
For the above reasons, the motion is
dismissed. s
Costs in the cause.
' See: Eifert v. Holt's Transport Co. Ltd. [1951] W.N. p.
467 per Singleton L.J. In that case, the English statute being
considered was similar in all material respects to section
727(1) of the Canada Shipping Act which is applicable here.
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.