A-179-73
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 (Appellants) (Defendants)
v.
Marjorie Hexter Stein (now known as Marjorie
Hexter Cowley), and as the widow of Charles
Simenon Stein, deceased, and as a co-executrix of
the estate of the said deceased, and Maurice
Schwarz and William I. Stein, co-executors of the
said estate (Respondents) (Plaintiffs)
Court of Appeal, Thurlow and Pratte JJ. and
Sheppard D.J.—Vancouver, February 26 and
March 1, 1974.
Practice—Maritime law—Judgment for damages in lump
sum—Respondents (plaintiffs) given leave to apply for allo
cation of damages between widow and children—Motion by
appellants (defendants) for order requiring respondents
(plaintiffs) to apply for allocation—Motion dismissed—Allo-
cation left to time of hearing of appeal by defendants against
trial judgment—Canada Shipping Act, R.S.C. 1970, c. S-9,
Part XIX.
Following a maritime collision resulting in the death of
Charles Simmon Stein, the respondents (plaintiffs) brought
an action under the Canada Shipping Act for the benefit of
the deceased's widow and children. In the Trial Division the
respondents recovered judgment for 75 per cent of the
damages, assessed in the lump sum of $160,000, with leave
to apply to the Court for allocation of the damages between
the widow and children. The appellants (defendants) gave
notice of appeal from the finding of liability and the assess
ment of damages. Subsequently the appellants moved that
the respondents be required to apply, prior to the hearing of
the appeal, for allocation of the damages. The motion was
dismissed by the Trial Judge ([1973] F.C. 1089). The appel
lants appealed.
Held, dismissing the appeal, the appellants had no right to
require the respondents to proceed for allocation of the
damages. As no allocation was made at the trial, the deter
mination must form part of the subject-matter, not of the
present appeal, but of the appeal which the defendants have
taken from the assessment made and the judgment pro
nounced upon it.
Eifert v. Holt's Transport Co. Ltd. [1951] W.N. 467,
considered.
APPEAL.
COUNSEL:
D. Brander Smith for appellants.
J. R. Cunningham for respondents.
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
appellants.
Macrae, Montgomery & Co., Vancouver,
for respondents.
THURLOW J.—The respondents brought an
action under what is now numbered Part XIX of
the Canada Shipping Act on behalf of the
widow and infant children of Charles Simmon
Stein, deceased, who died as a result of a colli
sion which occurred on English Bay on June 27,
1970. In the Trial Division the respondents
recovered judgment for 75% of damages which
were subsequently assessed at $160,000.00. No
determination of the shares of the several
dependants on whose behalf the action had been
brought was made, but by the formal pro
nouncement fixing the damages, which was
approved as to form by counsel for the appel
lants, leave was reserved to the respondents to
apply to the Court to allocate the damages
between the widow and the children. The record
before us contains no indication that counsel for
the appellants objected to this course at the time
or raised any contention that the determination
of the shares of the widow and children should
be made immediately and incorporated in the
pronouncement. The appellants have appealed
to this Court both from the order holding them
liable for 75% of the respondents' damages and
from the assessment of the damages. These
appeals are still pending.
More than eight months after the pronounce
ment fixing the amount of the damages, the
appellants (defendants) brought a motion in the
Trial Division for an order that the respondents
be required to make an application to the Court
prior to the hearing of the appeals for an order
allocating the damages as between the widow
and the children and giving directions as to the
disposition of the monies. The motion was
referred to the learned judge who had tried the
action and it was subsequently dismissed. The
appellants thereupon brought the present
appeal. They want the allocation made so that
they can on their appeal from the assessment
challenge the individual amounts so allocated or
some of them as being excessive awards for the
injuries sustained.
In my opinion the short answer to the appel
lants' motion and to this appeal is that the
appellants have not now, nor have they had at
any stage of these proceedings, any right to
require the respondents to proceed to have the
damages allocated. It may be, though the point
is doubtful at best' and need not be decided on
this appeal, that the respondents had a right at
the trial to call upon the Court to make such a
determination but if so that is something differ
ent from a right to require the respondents to
have the determination made and very different
considerations apply to it. If the appellants ever
had a right to have the damages apportioned it
did not recently come into existence but must
have existed as a right of the appellants at the
time of the trial. If so it was capable of being
asserted at the trial and, as I see it, it must be
regarded as having been before the Court at that
time and if asserted ought to have resulted in a
determination of the shares being made at that
time. However, as no such determination was
made it seems to me that the failure of the
Court to make a determination must form part
of the subject matter not of the present appeal
but of the appeal which the appellants have
taken from the assessment and the judgment
pronounced thereon. The record of what tran
spired with respect to any such right, if one
existed, is not before us. All that we can con
clude from what is before us is that effect was
not given to it but, in my opinion, we cannot on
that account consider on this appeal what, if
any, relief the appellants may be entitled to in
respect of it. That will have to await the hearing
of the appeal from the assessment and it would
be inappropriate at this stage to reach or
1 Compare the remarks of Singleton L.J. in Eifert v. Holt's
Transport Co. Ltd. [1951] W.N. at page 467.
express any opinion on it.
The present appeal therefore fails and should
be dismissed with costs.
* * *
PRArrE J.—I concur.
* * *
SHEPPARD D.J.—I concur.
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.