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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.
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