Ferguson v. Arctic Transportation Ltd.
T-1941-93
Reed J.
8/5/98
27 pp.
Action for damages as result of injuries suffered in 1992 while plaintiff working as pilot aboard Arctic Tarsiut-Plaintiff pilot employed by Panama Canal Commission (PCC)-Insurance wire injuring plaintiff-Plaintiff submitting wire must have been protruding over deck edge; could not have been properly secured; defendant Arctic Transportation Ltd. (ATL) responsible as owner of barge for securing wire; ATL therefore responsible for accident-Action dismissed-Place of tort, place of damage, and place having most substantial connection with claim, all leading to conclusion Panamanian law applicable-Canada Shipping Act, s. 275, providing case shall be governed by law of port at which ship registered, applicable to matters arising in context of hiring, firing of seamen, payment of wages, apprenticeship indentures, working conditions on Canadian ships-Not applicable to action by foreign pilot with respect to tort claim arising out of events occurring in foreign jurisdiction-Plaintiff relying on Maritime Code of Republic of Panama, Art. 557 for submission Canadian law applied as law of registry of vessel on which tort occurred applied-As no conflict of laws issue arising under Panamanian law, law of Panama applicable pursuant to general principle of territorial application of law-Even if conflict of laws issue existing, Panamanian Court would apply Art. 557(7) such that laws of country where event giving rise to complaint occurred-Limitation periods part of substantive law when law of another jurisdiction applied: Tolofson v. Jensen; Lucas (Litigation Guardian of) v. Gagnon, [1994] 3 S.C.R. 1022-Limitation period in Panama one year from time plaintiff aware of injury-Action not brought within one year of February 12, 1992 (date of accident)-Letter written by prospective plaintiff to prospective defendant not interrupting running of prescription period-Even if limitation provision interrupted under Panamanian law, as no proof of applicable Panamanian tort law, assumption same as Canadian law-Applying Canadian tort law, plaintiff not proving on balance of probabilities accident arising as result of negligence of defendant-Plaintiff arguing: (1) duty of vessel owner to ensure vessel seaworthy, and if damage occurring as result of failure to do so, presumption of owner's fault; (2) when damage-causing events occurring for which no explanation and circumstantial evidence pointing to defendant's actions as cause, presumption of negligence by defendant arising-Circumstances herein not raising presumption vessel owner's negligence cause of accident-No evidence latent defects in fastening of insurance wire or that any condition relating thereto prior to vessel's arrival in Balboa that might have caused accident-Before vessel permitted to transit Canal, must meet directives, regulations imposed by PCC-Vessel prepared for transit in Balboa by reputable contractor-Work undertaken with PCC inspectors identifying work to be done, approving method planned to accomplish that work, inspecting work after completed-When barge left Balboa, starboard insurance wire not hanging outboard or over deck edge-From time vessel left dock in Balboa until accident, under exclusive control of PCC during which time numerous opportunities for dislodging of insurance wire-Simply not situation in which presumption accident caused by defendant's negligence arising-Also very serious credibility problem as to extent of plaintiff's injury-Plaintiff's failure to prove permanent injuries; failure to mitigate loss by seriously seeking other employment; that virtually no loss of income in year after accident, after which voluntarily retired just before reached compulsory retirement age as pilot, meaning any award would be very small-Canada Shipping Act, R.S.C., 1985, c. S-9, s. 275.