[2001] 2 F.C. 238
T-2092-97
Walter A. Conohan and Eastern Marine Underwriters Inc. (Plaintiffs)
v.
The Cooperators (Defendant)
Indexed as: Conohan v. Cooperators (T.D.)
Trial Division, O’Keefe J.—Charlottetown, May 30, 31 and June 1; Toronto, November 28, 2000.
Maritime Law — Insurance — Action by insured for lost revenue, by insurer to recover monies paid in respect of fishing vessel destroyed in collision with vessel insured by defendant — Captain of latter vessel charged with operating vessel with blood/alcohol level over 80 — Insurer (defendant) refused to defend, pay third party claim on ground insured breached policy — Captain confessed to judgment, assigned rights of action to plaintiffs — Marine Insurance Act, s. 34 imposing implied warranty in every marine policy that marine adventure insured lawful and, in so far as insured has control, will be carried out in lawful manner — “Marine adventure” defined as including any situation where insurable property exposed to maritime perils — Definition of “maritime perils” limited to list of events beyond defendant’s control — Collision not maritime peril as caused by negligence, not by listed peril — Not marine adventure as liability not incurred by reason of maritime perils — S. 6(1)(a) stating contract of marine insurance contract whereby insurer undertaking to indemnify insured against losses incidental to marine adventure — As no marine adventure, not contract of marine insurance and implied condition in s. 34 not applicable — Losses not excluded by s. 53(2) (exempting insurer from liability for loss attributable to wilful misconduct of insured) as no evidence of wilful misconduct — Clause 27 of insurance policy stating warranted free from any claim for loss, damage, expense caused by impaired operation of vessel — As no mention of liability, only applies to claims for damages to insured’s own boat — Also, impaired operation of vessel not proven — Clause 16 providing liability coverage to insured if “liable to pay and shall pay” damages to other person — Requiring insured to pay plaintiff’s claim before making claim under policy — Defendant not required to pay plaintiffs’ claims.
This was an action for lost revenue by the owner (Conohan) of the fishing vessel Cape Light II, destroyed in a collision with the fishing vessel Lady Brittany owned and operated by Peter Kirby Gaudet, and to recover $66,155.80 paid by the insurers of the Cape Light II to the owner. Gaudet was later charged for the offence of operating a vessel when his alcohol/blood level exceeded .08. Gaudet’s insurers, the defendant herein, refused to pay or defend Conohan’s claim for his losses on the ground that Gaudet had breached the policy by being impaired and because of other illegal conduct in the operation of his vessel. Gaudet admitted liability, confessed to judgment, and assigned all of his rights of claim and action against his insurer to the plaintiffs herein, who commenced this action.
Both parties agreed that the Marine Insurance Act applied. Section 34 imposes an implied warranty in every marine policy that the marine adventure insured is lawful and, in so far as the insured has control, will be carried out in a lawful manner. Subsection 53(2) exempts an insurer from liability for any loss attributable to the wilful misconduct of the insured.
Clause 27 of the insurance policy stated “Further warranted free from any claim for loss, damage, or expense caused by … drunken or impaired operation of the vessel … .” With respect to collision liability, clause 16 stated that the insured is covered if there is a collision with another vessel, “and the insured shall … therefore become liable to pay and shall pay by way of damages to any other person” any sum in respect of such collision.
The issues were: (1) whether Gaudet operated the Lady Brittany in a lawful manner within the context of section 34; (2) whether the loss suffered by Conohan was attributable to the “wilful misconduct” of Gaudet within the context of subsection 53(2); (3) whether the defendant was required to indemnify Gaudet and/or the plaintiffs; (4) whether Gaudet violated clause 27 of the insurance policy; (5) if so, was the defendant required to indemnify Gaudet and/or the plaintiffs; and (6) if so, what is the quantum of damages?
Held, the action should be dismissed.
(1) The section 2 definition of “marine adventure” includes any situation where “insurable property” (the Lady Brittany) is exposed to maritime perils, and includes a situation where “any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property, by reason of maritime perils”. The definition of “maritime perils” lists the types of perils that are included in the definition, all of which are events beyond the defendant’s control, concluding with “all other perils of a like kind and, in respect of a marine policy, any peril designated by the policy”. The perils listed in the policy were all similar to those mentioned specifically in the definition. The collision was caused by Gaudet’s negligence. This is not a maritime peril as it does not fit within any of the perils enumerated in the policy. Nor is it a marine adventure as the liability to the third party (Conohan) was not incurred “by reason of maritime perils”. Paragraph 6(1)(a) of the Act states that a contract of marine insurance is a contract whereby the insurer undertakes to indemnify the insured against losses that are incidental to a marine adventure. As there was no marine adventure with respect to the claim against Gaudet, this portion of the policy is not a contract of marine insurance within the meaning of paragraph 6(1)(a), or a marine policy within section 34. Therefore the implied condition did not apply.
(2) The defendant alleged that Gaudet’s breach of the collision rules and alleged impairment offended subsection 53(2). There was no evidence that Gaudet wilfully tried to breach the rules, and while the Lady Brittany was being operated without an adequate lookout, there was no evidence of wilful misconduct by Gaudet. Conohan’s losses were not, therefore, excluded by subsection 53(2).
(3) There was no necessity to address this issue given the previous findings.
(4) Clause 27 applies only to claims for damages to the insured’s own boat, not to third party claims. Unlike clause 29, clause 27 specifically excludes “liability” and includes “loss”. Thus the word “loss” in clause 27 does not include liability, and clause 27 does not apply so as to exclude coverage under clause 16, which provides liability coverage for third party claims, if the insured’s liability was caused by “drunken or impaired operation of the vessel”.
In any event, the defendant had not proven that there had been drunken or impaired operation of the boat.
(5) As clause 27 had no application to clause 16, there was no need to discuss a violation of clause 27.
Clause 16 clearly requires that Gaudet first pay the claim of the plaintiff, Conohan, before he can make a claim under the policy for that amount. For this reason the defendant was not required to pay the plaintiffs’ claims.
(6) If the above finding as to liability was in error, the quantum of damages was fixed at $66,155.80, being the agreed upon quantum of damages to the Cape Light II. Neither the claim for lost revenue nor that for punitive or exemplary damages had been proven.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Marine Insurance Act, S.C. 1993, c. 22, ss. 2(1) “marine adventure”, “marine policy”, “maritime perils”, 6(1)(a), 34, 53.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Firma C — Trade S.A. v. Newcastle Protection and Indemnity Assn., [1990] H.L.J. No. 33 (QL).
AUTHORS CITED
Gow, William. Marine Insurance: A Handbook, 2nd ed. London: Macmillan.
Words & Phrases Judicially Defined in Canadian Courts and Tribunals, Vol. 8. Toronto: Carswell, 1993 “wilful misconduct”.
ACTION by fishing vessel owner for lost revenue, and by his insurer to recover $66,155.80 paid by it for damage caused to the vessel in a collision with a fishing vessel insured by the defendant where the owner and operator of that vessel assigned all of his rights of claim and action against his insurer to the plaintiffs. Action dismissed.
APPEARANCES:
David F. H. Marler for plaintiffs.
Keith M. Boswell and D. Spencer Campbell for defendant.
SOLICITORS OF RECORD:
Law Office of David F. H Marler, Montréal, for plaintiffs.
Stewart McKelvey Stirling Scales, Charlottetown, for defendant.
The following are the reasons for judgment and order rendered in English by
[1] O’Keefe J.: This action involves a claim by the plaintiff, Walter A. Conohan (Conohan) and the plaintiff, Eastern Marine Underwriters Inc. (Eastern Marine) against The Cooperators who were the insurers of Captain Peter Kirby Gaudet’s fishing vessel the Lady Brittany. The plaintiff, Eastern Marine claims for the sum of $66,155.80 which it paid to Conohan as insurer of his fishing vessel. The plaintiff, Conohan is claiming for loss of revenue from not being able to fish. Both plaintiffs are claiming interest and costs.
[2] The plaintiff, Conohan, was the owner of the fishing vessel Cape Light II which, as indicated above, was insured by the plaintiff, Eastern Marine.
[3] The defendant, The Cooperators, was an insurance company carrying on business in Prince Edward Island and it had issued a policy of insurance on the fishing vessel Lady Brittany owned by Peter Kirby Gaudet.
[4] On September 20, 1996, the Lady Brittany left Tignish, Prince Edward Island with Captain Peter Kirby Gaudet (Gaudet) at the wheel at around 3:00 p.m. The vessel travelled eastwardly along the northern coast of Prince Edward Island, reaching East Point at approximately 10:30 or 11:00 p.m. on September 20, 1996. The boat was heading to fish tuna in an area known as the westward edge of the ridge.
[5] At approximately 1:20 a.m. on September 21, 1996, the Lady Brittany, with Gaudet at the wheel, collided with Conohan’s fishing vessel Cape Light II, which was at anchor and showing its anchor light. As a result of the collision, the Cape Light II became a constructive total loss.
[6] Conohan was also proceeding to the tuna fishing grounds as indicated above, but his boat was at anchor when struck by the Lady Brittany.
[7] After or just before the Lady Brittany struck the Cape Light II, Gaudet reversed his engine. After the collision he called out to Conohan to make certain that Conohan was all right. Gaudet put his lights on the Cape Light II and steamed around it. Another larger boat arrived and its crew told Gaudet to stay closer to the Cape Light II because it was easier for the smaller Lady Britanny to navigate in close to the Cape Light II should anything happen on the way in to the port of Souris, Prince Edward Island. The Lady Brittany came around to the Cape Light II about a half dozen times and Gaudet would ask if Conohan was all right and was the Cape Light II taking on water. Eventually, the coast guard vessel from Souris met them and escorted them into the Port of Souris.
[8] The evidence of Conohan was that he did not have any trouble in understanding Gaudet.
[9] The Lady Brittany was not damaged in the collision.
[10] The boats arrived in Souris some time before 5:00 a.m. At 5:05 a.m. Constable Leanne Butler, a member of the RCMP arrived at Souris Wharf and spoke to Gaudet and she formed the opinion that she had the requisite grounds to request Gaudet to provide samples of his breath to be analyzed by the breathalyzer. These samples were provided and Gaudet was found to have the following readings:
| 5:38 a.m. |
100 milligrams of alcohol in 100 millilitres of blood |
| 5:58 a.m. |
90 milligrams of alcohol in 100 millilitres of blood |
[11] Constable Butler noted that Gaudet had a moderate odour of alcohol from his breath, a flushed face, slow speech, bloodshot eyes and soiled clothes. She also noted that under the heading of “balance”, he was swaying a little and that his walking and turning was fair. On cross-examination, Constable Butler agreed you could have a flushed face for other reasons and she agreed that his slow speech could be his manner of speech as she never heard him speak before. She also agreed that he could have bloodshot eyes because of the long sail from Tignish. She also stated that his swaying could be due to being on a boat for a long period of time.
[12] Gaudet was not charged at that time but was released as soon as he checked into a local hotel. At a later date, after lab results were available, he was charged with the operation of a vessel when his alcohol/blood level exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[13] There were two crew members on the Lady Brittany in addition to the captain.
[14] There are a number of versions as to how much alcohol was drank by Gaudet both before and after the collision.
[15] On April 17, 1997, Conohan sued the Lady Brittany and Gaudet for his losses.
[16] Gaudet’s insurers, The Cooperators, refused to pay or defend the claim that was made against the Lady Brittany and Gaudet as it was their position that Gaudet breached the policy by being impaired and because of other illegal conduct in the operation of his vessel.
[17] On September 15, 1997, Gaudet, in writing, admitted liability in that action, confessed to judgment and assigned all of his rights of claim and action against The Cooperators, to Walter Conohan and Eastern Marine Underwriters Inc.
[18] The plaintiffs commenced the present action against the defendant on September 24, 1997.
[19] According to the order of the Pre-trial Conference Judge which was provided to me, the issues are as follows:
1. Does the Marine Insurance Act [S.C. 1993, c. 22] apply to the facts of this case?
2. If the Marine Insurance Act applies to the facts of this case, did Gaudet operate the Lady Brittany in a lawful manner within the context of section 34 of the Act?
3. If the Marine Insurance Act applies to the facts of this case, was the loss suffered by Conohan attributable to the “wilful misconduct” of Gaudet, within the context of subsection 53(2) of the Act?
4. If the Marine Insurance Act applies and the answers to questions 2 and 3 are in the affirmative, is the defendant required to indemnify Gaudet and/or the plaintiffs?
5. Did Gaudet violate clause 27 of the policy of insurance?
6. If Gaudet violated clause 27 of the policy of insurance, is the defendant required to indemnify Gaudet and/or the plaintiffs?
7. If the defendant is required to indemnify Gaudet and/or the plaintiffs, what is the quantum of damages suffered?
Issue 1
Does the Marine Insurance Act apply to the facts of this case?
[20] Both parties agreed before me that the Marine Insurance Act did apply and I would so hold.
Issue 2
If the Marine Insurance Act applies to the facts of this case, did Gaudet operate the Lady Brittany in a lawful manner within the context of section 34 of the Act?
[21] Section 34 of the Marine Insurance Act, S.C. 1993, c. 22 (the Act) states:
34. There is an implied warranty in every marine policy that the marine adventure insured is lawful and, in so far as the insured has control, will be carried out in a lawful manner.
The Act also contains the following definitions:
2. (1) …
“marine adventure” means any situation where insurable property is exposed to maritime perils, and includes any situation where
(a) the earning or acquisition of any freight, commission, profit or other pecuniary benefit, or the security for any advance, loan or disbursement, is endangered by the exposure of insurable property to maritime perils, and
(b) any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property, by reason of maritime perils;
“marine policy” means the instrument evidencing a contract;
“maritime perils” means the perils consequent on or incidental to navigation, including perils of the seas, fire, war perils, acts of pirates or thieves, captures, seizures, restraints, detainments of princes and peoples, jettisons, barratry and all other perils of a like kind and, in respect of a marine policy, any peril designated by the policy;
The plaintiffs argued that section 34 of the Act does not apply to a claim by the insured, in this case Gaudet, against his own insurer to be reimbursed for the money he was requested to pay to Conohan as this part of his coverage is liability insurance which is in place to protect Gaudet should a third party have a claim against him.
[22] The definition of “marine adventure” includes any situation where “insurable property” (the Lady Brittany) is exposed to maritime perils and includes a situation where “any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property, by reason of maritime perils”. The definition of “maritime perils” lists the types of perils that are included in the definition. All of these perils are events that are not in the control of the defendant. For example, unexpected bad weather which results in a collision between boats would not be avoidable by a captain. The definition of “maritime perils”, however, does include “all other perils of a like kind and, in respect of a marine policy, any peril designated by the policy”. A study of the policy shows that the perils listed in the Marine Guard Declaration are all perils similar to the perils listed specifically in the definition.
[23] In the present case, the collision with Conohan’s boat was caused by the negligence of Gaudet who, among other things, failed to keep a proper lookout. This is not a maritime peril as it does not fit within any of the perils listed in the policy. As well, I am of the opinion that it is not a marine adventure as the liability to the third party (Conohan) was not incurred “by reason of maritime perils”.
[24] Paragraph 6(1)(a) of the Act states:
6. (1) A contract of marine insurance is a contract whereby the insurer undertakes to indemnify the insured, in the manner and to the extent agreed in the contract, against
(a) losses that are incidental to a marine adventure or an adventure analogous to a marine adventure, including losses arising from a land or air peril incidental to such an adventure if they are provided for in the contract or by usage of the trade; or
[25] As I have found that there was no marine adventure with respect to the claim against Gaudet, it follows that this portion of the policy is not a contract of marine insurance within the meaning of paragraph 6(1)(a) of the Act or a marine policy as the term is used in section 34 of the Act. Therefore, the implied condition does not apply in this case.
Issue 3
If the Marine Insurance Act applies to the facts of this case, was the loss suffered by Conohan attributable to the “wilful misconduct” of Gaudet, within the context of subsection 53(2) of the Act?
[26] Subsections 53(1) and (2) of the Act read:
53. (1) Subject to this Act and unless a marine policy otherwise provides, an insurer is liable only for a loss that is proximately caused by a peril insured against, including a loss that would not have occurred but for the misconduct or negligence of the master or crew.
(2) Without limiting the generality of subsection (1), an insurer is not liable for any loss attributable to the wilful misconduct of the insured nor, unless the marine policy otherwise provides, for
If it is assumed that subsection 53(2) applies to the facts in this case, then the defendant would not be liable for any loss attributable to the wilful misconduct of the insured. The following definitions of “wilful misconduct” have been outlined in Words & Phrases Judicially defined in Canadian Courts and Tribunals, Vol. 8. “Wilful Misconduct”, Carswell, at page 8-817:
WILFUL MISCONDUCT
See also GROSS NEGLIGENCE; MISCONDUCT; SERIOUS AND WILFUL MISCONDUCT; SERIOUS NEGLECT; WANTON MISCONDUCT; WILFUL NEGLECT.
Supreme Court of Canada
I am, myself, unable to agree with the view that you may not have a case in which the jury may properly find the defendant guilty of gross negligence while refusing to find him guilty of wilful or wanton misconduct. All these phrases, gross negligence, wilful misconduct, wanton misconduct [in the Motor Vehicle Act, S.N.S. 1932, c. 6, s. 183], imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standards by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton misconduct. These words, after all, are very plain English words, not difficult of application by a jury whose minds are not confused by too much verbal analysis.
(Motor Vehicles)
McCulloch v. Murray, [1942] S.C.R. 141 at 145, [1942] 2 D.L.R. 179 Duff C.J.
In [Lewis v. Great Western Railway L.R. 3 Q.B. D. 195] Brett, L.J., says [at 210]:
In a contract where the term wilful misconduct is put as something different from and excluding negligence of every kind, it seems to me that it must mean the doing of something, or the omitting to do something, which it is wrong to do or omit, where the person who is guilty of the act or the omission knows that the act which he is doing, or that which he is omitting to do, is a wrong thing to do or to omit; and it involves the knowledge of the person that the thing he is doing is wrong.
Bramwell, L.J. says [at 206]:
“Wilful misconduct” means misconduct to which the will is a party. Something opposed to accident or negligence; the misconduct not the conduct, must be wilful.
I have made the foregoing extracts … for the purpose of applying them …
(Elections)
Young v. Smith (1880), 4 S.C.R. 494 at 510 Henry J.
Alberta
… the words “wilful misconduct” as used in s. 285 [of the Vehicles and Traffic Act, S.A. 1924, c. 31] mean an act done consciously and intentionally which the doer knew or as a matter of law is presumed to have known was wrongful in the circumstances …
(Motor Vehicles)
R. v. Dahl, [1936] 4 D.L.R. 629 at 647, [1936] 3 W. W. R. 385, 67 C.C.C. 37 (Alta. C.A.) McGillivray J.A.
[27] The conduct which the defendant alleges offends this section is the breach of the collision rules and alleged impairment of Gaudet. There is absolutely no indication in the evidence that Gaudet wilfully tried to breach the rules. All we know is that the Lady Brittany was being operated without an adequate lookout and the other factors referred to in paragraph 1 of the assignment (Exhibit P-1). There is absolutely no indication of any wilful misconduct on the part of Gaudet. Accordingly, there is no basis for finding that the loss of the plaintiff, Conohan, was caused by the wilful misconduct of Gaudet; therefore the losses are not excluded by subsection 53(2) of the Act.
Issue 4
If the Marine Insurance Act applies and the answers to questions 2 and 3 are in the affirmative, is the defendant required to indemnify Gaudet and/or the plaintiffs?
[28] Since the answers to questions 2 and 3 are in the negative, there is no necessity to address this issue.
Issue 5
Did Gaudet violate clause 27 of the policy of insurance?
[29] Clause 27 of the policy of insurance states:
Wear and Tear and Wrongful Acts
Further warranted free from any claim for loss, damage, or expense caused by ordinary wear and tear, wilful damage, drunken or impaired operation of the vessel, or other wrongful act or recklessness on the part of the fisherman or his agent or use of the vessel for an illegal purpose.
When you are interpreting a clause contained in a marine insurance policy, you must read the policy as a whole. In so doing, consideration must be given to other clauses contained in the contract.
[30] Clause 16 of the policy is the clause of the policy that provides liability coverage to the insured, Gaudet, for claims made against him by persons to whom he has caused damage. In this case, if the requirements of the clause are satisfied, clause 16 would be there to pay for the plaintiff, Conohan’s claims against Gaudet and his vessel. It must be remembered this is not a claim by Gaudet for damages to his own boat. Clause 16 reads:
4/4ths Collision Liability
It is further agreed that if the vessel hereby insured shall come into collision with any other vessel and the insured shall in consequence therefore become liable to pay and shall pay by way of damages to any other person or persons any sum or sums in respect of such collision for:
a. loss of or damage to any other vessel or property on any other vessel;
b. delay to or loss of use of any such other vessel or property thereon; or
c. general average of, salvage of, or salvage under contract of, any other vessel or property thereon.
The insurer will pay the insured such sums so paid provided always that their liability in respect of any one such collision shall not exceed the value of the vessel hereby insured, and in cases in which, with the prior consent in writing of the insurer, the liability of the vessel has been contested or proceedings have been taken to limit liability, they will also pay the costs which the insured shall thereby incur or be compelled to pay; but when both vessels are to blame, then, unless the liability of the owners of one or both of such vessels becomes limited by law, claims under this clause shall be settled on the principle of cross-liabilities as if the owners of each vessel had been compelled to pay to the owners of the other such vessels such one-half or other proportion of the latter’s damages as may have been properly allowed in ascertaining the balance or sum payable by or to the insured in consequence of such collision.
Provided always that this clause shall in no case extend or be deemed to extend to any sum which the insured may become liable to pay or shall pay for in respect of:
a. removal or disposal, under statutory powers or otherwise, of obstruction, wrecks, cargoes or any other thing whatsoever;
b. any real or personal property or thing whatsoever except other vessels or property on other vessels;
c. pollution or contamination of any real or personal property or thing whatsoever (except other vessels with which the insured vessel is in collision or property on such other vessels);
d. the cargo or other property on or the engagements of the insured vessel;
e. loss of lie, person injury or illness.
[31] It is the defendant, The Cooperators’ position that clause 27 applies to the claim of Gaudet for liability coverage. Its position is that a breach of clause 27 by Gaudet will exempt it from paying Gaudet’s liability claim under clause 16 of the contract. I do not agree with that position. An analysis of clause 16 shows that the clause provides liability to the insured but the clause has certain exclusions where the insurer will not pay for its insured’s liability claims and those exemptions are listed in paragraphs (a) to (e) at the end of clause 16. The Court has before it a liability clause with its own built-in list of exclusions for a liability claim.
[32] It is my view that clause 27 would apply where Gaudet made a claim for damages to his own boat. By contrast, it is important to look at the wording of clause 27. Clause 27 only excuses the insurer from paying “any claim for loss, damage or expense”. On the other hand, by way of comparison, clause 29 of the policy reads as follows:
Radioactive Contamination Exclusion Clause
This clause shall be paramount and shall override anything in this Agreement inconsistent therewith.
a. In no case shall this insurance cover loss, damage, liability or expense directly or indirectly caused by, or contributed to, by or arising from:
1) ionizing radiations from, or contamination by, radioactivity from any nuclear fuel or from any nuclear waste or from the combustion of nuclear fuel
2) the radioactive, toxic, explosive or other hazardous or contaminating properties of any nuclear installation, reactor or other nuclear assembly or nuclear component thereof
3) any weapon of war employing atomic or nuclear fission and/or fusion or other like reaction or radioactive force or matter.
[33] In clause 29, at the beginning of paragraph (a), the defendant states “in no case shall this insurance cover loss, damage, liability or expense”. In clause 27, the defendant, when it formed its contract, chose to specifically exclude “liability” and to include “loss”. If in this policy the defendant meant for the word loss to include “liability”, why then did it list “liability” as well as loss in clause 29? I can come to no other conclusion than that the word “loss” in clause 27 does not include liability and hence, clause 27 does not apply so as to exclude coverage under clause 16 if the insured’s liability was caused by “drunken or impaired operation of the vessel, or other wrongful act … on the part of the fisherman”. Rules of interpretation provide that words are taken to have the same meaning throughout the document. Therefore, as a result of my finding, there is no need to determine whether Gaudet violated clause 27 of the policy as clause 27 does not apply so as to exclude coverage for a liability claim under clause 16 of the policy.
[34] However, if I am in error on this point, I am of the opinion that the defendant did not prove that there was drunken or impaired operation of the boat. There is no doubt that the evidence of some of the witnesses was very confusing with respect to the amount of alcohol consumed by Gaudet. I observed Gaudet and I found him to be a credible witness. According to his testimony, he had a shot of “moonshine” about one and one-half hours after the collision and he vomited this over the side of the boat. He then had another drink of moonshine—a couple of ounces or so. He did not tell the police this, in fact he told Constable Butler he had nothing to drink after the accident. It is not known why he did not tell Constable Butler about drinking the moonshine. I believe it is generally accepted that moonshine is not a legal liquor to have in your possession and that could explain his failure to divulge this fact.
[35] When Laurie Campbell, the toxologist, testified she stated that if he drank a “slug of shine” which he vomited and then drank two ounces of moonshine at approximately 3:35 a.m. and the moonshine was 80% alcohol, then the readings of 100 milligrams of alcohol in 100 millilitres of blood at 5:38 a.m. and 90 milligrams of alcohol in 100 millilitres of blood at 5:58 a.m., would have been 90 to 133 milligrams of alcohol in 100 millilitres of blood using the first test and 85 to 133 milligrams of alcohol in 100 millilitres of blood using the second test, at the time of the collision. Ms. Campbell further testified that had Gaudet drank three ounces of moonshine, the levels at the time of the collision would have been 78 to 126 and 83 to 126 respectively. This was moonshine that only contained 60% alcohol. Ms. Campbell was asked what the readings would be if Gaudet had the three ounces of moonshine plus one beer after the collison and she replied that the readings at the time of the collision would have been 58 to 106 and 63 to 106. Ms. Campbell, on direct examination stated:
Q. Okay, now in that hypothetical you provide that range and you initially had it 137 to 184—is slightly higher if the accident was a little bit earlier—given that range, what is your best opinion as to such an individual’s likely blood alcohol content?
A. Okay, well, he could have been at either end of the range. My best opinion would be that it was somewhere in the middle of the range.
[36] If Gaudet’s blood alcohol level was at the lower end after having two ounces of moonshine, his reading at the time of the collision would have been 90 milligrams of alcohol in 100 millilitres of blood. By Ms. Campbell’s evidence, he would not be impaired as she only stated that all people are impaired when their blood/alcohol level is 100 milligrams of alcohol in 100 millilitres of blood. When you couple this with evidence about Gaudet at the scene of the collision which, according to Conohan was:
1. He could understand Gaudet and Gaudet told him his name;
2. Gaudet asked Conohan if he was all right a number of times;
3. Gaudet circled Conohan’s boat to watch his boat;
4. Gaudet stayed closest to Conohan’s boat on the way to Souris.
[37] It is important to note that there was no evidence of slurred speech or erratic steering of the boat which could be evidence of impaired or drunken operation of the boat. On the basis of this evidence, I am not prepared to find that Gaudet was impaired or drunk at the time of the collision, therefore, there was not impaired or drunken operation of the boat.
[38] The plaintiff has urged upon me that the liability coverage is a separate contract apart from the rest of the policy and cites as his authority for this position, Marine Insurance: A Handbook, William Gow, 2nd ed., pages 242-243 and 253. This clause that provides for the insured’s collision coverage became known as the “Running-down Clause” and Gow had this to say about the clause at pages 243 and 253:
Running-down Clause.—As the shipowner had no protection from his ordinary policy in the matter of his collision liabilities, it became necessary to draw up a special contract to cover him. This contract is known as the collision clause, or as it is better named the running-down clause (R.D.C.). It is now extremely unusual to find a ship policy without some form of this contract either printed in it in the body of the text, or in the margin, or attached to the policy.
Items included in Collision Claims.—It is to be remarked that as the running-down clause is not part of the ordinary policy of marine insurance, but is a separate contract, it is not interpreted with the same strict reference to the doctrine of proximate cause as the policy is. In the running-down clause one is no longer dealing with a contract of indemnity for material damage immediately resulting from certain named perils, but with a guarantee of repayment of a stated proportion of liabilities involuntarily incurred by the assured.
I do not find it necessary to come to a conclusion on this argument because of my earlier findings.
Issue 6
If Gaudet violated clause 27 of the policy of insurance, is the defendant required to indemnify Gaudet and/or the plaintiffs?
[39] As I have found that clause 27 has no application to clause 16, there is no need to discuss a violation of clause 27.
[40] At trial, the defendant argued that due to clause 16 of the policy, it does not have to pay Gaudet. For ease of reference, clause 16 of the policy reads in part:
4/4ths Collision Liability
It is further agreed that if the vessel hereby insured shall come into collision with any other vessel and the insured shall in consequence therefore become liable to pay and shall pay by way of damages to any other person or persons any sum or sums in respect of such collision for:
a. loss of or damage to any other vessel or property on any other vessel;
b. delay to or loss of use of any such other vessel or property thereon; or
c. general average of, salvage of, or salvage under contract of, any other vessel or property thereon.
[41] The defendant stated that it is only liable to pay Gaudet if Gaudet has “become liable to pay and shall pay by way of damages to any other person any sum”. Since Gaudet has not paid any sum to Conohan, the defendant states that it does not have to pay any sum to the plaintiffs who, by the assignment, stand in the shoes of Gaudet. It is clear that the plaintiffs only have the claims that Gaudet had against the defendant. I am of the opinion that the words used in clause 16 clearly require that Gaudet first pay the claim of the plaintiff, Conohan, before he makes a claim to his insurer for the amount (see Firma C — Trade S.A. v. Newcastle Protection and Indemnity Assn., [1990] H.L.J. No. 33 (QL)). For this reason, the defendant is not required to pay the claims of the plaintiffs.
Issue 7
If the defendant is required to indemnify Gaudet and/or the plaintiffs, what is the quantum of damages suffered?
[42] If I am in error with respect to liability, I would establish the damages as follows:
1. The sum of $66,155.80 being the agreed upon quantum of damages to the Cape Light II.
2. The claim of the plaintiff, Conohan, for lost tuna and possibly the losses with respect to his scallop project are not allowed as these damages have not been proved. I have no doubt that Conohan is an excellent fisherman but I simply do not have the facts necessary to set a figure on his loses.
3. The claim for punitive or exemplary damages is not allowed as the evidence to support a claim for these types of damages has not been established. The conduct of the defendant does not merit punishment by an award of these types of damages.
[43] The parties have asked to make submissions to me with respect to costs and interest and I would order that such submissions be made by December 20, 2000.
ORDER
[44] IT IS ORDERED that this action be dismissed.
[45] IT IS FURTHER ORDERED that written submissions be made with respect to costs and interest by December 20, 2000.