Carriage of Passengers

AuthorEdgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
The movement of people by water has become a huge sector of business
in recent years and continues to grow. Canada has shared in this expan-
sion. In addition to the constant f‌low of traditional ferry traff‌ic, people
now engage in a great variety of water sports and leisure activities at sea.
Ferries traverse the coasts, lakes, and rivers of Canada: some are within
a province or territory, others are between provinces, and several make
international connections with the United States. Leisure activities in-
clude such pursuits as harbour sightseeing tours, sport f‌ishing trips, ad-
venture holidays on wilderness rivers, sea kayaking and scuba diving
excursions, and sail training aboard “tall” ships. Boating is another im-
mensely popular and widespread pastime, ranging from rowboats and
jet skis through sailing yachts of various sizes to ocean-going pleasure
craft navigated by professional sailors. Most popular of all is the resur-
gent cruise industry. Cruise ships carrying up to 3,000 passengers each
and resembling f‌loating holiday resorts regularly call at Canadian ports,
typically on voyages that include calls at non-Canadian ports. Even lar-
ger vessels, the capacities of which exceed 5,000 passengers, exist and
are typically employed in non-Canadian markets, principally the Carib-
bean Sea. Luxurious new ships continue to be built to meet the surging
interest in cruising. The ultimate cruise ship, perhaps, is the grandiosely
named The World, which provides f‌loating “permanent residences” for
its apartment owners and lessees.
The principal focus of this chapter will be the passenger liability
regimes that exist in Canadian law. It must be noted at the outset, how-
ever, that Canadian law does not necessarily apply to the carriage by
water as passengers of Canadian citizens or residents, nor necessarily
to ships which may call at Canadian ports. Therefore at the outset of
this chapter, issues of identif‌ication of applicable law are discussed. The
chapter concludes by outlining the more important of the various pas-
senger liability regimes that exist under other legal systems, from the
diversity of which it will be seen that Canadian law is not at all substan-
tively typical of regimes that exist elsewhere in the world.
1) Choice of Law/Choice of Forum in Passenger Tickets
It is most frequently the case that the carriage of passengers is a com-
mercial activity in which the ship is engaged, and therefore the presence
on board of the passenger is governed by contract between the passen-
ger (or her principal) and the owner or operator of the ship. Frequently,
the passenger contract will contain (or will purport to contain) a clause,
stipulating the legal regime (typically, the national laws of a stipulated
state) which as a matter of the parties’ agreement will govern the legal
relationship between them (a “choice of law clause”). In cases in which
a specif‌ic system of national law is not declared to govern the contract,
the contract itself will generally provide for limitation of the carrier’s
liability by way of incorporation into the contract of the substance of
one of the international conventions on the subject. In either case how-
ever, in the event of passenger injury or some other event giving rise to
a right of action against the ship, its operator or owner, the contract will
typically require adjudication of the resulting claim in some specif‌ied
court (a “choice of forum clause”).
In commercial contracts, including contracts for international car-
riage by sea, Canadian jurisprudence generally respects and enforces
contractual provisions for choice of law or choice of forum. In ZI Pompey
Industrie v Ecu-Line NV,1 a carriage of goods case in which the printed
1 2003 SCC 27. As noted by the Supreme Court in that decision at paras 37–38, the
ZI Pompey litigation was commenced prior to the coming into force of section 46
of the Marine Liability Act, SC 2001, c 6 [MLA], which in certain circumstances
grants relief from choice of forum clauses in contracts for the carriage of goods.
Potentially to similar effect in cases of choice of forum clauses (but not of choice of
law clauses) in passenger contracts is the combined effect of articles 17(1) and 18

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