Chamberland and Chamberland v. Fleming and Brost, (1984) 54 A.R. 291 (QB)

• Judge: Girgulis, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 06, 1984
• Citations: (1984), 54 A.R. 291 (QB);1984 CanLII 1289 (AB QB);12 DLR (4th) 688;54 AR 291;29 CCLT 213

Chamberland v. Fleming (1984), 54 A.R. 291 (QB)

MLB headnote and full text

Chamberland and Chamberland v. Fleming and Brost

(No. 8201-08089)

Indexed As: Chamberland and Chamberland v. Fleming and Brost

Alberta Court of Queen's Bench

Judicial District of Calgary

Girgulis, J.

July 6, 1984.

Summary:

A husband and father was drowned, when the canoe he was in was upset by the wake of a jet boat owned by one defendant and driven by the other defendant. The driver carelessly did a Uturn around and close to the canoe while accelerating to greater than the permitted speed. The drowned man could not swim and was not wearing a lifejacket; although one was available. The man's widow and son brought an action against the defendants for damages.

The Alberta Court of Queen's Bench allowed the action and found the driver 75% and the owner 25% at fault. The owner was found liable as the master of the boat, because he was exercising control over the driver. Both defendants were found entitled to the limitation of liability in ss. 647(2) and 649(1) of the Canada Shipping Act. The drowned man was found contributorily negligent and 25% at fault in failing to wear a lifejacket, which would have prevented his death.

Damage Awards - Topic 81

Personal injuries and death - Fatal accidents - Father and husband - A 36 year old carpenter was drowned, leaving surviving his 29 year old wife and ten year old boy - The Alberta Court of Queen's Bench assessed $178,000 general damages to the wife and $7,700 to the son, including loss of guidance and training - See paragraphs 49 to 68.

Shipping and Navigation - Topic 450

Ships - Ownership and control - Liability of owner - Negligence of operator of ship - The owner of a jet boat permitted a friend to drive it - The owner accompanied the driver and exercised control and direction over him - The driver was negligent and caused a drowning - The Alberta Court of Queen's Bench held that the owner was not liable for the driver's negligence merely as owner, but was liable as master of the boat in failing to exercise adequate control over the driver - See paragraphs 16 to 17.

Shipping and Navigation - Topic 1164

Masters - Liability of - Negligent navigation - The owner of a jet boat permitted a friend to drive it - The owner accompanied the driver and exercised control and direction over him - The driver was negligent and caused a drowning - The Alberta Court of Queen's Bench held that the driver was liable for his negligent navigation as a master of the boat and the owner was liable also as master, where he exercised control and direction over the driver - See paragraphs 16 to 24.

Shipping and Navigation - Topic 5079

Collisions - Rules of the sea - Steering - Keeping proper course - A jet boat driver did a U-turn around and close to a canoe, upsetting the canoe and drowning one of its occupants - The driver exceeded the posted maximum speed in making the turn - The Alberta Court of Queen's Bench held that the driver was negligent in failing to keep a proper look and in making a turn when it was unsafe to do so - See paragraph 15.

Shipping and Navigation - Topic 5404

Collisions - Negligence - Defences - Statutory limitation of liability - The owner of a jet boat permitted a friend to drive it - The owner accompanied the friend and controlled and directed his navigation - The friend negligently caused the drowning death of a canoeist - The Alberta Court of Queen's Bench held that both the owner and operator were entitled to the limitation of liability in ss. 647(2) and 649(1) of the Canada Shipping Act, because both were acting as masters - See paragraphs 32 to 42 - The court held that the date to fix the exchange rate for calculating the amount of the limitation limits was the last date before the loss on which effective exchange rates were established - See paragraphs 43 to 48.

Torts - Topic 6630

Defences - Contributory negligence - Failure to use safety equipment - A man, who was a non-swimmer and unfamiliar with canoes, went for a canoe ride after turning down an offered lifejacket - The canoe was upset by a motor boat and he was drowned - The Alberta Court of Queen's Bench found that a lifejacket would have prevented his injury and found him the maximum 25% at fault for his contributory negligence - See paragraphs 4, 10, 25 to 31.

Cases Noticed:

Walithy Charters Ltd. v. Doig et al., 15 B.C.L.R. 35, consd. [para. 39].

"Annie Hay", The, [1968] P. 341, consd. [para. 39].

Abadesa (No. 2), The, [1968] P. 656, appld. [para. 48].

Mecca, The, [1968] P. 665, appld. [para. 48].

Keizer v. Hanna et al., [1978] 2 S.C.R. 342; 19 N.R. 209; 82 D.L.R.(3d) 449, appld. [para. 56].

Cummings v. Haliburton Services Ltd. (1980), 27 A.R. 181, consd. [para. 56].

Jeselon et al. v. Waters, [1981] 3 W.W.R. 715, consd. [para. 56].

Riches v. Miller et al. (1982), 35 A.R. 334, consd. [para. 56].

Janke et al. v. Chamber's Estate (1980), 29 A.R. 78, revd. 29 A.R. 68 (Alta. C.A.), restored 41 N.R. 526; 34 A.R. 434 (S.C.C.), consd. [para. 56].

Statutes Noticed:

Canada Shipping Act, R.S.C. 1970, c. S-9, sect. 647(2) [para. 32, 34]; sect. 649(1) [para. 33]; sect. 651(1)(a) [para. 35].

Currency and Exchange Act Amendment Act, S.C. 1976-77, c. 38 [para. 43].

International Convention Relating to the Limitation of Liability of Owners and of Sea-going Ships (1957) [para. 40].

Counsel:

Frederick R. Fenwick, for the plaintiffs;

R. Bryan Waller, for the defendant, Brost;

R.A. Coad and R.J. Simpson, for the defendant Fleming.

This case heard at Calgary, Alberta, before Girgulis, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on July 6, 1984: