Laing v. Boreal Pacific et al., (2000) 264 N.R. 378 (FCA)

• Judge: Desjardins, Rothstein and Noël, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 05, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 264 N.R. 378 (FCA)

Laing v. Boreal Pacific (2000), 264 N.R. 378 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. NO.007

Frank Ian Laing (appellant) v. Boreal Pacific, A Division of Boreal Property and Casualty Insurance Company (respondent)

(A-166-99)

Indexed As: Laing v. Boreal Pacific et al.

Federal Court of Appeal

Desjardins, Rothstein and Noël, JJ.A.

October 13, 2000.

Summary:

A vessel owner sued its insurer, under a marine insurance policy, for the loss of the vessel's cargo (an excavator), which went over­board while at sea. The insurer disputed the claim, arguing that the vessel was not seaworthy.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 163 F.T.R. 226, dismissed the action because the vessel was not seaworthy. The vessel owner appealed.

The Federal Court of Appeal dismissed the appeal.

Insurance - Topic 8581

Marine insurance - The risk - Exclusions - Unseaworthiness - A vessel owner sued its insurer under a marine insurance policy for the loss of cargo (an excavator) - The excavator, which was not secured to the vessel, went overboard while at sea - The insurer refused coverage on the basis that the vessel was unseaworthy - The Federal Court of Canada, Trial Division, held that the loss was caused by the vessel's unsea­worthiness, which the owner was privy to -The vessel was unseaworthy because (1) the vessel was too heavily laden and (2) the excavator was not safely stowed - The owner was privy to the unseaworthiness because he had knowledge of the facts that made the vessel unseaworthy and had "blind eye" knowledge that those facts rendered the vessel unseaworthy - The Federal Court of Appeal upheld the trial decision - The trial judge correctly applied the privity test for seaworthiness.

Cases Noticed:

Compania Maritima San Basilio S.A. v. The Oceanus Mutual Underwriting Asso­ciation (Bermuda) Ltd., [1976] 2 Lloyd's Rep. 171 (C.A.), refd to. [para. 5, foot­note 4].

Manifest Shipping & Co. v. Uni-Polaris Insurance Co. and La Réunion Euro­péene (Ship Star Sea), [1997] 1 Lloyd's Rep. 360 (C.A.), refd to. [para. 5, foot­note 5].

Statutes Noticed:

Marine Insurance Act, S.C. 1993, c. 22, sect. 37(4), sect. 37(5) [para. 2].

Counsel:

Aengus RM Fogarty, for the appellant;

Richard C.C. Twining and Kim Wigmore, for the respondent.

Solicitors of Record:

Aengus RM Fogarty, Victoria, British Columbia, for the appellant;

Killam, Whitelaw & Twining, Vancouver, British Columbia, for the respondent.

This appeal was heard at Vancouver, British Columbia, on October 5, 2000, by Desjardins, Rothstein and Noël, JJ.A., of the Federal Court of Appeal. Desjardins, J.A., delivered the following decision for the court on October 13, 2000.