Laing v. Boreal Pacific et al., (1999) 163 F.T.R. 226 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: September 15, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1999), 163 F.T.R. 226 (TD)

Laing v. Boreal Pacific (1999), 163 F.T.R. 226 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. MR.002

Frank Ian Laing (plaintiff) v. Boreal Pacific, A Division of Boreal Property and Casualty Insurance Company and Thwaites Norris Insurance Services Ltd. (defendants)

(T-1713-96)

Indexed As: Laing v. Boreal Pacific et al.

Federal Court of Canada

Trial Division

Reed, J.

February 17, 1999.

Summary:

A vessel owner sued its insurer, under a marine insurance policy, for loss sustained because of cargo (an excavator) going over­board while at sea. The insurer disputed the claim, arguing that the vessel was not sea worthy.

The Federal Court of Canada, Trial Divi­sion, dismissed the action because the vessel was not sea worthy.

Insurance - Topic 8581

Marine insurance - The risk - Exclusions - Unseaworthiness - A vessel owner lost an excavator, that was not secured to the vessel, overboard while at sea - He had no crew on board - The owner sued its insurer, under a marine insurance policy, for the loss - The insurer argued that the vessel was unseaworthy - The Federal Court of Canada, Trial Division, dismissed the owner's action - The vessel was unsea­worthy, which caused the loss - Given the sea conditions that the vessel could reason­ably be expected to encounter (1) the vessel was too heavily laden and (2) the excavator was unsafely 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.

Cases Noticed:

Biccard v. Shepherd (1861), 14 Moo. P.C.C. 471 (P.C.), refd to. [para. 3, footnote 2].

Harocopos v. Mountain (1934), 49 Lloyd's Rep. 267, refd to. [para. 3, footnote 2].

Reed (Albert E.) & Co. v. Page, Son & East Ltd., [1927] K.B. 231, refd to. [para. 3, footnote 2].

Foley v. Tabor (1861), 2 F. & F. 663, refd to. [para. 3, footnote 2].

Compania Maritima San Basilio S.A. v. Oceanus Mutual Underwriting Associ­ation (Bermuda) Ltd., [1976] 2 Lloyd's Rep. 171 (C.A.), refd to. [para. 45].

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. 45].

Statutes Noticed:

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

Authors and Works Noticed:

Arnould, Law of Marine Insurance and Average (1981), p. 573, para. 735 [para. 3, footnote 2].

Benedict, Admiralty (7th Ed. 1990), para. 67 [para. 3, footnote 2].

Bennett, H.N., The Law of Marine Insur­ance (1996), pp. 294, 296 [para. 3, foot­note 1].

Halsbury's Laws of England (4th Ed. - Reissue), vol. 43(2), p. 1126, para. 1653 [para. 3, footnote 2].

Counsel:

Aengus Fogarty, for the plaintiff;

R.R.C. Twining, for the defendant, Boreal Pacific.

Solicitors of Record:

Aengus Fogarty, Vancouver, British Col­umbia, for the plaintiff;

Killam, Whitelaw & Twining, Vancouver, British Columbia, for the defendant, Boreal Pacific;

Skorah Doyle Khanna, Vancouver, British Columbia, for the defendant, Thwaites Norris.

This action was heard at Vancouver, Brit­ish Columbia, on September 15, 1998, before Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 17, 1999.