Mercury Launch & Tug Ltd. v. Texada Quarrying Ltd., 2006 FC 464

• Judge: Gauthier, J.
• Court: Federal Court (Canada)
• Case Date: April 10, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 464;(2006), 290 F.T.R. 248 (FC)

Mercury Launch v. Texada Quarrying (2006), 290 F.T.R. 248 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. AP.037

Mercury Launch & Tug Ltd. (plaintiff) v. Texada Quarrying Ltd. (defendant)

(T-2207-03; 2006 FC 464)

Indexed As: Mercury Launch & Tug Ltd. v. Texada Quarrying Ltd.

Federal Court

Gauthier, J.

April 10, 2006.

Summary:

The Chemical Lime Company of Canada (CLC) hired Mercury Launch & Tug Ltd. to transport its limestone rocks from a barge loading facility operated by Texada Quarrying Loading Ltd. Pursuant to this agreement, a tug owned by Mercury brought a barge alongside the barge loading facility to be loaded with limestone. When a storm came up, the barge broke her moorings, came into contact with a concrete dolphin at the loading facility and grounded on nearby rocks. The barge was heavily damaged. Mercury sued Texada, claiming that Texada was a bailee of the barge, that Texada owed a duty of care to Mercury and that Texada breached its duty to provide a safe berth to which the barge could be secured. Only liability was in issue.

The Federal Court dismissed the action. The court found that the accident in this case and the damages to the barge were caused by the negligence of the master of the tug in failing to inquire about the actual conditions (winds and waves) at the berth and to take the barge out of her berth well before he did so.

Bailment - Topic 2

General principles - What constitutes a bailment - The Chemical Lime Company of Canada (CLC) hired Mercury Launch & Tug Ltd. to transport its limestone rocks from a barge loading facility operated by Texada Quarrying Loading Ltd. - Pursuant to this agreement, a tug owned by Mercury brought a barge alongside the barge loading facility to be loaded with limestone - The tug left the barge tied to a buoy - When a storm came up, the barge broke her moorings, came into contact with a concrete dolphin at the loading facility and grounded on nearby rocks - The barge was heavily damaged - Mercury sued Texada, claiming that Texada was a bailee of the barge while the barge was at the Texada facility - The Federal Court rejected the bailment argument and dismissed the action - The court held that Texada did not have sufficient possession and control of the barge to create a bailment - The court stated that the essence of bailment was possession and here Texada did not have sufficient possession of the barge to become a bailee - See paragraphs 39 to 76.

Bailment - Topic 44

General principles - Elements of a bailment - Requirement of possession or control - [See Bailment - Topic 2 ].

Shipping and Navigation - Topic 1164

Masters - Liability of master - Negligence - [See Shipping and Navigation - Topic 7703 ].

Shipping and Navigation - Topic 7703

Harbours, docks, piers, canals, locks and bridges - General - Negligence - The Chemical Lime Company of Canada (CLC) hired Mercury Launch & Tug Ltd. to transport its limestone rocks from a barge loading facility operated by Texada Quarrying Loading Ltd. - Pursuant to this agreement, a tug owned by Mercury brought a barge alongside the barge loading facility to be loaded with limestone - The tug left the barge tied to a buoy - When a storm came up, the barge broke her moorings, came into contact with a concrete dolphin at the loading facility and grounded on nearby rocks - The barge was heavily damaged - Mercury sued Texada, claiming that Texada breached its duty as owner of the berth to provide proper lines to tie the barge up and to adjust those lines appropriately during the loading - The Federal Court dismissed the action, holding that this was a clear application of the general principle set out in the classic cases dealing with the common law duty of a port/berth owner - Although the duty was not absolute, a dock owner had to take reasonable care to make the berth safe or had to give warning of any defect not known to the shipowner or of the fact that it had not taken steps necessary to satisfy itself that the berth was safe - In this case, the court was satisfied that the location of the berth and its layout gave sufficient warning as to its limitation in respect particularly of gale/storm winds from the south east - Here the weather conditions were not sudden and could and should have been apprehended by the master of the tug - The court held that the accident in this case was caused by the negligence of the master in failing to inquire about the actual conditions (winds and waves) at the berth and to take the barge out of her berth well before he did so - See paragraphs 77 to 161.

Shipping and Navigation - Topic 7705

Harbours, docks, piers, canals, locks and bridges - General - Bailment - [See Bailment - Topic 2 ].

Cases Noticed:

Ship Ruapehu, Re (1925), 21 Ll. L.Rep. 310 (C.A.), refd to. [para. 46].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287, dist. [para. 51].

London Drugs v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, dist. [para. 53].

Northland Navigation Co. v. Finning Tractor & Equipment Co., [1976] F.C.J. No. 407 (T.D.), refd to. [para. 66].

Seaspan International Ltd. v. Ship Kostis Prois, [1974] S.C.R. 920, refd to. [para. 67].

R. v. Halifax Shipyards Ltd. (1956), 4 D.L.R.(2d) 566 (Ex. Ct.), refd to. [para. 71].

Taylor Estate v. Wong Aviation Ltd., [1969] S.C.R. 481, refd to. [para. 72].

McCreary v. Therrien Construction Co. and Therrien, [1951] O.R. 735 (C.A.), refd to. [para. 72].

Ship Eastern City, Re, [1957] 2 Lloyd's Rep. 153 (C.A.), refd to. [para. 99].

Islander Shipping Enterprises S.A. v. Empresa Martima Del Estado S.A.; Ship Khian Sea, Re, [1979] 1 Lloyd's Rep. 545 (C.A.), refd to. [para. 133].

A/S Ornen v. Ship Duteous et al., [1987] 1 F.C. 270; 4 F.T.R. 122 (T.D.), refd to. [para. 134].

Ship Moorcock, Re (1889), 14 P.D. 64, refd to. [para. 138].

Ship Grit, Re, [1924] P. 246, refd to. [para. 138].

Great Lakes Steamship Co. v. Maple Leaf Milling Co., [1924] 4 D.L.R. 1101 (P.C.), refd to. [para. 138, footnote 19].

Authors and Works Noticed:

Palmer, N.E., Bailment (2nd Ed. 1991), pp. 103 [para. 46, footnote 7]; 489, 492 [para. 71, footnote 10].

Roscoe, Admirality, Jurisdiction and Practice (5th Ed. 1931), p. 85 [para. 138, footnote 19].

Counsel:

Shelly Chapelski and J. William Perrett, for the plaintiff;

Gary Wharton and David K. Jones, for the defendant.

Solicitors of Record:

Bromley Chapelski, Vancouver, British Columbia, for the plaintiff;

Bernard & Partners, Vancouver, British Columbia, for the defendant.

This action was heard at Vancouver, British Columbia, on December 5-15, 2005, by Gauthier, J., of the Federal Court, who released the following decision on April 10, 2006.