North King Lodge Ltd. v. Gowlland Towing Ltd. et al., (2005) 219 B.C.A.C. 74 (CA)

• Judge: Prowse, Smith and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 21, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 219 B.C.A.C. 74 (CA);2005 BCCA 557

North King Lodge v. Gowlland Towing (2005), 219 B.C.A.C. 74 (CA);

    361 W.A.C. 74

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. NO.045

North King Lodge Ltd. (appellant/respondent by cross-appeal/plaintiff) v. Gowlland Towing Ltd. (respondent/defendant) and T. & D. Carter Holdings Ltd. (respondent/appellant by cross-appeal/defendant)

(CA031875; 2005 BCCA 557)

Indexed As: North King Lodge Ltd. v. Gowlland Towing Ltd. et al.

British Columbia Court of Appeal

Prowse, Smith and Lowry, JJ.A.

November 21, 2005.

Summary:

A logging company contracted with Ashlaur Trading Ltd. to undertake logging operations under a timber licence held by Ashlaur. The logging company chartered a ship to provide accommodations for its logging crew. The ship's owner secured the ship's port side to anchored boom sticks owned by Ashlaur. When the logging season ended, Ashlaur had a towing company remove the boom sticks. The ship was left secured only by its bow and stern such that she laid across the flow of the tide without the lateral support of the boom sticks. The ship sank. The owner sued the logging company and the towing company.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 460, assessed fault 80% against the owner and 20% against the logging company. The action against the towing company was dismissed. The owner appealed. The charterer cross-appealed.

The British Columbia Court of Appeal dismissed the appeal, allowed the cross-appeal, set aside the judgment against the logging company and dismissed the action.

Bailment - Topic 2

General principles - Definitions - What constitutes a bailment - A logging company contracted with Ashlaur Trading to undertake logging operations under Ashlaur's licence - The logging company chartered a ship to provide accommodations for its logging crew - The ship's owner secured the ship's port side to Ashlaur's anchored boom sticks without Ashlaur's permission - When the logging season ended, Ashlaur had a towing company remove the boom sticks - The ship was left partially secured - The ship became grounded, flipped on its side and sank - The owner sued for damages - The trial judge concluded that the agreement between the owner and the logging company was a bailment and assessed fault 20% against the logging company for breaching an implied term to take reasonable steps to inform the owner of any possible danger to the ship of which it became aware - The British Columbia Court of Appeal allowed an appeal - The logging company had a licence to occupy the ship for a limited purpose - The owner never gave up possession and was responsible for safe moorage - This was a time charter, not a charter by demise - No bailment arose - The trial judge erred by implying an additional obligation.

Shipping and Navigation - Topic 866

Charter of ships - The charterparty - General - Charter not by demise - [See Bailment - Topic 2 ].

Shipping and Navigation - Topic 881

Charter of ships - The charterparty - Liability for loss of ship - General - [See Bailment - Topic 2 ].

Shipping and Navigation - Topic 948

Charter of ships - The charterparty - Time charter - Breach - [See Bailment - Topic 2 ].

Shipping and Navigation - Topic 5075

Collisions and groundings - Rules of the sea - Moored vessels - [See Bailment - Topic 2 ].

Shipping and Navigation - Topic 5075

Collisions and groundings - Rules of the sea - Moored vessels - A logging company contracted with Ashlaur Trading to undertake logging operations under Ashlaur's licence - The logging company chartered a ship to provide accommodations for its logging crew - The ship's owner secured the ship's port side to Ashlaur's anchored boom sticks without Ashlaur's permission - When the logging season ended, Ashlaur had a towing company remove the boom sticks - The ship was left partially secured - It became grounded, flipped on its side and sank - The British Columbia Court of Appeal affirmed that the securing of the ship to the boom sticks constituted a trespass - Although such securing might be a common practice and in most instances might not be objectionable, that did not mean that it was predicated on any implied permission - See paragraphs 13 to 19 - Where, as here, there was no risk of injury to any person, it would have to be an exceptional case for the duty of common humanity to raise the standard of care owed beyond that which was commensurate with the duty not to cause damage to the trespasser intentionally or by reckless conduct - The duty of common humanity could not, as suggested by the owner, raise the standard to that of exercising reasonable care for the trespassing ship's safety - The towing company met the requisite standard - See paragraphs 20 to 33.

Shipping and Navigation - Topic 5324

Collisions and groundings - Negligence - General - Duty of charterer or charterer's agent - [See Bailment - Topic 2 ].

Torts - Topic 3851

Occupiers' liability or negligence for dangerous premises - Trespassers - Duty of occupier to trespassers - [See second Shipping and Navigation - Topic 5075 ].

Torts - Topic 3852

Occupiers' liability or negligence for dangerous premises - Trespassers - What constitutes a trespasser - [See second Shipping and Navigation - Topic 5075 ].

Torts - Topic 3855

Occupiers' liability or negligence for dangerous premises - Trespassers - Standard of care of occupier - [See second Shipping and Navigation - Topic 5075 ].

Cases Noticed:

Addie (Robert) & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358; [1929] All E.R. 1 (H.L.), refd to. [para. 23].

Canadian Pacific Railway Co. v. Anderson, [1936] S.C.R. 200; [1936] 3 D.L.R. 145, refd to. [para. 23].

Grand Trunk Railway Co. of Canada v. Barnett, [1911] A.C. 361 (P.C.), refd to. [para. 23].

Herrington v. British Railways Board, [1972] A.C. 877; [1972] 1 All E.R. 749 (H.L.), refd to. [para. 24].

Pannett v. McGuinness (P.) & Co., [1972] 3 All E.R. 137; [1972] 3 W.L.R. 386 (C.A.), refd to. [para. 26].

Veinot v. Kerr-Addison Mines Ltd., [1975] 2 S.C.R. 311; 3 N.R. 94; 51 D.L.R.(3d) 533, refd to. [para. 28].

Phillips v. Canadian National Railways, [1975] 4 W.W.R. 135; 61 D.L.R.(3d) 253 (B.C.C.A.), refd to. [para. 28].

Anderson v. Whitepass Transportation Ltd., [1994] Y.J. No. 9 (C.A.), refd to. [para. 28].

Northern Native Fishing Corp. v. Canada (1987), 13 F.T.R. 153 (T.D.), refd to. [para. 30].

Lockhart v. Calgary (City), [1975] A.J. No. 165 (Dist. Ct.), refd to. [para. 30].

Newa Line v. Erechthion Shipping Co. SA; Ship Erechtion, Re, [1987] 2 Lloyd's Rep. 180, refd to. [para. 44].

Allison Concrete Ltd. v. Canadian Pacific Ltd. (1973), 40 D.L.R.(3d) 237 (B.C.S.C.), refd to. [para. 45].

London Drugs Ltd. v. Brassart and Vanwinkel (1990), 45 B.C.L.R.(2d) 1; 70 D.L.R.(4th) 51 (C.A.), affd. [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1; [1993] 1 W.W.R. 1; 97 D.L.R.(4th) 261; 73 B.C.L.R.(2d) 1, refd to. [para. 51].

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

Punch v. Savoy's Jewellers Ltd. et al. (1986), 14 O.A.C. 4; 26 D.L.R.(4th) 546 (C.A.), refd to. [para. 52].

Authors and Works Noticed:

Clerk, John F., and Lindsell, The Law of Torts (18th Ed. 2000), p. 787 [para. 14].

Hill, Christopher, Maritime Law (5th Ed. 1998), pp. 177 to 180 [para. 44].

Klar, Lewis N., Tort Law (3rd Ed. 2003), p. 534 [para. 31].

Scrutton, Charterparties and Bills of Lading (20th Ed. 1996), pp. 59, 60 [para. 44].

Counsel:

J.W. Bromley, for the appellant;

D.F. McEwen, Q.C., for the respondent, Gowlland Towing Ltd.;

J.D. Buchan, for the respondent, T. & D. Carter Holdings Ltd.

This appeal was heard at Vancouver, British Columbia, on September 13 and 14, 2005, by Prowse, Smith and Lowry, JJ.A., of the British Columbia Court of Appeal. Lowry, J.A., delivered the following judgment for the court on November 21, 2005.