DIVISION OF DAMAGES (AN ANCILLARY)

DIVISION OF DAMAGES (AN ANCILLARY)

1. Three Methods of Apportioning Damages

Originally, in the common law, when both parties to a tort claim were at fault neither party recovered anything. If the plaintiff was found to be even 1% at fault they would recover nothing. A harsh rule attenuated by exceptions (e.g., “last opportunity rule” or “last clear chance rule” in United States – full damages to plaintiff because defendant has last chance to avoid accident) and now limited or abolished by statute.

All parties to the “common maritime adventure” were expected to share burdens (and benefits) equally. Not always an accurate or equitable assessment of responsibility. This is done no matter what the respective faults. Not always an accurate or fair assessment of responsibility.

Liability is in proportion to degree of fault. The rule in Article 4(1) and (2) of the Brussels Collision Convention, 1910, adopted by most maritime nations but not the United States. Seen as more equitable.

2. Division of Damages and National Approaches

1. United Kingdom

2. Canada

• 
  In Quebec, art. 1053 CCLC (as interpreted by SCC in 1899 and Mignault in 1901) provided for proportionate fault.
  
• 
  Now,
  
  • 
    Art. 1478 CCQ – an injury caused by several persons is shared by them in proportion to the seriousness of the fault of each…the victim is included in the apportionment when the injury is partly the effect of his own fault
    
  • 
    Art. 1536 CCQ – a solidary debtor who has performed the obligation may not recover from his co-debtors more than their respective shares, although he is subrogated to the rights of the creditor
    
• 
  Proportionate fault also applies in respect of the division of damages resulting from maritime torts other than ship collisions.
  
• 
  In 1924 Ontario abolished contributory negligence, NB abolished it in 1926 and NS in 1927
  
• 
  Almost the entire world abolished the rule but many parts took a while to do it including many parts of the Commonwealth – this dealt with everything provincial and assumed that people on water in boats were provincial – in the end it becomes Federal.
  
• 
  Canada has the Marine Liability Act, 2001 – this applies for ships as well as individuals (the Collision Convention only deals with ships)
  
  • 
    p.256 – proportionate damages based on degree of fault…joint and several liability also mentioned (s.17)
    
  • 
    joint and several liability between tortfeasors with chance to recover proportionately from either or both, or between each other
    

The cases below were leading up to this – this problem seems to have been completely solved in Canada with the above act, but not so much so in the United States.

1. Bow Valley Husky v. St. John Shipbuilding, [1997] 3 SCR 1210.

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  Court recognized problem of contributory negligence imported into Canada in 1934 as per BA Maru (Canadian maritime law = English Admiralty Law which was essentially Eng common law of contracts/torts as per 1934 frozen had contributory negligence only eliminated in favor of proportionate fault in 1945).
  
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  In Bow Valley, court had to confront issue because law received into Canada as per 1934 contained a bar to recovery for contributory negligence.
  
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  Supreme Court said Canadian maritime law would have to change to keep in step with fabric of Canadian society and reflect modern views (dynamic fabric theme resurfaces in Ordon v. Grail), justice and fairness. Commentators had been questioning whether this rule against contribution was not absolute, especially when the tort is not committed intentionally and there is no malicious intent – the idea that there can be no contribution between tortfeasors is anachronistic and not keeping with modern notions of fairness. As in Tolofson, here Supreme Court took a creative approach to eliminating the contributory negligence bar.
  

2. Ordon Estate v. Grail [1998] 3 S.C.R. 437

Went further here and said that relatives had a right to claim and invoked provincial law.

Application of principles of Bow Valley to this action – any liability found apportioned in proportion to fault
After this, the Federal Government created the Marine Liability Act in 2001 to create proportionate fault in all respects – it covers all these problems (CB p.255, s.16, 17(1) and (2) – see course outline). The principles of proportionate fault, joint and several liability of tortfeasors and contribution among joint tortfeasors, in respect of maritime torts other than ship collisions, have now been given statutory forces in Canadian maritime law.
In respect of losses incurred by ships, cargo and other property on board, proportionate fault still applies, but the liability is not joint and several, in accordance with the Collision Convention 1910. The damages awarded in such cases may include loss of earnings resulting to the ship or ships.
Questions:

1) Do provincial superior courts have jurisdiction in maritime tort cases? (Yes)

2) Are provincial statutes applicable in maritime tort cases? (Yes, but federal law supersedes)

3) Can plaintiffs claim for loss of care and companionship? Can trustees claim? Can siblings? (Yes, Yes, No)

4) Does Negligence Act apply in apportioning maritime fault? (Maritime law has its own rule of proportionate fault, so unnecessary to consider)
1. Jurisdiction of provincial courts in maritime law:

In accordance with principle of inherent jurisdiction, provincial superior courts have jurisdiction over matters involving maritime law including negligence actions resulting from collisions. Federal Court Act supports this, providing that the Federal Court (Trial Division) has concurrent jurisdiction.

• 
  Canada Shipping Act sets out a statutory regime allowing dependants of maritime accident victims to bring actions in the Admiralty Court (defined in s. 2 as the Federal Court.) but does not state that the Admiralty Court has exclusive jurisdiction, so must only have concurrent jurisdiction.
  

Where Parliament has not legislated on a maritime matter, the inherited non-statutory principles of Canadian maritime law as developed by the courts are applicable (and may be reformed by the courts where appropriate).

• 
  Canada Shipping Act list of eligible plaintiffs does not include siblings; inappropriate for court to amend list. Unconstitutional for Family Law Act to amend list. It is appropriate for the Court to reform Canadian maritime law to allow a claim by an executor brought in the name of the deceased with respect to an action which the deceased could have brought had he or she lived.
  
• 
  An innocent third vessel and its cargo colliding with two ships that have collided may recover in full from the two other vessels jointly and severally (Tetley’s analysis based on British interpretation of their Maritime Conventions Act which, like the virtually identical Canada Shipping Act, contains no reference to third parties.)
  

A general regime of apportionment of liability according to fault, with joint and several liability among tortfeasors and contribution between tortfeasors, applies in Canadian maritime negligence actions, so not necessary to consider the constitutional application of the Negligence Act.

3. United States

1. United States v. Reliable Transfer Co., 421 U.S. 397.

• 
  In the 1975 U.S. Supreme Court reversed The Catharine and imposed the proportionate fault rule (called “comparative fault”) for ship collision damages (other than damage to cargo, persons and other innocent third parties).
  

• 
  Decision did not impose proportionate damages on cargo so that under US law cargo on either vessel may still recover 100% of its loss from the non-carrying vessel, even if that vessel is at fault only to a partial degree.
  
• 
  Follows the US Supreme Court decision of 1876 in Atlas where the court held that cargo owners on the carrying vessel were entitled to 100% recovery from the colliding vessel, although this latter vessel might have been only partially at fault.
  
• 
  This contradicts Hague Rules 1929 adopted as US COGSA. Under Hague Rules, an error in navigation is a valid defense available to the carrying vessel against its cargo. When cargo owners claim against the colliding vessel and get 100% recovery, the colliding vessel can get a proportion back from the carrying vessel so that the latter becomes indirectly responsible for/to its own cargo, contrary to Hague Rules/COGSA. This is know as the “Both to Blame” clause.
  
• 
  The U.S. is “out of step”, but Tetley concedes that the cargo is an innocent third party – so maybe the US is right. Under laws of most other countries in the world, certain innocent third parties, including innocent third vessels, landing stages, stationary objects and even persons already recover fully, even in the US. The other thing is that sea travel today is less risky then it once was.
  
• 
  Adoption of the Hamburg Rules by everyone would solve the problem since it allows cargo claimants to claim part from carrying vessel and part from colliding vessel, according to fault – defense of error in navigation is abolished. The Hague/Visby rules, however, only allow the cargo claimant to recover damages from the colliding vessel according to its fault. We may need proportionate fault as it applies to cargo damage.
  

• 
  A very heavy presumption of causation – if a ship violates a statutory rule intended to prevent collisions that ship must show that her fault could not have been one of the causes of the damage. Contribution between joint tortfeasors jointly and severally liable.
  
• 
  The Collision Convention 1910 abolished all presumptions but US was not a party to this – Tetley believes that this rule is incompatible with comparative fault, but most decisions are not of this view.
  

• 
  by adopting proportionate fault, this case has done away with the last clear chance rule, the last opportunity rule, the major/minor fault rule, and other similar rules
  

• 
  There is joint and several liability for two ships that collide and are both at fault when there is a claim by an innocent third party. If one settles with claimant, that party may not then claim from the other tortfeasor because no court determination of damages/proportionate fault.
  

• 
  Courts decided it was time to get rid of divided damages even if the legislature wouldn’t – terribly important for the Americans and the rest of the world
  
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  Is this violating what the role of the judge should be – it was appropriate to contradict themselves
  

4. France

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  Maritime law developed apart from the civil law and adopted divided Damages – French civil law now applies proportionate damages
  
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  Collision Convention, 1910 (in effect in 1915 in France) – France applies the same rules for collision damages as the UK and Canada. Adoption of this was not as difficult because this principles was already enshrined in the civil law.
  
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  Cargo on board one of the vessels at fault may only recover from the colliding vessel in proportion to that vessel’s fault (see above).
  

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