Date: 19990708
Docket: T-1344-98
ADMIRALTY ACTION IN REM AND IN PERSONAM
BETWEEN:
PETAR MARKOVIC
ON HIS OWN BEHALF AND ON BEHALF
OF HIS SPOUSE AND ON BEHALF OF HIS DEPENDANTS,
MIKLA MARKOVIC, GORAN MARKOVIC AND BOBAN MARKOVIC
Plaintiffs
AND
ABTA SHIPPING COMPANY LIMITED
-and-
TRADE FORTUNE INC. SA
-and-
THE OWNERS AND ALL OTHERS INTERESTED
IN THE "FLARE"
-and-
THE M.V. "FLARE" AND/OR THE PROCEEDS OF
ANY CLAIM UPON POLICIES OF INSURANCE
Defendants
REASONS FOR ORDER
NADON, J.
[1] The Plaintiff Petar Markovic seeks an order granting him summary judgment against the Defendant ABTA Shipping Company Limited ("the Defendant") on the issue of liability. The Plaintiff also seeks a reference under rule 153 of the Federal Court Rules, 1998 to determine the amount of the Defendant's liability.
[2] At the end of the hearing on July 5, 1999 I advised counsel that I would be dismissing the Plaintiff's motion because I was not satisfied, in the circumstances, that there were no genuine issues to be tried.
[3] By his Amended Statement of Claim, the Plaintiff alleges that he was a crew member on board the Defendant's ship, the M.V. Flare when she broke in two and sank of the coast of Newfoundland on January 16, 1998. The Plaintiff alleges that as a result thereof he suffered loss and damage for which the Defendant is liable.
[4] On this motion for summary judgment, the Plaintiff takes the position that there is no genuine issue to be tried, save the amount of his loss. Consequently, he seeks an order declaring that the Defendant is liable for the loss suffered.
[5] In seeking summary judgment, the Plaintiff relies on the "Accident Insurance" clause contained in his contract of employment with the Defendant. The clause reads as follows:
| The company insures the Employees against death or invalidity caused by accident while in the service of the company, according to the P & I risks, always in accordance with the limited to Employee's compensation as per P & I coverage. |
[6] The evidence before me is that, at the time of the accident on January 16, 1998, the M.V. Flare was duly entered with the UK P & I Club (the "Club"). The Plaintiff referred me to the Club's Rules and Bye-Laws and more particularly to section 2 thereof which, under the heading injury and death of seamen provides as follows:
| Liability to pay damages or compensation for personal injury or death of any seamen, and hospital, medical, funeral and other expenses necessarily incurred in relation to such injury or death, including expenses of repatriating the seaman and sending abroad a substitute to replace him. |
| Where the liability arises or the costs or expenses are incurred under the terms of a crew agreement or other contract of service or employment and would not have arisen but for those terms, that liability is not covered by the Association unless and to the extent that those terms shall have been previously approved by the Managers in writing. |
[7] The Plaintiff did not adduce any evidence regarding the injuries or disability which he claims to have suffered as a result of the January 16, 1998 accident. There is also no evidence before me that the Plaintiff has become "invalid". In my view, a determination of these issues is a prerequisite to a finding of liability against the Defendant grounded on the "Accident Insurance" clause. Consequently, I cannot come to a conclusion regarding the Defendant's liability based on the "Accident Insurance" clause in the contract of employment.
[8] I should perhaps note that the "Accident Insurance" clause provides that the Plaintiff will be insured "against death or invalidity caused by accident while in the service of the company, ...". Section 2 of the Rules and Bye-Laws of the Club states that the Club will provide coverage to the Defendant, a member of the Club, in regard to its liability to pay damages or compensation for personal injuries suffered by seamen. The Club's liability to the member, as appears from the introductory paragraphs to the Rules and Bye-Laws, only arises after the member has made payment to settle his liabilities or to pay the losses, costs and expenses for which he is liable. The introductory paragraphs to the Rules and Bye-Laws read as follows:
| Unless otherwise agreed between an Owner and the Managers, the risks covered by the Association are as set out in Sections 1 to 26 below, provided always as follows: |
| i. Unless and to the extent that the Directors otherwise decide, an Owner is only insured in respect of such sums as he has paid to discharge the liabilities or to pay the losses, costs or expenses referred to in those sections: |
[9] The second paragraph of Section 2 of the Rules and Bye-Laws provides that the Member's liability under the first paragraph of the Section is not covered by the Club when the member's liability "arises or the costs or expenses are incurred under the terms of a crew agreement or other contract of service or employment and would not have arisen but for those terms". If I understand the meaning of the paragraph, the Club does not cover a member's liability for personal injuries suffered by crew members when that liability arises on a contractual basis. Consequently, it would appear that the Defendant's undertaking to insure the Plaintiff would not be covered by the Club. It goes without saying that, at this stage, I am not deciding that point.
[10] I should also point out that the Defendant has taken the position that the Cyprus Collective Agreement for seamen aboard Cyprus and Tanker Vessels is relevant to the present debate. The Defendant argues that the terms and conditions of the collective agreement were incorporated into the Plaintiff's contract of employment. Clauses 2 and 3 thereof appear to have some relevance to the matter of insurance and they provide as follows:
2. Compensation of incapacity
| A Seafarer who sustains an accident during his employment, not through his own fault, including any accident while travelling to the vessel to assume duly or back from the vessel and whose capacity to work is reduced as a result of such accident, is entitled compensation, irrespective of duration of service. The compensation is based on the insurable amount of DRS 16,200,000 and is calculated according to the following rations: |
Degree of
incapacity % of compensation
100% 66%
75% 63%
60% 48%
50% 40%
40% 30%
30% 20%
20% 12%
10%
3. Compulsory insurance:
| The Shipowner is obliged to offer full insurance cover with regard to claims that may arise in the application of terms 1., 1 and 2 of this Chapter. |
[11] The Defendant submits that the Plaintiff is entitled to compensation based on the above clauses of the Collective Agreement. In that regard, the Defendant relied on the affidavit of Captain Rade Nikitovic, the manager of Hemosum Shipmanagement, a manning agency in Bar, Yugoslavia. In his affidavit dated June 16, 1999 Captain Nikitovic states that he hired the Plaintiff as an electrician for the M.V. Flare and clearly explained to him that the Cyprus Collective Agreement was applicable to the contract of employment which he was about to sign. Captain Nikitovic states that the Plaintiff informed him that he understood the explanation that had been given to him.
[12] Whether or not the terms and conditions of the Collective Agreement have been incorporated in the Plaintiff's contract of employment, I cannot say. There is not sufficient evidence before me to come to a conclusion. However, what I can say is that Captain Nikitovic's evidence is sufficient, at this stage, to lead me to the conclusion that there appears to be a genuine issue to be tried in regard to the terms and conditions of the contract of employment and more particularly with regard to the Defendant's undertaking to insure the Plaintiff.
[13] Those are the reasons which led me to conclude, at the end of the hearing, that the Plaintiff's motion for summary judgment could not be granted. Costs shall be in the cause.
Marc Nadon
Judge
MONTREAL, QUEBEC
July 8, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1344-98
STYLE OF CAUSE: ADMIRALTY ACTION IN REM AND IN PERSONAM
| PETAR MARKOVIC, ON HIS OWN BEHALF AND ON BEHALF OF HIS SPOUSE AND ON BEHALF OF HIS DEPENDANTS, MIKLA MARKOVIC, GORAN MARKOVIC AND BOBAN MARKOVIC |
Plaintiffs
AND
| ABTA SHIPPING COMPANY LIMITED, TRADE FORTUNE INC. SA, THE OWNERS AND ALL OTHERS INTERESTED IN THE "FLARE", THE M.V. "FLARE" AND/OR THE PROCEEDS OF ANY CLAIM UPON POLICIES OF INSURANCE |
Defendants
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: July 5, 1999
REASONS FOR ORDER OF NADON J.
DATED: July 8, 1999
APPEARANCES:
Me J. Kenrick Sproule
| Me Valerie Boucher for the Plaintiffs |
| Me David G. Colford for the Defendants |
SOLICITORS OF RECORD:
Sproule Castonguay Pollack
| Montreal, Quebec for the Plaintiffs |
Brisset Bishop
| Montreal, Quebec for the Defendants |