Date: Thu, 12 Feb 2004 11:37:43 -0500

From: Jason Neyers

Subject: NESS Question

Dear Colleagues:

A question for those of you familiar with the NESS test.

On the facts of the Lake Winnipeg case [excerpted below] is the second grounding a cause-in-fact of the 27 days detention in the dry-dock using NESS?

Could one argue that the second grounding was a cause since it was necessary for the sufficiency of a set of actual conditions which included another grounding which was "at least powerful enough" (14 days) to be sufficient for the 27 day drydock when combined with the second grounding (13 days)?

Or is the better argument that this is really a case of pre-emptive causation. The first grounding caused the 27 days in dry-dock; the second did not since it had already been occasioned. This interpretation would be similar to a situation where one fire had already burnt down a house and another fire then comes over top of where the house has stood.

I would be interested in your thoughts.

For those unfamiliar with the case, the facts from the judgment (1991) 77 DLR (4th) 701 (SCC) are as follows:

On June 7, 1980, the "Kalliopi L", while downbound on the St. Lawrence River, met but did not collide with, the upbound "Lake Winnipeg". Immediately after the meeting, the "Kalliopi L" went aground. The trial judge found that the "Lake Winnipeg" and her owners were entirely responsible for this grounding. In proceeding to an anchorage area, the "Kalliopi L" again, though through no fault of the "Lake Winnipeg", went aground and suffered further damage. The second incident was unrelated to the first. Each grounding alone would have required the "Kalliopi L" to proceed immediately to dry dock for repairs once her cargo had been discharged. The time in dry dock necessitated by damage repairs occasioned by both incidents was 27 days. The detention in dry dock for repairs from the first incident alone would have required the full 27 days. If, however, repairs relating to the second incident were carried out separately, only 14 days in dry dock would have been necessary.

Sincerely,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

<<<< Previous Message  ~  Index  ~  Next Message >>>>>