H. B. Nickerson & Sons Ltd. v. Insurance Co. of North America and ors (The J E Kenney) - Fed.Ct. of Appeal (Pratte, Marceau and Le Dain JJ.) - 26 October 1983

Marine insurance - Vessel’s unexplained loss in harbour - Whether occasioned by peril of the sea

The plaintiffs’ fishing trawler J E Kenney was insured by the defendant underwriters. In May 1975 she filled with seawater and sank alongside a wharf at Riverport, Nova Scotia. The weather was fair and the water calm. There was no unusual tide action. An inspection after she was raised disclosed no probable explanation of the sinking. The policy was to be construed in accordance with English law. The onus was on the plaintiffs to establish a prima facie case that the vessel sank because of a peril insured against. The plaintiffs argued that the vessel’s loss was occasioned by a peril of the sea covered under the general clause of the policy. At first instance, the judge referred to Marion Logging v. Utah Home Hire Insurance (1956) 5 D.L.R. (2d) 700 where MacFarlane J. of the Supreme Court of British Columbia had said: