Fraser River Pile & Dredge Ltd. v. Ingenika ( The )
T-1631-93
Reed J.
21/3/95
22 pp.
Action for damages arising when boom of crane owned by plaintiff struck Cambie Street Bridge in British Columbia -- Whether plaintiff or defendants responsible for ensuring rig and crane boom could pass under bridge safely -- Plaintiff, marine construction company, engaging defendants to move barge, crane from dock at premises in Fraser River, New Westminster, to loading facility in False Creek -- Route to be followed requiring passing under several bridges including Cambie Street Bridge--Plaintiff (FRPD), corporate predecessors using Burrard's towing services for many years -- Rig wanted at False Creek location for March 8, 1993, at 7:30 -- The Ingenika used to tow plaintiff's rig -- Tip of crane boom four feet too high to pass under bridge -- Amount of damage agreed upon to large extent -- Amount attributable to loss of use for time rig under repair still in dispute -- Rig out of use for 134 days -- Difficult to determine exact height of boom above water -- Evidence clearly establishing captain of tug should know dimensions of what is being towed -- Must ensure tow low enough to pass under overhead obstructions -- Not acceptable practice to pick up tow without knowing height and tow it into stationary object such as bridge -- Tug neither insurer nor bailee of towed vessel and cargo -- Tug boat operators neither insurers nor common carriers--Bailee excused from responsibility for loss, damage, destruction of chattel if such occurs without his fault -- Finding bailment existed leading to same result arising from application of evidentiary principles in negligence claim or for breach of contract -- Burden of proving lack of fault shifting to defendants -- Contract requiring Burrard to inspect tow or goods prior to departure to ensure in suitable condition for intended voyage -- Burrard responsible for loss or damage caused by own negligence or that of employees or agents -- Clause cannot be interpreted as absolving defendants from obligation to turn minds to height of tow to assess whether suitable for intended voyage -- Defendants not even turning minds to height of tow -- Evidence not establishing custom or usage in trade -- Duty on defendants to ascertain whether tow suitable for intended voyage -- Fact exact height of boom tip not easily ascertainable by defendants not absolving them of obligation to address minds to that concern -- Captain of tug not only one negligent -- Lulled into false sense of security by practices of management of Burrard -- Absence of system to ensure either dispatcher or tug captain or both addressed mind to height of tow constituting negligence -- Defendants solely responsible for accident -- No contributory negligence by plaintiff -- Plaintiff entitled to claim for loss of use of crane and barge while undergoing repair -- Amount of fixed costs to be considered in determining loss of use claim should not cover whole period asset was out of service -- 34 days relevant period to which portion of fixed costs should be allocated -- Time frame relevant for assessing damages starts at date of accident -- Action allowed in part.