The Consolidated Mining and Smelting Company
of Canada Limited (Plaintiff)
v.
Straits Towing Limited (Defendant)
Trial Division, Cattanach J.—Vancouver, B.C.,
November 22, 23, 24, 25, 26 and 29, 1971;
Ottawa, July 28, 1972.
Maritime law—Loss of cargo aboard barges—Barges sink
while moored at usual booming ground—Whether loss
caused by peril of sea—Whether towing company exempt
from liability.
Two barges carrying plaintiff's goods were towed by
defendant towing company to Port McNeill, B.C., and there
moored tied together at a booming ground, the usual place
for mooring defendant's barges. The following morning the
barges were found sunken with a freshly broken pile from
the boom protruding through the deck of one of the barges.
An action by plaintiff against the tug's master for negligence
was dismissed by the Supreme Court of Canada (Cominco
Ltd. v. Bilton [1971] S.C.R. 413), and plaintiff brought
action against the towing company. The shipment was cov
ered by bills of lading which were subject to the Carriage of
Goods by Water Act, R.S.C. 1970, c. C-15. It was agreed
that the barges sank because two of the underwater pilings
forming part of the standing boom to which the stern of one
of the barges was tied became broken, permitting the barge
to swing in, and that the barge became impaled on one of
the broken piles, most likely by settling upon it with the fall
of the tide.
Held, dismissing the action, the loss of plaintiff's cargo
arose from a peril of the sea, viz. the underwater pilings,
which in the circumstances was not foreseeable. The
Xantho (1887) 12 App. Cas. 503, applied. On the evidence,
the barges were seaworthy, the tug and barges were proper
ly manned and equipped, and there was no negligence by
the defendant.
ACTION for damages for loss of cargo.
W. J. Wallace, Q.C. for plaintiff.
W. O. M. Forbes for defendant.
CATTANACH J.—This is an action brought by
the plaintiff, a body corporate, against the
defendant, also a body corporate, to recover
damages for loss or injury to cargo owned by
the plaintiff which the defendant had agreed to
load in its barges and transport by water from
Vancouver, British Columbia, to Port McNeill,
British Columbia.
The action arose from the sinking of two
scows at their mooring at Port McNeill, and
also gave rise to other litigation. The plaintiff
herein, on December 7, 1964 brought a separate
action against Captain Thomas E. Bilton, the
defendant's master in charge of towing the
scows to Port McNeill. The style of cause was
Cominco Ltd. v. Billon. The plaintiff changed
its corporate name. The action, based on the
negligence of the master, was tried before Mr.
Justice Sheppard who dismissed the action on
October 3, 1968. An appeal to the Supreme
Court of Canada was dismissed [1971] S.C.R.
413. Mr. Justice Ritchie delivered the judgment
on behalf of himself, Cartwright C.J., Abbott
and Martland, JJ.; Spence J. dissented. The
allegations of negligence on the part of the
master were that the scows were moored at a
booming ground that was unsafe and that the
scows were left there unattended. It was held
the master had nothing to do with the selection
of the mooring place, nor was he responsible
for supervision of the scow s while they lay at
mooring. It was also alleged that the master was
negligent in the manner in which the scows
were tied.
Mr. Justice Ritchie said at page 430:
If this action had been brought against Straits Towing
Limited, other considerations might have applied, but in
suing the tug master, the appellant assumed the burden of
proving that his negligence was a probable cause of the loss,
and in my opinion, viewing the evidence as a whole, it
cannot be said that this burden has been discharged.
This action is brought against Straits Towing
Limited and accordingly I am obliged to consid
er the other considerations that may be
applicable.
It was agreed between counsel that the evi
dence in Cominco Ltd. v. Bilton, as contained in
the appeal book, should constitute part of the
evidence in the present action. It was supple
mented by the calling of other witnesses.
There was an arrangement, beginning in
1960, between the plaintiff and the defendant,
part of which was oral and part of which was
evidenced in correspondence exchanged
between them, whereby the defendant agreed to
carry cargo owned by the plaintiff from Van-
couver to the Mannix Grid (to all intents a
wharf) at Port McNeill by tug and barge.
As a result of this agreement the defendant
carried various shipments of cargo from Van-
couver to Port McNeill.
The plaintiff operates, through a subsidiary
company, a copper mine at Benson Lake, about
twenty-five miles inland from Port McNeill.
Benson Lake was the ultimate destination of
the plaintiff's cargo.
The procedure adopted by the defendant in
transporting the cargo involved four stages.
First the barges were loaded at the defendant's
terminal at False Creek and then towed to Kit-
silano Buoy and tied there. The second stage
was that the barge or barges moored at Kit-
silano Buoy were taken in tow by an ocean
going coastal tug and towed to Port McNeill.
The third stage was that, upon arrival at Port
McNeill, the barges were moored.
The defendant's contract with the plaintiff
was performed and concluded when the barges
were delivered to the Mannix Grid at Port
McNeill. There was not sufficient water on the
Mannix Grid to permit of ocean-going coastal
tugs to tow the barges to that wharf. Therefore
a mooring in deeper water was necessary. Origi
nally the defendant moored its barges at the Ore
dock, also known as The Empire Development
Company, Limited dock. In June 1961 the
Empire Company advised the defendant to
desist from mooring there. The defendant was
not permitted to moor at the Government Dock
(also known as the Rayonier Dock) unless a tug
remained in attendance because the very few
remaining coastal freighters and passenger ships
tied up there. To leave the tug in attendance
would defeat the entire underlying basis of
coastal shipping by tug and barge.
At this point I digress to mention that under
lying basis as outlined in evidence.
In the past all coastal shipping was done by
steamers. However the cost of operating steam
ers became prohibitive due, amongst other
things, to the sharp raise in seamen's wages
which in British Columbia are reputed to be the
highest in the world. Accordingly almost every
steamship company engaged in coastal shipping
abandoned the trade and sold their ships. The
great bulk of coastal shipping is done by tug and
barge. It is cheaper and more efficient. The
crew on the tug is much smaller than on a
steamer. The cargo is on a barge which is left at
its destination for the consignee to unload at
leisure, whereas the steamer has cargoes of
many consignees on board and at a particular
destination the steamer must remain at that
destination while the cargo of the consignee at
that port is unloaded. Frequently the stay is
lengthy with the cost mounting correspondingly.
By the tug and barge method, the barge is left
there for the consignee, and it is inherent in the
system that the tug departs forthwith to pick up
another tow rather than remain idle at the point
of discharge. It is for this reason that transpor
tation by water by means of tug and barge can
operate. In short the steamers have been forced
out of business by the high cost of their opera
tion and the void has been filled by the tug and
barge method.
Accordingly, after June 1961, it became usual
for the defendant and its masters to moor its
scows at the Rayonier booming ground.
Between the period January 1, 1961 (which
antedates June 1961) to January 1962 fifty-two
barges towed on forty-six voyages, had been
moored there. No harm came to any of the
fifty-two barges so moored. The Rayonier
booming ground appears to have the only moor
ing facility remaining at Port McNeill which
was available to the defendant.
The booming ground was used by Rayonier to
hold its logs and several witnesses testified that
Rayonier was a major company and as such
maintained its facilities.
If I recall the evidence, Rayonier was a sub
sidiary of the plaintiff, but that is immaterial
because the contract between the plaintiff and
the defendant was that delivery of the plaintiff's
cargo be at the Mannix Grid. That was agreed
upon by counsel and the matter was argued on
that basis. Therefore, delivery to the Rayonier
booming ground was not performance of the
contract even though Rayonier may have been a
subsidiary of the plaintiff.
The fourth and concluding stage of the voy
ages by the defendant carrying the plaintiff's
cargo was that after the barges were moored at
the booming ground a small tug owned and
operated by Rayonier towed the barges from
the booming ground to the Mannix Grid. This
was by arrangement between the defendant and
Rayonier and the expense was borne by the
defendant. In short the fourth stage of the
voyage was completed by Rayonier on behalf of
the defendant as its agent.
When the barges were moored at the Mannix
Grid the plaintiff had contracted with Continen
tal Explosives Limited to unload the cargo and
transport it inland to Benson Lake.
On Friday January 5, 1962 at about 11:15 the
dispatcher of the defendant instructed Captain
Bilton, the master of the tug Victoria Straits
owned by the defendant, to pick up two scows
moored at Kitsilano Buoy which were loaded
with the plaintiff's cargo and take them to Port
McNeill. All that Captain Bilton was told was
"to pick up the two scows at Kitsilano Buoy
and take them to Port McNeill for C. M. & S.".
Captain Bilton had only been employed by
the defendant as master for about two weeks.
He had never been to Port McNeill during his
employment with the defendant. However Cap-
tain Bilton was an experienced master and had
been to Port McNeill previously on two occa
sions during the course of his engagement by
other employers in charge of a tug towing logs.
The Victoria Straits was one of the most
powerful and modern tugs owned by the
defendant. It was manned by an officer and
deckhand in addition to the master which is the
normal complement.
Following receipt of these instructions the
Victoria Straits took in tow the two scows, the
G. of G. 99 and Straits 64 and at about 11:30
was full away for Port McNeill.
After a smooth passage the Victoria Straits
arrived at Port McNeill on Sunday January 7,
1962 between 2:30 and 3:00 p.m. and with the
two scows in tow landed at the Government
Dock.
There R. J. H. Simpson, an employee of
Continental Explosives Limited which was
under contract with the plaintiff, was at the
dock to receive the manifest of the goods for
the plaintiff which was delivered to him by the
mate. The mate asked Simpson about tying up
the barges at the Government Dock whereupon
Simpson pointed to the Rayonier booming
ground about a mile west of the Government
Dock as the usual place where the defendant
tied its barges behind a storm wall.
It is my recollection of the evidence that the
defendant had advised the foreman of Rayonier
at Port McNeill of the estimated time of arrival
of the Victoria Straits but in any event it was
clear that Rayonier did not intend to move the
barges from the booming grounds to the Mannix
Grid on Sunday and the barges usually stayed at
the booming ground until the tide was suitable
for docking at the Grid.
The spot where the captain moored the scows
was 250 feet north-west of or behind the break
water, outside the actual booming ground in a
depth of water to 27 feet. Captain Bilton had
testified that having been directed to the boom
ing ground, he looked for the safest place to tie
up. He looked for a spot furthest out and with
the deepest water.
On arrival at the northern extremity of the
booming ground the captain found a line of
dolphins from one of which there hung a string
wire cable about 18 feet in length. The captain
decided that this was the place to tie the scows.
The presence of the line on this dolphin was an
invitation to use it. The captain instructed the
mate to use the running end to tie up one of the
scows, which were tied side by side to each
other. This the mate did. There is no indication
that this line was not secure. It had been tied to
a stanchion on the forward port corner of the
innermost barge. There was about 5 feet of free
line.
The captain's object was to tether the inner
scow lengthwise along the northern edge of the
booming grounds which consisted of boom-
sticks. Boomsticks are a double row of rough
logs held in place by being attached at fixed
intervals to single piles about 10 to 16 inches in
diameter and driven into the bottom.
The purpose of this tie-up was to secure the
stern of the innermost scow by a strandflex
wire line so as to permit the line to slide along
the length of the boomstick in the event of
movement of the scow. There was no evidence
upon which to conclude that these lines were
not properly tied.
On arrival of the Victoria Straits there was a
light westerly wind of 10 to 15 knots, but the
arrival did coincide with the highest tide of the
year. At 1:15 it was 17.3 feet above low water
and at 3:10 it was 14.9 above low water level,
at 8:15 it was 13.6 feet above low water.
The Victoria Straits must have left the Gov
ernment Dock shortly after 2:30, and made its
way to the booming ground. After having
accomplished the tie-up as above described,
Captain Bilton departed with the tug as directed
by the defendant to pick up a barge at Engle-
wood sometime between 3:10 and 3:30 leaving
the barges unattended.
There was no one working about the booming
ground that Sunday afternoon so no one made
any observation of the barges.
At 7:30 on the morning of Monday, January
8, 1962 Rayonier's boom foreman found the
scows to have sunken. They were lying flat on
the bottom with a freshly broken pile about 11
feet in height through the bottom planking and
protruding through the deck of the G. of G. 99
by about 2 feet. It was one of the piles of the
standing boom. The distance between the
bottom of the barge and its deck was 9 feet.
The scows had sunk, not along the northern
limit of the booming ground but across the line
of that north limit and lying not north and
south, but east and west.
Salvage operations were begun to recover the
barges and cargo.
An amateur scuba diver found both barges
flat on the bottom with the line from the dol
phin to the innermost barge still attached and
"singing" taut. G. of G. 99 was holed on the,
starboard side of the bottom aft with the newly
broken pile still there. Straits 64 was holed
amidship.
The wrecks were subsequently inspected by a
professional diver who confirmed the findings
of the first diver.
Neither diver could find the lines between the
two barges, nor the line from the stern of the G.
of G. 99 to the boomstick. There was no indica
tion of what had caused the hole in Straits 64.
The sinking occurred unobserved by anyone.
What was sought to be done was to reconstruct
what had happened by conjecture as to what
must have happened to explain the cause of the
sinking some six years, eight months after the
event until the time of the first litigation when
the plaintiff sought to attribute the cause of the
sinking to the fault of Captain Bilton.
It is the consensus that the stern of the scows
became free and drifted through an angle of 90°
either shearing off two pilings or in the process
of the stern becoming free those two pilings
were broken thereby allowing the scows to drift
as they did, bearing in mind that the bow
remained securely tied to the dolphin. One
barge came above a broken pile and was either
holed then or holed when the tide ran out. In
any event one barge was impaled by the broken
pile, sank because of the incursion of sea water
and drew the other barge secured to it by bri
dles down with it.
The issues between the parties hereto, as I
understand them, can be succinctly stated.
The basic contention of the plaintiff is that
the defendant is in breach of its contract with
the plaintiff as a common carrier or a status
akin thereto to deliver the plaintiff's cargo to
the Mannix Grid for unloading and the plaintiff
is, therefore, entitled to recover damages for
breach of contract.
The defendant contends that it is entitled to
exemption from such liability because the loss
was caused by a peril of the sea.
The plaintiff contends that the exemption
claimed by the defendant is not available to it
because of its negligence and the foreseeability
of the risk which caused the damage.
The defendant's position is then that if there
was negligence it was the neglect of its servant
in the navigation or management of the ship.
In answer to this position the plaintiff con
tends that the defendant is not entitled to the
exemption sought because the servant was not
negligent but rather that the defendant was neg
ligent or if there was neglect of the servant the
defendant was privy to it and that it was not an
act of negligence by the servant with reference
to the navigation or management of the ship
which caused the loss.
The onus of establishing that the loss was
caused by a peril of the sea falls on the
defendant.
If this is established by the defendant, then
the onus of establishing negligence by the
defendant or that the defendant should have
foreseen the risk, falls on the plaintiff.
The onus of proving neglect of the servant in
the navigation or management of the ship rests
on the defendant.
It has been admitted by counsel for the plain
tiff that the shipment here in question was
covered by forty bills of lading. Mr. Housser
did so on the examination for discovery of Mr.
Barker at pages 32 and 33 thereof. This admis
sion was repeated by Mr. Wallace when Mr.
Barker's evidence on examination for discovery
was read in. A specimen bill of lading was in
evidence as Exhibit 16. The conditions are
explicit that the bill of lading has effect subject
to Carriage of Goods by Water Act.
The contract of carriage was negotiated
between officers of the plaintiff and officers of
the defendant in a series of oral interviews
which were immediately thereafter confirmed in
writing. The bare framework of that contract
was, as I stated in the initial paragraph of these
reasons, that the defendant agreed for reward to
load the plaintiff's goods in its barges, to tow
those barges from Vancouver to Port McNeill
and there deliver the barges at the Mannix Grid
for unloading by the plaintiff. There was no
mention of bills of lading either in the oral
conversations or correspondence but each ship
ment was covered by a bill of lading. It appears
to have been tacitly assumed that this would be
done as it is normal and usual to do so.
Section 2 of the Carriage of Goods by Water
Act R.S.C. 1970, c. C-15 reads as follows:
2. Subject to this Act, the Rules relating to bills of lading
as contained in the schedule (hereinafter referred to as "the
Rules") have effect in relation to and in connection with the
carriage of goods by water in ships carrying goods from any
port in Canada to any other port whether in or outside
Canada.
Section 4 of the Act provides:
4. Every bill of lading, or similar document of title issued
in Canada that contains or is evidence of any contract to
which the Rules apply shall contain an express statement
that it is to have effect subject to the Rules as applied by
this Act.
Section 4 requires that the bill of lading shall
contain an express statement that it is to have
effect subject to the Rules (the Hague Rules)
and is known as a "clause paramount".
The Act has as its effect the introduction into
all bills of lading issued in Canada standard
clauses defining the risks to be assumed by the
sea carrier for the period of the voyage and
defining the rights and immunities which sea
carriers may enjoy. The Hague Rules as set out
in the schedule to the Act become, by law, part
of the terms of the contract for the carriage of
goods by sea evidenced by the bill of lading:
Article I(b) of the Hague Rules reads as
follows:
(b) "contract of carriage" applies only to contracts of
carriage covered by a bill of lading or any similar docu
ment of title, in so far as such document relates to the
carriage of goods by water, including any bill of lading or
any similar document as aforesaid issued under or pursu
ant to a charterparty from the moment at which such bill
of lading or similar document of title regulates the rela
tions between a carrier and a holder of the same;
The goods here carried are not within the
exemption contained in Article I(a).
Because a bill of lading was issued the con
tract of carriage is subject to the Hague Rules.
That being so I fail to follow how there can
be an absolute contractual liability on the
defendant to deliver the goods safely and that
the defendant is an insurer as alleged in para
graphs 5, 6, 7 and 10 of the statement of claim
as a common carrier or lighterman. The defend
ant was not a lighterman.
In my view the responsibilities and immuni-
ties of the defendant as carrier of the plaintiff's
cargo are those set out in the Carriage of Goods
by Water Act and particularly Articles III and
IV of the schedule thereto.
Incidentally it was accepted by both parties
that a tug and barge is a "ship" within the
definition of a ship in Article I(d) as any vessel
used for the carriage of goods by water and as
defined in section 2 of the Canada Shipping Act
R.S.C. 1970, c. S-9 as including a barge or like
vessel however propelled.
Article III sets out the responsibilities of the
carrier.
They are, as applicable to the circumstances
of this case, under Article III 1 that the carrier
is bound before and at the beginning of the
voyage to exercise due diligence to
(a) make the ship seaworthy; and
(b) properly man, equip, and supply the ship;
There is no question that the barges were
seaworthy. They were sounded for water at the
end of the two day voyage and found to be in
good order. The Victoria Straits was one of the
best and most powerful tugs that the defendant
possessed and it was ocean going.
However there were suggestions that the tug
may have been improperly manned because
Captain Bilton was unfamiliar with Port
McNeill. I do not accept that suggestion
because he was a certified master of long stand
ing with many years experience in towing. Fur
ther he had towed logs from Port McNeill on
two occasions. I have gleaned from' the evi
dence that Port McNeill was no different from
any of the other ports on the coast of Vancou-
ver Island or the coast of the mainland.
It was alleged that the failure of Captain
Bilton to have on board a current copy of "B.
C. Pilot" was an improper equipment. A copy
was available in the defendant's office if Cap
tain Bilton wished it. However there was on
board a detailed chart of Port McNeill which
gave much more information than the "B. C.
Pilot" where the information was general. Obvi
ously Captain Bilton had no need for that publi
cation and accordingly I do not follow that this
omission could possibly be a failure on the part
of the defendant to equip the vessel or negli
gence on its part.
In my opinion the defendant was not remiss
in ensuring that its vessel was seaworthy and
that it was properly manned and equipped.
By Article III 2 the carrier is obliged to
properly and carefully load, handle, stow, carry,
keep, care for and discharge the goods carried,
the whole subject of the provisions of Article
IV.
The immunities here in issue under Article IV
are that the ship shall not be responsible for
loss or damage arising or resulting from
2. ...
(a) act, neglect, or default of the master, mariner, pilot or
the servants of the carrier in the navigation or in the
management of the ship; or
(c) perils, danger, and accidents of the sea or other
navigable waters;
It is accepted that the barges were holed by
underwater obstructions in the form of pilings
causing the barges to take water and sink which
caused the loss or damage to the cargo.
As I have indicated before, the consensus is
that two of the pilings forming part of the
standing boom to which the stern of the inner
most barge was tied became broken, permitting
the barges to swing in and that the G. of G. 99
became impaled on one of the broken piles
most likely by settling upon it with the fall of
the tide.
The question, therefore, arises whether the
loss of the cargo arose from a peril of the sea.
In Carver "Carriage by Sea", British Shipping
Laws, Vol. 2 at page 157 it is stated:
"Perils of the sea" denotes accidents peculiarly incident
to navigating the sea. The words are used in relation to
navigation of a ship on the sea, though the accidents con
templated are not all the accidents which may occur during
the navigation. They are to be accidents "of the sea"; that
is, arising from the peculiar physical conditions under
which navigation upon the sea takes place. Perils of the sea
"really are the perils to which people who carry on their
business on that dangerous element are liable because they
carry on their business on the sea. They are the perils of the
sea, not the perils of journeying."
The concluding part of the above quotation is
the remarks of Lord Esher in Pandorf v. Hamil-
ton, Fraser & Co. (1866) 17 Q.B.D. 670 at 675.
The decision of the Court of Appeal was
reversed by the House of Lords in Hamilton,
Fraser & Co. v. Pandorf (1887) 12 App. Cas.
518 and the decision of Lopes L.J. was
restored.
In that case rice was shipped under a charter-
party and bills of lading which excepted "dan-
gers and accidents of the seas". During the
voyage rats gnawed a hole in a lead pipe on
board the ship whereby sea-water escaped and
damaged the rice, without neglect or default on
the part of the shipowners or their servants.
Lord Halsbury said at page 522:
My Lords, in this case the admissions made at the trial
reduce the question of this: whether in a seaworthy ship the
gnawing by rats of some part of the ship so as to cause
sea-water to come in and cause damage is a danger and
accident of the sea. That this happened without any negli
gence of the shipowner is material in determining the rights
of the parties in this particular case, but, in my judgment,
has no relevancy to the question whether the facts as I have
stated them constituted a danger or accident of the seas.
He continued on pages 523 and 524 to say:
Some effect must be given to the wards "perils of the
sea." A tat easing a cheese in the hold of a vessel is not a
peril of the sea; the sea, or the vessel being on the sea, has
nothing to do with the destruction of the cheese.
This was the decision of the Court of Exchequer in
Laveroni v. Drury. In the Law Journal report of that case
Pollock C.B. and Alderson B. distinctly pointed out, after
the judgment of the Court had been given, that the decision
at which the Court had arrived did not touch the question of
whether the sea being let in by a hole made by a rat was an
accident or danger of the sea. One of the dangers which
both parties to the contract would have in their mind would,
I think, be the possibility of the water from the sea getting
into the vessel upon which the vessel was to sail in accom
plishing her voyage, it would not necessarily be by a storm,
the parties have not so limited the language of the contract;
it might be by striking on a rock, or by excessive heat so as
to open some of the upper timbers; these and many more
contingencies that might be suggested would let the sea in,
but what the parties, I think, contemplated was that any
accident (not wear and tear, or natural decay) should do
damage by letting the sea into the vessel, that that should be
one of the things contemplated by the contract.
I would add that while Pollock C.B. held in
Laveroni v. Drury (1852) 8 Ex. 166, 22 L.J.
(Ex.) 2, that injury done to a vessel or its cargo
by rats is not damage by perils of the sea, he
also added "If indeed the rats had made a hole
in the ship through which sea-water came in and
damaged the cargo, that might be a case of sea
damage".
Lord Herschell also took part in the decision
in Hamilton, Fraser & Co. v. Pandorf (supra)
and referred to the views that he had recently
expressed in The Xantho, (1887) 12 App.
Ca's. 503.
In The Xantho case it was held that a found
ering of a vessel caused by a collision with a
negligently navigated vessel was a peril of the
sea.
Lord Herschell said at page 509:
I think it clear that the term "perils of the sea" does not
cover every accident or casualty which may happen to the
subject-matter of the insurance on the sea. It must be a peril
"of" the sea. Again, it is well settled that it is not every loss
or damage of which the sea is the immediate cause that is
covered by these words. They do not protect, for example,
against that natural and inevitable action of the winds and
waves, which results in what may be described as wear and
tear. There must be some casualty, something which could
not be foreseen as one of the necessary incidents of the
adventure. The purpose of the policy is to secure an indem
nity against accidents which may happen, not against events
which must happen. It was contended that those losses only
were losses by perils of the sea, which were occasioned by
extraordinary violence of the winds or waves. I think this is
too narrow a construction of the words, and it is certainly
not supported by the authorities, or by common understand
ing. It is beyond question, that if a vessel strikes upon a
sunken rock in fair weather and sinks, this is a loss by perils
of the sea. And a loss by foundering, owing to a vessel
coming into collision with another vessel, even when the
collision results from the negligence of that other vessel,
falls within the same category. Indeed, I am aware of only
one case which throws a doubt upon the proposition that
every loss by incursion of the sea, due to a vessel coming
accidentally (using that word in its popular sense) into
contact with a foreign body, which penetrates it and causes
a leak, is a loss by a peril of the sea. I refer to the case of
Cullen v. Butler, where a ship having been sunk by another
ship firing upon her in mistake for an enemy, the Court
inclined to the opinion that this was not a loss by perils of
the sea. I think, however, this expression of opinion stands
alone, and has not been sanctioned by subsequent cases.
Mr. Justice Ritchie quoted the foregoing
remarks by Lord Herschell with approval in
Charles Goodfellow Lumber Sales Ltd. v. Ver-
reault Hovington (1971) 17 D.L.R. (3d) 56. He
said at page 60:
That part of Lord Herschell's reasons for judgment in
which he had said that in order to constitute a peril of the
sea "There must be some casualty, something which could
not be foreseen as one of the necessary incidents of the
adventure" was, in my opinion, the statement which
influenced Sir Lyman P. Duff, C.J.C. when he gave the
judgment of this Court in Canadian Nat'l Steamships v.
Bayliss, [1937] 1 D.L.R. 545 at pp. 546-7, [1937] S.C.R.
261, a bill of lading case where he said of the defence of
perils of the sea:
The issue raised by this defence was, of course, an
issue of fact and it was incumbent upon the appellants to
acquit themselves of the onus of showing that the weath
er encountered was the cause of the damage and that it
was of such a nature that the danger of damage to the
cargo arising from it could not have been foreseen or
guarded against as one of the probable incidents of the
voyage.
I have concluded that the loss or damage in
the present case is properly said to be by a peril
of the sea in the sense of a danger peculiarly
incident to being on and navigating over the sea.
Account must, therefore, be taken of storms,
the shoals, and other various obstacles, fixed or
moving, which form the peculiar vicissitudes of
navigating the seas.
As Lord Herschell has said above, "every
loss by incursion of the sea, due to a vessel
coming accidentally into contact with a foreign
body, which penetrates it and causes a leak, is a
loss by à peril of the sea". That is what hap
pened here.
It follows from the foregoing authorities that
in order to be a peril of the sea within the
exemption from liability under Article IV of the
Rules there must be something which could not
be foreseen as one of the necessary incidents of
the adventure.
Therefore the question that follows is wheth
er the defendant should have foreseen that the
barges would swing at their moorings at the
booming ground in Port McNeill, shear off a
piling, become impaled upon that piling and
sink.
In my opinion there was nothing which
should have alerted the defendant to the possi
bility of the pilings to which the barges were
moored would give way. The defendant did
know that the barges would be moored at the
booming ground, but the actual selection of
exact place to tie up and the manner of securing
the barges was in the discretion of the master.
To moor its barges at the booming ground was
the normal every day practice followed by the
defendant for a year without incident. That
experience with 52 barges being moored there
was assurance to the defendant that there was
no probability of unusual danger over the
normal hazards of being on the sea.
The plaintiff's representatives who received
the cargo apparently accepted the booming
ground as a suitable mooring place for the
defendant's barges. When the Victoria Straits
arrived at Port McNeill with the two scows in
tow she was met by Simpson to receive the
manifest. Obviously he knew of the estimated
time of arrival. While he may not have instruct
ed the master to tie up at the booming grounds
he certainly did indicate to him that it was the
usual place to tie up the barges. It seems logical
to conclude that Simpson was not aware of any
imminent danger there on that particular day
and since he was engaged by Continental
Explosives Limited which was under contract
with the plaintiff to unload its cargo on arrival
at the Mannix Grid and transport it to Benson
Lake, it seems equally logical that he would
wish to direct the Victoria Straits to a safe
mooring and if he had any reservations about
the safety of the booming ground that he would
communicate those reservations to the plaintiff.
It is illogical to assume that a person such as
Simpson who must have had a familiarity with
the facilities at Port McNeill, would direct the
barges to an area to moor if he thought that
disaster would inevitably occur. I would add
that Mr. Barker, the plaintiff's property superin
tendent at Benson Lake was aware that the
defendant moored its barges at the booming
ground as a normal practice and he took no
exception to it doing so.
The plaintiff's acceptance of the booming
ground as a suitable mooring place, or the plain
tiff's failure to object thereto which would be
tantamount to acceptance, does not detract
from the defendant's responsibility for the
safety of the scows and their cargo while they
lay at the booming ground; but this fact would
confirm the defendant in its conclusion that the
booming ground was reasonably safe for the
purpose. It was also part of the defendant's
arrangement with Continental Explosives Ltd.
that when the barges were unloaded they would
be returned and moored at the booming ground
by Rayonier's tug. That would presuppose that
Rayonier accepted that its booming ground was
suitable for mooring empty barges.
It was Rayonier that owned the booming
ground and it was Rayonier that was under
contract with the defendant to tow the barges
from there to the Mannix Grid. It seems
incongruous to me that this company would
accede to the defendant tying its barges there if
there was any danger and in my view the offi
cers and employees of Rayonier were the best
possible persons to make a trustworthy apprais
al of the suitability and safety of the installation
for the purpose that it was put to by the defend
ant. It was Rayonier that denied the defendant
access to the Rayonier or Government Dock
without a tug in attendance on a barge moored
there. The purpose of the presence of the tug
was to move the barge to permit other vessels
to moor and unload there and not for any
reason of safety. It seems logical to me that
Rayonier would participate in the selection of
an alternative place.
It was also arranged between the defendant
and Rayonier that Rayonier would be advised
14 hours in advance of the arrival of any cargo
at Port McNeill.
It is my recollection that Rayonier was
advised by telegram of the estimated time of
arrival of the Victoria Straits on Sunday. While
it may not have been the responsibility of
Rayonier to move the barges forthwith when
tide conditions were suitable which were well
known to Rayonier, it does seem very illogical
to assume that Rayonier would permit two
barges with valuable cargo on board to remain
moored and unattended if Rayonier suspected
any possible danger.
With all these considerations in mind, I have
concluded that the defendant could not be
expected to foresee that the sinking of the
barges would occur as necessary or probable
from being moored as they were and left
unattended.
Because of the conclusion I have reached
that sinking was caused by a peril of the sea
that the defendant could not have foreseen as
one of the probable incidents of the voyage, it is
necessary to consider if the loss of or damage
to the plaintiff's cargo was caused by negli
gence of the defendant or of its servants for
which it is responsible.
The allegations of negligence on the part of
the defendant are manifold and are set out in
paragraph 11 of the statement of claim as
follows:
(a) In failing to watch or attend the said barges while they
lay at anchor or at moorings at Port McNeill aforesaid;
(b) Alternatively, in providing for the carriage of the
Plaintiff's goods as aforesaid unseaworthy barge or
barges;
(c) In assigning a master for towing the barges to Port
McNeill who was unfamiliar with safe mooring places for
them at Port McNeill and unfamiliar with the ultimate
destination of the barges and who was unaware of the
responsibility of the defendant for the delivery of the
barges to their unloading point;
(d) In failing to instruct or advise the master of the tug
"VICTORIA STRAITS" of the ultimate destination of
the barges or of the responsibility upon the defendant for
their delivery to their unloading point or as to where and
how they might safely be left prior to delivery to their
unloading point;
(e) In failing to advise the said master adequately or at all
of the dangers in mooring at Port McNeill;
(f) In failing to provide the master with a current copy of
the "B. C. Pilot" or in failing to direct his attention to the
warning therein about Port McNeill;
(g) In failing to establish safe mooring places for the
barges at Port McNeill when it knew of the likelihood of
the barges being placed at moorings there prior to their
delivery for unloading;
(h) In directing the master not to stand by the barges if
placed at moorings or alternatively, in failing to direct the
master to stand by the barges or to place a watch on them
until delivered for unloading;
(i) In failing to direct or arrange for any other tug or
person to stand by the barges after their mooring and the
departure of the "VICTORIA STRAITS" until they could
be delivered to the unloading point.
I have considered the allegation of negligence
in paragraph (b) to the effect that the barges
were unseaworthy, in paragraph (c) to the effect
that the master was unfamiliar with the facilities
at Port McNeill and in paragraph (f) to the
effect that there was not a copy of the "B. C.
Pilot" on board in connection with the respon
sibilities of the carrier under Article III of the
Rules at the beginning of the voyage to exercise
due diligence to make the ship seaworthy and to
properly man and equip the ship.
For the reasons I have indicated above, I
have concluded that the barges were seaworthy,
that the tug and barges were properly manned
and equipped.
I might add that upon the evidence before
Mr. Justice Sheppard in Cominco Ltd. v. Bilton
he found no negligence in the master not having
a copy of the "B. C. Pilot" on board. The
evidence before me was even stronger in this
respect to which I would add that the defendant
had copies of this publication available at its
office for use by its masters if they should feel
the need of it. If the master was of the opinion
that the more detailed information he did have
on board on the chart of Port McNeill was far
superior to that contained in the "B. C. Pilot",
and in my view there was ample justification
for the opinion of the master, then there can be
no negligence assessed against the defendant in
this respect.
Further the "B. C. Pilot" describes the shores
of the Port as low and for the most part fringed
with beaches of boulders and shingles. It also
contained a "caution" about many broken dol
phins, pilings and deadheads in the bay. There
was no negligence in either of these respects
because the barges were moored in deep water,
that is what the master sought, and the barges
were not sunk by submerged broken pilings,
dolphins or deadheads.
Similar allegations of negligence were made
against the master in the litigation in which he
was the defendant as are now alleged against
the present defendant which were considered
by Mr. Justice Sheppard and the Supreme Court
of Canada.
It will be recalled that it was agreed by the
parties that the evidence adduced before Mr.
Justice Sheppard should constitute part of the
evidence before me and that evidence was read
into the record. This does not mean that the
defendant adopted that evidence.
While I do not consider that I am bound to
accept the findings made on that evidence by
Mr. Justice Sheppard and the Supreme Court of
Canada, nevertheless, while I am aware that I
am at liberty to do so, I do not propose to
depart from those findings when the evidence
before me is identical or substantially the same
as was before Mr. Justice Sheppard without
good and sufficient reason, but I am justified in
doing so when that evidence has been varied,
contradicted or supplemented by the evidence
of the further witnesses called before me. In so
saying I have not overlooked the fact that the
parties before me are different, and that the
defendant herein was not represented in the
action between the plaintiff herein and the
master. But the facts that gave rise to and
caused the accident are the same even though
the two actions based on those facts were
against different defendants.
I considered that reading into the record of
this action the evidence in the previous action
was merely a convenient way of introducing the
evidence of the witnesses previously called and
thereby obviating the necessity of repetition.
It is inherent in the allegations of negligence,
particularly paragraph (e) that Port McNeill was
not a suitable harbour for leaving barges at all.
This is not substantiated by the evidence. All
hazards and dangerous areas are marked clearly
on the chart. It is used by such freighters as still
ply the coast, sometimes by deep sea ships and
by tugs and barges. This suggestion is predicat
ed upon the evidence of Captain Culbard who
testified that he would not use Port McNeill,
but that he would have tied up the barges at
Beaver Cove or Englewood. The evidence
before me was that these ports did not differ
from or were any better than Port McNeill.
Further such suggestion was not practical
because there was no tug available to tow the
barges to Port McNeill unless the Victoria
Straits stood by and if she did that she might as
well have stood by at Port McNeill.
If I assess Captain Culbard's evidence cor
rectly, his concern was directed to the hazards
of windstorms, deadheads and other like debris
at the booming ground, none of which caused
the sinking of the barges.
It is also inherent in the allegations that the
booming grounds were unsafe as a mooring
place for the barges.
In this respect Mr. Justice Sheppard said:
The evidence does not prove some other or better place
at Port McNeill for the mooring of these scows, nor that the
mooring at that place caused the damage. There was no
evidence that the place at which these barges were moored
had beneath them anything which made that place unsafe
for the scows to be moored.
The evidence before me did not differ from
the evidence before Mr. Justice Sheppard. It
was not the place that caused the sinking of the
barges. As I have said before, the consensus is
that the sinking of the barges was caused by the
barges shifting in an arc of 90°. This may have
been caused by the barges not being adequately
secured or by the pilings having been weakened
by the ravages of teredos, sea lice and like
insect life thereby breaking and allowing the
barges to swing free.
It is also alleged that the defendant was negli
gent in failing to instruct its master of the
ultimate destination of the barges, the responsi
bility of the defendant for their delivery to the
Mannix Grid and how they might be safely left
prior to their delivery to the unloading point.
In this respect Mr. Justice Sheppard found
that the master was not negligent in failing to
obtain instructions from his employer (the
defendant herein) as to the intermediate moor
ing place in Port McNeill.
The present allegations of negligence are
similar to those previously alleged against the
master with the emphasis changed to the
responsibility of the defendant to advise its
master of these particular aspects.
The master knew from the instructions
received from the defendant's dispatcher that
he was to take the scows in tow and deliver
them to Port McNeill for the plaintiff. Other
than that no detailed instructions were given.
The defendant had advised Rayonier of the
estimated time of arrival otherwise Simpson
would not have been at the Government Dock
to receive the manifest. The master, through the
mate, enquired as to where the barges should be
moored and was directed to the Rayonier boom
ing ground by Simpson. Therefore the master
knew or found out all these matters as the
defendant had the right to expect that the
master would do. The evidence before me was
that the place of mooring was left to the discre
tion of the master. The defendant knew that
there was only one available facility for moor
ing and that was the Rayonier booming ground.
The defendant, from its past experience and for
reasons that I have given previously had no
reason to expect that the booming ground was
unsafe. Therefore I conclude that there was no
negligence by the defendant in this respect.
Furthermore, I fail to follow how the defend
ant could be negligent in failing to warn the
master of the dangers in mooring at Port
McNeill when the defendant itself was not
aware of any danger, nor did it have any reason
to suspect that such dangers existed. The
defendant, in employing a competent master,
would be entitled to rely on the experience of
that master to visually assess the possibility of
danger and this the master did. Mr. Justice
Sheppard and the Supreme Court of Canada
found that the master was not negligent in dis
charging his responsibilities. In my view the
defendant is obliged to rely upon the experience
of its master in what may be termed minor
matters of ship management and navigation and
cannot be reasonably expected to exercise a
minute supervision of such details which are
properly left to the discretion of and are the
responsibility of the master.
In the action against the master Mr. Justice
Sheppard found that the master was not negli
gent and Mr. Justice Ritchie speaking for the
majority of the Supreme Court of Canada on
appeal from the judgment of Mr. Justice Shep-
pard was in agreement with his rejection of
negligence on the part of the master.
However Mr. Justice Ritchie expressed the
view that there was no negligence by the master
and that the sinking of the barges was caused
by the pilings to which the boomsticks were
attached having been weakened by being worm
eaten and that, therefore, the piles failed to
hold.
He said in Cominco Ltd. v. Bilton [1971]
S.C.R. 413 at pages 429 and 430:
In my view there is also no evidence that, even with the
extraordinary tide, the way in which the scows were
secured would be likely to place an undue strain on a
reasonably sound and well-founded piling, and indeed the
appellant accepts the fact that the pilings had probably been
eaten away and thus weakened by sea worms.
Notwithstanding the elaborate reconstruction of events
presented on behalf of the appellant, I am of opinion that
the evidence indicates the sinking to have been occasioned
by the scows swinging free because the worm eaten pilings
failed to hold, with the result that they veered to an angle of
90° from their original position and the outer scow there
settled on the sharp ends of pilings under water as a result
of which it sank, pulling its companion down with it.
Speaking of the tide, the appellant's expert said that it
was "an exceptionally large run off, probably one of the
largest tides of the year ..." and under all the circum
stances, having regard to the condition of the booming
ground, I incline to the view that the scows would have
been in danger no matter how they had been tethered.
In my view the loss and damage to the appellant's cargo
was occasioned by the condition of the booming ground
where Straits, to the knowledge of Cominco, moored its
cargo-laden scows. The task undertaken by Bilton was
limited to towing the scows to Port McNeill, and although
his employer may have been responsible for looking after
the cargo until it was unloaded at the Mannix grid, it was no
part of Bilton's duty, either to his employer or the cargo
owners, to question the safety of the booming ground to
which he had been directed or to care for the scows or the
cargo after he had tied up there.
Earlier at page 423 he had said:
Evidence advanced by the appellant appears to indicate
that the booming ground in question was a treacherous spot
where scows, which are in any event subject to sliding at
their moorings, might rub up against pilings which have
been gnawed by teredos and thus left with sharp ends under
water capable of puncturing the under-planking of a scow.
The fact that no scows had previously come to harm in this
mooring area does not appear to indicate that the danger
was not there... .
The theory advanced before me by the
defendant was not that the piling gave way by
reason of having been weakened by having
been worm eaten, but rather that the barges
swung in some inexplicable manner and sheared
off the piling upon which one barge became
impaled. Of course this was but one theory of
several that were advanced and no one knew
what had happened. The actual events which
caused the accident remain a matter of
conjecture.
I have had the advantage of additional evi
dence to the effect that the pilings had not been
damaged by teredos or like vermin.
The evidence of Captain Bilton described the
problem of teredos on the B.C. coast. He was
familiar with it. Mr. Woolbridge, the foreman of
the Rayonier booming ground, in his evidence
explained how boats, log booms and sea lice
could weaken the pilings there. These two per
sons were witnesses in Corninco Ltd. v. Bilton
(supra) but did not personally testify before me.
In the present action the defendant did not
accept as a fact that the pilings were worm
eaten. At the most it was acknowledged by the
witnesses as a possibility due to the nature of
such things but not as a proven fact.
The piling that pierced the Gulf of Georgia 99
was described as freshly broken but otherwise
sound. It did not indicate any signs of worm
damage.
Mr. Barker, the property superintendent of
the plaintiff had been to the booming ground
many times. He was there on January 8, 1962,
the morning of which day the scows were found
to have sunk, together with the construction
superintendent of the plaintiff. At that time
neither of them observed any sign of worm
damage to the pilings, nor did Mr. Barker
observe any on his previous visits. Mr. Barker
knew the Rayonier company. He agreed that it
was a major company and that it maintained its
installations at a constantly high standard.
Captain Plester, who has held a master's cer
tificate for 43 years and has had many years of
experience in towing at sea, testified that
untreated pilings would withstand attacks by
teredos for 10 years and treated pilings would
do so for a longer time. In his view, based upon
his experience of the coast, Port McNeill was
not subject to greater infection by teredos than
other ports and it was also his opinion that Port
McNeill was, in this respect and in other
respects, one of the better ports. There were
inferior ports that were in constant use.
It was also Captain Plester's opinion that
while an old and disused booming ground would
be suspect, the same was not so of a booming
ground that was in constant use by a company
which maintained its facilities in good repair
and was in apparent good condition as the
Rayonier booming ground was.
Damage by teredos is internal and is not
visible from the outside. Such damage or other
unsuitability of the Rayonier booming ground
for mooring barges was not apparent to the
plaintiff's representatives nor to Rayonier per
sonnel all of whom acquiesced for a year in the
use of the standing boom as a tying up place.
Accordingly upon the evidence before me I
am not satisfied that the pilings had been weak
ened by worms and even if they had been that
damage was not apparent to persons, other than
the defendant and its employees, who were in a
position to observe that damage, and in the case
of Rayonier who were responsible for the
maintenance of the standing boom in good
repair for its own use.
For the foregoing reasons I do not think that
negligence can be assessed against the defend
ant for its failure to be aware of such danger if
it existed in fact.
Therefore the allegations of negligence on the
part of the defendant in failing to warn its
master of dangers in mooring at the standing
boom and in failing to establish safe mooring
places for its barges at Port McNeill have not
been substantiated.
Both Mr. Justice Sheppard and Mr. Justice
Ritchie concluded that there was no evidence
that the barges were improperly secured by the
master and there has been no contrary evidence
before me to that effect.
It was agreed by witnesses that it would have
been better to have tied the barges to the stand
ing boom in tandem rather than side by side.
The reason is obvious. If the barges had been
tied in tandem the weight and stresses would
have been distributed over a greater area than
when tied side by side when a greater weight
would have been concentrated on a smaller
area. However there has been no evidence that
tying up the barges side by side rather than in
tandem contributed to the accident.
The master admitted that in mooring the
barges to the standing boom he may have per
mitted the Victoria Straits or the barges to
strike a piling.
The suggestion was that in so striking a piling
it was weakened in consequence. While the
master admitted the possibility of doing so he
did not admit it as a fact and in my opinion
there is no evidence that even if the pilings had
been struck in the course of mooring that that
contributed to the accident.
In any event even if the master had not
adequately secured the barges, that the barges
being tied side by side contributed to the acci
dent and that the tug or barges had struck a
piling, then that would be negligence in the
navigation or management of the ship which
cannot be attributed to the defendant.
By reason of the foregoing conclusions the
crucial allegation of negligence on the part of
the defendant is that it failed to properly and
carefully care for the plaintiff's cargo in that it
did not direct its master to stand by the barges
or to arrange for another tug to stand by or to
arrange to place a watchman on the barges
while they were at their mooring until their
delivery at the Mannix Grid.
It was not part of the arrangement between
the defendant and Rayonier that Rayonier
would keep a constant watch on barges moored
by the defendant at its booming ground, nor to
keep a tug on constant stand-by. Neither the
defendant nor Rayonier had any reason to
believe that this was necessary.
There was an accommodation cabin on top of
the superstructure of the G. of G. 99 but the
presence of that hut was not known to the
manager of the defendant. He speculated that it
had been installed when the barge was in use
for a construction project. If a watchman had
been left on board the barges there was nothing
that he could do in an emergency unless there
was on board communication equipment to
summon aid and that arrangements had been
made for such aid on a stand-by basis. Without
this communication equipment on board and the
requisite life-saving equipment it would be
impractical and no benefit whatsoever to place
a watchman on board. It is not the practice in
the business of transporting cargo by tug and
barge to have the barges so equipped and in
view of that practice it follows that the defend
ant was not negligent in not equipping its barges
in this manner and it also presupposes that a
stand-by tug would be available to render assist
ance if called upon to do so.
This being so the only element of negligence
on the part of the defendant which would
remain would be its failure to arrange for a tug
to stand by.
The economic exigencies of the method of
shipping by tug and barge dictated that the
Victoria Straits should not stand by, but that
would not prevent the defendant from arranging
that a tug available at Port McNeill should stand
by. The logical and practical arrangement would
be with Rayonier. Such an arrangement would
be necessary only if the defendant had reason
to suspect danger. As I have indicated before,
no such reason existed to alert the defendant to
any danger but on the contrary the experience
and specialized knowledge of the defendant and
other towing companies confirms that there is
no risk in the ordinary course in leaving barges
unattended. Different considerations would be
applicable if danger in leaving barges unattend
ed was foreseeable but I have concluded that
this danger was not one to be anticipated and
guarded against. It is true that a marine accident
of this nature or any other type could be im
agined by any experienced sailor but that falls
far short as being foreseeable in the sense that
it must occur. The analogy is that a pedestrian
could imagine the possibility of being killed by
an automobile while crossing the street, but that
does not happen without negligence by the
motorist or the pedestrian.
In the present case it seems to me that the
defendant exercised the standard of care that
would be expected of prudent persons engaged
in towing by tug and barge.
It was suggested at one stage in argument that
because the defendant insured against possible
liabilities, it would not exercise a high standard
of care. On examination, however, such an
argument is not sound. Insurance is carried to
prevent being forced out of business by a major
disaster. It is an item of the defendant's over
head expenses and is not a substitute for a
proper standard of care. The defendant from its
inception had inaugurated a safety programme
the economic motivation being to avoid incur
ring liability for claims which would be reflect
ed in higher insurance rates in succeeding years.
In my view the case for the plaintiff resolves
itself into a criticism of the practice in the
towing industry of leaving barges unattended
while awaiting unloading. The evidence is that
this is the common and normal practice in the
industry without which it could not survive and
that evidence establishes that there is no inher
ent risk in doing so.
I therefore conclude that no negligence has
been proven on the part of the defendant from
which it follows that in this respect the plain
tiff's action must fail.
The plaintiff was assessed by the defendant
and it paid the sum of $19,582.42 as the cargo's
portion of the general average and special
charges for the salvage of certain of the cargo.
This assessment was made by the defendant
and paid by the plaintiff pursuant to clause 8 of
the conditions forming part of the bill of lading
(Exhibit 16) which reads as follows:
8. GENERAL AVERAGE shall be payable according to
the York Antwerp Rules 1950, but where the adjustment is
made in accordance with the law and practice of the United
States of America the following clause shall apply:—
In the event of accident, danger, damage or disaster
before or after commencement of the voyage resulting from
any cause whatsoever, whether due to negligence or not, for
which, or for the consequence of which, the Carrier is not
responsible by statute, contract or otherwise, the goods,
Shippers, Consignees, or Owners of the goods shall contrib
ute with the Carrier in General Average to the payment of
any sacrifices, losses, or expenses of a general average
nature that may be made or incurred and shall pay salvage
and special charges incurred in respect of the goods. If a
salving ship is owned or operated by the Carrier, salvage
shall be paid for as fully as if such salving ship or ships
belonged to strangers, such deposit as the Carrier or his
agents may deem sufficient to cover the estimated contribu
tion of the goods and any salvage and special charges
thereon shall, if required, be made by the goods, Shippers,
Consignees or Owners of the goods, to the Carrier before
delivery.
The plaintiff seeks to recover the contribu
tion that it made.
The carrier cannot claim for a general aver
age loss which was due to its fault. (See Hain
SS Co. v. Tate & Lyle (1936) 41 Com. Cas.
350.) Because I have found that the defendant
was without fault it follows that the plaintiff's
claim in this respect must also fail.
In view of the conclusion I have reached, that
the defendant was not negligent, it is not neces
sary for me to consider whether the defendant
is entitled to limit its liability in accordance with
section 647 of the Canada Shipping Act
(supra).
The plaintiff's action is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.