A-322-76
Dollina Enterprises Limited (Appellant) (Plain-
tiff)
v.
John Michael Wilson-Haffenden, Ronald Lindsey
Smith, Harold Fenton and Eberhard Baehr and all
other persons having claims against the plaintiff,
its ship Joan W. II or the fund hereby to be
created (Respondents) (Defendants)
Court of Appeal, Pratte, Urie and Le Dain JJ.—
Vancouver, November 29, and December 3, 1976.
Maritime law—Appellant seeking to limit liability pursuant
to s. 647 et seq. of Canada Shipping Act—Whether onus of
proving collision occurred wholly without ship owner's fault
discharged by appellant—Canada Shipping Act, R.S.C. 1970,
c. S-9, s. 647.
Appellant claims that a collision between its ship and another
was not its fault and that it is therefore entitled to seek to limit
its liability for damages arising out of the collision pursuant to
section 647 of the Canada Shipping Act.
Held, the appeal is dismissed. The evidence shows neither
that the collision was the appellant's fault nor that it was not
his fault. Thus the appellant has failed to discharge the onus of
proving that it occurred wholly without its fault and cannot
limit its liability pursuant to section 647 of the Canada Ship
ping Act.
APPEAL.
COUNSEL:
John R. Cunningham for appellant (plaintiff).
Timothy P. Cameron for respondent (defend-
ant) John Michael Wilson-Haffenden.
S. H. Lipetz for all other respondents
(defendants).
SOLICITORS:
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for appellant (plaintiff).
McMaster, Bray, Cameron & Jasich, Van-
couver, for respondent (defendant) John
Michael Wilson-Haffenden.
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for all other respondents
(defendants).
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a decision of
the Trial Division dismissing with costs an action
brought by the appellant to limit, pursuant to
section 647 and following of the Canada Shipping
Act, its liability for damages arising out of a
collision between two fishing vessels, the Joan W.
II owned by the appellant, and the All Star. The
appellant's liability for that collision had previous
ly been established by another judgment of the
Trial Division 2 .
This appeal raises but one serious question:
whether the appellant has discharged the onus of
proving that the collision occurred without its
fault, that is without the fault of Norman Fiddler,
the appellant's President and Managing Director,
who was the person whose action was the very
action of the appellant company.
At the time of the collision, Fiddler was not on
board his vessel. It was not his fault, but that of
the Master of the Joan W. II, William Crewe,
which was the proximate cause of the collision.
Crewe was an experienced master. Fiddler, himself
an experienced navigator, had hired him to act as
the Joan W. II skipper. Fiddler had no reasons to
doubt Crewe's competence when he hired him. He
sailed with Crewe on his first two voyages on the
Joan W. II and thus had, prior to the collision, the
occasion to observe the new master of his vessel
during a period of more than ten days at sea.
When the collision occurred, it was dark and the
visibility was poor. In spite of that, the Joan W. II
was proceeding at her normal speed of eight knots.
The Trial Judge, as I read his judgment, found,
correctly in my view, that the failure of Crewe to
reduce the speed of his vessel was a fault which
had contributed to the accident.
If Crewe's fault had merely been an isolated act
of negligence, it could certainly be argued that the
collision had occurred without Fiddler's actual
fault. But Crewe's failure to reduce the speed of
' [1977] 1 F.C. 169.
2 Action No. T-1774-73.
his ship cannot, in my view, be so considered. He
testified that, at the time of the collision, he was
navigating at his usual speed in his normal way.
Moreover, the evidence shows that Fiddler may
have had the occasion, during his two voyages with
Crewe, to observe the negligent habit of his
employee. Crewe simply said on this subject that
he did not recall whether Fiddler had seen him
proceeding at his normal speed of eight knots in
condition of poor visibility. The evidence, there
fore, leaves open the possibility that Fiddler might
have known that Crewe habitually failed to reduce
his speed when the visibility was poor. It should be
stressed that Fiddler, if he had the occasion to
observe the negligent habit of Crewe, certainly did
nothing to stop it since he testified that he con
sidered a speed of eight knots a moderate speed in
zero visibility.
Had it been proven that Fiddler had been aware
of Crewe's bad habit and had not done anything
about it, it would have then been established, in
my view, that Fiddler had committed a fault pre
venting the appellant from limiting its liability.
The evidence shows neither that he committed that
fault nor that he did not commit it; it merely
indicates that he might have committed it. This is,
in my view, sufficient to say that the appellant has
failed to discharge the onus of proving that the
collision had occurred wholly without Fiddler's
fault.
For these reasons, rather than those given by the
Trial Division, I would dismiss the appeal with
costs.
* * *
URIE J. concurred.
* * *
LE DAIN J. concurred.
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.