VOL. XII.] EXCHEQUER COURT REPORTS. 429 APPEAL FROM THE TORONTO. ADMIRALTY DISTRICT. THE . ATLANTIC COAST STEAM- } SHIP COMPANY (P APPELLANTS , LAINTIFFS) . 9 109 Feby. 1 AND THE MONTREAL TR ANSPORTA- TION COMPANY, LIMITED, AN I) THE SHIP MARY ELLEN RESPONDENTS (DE- ' FENDANTS). J AND THE MONTREAL TRANSPORTA- TION COMPANY, L I M I T E D, RESPONDENTS (PLAINTIFFS) ...., . "09 AND THE SHIP _B UCKE YE STATE (DE- l APPELLANT. FENDANT) Shipping—Admiralty Practice—Joinder of actions in rem and in personam --Irregularity—Pleading over without objection taken—Judgment— Appeal—Judgment varied. In this case the plaintiffs had joined a personal action for the breach of a contract of towage against the towage contractor with one against the owner of a, tug for damages arising from the negligent towing of a barge. No objection was taken by the defendants, who pleaded over, and the case proceeded to judgment ; the trial judge finding that the owner of the tug performing the towage service was solely responsible for the damage, and dismissing the action as against the towage con. tractors who had hired the tug for the service. On appeal, the' court, while expressing the opinion that the two actions were impro= perly joined under the practice in ,Admiralty cases, did not interfere with the proceedings below in that respect as no objection had been taken thereto ; but intimated that the proper course would have been to complete the proceedings in rem and if it appeared that the amount of the damages fixed by the judgment was not recovered against the tug, then, if the towage contractors were legally liable, to bring an action against them in personam for the difference between the amount recovered and the damages fixed by the judgment.
430 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 2. The court directed that the judgment should be varied by reserving THE the question of costs of the trial, and the question of the liability of ATLANTIC the towage contractors, as well as for the costs of the appeals, until it COAST STEAM- was ascertained if the amount of the damages fixed by the judgment SHIP Co. V. below could be realized a g g ainst the tu a a THE MONTREAL APPEAL from a judgment of the Local Judge for the TRANS PORTA- TION CO. AND Toronto Admiralty District.* THE SHIP MARY ELLEN. January 26, 1909. THE MONTREAL C. H. Cline, for the appellants. TRANSPORTA- TION Co. F. King for the respondents. v. THE SHIP BUCKEYE STATE. CASSELS, J., now (February 19th, 1909), delivered judg- Reasons for ment. Judgiu . These were appeals from a judgment of Mr. Justice Hodgins delivered on the 10th day of November, 1908. ] have carefully perused the mass of evidence adduced before the trial Judge, and also the exhibits, and the written arguments of counsel. In certain portions of the evidence reference is made by witnesses to plans, and a location is pointed to, the places indicated not being marked on the plans. This makes it difficult to understand portions of the evidence. The trial Judge has very carefully considered the evidence. He not only had the benefit at the trial of seeing and hearing the witnesses, but has also carefully analyzed the evidence as subsequently transcribed. The questions involved in these appeals, with the exception of the liability of the Montreal Transportation Company, Ltd., for the negligence of the tug Mary Ellen are purely questions of fact ; and I would hesitate before overruling the finding of the trial Judge, even if inclined to take a different view of the effect of the evidence. The remarks of the trial Judge as to the character of the testimony before him is fully justified. *Reported ante p. 419.
VOL. XII.] EXCHEQUER COURT REPORTS. It is about as contradictory and unsatisfactory as could well be. I agree that the contract of towage was for a ous trip or voyage from Lachine to Port Dalhousie by the Montreal Transportation Company, and that the towage by the tug Mary Ellen of the ship Buckeye State formed by the latter as agént of the said Montreal Trans-portation Company. I also think that the conclusion of the learned trial Judge that the Buckeye State accidents, one in the Cornwall canal, Lock 17, and the other at Morrisburg, is in accordance with the evidence. It is quite obvious to my mind that the hole in thé of the barge which caused her to sink could not have been caused in the Cornwall Canal, I do not interfere with the amount allowed the Mon- --treal Transportation Company for services performed in the nature of salvage, nor with the damages allowed to the Buckeye State against the Mary Ellen. tion to permit a re opening of the case for the purpose of giving further evidence on behalf of the was rightly rejected. No sufficient reason is shown why this evidence should not have been given at the trial. The issues are set out in the pleadings, and it was obvious that evidence of the character sought to be given was material. • The difficult question is the one raised by Mr. Cline that the Montreal Transportation Company is liable equally with the tug Mary Ellen for the damage occasioned in the Cornwall Canal. The action was brought by The Atlantic Coast Steamship Company, the owners of the Buckeye State, against the Montreal Transportation Company, Ltd., and John Jesmer and the ship Mary Ellen. The trial Judge finds that the Montreal Transportation Company is not liable for the damage sustained by the Buckeye State, and dismisses the action with a portion of the costs to be paid by the Buckeye State. 'The Buckeye State was not a party to this • 431 1909 THE ATLANTIC continu- CoASTSTEAffi- CO. v MONTHR EAL was per- TRANSFOaTA- TIO N O. AND TI E CsIIr MARYELLEN. met with two TAE MONTRE AL TRANSPORTA- TION Co. V. THE SHIP bottom PiUCKEYE STATE. Reasons for Judgment The applicaBuckeye State
432 EXCHEQUER COURT REPORTS. [VOL XII. 1909 action and I presume it was intended that these costs THE should be paid by the plaintiffs, the owners of the Buck- ATLANTIC COAST STEAM- eye State. There is no lien for these costs. The Mon- SHIyP Co. treal Transportation Company was sued for breach of con- THE tract. The proceeding against the tug Mary Ellen was a MONTREAL TRANSPORTA- proceeding in rem. I find no authority where the two TION CO. AND THE SHIP causes of action arising in this case have been joined MARY ELLEN. against separate parties (See Burstall v. Beyfus, (1) The THE Bowesfield, (2) The Hope, (3) Saccharin Corporation y. MONTREAL TRANSPORTA- Wild (4) and the following American cases : The Prince TION CO. V. Albert, (5) Atlantic Mutual Ins. Co., y. Alexandre, (6) BrJcE YE The Zodiac, (7) The Clatsop Chief, O and more especially STATE. per Story,. J. in Citizens' Bank y. Nantucket Steamship Bensons for Co., (9). No objection, however, seems to have been taken, and no motion was made by the defendants, or either of them, to confine the action. It does not appear upon the record that the remedy against the tug Mary Ellen has been exhausted by the plaintiffs the Atlanticoast Steamship Co. ; and it may be that the judgment against the tug Mary Ellen will be fully realized. The proper course would have been to complete the proceedings in rem, and if it appeared that the amount of the damages fixed by the judgment was not recovered against the tug, then, if the Montreal Transportation Co. are legally liable, an action against them in personam for the difference between the amount recovered and the damages as fixed by the judgment. (The Orient, (10) The Zephyr, (11) (1] 26 Ch, D. 39. (6) 16 Fed. Rep 279. (2) 51 L. T. N. S. 128. (7) 5 Fed. Rep. 220. (3) 1 Wm. Rob. 154. (8) 8 Fed. Rep. 163. (4) (1903) 1 Ch. 422. (9) 2 Story 16. (5) 5 Ben. 386. (10) L. R. 3 P. C. 696. (11) 11 L. T. 351.
VOL. XII.] EXCHEQUER COURT REPORTS. There was no consolidation of the, actions. The order of the 21st of March, 1908, made by the trial Judge is as follows :— " Upon the application of the plaintiffs in both of the above named actions, and upon reading the writs of sum- mons in the said actions, and upon hearing counsel for all parties, and counsel for all parties assenting thereto : It is ordered that in pursuance of rule 34 of the General Rules and Orders regulating the practice and procedure M in this Court, the above actions shall be tried at the same time, at such place, and on such dates as may be fixed • up on a further appl ication s ;• . and that the same evidence shall, so far as applicable, be used in each action.. And it is further ordered that the costs of this application be Turn riti costs in the cause." I do not at present deal with the question of the legal liability of the Montreal Transportation Co., nor with the costs payable by or to them. I think these questions can be better dealt,with, as well as the ' costs of the present appeals, after the remedy against the tug Mary Ellen has been exhausted. No objection having been taken as, to the misjoinder of the parties; I do not think it wôuld be just to give effect to any objection at this stage.. The judgment should be varied by reserving the ques- tion of costs and that of the liability of the Montreal Transportation Co., as well as the costs of these appeals, until it is ascertained if the amount of the damages fixed by the judgment below is realized against the tug Ellen. Judgment accordingly. Solicitors for appellants : Maclennan, Cline & Maclennan. Solicitors for respondents : King & Smythe. 28 .' 433 1909, THE ' ATLANTIC COAST STEAM- SHI C P o. 1~ZoNTXEE AL TRANSPORT/L. TION C o . AND THE Snip MARY LEEK. ox AL TRANSPORTA- TION Co. v. THE SHIP BUCKEYE STATE. Mary 4.
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.