434 EXCHEQUER COURT REPORTS. [VOL XII. QUEBEC ADMIRALTY DISTRICT. BETWEEN 1909 THE MONTREAL TRANSPORTA- PLAINTIFFS May 12. TION CO., LIMITED ... } AND THE SHIP NOR WALK ALEXANDER D. THOMSON..INTERVENINGI PLAINTIFF. Shipping—Collision—Inland Waters Regulations, 1905—Narrow channel— Negligence—Liability. For vessels using the St. Lawrence River, the Imperial rules of the road apply from the Victoria Bridge down ; above that point such vessels are regulated by the rules passed by the Governor-General in Council on the 20th April, 1905. (See Statutes of Canada 4 & 5 Edw. VIII. p, lx. ) 2. The steamer Norwalk was proceeding after dark up the St. Lawrence River, and at a point in Lake St. Louis, east of Lightship No. 2, she observed the lights of the tug Glide with a tow of barges coming clown, and about three thousand five hundred feet distant. Just about this point the channel becomes comparatively narrow and the current swift, making navigation difficult. Under Art. 25 (b) of the above last mentioned rules the descending steamer has the right of way, but must signal the approaching steamer what side of the channel she elects to take. The Glide signalled that she was going on the southern side. Under the circumstances it would have been prudent for the Norwalk to stop, but she took the risk of keeping on her course and was swung by a crosscurrent toward the southern side of the channel, which brought her into collision with' one of the barges of the tow. It was shown that the Norwalk did not keep:•as far to the northward as she might have done. Field, that the Norwalk was guilty of negligence, and was solely to blame for the collision. THIS was an action for damages arising out of a collision between a steamer and a tow of barges in the St. Lawrence river.
,VOL. XII.] EXCHEQUER COURT REPORTS. 435' The facts are stated in the reasons for judgment. 1909 A. R. Holden, K. C., and E. E. Howard for plaintiffs ; M o1~TREAL A.R. Clarke, K.C., and A.R. Angers, K.C., for the ship . TRANS oNPORTA. v. DUNLOP, D. L. J., now (May 12th, 1909,) delivered THE lip • N O RW ALF~. judgment. -- Reason 4 of [After stating the allégations in the pleadings, and _the Trial Judge- grounds upon which Alexander D. Thomson was allowed to intervene in the action, thé learned trial judge proceeded as follows :1 The evidence in this case is more than usually contradictory, even for a collision case, but a great many things are no longer in dispute which were apparently in dispute under the pleadings. For example, the i dimensions and cargoes of the vessels, their ownership, the course followed by the tug and tow and the course followed by the steamer Nôrioalk up to the moment just before the collision, the channel, its direction, width and depth, more particularly in the neighbourhood of the St. Louis Lightship No. 2 near where the collision occurred—all are no longer in dispute. The tug Glide belonging to plaintiffs left the Soulanges Canal on a voyage to Montreal on thé afternoon of the 23rd October, 1907, having in tow two barges belonging to plaintiffs, the Winnipeg, a large barge about 180 feet long with a load of from about 1,200 to 1,300 tons, and the barge Jet, about 145 or 150 feet long with a load of flax-seed, having a gross tonnage of about 600 or 700 tons. The barges were lashed abreast to the Glide by a seven inch hawser, and the barges were lashed very firmly together by at least four lines from their respective timber-heads. In fact they were lashed as close as they possibly could be, and they formed as it were one ship. o It has been established that this was the correct mode of towing two barges down Lake St. Louis, although 28 re
436 EXCHEQUER COURT REPORTS. [VOL XII. 1909 one barge might be, as was the case in the present THE instance, considerably smaller than the other. Now it MONTREAL TRANSPORTA- was one of the principal charges made against plaintiffs PIOCN O. in defendant's preliminary act and defence that this was THE SHIP an improper mode of towing ; but no proof has been NORWALK. - adduced to contradict the evidence of plaintiffs' witnesses Reasons of Trial Judge. that this was the ordinary way of bringing such barges down the lake; because, as the experts said, the tug had a much better control over the barges when lashed together in this way. It has been also established that as you descend Lake St. Louis, coming near the Chateauguay Light, termed " Lightship No. 3," the channel narrows ; and it continues narrowing till immediately below the St. Louis Lightship, termed " Lightship No. 2." Just below this lightship it widens out again. The channel there is proved to be in a north-easterly direction as far as a little below Lightship No. 2, where it turns eastward. The channel itself does not bend until opposite the black buoy, the lower of the two black buoys which are placed below the Light, being indicated on the chart (plaintiffs exhibit No. 2). The descending vessel taking the southern part of the channel would continue on its course without any alteration, if it kept in the centre of the south part of the channel, until 500 .or 600 feet below Lightship No. 2, where it would take the bend east for Lachine. The charts show, and practically all the witnesses state, that at Lightship No. 2 the channel, for boats of fourteen feet draft, is at least 400 feet wide, with the lightship practically in the centre of the channel. It is important to observe that this measurement is taken in the narrowest part of the channel, not north and south, but slightly north-west and southeast, in order to get it as narrow as that. Mr. Fusey, an engineer, who was examined as a witness on the part of the plaintiffs, was cognizant of the
VOL. XII.] EXCHEQUER COURT REPORTS. ~ 437 whole matter and took the soundings and prepared the 1909 departmental chart (plaintiffs' exhibit 2), states in his THE +MONT REAL evidence, and the charts confirm what he says, that in TRANeSPORT A. taking a line between the two black buoys east of Light- TIO v CO. ship No. 2, the width of the channel north and south is THE SHIP NORWALK. 850 feet, of which about_ 200 feet lies to the south of the Re aso Jn east and west lines through the lightship, and 650 feet Tri a l usd ogYe. lies to the north of the east and west lines through the lightship. It is proved that at Lightship No. 2. there is a strong current coming down from the, channel of the Ottawa river, which is shown in the chart to be in a northwesterly direction, and sets across the channel towards the south. The witnesses state that the current runs from two to' three miles or More an hour, setting in a southerly direction across the channel, that is to say, that at Lightship No. 2 it would strike vessels a little on the quarter, almost abeam ; then after they.. take the bend below the lightship would strike them more and more astern; a little further down it would strike them exactly astern. It will be seen hereafter that this •current has an important bearing on the case. As to the weather on the evening of the accident, which occurred about 7 p.m., all agree that it was clear though dark, and that there was a light wind blowing from the north or north-west. The lights on all the vessels are well proved. . Both the Glide and Norwalk carried regular lights. The tow carried the regulation lights, to wit, a red light was carried on the Jet on the port side, and a green light on the Winnipeg on the starboard side. • All went well with the Glide and tow from the time they left the Soulanges Canal until near the Lightship No. S, when a steamer, the Norwalk, was seen, which afterwards came in collision with the barge Jet and evidently struck with great force her port bow shortly after the Glide
438 EXCHEQUER COURT REPORTS. [VOL XII. 1909 and ber tow had rounded the Lightship No. 2. The THE steamer Norwalk evidently struck the barge Jet with MONTREAL TRANSPORTA- great force as the 7-inch hawsers by which the barges PION v. Co. were towed were broken, causing the barges to break THE SHIP away from the tug and each other, thereby causing great NORWALK. Reasons damage to the Jet and practically destroying her cargo. of Trial Judge. Now, taking into consideration the nature of the channel and its width and dimensions at or near where the collision occurred, in order to determine whether the Norwalk and the tug and its tow were properly managed at and previous to the time of the accident, which is after all the crucial point in the case, it is necessary to determine if possible the exact place where the collision occurred. It may be remarked that it is admitted on behalf of the Norwalk that they knew and recognized that a tug with a tow was descending the Iake when about 3,500 feet away from it, as testified by Captain G-oodrow, the master of the Norwalk. In view of this fact, if there had been proper management of the vessels, the collision should have been avoided. It will be necessary, in order to discover who was responsible for the damage, to examine the very voluminous evidence taken in this case with care. I find it proved, first, that the tow had come straight down the channel from Lightship No. 1 to Lightship No. 2, and that at the time of the collision the barge was heading a little to the south and swinging to port, that is to say to the south with wheel aport, and the tug was pulling also in the same direction. I find it proved, secondly, that the collision occurred when the cabin of the Jet was opposite Lightship No. 2, and, thirdly, that the Jet was from 20 to 30 feet to the south. In my opinion it has also been established, although on this point the evidence is contradictilry, that the Norwalk, as well as the barges, were at the moment of the collision in the waters south or south-east of Lightship No. 2.
VOL. XII.] EXCHEQUER COURT REPORTS. Kennedy, on the Glide, swears that he saw the light of Lightship No. 2 over the bow of the diately after the collision. O'Connor and Mahoney saw it about a minute after the collision. It is established, furthermore, that the feet between perpendiculars, and therefore about 145 feet over all ; and that the cabin of the 20 feet from her stern. Having carefully examined all the evidence in this case I am of opinion, that the collision occurred about 125 feet below, that is, east or south-east of Lightship No. 2. This is virtually confirmed by what the witnesses Moreau, Malette and Cholette state. The witnesses for the Norwalk say that the collision took place from 50 to 75 feet below the lightship. In my opinion the witnesses on the tow were far better placed to judge the position of the Jet the lightship than those on the Norwalk, able to sap that they were in a position to be certain that at the time of the collision the cabin of the site Lightship No. 2. But the witnesses on the Norwalk had to depend on their estimate of the distance of a light across a stretch of water on a dark night ; and nothing could be more deceptive. The channel is that portion which is either naturally of a depth of 14 feet, or• has been dredged to a depth of 14 feet, and can be easily traced on the chart by noting the soundings; and the scale of the blue print chart produced showing the soundings is 400 feet to the inch. From the chart it will be seen that the narrowest part of the channel is a line through the first black buoy and the lightship, where it is about 440 feet wide. But it is important to note that the width through the point of collision, whether the .collision occurred 50, 75 or 125 feet east of the lightship, is, as shown on the chart, and, as state'd by the witness Fusey, about 850 feet wide ; and , 439 1909 Norwalk imme- THE MON TR EAL T RANSrORTA-TON Co. Jet is about 1.88 TaE sxrr NORWAL x. ------ LeasoJ nu sdof Jet is from 15 to Trial ge. with regard to and it is reasonJet was oppo
440 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 it is the same width for 400 or 560 feet below, where it THE narrows slightly, but continues of ample width for nearly MONTREAL TRANSPORTA- a mile below Lightship No: 2. It will be seen that TION CO. v the channel a few feet below Lightship No. 2 widens THE SHIP quickly to an extent of 850 feet, and there is at least 850 N ORWALK. feet to the north of the line between the two black buoys, Reasons ial Judge. as is established by the chart and the evidence of the witness Fusey. All defendant's witnesses contend that the tug and tow went north of the fairway of the channel ; while plaintiff's witnesses swear exactly the opposite. I think it was wrong to say that the lightship lies east and west, and that the channel was only 440 feet wide where the collision occurred. It was 440 feet wide at the shoals, which are westward and north-westward of the lightship, but the channel is much wider where the collision occurred. The fairway swings up very much further north than the east and west line between the lightship. The principal part of the bend in the channel is considerably below the lightship, as the witnesses show and the chart establishes. All the expert witnesses say that the Nor-walk should have stayed below when she saw a tug and tow coming down and recognized it as such ; except Chestnut, the pilot of the Norwalk, upon whom the responsibility must fall if plaintiffs succeed in their action. It has been proved, as I stated before, that the Norwalk recognized that a tug and tow was coming, when it was distant from the Norwalk about 3,500 feet. Captain Goodrow says that when he got to the turning buoy, which is about 3,500 feet east of the lightship, he saw the lights of a tow and recognized it as such. Though the experts say it would have been prudent for the Norwalk to have stayed below, it was not contended by plaintiffs' counsel that there was any statutory regulation to that effect ; but it seems to me it was one of the duties which rested upon
VOL. XII.] EXCHEQUER COURT REPORTS. the Norwalk so to do in order to avoid the danger of a collision by meeting .a tug and tow in a portion of the channel proved to be dangerous owing . to the fact of its being comparatively narrow, and the very material fact that there was a strong cross-current. It seems to me that the current accounts to a great extent for the mann and place in which the collision happened ; as it was Trial Jnudge shown that the Norwalk did not take this sufficiently into consideration. The pilot, Chestnut, seems entirely to have ignored the current ; and Captain G-oodrowfrankly says he did not know of the existence of the current at the time of the collision but he knows it now. He was interrogated and answered as follows :— " Q. I presume you know the channel changes its direc-" tion shortly above that ? " A. A. trifle, yes. " Q. So that you get the current in a different position " with regard to your boat shortly above that? " A. I did not know then, but I do ,now. " Q. You were relying on Chestnut for that kind of " thing? " A. Yes sir. " Q. How soon after did you learn this ? " A. I don't know." . When the Norwalk decided not to stay below, as she could easily have done, as has been established in this case, notwithstanding what the pilot Chestnut says, she took the risk of coming on, and if in default must be responsible for the consequences of taking that risk. All the other witnesses say it was perfectly safe for upcoming vessels to slow up and stop, so far as the current is concerned, anywhere in the reach below Lightship No. 2 ; and. experts say that is what they would have done if they had been in the position of the tow coming down, particularly at night, in order to avoid meeting it in a narrow channel near Lightship No. 2, 441 • 19o9 THE MONTREAL TILAN9PORTA-TIO Co. v TREW S HIP NO R ALK. R e ea r s o -s of. • Norwalk and 'saw a
442 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 and more particularly in view of the cross-current. The THE Norwalk had plenty of time to have taken that precaution, MONTREAL TRANSPORTA- but having taken the risk of coming on, should have kept TION Co . . as far to the northward of the channel as possible. This she V THE SHIP did not do. Captain Goodrow does not seem to have I\ ORWALK. — known this, and they were coming along holding their RPa.ons of Trial Judge, course, just to clear Lightship No. 2 by 10 feet. There was a powerful cross-current which began to bear on the vessel and make it edge or sag off, and the result was that they found themselves in the southern part of the channel, as the current had been drifting the Norwalk continually towards the south, and I find the collision occurred in the southern part of the channel at the place above mentioned. The material question in this case is as to the management of the Norwalk and the tug and tow immediately before and at time of the collision ; because no one seems to have imagined there was . any danger of a collision until it actually happened. I am of opinion it was imprudent in the Norwalk not to .stop. I find she took the risk of coming on. I find further that there was nothing to prevent the Norwalk keeping further north than she did, as it is shown she just cleared Lightship No. 2 by ten feet ; and that the collision might have been avoided if reasonable care and skill had been employed in the navigation and management of the Nor-walk by its master and officers and crew. The Norwalk did not respect the right-of-way that the tug and tow was entitled to. With respect to the sketch made by Captain Goodrow when examined, (fyled as Exhibit D-3) purporting to show the position of the boats at the time of the collision, I do not think that it shows the true position of the vessels at the time of the collision. This sketch is simply a rough copy of the plan or sketch defendants' exhibit No. 2, which was produced subject to plaintiffs' objection, and
.VOL. XII.] EXCHEQUER COURT REPORTS. 443 has not been proved. I refused to allow Captain Good-1909 row to refer to this plan owing to the objections made THE MONTREAL by counsel for plaintiffs. TRANSPORTA- These objections are now sustained ; and inasmuch as TION CO, this plan has not been proved, I order it to be removed THE SHIP N ORWALK. from the record. Rea so -ns of It seems to me strange that on the night of the acci- Trial aua ge• dent, which is proved to have been fine though dark, with little wind, that those on board the Norwalk should not have heard three blasts twice repeated by the tug Glide, and which has been conclusively proved to have.been the customary signal in those waters notifying up-coming vessels to check down, and also that they should not have seen the lights on the tow, while it is proved that they heard the one blast given by the Glide indicating that she was keeping to starboard. It has been proved that the whistle of the Glide was a loud and hoarse whistle, and could be heard . a considerable distance off. Another fact worthy of remark is that the witnesses examined by defendant say that when the collision occur- rèd, the shock was but a slight one, and a glancing blow. Now it is proved beyond all question that the blow was a severe one, that the bow of the barge Jet was stove in ; and she immediately, filled with water; that the seven inch hawsers, comparatively new, which fastened the barge Winnipeg and Jet to the tug Glide were broken, and the barges at once separated ; that the ropes fastening the barges together were broken ; that two of the crew of the barge Jet at once jumped into the barge Winnipeg to save themselves. It was also shown by the evidence of two of defendant's witnesses that they in any event con- sidered the collision a serious one in view of what they did. I refer to the evidence of Johnston and Ellis. The pilot . Chestnut of the Norwalk seems 'to have been very uncertain is to the course he should take. His evidence shows, (and more particularly the statement he
444 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 made at the enquiry held before the Wreck Commissioner, THE and which in his evidence he has admitted to be correct) mROANTSPRO T that he first intended topass to the south of the li a g htshi p p f , TIO C v O. but was reluctantly compelled, as he states, to go to the THE SHIP north. What he stated before the Wreck Commissioner, NORWALK. -- and what he admitted to be correct, is as follows :— Reasons of Trial Judge. " Q. When did you first get the impression that the " quarters were going to be narrow ? " A. When I passed the upper Gas buoy. " Q. That was the place where you realized that the " quarters were going to be close ? " A, Yes, that.he was coming. I saw I would have to "take the north side, and said to myself that I did not " want to go there. I was kind of hanging off to let him " get past, and then go in behind him. fie came over " between " C" and "F" [This refers to marks on a plan "produced before the Wreck Commissioner.] " In fact "I thought he was past us when he struck us, because the " tug was past us and I supposed he would follow right "after her ". Now with respect to the contradictory evidence as to the part of the channel where the accident occurred, all plaintiffs' witnesses swear positively that when it occured, the tow and barges were in the channel south of the light-ship, while defendant's witnesses swear as positively it was in the channel north of the lightship. Pilot Chestnut says the barges were north of the lightship. These are his words : " I did not think of going into " the south channel. I gave her [the tow] the whole c' channel, and got to the north side myself. That is why "I went up past the Gas buoy as far as I did". It will be seen that this is contradicted by what he said before the Wreck Commissioner, where he states " I would sooner have gone to the southward, but could not ". A s to the contention of the defendants that the .Norwalk could not have been in the position where she was seen
VOL XII.] EXCHEQUER COURT REPORTS. 445 after the accident, it seems to me that the blow and the 1909 force she received when the collision occurred would have DIE MONTREAL turned her round so that she could have cleared the light- TRAN3PORTA- ship at least 10 feet. Now, what did this blow do to the TIO Co. • v Jet? It stove in her bows ; it stopped her—she was going N O L R I W M AL P K . . 5 miles an hour ; it broke 2 seven inch hawsers and also --- Reasons of broke the ropes fastening the barges together, turning Trial Judge. the Jet athwart the channel. Yet it is contended by defendant's witnesses that it had no effect whatever on the Norwalk except to scrape a little paint off her bows. Here was a tow, consisting of two barges lashed together making one complete whole, both heavily laden. The Winnipeg was almost as large as the Norwalk. Her gross tonnage was over 1200 tons. The tonnage of the-Jet was about 700 tons ; and in addition to this there was the tug with two new seven inch hawsers pulling on its tow. o that we have practically a single vessel coming down with the momentum of the tug and those two barges together. They are coming down at five miles an hoûr, and collide with the Norwalk, which is coming up, more or less against the current, at a speed of almost three miles an hour. All this shows that the collision was a violent one ; and I cannot conceive that it had no effect whatever ou the Norwalk. The Norwalk was a large steamer of about 881 toffs register, heavily laden and proceeding on a voyage to . Detroit. It has been proved that after she left Lachine on the evening in question, about 6.30 p.m., she twice touched bottom. Plaintiffs contend that this indicated she steered badly, while defendant says that this was owing to the unusual lowness of the water at that time., However, the fact remains that she did twice touch bottom shortly before the collision in question occurred. It must be remembered in deciding this case that a tow of two heavy barges with a hawser of 125 feet in length would make it impossible for the tug and tow to stop or
44 6 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 slow up more than would be safe in accordance with the THE necessity of controlling the tow, while there was nothing MONTREAL TRANSPORTA- to have prevented the Norwalk stopping in the reaches TION Co. V. below Lightship No. 2. THE SHIP I am of opinion that the defendant made a mistake in NOR WALK. assuming that the Lightship No. 2 lies east and west, and Reasons of Trial Judge. in assuming that the channel was only 440 feet wide at the place where the collision occurred. All the witnesses say that a tug with a tow descending Lake St. Louis, always hugs closely Lightship No. 2, so as to straighten out the tow when going down the channel ; and that very often the tow sheers off. Now in the present case, if the tow did sheer off a little so as to encroach on the northern half of the channel to the extent of 10 feet, as contended by some of defendant's witnesses, this would not in my opinion relieve the Norwalk from fault ; for there was no occasion fors her to pass the lightship so close as she did, as no matter whether the collision occured 50, 75 or 125 feet east of or below the Lightship No. 2, there was plenty of water in the north channel for the Norwalk to have kept out of the way; and if she had done what she alleges she did in her preliminary act and defence, there would have been, in my opinion, no collision; and it has been established that the channel was much wider at the place where the collision occurred, as I have stated above. The authorities are clear that even if there had been • some initial fault on the part of the tug and tow, which I do not find proved in the present case, yet the tug and tow, would not be responsible for the collision, if by the exercise of reasonable skill on the part of the master, officers and crew of the Norwalk the collision could have been avoided ; and in my opinion such reasonable skill on the part of the master, officers and crew was not exercised at and before the collision. There was no occasion to have kept the Norwalk so close to Lightship No. 2 and
VOL. XII.) EXCHEQUER COURT REPORTS. 447 there was nothing to have prevented her keeping farther 1909 to the north, where there was plenty of water. THE TMI° I~TR RT Defendant contends stro ~ n g ÿ l y that the N orwalk w as sroICTA - properly navigated, according to the evidence of the TIO co. v expert Macdonald, a witness examined on behalf of the THE SHIP R ORWALK. plaintiff; but it must be remarked that this witness did — Ro n s of not say that the Norwalk under the conditions existing at Trial Judge. and previous to the collision, was properly. navigated. On the contrary he states he should have remained below until the tug and tow had passed down, or kept well to the north side of Lightship No. 2. He was interrogated as to this, and answered as follows :— " Q. If you were coming up the lake with one of the " steamers, such as you have described—that is a canal " size steamer—and you met a tow coming down, under " such conditions, when you would come abreast of ber " about the light. What would your duty be under those " circumstances? That is if you had no signals from her whatever ? " A. Well, if I met a tow anywhere near the light " coming down there, I would take the other side. " Q. The north side of the lightship ? -" A. The north side of the light. " Q. Did you ever do that ? " A. Yes, sir. " Q. More than once ? " A. Yes, sir, more than once. "Q. A nd, if you were not going to take the north side "of the lightship, would you have any other course open " to you ? " A. Well, if I saw him coming into me in time, I would check down and wait below altogether. In order "to give him time to get out. I could go to the ,other side "if I wished" . and further on he says : " Q. If you did not know the north channel as well as " the south one?
448 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 " A. I would not go. THE " Q. What would you do then ? MONTREAL TRANSPORTA- " A. I would wait below, outside. There is lots of • TION CO. v. " room there? THE SHIP NORWALK. The lookouts,both on the Norwalk and on the tug and Reasons of tow, may not have been as efficient as they should have TrialJudge.. been, but I do not think that this contributed at all to the collision. Plaintiffs contend that the Norwalk should have stopped after the collision, and offered to render assistance which certainly was 'required as regards the barge Jet, which drifted down and stranded some distance above the Lachine Rapids. And part of her crew was afterwards rescued by a boat being sent after the tug had returned from towing the Winnipeg to a place of safety. But as the crew of the Norwalk say they did not hear any cries for assistance though it is proved that assistance was called for, as the tug was there, and the barges were near shore, I think under the circumstances as disclosed by the evidence, they were not in fault in going on as they did. I am of opinion that there would have been no collision if the Norwalk had stopped shortly after she recognized that the Glide and her tow were coming down ; and she recognized that when they were about 3,500 feet away, as testified by Captain Goodrow. I am further of opinion there would have been no collision if the Norwalk had kept further to the north, where she would have had ample water to have passed the tug and tow in safety. The channel was that part of the lake which either naturally or dredged had a depth of 14 feet, as shown on the chart produced. Now, even if, in the first instance, the tug and tow were in fault, which I do not find, yet if the collision could have been avoided by reasonable care on the part
VOL. XII.] EXCHEQUER COURT REPORTS. 449 of the master, officers and crew of the .Norwalk, the tug 1909 and tow would not be responsible for the accident. THE MONTREAL Now on this point I might refer to a recent Admiralty T RAN sroaTA-case of the Etna. (1) where Bucknill, J., referring to the T1° CO. v management of the torpedo boat Wear which had been NoRKr . in collision with the steamer Etna, said : " He failed to - Reasons of " act [referring to the officer in charge of the torpedo Trial Judge. "boat] until too late, and just failed to clear the Etna by "40 feet. It was agreed that on the authority of H.M S " Sans Pareil (2) the rules of common law as to negligence " applied, and that if the Etna was initially negligent " she might escape if by reasonable care and skill the Wear " could have avoided her; this, however, had not been " made out to his satisfaction, as the Etna was not only " negligent in getting in between the two lines of the " flotilla, but there had evidently been a bad lookout on " board, for she did not see the starboard division of the ; ' flotilla at all." And the Judge, having regard to the negligent navigation of the Wear also, held both vessels to blame. - The decision in the torpedo case above cited shows that the Sans Pareil case is a binding authority . on the Admiralty Court in England, and there, notwithstanding that the nautical assessors in the first court held that there was no negligence in the East Lothian in passing across the bows of the Sans Pareil, the court held as the Sans Pareil might with ordinary care have avoided the collision, she was alone to blame for the collision. This case was taken to appeal on the ground that there . was improper navigation on the part of the East Lothian, and the damage sustained should have been in any event divided. Different assessors assisted the Court of Appeal, which confirmed the judgment of the court below, and • which asked the assessors the following questions as mentioned at page 282 of the Probate Reports , 1900 :— (1) 24 T. L. R. 270. (2) (1900) P. 267. 29
450 EXCHEQUER COURT REPORTS. [VOL. II. 1909 " Q. Was the East Lothian under the circumstances of THE " this case guilty of negligence in passing across the bows MONTREAL TRANSPORTA- ~' of the Sans Pareil? And they answered ' it was TION CO. v. improper navigation,"' which the Court of Appeal took THE SHIP NORWALK. to mean that the assessors did not advise them in the same way as the elder brethren in the court below, and Reasons of T. ial Judge. accepted their advice so given. Lord Justice Smith in giving judgment, at page 283 of the Probate Reports, 1900, said :— " The well-known law of contributory negligence laid " down by Lord Penzance in the House of Lords in " Radley v. The London and North Western Railway Co. " (1) is 'that the plaintiff in an action for negligence " cannot succeed if it is found by the jury that he has " himself been guilty of any negligence or want of " ordinary care which contributed to cause the accident ;' " but there is this qualification equally well established, " namely, that though the plaintiff may have been guilty "of negligence and although that negligence may in fact " have contributed to the accident, yet if the defendant " could, in the result, by the exercise of ordinary care and " diligence, have avoided the mischief which happened, " the plaintiff's negligence will not excuse him.' The case " of the Margaret (Cayzer y. Carron Co. (2), shows that " the common law doctrine is applicable to such a case " as that now before us." Reference might also be made to the remarks of Lord Justice Williams who, at page 287, said :— " The only remaining question is whether, applying " the common law rules to this matter, there is evidence "of such a state of circumstances that the plaintiff is " disentitled to recover. That there was negligence by " the plaintiff there can, to my mind, be no doubt. If " the advice of our assessors is right, there obviously " was, and, speaking for myself, I entirely agree with (a) L. R. 1 A. C. 754. (2) L. R. a A. C. 873. ~~~
VOL. XII.] EXCHEQUER COURT REPORTS. 451 "•the view they take. But, according to the rule laid I9°9 " down in Radley v. London & North Western Railway THE MONTREAL " Co., that is not sufficient ; you must show that the negli- TRANSPORTA. `` gence was of such a character that the defendant could TIo CQ. v ` not with ordinary skill and care have avoided the acci- TUES H x. " dent. That rule applies equally in the Court of Admi- — 44 Reasons of ralty, where the practice is that if both ships are to Trial Judge. " blame, the damage is to be divided; (See the Margaret " (Cayzer v. The Carron Co.). . In that case Lord " Blackburn and Lord Watson made it clear that the ` common law principle governs the Admiralty rule, it and that if the consequences of the neglect of plaintiffs ` could have been avoided by ordinary care and prudence ` on the part of defendants, the negligence of plaintiffs " would be no answer to the action.". In the case of the Hamburgh Packet Co. v. Desrochers (1) Burbidge, J., in rendering judgment, said :— " The effect of the statute ' (referring to the English " statute) is to impose on a vessel that has infringed a " regulation, which is prima fade applicable to a case, " the burden of proving not only that such infringement " did not, but that it could not by possibility have con• " tributed to the accident. That is the rule for which " the appellants contend, and it is no doubt the rule to " to be followed in Canadian courts in cases of collisions-" occurring on the high seas, but it is not applicable " where the collision occurs in Canadian waters." This must .always be borne in mind when considering the English authorities, and such authorities prior to 1873 are only applicable, the English law having been then changed. Previous to that time the law was the same as the present Canadian law. The case of the Khedive (2) is referred to at pp. 303 of 8 Exchequer Court Reports, as follows :---- (1) 8 Ex. C. R., 304. (2) L, R. 5 A. C. 876. 29%
452 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 " The alteration of the law in 1873 was an important THE " one. The occasion of it, and its effect, will be seen by M ONTREAL TRANSPOKTA-" reference to the following cases. In Tuf v. Warman (1) TION CO. v. " the defendant was charged with having so negligently THE SHIP " navigated a steam vessel in the river Thames as to run NORWALK. " against and damage the plaintiff's barge. The case Reasons ge. " came before the Exchequer Chamber in 1858. The " effect of the decision cannot, I think, be better stated " than it was by Lord Blackburn in the case of the Khedive, "decided by the House of Lords in 1880 (2) : ` On the con-" struction of this and similarly worded enactments, it "has been held, in Tuff v. Warman, that though the " plaintiff had infringed the rules, and by his neglect " of duty brought the vessel into danger, yet if defendant " could by reasonable care have avoided the consequences " of plaintiff's neglect, but did not, and so caused the " injury, the plaintiff could recover, as un.ler such circum-" stances the collision was not occasioned by the non- observance of the rule'. This he adds `prevented the " statute from producing the effect that those who framed " it wished ; but nothing was done until attention being " apparently called to the subject by the case of the ""Fenham," (3) section 17 of The Merchant Shipping Act " was enacted." This was evidently one of the earlier cases referred to in the judgment of the Exchequer Court where the presiding judge said : (p. 305.) "Where that happens [referring to the collisions in Canadian waters] " the rule to be followed is that estab-" lished by the earlier cases. It is necessary, then, in " considering the English authorities to distinguish " between cases decided before and those decided after " 1873, when the Act was passed. " With reference to the jurisprudence bearing particularly on this case, it is well known that from the Victoria bridge (1) 2 C. B. N. S. 740; 5 C. B. N. S. 573. (2) L. R. A. C. 892. (3) L. R. 3 P. C. 212.
VOL. XII.] EXCHEQUER COURT REPORTS. 453 down-we are practically under the International Rules 1909 of the Road, that is to say, the Canadian Government has THE M O NTREAL made the Imperial rules applicable in their entirety from TRAN SPORTA-the Victoria bridge down stream, but from the Victoria TIo Co. 2 bridge upstream we are under the regulations as prescribed THE SHIP OR W ALK. by Canadian "Order-in-Council of the 20th April, 1905. -= eaons of These rules are printed in the first part of the volume xRrlalsaudge of the Dominion Statutes 4 .& 5 Edward VII., page lx. Art. 25b of these regulations is important, and reads : " In all narrow channels where there is a current, and "in the rivers St. Mary, St. Clair, Detroit, Niagara and " St. Lawrence, when two steamers are meeting, the " descending steamer shall have the right of way and " shall, before the vessels shall have arrived within the " distance of half a mile of each other, give the signal "necessary to indicate which side she elects to take". This was done by the Glide by giving the one blast of her whistle, indicating that she was keeping to starboard. I would also refer to the case,of the Independence decided by the Privy Council in 1861 (1). In that case the ship that met the tug and tow was in a much more favourable position than the Norwalk is in this case, because she was a sailing ship. This is what the Privy Council said when they held the sailing ship in fault [Per Lord Xingsdown :] "A steamer unencumbered is nearly independent of "the wind. She can turn out of her course and turn into " it again with little difficulty or inconvenience. She can "slacken or increase her speed; stop or reverse her "engines, and can move in one direction or the other " with the utmost facility. But a steamer with a ship in " tow is in a very different situation. She is not in any-" thing like the same degree mistress of her own motions : " she is under the control of and has to consider the ship "to which she is attached. She cannot by stopping or (I) 14 Moo. P. C. 103 at p. 115. ,
454 EXCHEQUER COURT REPORTS. • [VOL. XII. 1 " reversing her engines, at once stop or back the ship THE " which is following her. By slipping aside out of the MONTREAL TRANSPORTA- " way of an approaching vessel, she cannot at once and TIO C N a "with the same rapidity draw out of the way the ship THE SHIP NORWALK. "to which she is attached, it may be by a hawser of con-" aid erable length, and the very movement which sends Reasons of Trial Judge. " the tug out of danger may bring the ship to which she " is attached into it." I would also refer to the case of the American and the Syria (1). This was a judgment of the Privy Council in 1874. In that case the American was found to blame; she was towing the Syria and both struck a sailing ship. Sir Robert Collier in delivering the judgment of the court commented upon the decision and the passage above quoted in the Independence, and the effect upon that decision of the promulgation of the new regulations for preventing collisions at sea. His words, at page 130, are as follows : "It is true that this case [referring to the Independence] " was decided before the promulgation of the present " regulations for preventing collisions at sea, which in " terms direct that where the courses of two vessels "involve risk of collision, the steamship shall keep out of " the way of the sailing ship, and the sailing ship shall " keep her course, subject to due regard to dangers of " navigation and to special circumstances rendering a " departure from the rule necessary in order to avoid " immediate danger." He goes on to say :-- " But the rule of navigation though formulated, can "scarcely be said to have been altered by the regulations, "• and the distinction taken between the relations of an " encumbered and unencumbered steamer is manifestly a " just oue and still applicable." Marsden on Collisions at Sea (2) thus summarizes the English jurisprudence :— (1) L.R. 6 P.C. 127. (2) 5th ed. p. 166 ed 8eg-
VOL. XII.] EXCHEQUER COURT REPORTS. 455. " It is obvious that a tug with a ship in tow has not 1909 "the same facility of movement as if she were unencum- Tax MONTRE AL " bered. She is not, in anything like the same degree, T R ANsroRTA " mistress of her own. movements. She cannot, by stop- Tio Co. v " ping or reversing her engines, at once stop or back the NTOHREWSHA H. " ship in tow " He continues : -- Reasons of " In taking measures to avoid a third vessel she has to Trial Judge. " continue her tow, and a step that would be right and " take ber clear, if she were unencumbered, may bring "about a collision between her tow and the ship she herself has avoided. Although, therefore, it is the duty " of a tug with a ship in tow to comply, so far as is pos. "sible, with the regulations for preventing collisions, it is " also the duty of a third ship to make allowances for the " encumbered and comparatively disabled state of the " tug, and to take additional care in approaching her". And at page 344 this author, referring to the require. ments for lights, states : " The distinguishing lights of the tug are ` for the pur-" i pose of warning all approaching vessels that she is not " ' in all respects mistress of her movements', and to show, ". that she is encumbered." and at page 487 states : " The Supreme Court in America has held that a vessel " undertaking to pass another in a narrow channel, or "navigating such a channel in weather that makes it "dangerous, does so at her own risk ;" and at page 444: " In determining, therefore, what are the proper steps " for a ship to take in order to avoid another approaching " her in a winding river, the sinuosities of the river, and " also the usual course of vessels in the river, must be " taken into consideration ;" and at page 445 : "It has recently been held in the Admiralty Division "that it is a prudent rule in a winding tidal river, in the
456 EXCHEQUER COURT REPORTS. [VOL XII. 1909 " absence of special regulations, for a steamship about to THE "round a point against the tide to wait until a vessel MONTREAL TRANSPORTA- " coming in the opposite direction has passed clear, and TION CO. 44 V a steamship was held in fault for disregarding this pre- THE SHIP " caution ;" NORWALK. and at page 331: Reasons of Trial Judge. "A vessel is not justified in delaying to take precau- tions until the last moment, or in trusting to be able to "` shave' clear of the other. If by doing so she frightens "the other into taking a wrong step and a collision "occurs, she will be responsible for the entire loss." Here, again, it may be said that even if it were true, which I do not admit, that the tug and tow were ten feet north of the line of the lightship, and if being there, considering the direction of the current and other attendant circumstances, constituted a fault, I am of opinion that under the principles laid down in the above cited authorities, the tug and tow could not be held responsible for the collision brought about by the Norwalk. I would refer also to the case of the Hibernian (1). The judgment was rendered in 1870, and the Privy Council judgment will be found in L. R. 4 P. C. p. 511 : also to the case of the Earl of Lonsdale, (2) a judgment of the late Mr. Justice Stuart, where it was held " Where a steamship ascending a river, before entering " a narrow and difficult channel, observed a tug approach-" ing with a train of vessels behind her, and did not stop "or slacken speed, and where she subsequently collided "with the tug and her tow, the steamer was held to blame " for not stopping when entering the channel. " This judgment was confirmed in the Privy Council ; and the judgment of the Privy Council is reported in the same volume of Cook, page 163. The American jurisprudence is to the same effect, and it is unnecessary to quote the cases at length, as a great (1) 2 Stu. 148. (2) Cook's Adm. Rep. 153.
VOL. XII.] EXCHEQUER COURT REPORTS. 457 many of the more important decisions are cited in plain-1909 tiff's written argument. THE MOIL TREAL I might also state that Maiette's evidence has been TRANSPORTA- referred to, in which he stated it would not be proper TIo CO. v navigation to go north of the line of Lightship No. 2 ; THE slur N ORIVALK. and this has been strongly urged against the plaintiffs on ----- Reasons of the assumption that the line of Lightship Number 2 runs Trial Judge. east and west. But the line does not run east and west as shown by the charts, and as explained by Mr. Leger, but in a north-easterly and south-westerly direction. So that when the line of the lightship is properly laid, Captain Malette's evidence is perfectly explainable and seems to support plaintiffs' contentions; and this has been satisfactorily explained by Mr. Howard, one of plaintiff's counsel in his argument. Having carefully examined the able arguments of the counsel, the authorities cited on both sides, and carefully examined the jurisprudence bearing on this question, and the evidence of record, I am of opinion that the defendant is solely to blame for the collision in question, and is responsible for the result in damages. I am further of opinion that the collision in question could have been avoided if reasonable care and skill had been exercised by the master, officers and crew of the steamship Norwalk. I am consequently of opinion that the said steamship Norwalk is solely responsible for all damages caused by the said collision ; and I consequently find in favour of plaintiffs, and allow the plaintiffs' action. I condemn the defendant, the ship Norwalk, her owners and bail in the amount to be found due on plaintiffs' claim, together with costs of the principal action ; and do further adjudge and order that an account be taken, and refer the same to the Deputy Registrar, assisted by merchants, to' report the amount due. I further order that all accounts and vouchers, with reports in support thereof, be filed within
458 EXCHEQUER COURT REPORTS. [VOL XII. 1909 six months after date of the present judgment ; and that THE any amount to be found due by the defendant for damage MONTREAL TRANSPORTA_ to the cargo of the barge Jet, said barge being owned by TION Co. v. the plaintiffs, be paid over in due course by plaintiffs to P the said intervenant, T who has been proved to have been E H -- the owner of the cargo of the said barge Jet when the Reasons of Trial Judge. collision in question occurred ; and that defendant pay, the intervenant the costs of his said intervention up to the date of its allowance. Judgment accordingly. Solicitors for plaintiffs : McLennan, Howard & Aylmer. Solicitors for ship : Clarke, Bartlett & Bartlett. Solicitors for intervening plaintiff: Geoffrion, Geoffrion & C•usson.
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.