Ex. C.R. EXCHEQUER COURT OF CANADA 217 ON APPEAL FROM THE TORONTO ADMIRALTY DISTRICT 1925 THE GLENCLOVA (DEFENDANT) APPELLANT; July 8. AND JOHN F. SOWARDS (P LAINTIFF RESPONDENT. -1 Shipping—Collision,—Precaution--Signal—Turning ship in harbour— Practice of seaman—Risk of collision. Held, (varying the judgment of the Local Judge in Admiralty for the Toronto Admiralty District), that although a ship has received signals authorizing her to continue her course and speed, where she is aware of the other's intended manoeuvre and the time and space required therefor, and is not embarrassed by any doubtful movements on her part; if there is at any time reason to apprehend that to conitimue her course might lead to a collision, she is no longer justified in doing so, but, by the practice of seamen and prudent navigation is required to take such manoeuvres as will prevent collision, even where no danger signal is given by the other. APPEAL from the judgment of the Local Judge for the Toronto Admiralty District dated the 7th April, 1925 (1). Ottawa, June 17, 1925. Appeal now heard 'before the Honourable the President assisted by Captains Demers and Dickson as nautical assessors. R. I. Towers, K.C. for appellant. Francis King, K.C. for respondent. The facts are stated in the reasons for judgment. MACLEAN J., now this 8th July, 1925, delivered judgment. The facts are as stated in the judgment of the learned trial judge and need not I think be repeated. There is considerable conflict in the evidence, and portions of it are per- (1) The reasons for judgment of the learned trial judge will be found at the end of this report, page 221.
218 EXCHEQUER COURT OF CANADA [1925] 1925 haps quite unsatisfactory as the learned trial judge him- THE self remarked, but it is to be observed that a considerable Glenclova v. time elapsed between the date of the collision and the trial, sowAans. and such matters as the distances traversed in certain move- Maclean J. ments, the alterations of helm, course, and the different movements of the engine of the defendant ship, were not registered in a scrap log book, and I, together with my assessors, feel that much of the evidence, particularly as to distances and intervals of time, should not be interpreted too strictly and should in many instances at least be regarded merely as general recollections or impressions of such events. We think also that the distance the Glen-clova manoeuvred from the shore is not after all of great importance, for whether it was one distance or another, neither necessarily affords a defence for either ship for other acts which were against the prescribed rules and prudent seamanship, and which might primarily be the cause of a collision. On the whole we think also that the statements and findings of fact made by the learned trial judge afford a reasonably accurate reconstruction of the events leading to the collision. The learned trial judge held that under Rule 30 the Jeska was entitled to hold her course and speed; that the master of the Glenclova must have assumed that he could complete his turning movement in time to pass port to port, but finding that he was unable to do this without risk of collision owing to his ship's forward movement, he should have sounded his danger signal and reversed and gone astern. Disregarding for the moment the question as to whether Rules 30 and 32 applied and that the Glenclova was a crossing ship, I am quite of the opinion that the Glenclova was at least to blame. When a collision appeared imminent, or a risk of a collision was involved, it was clearly the duty of the defendant ship to sound an alarm signal with an immediate order of full speed astern, the effect of which, my assessors advise me, would have thrown her stern rapidly to port, hastening the turning movement towards the south and southwest, and permitting her to pass the Jeska port to port. As a ship departing from a dock, I think the Glenclova did not exercise a proper degree of caution. I therefore agree with the finding of the learned trial judge, as do my assessors, that the Glenclova was
Ex. C.R. EXCHEQUER COURT OF CANADA 219 blameworthy, and it is not therefore necessary to say more 19 in respect of this ship. THE The next question is, whether the Jeska was to blame Glenvlova or not. The defendant ship contends substantially that the sownxDs. Jeska knew that the Glenclova was turning, and that the Maclean J. Jeska had ample sea room and time to go to starboard, and thus avoid the collision. The learned trial judge found that the Jeska had plenty of room to sheer off and clear the Glenclova, had the latter given a danger signal. The conduct of the Jeska was, I think blameless, and my assessors concur in this, up to the time that a risk of col- lision became imminent. It is admitted that the Jeska had ample time and sea room to starboard, and her master admits he could have done so, had the Glenclova intimated that she could not in time complete her turning movement and that there was a danger of collision. I do not think it is necessary to decide whether the Glenclova was a cross- ing ship under Rule 30. That is a most difficult rule to interpret in circumstances such as prevailed in this case. I think the liability of 'the Jeska can be determined without a decision upon this point. There was a moment of time when the Jeska must have known that the maintenance of her course and speed, involved a risk of collision, and there was a moment of time when the Glenclova was dangerously close to her intended course. It was then, I think, the im- perative duty of the Jeska to port her helm as she had any amount of sea room on her starboard. However, she never changed her course or speed after first sighting the Glen- clova up to the time of the collision. Supposing it were correct that the Glenclova under the prescribed rules or in the exercise of prudent seamanship should have turned nearer the shore or well within the line of the inside of the marked channel, or that she should have earlier ported or gone full speed astern, should that exculpate the Jeska after seeing, as she must have seen, that there was a risk of col- lision if she did not go to starboard? A very slight porting of helm of the Jeska would have clearly obviated the col- lision. Did the Jeska hold her speed and course longer than she ought to have done? I do not think a ship is justified in standing even upon h'er strictly technical rights, if a departure therefrom will avoid danger or the risk of a col- lision. And that 'observation is made upon the assumption
220 EXCHEQUER COURT OF CANADA [1925] 1925 that in this particular case, the Glenclova was a crossing THE ship, which as I say is not at all clear in my opinion, and Glenclova that rules 30 and 32 applied. The precaution of the Jeska SowwnDs. porting her helm, or stopping, or going astern, was in the Maclean J. circumstances required by the practice of seaman and prudent navigation, and rule 38 in my opinion applied. The Jeska assuredly knew that the Glenclova was turning, and that such a movement, considering the size of that ship, was attended with some risk and involved a risk of collision, when the Jeska was within close distance of the Glenclova and if the former persisted in her course and speed. Even if the Jeska thought that ordinarily under rules 30 and 32, she should keep her course and speed, and that the Glenclova should keep out of her way, still under rule 37 a departure from that course of action was quite proper and necessary to avoid immediate danger. It was a case where the rules of good seamanship applied: The Llanelly (1) ; The Ornen (2) ; The Ranza (3). The case of The Hazelmere (4) is not without interest in the same connection. The spirit of the note to rule 21 of the international regulations for preventing collisions, though not stated in express terms in the rules applicable to the Great Lakes, is to be found, I think, in rules 37 and 38. I would refer to pages 65 to 67 of Moore, fourth edition, on the Rules of the Road at Sea, and the authorities there referred to. Here the Jeska, if considered a crossing ship, was not embarrassed by any unascertained and doubtful movements of the Glenclova, that is to say, the former ship all along knew what the latter ship was trying to do, her exact location she being always visible, the probable time and space required, and the Jeska was not at any time in doubt as to all this, owing to any circumstances whatever. It is difficult to understand why the Jeska challenged a risk of collision or did not avoid a danger from which she could so easily have escaped. The critical moment was easily within her determination. A little assistance from the Jeska would have avoided the collision, notwithstanding the signals exchanged. As the learned trial judge himself states, a vessel whose master has received a signal which justifies her (1) [1914] P. 40. (3) [1910] 79 L.J. Prob. 21n. (2) [1910] 79 L.J. Prob. 23n. (4) [1911] P. 69.
Ex. C.R. EXCHEQUER COURT OF CANADA 221 continuing her course and speed is entitled to hold on, until 1925 she realizes there was danger. I am of the opinion that the THE Jeska is also to blame and with this conclusion my assessors Glen v c lova . agree. S ' ôwn sns. Therefore I very respectfully am of the opinion that both Maclean J. ships were to blame. Judgment accordingly. REASON FOR JUDGMENT OF HODGINS L.J.A. The Glenclova is a steel vessel of slightly outside or to the eastward 1,902 registered, tons, and is 250 of the lime of stakes, and in fact feet long. She came up the St. pointing across the shoal; the water Lawrence, light, and went to the over which was deep enough to pilot pier where she dropped her allow her to navigate it safely. She river pilot. She lay broad-side to is of wood, 104 feet long, of 300 the end of the pier, with her bow tons burden, and with a speed of pointing northwest. The weather 61 miles an hour. She was coal is stated in both preliminary acts laden on this trip and draws 5 to to be clear and the time was 7 8 feet aft. Her engines are at the p.m. Standard time. stern. This pier is on one side of a The plaintiff alleges that the channel, 600 feet wide, at the east- Glenclova kept moving on while erly edge of which is a shoal (Car- swinging and had got athwart the rnthers) marked on the inner side course of the Jeska, and struck her by a line of red stakes. The a severe and nearly direct blow Glenclova then began to turn, hold- with her stem, while the defence ing on by her bow line, and throw- allege that the blow was only a ing her stern out. When it was glancing one, which was due to the about 100 feet from the dock she Jeska failing to give her sufficient began to move backward, her stern room while turning and thus her- following 'an arc of a circle or as it self colliding with the Glenclova was described a semi-circular move- while she was motionless, except ment toward the southwest till she for her swing, in the water. reached a point Off the southwest The evidence given on behalf angle of the 'Collingwood Dry Dock of the defendants was that at the Co's. pier. Between this pier and close of the semi-circular movement the pilot pier is what is called in under a reversed engine, the Glen-the evidence the Centre pier. Her clova's stern was from 210 to 250 bow, as part of the manoeuvre, feet off the end or southwestern kept swinging to starboard, so that point of the Collingwood Drydiock she could proceed westward into pier and she was heading S.S.E. Lake 'Ontario when the turn was or in a line similar to that of the completed. streets which on the chart (EX. 1) During this time the SS. Jeska run down toward the piers, the was coming up the harbour from sides of which are on the same 4 mile point, so as to pass into line. The stern of the ship, when and through the channel I have the cast off from the Pilot dock mentioned. According to the tes- was made, had been worked out timony on her behalf which I ac- 100 feet from it, so that she must, cept, she was holding a course if that evidence is accepted, have
222 EXCHEQUER COURT OF CANADA [1925] 1925 mioved her Stern in her semi-cir- she had, in her manoeuvre to get cular movement, still further out clear of the dock, or in turning to THE Glenclova by 100 to 150 feet. starboard to proceed on her course, v. In their pleadings the defendants moved forward, while swinging, S'ownnns. assert that 'the ship completed this more than she need, or should, Maclean J. movement " coming to a stop as have done. As her length is 250 _ intended with her stern 50 or 75 feet, she would! occupy 500 feet of feet from the dock." If so, that the 000-foot 'channel, or was at disposes of the argument that the least that far out from the dock, ship could not safely approach the while swinging. 1 must find the dock nearer than 250 feet. fact, which is established by the The distance thus given agrees witnesses for the defence, that she with the observation of the Master did move forward as well as side-of the Jeska when he blew his pass- ways. ing signal. Geogh'an who was on The witnesses who say so are the centre pier says he saw the these following: Clark says the Glenclova's stern 50 feet from the Glenclova when stopped was 250 Cal'lingwood Dry Dock pier. The feet out at the time of the col-argument I have mentioned was lision, but dbeun't know how she founded on the 'evidence of the got there, and that if starting at master of the Glenclova and of sev- 100 feet her stern could not be eral witnesses, though Clark, a 250 •feet out in completing her witness for the defence denies that turn. Foote, her master, says he at the time of the collision 'the signalled full speed, ahead when off Glenclova's stern was only 75 feet the Collingwo'od Dry Dock pier from the dry dock which is the to get way on the ship but says he situation set up in, par. 4 of the got no headway on her, though defence. But the pleading must be he admits he had got 210/5 feet regarded as an admission 'tint dur- out from dock and the collision ing the turning movement the 250 feet. He admits he would stern of the vessel was at one time have cleared Jeska if he had been within that distance of the dock. 100 feet back. McLeod, 1st mate, There is also evidence which says the Glenclova could have satisfies me that the Glenclova gone further 'astern but can't say could have pawed the end of the how far, and that she might have Collingwaod Dry Dock pier and moved a little ahead. Greer, 2nd backed in west of it, as the sunken mate, was not at the stern but says crib spoken of did not come within that had he been there he would about 150 feet of the end of the not have called to the master pier. The second mate of the until 100 feet off the dock. Daoust, Glenclova, Greer, was not at the a pilot, who was on the pilot dock, stern, which was' his proper place says the Glenclova was reversing during the turning movement, nor till her stern got 250 feet from was any other 'officer or sailor there pier, and then got a " kick ahead" to give the master information as for two or three minutes and she to her nearness to the dock. This, went ahead 20 feet, and then re-I take to be a fact of importante , versed again. Also that 100 feet as the master was 'on the bridge forward, and he could not judge from the dock would not be with intelligence, as he in effect dangerous. M'alette, another pilot, admits, 'how far he was 'off and on cross-examination admits that how near he could still approach the Glenclova should have worked without danger. astern and let the Jeska go past, If the Glenclova got into a posi- and that she must have had head-tion 250 feet from the end of the way to get where she was when dry dock it would indicate that the 'collision took place.
Ex. C.R. EXCHEQUER COURT OF CANADA 223 This evidence agrees with •that questioned, the ships should have 1925 offered by the plaintiff as to the made known to each other by the distance from the clock and of a whistle and otherwise, in ample THE Glenclova forward movement 'before the col- time, their intention to observe v. lision. this regulation then applicable to SOWARDS. The evidence of the engineer of each. The obligation to observe the Glenclova was extremely un- this rule was all the greater as Maclean J. satisfactory. He gave, tin chief, McKay Reach, in my opinion is a a statement of the successive narrow channel." motions of the engines, but on His remarks in SS. Fryer and SS. cross-examination gave quite a Westmount (2) are somewhat ap-different one. My impression was posite: that he bad no solid ground for * * * " it appears to •me that his statements, no part of which the Westmount is wholly to blame. was indicated in his log and that Her failure to give the signal that he really remembered nothing of she was to depart from her dock, the sequence of orders or motions the speed with which she swung nor df the space of time separat- across the channel, and generally ing •them. I entirely discard his her method of manoeuvring to get evidence. out of the slip, to the apparent ex- I find upon the conflicting stories elusion or danger of other ships and the events which happened seeking entry to the slip, were each that the Glenclova was further acts of negligence, the proximate forward than she admits at the causes of the collision." time of the collision and was forg- and in reference to a ship engaged Mg ahead while swinging instead in 'a turning 'movement he says in of going astern. Her speed• for- the 'SS. Hamonic and SS. Fryer (3) : ward, whatever it was, carried her " The presence of the Fryer was far enough to cross the course of known to the Hamonic, and the the Jeska. If she occupied 500 latter must have been •cognizant of feet of the channel there was more the •fact that she was occupying a than 100 feet left before she would considerable space •of the river intersect the course of the Jeska channel. A ship proceeding down which was to the east of the line a narrow channel obliquely to or of stakes •on the east side of the athwart the stream, as in this case, channel. must produce a situation ,of The results of the impact in- embarrassment for an iaipproach-dicate to my mind very clearly a ing ship awaiting the turning event, distinct forward thrust against the and as well a situation involving Jeska. a •passible risk of collision." There remains the question "Regulations are not merely whether the vessels under these made for the purpose of prevent-conditions took what the President ing a collision, but also to prevenit of this Court has called seasonable the risk of a collision. They apply precan Iti"ons. In C.P.R. v. SS. at a time when there is a probabil- Camosum (1), he says:— ity of collision or when risk of "Precautions required by law, to collision can be avoided. The use be taken when there is risk of col- of the danger signal long before it lision, must be taken in time to was used by the Hamonic was I be 'effective against such risk. In think imperative." any event, in view of their re-During the turning movement of spedtive courses, which is not the Glenclova the Jeska gave her (1) [1925] Ex. C.R. 39. (2) [1924] Ex. C R. 109. (3) [1924] Ex. C.R. 102.
224 EXCHEQUER COURT OF CANADA [1925] 1925 a passing signal, one blast, which of the Glenclova that struck at ""'"' she answered by a similar blast. the oblique amgle described by the Glen cl ova Those on the Glenclova admit plaintiff's witnesses shows that a v. these signals to be passing signals very few moments would have Sownaus. and the pleadings so treat them. sufficed to avoid the blow. A ves- Under Rule 30 the Jeska was eel whose master has received a Maclean J. then •entitled to keep her Bourse signlail which justifies her continuing and speed. It is obvious, I think, her course and speed is entitled to that the master of the Glenclova hold on until she realizes that in giving that answer, assumed that there is danger. Those on the he could complete his turning Jeska were watching the Glenclova movement in time to pass port and expecting her to reverse at to port with the Jeska and that he any moment and her failure to do expected her to keep carrying on so forced the change in the Jeska's as she was. If he found himself course when too late. I cannot fiord unable to complete in time, or in the Jeska to blame. The President turning thrown out further than he of this Court in the Hamonic case intended, he had ample time and expresses a view which I adopt. opportunity to give a danger "I do net think that one ship signal. Had he done so the Jeska should be expected to know the had plenty of room to sheer off navigating disabilities of another and clear him. But the master ship and thereon base her own con-did not do this, and whether from duct and, even if she did, the inattention or , overconfidence, I ultimate welfare of each will best think he neglected an obvious and be 'conserved by the observance of prudent precaution in disregard the regulations and practices which of his duty as a navigator. If the experience and good seamanship master 'of the Glenclova was sure have established for the guidance he could complete his movement of each." in time and was in the 'act of A consideration of Rules 25, 26, swinging around to starboard, the 27, 30, 32, 34, 37 and 38 as ap-Jeske should not be blamed for not plied to this case indicate sufficient anticipating his failure to da so. to warrant me in holding that in It was the coming forward at the the circumstances of this case the same time that creaked the danger Glenclova must be held alone to and the fact that 'it was the stem' blame.
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.