132 EXCHEQUER COURT OF CANADA [1931 1931 Mar.30. ON APPEAL FROM THE QUEBEC ADMIRALTY DISTRICT Apr. 20. THE STEAMSHIP " ELFSTONE " APPELLANT; (DEFENDANT) VS. CHICAGO TRIBUNE TRANSPORTA- }RESPONDENT. TION CO., LTD. (PLAINTIFF AND CRETE SHIPPING COMPANY, LIM- 1 } APPELLANT ; ITED ( PLAINTIFF) VS. THE STEAMSHIP " CHICAGO l RESPONDENT. TRIBUNE " (DEFENDANT) 1 Shipping—Collision—Right of way—Narrow channels—Rules 25 and 37 of the Rules of the Road for the Great Lakes Held (affirming the judgment appealed from) that when a danger of collision occurs, a vessel is not justified in arbitrarily and obstinately insisting on her right of way conferred under Rule 25. If in obstinately following out the letter of the Rules regulating the course, a collision thereby occurs, she becomes at fault under Rule 37. 2. That where the E., coming down stream in a narrow channel of Lake St. Louis, and upon giving the two-blast signal, indicating she elected to meet green to green, received in answer a one-blast signal, amounting to cross signals, the E., instead of persisting in her course and sounding a second two-blast signal, should under the rule have given a danger signal.
Ex. C.R.] EXCHEQUER COURT OF CANADA 133 APPEAL from the Judgment of the Local Judge in Ad- 1931 miralty for the Quebec Admiralty District. THE . The appeal was heard before the Honourable Mr. Justice Elfstone Audette at Ottawa, assisted by Commodore W. Hose, CHic • éGo R.C.N. as Nautical Assessor. TRIBUNE T iANs- R. C. Holden for appellants. PORTATION Co., LTD. Errol M. McDougall, K.C., for respondents. CAHE SHIPPING The facts and questions of law raised are stated in the Co., LTD. Reasons for Judgment of the Honourable Mr. Justice THÉ s s. Audette as well as in the Reasons of Demers J. in the trial Chicago court, printed at the end of this report. Tribune. AIIDETTE J., now (April 20, 1931), delivered the following judgment. This is an Appeal from the judgment of the Local Judge of the Quebec Admiralty District, in the above mentioned two consolidated actions, pronounced, on the 20th October, 1930, in favour of the respondent Chicago Tribune Transportation Company Limited, and condemning the ship Elfstone and her bail and dismissing the action of the appellant Crete Shipping Company Limited against the ship Chicago Tribune. On an appeal of this kind when there is evidence sufficient to support the finding of the trial judge, and no error can be assigned to his view, an appeal to vary his finding should not be entertained. There is in this case ample evidence to support the trial judge's finding. As is usual in Admiralty cases which arise out of collision, the evidence of the respective parties is very conflicting. In such a case the Court must be guided by the balance of probabilities arrived at by a careful analysis of the credible evidence as a whole. All that evidence read together confirms itself. Purdy case (1) . After reviewing the evidence I must come to the conclusion that the respondent's vessel was properly manned and manoeuvred; while the same cannot be said of the Elfstone wherein the manoeuvre and management were left entirely in the hands of one man alone who did not see fit to call the Master under then dangerous circumstances. Too much was left for him to do and he seemed to have (1) (1919) 19 Ex. C.R. 212, at p. 228.
134 EXCHEQUER COURT OF CANADA [ 1931 1931 ween especially impressed with the sole idea of taking, as THE SS. he said, his advantage of having the right of way as a Elfstone downbound vessel. CHICAGO He directed his vessel too much to the north, out of the TRIBUNE TRANS- channel, scraped the bottom as testified bywitness Carter. PORTATION Then in his endeavour to rectify his course he swung CoAND • around and went to the south side of the fair-way, the col- CRETE lision taking place on the south of the channel near buoy SHIPPING Co., LTD. No. 39. Knowing, as testified, that the Elfstone was liable TH v E SS. to sheer or yaw, I can only ascribe the accident to the corn- Chicago bined reason of bad manoeuvring and the tendency of the Tribune. vessel to sheer or yaw. Audette J. Moreover, when a danger of collision occurs, a vessel is not justified in obstinately following out to the letter the rules regulating the course; and in the event of a collision occurring thereby, the vessel becomes at fault under Rule 37. In the present case, changing his course as he did, while endeavouring to swing into the channel, there was no justification in insisting to the last upon the other ship to be guided by his reckless course. Richelieu and Ontario Navigation Co. v. The SS. Cape Breton (1). This was a narrow channel, where one would expect prima facie the vessels would pass red to red, without, however, finding any fault for passing green to green and departing from the General Rule. But the signals as given amounted to cross signals and the Elfstone, instead of persisting in her course and sounding a second two blasts should have, under the Rule, given a danger signal—when indeed, at that time, the vessels were distant enough from one another to have avoided the accident. I find with the trial judge that the collision took place near buoy No. 39. The Chicago Tribune steered perfectly while the Elfstone was liable to some sheering. Now when the Elfstone came out of the bend she went north very far—it was even contended she went out of the channel and touched or scraped over the bottom (p. 143). Leaving the bend she pursued a curve from the bend towards the north and then came back towards the south and it is this course of operation that brought on the collision. She did not keep to her side of the channel. From the bend she first showed her green light and in describ- (1) (1904) 9 Ex. CR. 67; 1907 A.C. 112.
Ex. C.R.] EXCHEQUER COURT OF CANADA ing that curve, before colliding, she showed her red light and in the endeavour of straightening herself in the chan- nel in thus swinging around, she again hid her red and showed her green light when the collision occurred. Did she fail to obey the rudder and sheered? She obviously RNs occasioned the accident and she is the one to blame under circumstances of the case. I have had the advantage in this case of being assisted by Commodore Hose, R.C.N., as Nautical Assessor, and am pleased to say that he entirely shares my view in arriv- ing at my conclusion. There will be judgment dismissing the appeal with costs. Reasons for judgment of Demers These cases have been united for (c) the Chicago Tribune proof, hearing and judgment, and cross signal. . by consent have been submitted (d) the Chicago Tribune upon the evidence taken before the at too high a rate of speed. Wreck Commissioner. (e) This collision occurred on the 29th have a of July, 1928, at four o'clock a.m., Eastern Standard Time, between (f) Buoy No. 39 and 38, Lake St. Louis, have competent or sufficient officers off Lachine Ranges. It appears and watch on duty. there is a cross current of about (g) three miles an hour at that place. Rules 22, 23, 25, 37 and 38 of the The Elfstone was coming down Rules of the Road for the Lakes and the Chicago Tribune was go- and the St. Lawrence above Vic- ing up. Both ships were going full toria Bridge. speed ahead up to the time that (h) if the they saw that the collision was exercised ordinary and reasonable about to occur. care and prudence, no collision It is admitted that the Elfstone would have occurred. had the right of way; that she had The Chicago Tribune, on the con- the right to elect on which side she trary, contends that the first signal would pass the other ship. • given by the Elfstone was one blast; The contention of the Elfstone is that later the Chicago Tribune gave that she gave a two-blast signal; a signal of two blasts which was that the Chicago Tribune answered answered by a two-blast signal and with one blast; that the Elfstone hard-a-starboard on wheel, and the gave a second two-blast signal, faults reproached to the and received the same answer from are that— the Chicago Tribune; that the Elf- (a) the Elfstone, as the descend- stone kept as far as she could to her ing vessel navigated at an immoder-port side; that the Chicago ate speed having regard to the wind Tribune caused the collision be- and current. cause:— (b) the (a) she did not observe the Elf- her own side of the channel. stone's right of way. (c) the (b) the Chicago Tribune did not signal after previously having given obey the Elfstone's two-blast signal. a one-blast signal. 135 1931 THE ss. Elfstone C cAao E PORTATION LTD. Co., AND CRETE SHIPPING I Co., LTD. THv ss Chicago Tribune. Audette J. Judgment accordingly. — J. gave a kept on Chicago Tribune t s h u e f ficient Iookout. did not the Chicago Tribune did not the Chicago Tribune broke Chicago Tribune had Elfstone Elfstone failed to keep to Elfstone gave a two-blast
136 EXCHEQUER COURT OF CANADA (1931 1931 (d) the second signal of the Elf- gave, that the first signal of the Elf- stone was improper and the man- stone was two blasts, answered by THE SS. oeuvre thus indicated could not one blast, and the second two blasts Elfstone then be carried out. answerèd by two blasts. CHI v C ' A NO (e) the Elfstone failed to keep a I am also of opinion that the NS_ proper lookout, which, according to Chicago Tribune heard one blast as TRAANS-the location of vessel's bridgein, the first si ~ g nal and she was not to PORTATION the after part of the ship was a de- blame when she answered one blast. Co., LTD. fault more serious even than usual. I agree with the Assessor that AND (f) the Elfstone is so constructed there was no fault in the fact that CRETE as to be difficult to handle in nar- only one window in front was open SHIPPING row waters. in the Chicago Tribune wheel- Co., LTD. (g) the Elfstone was navigated in house, as with too many windows V. THE S S. an improper and unseamanlike man- open there is too much noise from Chicago ner. the wind and a ship's whistle can- Tribune. (h) the Elfstone improperly di- not be heard properly, especially rected her course to port immedi- with a cross wind. Deniers ately preceding the collision. The Master of the Chicago L.J.A. (i) the Elfstone failed to blow a Tribune was in the best possible danger signal in the particular cir- position in the wheel-house to hear cumstances in which the vessels the whistle of other steamers. The found themselves. Master heard one signal in spite of (j) the Elfstone negligently failed the side windows being closed, and to observe rules 21, 22, 23, 25, 31 it is to be presumed that, on ac- and 38 of the Rules of the Road. count of the innumerable duties of The parties do not agree as to the the pilot who was obliged to look place where the collision occurred. to the lights, keep his wheel, at-It appears to me, and to the As- tend to the telegraph and to the sessor, that it must be put half way signals, it is only natural, under the between Buoys 39 and 38. circumstances, that the interval be- After the collision, the Elfstone tween the two should have been must have continued towards 38 pretty short, and this is the best ex-and the Chicago Tribune towards planation, and lastly, at the dis-39, and it explains the different tance where they were, that cross versions. signal would cause no damage if the There is a contradiction in the Elfstone pilot had followed Rule 22, evidence of Pilot Chartier as to the he had, at that time, and that displace where he was when he gave tance, plenty of time to give that the first signal. He contends at first signal, and he had also, in my opin-that he was opposite the Dixie ion, time to give his two-blast Lower Range Light, but at the end signal. of his evidence, being cross-exam- It is not the violation of the Rule ined, page 50, he admits that he had at that moment which was of con-passed the turn of Dixie Range by sequence, but he blew Ms second a quarter of a mile, and he was two-blast signal when the ships about half a mile from Buoy 38. were at a distance of between four That would agree with the Log and six lengths of each other, to wit, Book, though that. Log Book has at about a minute of distance, as he been written later on, and there is said he insisted on his right of way. not much faith to be accorded to it, As I have said, the answer was especially as to the time; but by two blasts. He says that he heard the Log Book he had passed the only one. Dixie White Gas Buoy since four Admitting that he heard one blast,. minutes when he gave the two-blast then be disobeyed the rule as to signal, but this is not very import- cross signal for a second time. ant since everybody admits that It is evident that he changed his when the first signal was given, both mind and decided to pass port to ships were at a fair distance, to port, without giving any notice, this wit, at least about half a mile. appears by the Log Book, other- I am of opinion that both ships wise he would have given the danger gave the signals they contend they signal. The Chicago Tribune,
Ex. C.R.] EXCHEQUER COURT OF CANADA changing also her course to pass star- thing to do to go full speed, as the board to starboard as signalled, it is current at that particular spot has a not surprising that a collision tendency to push her side-ways, a occurred. By whose fault? Evi- fact which would have rendered the dently, by the fault of the Elfstone. collision more serious; and the more One might say that it is surpris- speed she has, the easier it is for her T ing that the Chicago Tribune saw to the Elfstone so suddenly in front of I feel disposed to adopt that view. her, but one must not forget that in those narrow waters the vessels are stone is clear, repeated and volun-navigating in a very small space tary, which is equivalent to and that the course of a ship is grossière, and in my opinion the col- S altered pretty fast. lision should be attributed to her It may also be objected that exclusively. when the second signal of two blasts was given, the Master of the Chi- clear that the cago Tribune hesitated for a mo- Rule 22; that if she had obeyed ment, but it was very natural when, that rule there would have been no Demers after receiving what he considered accident; the one blast, he received two; but he created the danger, it was incum- was not in doubt as to the intention bent upon her to show that the at that time of the Elfstone; he other ship was also in fault; this could not foresee that the Elfstone she has failed to do, in my opin- would change her mind and with- ion. out notice. At the time of the second blast, the Elfstone was go- the Chicago Tribune Transporta-ing to port and what the Chicago tion Company Limited against the Tribune had to do was to obey and Elfstone this is what she did. with costs, and the action of the The only doubt I had was as to Crete Shipping Company against the speed of the Chicago Tribune. the Chicago Tribune In the opinion of my Assessor, the MISSED with costs against the descending ship at that place Crete Shipping Company, and the should never go full speed; for the case shall be referred to the Regis-ascending ship it was the proper trar for assessment of damages. 137 1931 THE SS. Elfstone v' CHICAGO RIBUNE keep straight in the channel, and TRANs-PORTATION In resumé, the fault of the Elf- Co., LTD. AND faute CRETE airriNo CO., LTD. V. THE SS. Under the circumstances, it being Chicago Elfstone violated Tribune. — Elfstone having LJA. — For these reasons, the action of shall be MAINTAINED, shall be DIS-
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.