32 EXCHEQUER COURT OF CANADA [1924] 1923 QUEBEC ADMIRALTY DISTRICT D 9 . 2 GEORGE HALL COAL & SHIPPING } l PLAINTIFF CORPORATION AGAINST THE SHIP LORD STRATHCONA Shipping—Collision—Overtaking vessel—Article 24 of the Rules of the Road—Force of suction—Evidence—Negligence. 1. Held: That applying the rule that ordinarily the testimony of one who testifies to an affirmative is to be preferred to that of one who testifies to a negative, where the evidence of those on board one vessel was to the effect that they saw the two vessels coming into contact, and felt the shock caused by the impact, while the evidence of those on board the other vessel was that no shock was felt and no impact seen, the court ought to hold that a collision did take place. 2. The collision took place on the St. Lawrence River below Champlain between the S.D., plaintiff's ship, and the L.S.; the channel there being 400 feet wide. The L.S. was of greater size and draft than the S.D. and in overtaking and passing the S.D. attempted to pass too close to her, and the latter was drawn towards the L.S. by the force of suction until they came into collision. Held: That having regard to the fact that the force of suction is a source of danger in close navigation, especially in shallow water, and as it was the duty of the L.S. as an overtaking vessel, under article 24 of the Rules of the Road, to keep out of the way and clear of the overtaken vessel until finally passed, she was, under the above facts guilty of negligence and responsible for the collision.
Ex. C.R. EXCHEQUER COURT OF CANADA 33 ACTION in rem for damages arising out of a collision be- 1923 tween the steamer Senator Derbyshire, a steamer belonging GE C o o . HALL n t & to the plaintiff, and the steamer Lord Strathcona, in the St. SHIPPING Lawrence river on the morningof July4, 1923. CORPORATION v. November 29, 1923. SS. Lord Strathcona Case now heard before Honourable Mr. Justice Maclen- nan at Montreal. A. R. Holden, K.C. and R. C. Holden for plaintiff. W. C. Nicholson for defendant. The facts are stated in the reasons for judgment. MACLENNAN L.J.A. this 29th December, 1923, delivered judgment. [His Lordship here states the pretensions and allegations of the respective parties, and proceeds.] The Senator Derbyshire was a wooden steamer 220 feet long, 40 feet 6 inches wide and drawing 13 feet 4 inches forward and 14 feet 6 inches aft. She was loaded with pulpwood. The Lord Strathcona was a steel ship 475 feet long, 58 feet wide, loaded with coal, drawing 26 feet forward and 26 feet 6 inches aft. Both were coming up the river. The Senator Derbyshire was ahead going at full speed 7 to 8 miles an hour. The Lord Strathcona, which was following, gave a two blast signal which was answered by a similar signal. The Lord Strathcona then began to pass on the other's port side. The channel was 400 feet wide and the Senator Derbyshire was to the north side of the channel. She held her course and speed until she changed to starboard after the quarter of the Lord Strath-cona came into collision with her port side forward of amidships. The first officer of the Senator Derbyshire, who was on duty, testified to the collision and a shock resulting therefrom which he says occurred at 2.05 a.m., on the morning of 4th July, 1923. The pilot of the Senator Derbyshire at the trial swore that the quarter of the Lord Strathcona hit his ship and caused a shock. He had previously made a written report that the vessels came very close together but did not come into contact and that no damage was caused to either. At the trial, however, he was positive in his testimony that there had been a collision. The wheels-man, on duty on the Senator Derbyshire, testified that he 71810 —2a
34 EXCHEQUER COURT OF CANADA [1924] 1923 felt the shock of the collision although he did not see the GEO. HALL ships come together. The engineer, on duty in the engine COAL & s$IrrlNa room, testified that he felt the shock, and the master, the CORPO „ R ATION • second mate and another wheelsman, not on duty, who Ss. Lord were in bed at the time, all testified that they were wakened Strathcona by the shock of the collision. The master says he im-Maclennan L.J.A. mediately came on the bridge to inquire what had happened. The Senator Derbyshire was on a voyage from the Little Saguenay to Ogdensburg and from there she proceeded to Thorold, Ont. The first stop after the collision was at Montreal, at the entrance to the Lachine Canal, when the master notified plaintiff's manager by telephone that there had been a collision, and having been requested to make a written report he wrote a letter on 6th July, 1923, reporting that the covering board on the port side of the vessel had been damaged for at least 15 feet, also the two planks just below the covering board, and that the head of one of the rods running across the deck was broken off and the plate holding the rod on the side was gone and giving other details of the collision as he ascertained them from the pilot, mate and wheelsman on duty at the time of the collision. The defence is that there was no collision, that the ships were not in contact and that no shock was felt on the Lord Strathcona. The latter's pilot does not appear to have paid any attention to the Senator Derbyshire after the ships were abreast and he says he felt no shock. The second officer of the Lord Strathcona was on duty on the bridge and he testified that he felt no shock or bump and that the vessels were not in contact. While the Lord Strathcona was passing, this officer, stayed at the telegraph to give signals as required and it may be that he was not in a position to observe the starboard quarter of the Lord Strathcona come into contact with the port side of the other vessel. The master was in the chartroom but came out before the vessels had cleared. The chief engineer was in his berth and came out on deck when the Lord Strathcona was almost past. He says he felt no shock. I am advised by my assessors that there was ample room to the south side of midchannel for the Lord Strathcona to have passed the Senator Derbyshire in safety and that
Ex. C.R. EXCHEQUER COURT OF CANADA apparently the Lord Strathcona on the range lights in the midchannel and came so close to the Senator Derbyshire that the ships were drawn together by the force of suction, the Lord Strathcona twice the length and drawing 26 feet draft against the Senator Derbyshire's 14 feet 3 inches. I am also advised that the mate and pilot on the Strathcona were not in a good position to observe whether or not the starboard quarter of their ship came into contact with the port side of the Senator Derbyshire amidships. The bridge of the Lord Strathcona 200 feet from the poop where the impact took place. The evidence of the witnesses on board the Derbyshire is to the effect that each of them saw the two vessels come into contact or felt a shock caused by the impact, while the evidence of the witnesses on board the Strathcona is to the effect that no shock was felt and no impact seen. The evidence shows, and my assessors have called my attention to the fact, that the mate and pilot on the Lord Strathcona were not in a good position to observe whether or not the starboard quarter of their ship came into contact with the port side of the other vessel forward of amidships. It is a rule of presumption that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative, and on this principle the evidence of the witnesses for the entitled to greater weight than the evidence of the witnesses called on behalf of the other vessel. I therefore hold that a collision took place, fortunately it was not very serious, but the vessels did come into contact. The deep water channel where the collision occurred is 400 feet wide. The Senator Derbyshire of midchannel which left over 200 feet in which the Strathcona could pass. The latter was the overtaking vessel and under Article 24 of the Rules of the Road, it was her duty to keep out of the way and keep clear of the overtaken vessel until she was finally past and clear. She failed to do so, evidently attempting to pass too close and, as she was necessarily going at a speed greater than the Derbyshire and being of greater size and draft, the overtaken vessel was drawn towards her until they came into 35 was directing her course 19223 GEo.. H,wL Co n r. & sanPrrra being a ship CORP v. ss• ior d otrat hc ona — Mac an Lord .J Â forward of was over Senator Lord Senator Derbyshire is was to the north Lord Senator
36 EXCHEQUER COURT OF CANADA [1924] 1923 contact. Suction is a force that has been recognized as a GEo. HALL cam. danger in close navigation, especially in shallow waters, AM SHIPPING and always results from a too close approach. For these CORPORATION v. reasons, in my opinion, the Lord Strathcona is responsible SS. Lord for the collision, as she attempted to pass too close and Strathcona failed to keep clear in violation of Article 24. Maclennan L.J.A. There will therefore be judgment against the Lord Strathcona and her bail for damages and costs, with a reference to the Deputy District Registrar with merchants to assess the damages. Judgment accordingly. Messrs. Meredith, Holden, Hague, Shaughnessy & Heward, solicitors for plaintiff. Messrs. Cook & Magee, solicitors for defendant.
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