CASES DETERMINED BY THE EXCHEQUER COURT OF CANADA AT FIRST INSTANCE AND IN THE EXERCISE OF ITS APPELLATE JURISDICTION ON APPEAL FROM THE TORONTO ADMIRALTY DISTRICT THE NIAGARA, ST. CATHARINES & • 1923 TORONTO RAILWAY COMPANY APPELLANT; D i e c 1 (DEFENDANT) AND THE LAKES & ST. LAWRENCE } TRANSIT COMPANY (PLAINTIFF) . RESPONDENT. Shipping—Canal navigation—Navigable waters—Swing or draw bridges over same—Rules of Board of Railway Commissioners—Validity—Collision—Negligence. The defendant owned and operated a swing bridge over the Welland Canal. Plaintiff's ship the L., on the night preceding the accident was forced to tie up on account of stormy weather. Next morning, the weather being still stormy with a high gusty wind blowing across the canal, the L. cast off, steamed up towards the bridge and attempted to pass through before it was fully opened. When the L. was partly through the opening, the swing of the bridge was stopped by a great gust of wind and the bridge was blown back striking the L. which had ventured into the gap, causing her considerable damage. Hence the present action. The bridge had been in operation for years, and its brakes had been inspected a few days before and found in perfect condition. Held: On the facts (reversing the judgment appealed from) that neither the machinery nor the handling of the bridge in any way caused or contributed to the accident, but that the L., in attempting to pass through before the bridge was fully opened, was per se, apart from any rules forbidding it, guilty of negligence and of reckless and unseaman-like manoeuvre, which was the sole originating and determining cause of the accident. 2. That under section 22 of the rules and regulations for the guidance and observance of those using and operating canals, the onus is thrown upon the master in charge of any vessel to ascertain for himself, by careful observation, whether the bridge is prepared to allow him to enter or pass; and furthermore that the regulations of the Board of Railway Commissioners of the 30th of April, 1914, passed under sections 30 and 232 of the Railway Act (R.S. 1906, c. 37), governing the opening of railway bridges and providing that a bridge is not so prepared until it is fully opened are valid and binding on vessels passing through the same. 70686—la
2 EXCHEQUER COURT OF CANADA [1924] 1923 3. That, the fact that it may have been customary to enter the bridge NIAGARA, before the swing was fully opened did not absolve the ship from ST. CATH-negligence; such a custom being dangerous and unreasonable could ARINES & not be the foundation of a claim against another person where an TORONTO Rr. Co. accident had occurred b Y the i njure d shi p putting the custom into V. practice. THE LAKES (Turgeon v. The King, 15 Ex. C.R. 331; 51 S.C.R. 588 referred to.) LA W RENCE APPEAL from the judgment of the Local Judge of the TRANSIT Co. Toronto Admiralty District (1) maintaining plaintiff's action. September 18th, 1923. Appeal now heard before Honourable Mr. Justice Audette, at Toronto. D. L. McCarthy, K.C., and E. J. Reid, K.C., for appellant. S. Casey Wood, K.C. and G. M. Jarvis for respondent. The facts are stated in the reasons for judgment. AUDErrE J., this 1st of December, 1923, delivered judgment (2). This is an appeal from the judgment of the Local Judge of the Toronto Admiralty District, pronounced on the 24th day of April, 1923, and condemning the defendant, the appellant herein (1). The facts of the case are exhaustively set out in the reasons for judgment of the learned trial judge, and I am thereby relieved from the necessity of repeating them here on appeal. The controversy between the parties—the question submitted for determination—practically resolves itself into the very narrow compass as to whether or not the ship Lakeport, at the season in question with a strong gusty wind and gale prevailing, was justified in entering or attempting to pass through the railway bridge over the canal in which she was navigating, before the bridge was fully opened. Under sec. 22 of the Rules and Regulations for the guidance and observance of those using and operating the canal (Exhibit No. 4), the onus is thrown upon the master in charge of any vessel on approaching any bridge to ascertain for himself, by careful observation, whether the bridge is prepared to allow him to enter or pass, etc. (1) [1923] Ex. C.R. 202. (2) Appeal has been taken to the Supreme Court from this judgment.
Ex. C.R. EXCHEQUER COURT OF CANADA 3 The directions embodied in these words are not mean-1923, ingless and placed there for naught. They obviously throw NIAGARA, ST, CATH- upon the master the duty of carefully ascertaining for ARINES & himself whether or not the bridge is prepared to let him R0NT0 Co pass, or whether, in other words, the bridge is fully open. v . These directions contained in sec. 22, and more espe- THEPA RT .E cially those which duly cast upon him the duty LAWRENCE TRANSIT CO. to ascertain for himself whether the bridge is prepared to let him pass, — would seem also to let in the regulations governing the Audette J. opening of railway bridges (Exhibit 3), as directed by the regulation hereinafter mentioned, because the bridge is not prepared to allow the vessel to enter until the railway official has opened his bridge in the manner defined in the regulations concerning such matter. Indeed, by order in council of the 29th June, 1910 (Exhibit No. 4), passed in accordance with sec. 32 of Chapter 115, R.S.C., 1906, as amended by sec. 6, ch. 28, of 8-9 Ed. VII, regulations to govern draw or swing bridges, other than railway bridges, over navigable waters were duly made, approved and published in the Canada Gazette, vol. 44, p. 79. (See also Dominion Statutes, 1911, p. cxii.) By section 4 thereof it is, among other things, provided that no vessel shall pass through the bridge until the swing or draw is fully open. By sec. 32 of the Act the Governor in Council is given power and authority to make the regulations of the 29th June, 1910, with respect to (e) the opening and closing of any swing or draw bridge over any navig- able water; and sec. 31 of the Act excludes railway bridges from that class of bridges. Then, on the 30th April, 1914 (Exhibit No. 3), the Board of Railway Commissioners for Canada, adopted these rules of the 29th June, 1910, and made them applicable to railway bridges, by providing that no such vessel shall pass, through the bridge until the swing or draw is fully open. These regulations (Exhibit No. 3) are made under the provisions of sections 30 and 232 of the Railway Act, Ch. 37, R.S.C., 1906. By sub-sec. 2 of sec. 232, the Board is given power and jurisdiction to direct when, under what conditions and circumstances, and subject to what precau-
4 EXCHEQUER COURT OF CANADA [1924] 1923 tions, etc., the bridge shall be operated,—and by the first NIAGARA, paragraph of the section it is given jurisdiction in connec- ST. CATH- ARINES & tion with railway bridges carried over TORONTO any navigable water or canal. RY. Co. V. It would seem also that the water of the canal made THE LAKES &sT. artificially navigable, must be treated as navigable water, LAWRENCE as mentioned in the Act. TRANSIT Co. Now the Lakeport, on the night preceding the accident AudetteJ. (the 19th April), had to tie up, because of stormy weather —as it was blowing a terrific hurricane with a western or northwestern wind of a velocity of 70 to 80 miles, and it was raining and snowing. The canal had only been opened on the 17th for the first time that season. The accident occurred on the morning of the 20th when the Lakeport cast off and started again in stormy weather, when, as witness Lapointe says, it was blowing a steady gale; it was still blowing a high and gusty wind across the canal,—a blustering heavy wind with flurries, as put by some of the witnesses. The Lakeport steamed up and attempted to pass through the bridge before it was fully opened, in fact it was never fully opened at the time of the accident, —it was only partly opened when, under a great gust of wind it quivered, came back west and struck the Lakeport which had ventured into the gap before the bridge had been fully opened. No signal was ever given that the bridge was fully opened,—and it was not necessary, as by sec. 22 above cited, thè onus was upon the vessel to ascertain for herself if the bridge was prepared to let her pass. The bridge had been in operation for years; its brakes had been fully inspected a few days before and found in perfect condition; and the bridge when open is safely checked on the eastern shore. Therefore, I am unable to accept the contention that either the machinery or the manoeuvring of the bridge in any way caused or contributed to, the accident. The sole cause of the accident, on the day in question, was the act of the Lakeport attempting to pass through the bridge before the same was fully opened, and before ascertaining by herself whether the bridge was prepared to allow her to pass,—the whole for the reasons adverted to herein. The accident would seem to have been the result of the modern tendency to take chances of danger in order to gain
Ex. C.R. EXCHEQUER COURT OF CANADA speed of locomotion,—so especially noticeable in the traffic of automobiles, and the Lakeport the result of imprudence by those in charge of her. It has been alleged that it was customary to venture through the bridge before it was fully opened, but a cus- tom which is dangerous and unreasonable cannot be made the foundation of a claim against another person where an accident has occurred by putting the custom into practice. The violation of the Rules and Regulations above referred Audette to and the transgressing of the plain notions of elementary prudence and safety cannot give a vessel any right of action merely because other vessels have shared with her in that violation (1) . It would seem further that the notice to bridge-tenders, under the signature of the Superintendent Engineer, with respect to the use of a red flag, and cited in the judgment appealed from, has no application in the present case, and deals exclusively with the case when the bridge is not to be opened or cannot be opened. Nothing in this notice de- tracts from the Rules and Regulations above mentioned which remain in full force and effect. The vessel cannot be relieved or exonerated from the obligation of observing the rules and regulations (Exhibits 3 and 4) formulated with respect to navigation where a bridge has to be passed through, any more than it can trans- gress the Rules of the Road when travelling in a canal. Moreover, within the ordinary practice of seamen, due regard must be had, in navigating, to any special circum- stances, with the object of avoiding danger, and be always guided by the rules dictated by safety and prudence, avoid- ing carefully all reckless ventures. The weather was abnormal at the time of the accident, in that it was blow- ing very hard, and that should have called for extra pre- caution and prudence. I have therefore come to the conclusion that it was the act of the Lakeport in venturing into the gap, so to speak, that is, in attempting to pass through the bridge before it was fully opened, and without ascertaining by herself if the bridge was prepared to let her pass, that was the origin- ating and determining cause of the accident. That, apart (1) Turgeon v. The King, 15 Ex. C.R. 331; 51 S.C.R. 588. 70080-2a 5 19 23 must therefore abide by NIAGARRA, ST . CiATH- ARINE9 & TORON RY. oCTO. v TH E & A8E8 sT. LAWRENCE TRANSrr C o. — J.
6 EXCHEQUER COURT OF CANADA [1924] lÜ from any rules and regulations, per se alone, the Lakeport NIAGARA, by thus recklessly mànoeuvring and attempting to pass ST. CATH- ARINES & through the bridge before being opened, in such stormy TORONTO R. Co. weather, became guiltyof negligence and cannot in any way take advantage of such negligence. That it was under THE LAKES & ST. the circumstances of the case against all elementary rules LAWRENCE TRANSIT CO. ofsafet and prudence to attempt to pass before the bridge Audette was opened, and much more so when it is considered that J. a high and gusty wind was prevailing in an inclement season. It must be found that by section 22 of the Regulations, the onus was upon the Lakeport to ascertain for herself, whether or not the bridge was prepared to let her pass, or whether in other words it was fully open, as provided by Exhibits 3 and 4, which are let in, as above mentioned. These bridges must be opened for navigation in the manner provided by the Rules and Regulations made under statutory provision; and, there is also, on the other hand, an implied duty and responsibility cast upon any ship to approach these bridges with precaution dictated by safety and prudence. The accident was the result of the reckless manoeuvring of the ship. She was the victim of her own negligence. The appeal is allowed with costs, and the action is dismissed with costs. Appeal allowed.
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.