Ex. C R. EXCHEQUER COURT OF CANADA  989 BRITISH COLUMBIA ADMIRALTY DISTRICT Victoria 1965 BETWEEN : Nov. 1 Nov. 3 ELLIE CHERNYSH ...... . PLAINTIFF; AND STRAITS TOWING LTD. DEFENDANT. Shipping—Fishing motor vessel swamped, caused by wrong manoeuvre— Plaintiff's gross negligence—No basis in law for claim for damages against defendant—Action dismissed. Plaintiff, an independent gill net fisherman, owner of the AI .V. Copperhead claimed damages from defendant arising out of the sinking of his vessel alleged to have been caused by the defendant's tug Johnstone Straits and her tow barge Water Skidder, about 10.30 a m , on the 17th of August, 1964, in the Fraser River waters of British Columbia. It was the plaintiff's intention to run his vessel off the bar of the Port of Steveston to engage for a short time in gill net fishing. He proceeded with his vessel up river on the south side of the channel and saw not far away the defendant's tug towing on a tow line, about 250 feet in length, a laden log barge, and trailing astern of the barge was a polypropylene recovery line of 150 feet in length marked on the after end by a reddish colored plastic buoy of 14 inches in diameter. Notwithstandmg the position of the defendant's vessel, the plaintiff then caused his vessel to manoeuvre and subsequently to cross under the stern of the said log barge. And, in the process of domg so, the propeller of the plaintiff's vessel fouled the said polypropylene recovery hne trailing astern the log barge, with the result that the Copperhead was swung around, towed upstream stern first for a short time and swamped. At the time this incident occurred the weather conditions were excellent. The findings in the evidence were that at the material time, the plaintiff saw the said red buoy first and then the emergency line and then
990 R.C. de l'É. COUR DE L'ÉCHIQUIER DU CANADA  1965 when his vessel got close, an attempt was made by the plaintiff to lift the said emergency line and cause his vessel to pass over it in safety, CHERNYSH . but the said emergency line became entangled in his vessel's propeller. V STRAITS The plaintiff made the attempt to lift the emergency line before and TOWING not after it became entangled in his vessel's propeller. LTD. Held: There was no basis in law for the plaintiff's claim in this action for damages against the defendant. The plaintiff was the author of his own misfortune. 2. It was therefore unnecessary to decide whether the maintenance of the trailing of this emergency line from the barge in these navigable waters, with similar conditions of traffic constituted an actionable nuisance, private or public, in favour of the plaintiff, or actionable negligence. 3. That this action is dismissed. ACTION FOR DAMAGES arising out of the sinking of the plaintiff's vessel. Timothy P. Cameron for plaintiff. W. Forbes for defendant. GIBSON J.:—In this action the plaintiff, an independent gill net fisherman, as owner of the M.V. Copperhead, claims damages from the defendant arising out of the sinking of his said vessel alleged to have been caused by the defendant's tug Johnstone Straits and her tow barge Water Skidder about 10.30 a.m. on the 17th day of August, 1964, in the Fraser River waters of British Columbia. The plaintiff's M.V. Copperhead is a gill net vessel about 22 feet in length, 7 feet in beam, single screw, with a small wheelhouse about midships. It had left the port of Steveston about 8.00 a.m. on the 17th August, 1964, with only the plaintiff aboard and proceeded to the area in the Fraser River known as the Albion (marked blue on Exhibit 1, being a chart of the Fraser River area, filed) where the plaintiff engaged for a short time in gill net fishing. About 9.30 a.m., while he was picking up his second set, he was joined by another gill net fisherman, William Leonard Coulson, who had been netting in his own vessel prior thereto. At that time, the plaintiff said it was his intention to run his said vessel off the bar at Steveston to make a third set at about a point marked "D" on said Exhibit 1. To do so he proceeded with the Copperhead up river on the south side of the channel. On his port side then, and also bound upriver, was the defendant's tug Johnstone Straits
Ex. C.R. EXCHEQUER COURT OF CANADA  991 towing on a tow line, about 250 feet in length, a laden log 1 9 65 barge Water Skidder and trailing astern of the barge Water CHERNYSE Skidder was a polypropylene recovery line approximately ST~ ITS 150 feet in length and about 14 inches in diameter, marked TOWING on the after end by a reddish colored plastic buoy approxi- mately 14 inches in diameter. The plaintiff then caused the Gibson ~. Copperhead to manoeuvre and subsequently to cross under the stern of the said log barge Water Skidder and in the process of doing so the propeller of the plaintiff's said vessel fouled the said polypropylene recovery line trailing astern the said log barge Water Skidder, with the result that the Copperhead was swung around, towed upstream stern first for a short time and swamped, causing damage to the plaintiff. The defendant's Johnstone Straits is a 1400 h.p. diesel tug of 126 feet in length and 27 feet in beam, and its tow barge Water Skidder is approximately 280 feet in length and 60 feet in beam; and the latter was carrying at the material time about one million board feet of cedar logs. The polypropylene recovery line trailing astern the Water Skidder was about 150 feet in length, and, as stated, at its after end was a reddish plastic buoy about 14 inches in diameter. At the time this incident occurred the weatherconditions were excellent. There was no rain or fog and the water in the river was calm. In the evidence two diametrically opposed versions were given by the plaintiff's and the defendant's witnesses as to how the propeller of the vessel Copperhead fouled the said polypropylene recovery line which at the material time was trailing astern the said log barge Water Skidder. The plaintiff gave evidence himself, and also called as a witness the said William Leonard Coulson. William Leonard Coulson who, as stated, had come aboard the Copperhead at about 9.30 a.m. said that the plaintiff at the material time swung the Copperhead to port to go around astern the log barge towed by the tug in order to make a set in the north part of the river. He said that he was in the wheelhouse when the plaintiff, steering from the stern, manoeuvred the Copperhead to port by swinging the said vessel around, going down river first and then around the said tow barge at the stern; and that he started to run
992 R C de 1'É. COUR DE L'ÉCHIQUIER DU CANADA  1965 up behind the tow barge when the motor in the Copper-CHERNYSH head quit. At that moment he looked down and saw the V. STRAITS said recovery line trailing from the log barge, and he called TOWING to the plaintiff who threw him a knife and he tried to cut LTD. the recovery line, but it had already fouled the propeller. Gibson J. The Copperhead he said was then about 125 feet astern the barge Water Skidder. He said the propeller became entangled in the said recovery line before he saw the recovery line or the red buoy which was attached to the end of it. He said when he attempted to cut the recovery line the Copperhead swung around and was pulled upstream astern and then it swamped. Just prior to it swamping he jumped into the river while the plaintiff put on a life ring and stayed with the Copperhead until it did swamp. In cross-'examination he admitted that there was nothing which would have prevented him at the material time from seeing the recovery line and the buoy attached to it. He denied that he made any attempt to pick up by way of pike pole, or any other type of pole, this red buoy attached to the recovery line prior to the time the propeller of the Copperhead became fouled in it. The plaintiff stated that at the material time he was steering the Copperhead from the stern of the vessel and that Coulson was in the wheelhouse, and when he first saw the recovery line from the barge it had already fouled the propeller of his vessel. He said that prior thereto he had caused the Copperhead, which had been running upriver starboard of the tow barge, to reverse itself and to go down river and then cross astern about 175 feet from the barge and then run up river when its engine quit and thereafter its propeller fouled the said emergency line. He stated he threw the knife to Coulson for the purpose of permitting him to attempt to cut the recovery line and that he started up his motor again and attempted, by opening the throttle, to disentangle his propeller from the said recovery line, but was unsuccessful. At that time he said his vessel was being pulled astern and shortly thereafter it swamped. He marked on the chart, Exhibit 1, with the letter "E" the place where his vessel's propeller was fouled, being near R.24, one of the markers marking the starboard side of the channel up river. On discovery the plaintiff marked a chart of the said waters in red, showing the course which the Copperhead
Ex C R. EXCHEQUER COURT OF CANADA [ 19661 993 made going up river and turning to port and reversing to go 1965 back and astern the barge Water Skidder, and this course so CHERNYSH marked and his answers on discovery describing same dif- S TRArrs fered materially from the answers given at the trial con- TOWING ,cerning this same matter. The chart marked on discovery was filed as Exhibit 2 at this trial. Gibson J. The plaintiff also said that he told the R.C.M.P. investigating constable, Douglas Gerald Doige, that he first saw the recovery line from the barge only after it had fouled the propeller of his vessel. The plaintiff also said there were a lot of gill netters in the channel at the material time who had put out floats from their gill nets, which floats were similar to the float on the end of the said emergency line, and that he had no difficulty seeing these gill net floats. The defendant, among other witnesses, called Captain William James Gilmour, the Master in charge of Federal Public Works Department Dredge No. 322, who has held a Master's Unlimited Home Trade Certificate No. 1616 since 1946, Captain Herman George Knudson, Assistant Dredge Master on said Federal Public Works Dredge No. 322, who had been employed for 44 years in these waters, and Con-'stable Douglas Gerald Doige of the R.C.M.P. These three defence witnesses are clearly independent witnesses in the true legal sense and their evidence as to what happened I accept as true. Captain Gilmour and Captain Knudson both said that from the said Dredge No. 322, which was stationed opposite No. 23 port buoy going up river, as shown on the chart, Exhibit 1, they clearly observed the ship Copperhead when about half a mile away until it completed its manoeuvre and its propeller became fouled in the said emergency line trailed from the log barge Water Skidder. They both stated that the Copperhead manoeuvred across stream on two occasions, when some distance down river from the Water Skidder and from the red buoy attached to the said emergency line. Then Captain Gilmour said the Copperhead made three "passes" across stream close to the said red buoy on the last of which occasions its propeller became fouled by the emergency line. Captain Knudson corroborated these three "passes" made by the Copperhead but differs in one respect in that he states the Copperhead made the three passes by running up stream to the red buoy attached to the said emergency
994 R.C. de 1'É. COUR DE L'ÉCHIQUIER DU CANADA ' 1965 line, and falling back on the first two occasions, but becom- CHERNYSH ing fouled on the third occasion. In this connection this. v. STRAITS would seem to tie in with the plaintiff's story that his TowiNa engine stopped just before or at about the same time as the propeller of his vessel became fouled. Both Captain Gil- Gibson J. mour and Captain Knudson said that they saw a person on top of the wheelhouse of the Copperhead with a pike pole. or some other type of pole attempting on these three occasions when "passes" were made to snare the buoy. This-person obviously was William Leonard Coulson. Both these-witnesses then explained how, after the Copperhead got into difficulty, they signalled the wheelhouse of the tug Johnstone Straits informing them of the swamping of the Copperhead and its plight, and the action they took within a few minutes in going to rescue the Copperhead and disengaging it from the said emergency line and towing it to the dock at Steveston. Constable Douglas Gerald Doige of the R.C.M.P. stated he interviewed the plaintiff on the 19th August, 1965, at the dock at Steveston where the plaintiff was doing certain remedial work to his vessel. He interviewed the plaintiff in connection with an investigation made of a complaint that there was, at the material time this incident occurred, an attempted theft of this red buoy attached to this said emergency line. Constable Doige said that the plaintiff told him that at the material time the plaintiff saw the said red buoy first and then the emergency line and then when his vessel got close an attempt was made to lift the said emergency line and cause his vessel Copperhead to pass over it in safety, but the said emergency line became entangled in his propeller. On cross-examination Constable Doige was invited to and confirmed unequivocally that the plaintiff told him that the attempt made to lift the emergency line was made before and not after it became entangled in his vessel's propeller; and he was then asked and he told that he recorded this conversation in his notebook within ten or fifteen minutes of the time the plaintiff related it to him. On this evidence adduced by the defendant, which as stated I accept as true, it is patent that there is no basis in law for the plaintiff's claim in this action for damages against the defendant. He was the author of his own misfortune.
Ex. C.R. EXCHEQUER COURT OF CANADA It is unnecessary, therefore, to consider whether, in other , circumstances, the maintenance of the trailing of this emer- gency line from the barge Water Skidder in these navigable STR waters, with similar conditions of traffic, when the trailing ,of such emergency line was unnecessary, resulted in con-stituting an actionable nuisance, private or public, in fa- vour of the plaintiff; or whether it was in law negligent of the defendant, among other things, not to have caused this emergency line to have been pulled in, in these navigable waters on which there was heavy traffic, when, on the evidence, it served no useful purpose in these waters, or whether it was negligent of the defendant not to have more adequately warned third parties of the presence of this emergency line if the same were not pulled in. The action is dismissed with costs.  995 1965 CaERNNrsa A I TS TowING ' Gibson J.
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.