C AS S DETERMINED BY THE EXCHEQUER COURT OF CANADA. NEW BRUNSWICK ADMIRALTY DISTRICT. BETWEEN BENJAMIN HATFIELD .,PLAINTIFF; 1906 AND Oct, 29 THE SHIP " WANDRIAN " DEFENDANT: Maritime law—Shipping—Collision—hy and Tozv—Ship at avehor—Ne- , yligen.ce—"Inevitable accident "-Burden of proof. Held, that where a collision occurs between a ship in motion and one at anchor, the burden of proof is upon the moving ship to show that the cause of such collision, so far as she was concerned, was an inevitable accident not arising frorn.negligent navigation. This burden is not discharged by mere proof that. the moving ship was navigated with ordinary care and skill. The Schwan v. The Albano, ([1892] P. 1)., at p. 428) referred to. 2. The Schooner Helen M. was lawfully lying at anchor in the stream of • the Parrsboro River. The ship Wandrian, in tow of a. tug; left •her wharf with the purpose of proceeding to sea, those on board the tow as well as those on the tug knowing the position of the Helen llf before they left the wharf. The tug and tow started to go through the eastern, or port, channel of the river and proceeded along the same to a certain point when they turned into the western, or starboard, channel. Thinking, however, that they could. not keep that channel and safely pass the Helen M. and another schooner that was partly beached for repairs on the western side of: the 'river a little below the point where the Helen M, was anchored, the helm of the 1
2 EXCHEQUER COURT REPORTS. [VOL. XI. 1906 tug as well as that of the Wandrian was put to starboard, mid an attempt was made to cross in front of the Helen M. so as to go down HATFIELD on the eastern side of the river, between the Helen M. and ti e east- THE Slur ern bank. In doing so the Wanrlrian struck the Helen M. and caused WANDRIAN. her serious injury.. No signal was given by the tug of her intention Statement to cross in front of the Helen M. of Facts. Held, that the ifrandtian was responsible for the collision ; and that no negligence was attributable to the Helena M., under the circumtitances, in failing to slacken her anchor chain, or to take any other precaution to avert the collision. ACTION for damages for collision that took place be- ween two ships in the river at Parrsboro, N.S. The facts of the case are stated in the reasons for judgment. December 8th, 9th, 11th, 29th, and 30th, 1901., February 27th and March the 1st and 2nd, 1906. The case was tried and argued before Mr. Justice Mc-Leod, Local Judge of the New Brunswick Admiralty District. C. J. Coster, K.C., and F. J. G. Knowlton for the plaintiff; Il. H. McLean, K.C., F. R. Taylor and C. F. Inches for defendant. McLEon, L. J. now (October 29th, 1906) del'.vered judgment. This is an action in rem brought by the owners of the Schooner Helen M., registered at Parrsboro, Nova Scotia, of about sixty-six tons burthen, against the Ship Wan-drian, for damages done by a collision in the Parrsboro River, Parrsboro, N.S., on the 28th day of November, A.D., 1904, at about three o'clock in the afternoon and at about half an hour before high water. As to the facts of the collision and the time of the collision, the state of the weather and the condit.ons of the tide, there is not much, if any, difference between the parties. The principal difference is as to whcre the
VOL. XL] EXCHEQUER COURT REPORTS. 3 Helen M. was anchored, that is, whether she was anchor- 1906 ed in a proper or an improper place,. and as to whether HATFIELD those on bard her took the proper precautions to avoid the collision, and whether the Wandrian took the proper wArDRIAr. course in going down the river, or practically, whether LLmen the collision was an inevitable accident. The Wandrian was in tow of the tug Flushing, and it is further claimed that if there is any liability it is the tug's liability and not that of the tow. That is, that there was no fault at all events with the Wandrian or those on board of her, and therefore she cannot be held liable. It is perhaps better for me to state shortly the facts as I have found them by the evidence. The Parrsboro River at or about the place of the collision is about four hundred feet wide from the western to the eastern bank of the channel. On the western side is a wharf called the New - ville wharf, but sometimes in the evidence spoken of as " Black's" wharf, and sometimes " Young's " wharf. Just below this wharf is a beach, I think, called " The Hospital Beach," and below that again is the Cumber- land Railway and Coal Company's wharf. At low tide the water is nearly all out of the river, but at high tide the flats on the eastern side of the river are overflowed for about 400 feet. On Plan " A," which is in evidence and which was made by . Mr. Scammell, who made a survey of the river and those flats between Octo- ber 27th and November 2nd, 1905, it is stated at that date.the water on the flats would range from somewhere about 20 feet to 14 feet in depth ; but Mr. Scammell says that there would be a difference in the depth of the water at the time he made the survey between the 27th of October and the 2nd of November, 1905, and the depth' at the time of the collision on the 28th of November, 1904, and the difference he estimates at about 8 feet. In other words, he says that the water would be about three 1~
4 EXCHEQUER COURT REPORTS. I VOL. XI. 1906 feet lower at the time of the collision on November 28th, HATFIELD 1904, than it was at the time the survey was made in THEI sale 1905, which would make it from fifteen to ten or eleven tV• ANDR1AN. feet in depth on the flats at the time of the collision. Judgru enLr The course of the river at the place of collision is about or almost north and south. At the upper end of N ew-ville wharf it takes the course more to the east. Hunt-ley's wharf, Fpoken of in the evidence, is above the Newville wharf in a direct line eleven hundred and fifty feet, but by the course of the river twelve or thirteen hundred feet. I gather from the evidence that at the time of the collision the tide was nearly slack, probably runnirg up about half a mile an hour, and the wind was blowing north northeast, or nearly down the river, at abonw; four or five miles an hour. The Helen M. came up the river in the afternoon of the 28th of November and anchored, as the plaintiff & aims, on the eastern side of the river, in a range of about forty or fifty feet below the New ville wharf, and I gather from the evidence that she was anchored about three quarters or half an hour before the collision occurred. The claim of the defendant is that she was anchored in the middle of the stream. I will consider that fact later. A schooner called The Roberts was on the beach spoken of, below the Newville wharf, being • repaired ; and about the time the Helen M. came up the river, or possibly shortly after, the parties repairing her began to kedge her off into the stream in order to turn her around. Her stern, I think, was never really off the beach, but her bow was swung out into the stream, with a view of turning her towards the Newville wharf. The War.drian was lying at Huntley's wharf, loaded with piling, and when loaded she drew between sixteen and seventeen feet of water. The tug Flushing had come up to Hunt-ley's wharf about an hour before to take the Wardrian
VOL. XL] EXCHEQUER COURT REPORTS. 5 to sea, the captain of the Wandrian at that time or some 1966 time previously having made arrangements with him to HATFIELD tow her to sea. V. THE SHIP I should say that the Helen M. drew about six or seven WANDRIAN, feet of water; the tug drew a little over nine feet Reasons for Judgment. of water. The Wandrian, as I said, when loaded drew between 16 and 17 feet of water. I think it is important to notice at this point that both the Helen M. and the Roberts could be seen from the Wandrian while • she was lying at Huntley's wharf. Both Isaac Crowell and Knowlton, who were on the Helen M. say that they saw the Wandrian at the wharf. J. H. Oro. well, witness for the defendant, says that just after they left Huntley's wharf he saw the - Helen M. lying in the channel. Captain Ferris, captain of the Flushing, says hé saw the Robcrts when he got the Wandrian turned around from the wharf. As this, collision happened in daylight I think it important that these vessels could be seen from each other; that is, those on board the Wandrian, if they looked, could see the Helen M. while at anchor, and could see the Roberts swinging around, and those on board the Helen M. could see the Wandrian. The Wandrian in tow of the Flushing, left her wharf about, or a 'few minutes before, three o'clock and came down on the eastern side of what is called " The Middle Grounds," in the river. That is, what I presume is a high ground in the river above Kewville Wharf, and just below Huntley's wharf. There was a channel both on the eastern and western sides of these Middle Grounds. It is said in the evidence that the western channel was never used, that the eastern channel was the proper channel for the tow and the tug to come down. They did in fact come through the eastern channel and then in consequence of a point that made out from the eastern side of the Parrsboro River they turned westerly towards
6 EXCHEQUER COURT REPORTS. [VOL. XI. 1906 the Newville Wharf. Then having gone over there and HATFIELD coming pretty well down, the captain of the tug—and in THEvSHIP this he is supported also by some of the men on board WANDRIAN. and also by the Captain of the Wandrian—thought they Jnd~ o m ~ e a ro t. r could not pass between the Helen M. and the Roberts, and accordingly the helm of the tug was put to starboar3 and he turned to pass to the east of the Helen M., or be:ween her and the eastern bank of the river. I should have said that the Roberts was on the western side of the channel and some little distance 'aelow the _Helen M., and I find from the evidence that there was a distance between them of at least two hundred or two hundred and fifty feet. The captain of the tug and the captain of the War drian say they were afraid to go down the western or starboard side of the channel through fear of colliding either with the Roberts or with the Helen M. Accordingly the helm of the tug and also the helm of the Wandrian were star-boarded, and an attempt was made to cross in front of the Helen M. so as to go down on the eastern side of the river, between the Helen M. and the eastern bank. No signal whatever was given, and it was in making this movement to go down the eastern channel past the Helen M. that the collision occurred. I heard the evidence given and I have since examined it carefully and I think there is no witness, except perhaps one, who says it was safe for the tug and Wan-drian to attempt to cross the bow of the Helen AL and pass between her and the eastern side of the channel. The one exception is Elliott. Iie, however, was standing on the Roberts, on the western side of the river, and as the water was over the fiats on the eastern side of the river he could not possibly tell what the distance was between the Helen M. and the eastern bank. The other witnesses simply say it was safe to try the eastern channel.
VOL. XI.] EXCHEQUER COURT REPORTS. 7 The captain of the tug himself says, using his own 1906 words : • HATFIELD V. "Well, the western channel was closed to me, and I !DIE Snip didn't see any other place to go only down the eastern WANDRIAN. side." Reasons for Judgment. Those on board the Helen M. say she could not go safely between the Helen M. and the bank. There was about twenty-five to thirty fathoms of hawser between the tug and the Wandrian; Captain Ferris puts it at thirty fathoms; some of the others state that it was less. When the tug was turning the Wandrian did not answer the helm as quickly, and did not turn as quickly, as the tug to the eastward. In Captain Ferris' evidence, in giving his reasons for going down on the eastern side, he says as follows : " Q. Have you .any further reason to state. why you "could not get down on the starboard side of the chan-"nel that day ? A. No, that was about the only reason " I had. The channel was closed, there was no chance " for me to go down ou that side because of the position " of the vessel. Q. Then what course did you go? A. 'I starboarded " the helm to go to the eastern side of the Helen M. "Q. What course did your tug take then? A. Went " down to the eastward, towards the eastern bank. " Q. Then when you passed the Helen M, how far was " the tug above the bow of the Helen M. when you passed "her ? A. Away from the bow of the Helen M.; I should "judge it would be 80 or 90 feet. " Q. And at that time what helm were you under? " A. Starboard helm, when we passed her, hard a-star " board. Q. " Why did you take that course with the tug? A. " Well, when I got pretty well down to the Helen M. I " saw the Wen drian wasn't following, hadn't sheered as " quickly as we wanted, and I put my helm hard a-star-"board and tried to pull her over to the eastward.
8 EXCHEQUER COURT REPORTS. [VO.L. XL 1906 Q. " The Wandrian wasloaded, was she? A. Loaded. HATFIELD Q. " Do you know how much she drew ? A. No, sir, only V. THE SHIP " what they told me. WAND1IAN. " Q. Would she answer her helm as quickly as the tug ? Jnd S m n e at.. "A. No, sir, she wouldn't. " Q. In order to assist the boat away from the .h elen "M. you took a course further up? A. Right close." So that he attempted to carry her across the flows of the Ilelen M. The tug ran clear but the Wandrian, being deeply loaded and being in such a depth of water that as she was drawing sixteen or seventeen feet there would not be very much water under her, did not answer her helm so quickly as the tug. I think it will appear reasonable to any man, even if he is not a nautical man, that a heavily loaded vesoel, such as the Wandrian, drawing 16 to 17 feet, with not very much water under her, would not answer her helm so quickly as the tug, drawing only nine feet, In addition to this, I gather from the evidencE that the Wandrian had her head sails up, and with the wind blowing practically downs the river those sails woulc. tend to make it more difficult for her to answer her helm and turn to the eastward. Those on board the tug and on board the Wandrian both say that when they passed the Helen M. they called out to those on board the Helen M. to let go their chains, in which case they said she would bave dropped back ; but they claim that that was not done. I will refer to that again. The tug crossed safely, being as Captain Ferris says about 80 or 90 feet above the bow of the Helen 111., but the Wandrian following down, not fully answering her helm, struck the Helen M. pretty nearly bow on, glanced and struck on the •starboard side of the bow, and, taking her course down, turned the Helen M. exactly araund, with the bow down stream.
VOL. XL) EXCHEQUER COURT REPORTS. I should say that the hawser from the tug was cut at or about the time of the collision. No doubt there ap- pears to be some little difference between the parties ; THP.`SHIP some say it was cut at the time of the collision and some a minute or a minute and a half after the collision took ltea place. Of course it is difficult for men in an emergency like that to measure time by the minute or half minute ; but I judge, taking all the evidence together and taking the circumstances of the case, that as soon as the captain of the tug saw that the Wandriann struck the he at once cut the hawser, and the Wandrian down stream, heading a little to the east, with the wind blowing down stream and as I have said, her head sails being up, went down, struck the Helen -M. to the starboard side, turned her completely around in the stream, her stern going to the eastward to the bank, and her bow out west, she turned right down stream, the Wandrian passing down on her western side and going out to sea. The first question I will consider is as to the position of the Helen 11 l., in the river: It is said that she should not have anchored there at all, she should have anchored on the flats. There was no rule binding her to go on the flats to anchor. I think she had a legal right to anchor in the stream as long as she anchored judiciously and properly. It is claimed that she was anchored .in mid-channel. I think all the evidence shows that she was not anchored in mid-channel and I have gone over the evidence very carefully and weighed it in its different parts and have come strongly to that conclusion. In the first place, the anchor of the Helen M. was found on the next morning within ten feet of the eastern bank. As to the evidence of the different witnesses that she was in mid-stream, or about mid-stream, I may say the evidence of the two men who were on board the Helen M. was that she was anchored over towards the eastern shore. 9 1906 HATFIELD «1Ar~xlAx. J s u o cl n ~t S ne 'f x o tt r . Helen M. coming and glanced
10 EXCHEQUER COURT REPORTS. [VOL. XI. isos Captain Roberts who was on the schooner Roberta, which HATFIELD was being turned around, in his evidence says she was T HEv SUIF anchored from the western shore two hundred feet, or WANDRIAN. two thirds of the way across the stream. Now I take =nti' that to mean that she was anchored more than half way across the stream. Whilst he says 200 feet he is giving his estimate of the distance, but when he says two•thirds he is giving his idea that she was anchored more than half way across the stream. I cannot agree with the argument, and the very strong argument made by the counsel for the defendants, that in the course of the collision the anchor of the Helen M: was dragged to the eastward ; if their contention is right it must have been dragged from 100 to 150 feet. I think that looking at it it was impossible that that should be so. We will bear in mind that the Wandrian was ,,oing down stream, her helm had been put hard a-starboard and the tug was drawing her towards the east, her head sails were up. He had not turned her towards the east. It is admitted she did not answer her helm well, and while going in an easterly course she was at the same time going down stream and striking the Helen M and ;;lancing and striking the starboard bow, her course was not direct east, possibly and likely a little in towards the east, so that the anchor may have been dragged a little, but certainly not dragged to the distance claimed by the defendant. The great force of the Wandrian was down stream and not to the east. Taking the statement of Captain Ferris, the clptain of the tug, it seems to me almost impossible that the Wandrian could cross the river to go down the eastern bank without coming in collision with the Helen M: He says that when he crossed above the bow of the Helen M. the tug was about 80 or 90 feet from the bow of the Helen M. There was about 30 fathoms of hawser between the tug and the Wandrian. The Wandrian had her head
. VOL. XI.] EXCHEQUER COURT REPORTE 11 sails up, and she did not quickly answer her helm so os having her head sails up made it still more difficult. HATFH LD Under those circumstances I do not see how it could ever T,,E SH1,.. have been supposed that she • could be brought around WAN1~xz"`. to go down the starboard side of the Helen M., without inâ~ ; a coming in collision with her. My own opinion is that the Helen M. was anchored on the eastern side of the river. It has been said that she had no right to anchor in the river. There is no rule, as I have said, that prevents a vessel from anchoring in the river. The captain of the Wandrian says that he never anchored in the river and never saw a vessel anchored in the river; but Roberts, called by the defendants, says he had at different times anchored in the river, and no rule was produced before me and nothing to show,me that the Helen M. did not have a right to anchor in the river as she did anchor. I should probab'y have said that the Helen M. was going up the river for the purpose of seeing whether she could get a load of coal at the Cumberland Railway & Coal Company's wharf, and it was said she came up that far above that wharf with a view of turning and going down by the wharf. Then I have these facts, that the Helen M. was at anchor before the Wan drian left her wharf, that the Wandrian came down and ran into her while she was at anchor. Now, the rule is well known that a ship under way running into a vessel at anchor, whether anchored in a proper or improper place, is to blame and can only relieve herself by saying that the accident was practically inevitable. I first refer to : The Batavier (1), Dr. Lushington says as follows : " The presumption at law where a vessel at anchor is " run down by another, I take to be is this : That' the (1) 10 Jur. at p. 19.
12 EXCHEQUER COURT REPORTS. [VOL. XI. 1906 " vessel running down the other must show that the HATFIELD " accident did not arise from any fault or negligence on V. THE " on her own part, and, for this reason, that the vessel «'ANDRIA\. " a t anchor has no means of shifting her position, or sn 1~ :ü " avoiding the collision ; and it is the duty of every " vessel seeing another at anchor, whether in a proper or " improper place and whether properly or improperly anchored, to avoid, if it be practicable and consistent " with her own safety, any collision. This is the doctrine " not merely of Maritime Law, but of common sense, it " is the doctrine which prevails on roads, where, sup-" posing a carriage to be standing still on the wrong " side, it is no justification for another running against " it, though the latter be on the right side. It is always " incumbent on the person doing the damage, to show " that he could riot avoid it, without risk to himself." So far as I have been able to find, and I have looked at a number of cases, that has always been the rule, I will just refer to the remarks of Lord Watson in the City of Peking (1). " When a vessel under steam runs down a ship at her t` moorings in broad daylight, that fact is by itself ;rima " facie evidence of fault ; and she cannot escape liability • " for the consequences of her act, except by proving that. " a competent seaman could not have averted or mitigated " the disaster by the exercise of ordinary care and k kill." The defendants on their part say they could not have helped this collision, that they were coming down the stream and if they went on the western side of the channel they were sure to run into either the Helen M. or the Roberts. I may say that it is a well known rule that vessels in narrow channels must keep to the starboard side. The western channel was the starboard side for the War.drian and she was obliged to keep it unless she can show a (1) 14 App. Cas. p. 43.
VOL. XL] EXCHEQUER COURT REPORTS. good reason for not keeping it. Iler reason for not keep-ing it is that she could not go down between the M. and the Roberts, and therefore, as I take it from the evidence, that she had a right to attempt to go down the eastern side of the channel, as they thou better chance, at all events, of avoiding a collision. In my opinion, from the evidence, there was a better chance to go down the western, or defendant's starboard aide of the river, than there was to go down the eastern side. I think from the evidence the captain thought his greatest danger was colliding with the had no right in order to avoid that danger to take a wrong course and without any signal attempt to go down . past the Helen IT, or between her and the eastern • side of the channel, when as I think there was no evidence to show that it was safe, and in fact it was not safe as the collision occurred in consequence of that manoeuvre. When they turned to go towards the eastern side they gave, as I have said, no signal whatever, and in that think they were wrong. When the vessel changed her , course and proposed to go to the other ,side, to the port, and proposed to meet the Helen M. board to starboard, I think it was her duty to give some. signal in order that those on board the prepared to take some steps to avoid danger ; but no signal was given, she followed no rule in regard to it ; the captain of the tug when he got in a certain position, feeling he could not go down on the western side safely, thought he would go to the eastern shore. To begin with, the parties in the tug and the could see before they left Huntley's wharf both the M. and the Roberts, and should have been able then to come to some . conclusion as to whether they could get down or not, and if there was danger, as they thought there was danger, they should not have left the wharf. 13 1 906 Helen. HATFIELD TUE S~,IY WANDRIAr. g g ht theyhad a R Ju ea d s g o m ns e e n o t n . • Roberts, but he I and pass her starHelen M. might be" Wandrian Helen
14 EXCHEQUER COURT REPORTS. [VOL. XL 1906 Second, I think it is not a good answer for them to HATFIELD say that the Wandrian being so deeply laden did not V. THE answer her helm so quickly as the tug. Any seaman wANDR`AN • should know that in going down a river such as that 'i`' u n d x g o m acu t. a vessel drawing 16 or 17 feet of water would not answer her helm so quickly, laden as she was, as a vessel of lighter draught, and they did or should have known that keeping her head sails up would make it still more difficult. Furthermore, the captain of the Wandrian says he was not looking ahead and did not see the Roberts till he got nearly down. All that I think was wrong. I think they should have watched and when they saw the danger then it was their duty to bring their vessel into the Newville wharf and anchor and wait. The only reason I find for them leaving Huntley's wharf and proceeding as they did, or practically the only reason, is that given by Mr. Paterson, the captain of the Wandrian, and is as follows : " Q. You stated that the Roberts had not begun to " pull around until you were half the way down ? A. No, " sir, that is the first I noticed her. " Q. Could you see her all the way ? A. I didn't " happen to be looking that way until I got about half way down. If I had been looking I could have seen " her." Stopping right there, it seems to me when the captain of the vessel was coming down the river and through a narrow channel it was his duty to be on the lookout to see if there were any vessels coming or going, because it was a river that vessels were in the habit of frequenting, indeed it was his duty, before he left Huntley's, where, of course, he could see both these vessels, to make sure there was no chance of collision before leaving. He further says : " Q. You knew she was there ? A. Yes.
VOL. XI.] EXCHEQUER COURT REPORTS. 15 " Did you know she was going to come out that . 1 906 " morning ? A. No, sir, I didn't know it. HATFIELD " Q. Had you waited until a little later the Roberts THE S HIP wouldn't have been in your way at all, Would she ? A. wAr DRIAN. " Well, I don't know. We couldn't wait any longer. ; .:L " Q. Why ? A. On account of the tide. " Q. .'low long does it take you to get down out the " river ? A. We were about forty minutes from the time " we left the wharf till we were out to sea. " Q. So you would just get to sea at the same time " after high tide as if you started before, wouldn't you, " had you waited the forty minutes? A. It would.be a " little after high water." " Q. In time so you couldn't get out ? A. It wouldn't " be safe to try it. " Q. Why wouldn't it be safe with the same tide ?. " A. You are liable to get ashore and damage the vessel. " Q. Why are you more liable to get ashore with " water at the same height? A. I don't know as you " are any more liable, but you are liable to do most any- " thing in those rivers. " Q. That is your explanation for not waiting till the " Roberts got out of the way ?" If it was simply for the purpose of gaining time, as it would appear from his evidence that it was, it was not a good reason or any reason at all for. taking' a risk to his own vessel and much lees for taking the risk of damag- ing any other vessel, especially one at anchor. The best that can be said, Î think, for the defendants, is that they were anxious to get to sea and anxious to get to sea at that tide. When they started out and got partly down seeing the Roberts they feared. they could not pass between the Helen M. and the Roberts and they thought there would be a better chance to pass on the eastern side of the Helen .11., and therefore went across her bows with that view.
16 EXCHEQUER COURT REPORTS. [VOL XI. 1906 I think the reasons given for taking the course they HATFIE7,D did are not good reasons and are reasons that cannot pre- THl; dill' veil. It was claimed on the arg g u ment that it was an `\ AN DHIAN. inevitable accident. I will refer to a few cases on that fiP}INIIIIN 1.}r point. In the Annot Lyle (1) Lord Chancellor Hers-chell, says : " In this case the 1Yeuphar was at anchor in the downs " when the collision, the subject of this action, occurred. " No blame could, therefore, be attributed to her. Under " these circumstances the burden is on the defendants to " discharge themselves from the liability which arises " from the fact that the Annot Lyle came into collision " with and damaged a ship at anchor. The cause of the " collision in such a case may be an inevitable accident not arising from negligent navigation, but unless the " defendants can prove this the law is clear and they are " liable for the damage caused by their ship. I advert to " this point although the arguments addressed to the " Court today were in regard to the conduct of the An-" not Lyle there are expressions in the judgment of the " learned Judge which seem to indicate that the plaintiff " must prove that those on board the Annot Lyle were negligent and that unless they do show that the defen-" dants are entitled to judgment. I do not think that " this could have been the intention of the learned Judge " but the expressions are somewhat unguarded in their " form and therefore it is desirable that the Court should " not allow any misapprehension to exist in regard to • " this point." In the Indus (2) the same principle is laid down. I may say here that the defendants claim, in addition to the fact that the Helen 31 was at anchor in an improper anchoring place, that all due precautions were not taken to avoid the collision. The defendants claim that if the Helen M.'s anchor chains had been let out she (11 1 P. D. at p. 114. (2) 12 P. 1). at p. 46.
VOL. XL] EXCHEQUER COURT REPORTS. 17 would have dropped down su -fficiently to have cleared the 19°6 Wandrian. As it is claimed that if she had been two or. HATFIELD three feet further down the Wandrian would have passed THE -HIP her, and those on board the tug and those on board the WAVDRIAN. Wandrian say that they called out to those on board the = e Helen M. to let go their chain. The two men on board the Helen M., however, say they did not hear that call, but they both say that they went forward with a view of letting out the chain so that she might drop back; but they could not do it as the Wandrian was so close to them that they had not time to do it but had to leave. It is true that in the preliminary act the plaintiffs say that the chains were let go, but they say in their evidence that they went forward for the purpose of doing that and endeavored to do it, but the collision was then imminent and the Wandrian so far down on them that they were obliged to fall back as the Wandrian was striking and their own masts were falling and they went back to save their lives ; and, therefore, they did the best they could, but they had not time to let go their chains. Some of the witnesses (I think Roberts is one) say that they do not know that letting go the chains would have done very much good as at that time of the tide she. would not fall back much, if any. Some of the witnesses suggested that the Helen M.'s head sails should have been put up, which would have thrown her off. This was not done, and I cannot on the evidence say that it would have assisted in any way to prevent the collision. It is, however, a rule that where one ship puts another in extreme danger, where that vessel is in what may be called the very agony of a collision, then if such vessel does fail to do what is best and makes a movement which may be wrong she cannot be -held responsible. (1) (1) See the Bywell Caatle 4 P.D. 221, 222 and 226 2
18 EXCHEQUER COURT REPORTS. [VOL. XL 1906 Dealing further with the question of inevitable acci- HATFIELD dent I will refer to the Schwan and the A lbano, (1892) v. THE SHIP P. D. 419, and I will read shortly from Lord. Esher's tivANnxIAN. j udgment on page 428. In referring to the Annot Lyle Re asons f or . Judgment, he says : " It was a judgment given by Lord Herschel! " in thel presence of myself and Fry L. J., who agreed, " therefore, according to the report that the definition of "the law with regard to this matter was as laid down by "Lord Herschell and agreed with him in the deliberate • " terms which he used and these terms were, ' Under " these circumstances the burden is on the defendants " to discharge themselves from the liability which " arises from the fact that the A.nnot Lyle came into "collision with and damaged a ship at anchor. The " cause of the collision in such a case may be an inevitable accident not arising from negligent navigation, but un= " less the defendants can prove this the law is clear and " they are liable for the damage caused by their ship.' " He then refers to the Indus and approves of the judgment as there given and referring to the words, "inevitable accident," there used, he says as follows : " Now " these words were used with reference to what is taken " to be a well known phrase, inevitable accident and " which is a head of law well known and distinguished " by the Courts from mere negligence. The ship in " motion is not allowed in such a case to say merely, ' I " was not guilty of an ordinary want of care or skill.' It "must be shown that it' was an inevitable accident. This "is the law laid down by the Court and that only leaves " open this, what is the proper definition of inevii able " accident? To my mind these cases show clearly what " is the proper definition of inevitable accident as distin-" guished from mere negligence, that is a mere want of " reasonable care and skill. In my opinion a person "relying on inevitable accident must show that some-" thing happened over which he had no control and the
VOL. X1.] EXCHEQUER COURT REPORTS. 19 " effect of which could not have been avoided with the 1906 " greatest care and skill. That seems to me to be the HATFIELD " very distinction which was taken and which was meant rHE HIP ' to be taken between an inevitable accident and a mere WANDRIAN. • C' want of care and skill." ite;trees ter Judgme„t. I read this to call attention to the fact that in cases like this Lord Esher makes a distinction between ordinary want of care and skill and inevitable accident. It must be shown to be an inevitable accident and the words, ” inevitable accident," are rather broader and cover more than simply ordinary care and skill. This extract from the judgment of a very' eminent Judge seems to me to explain very clearly and plainly what is the proper definition of " inevitable accident." In my opinion the defendants have not shown in any way that this collision was the result of an inevitable accident. Those in charge of the tug and the Wandrian knew that the Helen M. was at anchor before they left Huntley's wharf, and they could also see the Roberts and they could and should have remained at that wharf until all cause of danger was past. As to the Captain of the Wandrian he did not take the trouble to look ahead to see what, if any, vessels were before him until they were fully half-way down to the He',en M. Under these circumstances it is not open to the defend- ants to say that the collision was caused by an inevitable accident. They took the course they did of their own motion. There is no evidence, in my opinion,. to show they were justified iu believing they could get safely down on the eastern side of the Helen M. I gather from all of the evidence that the tug, at the time of the collision, was up on the flats. Captain Ferris said in his direct examination and on his cross-examination that she was up on the flats. On bis re-examination he says he had just come to the flats at the time of the collision, but having examined carefully all the evidence I have con- 2
20 EXCHEQUER COURT REPORTS. [VOL. XI 1906 eluded that on his reexamination he is wrong and that • HATFIELD he is right on his direct'examination, and that when the THES HIP collision occurred the tug was up on the flats and that WANDRIAN, she backed off and came down to the Wandrian.. â ;d a'"f . It was further contended by Mr. Inches on behalf of the defendant that if there was a liability at all it was a liability of the tug and not of the Wandrian. I think this contention cannot be maintained. The Wandrian, or rather the master of the Wandrian, hired the tug to tow his vessel to sea. The tug was, therefore, the servant of the Wandrian and the Wandrian was liable. It is a well known rule of law that in cases of towage, e -pecially in matters of collision, the tug and the tow are one vessel ; and in cases towed as the Wandrian was the motive power is in the tug and the govering power in the ship. Without discussing this matter at full length I think the tug was but the servant of the tow and that the tow, that is the Wandrian, is liable. A number of cases may be cited but I will refer only to the Cleadon (1) ; also the African v. The Union Ship Company (2) ; the Devonian (3) ; the Niobe (4). Under these circumstancès I think the Wandrian has not relieved herself of the responsibility placed upon her, that is to show that this accident was an inevitable accident. I think she must be held to be entirely in fault. The decree will be that the Wandrain be condemned in damages and costs. There is no evidence as to the damages, and if the parties cannot agree as to them I will order a reference. Judgment accordingly.* (1) 14 Moo. P. C. 92. (3) [1901] P. D. 221. (2) L. R. 6 P. C. 127. (4) 13 P. D. 35. * Affirmed on appeal to the Supreme Court of Canada. See 38 S. C. R. 431.
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.