Ex. C.R.] EXCHEQUER COURT OF CANADA 289 1939 ON APPEAL FROM THE ONTARIO ADMIRALTY DISTRICT May 8. BET W LEN : May 30. STEAMSHIP JAMES B. EADS 1 A (DEFENDANT) I PPELLANT; AND SARNIA STEAMSHIPS LIMITED. RESPONDENT. PLAINTIFF) AND NORRIS STEAMSHIPS LIMITED 1 (PLAINTIFF) f A PPELLANT_ AND STEAMSHIP JOSEPH P. BURKE R } ESPONDENT (DEFENDANT) Shipping Appeal from District Judge in Admiralty—Collision—Rules 25, S0 and 82 of the Rules of the Road for the Great Lakes—Negligent operation of vessel—Appeal dismissed. The SS. Joseph P. Burke, proceeding up Lake Ontario, and the SS. James B. Eads, on a voyage from Fort William to Toronto, collided immediately outside the entrance to the Welland Canal at Port Weller. The, primary cause of the collision was the decision of the Master of the James B. Eads to cross from starboard to the port side of the channel when approaching the exit on Lake Ontario. The trial judge allowed an action brought by the Joseph P. Burke against the owners of the James B. Eads and dismissed an action brought by the James B. Eads against the owners of the Joseph P. Burke. On appeal the Court found that the collision was the result of the negligent operation of the James B. Eads and that there was no negligence on the part of the Joseph P. Burke. Held: That the section of the Welland Canal where the collision occurred is not the type of narrow channel contemplated by Rule 25 of the Rules of the Road for the Great Lakes. APPEAL from the decision of the District Judge in Admiralty for the Ontario Admiralty District allowing one action and dismissing the other, both actions having been consolidated for the purposes of trial. The appeal was heard before the Honourable Mr. Justice Maclean, President of the Court, at Ottawa. C. Russell McKenzie, K.C. and F. H. Keefer for appellant. F. Wilkinson, K.C. for respondent. 87081—la
290 EXCHEQUER COURT OF CANADA [193.9 1939 The facts and questions of law raised are stated in SS, j es the reasons for judgment. B. Eads v. THE PRESIDENT, now (May 30, 1939) delivered the SS Joseph P. Burke. following j J u dgm ent: Maclean J. These two consolidated actions arose out of a collision between the ship Joseph P. Burke, hereinafter called • " the Burke," and the ship James B. Eads, hereinafter called " the Eads," at 2.40 o'clock in the morning of November 30th, 1937, in Lake Ontario, just outside the entrance to the Welland Canal at Port Weller, and this is an appeal from the decision of Barlow D.J.A., for the Ontario Admiralty District, who found that the collision was due to the negligent operation of the Eads. The appeal was heard with the assistance of Captain J. W. fia Kerr, as nautical assessor. The judgment appealed from contains an exhaustive statement of the relevant facts, and the reasons for the conclusion reached are so clearly stated, which conclusion I am satisfied is the correct one, that it will not be necessary to engage in any lengthy discussion of the matters in controversy here. The Burke was proceeding up Lake Ontario on a voyage from Montreal to Port Colborne. The Eads was on a voyage from Fort William to Toronto. The Burke was running light and the Eads had a cargo of grain. The weather was clear with a strong forty mile an hour gale blowing west south west. The primary cause of the collision between the Burke • and the Eads, some 1,500 or 2,000 feet outside the Port Weller piers at the northern entrance to the Welland Canal—which piers may be visualized as extensions of the canal walls—was the decision of the master of the Eads to cross from the starboard to the port side of the channel when approaching the exit on Lake Ontario. The distance from the lowest lock to the end of the piers is approximately one mile and three-quarters. In justifica-• tion of this manoeuvre the latter part of Rule 25 of the Rules of the Road for the Great Lakes was relied on. This rule deals with the situation when steamers are approaching each other head and head or nearly so, and the latter portion of the rule is as follows: .4 . . . Provided, however, that in all NARROW CHANNELS, where there is a current, and in the rivers Saint Mary, Saint Clair, Detroit, en
Ex. C.R.] EXCHEQUER COURT OF CANADA 291 Niagara, and Saint Lawrence, when two steamers are meeting, the 1939 descending steamer shall have the right of way, and shall, before the vessels shall have arrived within the distance of one-half mile of each SS . James B. Eads other, give the signal necessary to indicate which side she elects to take. v. The channel from the lowest or most northerly lock of SS. Joseph P.Burke. the Welland Canal to the extremities of the Port Weller piers is undoubtedly narrow, but the current is negligible; Maclean J. there would be some flow of water from the canal into Lake Ontario, but that would have no appreciable effect on a ship departing from that lock and proceeding in the channel towards Lake Ontario, and it would not interfere with the control of the ship. Rule 25 appears to apply to channels and rivers where there is current sufficient to make it desirable to give the descending ship the right to choose on which side she will pass an upbound ship, after her intention is made known by whistle signal. The ascending steamer in such circumstances stems the current and is much better able to control her movements 'until the descending ship running with the current is clear. in my opinion the section of the Welland Canal with which we are concerned is not the type of narrow channel contemplated by Rule 25. The initial fault of the Eads was in not keeping to the starboard side of the channel until well clear of the piers, and with this my assessor agrees, and the learned trial judge was of the same opinion. That seems to be the general practice of steamers emerging from the Welland Canal at Port Weller, and in fact the master of the Eads on some four or five previous voyages had always run for some five minutes straight out from between the piers before heading for Toronto, and my assessor advises me that this would be a precaution which ordinarily should be followed. To what distance a ship should proceed after passing the piers at Port Weller, and before her next course was set, would, of course, vary with circumstances. It is quite clear that had the Eads kept to the starboard side of the channel until well clear of the piers no accident would have occurred. The Burke was apparently to the westward of a line bearing true north from the Port Weller piers when the Eads cleared the piers, admittedly on a course west of north in order to steer towards Toronto. In so doing her starboard light would be seen by the Burke which was steering west of south to keep to windward of the 87081-1ia
292 EXCHEQUER COURT OF CANADA [ 1939 1939 piers to allow for leeway or drift, as she was light and SS. James the wind was about west south west, and blowing with B. Eads v. the velocity already mentioned. SS. Joseph The master of the Eads admitted in his evidence that P. Burke. he was aware that the Burke was a canal size ship and Maclean J. that it was proper for the Burke to go high, or to the westward of the piers, to allow for leeway or drift. The position of the ships just outside the piers is illustrated in the Fifth Situation as applied to Rule 30 for the Great Lakes, the left hand ship being the Eads and the other the Burke. As they approached each other at right angles or obliquely in such manner as to involve risk of collision, it was, in my opinion and that of my assessor, and as held by the trial judge, the duty of the Eads to keep out of the way. In the situation that developed, the Burke being on the starboard side of the Eads, the latter, after clearing the piers on a course towards Toronto and observing the Burke to starboard, should immediately have altered her course to starboard to pass astern of the Burke, or have stopped her engines, or reversed, in time to avoid collision. The Eads therefore offended against Rules 30 and 32, as found by the learned trial judge. I concur fully in the conclusion of the learned trial judge, namely, that the collision was the result of the negligent operation of the Eads, and that there was no negligence on the part of the Burke, in all of which my assessor is in agreement with me. The appeal is therefore dismissed and with costs. Appeal dismissed. REASONS FOR JUDGMENT OF BARLOW D.J.A.: This action arises out of a col- was clear with a strong forty-mile-lision between the ship Joseph P. an-hour gale blowing west-south-Burke and the ship James B. Eads west. at 2.40 o'clock in the morning of According to the evidence of the 30th day of November, 1937, Captain Norris, the captain of the in Lake Ontario just outside the Burke, the impact took place from entrance of the Welland Canal at 1,500 to 2,000 feet north-north- Port Weller. west of the west pier at Port The Burke was proceeding up Weller, the starboard bow of the Lake Ontario on a voyage from Eads coming in contact with the Montreal to Port Colborne. The port side of the Burke near the Eads was on a voyage from Fort raised quarter deck between hatches William to Toronto. The Burke numbers 5 and 6. The evidence was running light and the Eads of Captain Norris is that the mate, had a cargo of grain. The weather having sighted a ship known as
Ex. C.R.] EXCHEQUER COURT OF CANADA 293 the Diamond Alkali, called him. At at Port Weller, which light is 1939 this time he could see the Port about 3,000 feet from the piers, SS. Weller lights and the Diamond and that he then blew two blasts James B. Eads Alkali, which was four points on to indicate that he wished to pro- y. the starboard side. He hauled ceed out of the entrance on the SS. Joseph southerly and paralleled the Dia- port side. He states that the P. Burke. mond Alkali which was also pro- Burke was about 2,000 feet from Maclean J. ceeding to the entrance to the the piers in a north-east direction canal. He then saw the Diamond when the first two-blast signal was Alkali had slowed up and he given. When 500 feet inside the hauled back 245°, which took the pier he gave a second two blast Burke up to the line of the blinker signal. Both boats were making on the west pier at Port Weller. about the same speed; the Eads He then hauled to port and kept about eight miles an hour and the the light a point on the port bow. Burke about seven miles an hour. Shortly after he saw the Eads and The captain states that he gave altered his course on the west the second two-blast signal be- lights. At this time the Eads cause the Burke bad altered her was well up in the harbour. He course to starboard. He heard Do saw the two mast bead lights of signals from the Burke but saw the Eads and later her red and the green light from the Burke green lights came into view. At for a minute or a minute and a that time the green light of the half between the time of the first Burke was not visible to the Eads. and the second signal, and he He kept on coming in the same states he gave the second two- course until the Eads was just in blast signal when the Burke closed the piers. He then pulled the out her green light. His evidence Burke out two points on the port is that the Burke answered the bow so as not to get her up too second two-blast signal with a high, but the head of the boat danger signal. He then ordered the never changed. At 1,500 to 2,000 wheel hard to starboard, ordered feet he saw the Eads' red light full speed astern and dropped the shut out and the Fads altered her starboard anchor, and that when course to port. There was no the contact took place the Eads, signal by any boat up to this which is 400 feet long, was 50 feet time. Sensing danger by reason clear of the west pier. He states of the course of the Bads, he that the Eads was practically ordered the wheel hard to star- stopped at the moment of con- board and blew five or more blasts. tact. The Eads kept on coming out and John A. Clague, the first mate blew two short blasts when it just on the Diamond Alkali, was called cleared the piers. The Eads was as a witness. He first saw the heading somewhat west of north. Burke when she was about one and The Burke then blew another a half points on the port bow of alarm and the Eads blew an alarm the Diamond Alkali and about four and kept coming out. The Burke miles from Port Weller. The was swinging well around to the Diamond Alkali was on her way north-north-west and the captain from Toronto and was heading for saw that the Eads was coming into the end of the west pier at Port the Burke, and just before the im- Weller. He states that the Dia pact he ordered the rudder of the mond Alkali was running half Burke hard to port to swing the speed to permit the Burke to stem away. enter the canal first as she could The evidence of Captain Harp- proceed much faster through the ell, the captain of the Eads, is canal than the Diamond Alkali. that he first saw the Burke when He saw the Eads coming out from he was abreast of the main light the Port Weller harbour when she
294 EXCHEQUER COURT OF CANADA [1939 1939 was about half way from the lock Eads continued her course and that to the pier. He heard two blasts if the anchor was dropped and the SS. James B. Eads which he understood was from the engines ordered full speed astern, y. Eads, when the Eads was just that it must have been done very SS. Joseph clear of the piers. The Eads was shortly before the contact because P. Burke. heading to the westward on her it is quite evident that the Eads Maclean J. course out of the harbour. The had not stopped her way to any Burke at this time was in line with appreciable extent at the time of the Eads. the contact. I cannot accept Cap- The captain of the Eads stated tian Harpell's story as to this; nor that his usual course was to keep that of his mate and wheelman, sharply to port on coming out be- whose stories are in almost the tween the piers and that this is same words. Counsel for the Eads what he proposed to do, he being contends that the Burke failed to on his way to Toronto. But his give a one-blast signal. Captain log book shows that on some four Norris states that he was about to or five previous voyages he had do this when he saw the possi-always run for some five minutes bility of danger and preferred to straight out from between the piers blow an alarm. In the light of before heading for Toronto. If he what subsequently happened, I can-had followed this course this time, not see wherein the failure to blow there would undoubtedly have been a one-blast signal contributed in no collision. Just why the Eads any way to the collision. In any should blow a two-blast signal event, the captain of the Eads when the Burke undoubtedly was had every opportunity to avoid the too far out in the lake to hear collision. If he had followed his her, cannot be understood. The usual custom of running straight captain of the Eads states that he out for five minutes, it would have blew a second two-blast signal when been avoided. If he did what he he was 500 feet inside the piers. claims to have done, namely, ordered the Eads hard to star- The fi s r a s y t s m t a h t a e t o t f h t e h e tw D o i a b m la on st d board, reversed his engines, and Alkali dropped his anchor no collision signal he heard from the Eads was would have taken place. when the Eads was just outside the piers. The Diamond Alkali Counsel for the Eads contends answered this signal believing it that a loaded down going vessel was for their ship. The first mate has the right of way in narrow of the Diamond Alkali is an in- channels and with the current, and dependent witness and I prefer his contends that the Eads had the evidence to that of Captain Harp- right to pass out through between ell. If the story of Captain Harpell the piers and , that the Burke is to be believed to the effect that should have waited for her. The after an alarm was blown by the entrance is 400 feet wide. The Burke, that he put his wheel hard Burke has a 43-foot beam and the to starboard, reversed his engines Eads about a 40-foot beam. The and let go the starboard anchor, only current would be that caused it would have the effect of swing- by the west-south-west wind which ing the stern to port and the bow would carry the Eads the way which to starboard, and if this was done she should have gone. There is, inside the piers, as is sworn by therefore, in my opinion no reason Captain Harpell, it is hard to why they would not have been understand how the Eads came in- able to meet safely between the to contact with the Burke off the piers. The fact is, however, that west pier, the Burke at the time the Eads passed out through the going full speed away from him. I piers and the line of crossing of think it must be found that the the two vessels was some 1,500
Ex. C.R.] EXCHEQUER COURT OF CANADA 295 or 2,000 feet out from the entrance the steamer which has the other 1939 in the open lake. According to on her own starboard side, shall SS. James the evidence which I prefer to keep out of the way of the other B. Eads accept, the two vessels met and by directing her course to star-v. the contact took place some 1,500 board so as to cross the stern of SS. Joseph or some 2,000 feet out from the the other steamer. Or if necessary P. Burke. piers in the open lake. Captain to do so, slacken her speed or Maclean J. Harpell and his mate both swore stop or reverse. This is the situa-that the contact took place when tion here. The Burke was on the the stern of the Eads was 50 feet starboard side of the Eads. from the west pier. The wheel- Rule 32 is also applicable and is man of the Eads placed this dis- as follows: "When two steam tance at 25 feet. I was not im- vessels are crossing so as to in-pressed with their evidence. It volve risk of collision, the vessel appeared too much as though it had which has the other on her own been rehearsed. I prefer to be- starboard side shall keep on out lieve the evidence of Captain of the way of the other." Norris, his mate, and of Clague, The fifth situation following Rule the mate of the Diamond Alkali, 38 is also applicable: "The steam-an independent witness, which would er which has the other on her own place the point of contact be- port side shall hold her course and tween 1,500 and 2,000 feet from speed and the other shall keep the piers. clear by crossing the stern of the Counsel for the Eads contends steamer that is holding course and that Rule 25 of the Rules of the speed, or if necessary to do so Road is applicable. This rule, shall slacken her speed or stop or however, deals with the situation reverse." when steamers are approaching The Burke here quite properly each other head and head or nearly held her course and speed, but the so, and further says: "In the night Eads did not do what was neces-steamers will be considered as sary and which in my opinion she meeting head and head so long had every opportunity to do t o as both the coloured lights on each keep clear by crossing the stern of are in view of the other." That the Burke. was not this situation. Here the Counsel agree that the doctrine steamers were meeting at right of the last chance is applicable, angles, and it is sworn that the and this being so, it is quite evi-green light of the Burke was never dent to me that the Eads had the at any time visible to the gads. last chance to avoid the accident. The captain of the Eads states I had the assistance at the trial that he saw the green light of of Captain R. F. Wilson as assessor, the Burke for a minute or a. min- a captain of wide experience. ute and a half. I am of the opinion After having carefully considered that he must be mistaken. There the evidence and having regard to is a green light on the east pier at the advice of my Assessor, I have Port Weller and it may be that he come to the conclusion that the saw this light. I prefer to accept collision was the result of the neg- the evidence of Captain Norris as ligent operation of the Eads. I to the course of the Burke and cannot find that '.here was any that his green light was never vis- negligence on the part of the ible. It therefore follows that Rule Burke or those in charge of her. 25 is not applicable. Judgment will, therefore, go for Rule 30 deals with the situation the plaintiff in the first action with when two steamers are approach- costs, with a reference to the Regis-ing each other at right angles or trar to assess the damages. The obliquely so as to involve risk of second action will be dismissed collision. This rule provides that with costs.
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.