Jean Maurice Koenig (Appellant)
v.
Minister of Transport (Respondent)
Court of Appeal, Jackett C. J., Thurlow J. and
Perrier D. J.—Montreal, June 14, 15, 16, 17,
1971.
Pilotage—Suspension of licence—Wrongful act or
default—Pilot making wrong manoeuvre in panic—Investi-
gating Court—Form of questions submitted—Canada Ship
ping Act, R.S.C. 1952, c. 29, s. 568(1).
A court appointed under s. 568(1) of the Canada Ship
ping Act to investigate a collision between two ships in the
St. Lawrence River suspended the licence of K, the pilot of
the upbound ship. The two ships were approaching each
other in a narrow channel and should have passed port to
port in accordance with Rule 25 of the Collision Regula
tions. However, the downbound ship in navigating a curve
in the channel crossed mid-channel-to the north. K reacted
by altering his ship's course to the south, intending to pass
to starboard, and did not signal his manoeuvre by whistle as
required by Rule 28 of the Collision Regulations. The other
ship then altered its course to the south and the collision
ensued. The Investigating Court found that K should have
realized that the downbound ship would return to its proper
course, and that his faulty and erratic manoeuvre, the result
of panic, was the real cause of the collision; also that he
violated Rules 25 and 28 of the Collision Regulations. K
appealed.
Held: (1) The Investigating Court's findings were correct
and the appeal must be dismissed.
(2) The order suspending K's licence was not invalidated
because one of the questions put to the Investigating Court
pursuant to the Shipping Casualties Rules asked its opinion
as to whether the collision resulted from anyone's "in-
competence" or "misconduct" as well as from "wrongful
act" or "default", which are the only two bases for suspen
sion of a licence under s. 568(1) of the Canada Shipping
Act.
Belisle v. Minister of Transport [1967] 2 Ex.C.R. 141,
referred to.
APPEAL from decision of court appointed to
investigate a shipping casualty under Part VIII
of Canada Shipping Act, R.S.C. 1952, c. 29.
Jean-Paul Dufour, Bruno Desjardins and
Blake Knox for appellant.
Bernard Deschênes and Guy Major for
respondent.
JACKETT C.J.—This is an appeal from a deci
sion of a court that held a formal investigation
of a shipping casualty under Part VIII of the
Canada Shipping Act, R.S.C. 1952, c. 29. The
decision appealed from is a decision under s.
568(1) of the Act suspending the appellant's
licence as a pilot.'
On October 10, 1969, at approximately 05.18
hours (E.S.T.) there was a collision, in the
vicinity of Lauzon, Quebec, between Canadian
Motor Vessel Maplebranch and the Danish
Motor Vessel Atlantic Skou. Pursuant to Part
VIII of the Canada Shipping Act, the Honoura
ble Mr. Justice Chevalier of the Superior Court
of Quebec held a formal investigation with ref
erence to that collision and, on May 8, 1970, he
made a report which contained, inter alia, an
order with reference to the appellant, reading as
follows:
Under the circumstances, the Court orders that his pilot's
licence be suspended for a period of three (3) months
beginning from the pronouncement of the present
judgment...
The Investigating Court was assisted in the
investigation by three assessors, all of whom
concurred in the Court's report.
This appeal is from the aforesaid order.
I think it is a fair summary of the position of
the appellant on this appeal that he accepts the
basic facts as found by the Investigating
Court—that is, he accepts the Investigating
Court's findings as to what in fact happened—
but he does not accept that Court's characteri
zation of those facts and he does not accept
that Court's conclusions concerning the applica
tion of the relevant statutory provisions to
those facts. The respondent accepts and sup
ports the Investigating Court's report, in so far
as the facts are concerned, without reservation.
I propose to commence these reasons by
summarizing the basic facts found by the Inves
tigating Court in my own language and with no
more detail than is necessary, as it seems to me,
to appreciate the Investigating Court's conclu
sions with regard thereto and the appellant's
attack on such conclusions.
The Maplebranch, an oil tanker about 376
feet in length with a moulded breadth of 52 feet
and a depth of 27.5 feet, was proceeding
upbound to Quebec City in ballast with the
appellant as her pilot, and the Atlantic Skou, a
steel cargo vessel 613 feet in length, 73 feet in
beam and 46.7 feet in depth was proceeding
downbound from the Pilot Station in Quebec
Harbour with a cargo of grain in bulk and with a
pilot whose name was J. M. W. Keating. The
two vessels should have passed each other in a
curved portion of the shipping channel which
required the Maplebranch to change her course
to port (to her left) and required the Atlantic
Skou to change her course to starboard (to her
right). The channel at all relevant places was
500 cables (3,000 feet) in width, or more.
The shipping channel in question is a "narrow
channel" within the meaning of Rule 25(a) of
the Canada Shipping Act Regulations for Pre
venting Collisions at Sea, which regulation
reads as follows:
(a) In a narrow channel every power-driven vessel when
proceeding along the course of the channel shall, when it is
safe and practicable, keep to that side of the fairway or
mid-channel which lies on the starboard side of such vessel.
If both vessels had complied with this rule, the
two vessels would have passed each other in
safety. (For convenience, the side of the chan
nel in which the Maplebranch should have
stayed is referred to as the North side and the
side of the channel in which the Atlantic Skou
should have stayed is referred to as the South
side.)
What happened, in fact, is that
(a) the Atlantic Skou passed over the "mid-
channel" from the South side of the channel
to the North side;
(b) when the appellant saw the Atlantic Skou
pass over to the North side of the channel, he
caused the Maplebranch to change direction
to port;
(c) the Atlantic Skou started to return to the
South side of the channel;
(d) a situation then arose where a collision
was imminent and the appellant caused the
Maplebranch to go hard to port and Pilot
Keating caused the Atlantic Skou to go hard
to starboard with the result that the two ves-
sels collided well into the South side of the
channel.
This happened on a dark, clear night when
visibility was excellent. Just before a collision
became imminent, the Maplebranch was travell
ing at a speed of 11 knots through the water and
the Atlantic Skou was travelling at a speed of
14 knots through the water.
The established extent of the Atlantic Skou's
encroachment on the North side of the channel
appeà rs from a finding that, at a certain point,
her wheel-house was three-tenths of a cable
(180') and her bow was four-tenths of a cable
(240') north of the centre line of the channel.
Based on its findings of fact (made in much
more detail than I have summarized them), the
Investigating Court reached the following
conclusions:
(1) The circumstance (not the cause) at the origin of the
misunderstanding was the momentary and, in all, slight
encroachment of the Atlantic Skou north of the geographic
centre of the channel;
(2) This encroachment occurred at a time when both
vessels were relatively close to each other but when no
emergency seemed to exist as yet;
(3) The encroachment occurred within a very short
period of time and the vessel normally and gradually made
the desirable manoeuvre to return to her side;
(4) The encroachment compelled the pilot of the Maple-
branch to keep an eye on the situation and adopt an
adequate manoeuvre to meet it;
(5) Instead of going farther north and ordering to star
board to meet the approaching downbound vessel red to
red, the Pilot Koenig decided on a faulty manoeuvre of
meeting her on starboard, despite the Atlantic Skou's return
position to the south which he knew or, at this moment,
should have realized perfectly;
(6) This faulty and erratic manoeuvre, the result of the
panic which presided at the moment, was the real cause of
the collision;
(7) The fact that the pilot Koenig did not reduce his
speed and did not use his whistle to warn Pilot Keating of
his manoeuvre also should be considered as a factor which
contributed to the disaster and established a causality link
with the disaster;
(8) The speed of the two vessels, prior to the moment
when the collision became imminent, was contrary to the
regulations established for that part of the river where the
vessels were located but, in the opinion of the Court, it
cannot, properly speaking, be considered as a decisive
factor or a determining cause of the collision itself.
The Investigating Court found that Pilot
Keating committed two "violations", being
"illegal speed" and "momentary encroach
ment". He dealt with these as follows:
As stated above, it has been proven that under the guid
ance of her pilot, the Atlantic Skou encroached slightly
upon the north side of the channel. There is perhaps one
particular circumstance which explains this course. The
vessel in question measures 613 feet in length. The evi
dence reveals that she reacts slowly to commands. She was
loaded. At a short distance from the spot where the com
mand of 20 degrees was given, the channel curves to the
south. Given all these factors, it would appear that under
such circumstances, it was perhaps unlawful as such but not
unusual for such a divergence or encroachment to occur.
Despite the upstream traffic which should have prompted
the pilot of the vessel to act most cautiously, it would
appear that this violation was not important and did not
involve an inherent risk for two reasons: firstly, the
encroachment was slight; secondly, it was made in the
context of a general manoeuvre and of a continued turn to
the south.
In summary, it may be stated that the vessel took the
curve, widening it slightly more than was necessary or
desirable, a situation which, according to experienced
seamen, occurs fairly regularly in our narrow channels and
must be taken into account by those preparing to meet such
vessels.
Secondly, the existing regulation relative to the speed in
the area where the disaster occurred (Section 35, Sub-sec
tion (2), paragraph (d)) prohibits a speed exceeding 9 knots.
Pilot Keating (page 657) admitted that before the collision
he might have attained 10 knots. From its observations and
calculations, the court concludes that the speed of the
Atlantic Skou must have reached 14 knots. Violation of the
law has been proven.
However, it is impossible to relate this circumstance to
the accident itself.
As I understand the report, the Investigating
Court found that neither of Pilot Keating's "vio-
lations" was a cause of the ultimate collision.
The Investigating Court appraises the appel
lant's conduct in a portion of the Report which
reads, in part, as follows:
Pilot Koenig on Board the Maplebranch
Of his own admission, in sailing the vessel, he exceeded
the speed limit specified in the National Harbours Board
Regulations for the harbours of Quebec. In this regard, the
same remarks made previously are applicable to him.
Secondly, he violated Rule 25 quoted above and, in his
case, did it in such a manner that the violation may be said
to be the actual cause of the collision.
* * *
When Pilot Koenig saw the Atlantic Skou crossing the
alignments, his duty was clear: first he should have reduced
his speed, undertaken to determine the subsequent course
which the approaching vessel intended to follow, taken it
for granted that in the curve made by the channel, it was not
unforeseeable that the downbound vessel would execute a
fairly pronounced turn, imagine if not predict that it would
gradually return to the south side of the channel, and order
a manoeuvre to starboard and not to port as he did.
Being uncertain, as he himself said, of the course the
other vessel intended to take, he could have and ought to
have communicated with her for information.
His excuse is that at the time when all this happened, it
was too late and on several occasions he used the expres
sion, "The stakes were down".
Nevertheless, and despite the numerous contradictions in
his evidence, he stated at a certain point that when he
realized the difficulty of the situation, he was still on a
course of 235 degrees. Even if this occurred later, the Court
is of the opinion that he still had sufficient time to size up
the situation and make the necessary decision.
True, the principle mentioned above is not absolute and
must be interpreted in accordance with the specific condi
tions of each case; it must even be acknowledged that under
certain circumstances, infringement of the rule may become
necessary. However, at this moment, such a derogation
would become desirable only if the circumstances were
such that the general duty to exercise caution would take
precedence over observance of the regulation. Moreover,
this possibility is provided for in Rule 27 which deals with
these exceptions. Unfortunately, such exceptional circum
stances do not appear to be pertinent to the matter at hand.
* * *
In his testimony, Pilot Koenig gave some justification for
his action.
He referred to the custom whereby pilots of vessels not
infrequently meet green to green. However, in arguing that
his decision was made in the moments of agony preceding
the collision, such justification loses all its weight and
value:
(page 937)
[TRANSLATION]: "I continued to observe her for a few
seconds and then the moment she crossed, I decided that
she would not meet me—I decided that when she crossed
me it would be less difficult to meet me green to green than
red to red, much less difficult for her; at that point I decided
to give slowly to the left, but there was nothing definite yet."
(page 1021)
[TRANSLATION]: "So I arrived at the conclusion when she
crossed in front, I decided to turn slightly to the left,
although it was not absolutely necessary, to make it easier
to meet green to green."
* * *
Thirdly, Pilot Koenig broke Rule 28 which reads as
follows:
Paragraph (a): When vessels are in sight of one another, a
power-driven vessel under way, in taking any course
authorized or required by these Rules, shall indicate that
course by the following signals on her whistle, namely:
One short blast to mean "I am altering my course to
starboard".
Two short blasts to mean "I am altering my course to
port".
Three short blasts to mean "My engines are going
astern".
Paragraph (b): Whenever a power-driven vessel which,
under these Rules, is to keep her course and speed, is in
sight of another vessel and is in doubt whether sufficient
action is being taken by the other vessel to avert collision,
she may indicate such doubt by giving at least five short
and rapid blasts on the whistle. The giving of such a
signal shall not relieve a vessel of her obligations under
Rules 27 and 29 or any other Rule, or of her duty to
indicate any action taken under these Rules by giving the
appropriate sound signals laid down in this Rule.
The Atlantic Skou acted in accordance with the provision
of Rule 28 paragraph (a).
The pilot of the Maplebranch failed to observe this. His
statement that because of the general panic, he failed to
give the signal, cannot be taken as an excuse. As he himself
stated in the above text, when he ordered "port", there was
no urgency at the time; he was aware that such an action
would bring him to the south side of the channel and, as of
this moment, he ought to have signalled his irregular
manoeuvre.
Similarly, if, as he claimed, he had some doubt as to the
course the approaching vessel intended to take, he should
have acted in accordance with Rule 28 paragraph (b).
Finally, he broke a rule of caution by failing to slacken
his speed when the situation became doubtful. He did not
decide to adopt this manoeuvre until the very last minute
when he had reason to state that "The stakes were down"
and that it was too late.
The Report deals with the question of a sanc
tion in respect of the appellant as follows:
The Court considers that the pilot's actions constituted
rather a fault than default and that his poor judgment was
the result of panic, obviously not a desirable trait under any
circumstance in a person entrusted with piloting a vessel of
this size. However, it may be said in his defence, that the
distant provocation caused by the momentary encroach
ment of the Atlantic Skou was at the root of his loss of
control and that, in human terms, this must be taken into
account.
Under the circumstances, the Court orders that his pilot's
licence be suspended for a period of three (3) months
beginning from pronouncement of the present judgment in
open court, in accordance with the provisions of s. 568,
subsec. (5) of the Canada Shipping Act.
The only question that has to be decided on
this appeal is whether the appellant's licence
has been validly suspended under s. 568(1) of
the Canada Shipping Act, which inter alia
authorizes "the licence of a pilot" to be sus
pended "by a court holding a formal investiga
tion into a shipping casualty ... if the court
finds that ... serious damage to, any ship,
... has been caused by his wrongful act or
default, ... ". In dealing with this question, it
must be borne in mind that this Court has not
before it any question as to the correctness of
the Investigating Court's decision that no
default of Pilot Keating was a cause of the
collision. In the absence of Pilot Keating, any
such question should be avoided unless it is
necessarily incidental to a decision as to wheth
er the collision was caused by a wrongful act or
default of the appellant.
As I appreciate the principal attack on the
order suspending the appellant's licence, it is
that the encroachment of the Atlantic Skou on
the South side of the channel faced the appel
lant with a situation where
(a) his port order was the best action that
could be taken to meet the situation, or
(b) even if what the appellant did was not the
best action in the circumstances, and he
should have done the things indicated by the
Investigating Court's report, the decision to
do what he did was a possible decision for a
reasonably well qualified and a reasonably
prudent and careful pilot to take and was not,
therefore, so clearly wrong as to be a "wrong-
ful act or default" within the meaning of s.
568(1). See Belisle v. Minister of Transport,
[1967] 2 Ex.C.R. 141.
The other basis for the appellant's principal
attack, as I understand it, is that even if the
appellant was guilty of a "wrongful act or
default" within the meaning of s. 568(1), it was
not a cause of the collision.
The appellant made certain subsidiary sub
missions only one of which, in my view,
requires to be mentioned. That was an attack on
the form of the questions put to the Investigat
ing Court. I shall return to this after I have
discussed what I choose to regard as the appel
lant's principal attack on the decision from
which he appeals.
The events leading up to the collision
between the Maplebranch and the Atlantic
Skou, in my view, fall into two parts, namely,
the events leading up to the passing of the
Atlantic Skou into the North part of the channel
and the events from the time that the Atlantic
Skou passed into the North part of the channel
until the time of the collision.
In so far as this appeal is concerned, we are
not concerned with the question whether the
Atlantic Skou passed into the North part of the
channel as a result of "wrongful act or default"
of those on that ship. The presence of that ship
in the North part of the channel was the result
of its navigation by those on it and the appellant
is clearly, in no way, responsible for the pres
ence of that ship in that place.
What we are concerned with is whether as a
result of what happened after the appellant saw
the Atlantic Skou pass into the North side of
the channel this Court should find that the
collision was caused by the appellant's wrongful
act or default.
The effect of what is said on behalf of the
appellant, as I understand it, is that the appel
lant, by reason of his sight of the Atlantic Skou
passing into his side of the channel was faced
with a situation of danger where
(a) the Atlantic Skou was on a course on his
side of the channel which would result in the
two vessels passing starboard to starboard
instead of port to port,
(b) if he turned the Maplebranch to starboard,
he would create a danger of collision with the
Atlantic Skou having regard to her course
when he saw her crossing his bow, and
(c) if he reduced the speed of the Maple-
branch, we cannot tell, on the evidence
before us, whether it would have lessened the
danger or not,
and, in these circumstances, in the limited time
available for consideration, he decided on going
to port without reducing speed so as to facilitate
the starboard to starboard passing that had been
imposed on him by the Atlantic Skou. Having
been placed in that position by the Atlantic
Skou and having been thus induced to take the
avoiding action that he took, the Atlantic Skou
then changed her course, according to the sub
missions on behalf of the appellant as I under
stand them, in such a way as to make a collision
inevitable and thus forced the appellant to go
hard to port to minimize the effect of the colli
sion, with the result that he in fact was forced
to take the Maplebranch into the South side of
the channel.
What the Investigating Court has found with
the aid of its assessors, as I understand it, is
that the appellant knew, or "should have real
ized perfectly", at the time that he saw the
Atlantic Skou entering the North side of the
channel, that she would "return to the South"
and that he should, therefore, have reduced his
speed and have ordered "a manoeuvre to
starboard".
The submissions on behalf of the appellant
and the findings of the Investigating Court con
jure up quite different pictures of the situation
facing the appellant at the time that he realized
that the Atlantic Skou was passing into the
North side of the channel. In order to have
some basis for appreciating the actual situation
that was then facing the appellant, this Court
asked its assessors to prepare for it a chart of
the particular part of the channel involved, re
flecting on it the relevant facts as found by the
Investigating Court. That chart will form a part
of these Reasons when they are put into
writing. 2
As appears from that chart, if the Maple-
branch had held to the course it was following
when the Atlantic Skou was first sighted cross
ing into the North part of the channel, it would
have cleared by a substantial margin the course
in fact followed by the Atlantic Skou while
inside the North side of the channel. That being
so, it becomes of paramount importance to
reach a conclusion as to whether the appellant
should, as the Investigating Court held that he
should, "have realized perfectly", when he saw
the Atlantic Skou entering the North side of the
channel, that she would return to the South side
of the channel in the manner in which she did,
in fact, so return. This Court therefore »put to
each of its assessors certain questions. Those
questions and the answers given by the asses
sors read as follows:
QUESTION 1. Having regard to the facts as found by the
Investigating Court and as reflected on the chart that
you have prepared for us, should the pilot on the
Maplebranch "have realized perfectly", when he saw
the Atlantic Skou entering the North side of the chan
nel, that she would return to the South side of the
channel in the manner in which she did, in fact, so
return?
A. CAPTAIN JEAN PAUL TURCOTTE: Yes.
A. CAPTAIN S. P. BERNA: He should of realized that
the Atlantic Skou would return to the proper side of
the Channel.
QUESTION 2. What are your reasons for your answer to
Question 1?
A. CAPTAIN JEAN PAUL TURCOTTE: The normal
course (020) for a Downbound vessel leads towards
Beaufort Bank.
It is possible, for numerous reasons, that a vessel may
pass the line indicated by range lights, marking a safe
channel, but it does not mean that such vessel will
carry on and go aground.
The pilot of the Maplebranch should have realized
that the Downbound vessel was merely late in making
her turn and that she would go back to a normal
course.
A. CAPTAIN S. P. BERNA: It may happen that when a
pilot is setting up the range lights he may cross the
centre line for only a brief period of time.
QUESTION 3. In your opinion, is the answer to Question
1 a matter on which pilots reasonably well qualified
and reasonably careful and prudent might have come
to contrary conclusions?
A. CAPTAIN JEAN PAUL TURCOTTE: No. Pilots
should be, and are used to a number of alterations of
courses throughout the channel.
It would be bad seamanship on their part to consider a
vessel approaching a bent or crossing the alignment of
a channel, as an indication that such vessel wishes to
meet on the wrong side of the channel.
A. CAPTAIN S. P. BERNA: A well qualified pilot with
proper understanding of seamanship should not of
taken the action he took.
I have given the best consideration that I can to
the question that I have described as being of
paramount importance in the light of these
answers and, after considering the matter in the
light particularly of the reasons given by the
assessors, I have reached the same conclusion
as that reached by the Investigating Court,
namely, that it is quite clear, and should have
been quite clear to the appellant, that the appel
lant should, when he saw the Atlantic Skou
cross into the North side of the channel, have
navigated the Maplebranch on the assumption
that the Atlantic Skou would be shaping her
course so as to return forthwith into the South
side of the channel.
Having reached that conclusion, I should
refer to further questions that were put by this
Court to the assessors. These questions and the
answers given to them read as follows:
QUESTION 4. Having regard to the facts as found by the
Investigating Court and as reflected by the chart that
you have prepared for us, could a pilot on the Maple-
branch who was reasonably well qualified and who
was reasonably careful and prudent have decided on
ordering a port turn when he saw the Atlantic Skou
crossing into the North side of the channel?
A. CAPTAIN JEAN PAUL TURCOTTE: It was a wrong
decision to be taken on his part. He should not have
altered course.
A. CAPTAIN S. P. BERNA: He should not of ordered a
port turn.
QUESTION 5. What are your reasons for your answer to
Question 4?
A. CAPTAIN JEAN PAUL TURCOTTE: The Atlantic
Skou although late in her action, was bound to come
to starboard to follow the normal course of the chan
nel, or to get back to it and to meet according to the
rules.
A. CAPTAIN S. P. BERNA: In addition to answer No. 2
he could of assumed that the Atlantic Skou was
having steering trouble and would go aground on that
course. He therefore should of stopped his engine and
give assistance if at all possible.
QUESTION 6. Having regard to the facts referred to in
Question 4, could a pilot on the Maplebranch who was
reasonably well qualified, and who was reasonably
careful and prudent have had a reasonable apprehen
sion of danger of collision with the Atlantic Skou if,
when he saw her crossing into the North side of the
channel, he had ordered a change of course to
starboard?
A. CAPTAIN JEAN PAUL TURCOTTE: No.
A. CAPTAIN S. P. BERNA: There would of been no
danger of collision if he had altered course to
starboard.
QUESTION 7. What are your reasons for your answer to
Question 6?
A. CAPTAIN JEAN PAUL TURCOTTE: If such appre
hension of danger of collision was present in his mind
(steering troubles on board the other vessel etc.), the
pilot of the Maplebranch should not have hesitated to
stop engines and ascertain the situation before taking
action.
I do not believe that such apprehension of collision
was justified when action was taken by the pilot of the
Maplebranch.
A reduction of speed would have let the other vessel
cross well ahead, since even at full speed they were
clear of one another.
An alteration of course to starboard would have
brought the Maplebranch into a safe position, her
draught being at a maximum of 17 feet, the tide almost
at the high point (15 ft.) he could have gone north of
Buoy 138B giving him room to circle or manoeuvre.
There was no danger of collision brought about by an
alteration of course to starboard at this point, in fact it
would have been a normal manoeuvre.
A. CAPTAIN S. P. BERNA: Following the course lines
that were supplied by the pilot of the Maplebranch.
He appeared to have the ship under proper control the
whole time. By going to starboard he had plenty of
water to the north of him and in no danger of going
aground and also his engine would of been on stop (re
question No. 5).
QUESTION 8. Having regard to the facts referred to in
Question 4, could a pilot on the Maplebranch who was
reasonably well qualified and who was reasonably
careful and prudent have had a reasonable apprehen
sion of getting into difficulties as a result of ordering a
reduction in speed when he saw the Atlantic Skou
passing into the North side of the channel?
A. CAPTAIN JEAN PAUL TURCOTTE: No.
A. CAPTAIN S. P. BERNA: There was no reason for the
pilot to feel that there was a possible danger of getting
into difficulties by going at reduced speed or even
stop.
QUESTION 9. What are your reasons for your answer to
Question 8?
A. CAPTAIN JEAN PAUL TURCOTTE: A reduction of
speed would have permitted him to ascertain the situa
tion; would have given the Atlantic Skou more time to
correct any faulty manoeuvre or to make her turn;
would have given time to put up the proper signal of
"not under command" on the Atlantic Skou if it was
the case; such as failure of the steering gear; engine
troubles, etc.
Upon taking a decision as to the avoiding action, if
necessary, proper signals should have been given
accordingly.
A. CAPTAIN S. P. BERNA: It is a question of seaman
ship. He is faced with a ship that might be in difficul
ties. It is therefore his duty to give the other ship
whatever assistance he can, i.e., (1) reduced speed, (2)
stop, (3) room to manoeuvre—or all three if
necessary.
After considering the matter further in the
light of these answers, I have concluded that
the ultimate collision was the direct and
immediate result of the order given by the
appellant to go to port just after he saw the
Atlantic Skou entering into the North side of
the channel instead of reducing speed and poss
ibly going to starboard, and that giving the order
to go to port was something that he plainly
ought not to have done, and failing to reduce
speed was something which it was plainly his
duty to do.
I turn to the breaches of regulations that the
Investigating Court found the appellant to have
committed.
First, the appellant was found to have violat
ed Rule 25. I repeat the relevant part of that
rule for convenience.
In a narrow channel every power-driven vessel when
proceeding along the course of the channel shall, when it is
safe and practicable, keep to that side of the fairway or
mid-channel which lies on the starboard side of such vessel.
Here, it is common ground that the Maple-
branch was a power-driven vessel proceeding
along the course of a narrow channel. It would
appear, however, that, as far as we can tell on
the evidence, the order of "Port" did not result
in the Maplebranch leaving the side of the mid-
channel on her starboard side and that she only
left that side as a result of the hard to port
order, which was given when it was no longer
safe and practicable for her to keep on that
side. In my view, however, in the circumstances
of this case, the matter cannot be broken down
inl such separate elements. When the appellant
gave the "port" order, he must be taken as
having realized, what any reasonably well quali
fied and reasonably prudent and careful pilot
would have realized, that, as the Atlantic Skou
would be coming back into the South side of the
channel, giving such order would result in a
situation that would make it necessary for the
Maplebranch to turn into the South channel as,
in fact, she was forced to do. He therefore
elected, in giving the "port" order, to embark
on a course that had as its probable result his
not being able to keep on the proper side of the
mid-channel. His conduct of the vessel to the
South side of the channel must be regarded,
therefore, as flowing from the original port
order and was therefore, in my view, a breach
of Regulation 25 as the Investigating Court has
found, and that breach was an immediate cause
of the collision.
Secondly, the appellant was found to have
failed to comply with Rule 28 which required,
among other things, that "When vessels are in
sight of one another, a power-driven vessel
under way, in taking any course authorized or
required by these Rules, shall indicate that
course" by the signals set out in paragraph (a)
of that rule. I am in agreement with the Investi
gating Court that the appellant was in breach of
this rule when he gave his "port" order and that
there was no excuse for his failing to give such
signal, which might have alerted the Atlantic
Skou to what he was doing in sufficient time to
have changed the course of events.'
That completes my consideration of what I
regard as the appellant's principal attack on the
decision to suspend his licence as a pilot. I turn
now to what I have referred to earlier as a
subsidiary attack, being an attack on the form
of the questions put to the Investigating Court.
To appreciate this aspect of the matter, it is
necessary to refer to the law concerning this
kind of investigation.
In the first place, we have the formal investi
gations into shipping casualties. Section 560 of
the Canada Shipping Act authorizes a court
appointed under s. 558 (Mr. Justice Chevalier
was such a court) to hold a formal investigation
in the case of a shipping casualty, and s. 578
authorizes the Governor in Council to make
rules for the carrying into effect of enactments
relating to formal investigations. Under s. 578,
the Governor in Council has made the Shipping
Casualties Rules (Order in Council P.C. 1954-
1861, dated December 1, 1954). Section 7(1) of
those regulations authorizes the Minister of
Transport to cause a notice, to be called a
notice of investigation, to be served on certain
specified officers and on any other person who
in his opinion ought to be made a party. Section
7(2) provides, and this is the provision to be
specially noted, that a notice of investigation
shall contain a statement of the case "together
with a statement of the questions which, on the
information then available, are to be raised on
the hearing of the investigation". Section 7(3)
provides for amendments being made to such
"questions" by an officer of the Department "at
any time before the hearing of an
investigation".
In the second place, we have the provision
for cancellation or suspension of certificates or
licences. Section 568 of the Canada Shipping
Act provides, among other things, that the
licence of a pilot may be cancelled or suspend
ed by a court holding a formal investigation into
a shipping casualty "if the court finds that
... serious damage to, any ship ... has been
caused by his wrongful act or default ... "
In the third place, we have certain provisions
in the Shipping Casualties Rules concerning the
"Proceedings" in the Investigating Court. Sec
tion 16 requires that the investigation shall com
mence with the calling of witnesses "on behalf
of the Department". Section 17(1) provides that
when the examination of such witnesses has
been concluded the representative of the
Department shall state in open court "the ques
tions concerning the casualty, and the conduct
of the certificated officers or other persons
... upon which the opinion of the Court is
desired", and s. 17(2) provides that "In framing
the questions for the opinion of the Court" the
officer of the Department may make such
changes in the questions in the notice of investi
gation "as, having regard to the evidence, he
may deem necessary". Section 18 then provides
that, after the questions for the opinion of the
Court have been stated, the Court shall hear the
parties to the investigation (including any wit
nesses that they produce) and "shall determine
the questions so stated".
Now, in the light of that summary, I turn to
the appellant's subsidiary attack. The appellant
refers to Question No. 8 of the questions in the
Statement of the Case, which reads:
Question No. 8
A. Did the collision between the two vessels occur as the
result of incompetence, wrongful act, default or mis
conduct of any person or persons?
B. If so, what person or persons were involved?
and the answer given by the Investigating
Court, which reads:
Answer
A. Yes.
B. Pilot Koenig and First Officer Forbes for the reasons
indicated in detail in Chapter 6 of the Report.
The appellant emphasizes that Question 8 asks
the Court for an opinion as to whether the
collision occurred as the result of "incompe-
tence" or "misconduct" as well as to whether it
occurred as a result of "wrongful act" or "de-
fault", which are the only two bases for cancell
ing a certificate or pilot's licence. I was not
able, I am afraid, to appreciate the force of the
contention that this could, in some way, serve
as a basis for invalidating the decision suspend
ing the appellant's licence. What is contemplat
ed in both s. 7 and s. 17 of the Shipping
Casualties Rules is "questions" which the
Investigating Court is to answer for the infor
mation of the Minister. Question 8 calls for an
answer concerning the "incompetence, wrong
ful act, default or misconduct" of "any person
or persons" that caused the collision. This is a
very wide question that is presumably of impor
tance to the Minister for his purposes. When
the Investigating Court is acting under s. 568
with reference to a certificate or a pilot's
licence, it is not answering a "question", it is
making an order with operative effect and it
must make findings of fact that are required by
the relevant law. This is quite a different pro
cess although, in the circumstances, the two
processes overlap.
As for the suggestion that the appellant
makes that the inclusion of words such as "in-
competence" or "misconduct" in Question 8
tended to mislead the Court "and may well have
prompted it to look beyond the conduct of the
appellant ... and to inquire into his past or pres
ent competence, as well as other foreign con
siderations, when, in reality, it should have been
concerned only with the possibility of his
having committed a `wrongful act or default' in
the performance of his duty at the time of the
casualty", it is sufficient only to refer to the
relevant parts of the Report of the Investigating
Commission, which I have already read, to sat
isfy oneself that the Court was very conscious
of exactly what it had to decide. If there was,
otherwise, any doubt that the Court was aware
of the limited meaning to be given to the words
of the statute that it had to apply, this doubt is
removed by referring to its discussion of the
case of First Officer Forbes where the relevant
part of the judgment in Belisle v. Minister of
Transport [1967] 2 Ex.C.R. 141 is set out. I am
satisfied that there is no substantial criticism
that can be made of the Investigating Court's
finding of facts in so far as they were condi
tions to the decision appealed against.
I should not leave this aspect of the matter
without adding that I do not wish to be taken as
implying that an officer or pilot is not entitled to
the protection of the ordinary principle govern
ing a fair hearing. In particular, I have no doubt
that he is entitled to notice of what is alleged
against him and to an opportunity to make his
answer thereto. In this case, however, a perusal
of the transcript of the hearing makes it clear
that the appellant was ably represented and
there would appear to be no doubt that he knew
what was to be answered and had a full oppor
tunity to answer it.
Before concluding, I desire to express one
reservation in relation to the report of the
Investigating Court. I do not desire to be taken
as agreeing or disagreeing with the finding that
the breaches of the law concerning the speed of
ships in that channel were not a cause of the
collision. I think it must be open to argument
that, at least in some circumstances, a ship that
exceeds a statutory speed limit must be charged
with fault for not having taken avoiding action
that she would have been able to take if she had
been operating within the speed limit.
For the above reasons, my conclusion is that
the appeal should be dismissed.
THURLOW, J.—I have reached the same
conclusion.
While a great many detailed aspects of the
matter were discussed in the course of the
argument, the broad facts, as I view them, are
that the appellant, who was navigating the
Maplebranch in his proper side of the channel
but, as the learned Commissioner found,
extremely close to the centre line and at a speed
some five knots in excess of the prescribed nine
knot limit, when faced with the problem pre
sented by the Atlantic Skou crossing the centre
line into his side of the channel, elected to go to
port and to attempt a starboard to starboard
meeting with that vessel. The learned Commis
sioner described the invasion by the Atlantic
Skou of the appellant's water as "momentary"
and "slight" and found that the vessel "normal-
ly and gradually made the desired manoeuvre to
return to her side." He also found that the
appellant knew, or should have realized that
that was what the Atlantic Skou would do.
The gravity of the conduct of the Atlantic
Skou in exceeding the speed limit, in crossing
the centre line when the Maplebranch was
approaching, and in not having seen that vessel
as early as she might have been seen, are not, as
I see it, matters with which we are concerned in
this appeal, either as being infractions of regula
tions or even as contributory causes of the
collision. The question for us, as I view it, is
simply whether the conduct of the appellant, in
the situation that confronted him, warrants in
law the punishment awarded.
On this, three points put forward in the
course of argument call for consideration. The
first of these is whether in the circumstances
the action taken by the appellant was wrong. On
this question I have no difficulty in concluding
that the appellant's attempt to pass the Atlantic
Skou starboard to starboard by going to port at
a time when he knew, or ought to have expect
ed, that the Atlantic Skou would attempt to
regain her side of the channel by moving to
starboard before meeting him, was a wrong
manoeuvre. I would also regard it as a wrong
manoeuvre for him, even if the turning of the
Atlantic Skou to starboard were to be regarded
as but one of several possible courses that the
Atlantic Skou might undertake to follow. Only
if the appellant had been able to eliminate the
possibility of the Atlantic Skou turning to star-
board—whether by communicating with her or
otherwise—could the appellant's turning to
port, in my opinion, have been justified as a
correct as opposed to a wrong manoeuvre.
Moreover, in the circumstances the making of
such a move without such communication or
assurance, without a signal, and without making
the alteration of sufficient magnitude to open
his green light to the Atlantic Skou, in my view,
served to aggravate its wrongful character.
The second, and perhaps the strongest sub
mission from the point of view of the appellant,
was that even if turning to port, in the attempt
to meet the Atlantic Skou starboard to star
board, was a wrong manoeuvre it was a mere
error of judgment made in an emergency and
was not a wrongful act or default within the
meaning of s. 568(1)(a) of the Canada Shipping
Act. Here it is to be observed that in evidence,
which was cited by the learned Commissioner
in his report, the appellant himself stated that
when the first order to port from the course of
235° T was given, there was no urgency or
emergency since, on the assumption on which it
was based, that is to say, that the Atlantic Skou
would not alter her course, the vessels would
clear each other and that the alteration to port
was not absolutely necessary but was made to
make it less difficult for the Atlantic Skou to
meet the Maplebranch green to green.
I do not think, however, that the matter was,
or even appeared to the appellant to be, as
simple as that. It seems possible that the appel
lant may have hoped that his going to port
would be noticed and would itself persuade
those on board the Atlantic Skou not to attempt
a port to port meeting. But the appellant could
not but be aware that no starboard to starboard
meeting had been arranged. And from his point
of view, as I see it, and as the learned Commis
sioner as well appears to have seen it, by far the
most probable action to be expected from the
Atlantic Skou was not that she would keep her
course but that she would turn to starboard.
In these circumstances the appellant's going
to port in an attempt to meet the Atlantic Skou
starboard to starboard, without having arranged
for such a meeting, or having communicated his
intention by signal or otherwise, and at a time
when there were other more normal or more
natural courses open to him, including reducing
his speed, maintaining his course for a time, and
going to starboard when the course of the
Atlantic Skou became clear, appears to me, as I
think it did to the learned Commissioner, to
have been so extraordinary and unnatural a
departure from the conduct to be expected of a
competent pilot faced with similar situations as
to fall well within the meaning of a "wrongful
act or default" in s. 568 of the Act, as that
expression has been interpreted in Belisle v. The
Minister of Transport.
Moreover the necessity which appeared to
the appellant to require and ultimately caused
him to order hard aport, which brought the
Maplebranch to the wrong side of the channel,
if indeed the earlier turn to port had not already
done so, was but the consequence of his action
in making the earlier turn to port, and thus put
him in breach of Article 25 of the Collision
Regulations as the learned Commissioner found
him to have been.
The remaining point was that the appellant's
manoeuvre to port was not the cause of the
collision and damage. I have already indicated
my view that the question of the responsibility
of the Atlantic Skou for the collision is not
before the Court on this appeal, and as I see it,
it can make no difference to the appeal whether
the conduct of that vessel was a contributory
cause of the collision or not. The only question
that appears to me to arise is whether a wrong
ful act or default of the appellant was a cause of
the collision and damage. On this point the
argument ranged over the inevitability of the
collision resulting from the Atlantic Skou turn
ing to starboard, no matter which course the
appellant might have adopted, from the time
when he gave the order to port. Apart, however,
from the advice which, as has already been
indicated, we have received from our assessors,
that a collision was not rendered inevitable by
the Atlantic Skou turning to starboard, I do not
regard it as fairly arguable that the appellant's
turning to port, without signalling or otherwise
communicating the move to those in charge of
the Atlantic Skou, was not in the circumstances
at least one of the causes of the collision and
damage.
On the further point of law raised with
respect to the questions which the Court of
formal investigation was asked to answer; I
agree with what has been said by the Chief
Justice, and I also wish to associate myself with
his remarks regarding speed and the disabling
effect of speed in excess of the prescribed limit
therefor.
In my opinion the appeal fails and should be
dismissed.
PERRIER D. J.—My comments will be very
brief.
During my quarter-century on the bench of
the Superior Court, I have rarely seen a case as
carefully and capably prepared as this one. The
statements of counsel are clear and precise, and
their pleadings, even though it was an impossi
bility for both litigants to convince the Court at
the same time, nevertheless gave a very thor
ough account of the issue.
I find myself in an unusual situation; as you
know, this is a new experience which I very
much appreciate, but at the same time it will be
short-lived. As I shall not be back, I take this
opportunity—and I am sure that at this time I
can speak for my learned associates—to con
gratulate counsel very sincerely on having per
formed their duties so well.
I would simply like to point out that the
appellant in his statement expressed regret—in
very courteous terms—that the Honourable Mr.
Justice Chevalier had not taken sufficient
account of the evidence given by the witnesses
Koenig and Forbes, and that he had found the
credibility or preponderance of evidence to be
on the side of the witnesses Keating, Mayotte
and, above all, Lachance.
I need not dwell at length upon the rules
which should guide a Court of Appeal, as these
have been applied on many, many occasions.
The Honourable Mr. Justice Chevalier saw
and heard these witnesses, and consequently
was in a position to observe their attitudes and
behaviour, and to weigh their statements. The
role of a Court of Appeal is not to substitute its
assessment for that of the trial judge, except
where there has been an obvious error.
It is my modest opinion, however, from the
reading and analysis of the evidence, that the
Honourable Mr. Justice Chevalier's assessment
of the evidence adduced before him, far from
including an obvious error which might give a
Court of Appeal grounds for setting aside his
decision, appears to be correct and well found
ed, and justifies his decision.
There is no need for me to repeat the very
detailed judgments or to detract from the merit
and brilliance of the views that have just been
expressed; I will simply say that I share the
opinion of the Honourable Chief Justice and the
Honourable Mr. Justice Thurlow, and fully
agree with their conclusion.
I Section 576(3) of the Canada Shipping Act provides
that "where on any such investigation a decision has been
given with respect to the . .. suspension of ... the licence
of a pilot, . .. an appeal lies from the decision to the Admi
ralty Court". Prior to June 1, 1971, "Admiralty Court" was
defined by s. 2(1) of the Canada Shipping Act to mean "the
Exchequer Court of Canada on its Admiralty side". The
Federal Court Act, 1971 (Can.), c. 1 (Schedule B), which
came into force June 1, 1971, has amended that definition
so that "Admiralty Court" in the Canada Shipping Act now
means the Federal Court of Canada. By virtue of s. 30 of
the Federal Court Act, the appeal under s. 576(3) of the
Canada Shipping Act is now to the Appeal Division of the
Federal Court, which is also known as the Federal Court of
Appeal (s. 4 of the Federal Court Act). This is the first
appeal to be heard by the Federal Court of Appeal.
2 [Not reproduced in this report—Ed.]
3 I do not regard the Investigating Court's hypothetical
reference to Rule 28(b) as a finding of an infraction thereof
by the appellant.
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.