Judgments

Decision Information

Decision Content

T-1107-73
Irish Shipping Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J. Vancouver, February 3;
Ottawa, March 11, 1976.
Maritime law—Whether grounding of vessel caused by neg ligence of Crown servants in implementing and recommending use of unsafe and dangerous traffic separation scheme—Role of pilots Crown Liability Act, R.S.C. 1970, c. C-38, s. 3— Pilotage Act, 1913 (Great Britain), c. 31, s. 15—Pilotage Act, S.C. 1970-71-72, c. 52, s. 31.
Plaintiff's vessel grounded while passing through the traffic separation scheme at Haddington Island in Broughton Strait off the British Columbia coast. Plaintiff claimed that by imple menting and recommending the scheme, the Department of Transport owed a duty to vessel owners navigating the strait; that having been told by pilots that the passage was dangerous and navigational aids inadequate, the Department should have reasonably foreseen a possible grounding; that the Department breached its duty by failing to exercise the standard of care expected from it; that the grounding probably resulted from inadequate lighting of the passage; that the cost of removing the danger by providing a sector light was not unreasonable. Defendant countered that there is a presumption of fault when a moveable object collides with a stationary one and that plaintiff has not explained why the ship grounded. Further, defendant claims that the island was charted, and visible on radar; that there were no currents strong enough to ground the vessel; that the tide was ebbing; that visibility was good; that the lights should have been easily located and identified; and that many other ships had passed through. The Crown denies having created a menace to navigation, claiming that naviga tors must take waterways as they find them, that modern ships are equipped with the necessary navigational equipment, and that the sole cause of grounding was the negligence of those in control of the ship, more specifically, the pilot.
Held, the action is dismissed. The navigators were never misled by a navigational aid. While entitled to rely on all such aids in place and duly published, plaintiff was not entitled to look for aids that were not there, and which it knew were not there. Plaintiff has not established negligence; the mere sugges tion that an extra light might have prevented the accident is not enough. The ship was not ambushed by a man-made danger. She travelled a charted waterway and her pilot, aware of navigational difficulties, voluntarily exposed himself to an exer cise for which he was trained. Nor is plaintiff exempt from liability due to the pilot's negligence. The role of the pilot is to provide local knowledge about areas foreign to the ship's master. He does not relieve the master of responsibility.
Nord-Deutsche v. The Queen [1969] 1 Ex.C.R. 117; varied [1971] S.C.R. 849, distinguished. Hendricks v. The Queen [1970] S.C.R. 237 and Thompson v. North Eastern Railway Company [1862] 2 B. & S. 106, applied. Work- ington Harbour & Dock Board v. Towerfield (Owners) [1951] A.C. 112 and Owners of S.S. "Alexander Shuk- off'v. S.S. "Gothland" [1921] A.C. 216, discussed.
ACTION. COUNSEL:
P. D. Lowry for plaintiff.
P. Troop, Q.C., for defendant.
SOLICITORS:
Macrae, Montgomery, Spring & Cunning- ham, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
DUBÉ J.: This is an action against the Crown to recover damages sustained by the vessel Irish Stardust (hereinafter "the vessel") when she grounded while passing through the traffic separa tion scheme at Haddington Island in Broughton Strait on the west coast of British Columbia on the 24th day of January, 1973 at approximately 23:30 during a voyage from Kitimat to Port Mellon. The plaintiff, owner of the vessel, claims the grounding was caused by the negligence of the servants of the Crown, namely officials of the Department of Transport, in implementing and recommending the use of a traffic separation scheme which was dan gerous and unsafe for navigation. The defendant denies the recommended scheme was dangerous and unsafe and alleges the grounding of the vessel was caused solely by the negligence of the plain tiff, its officers and more specifically the pilot, Captain Leslie Arthur David Jones who was pilot ing the vessel through the Strait at the time of grounding.
The Irish Stardust was built in Cork, Ireland, in 1970 and was designed and equipped specifically to carry pulp and lumber products from British Columbia ports to Japan and Europe, with a
length overall of 564 feet and a gross tonnage of 19,191 tons. She is an open hold bulk carrier with side tanks and double bottom cargo being carried in four main holds plus one similar cargo hold forward. She is fitted with a wide transom stern, a horn rudder, an open stern frame and a Kamewa controllable pitch propeller which is controlled by combinator settings on the bridge. It is admitted that she is an excellent conventional, modern type vessel possessing good steering and control charac teristics. On the morning of January 24, 1973 when she sailed from Kitimat at 07:30 bound for Port Mellon, B.C., a voyage of twenty-eight hours via the inside passage (between Vancouver Island and the West Coast) her draft forward was 23'9" and aft 27'6" with a mean draft of 25'7 1 / 2 " and her cruising speed was about sixteen knots.
On sailing, the vessel's personnel consisted of her master, Captain James Caird, fifteen officers, a crew of sixteen and two pilots to have the conduct of the vessel through compulsory pilotage waters: Captain Arthur Joseph Warren and Cap tain Jones. It is also admitted that at approximate ly 23:30 on the night of grounding Captain Jones was the pilot on duty, third officer Patrick McNulty was on the bridge, quartermaster John Spack was steering and a cadet was also on watch. The vessel came in contact with land on the west side of Haddington Island while passing through the traffic separation scheme in compulsory pilot- age waters: the point of grounding is not in dispute.
It is also agreed that by a notice to mariners dated February 26, 1971, the Department of Transport published the implementation of the traffic separation scheme at Haddington Island which became effective on May 1, 1971. The implementation of the traffic separation scheme involved three officers of the Department of Transport, at Victoria, Vancouver and Ottawa. One of plaintiff's main contentions is that because of the insufficiency of information flowing from the British Columbia offices to the head office in Ottawa one very important navigational aid, the proposed Hyde Creek sector light on Vancouver
Island, was not installed before the implementa tion date, and indeed before the grounding and thus caused or at least contributed to the grounding.
The plaintiff admitted before the trial that all the aids to navigation shown on Canadian Hydro- graphic Service Chart 3569, in the Canadian List of Lights and in the British Columbia Pilot, Volume 1, all corrected to January 24, 1973 were in their charted position and functioning as described thereon at the time of grounding with the exception of Haddington Island South Light, the exact location of which was agreed to during the trial.
I will not attempt the impossible task of con densing in a few pages all the evidence adduced and the arguments advanced during the four-week trial. I will rather outline the case as viewed by each side then draw my own legal conclusions based on relevant factual and expert evidence.
The case for the plaintiff goes back to March 15, 1968 when Captain Cyril Edward Burrill, the Regional Superintendent of Nautical Services in Vancouver was appointed by letter from the Department of Transport to coordinate the de velopment of traffic separation schemes on the West Coast by meeting with members of the marine industry having the requisite local knowl edge and reporting to Ottawa. Captain Burrill did form and chair a special committee called "Safe Fishing and Navigation in British Columbia Coastal Waters" which met and discussed the proposed scheme. The proposed scheme recom mended that vessels coming down (in the easterly direction toward Vancouver) Broughton Strait would travel south of Haddington Island and that vessels going up (in the westerly direction toward Kitimat) would travel north of the Island, thus creating a two-lane sea highway.
During the summer of 1970, the British Columbia coast pilots met and objected to the scheme on the ground that it would be dangerous, mainly because ships going down the southern passage have to re-enter into the oncoming traffic east of the island. Captain R. W. Burnett, a dynamic spokesman for the pilots, spearheaded the objections to the implementation of the scheme before the Burrill Committee and also at the trial. Captain Burnett presented a submission to the Burrill Committee which included an alternative. The alternative was to install several navigational aids to make the scheme less dangerous, including a sector light at Hyde Creek on the Vancouver Island shore. A sector light projects three colours to oncoming ships, a central white beam to indi cate the correct approach with a green beam on one side to indicate that a vessel is too far to starboard and a red beam to show the vessel is too much to port.
The second alternative favoured by Captain Burnett on behalf of the pilots reads as follows':
ALTERNATIVE # 2
If this scheme is to be adopted then it is my opinion that it should be marked no less plainly than the Helmecken (sic) Is. scheme. The establishment of the following Aids would, I believe, achieve the desired results:
(1) The proposed lighted buoy off Neill Rk.
(2) The proposed movement N. Eastward of Neill Ledge Buoy.
(3) The proposed lighted beacon on the south side of Hadding- ton Is.
(4) The establishment of a lighted range in position 50 35 00 N. 127 01 17 W. and centred on a range of 161 degrees 15 min., showing, narrow red sectors on each side of mid channel (if a sectored (sic) type lantern is used).
(5) The establishment of a range lantern south of Yellow Bluff in position 50 35 11 N.-126 27 00 W. on a dolphin and showing Red from 093 to 098, White from 098 to 104 and Red from 104 to 119. This surmounted by a Flashing White light showing Red from 241 to 299.
(6) The establishment of a lighted beacon to mark the shoal south of Gordon Bluff on a dolphin in position 50 34 24 N.- 126 54 45 W.
' Exhibit P-1, tab #6.
It is my personal opinion that separation is not the answer in this particular location but rather that shipping should be encouraged to maintain a straight course from Gordon Bluff past Yellow Bluff and through Haddington Passage by marking the Charts clearly with colored lines along the boundaries of the channel and along the centre line and arranging Aids that will make the navigation and pilotage of this channel as simple and as straight forward as possible.
The proposed Hyde Creek sector light is the one referred to undèr (4). It should be noted at this point that a chart of the Helmcken Island scheme referred to in Captain Burnett's second alternative was filed at the trial and includes two sector lights. It is also opportune to underline at this time the fact that the Department of Transport did eventu ally install such a sector light, but some two years after the grounding. And it should be pointed out that there was no evidence that the pilots' alterna tive proposal was ever sent to Ottawa. However the majority of the interested parties attending Captain Burrill's Committee favoured the Cap tain's traffic separation scheme as implemented.
On February 26, 1971, the Department of Transport announced the implementation of the Haddington Island traffic separation scheme in the weekly edition No. 9 of Canadian Notices to Mariners. The relevant section 290(P) 2 should be set out in toto:
290. (P) BRITISH COLUMBIA—BROUGHTON STRAIT—HAD- DINGTON ISLAND—Traffic Separation Scheme.
1. The scheme is recommended for use by all vessels. Sepa ration of traffic is achieved by using Haddington Island to divide eastbound from westbound traffic and by separation zones to the east and northwest of Haddington Island, east bound traffic passing south of Haddington Island and west bound traffic passing north of Haddington Island using Haddington Passage. No inshore traffic zones are provided.
The Haddington Island traffic separation scheme consists of the following three parts:
Part I To the northwest of Haddington Island, a separa tion zone one cable in width centred on position:
(i) 50°36'18"N., 127°01'24"W., and
(ii) 50°37'07"N., 127°02'42"W.
Part II Separation of traffic by Haddington Island.
2 Exhibit P-1, tab #9.
Part 11I To the east of Haddington Island, a separation zone one cable in width centred on positions:
(i) 50°36'00"N., 127°00'55" W., and
(ii) 50°35'47"N., 127°00'00"W.
2. Direction of Traffic Flow
It is recommended that eastbound traffic pass to the south of the separation zones and Haddington Island and that west bound traffic pass to the north of the separation zones and Haddington Island using Haddington Passage.
It is also recommended that mariners use the radiotelephone to provide information of their presence and warning to other ships.
CAUTION
In some instances large vessels and tugs with long tows proceeding eastbound may have difficulty in making the turn to starboard to pass south of Haddington Island. Under such circumstances the master may decide to proceed against the traffic flow through Haddington Passage but should make every effort to warn other traffic in the area.
3. Effective Date
The scheme is to come into effect on 1st May 1971, at 1200
hrs. (PST).
4. Chart and Publications
Large scale charts of the area will be amended so as to show full details of the scheme.
Smaller scale charts will be amended to warn mariners of the existence of the scheme. Full details of the scheme will also be given in the Sailing Directions.
5. Traffic Separation Diagram
The accompanying diagram illustrates the above Traffic
Separation Scheme.*
(DOT)(8400-10)
Charts (Which will be affected)-3561-3569-3596.
On September 1, 1972, Captain Jones was, after successful examinations before a Board of Exam iners which included a Department of Transport official, issued a probationary pilot's licence authorizing him to pilot deep sea ships up to 25,000 gross tons anywhere in the compulsory pilotage waters of British Columbia. When the Haddington Island scheme was published before May 1971 Captain Jones updated his personal chart of the area and his own pilot course book. The relevant extract from his course book 3 reads as follows:
* [The diagram is omitted—Ed.] 3 Exhibit P-9.
DIST
OFF TRUE MAG DIST
Clark Pt. 1M 194 169 224.5 miles
3.3
Dugout Rk. 2.7M 150 155 228.1 miles
7.8
Egg Is. 1.6M 164 139 235.9 miles
5.9
Cape Caution 1.9M 164 139 241.8 miles
11.5
Pine Is. 8 1 / 2 C 134 114 253.3 miles
8.3
Scarlett Pt. 1-2M 120 096 261.6 miles
3.3
Crane Is. 5C 128 104 264.9 miles
3.3
Doyle Is. 7C 137 113 268.2 miles
3.1
Masterman Is. 1.6M 137 113 271.3 miles
2.9
Round Is. 1.3M 137 113 274.2 miles
9.7
Pulteney Pt. 51C 100 076 283.9 miles
4.4
Neill Rk. 2C 129 105 288.3 miles
.8
Neill Ledge IC 151 127 289.1 miles
162 .5
Haddington Is. 2C 103 079 289.6 miles
2.7
[My underlining.]
When the vessel approached Broughton Strait the night of grounding, Captain Jones' natural inclinations were to take the traditional route north of the island, but he decided to follow the separation scheme for two reasons: firstly, being a new pilot he felt he should comply with the recom mendation of the Department of Transport and secondly he was advised by radio of an oncoming ship, the Island Princess, a British Columbia ferry, heading for Alert Bay.
In his evidence Captain Jones stated he steered the courses in his book "because this is the only thing I had to go on. I knew these courses were good if I was in the position". He said he approached Pulteney Point "on a course of about 137° open to pass off Pulteney Point 5' cables". When he reached Pulteney Point, "I checked with radar, I was about a cable south of my position". He had intended on rounding the Point at 100° but being south of his intended position he steered
95° "for a short time" then altered back to 100°. At the time, "looking down Broughton Strait he could see the lights from the buoys of Neill Rock, Neill Ledge and north of Haddington Island, all to starboard".
Captain Jones stated that the third mate was standing alongside the helmsman by the engine combinator and checking the man's steering. The cadet was outside on lookout. Captain Jones was on the starboard wing watching Neill Rock buoy. "I wanted to be as close as possible to this buoy so I was watching this buoy all the way down". He said the vessel came as close as a cable to a cable and a half from the buoy. Just before she came abeam of it he ordered the quarter master "to bring her around to 129°". "The only thing I could see then is the Neill Ledge Buoy flashing ... Everything on the portside of Haddington Island was black, Vancouver Island was black". [My underlining.]
He took a quick look at the radar and saw that his position was "all right". In order not to lose his night vision, not to be mesmerized by the radar, he then opted to navigate visually. Half way down to Neill Ledge he detected that the vessel was start ing to set. "I was not getting close to the buoy so I altered course to 140°. I watched it for a minute, still wasn't pulling us back towards this buoy so I altered to 150°. The ship was still setting sideways, still not closing to the buoy". The transcript 4 of the evidence of Captain Jones in his examination in chief best describes his interpretation of the last moments before grounding:
4 Proceedings at trial, Volume II, 146-147.
Q. What did you do?
A. I told him to bring her around to 160. At this time, I was getting very worried because I couldn't see anything, I knew we had set quite a ways, so I walked through the bridge out to the port wing of the ship.
Q. When you say out to the port wing, you mean outside?
A. Right, right outside. When I got outside there, the wake of the ship lit up the shore and the vessel touched. I yelled to the third mate to stop the engine, which he did.
Q. You say the vessel touched, how did it feel to you,
standing out there on the wing of the bridge?
A. She just kind of lurched against it and off, that was all.
Q. What did the ship's head do?
A. The head swung to starboard, stern was swinging to port, but she didn't lose her headway, she still continued headway.
Plaintiff claims: (1) that the Department of Transport by implementing a traffic separation scheme at Haddington Island owed a duty to the owners of vessels navigating Broughton Strait; (2) that having been told by pilots that the passage was dangerous and that the navigational aids were inadequate, the Department of Transport should have reasonably foreseen a possible grounding; (3) that the Department of Transport breached its duty by failing to exercise the standard of care expected from it; (4) that the grounding was a probable result of the passage being inadequately lit; and (5) that the cost of removing the danger by providing a sector light at Hyde Creek was not unreasonable.
On the other hand, defendant argues that "there is a presumption of fault when a moveable object collides with a stationary one" and that plaintiff has never explained why the vessel struck the rocks. It states that the island is on the chart and visible on radar. It claims that there were no currents strong enough to carry the vessel on to the island; that the tide was ebbing, only at one knot, and against the ship; that the visibility was good and clear (more than ten miles); that the various navigational lights should have been easily located and identified from the chart and the pilot's course book. It points out that many other ships have gone through, before the navigational aids were put in and after, without grounding.
The Crown further alleges that it has not creat ed any menace to navigation; that navigators must take waterways as they find them; that modern ships, including the Irish Stardust, are fully equipped with the necessary navigational instru ments, such as gyro compass, radar, echo sounders, along with charts, List of Lights, British Columbia Pilot, Canadian Tide and Current Tables and that therefore the sole cause of the grounding must have been the failure of those in charge, the master of the ship, his officers and crew on duty, and the pilot, to so navigate the vessel as to ensure she was on a safe course.
Whereas the plaintiff adduced evidence to show that the traffic scheme was dangerous, the defend ant brought forth testimony to establish that the scheme was recommendable; but no one said that the southern passage was impassable and the scheme impossible. Obviously the passage is made easier at night with the assistance of a sector light at Hyde Creek and one was so installed some two years after the grounding.
In the absence of heavy winds, or swift currents, or tides strong enough to carry the vessel off its projected course on to the island, and the evidence is crystal clear that no such factors were present, then the best explanation as to why the Irish Stardust grounded on the shores of Haddington Island is the one demonstrated by Dr. Corlett from his expert analysis of the course recorder of the vessel: the ship was not on the course that Captain Jones assumed she was.
Dr. E. C. B. Corlett proved to be a competent and impressive witness. A graduate in engineering from Oxford and a doctor of philosophy in naval architecture from the University of Durham, he is presently managing director of Burness, Corlett and Partners Limited, vice-president of the Royal Institute of Naval Architects and marine consult ant for various governments and shipping firms throughout the world. He has given expert evi dence in many high courts, including the British Admiralty Court, the United States Federal Court
and the former Exchequer Court of Canada. He considered the course or heading recorder trace of the Irish Stardust for the relevant period before grounding, made allocations for a one degree misa lignment of the recording pen and for a one degree error on the gyro compass and established the following probable course for the vessel which takes her directly to the agreed point of grounding. His preferred interpretation appears at page 55, volume XII of the proceedings:
A. My interpretation of the course recorder is that the ship made an approach to Pulteney Point on a course rather less than 137 although before she reached Pulteney Point, she was on about 137 according to the course recorder. Might I have my report back please.
She then made a very easy turn around Pulteney Point using little helm as shown in my track plots, the curve so slow that it must be a little helm irrespective of the calculations one makes.
She straightened out from that turn for one or two minutes according to the course recorder on about 097.5 for some purpose and then, having fulfulled (sic) that purpose presumably, she altered on to her base course down Broughton Strait. That base course was achieved cleanly and was steered very cleanly with little variation right down Broughton Strait for approximately twelve minutes and was 092.5 true.
THE COURT: What degree?
A. 092.5 degrees, my lord, true. When she was approximate ly abreast off the Neill Rock buoy, but some four and a half cables north of it, the track shown by the course recorder shows her initiating a turn to starboard.
THE COURT: That's four and a half cables north of—
A. Neill Rock buoy.
THE COURT: Neill Rock buoy.
A. She initiated her turn to starboard. This turn was also easy but not nearly as easy as the one around Pulteney Point and I am of the opinion that whereas only one or two degrees of helm were used around Pulteney Point, probably something between five and ten degrees was used—
THE COURT: By an easy turn, you mean a rather wide turn?
A. A gentle turn, my lord, yes. Somewhere between five and ten degrees or as has been suggested to me that I said yesterday, between 6 and 10 degrees. Somewhere be tween five and ten —1 consider embraces 6 and 10.
I can give the precise figures if they are wanted. The ship then steadied again on a course which the course recorder shows to be 125 degrees true. At this point, the track plot shows her pointing straight down Haddington Passage. She continued on this course of 125 degrees for about a minute, which took her somewhere around two and a half cables along her track on a straight line. She then started another turn, as shown by the course recorder, to star board. This turn was of the same nature as the first part of the turn in the vicinity of Haddington Island but slightly slacker caused by perhaps one or two degrees less helm than the first part.
This turn continued until the track plot contacts the northwest corner of the island. Thereafter, the track plot continues to starboard, but of course, I must point out that, as the speed of the ship is now totally indeterminate, having contacted the ground and the engines having been, in fact, by now altered after the grounding, it is correct for direction against time but not for position after the grounding.
However, it is clear the ship did continue after the grounding for some time turning to starboard, but at what speed I, of course, cannot say.
Thus the course recorder places the vessel much to the north of the course envisaged by Captain Jones. His course book calls for the vessel to be only two cables off Neill Rock Buoy. In his evi dence he said she was one to one and a half cable off the buoy, whereas the recorder places her at four and a half cables. That location further north is corroborated by Captain Albert Stanley Fike of the Island Princess, the oncoming ferry, who saw the Irish Stardust north of Haddington Island before it disappeared behind it. It also explains why Captain Jones could not see the Haddington south light before grounding. Moreover the damage to the hull of the ship was on the port side; this would occur as she sideswept the shore rocks of the island in her starboard turn. In any event, Captain Jones most certainly did not intentionally follow a course that would put his vessel on the rocks: I conclude that he was off his course.
If Captain Jones apprehended any difficulty he still had the option to take the northern passage
and to advise the oncoming Island Princess of his intention. The scheme was merely recommended and not compulsory. The notice to mariners (supra) announcing the implementation of the scheme included a "caution" to the effect that large vessels may have difficulty in making the turn to starboard to pass south of Haddington Island. "Under such circumstances the master may decide to proceed against the traffic flow through Haddington Passage but should make every effort to warn other traffic in the area".
There is also evidence from a letter (filed as part of plaintiff's case) dated April 3, 1973 from Cap tain Morrison, Superintendent, Marine Crews and Navigation Safety, Department of Transport, to C. K. Kennedy, Assistant Counsel, that the Hadding- ton Island separation scheme had perhaps received international approval. I refer to the second para graph of the letter: 5
Under the IMCO régime, IMCO is recognized as the only body responsible for establishing and recommending measures on an international level concerning routing and areas to be avoided by ships or certain classes of ships. The IMCO princi ples further provide that a government proposing a routing system, any part of which lies within international waters, should consult with IMCO, etc. In collaboration with IMCO, the International Hydrographic Bureau recommended the marking of routing elements on charts by standardized sym bols. These are specified on page 6 of the attached publication. Notices to Mariners No. 22 contained in the annual edition of Canadian Notices to Mariners reflects the provisions of IMCO and IHO with respect to voluntary routing systems. The traffic separation scheme at Haddington Island was designed and marked on the appropriate charts in accordance with the principles and recommendations of IMCO and IHO. The sepa ration of traffic by natural obstacles such as Haddington Island is a method of separating traffic recognized by IMCO in paragraph 1(b) on page 8 of their publication and illustrated by figure 2 on page 9. In the case of Haddington Island, a separation zone was introduced at each approach to the island so as to complete the separation of traffic in the immediate approaches.
I hasten to add that the Crown did not call Captain Morrison or anyone else to testify to the effect that the scheme had in fact received IMCO approval. Counsel for plaintiff made the point that he was not bound by every statement in the above
5 Exhibit P-1, tab #12.
letter, although he had filed it along with many other documents as part of Exhibit P-1.
Under section 3 of the Crown Liability Act 6 , the Crown is liable in tort for the damages for which it would be liable as a private person in respect of a tort committed by its servants. Plaintiff claims that officials of the Department of Transport com mitted a tort by implementing and recommending a scheme which was dangerous for navigation and dangerous mostly because of the insufficiency of navigational aids, in particular the failure to install a sector light at Hyde Creek on the shore of Vancouver Island.
The duty of the Crown with reference to naviga tional aids is discussed in the Hermes decision of the Exchequer Court' which was varied by the Supreme Court of Canada 8 . In 1965, the Hermes with pilot aboard was proceeding down the St. Lawrence River and collided with an upbound ship because a range light had been displaced by the ice and not replaced by officials of the Department of Transport.
Noël J. held that the Crown was liable in tort under section 3 of the Crown Liability Act because Department of Transport officials failed in their obligation to take the action necessary to ensure that the pier had not been displaced by ice or to give warning of the misalignment of the lights. He said this at pages 171 and 172:
I believe it can be said that navigators of all countries are welcome to use our navigational rivers and lakes and although they do benefit from such a use the commercial operations of all navigators, Canadian and foreign, benefit also the com merce and industry of Canada. Without the links created by canals, channels and railways, it is, I believe, doubtful that Canada as a nation would have known the industrial and commercial expansion it has now attained. We may, therefore, take it that all ships plying our waterways are invited and encouraged to do so and are entitled to rely on the means supplied to navigate such waters in safety and I would think that the same would apply to our Canadian ships navigating in foreign waters who also should be entitled to rely on the means given to navigate safely in such waters. If this is the situation, the Crown would owe an unqualified duty to see that such means are fulfilling their intended purpose to those using our
6 S.C. 1952-53, c. 30.
Nord-Deutsche v. The Queen [1969] 1 Ex.C.R. 117.
8 [1971] S.C.R. 849.
waterways including the channel which leads them to and from the chief port of this country, Montreal.
I am of the view that there is a fundamental distinction between the facts of the Hermes case and the case at bar. The Hermes was misled by a displaced light which caused her to sheer and collide. There was a duty placed upon responsible officials to relocate that light which they did not carry out. The navigators of the Irish Stardust were never misled by a navigational aid: it is admitted that the aids were in place and their locations duly published on notices, charts and lists of lights which the pilot had, or should have had, in his possession, or present in his mind. I do agree with Noël J. that "all ships plying our water ways ... are entitled to rely on the means supplied to navigate such waters in safety", and the Irish Stardust was entitled to rely on all the navigation al aids in place and duly published. If any of these aids as published had been removed, or displaced, or malfunctioning, one would have looked for unfulfilled responsibilities. But such was not the case.
In my view the navigators of the Irish Stardust were not entitled to look for navigational aids that were not there and knew were not there. Like modern highways, waterways are improved and made safer with time as additional resources are made available and more and better aids are pro vided, but ships navigating down the difficult pas sages of today cannot rely on the improvements of tomorrow.
In Hendricks v. The Queen', plaintiff's motor boat swept over a waterfall and his wife drowned. The Supreme Court of Canada held the Crown liable because its servants failed to replace warn ing signs. The Chief Justice said this at page 239:
In my opinion, there was no adequate reason or excuse for the failure on the part of the employees of the respondent to replace the warning sign reading "Danger—Falls Ahead", this failure was negligent and was an effective cause of the disaster that occurred.
9 [1970] S.C.R. 237.
The plaintiff succeeded because he proved negli gence on the part of the servants and successfully established that the negligence caused the acci dent. In my opinion these two ingredients are missing in the unfortunate grounding of the Irish Stardust. The burden of proof is on the plaintiff to establish the cause of the accident and merely suggesting that an additional light might have prevented the accident is not sufficient.
In Thompson v. North Eastern Railway Company 10 , the pilot knew about the danger lying ahead and yet his knowledge was held not to be a bar to his recovery of the claim. Cockburn C.J. commented as follows at pages 114 and 115:
Clayards v. Dethwick is a direct authority that where danger has been created by the wrongful or negligent act of another, if a man, in the performance of a lawful act, voluntarily exposes himself to that danger, he is not precluded from recovering for injury resulting from it, unless the circumstances are such that the jury are of opinion that the exposing himself to that danger was a want of common or ordinary prudence on his part.
The Irish Stardust was not ambushed by a man-made danger, she travelled down a charted waterway. Her pilot's knowledge of the navigation al difficulties lying ahead merely shows that he voluntarily exposed himself, not to an unsurmount- able danger, but to an exercise for which he was trained and properly equipped.
Over the objection of counsel for the defendant, learned counsel for the plaintiff raised in his argu ment the issue of the non-liability of plaintiff for the negligence of the pilot; the allegation had not been made in the statement of claim.
Section 31 of the Pilotage Act" makes it quite clear that the employment of a pilot does not exempt the owner from liability:
31. Nothing in this Act exempts the owner or master of any ship from liability for any damage or loss occasioned by his ship to any person or property on the ground that
(a) the ship was under the conduct of a licensed pilot; or
(b) the damage or loss was occasioned by the fault, neglect, want of skill or wilful and wrongful act of a licensed pilot.
10 [1862] 2 B. & S. 106. " S.C. 1970-71-72, c. 52.
Learned counsel suggested that the word exempt should be interpreted in the same way as its coun terpart in section 15 of the Pilotage Act, 1913 (2 & 3 Geo. 5, c. 31):
15.—(1) Notwithstanding anything in any public or local Act, the owner or master of a vessel navigating under circum stances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory. [My underlining.]
In Workington Harbour & Dock Board v. Tow- erfield (Owners) 12 , the House of Lords held that the wording of said section 15 was not happy. Lord Normand said at page 145:
The wording of s. 15 is not happy. The word "answerable" is not the cause of the difficulty, and it is merely the equivalent of "responsible". But the words "answerable for any loss or damage caused by the vessel", though apt when the claim is against the owner of a ship, are incapable of applying when the claim is by the owner for damage done to his ship. The words "answerable for any loss or damage caused . .. by any fault of the navigation of the vessel" are ill chosen and clumsy, but they are capable of applying to the shipowner's claim.
Prior to the Pilotage Act, the Master voluntarily employed the pilot and the owner was liable for his negligence. The first paragraph of chapter 10, "Liability for Negligence of Pilot", Marsden, Col lision at Sea, volume 4, page 217, reads as follows:
A pilot whom the owner or master of a ship voluntarily employs to navigate the ship being the servant for that purpose of the owner, the owner is answerable for a collision caused by his fault or negligence, and the ship is liable in Admiralty; and it is provided by the Pilotage Act, 1913, that where pilotage is compulsory the owner shall also be answerable.
Section 31 of the Pilotage Act does not take away the owner's liability but makes it statutory.
The House of Lords' decision in Workington Harbour & Dock Board v. Towerfield (Owners) (supra) establishes that the word "answerable" in section 15 of the Pilotage Act, 1913, means "responsible" and the liability of the owner exists where the damage is sustained by his own ship as well as where the damage is done to other property.
12 [1951] A.C. 112.
At first blush it does appear to be harsh for owners of a ship to be liable for damage occurring to their ship while she is being navigated by a pilot who has been imposed upon them and who is not one of their servants. But the role of the pilot is to provide local knowledge about areas foreign to the master of the ship; he does not relieve the master of his responsibilities. The officers and crew on the bridge are there for a purpose, to be on guard, alert and ready to provide quick assistance. That rule is well illustrated in a House of Lords' deci sion, Owners of S.S. "Alexander Shukoff' v. S.S. "Gothland" 13 at page 223:
The second is that this rule, which is intended as a measure of security, does not mean, and must not be taken to mean, that a pilot when once he is in charge of a vessel is so circumstanced that the master and crew owe him no duty to inform him of circumstances which, whether he has noticed them himself or not, are material for him to know in directing the navigation of the vessel. The master and crew are not mere passengers when a pilot is on board by compulsion of law. The pilot is entitled to their assistance, and to apply the defence of compulsory pilot- age to a case where the accident would have been averted if such assistance had been given, though in fact it was not, would defeat the policy which has created the defence, and so far from increasing the safety of navigation would actually increase its risks.
And Lord Birkenhead goes on at page 224 to quote Lord Alverstone:
In The Tactician [1907] P. 244, 250 Lord Alverstone C.J. stated the rule in these terms: "The cardinal principle to be borne in mind in these pilotage cases ... is that the pilot is in sole charge of the ship ..." and he expressed his agreement "with the opinions of the very learned judges, from Dr. Lush- ington downwards ... as to the danger of a divided command, and the danger of interference with the conduct of the pilot; and that if anything of that kind amounts to an interference or a divided command serious risk is run of the ship losing the benefit of the compulsory pilotage. ... But side by side with that principle is the other principle that the pilot is entitled to the fullest assistance of a competent master and crew, of a competent look-out, and a well-found ship."
I am of the view therefore that plaintiff is not entitled to the relief sought in the statement of claim. The action is dismissed. Counsel for the defendant requested that argument on costs be deferred until after judgment. I invite submissions in writing on that matter.
13 [1921] 1 A.C. 216.
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