A-129-77
The Ship Irving Sea Lion and her owners and the
Ship Irving Maple and her owners (Appellants)
v.
Rail & Water Terminal (Quebec) Inc. (Respond-
ent)
Court of Appeal, Jackett C.J., Le Dain J. and
Hyde D.J.—Montreal, November, 16; Ottawa,
December 5, 1977.
Maritime law — Ship collision — Whether contributory
negligence by respondent — Practice — Parties — Damaged
vessel's owners not party to action — No evidence submitted re
charterer's title but sufficiently established from record and
transcript — Appeal dismissed — Federal Court Rule
1715(2).
This appeal is from a Trial Division judgment awarding the
respondent damages in its action. The action arose out of a
collision in the St. Lawrence: the barge Irving Sea lion struck
the Mont St-Martin, a ship riding at anchor. The pilot in
charge of the navigating tug could not see where he was going
because the barge obstructed his view. The appellant argued
that the respondent was contributorily negligent by not anchor
ing outside the channel, as was possible. It further submitted
that the judgment should be overturned because all the parties
were not before the Court and because no written or oral
evidence had been introduced to establish the charterer's title.
Held, the appeal is dismissed. A reading of part of the record
with the transcript establishes on the balance of probability
that the respondent was in possession of the anchored vessel,
sufficient to establish its right to recovery. The argument—
based on Rule 1715(2)—that judgment should be overturned
because the anchored vessel's owner was not a party to the
action, is rejected. A person in possession of a vessel has a cause
of action independent of any owner. Finally, the balance of
probability is that the anchored vessel's position had been
established and that adequate precautions to make its presence
obvious had been taken sufficiently in advance of the collision
to make the subsequent negligent navigation of the tug the sole
effective cause of the collision.
APPEAL.
COUNSEL:
C. Tremblay, Q.C., for appellants.
J. Desgagniers for respondent.
SOLICITORS:
Tremblay, Pinsonnault, Pothier, Morisset &
Associates, Quebec, for appellants.
Jacques Desgagniers, Montreal, for respond
ent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division whereby the respondent
was awarded $165,000, with interest at 7% for a
period of fifteen months commencing with October
20, 1975 (as agreed by the parties) and costs.
The action brought by the respondent against
the appellants in the Trial Division was for dam
ages arising out of a collision that occurred when a
vessel, Mont St-Martin, which was anchored in
the St. Lawrence River, was struck by the barge
Irving Sea Lion, which was being pushed by the
tug Irving Maple.
It is common ground that the pilot in charge of
navigating the tug could not see where he was
going by reason of the fact that the barge was
obstructing his view.
The learned Trial Judge's findings of fact and
conclusions on responsibility are sufficiently
revealed by the following portion of his reasons for
judgment:
The most elementary caution requires that a navigator make
sure he has full visibility before venturing onto a waterway as
busy as the St. Lawrence River. Navigating by radar, even with
a lookout on the roof of the wheelhouse, is too risky for any
vessel, and particularly one which has to push such a large
barge as the Irving Sea Lion in a channel which is relatively
dangerous at certain spots.
Furthermore, it is the duty of every navigator, when notified
of the presence of another vessel anchored farther down the
waterway, regardless of whether it is anchored in the best
possible spot, to take all necessary steps to avoid a collision.
Not only must he plan the right manoeuvres but he must also
carry them out in time (The Arran 9 Quebec L.R. 278). If it
becomes obvious that the most elementary precautions were not
taken, and that such negligence led to a head-on collision with
the anchored ship, the Court must attribute all responsibility to
the ship which was moving. This is the case unless the vessel at
anchor did not take the necessary measures. However, by
notifying the Traffic Control Centre and switching on its
anchoring light and all the bridge lights, the Mont St-Martin
had signalled its presence in the channel sufficiently clearly to
allow other ships to pass without difficulty. Indeed, at least four
other ships, some of which were ocean-going vessels, avoided it
without any difficulty.
The Mont St-Martin was visible from two miles off and
although it was anchored in the middle and not to the south of
the channel, there was room enough to avoid it. The last
distress call by Captain Tremblay to move south neither caused
nor avoided the collision.
The second ground of appeal is set out in the
portion of Part III of the appellants' "FACTUM"
that reads as follows:
[TRANSLATION] ... we submit that the Trial Court should
have attributed at least fifty per cent of the responsibility to
plaintiff, because the ship Mont St-Martin did not take all the
precautions necessary to anchor out of the channel, although it
could certainly have done so in the circumstances in question,
as the evidence clearly revealed.
With reference to this branch of the appeal, not
withstanding the very able argument of counsel for
the appellants, I am not persuaded that the learned
Trial Judge was clearly wrong in concluding that
the real cause of the collision was the admitted
negligence of the tug in navigating without ade
quate visibility or other capacity to determine
whether the anchored vessel, of whose presence in
the channel it had been advised before commenc
ing its voyage, was in the path it was following.
Even if the anchored vessel had been negligent in
anchoring where it did or in the precautions that it
took to advise other vessels of its presence (con-
cerning which, I am inclined to the view that the
evidence is not sufficient to support the appellants'
contentions), in my view, the balance of probabili
ty on the evidence is that its position had been
established, and adequate precautions to make its
presence obvious had been taken, sufficiently in
advance of the collision to make the subsequent
negligent navigation of the tug the sole effective
cause of the collision. I would, therefore, reject this
ground of appeal.
The first ground of appeal is set out in that
portion of Part III of the appellants' "FACTUM"
that reads as follows:
[TRANSLATION] We respectfully submit that the action
should have been dismissed for the following reasons:
(a) all the parties are not before the Court, in particular the
owner of the ship;
(b) no evidence, either oral or written, was introduced
regarding the actual basis of the action, namely the status of
plaintiff, Rail and Water Terminal (Quebec) Inc., as the
charterer.
The appellants did not press the first branch of this
ground on the argument of the appeal. The conten
tion that the owner of the anchored vessel should
have been a party to the action was based on Rule
1715(2)' and the fact that the declaration
describes the respondent as the charterer of the
anchored vessel. In my view, a person in possession
of a vessel has a cause of action for loss arising
from physical damage to the vessel that is
independent of the cause of action, if any, of the
owner of the vessel for loss arising from such
damage, and it is, therefore, doubtful that Rule
1715(2) was applicable in the circumstances. In
any event, in my view, if the appellants were to
rely on Rule 1715(2), they should have done so by
a preliminary application before trial. Once the
action got to trial, Rule 1716 came into play 2 .
' Rule 1715(2) reads:
(2) Where the plaintiff in any action claims any relief to
which any other person is entitled jointly with him, all
persons so entitled shall, subject to the provisions of any Act
and, unless the Court gives leave to the contrary, be made
parties to the action and any of them who does not consent to
being joined as a plaintiff shall, subject to any order made by
the Court on an application for leave under paragraph (1), be
made a defendant.
2 Rule 1716 reads:
Rule 1716. (1) No action shall be defeated by reason of the
misjoinder or nonjoinder of any party; and the Court may in
any action determine the issues or questions in dispute so far
as they affect the rights and interests of the persons who are
parties to the action.
(2) At any stage of an action the Court may, on such
terms as it thinks just and either of its own motion or on
application,
(a) order any person who has been improperly or unneces
sarily made a party or who has for any reason ceased to be
a proper or necessary party, to cease to be a party, or
(b) order any person who ought to have been joined as a
party or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may be
effectually and completely determined and adjudicated
upon, to be added as a party,
but no person shall be added as a plaintiff without his
consent signified in writing or in such other manner as the
Court may find to be adequate in the circumstances.
(3) Where an order is made under this Rule, the statement
of claim or declaration must be amended accordingly and
must be indorsed with
(a) a reference to the order in pursuance of which the
amendment is made, and
(b) the date on which the amendment is made,
With reference to the second branch of the first
ground of appeal, it was common ground, on the
argument of the appeal, that, if the evidence
showed that the respondent was in possession of
the anchored vessel at relevant times, such evi
dence would have been sufficient to establish the
respondent's right to recover.
On this latter question, it seems clear that there
was no evidence bearing directly on the question of
possession and a motion for leave to adduce fur
ther evidence with regard thereto at the hearing of
the appeal in this Court was dismissed on the
ground that there were no "special grounds" war
ranting the exercise of this Court's powers to
receive evidence under Rule 1102 3 . The question
to be decided is, therefore, whether, notwithstand
ing the absence of direct evidence on the question
of possession, the balance of probability, on a
consideration of the whole record, is that the
respondent was in fact in possession of the
anchored vessel at relevant times.
and the amendment must be made within such period as may
be specified in the order or, if no period is so specified, within
15 days after the making of the order.
(4) Where an order is made under this Rule, it shall
contain directions as to consequential pleadings or other
proceedings; and any interested party may apply for supple
mentary directions.
See also Rule 302:
Rule 302. The following provisions apply with reference to
formal objections and failures to comply with the require
ments of these Rules:
(a) no proceeding in the Court shall be defeated by any
merely formal objection;
(b) non-compliance with any of these Rules or with any
rule of practice for the time being in force, shall not render
any proceedings void unless the Court shall so direct, but
such proceedings may be set aside either wholly or in part
as irregular, or amended, or otherwise dealt with in such
manner and upon such terms as the Court shall think fit;
(c) no application to set aside any proceeding for
irregularity shall be allowed unless made within a reason
able time, nor if the party applying has taken any fresh
step after knowledge of the irregularity;
(d) where an application is made to set aside a proceeding
for irregularity, the several objections intended to be insist
ed upon shall be stated in the notice of motion.
3 Rule 1102 reads:
Rule 1102. (1) The Court of Appeal may, in its discretion,
on special grounds, receive evidence or further evidence upon
(Continued on next page)
With reference to this latter question, it is to be
noted that, while the defence does not admit the
paragraph in the declaration that describes the
respondent as charterer of the vessel, it expressly
pleads that the collision was caused by the negli
gence of the respondent and its servants. Further
more, to avoid putting the respondent to the proof
of damages, the parties filed a document, signed
by solicitors for both parties agreeing that the
damages "subis par la demanderesse" were $165,-
000. Reading these parts of the record with the
transcript of the proceedings, my conclusion, not
without some doubt, was that, on the record, the
balance of probability is that the respondent was in
possession of the anchored vessel at relevant times.
(The parties were advised, at the time that judg
ment was reserved, that the Court had reached this
latter conclusion.)
For the above reasons, I am of opinion that the
appeal should be dismissed with costs.
* * *
LE DAIN J.: I agree.
* * *
HYDE D.J.: I agree.
(Continued from previous page)
any question of fact, such evidence to be taken by oral
examination in court, or by deposition, as the Court may
direct.
(2) In lieu of the Court receiving evidence or further
evidence under paragraph (1), it may direct a reference
under Rule 500 as though that rule and Rules 501 to 507
were incorporated in this Part as far as applicable.
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.