A-646-76
The Ship Dumurra (Appellant) (Defendant)
v.
Maritime Telegraph and Telephone Company
Limited (Respondent) (Plaintiff)
Court of Appeal, Pratte, Urie and Ryan JJ.—
Halifax, April 26, 27 and 28, 1977.
Maritime law — Liability of shipowner — Compulsory
pilotage defence — Effect of common law rules of agency —
Ship damages cable in compulsory pilotage zone — Pilotage
Act, S.C. 1970-71-72, c. 52, s. 31.
The Dumurra, while it was being conducted by a licensed
pilot in a compulsory pilotage zone, damaged the respondent's
submarine cables. The damage was exclusively attributable to
the pilot. The appellant disclaims liability and invokes the
defence of "compulsory pilotage", arguing that the defence had
not been abolished by the Pilotage Act, and that it remained
part of the common law.
Held, the appeal is dismissed. The Pilotage Act does not
contain and never contained any provision creating an excep
tion to the common law rules concerning the owners of ships. It
is obviously not to exemptions of that kind that section 31
refers. The Pilotage Act, by providing for the licensing of
Qualified pilots and for the establishment of compulsory pilot-
age areas, provides for the creation of factual situations which,
under the common law rules respecting the liability of shipown-
ers, might be invoked as exempting an owner from liability. It
is to exemptions of that kind that section 31 makes reference. If
that section is read in that light, it has clearly the effect of
abolishing the defence of compulsory pilotage. The contention
that that interpretation would only abolish actions in personam
and not actions in rem was rightly rejected by the Trial Judge.
The action in rem is a procedural device; it cannot be said that,
in such an action, the res has a liability of its own which is
governed by rules different from those governing the liability of
its owner.
APPEAL.
COUNSEL:
James E. Gould and W. Wylie Spicer for
appellant.
John M. Barker for respondent.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
appellant.
Cox, Downie, Nunn & Goodfellow, Halifax,
for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division holding that the respondent
was entitled to recover from the appellant, the ship
Dumurra, the sum of $50,206.92 as compensation
for the damage caused by that ship to two subma
rine cables placed by the respondent along the bed
of Sydney Harbour, Nova Scotia.
It was not seriously contested at the hearing of
the appeal that the respondent's submarine cables
had been damaged by the fault of a person on
board the Dumurra. Indeed, it may have been
thought that the very clear findings of facts made
by the Trial Judge on this point closed the door to
such a contestation (see the decision of the
Supreme Court of Canada in Stein v. The `Kathy
K" (1976) 62 D.L.R. (3d) 1). However, it was
argued on behalf of the appellant that the damage
suffered by the respondent was attributable to the
exclusive fault of the licensed pilot who had the
conduct of the appellant ship at the time of the
accident and that, the accident having occurred in
a compulsory pilotage area, such a fault did not
engage the liability of the appellant. In other
words, the appellant invoked the defence of "com-
pulsory pilotage" which, it was contended, con
trary to what was held by the Trial Judge, has not
been abolished by section 31 of the Pilotage Act,
S.C. 1970-71-72, c. 52.
It is common ground that the accident occurred
in a compulsory pilotage area.
Section 31 of the Pilotage Act reads as follows:
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.
Counsel for the appellant submitted that the
owner of a ship is not answerable for any loss
caused by the fault of a licensed pilot where the
employment of such a pilot is compulsory because,
at common law, a principal would not be answer
able for the damage caused by an agent whom he
had not himself appointed. According to counsel, if
the owner is exempt from liability in the case of
compulsory pilotage, that exemption derives solely
from the common law and not from any statutory
provision. It follows, in counsel's submission, that
when the owner of a ship invokes the defence of
compulsory pilotage, he does not rely on a provi
sion of the Pilotage Act exempting him from
liability, but merely invokes the common law. As a
consequence, according to counsel, section 31 has
no appplication in such a case since that section
refers only to exemptions deriving from a provision
of the Pilotage Act.
That argument is not devoid of logic. However,
we are of opinion that it was rightly rejected by
the Trial Judge. The Pilotage Act does not contain
and never contained any provision creating an
exception to the common law rules concerning the
liability of owners of ships. It is obviously not to
exemptions of that kind that section 31 refers. On
the other hand, the Pilotage Act, by providing for
the licensing of qualified pilots and for the estab
lishment of compulsory pilotage areas, provides for
the creation of factual situations which, under the
common law rules respecting the liability of ship-
owners, might be invoked as exempting an owner
from liability. In our view, it is to exemptions of
that kind that section 31 makes reference. If that
section is read in that light, it has clearly the effect
of abolishing the defence of compulsory pilotage.
Counsel for the appellant argued, however, that
even if section 31 was given that interpretation, it
would merely have the effect of abolishing the
defence in actions in personam. The same defence
would not be abolished in actions in rem. That
contention was also, in our view, rightly, rejected
by the Trial Judge, The action in rem is a proce
dural device; it cannot be said that, in such an
action, the res has a liability of its own which is
governed by rules different from those governing
the liability of its owner.
It was also argued on behalf of the appellant
that the Trial Judge should not have dismissed the
pleas founded on contributory negligence and on
the maxim volenti non fit injuria. On these two
points, counsel has failed to persuade us, that there
is an error in the decision and reasons of the Trial
Judge.
Counsel for the appellant finally argued that the
damages awarded were excessive. The amount of
those damages was calculated on the basis of the
replacement cost of the damaged cables and coun
sel contended that the Trial Judge had not given
sufficient consideration to the fact that the
damaged cables, which were not new, had had to
be replaced by new cables that had, for that
reason, a greater value than the cables that had
been damaged. In view of the decision of the Court
of Appeal of England in Harbutt's `Plasticine"
Ltd. v. Wayne Tank and Pump Co. Ltd. [ 1970] 1
Q.B. 447, we are of opinion that this argument
must also be rejected.
For these reasons, the appeal will be dismissed
with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.