T-189-81
A/S Omen (Plaintiff)
v.
The Owners and all others interested in the Ship
Duteous, The Queen, National Harbours Board,
Charterers, Managers, Operators and Agents of
the Vessel Duteous, namely, Clipper Maritime Co.
Ltd., Dancan Line Limited, Armada Shipping
APS, Armada Lines Ltd. and Protos Shipping
Ltd. (Defendants)
and
National Harbours Board and The Queen (Third
Parties)
T-160-81
St. Lawrence Stevedoring Company Limited and
Royal Insurance Company of Canada (Plaintiffs)
v.
The Owners and all other Interested Parties in the
Ship Duteous, The Queen, National Harbours
Board, Clipper Maritime Company Limited,
Dancan Limited, Armada Shipping APS and
Protos Shipping Ltd. (Defendants)
and
National Harbours Board and The Queen (Third
Parties)
T-545-81
Compagnia de Navegacion Duteous, S.A. (Plain-
tiff)
v.
The Queen and National Harbours Board
(Defendants)
INDEXED AS: A/S ORNEN V. DUTEOUS (THE)
Trial Division, Dubé J. — Montréal, February 3, 4,
5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 24, 25,
26, 27, March 4, 5, 6; Ottawa, April 25, 1986.
Maritime law — Torts — Inevitable accident — Ship
drifting down-river in heavy ice and colliding with another
ship and shore cranes — Onus on defendants to show exercised
reasonable care and skill — Action for damages allowed
against owners of ship — Possibility of debacle foreseeable —
Collisions avoidable by moving vessel to safer berth — Onus
not discharged — Duteous negligent on six counts — No
negligence on part of other defendants — Charts and Publica
tions Regulations, C.R.C., c. 1415 — Pilotage Act, S.C.
1970-71-72, c. 52, s. 31 — Berthage, Buoyage and Anchorage
Charges Tariff By-law, C.R.C., c. 1061, s. 8 — Civil Code of
Lower Canada, art. 1056C— Federal Court Rules, C.R.C., c.
663, RR. 420, 457.
Maritime law — Harbours — Action for damages — Ship
breaking moorings in heavy ice, drifting down-river and col
liding with another vessel and shore cranes — National Har
bours Board not negligent — Duty of Board to exercise
reasonable care to ensure harbour safe for navigation in light
of circumstances — No enactment requiring Board to guaran
tee safety of moored vessels — Common law duty to warn of
concealed dangers constituted by harbour facilities — Ice
conditions not concealed dangers — Conditions not created by
harbour facilities, but by nature.
This is an action for damages against the ship, the Duteous,
which broke her moorings, drifted downstream in heavy ice and
collided with another ship and then with two shore cranes.
Because of ice conditions on the St. Lawrence River the
Duteous was ordered not to leave port from day to day. On
January 11, the charterer's agent warned the Chinese captain
of the Duteous of rising water levels and that extra moorings
should be put out. The ice-breaker Pierre Radisson cleared the
jam in the harbour on January 12 up to where the Duteous was
berthed. On January 13 the ice-breaker broke the key lodge-
ment of the front, thus releasing the jam. Thereupon the whole
mass of ice and water retained upstream started to move. On
January 12, the ship broke all her mooring lines and drifted out
into the river. She was moored again with her stern against the
pier and her bow approximately 50 feet out into the river.
When the ice jam broke the next day, it caused the Duteous to
drift down-river, and to collide with another ship and the shore
cranes.
Held, the action should be allowed.
A collision is the result of inevitable accident if it could not
have been prevented by "the exercise of ordinary care, caution
and maritime skill." Where a vessel runs into another one
lawfully moored in port, the onus is on her to show that the
collision was inevitable. In order to do that, she must demon
strate that the occurrence of the accident was consistent with
the exercise on her part of reasonable care and skill, and that
she did in fact exercise reasonable care and skill. A review of
the case law indicates that this has not changed. The questions
to be answered are the foreseeability of the debacle, the advisa
bility of shifting to a safer berth before the debacle and the
suitability of the manoeuvres taken by the Master of the
Duteous during the down-river drift. The collisions could have
been avoided. The possibility of a debacle was foreseeable. The
progression of the ice front was published daily. Communica
tions from the Canadian Coast Guard broadcast sufficient
information to alert anyone prudent enough to tune in, to listen
and to act. All berths in the port of Montréal are safe under
normal conditions, but in a debacle situation, vessels tied
alongside the channel are exposed to awesome pressure of ice
and water coming down the current. However there were
several protected berths still vacant. The collision could have
been averted by moving the Duteous to a safer berth before it
was too late to do so. The onus is on the Duteous and her
owners to show that her Master kept himself informed as to ice
and water conditions, that he took all the necessary precautions
before the vessel broke her moorings, that he carried out all
manoeuvres expected of a skillful master so as to avoid colli
sions as the Duteous was drifting down-river. They did not
discharge that burden of proof.
The Duteous was negligent on six counts: 1. The Master,
knowing that he was entering an ice-bound port, failed to
properly acquaint himself with the perils and requirements of
winter navigation. 2. The Master did not keep abreast of
essential and available information about ice conditions prevail
ing in the port of Montréal and did not make proper use of the
ship's wireless equipment. 3. The Master did not foresee the
possibility of a debacle and did not seek a safer berth before the
freeze-up of the harbour. 4. The Master did not moor the
Duteous securely before the first break of the moorings. 5. The
Master was remiss in his duty in not keeping a pilot on board.
6. The Master did not exercise reasonable care and skill in the
navigation of his vessel.
The charterers are not negligent in any respect for these
collisions. As the actual navigation of the ship came under the
responsibility of the Master and the crew, any alleged negli
gence against the charterers would have to lie somewhere else.
There is no merit to the allegation that the charterers ought not
to have directed the Duteous to the port of Montréal in winter
as she was not an ice-class vessel. The charterparty permitted
the charterers to send the Duteous anywhere in the world.
Navigation in the port of Montréal is not restricted to ice-class
vessels. There is no conclusive evidence that any inherent
disability on the part of the Duteous caused the collisions. The
second allegation was that the charterers should not have
berthed the Duteous at a "dangerous berth." It was not estab
lished that section 41 is a dangerous berth. In any event section
41 was not selected by the charterers.
The charterers' agent, Protos Shipping Limited, and its
employee Mr. Megin, were not negligent. The charterers' agent
had little knowledge of navigation. The services he provided
were mostly of the variety fulfilled by a "water clerk". Neither
his employer not the charterers expected him to make any
contribution in the field of navigation. It was not established
that there was a breach of a duty to exercise care.
The ice-breaker, the Coast Guard, the Department of Trans
port and the Queen were not negligent. It is alleged that the
Harbour Master was grossly negligent in failing to shift the
Duteous to a safer berth, and in failing to properly warn the
Duteous of the imminent peril arising from the ice conditions in
the port. The charge against the Crown is that the ice-breaker
broke up the ice jam without any consideration for the security
of the Duteous. The duty of the National Harbours Board is to
exercise reasonable care to see that the harbour was safe for
navigation, but the duty must be looked at in the light of the
existing circumstances: Owners of the Steamship "Panagiotis
Th. Coumantaros" v. National Harbours Board. There is no
enactment imposing on thy Board a duty to guarantee the
safety of ships moored in harbours placed under its control:
Angeliki Compania Maritima S.A. v. BP Oil Limited. How
ever there is at common law a duty upon the Board to inform
all vessels in port of any "concealed danger which may be
constituted by harbour facilities." The ice conditions and the
ensuing debacle in the port of Montréal were not concealed
dangers as they could have been apprehended by any interested
party who kept abreast of the events. Moreover those conditions
were not constituted by the harbour facilities but created by
nature and beyond the control of the Harbour Master. The
Harbour Master's position was that the ships had all the
information available and it was up to their masters to take the
necessary precautions. Under the law, he came under no obliga
tion to do more than he did. Neither the Board nor the
Harbour Master was guilty of negligence. The payment of tolls
and wharfage does not create a contract which was breached:
The King v. Canada Steamship Lines Ltd. It was alleged that
the Coast Guard was negligent for breaking the ice jam front
while the Duteous was moored in such a precarious position.
No enactment would compel ice-breakers to keep vessels
informed of their progress on the St. Lawrence River. Those on
board the Duteous were aware of the presence of the ice-break
er, which they could see some 500 feet from their own vessel.
Any seaman who does not know the role of an ice-breaker in a
Canadian winter ought to inform himself before entering our
waters. The Canadian pilot on board the Duteous on January
12 was aware of the ice-breaker's manoeuvres, but he felt that
the Duteous was safely moored. If there was negligence on the
part of the pilot, it became the negligence of the shipowner
under section 31 of the Pilotage Act.
The plaintiffs are not contributorily negligent. There was no
conclusive evidence that the Thor I was improperly moored, nor
that the Thor I would have broken her moorings had she not
been run into by the Duteous. Finally, the Thor I was lawfully
positioned.
CASES JUDICIALLY CONSIDERED
APPLIED:
Irish Shipping Ltd. v. The Queen, [1977] 1 F.C. 485
(T.D.); Dumurra (The) v. Maritime Telegraph and Tele
phone Co. Ltd., [1977] 2 F.C. 679 (C.A.); Owners of the
Steamship "Panagiotis Th. Coumantaros" v. National
Harbours Board, [1942] S.C.R. 450; Angeliki Compania
Maritima S.A. v. BP Oil Limited, judgment dated April
16, 1973, Federal Court, Trial Division, T-4159-71, not
reported.
CONSIDERED:
The Merchant Prince (1892), 7 ASP. M.L.C. 208 (C.A.);
Bell Telephone Co. v. The Mar-Tirenno, [1974] 1 F.C.
294 (T.D.); Letnik v. Toronto (Municipality), judgment
dated March 27, 1985, Federal Court, Trial Division,
T-3456-81, not reported; "City of Peking" (The) v. Com-
pagnie des Messageries Maritimes (1888), 14 App.
Cas. 40 (P.C.); Wake-Walker v. SS. Colin W. Ltd.,
[1937] 2 D.L.R. 753 (P.C.); Blandy Brothers & Co.,
Lda. v. Nello Simoni, Ltd., [1963] 2 Lloyd's Rep. 24
(Q.B.); affirmed 393 (C.A.); Sparrows Point v. Greater
Vancouver Water District, [1951] S.C.R. 396; Nord-
Deutsche Versicherungs-Gesellschaft et al v. The Queen
et al, [1969] 1 Ex.C.R. 117; Warwick Shipping Limited
v. R., [1982] 2 F.C. 147 (T.D.); affirmed (1983), 48
N.R. 378 (F.C.A.).
REFERRED TO:
The Europa (1850), 14 Jur. 627 (Adm.); The
"Marpesia" (1872), L.R. 4 P.C. 212; Bank Shipping
Co'y v. "City of Seattle" (1903), 9 Ex.C.R. 146;
Beauchemin, Gerard v. The King, [1947] Ex.C.R. 102;
The "Velox", [1955] 1 Lloyd's Rep. 376 (Adm.); The
Barge "T-429", [1957] 1 Lloyd's Rep. 135 (Trinidad and
Tobago S.C.); Canadian National Railway Co. v. The
"Temple Inn", judgment dated February 19, 1979, Fed
eral Court, Trial Division, T-1474-76, not reported; The
King v. Hochelaga Shipping & Towing Co. Ltd., [1940]
S.C.R. 153; Grossman et al. v. The King, [1952] 1
S.C.R. 571; Workington Harbour and Dock Board v.
Towerfield (Owners), [1951] A.C. 112 (H.L.); The King
v. Canada Steamship Lines Ltd., [ 1927] S.C.R. 68.
COUNSEL:
A. S. Hyndman, Q.C. and N. J. Spillane for
plaintiff A/S Omen.
Edouard Baudry for plaintiff Royal Insur
ance Company of Canada.
Martin J. Edwards for plaintiff St. Lawrence
Stevedoring Company Limited.
Trevor H. Bishop and Robert Cypihot for
plaintiff Compagnia de Navegacion Duteous,
S.A. and for defendant ship Duteous.
W. David Angus, Q.C. and Laurent Fortier
for defendants Clipper Maritime Co. Ltd.,
Dancan Line Limited, Armada Lines Lim
ited, Armada Shipping APS and Protos Ship
ping Ltd.
J.-C. Ruelland, A. Bluteau and P. H.
Vanasse for defendant and third party Na
tional Harbours Board.
J.-C. Ruelland and A. Bluteau for defendant
and third party the Queen.
SOLICITORS:
McMaster Meighen, Montréal, for plaintiff
A/S Omen.
Lavery, O'Brien, Montréal, for plaintiff Royal
Insurance Company of Canada.
Gagnon, de Billy, Cantin, Martin, Beaudoin,
Lesage & Associés, Québec City, for plaintiff
St. Lawrence Stevedoring Company Limited.
Brisset, Bishop, Davidson & Davis, Montréal,
for plaintiff Compagnia de Navegacion Dute
ous, S.A. and for defendant ship Duteous.
Stikeman, Elliott, Montréal, for defendants
Clipper Maritime Co. Ltd., Dancan Line
Limited, Armada Lines Ltd., Armada Ship
ping APS and Protos Shipping Ltd.
Ports Canada, Montréal, for defendant and
third party National Harbours Board.
Deputy Attorney General of Canada for
defendant and third party the Queen.
The following are the reasons for judgment
rendered in English by
DUBÉ J.: The trial of these three actions in
admiralty was heard on common evidence at Mon-
tréal, Que., and lasted 21 days. Seventeen factual
witnesses and twelve experts were heard. Ten other
witnesses testified on commission evidence or at
discovery. A total of 173 documents were filed.
Eleven lawyers represented the several parties
involved either as plaintiffs, defendants or third
parties. These reasons for judgment will apply
mutatis mutandis to the three actions.
On January 13, 1981, the M.V. Duteous while
berthed at section 43 in the port of Montréal broke
her moorings, was carried downstream in heavy ice
and collided with the M.V. Thor I at section 52,
and then with two shore cranes, the property of a
stevedoring firm, located at sections 71 and 72.
The collisions caused heavy damage to the two
vessels and the cranes, resulting in these three
actions involving the owners of the M.V. Duteous
(Compagnia de Navegacion Duteous, S.A.), the
owners of the M.V. Thor I (A/S Omen), the
owners of the cranes (St. Lawrence Stevedoring
Company Limited), the insurers of the cranes
(Royal Insurance Company of Canada), the chart-
erers of the M.V. Duteous (Clipper Maritime
Company Limited, Dancan Line Limited, Armada
Shipping APS, Armada Lines Limited), the agent
of the charterers (Protos Shipping Ltd.), the Na
tional Harbours Board as responsible for the port
of Montréal, and Her Majesty the Queen for the
Department of Transport, itself responsible for the
Canadian Coast Guard and the ice-breaker Pierre
Radisson. (The ice-breaker was working in the St.
Lawrence River and the Harbour of Montréal
during the time material to these actions.)
1. The facts
The material facts leading to the collisions may
be reconstructed as follows.
The M.V. Duteous is a standard design, general
cargo, Freedom-type vessel, built in Japan in 1977,
with four holds equipped with tween-decks. Bridge
and machinery are located aft. Propulsion is by a
twelve-cylinder Pielstick diesel engine developing
5,130 b.h.p. through reduction gearing onto a
single screw. Her capacity is 8,767 gross registered
tonnes. She has an overall length of 143.41 metres,
a beam of 19.82 metres and a moulded depth of
12.35 metres. During the relevant period she was
mastered by a Chinese captain from Hong Kong
and manned by a crew from Hong Kong and
Taiwan.
The M.V. Duteous was fixed for the Montréal
voyage by a sailing telegram dated December 4,
1980, from the charterer Armada Shipping APS.
She crossed the Atlantic, stopped at Gros Cacou-
na, a lower St. Lawrence port, then at Québec
City. She arrived in the port of Montréal on
December 31, 1980, and berthed at section 102
where she took on bunkers, then moved to section
41 where she berthed at 11:00 hours on January 1,
1981. She commenced loading on January 3, 1981,
and completed loading on January 7, 1981, at
14:15 hours with a total general cargo of 8,605.643
tonnes. The drafts were: forward 26'07", aft
27'03". Departure time was set for 08:00 hours the
next day, January 8, 1981.
Because of ice conditions on the St. Lawrence
River, the vessel was ordered not to leave port
from day to day and thus remained at the same
berth awaiting clearance until January 12, 1981.
On Sunday, January 11, 1981, Mr. Thomas
Megin, Operations Manager of the Montréal
Office of Protos Shipping Limited, the charterers'
agent, received a telephone call from the Port of
Montréal's Harbour Master's office warning ships
in port of rising water levels and advising that
extra moorings should be put out. At about 17:00
hours on that day he boarded the M.V. Duteous to
relay the information. Three additional mooring
lines were put out: an additional head rope, an
extra fore head spring and an after breast line.
On January 12, 1981, at 05:20 hours, the M.V.
Duteous, surrounded by ice, broke all her mooring
lines and drifted onto section 43, a pier that juts
out diagonally into the river. She was moored
again at that new position with her stern against
the pier and her bow approximately 50 feet out
into the river. The new mooring arrangements
consisted of 13 mooring lines being run out, with
both the port and starboard anchor chains secured
to bollards on the pier with the assistance of a
mobile crane.
Early Tuesday morning, January 13, 1981, at
about 06:30 hours, the ice jam broke. All lines and
anchor chains of the M.V. Duteous parted. The
vessel drifted down-river with the ice. Her heading
was approximately 150° to 170°, with the ice
pressure against the ship from her starboard bow
toward her port quarter. The Master started the
engine and kept it at full ahead with the rudder
hard to starboard.
At 07:04 hours, the stern of the M.V. Duteous
came into contact with the port bow of the M.V.
Thor I moored at section 52, scraped along her
port side, hit a second time on her hull (opposite
the third hatch) and continued drifting astern and
partly sideways down the harbour until, at 08:07
hours, her stern collided with two of three shore
cranes, emplaced at sections 71 and 72. One of the
cranes (crane number 2) fell on the after-end of
the vessel and remained there. The other (crane
number 3) was propelled to the end of the wharf
and into the river.
At approximately 09:30 hours, the M.V. Dute
ous broke clear of the heavy ice pack. At 11:26
hours, a pilot was landed on board by helicopter.
At 17:35 hours, tugs came to her assistance. At
19:20 hours, cables and a crane bucket which hung
close to the propeller of the M.V. Duteous were
cut free. At 22:00 hours, the vessel manoeuvred
back up to section 48.
2. Ice conditions in the port of Montréal
The harbour of Montréal lies downstream from
the Lachine Rapids, open all winter. The rapids
generate millions of tonnes of ice during the freez
ing season. The ice flows through the La Prairie
Basin and the St. Mary Rapids and accumulates in
the harbour causing the local water level to rise.
Records show that from 1965 to 1969 the rise
above the normal levels exceeded 9.1 metres.
During that period, the Coast Guard was carrying
out advanced practical ice-breaking research.
Since 1969, a more effective control on the har
bour water/ice levels was established through the
use of ice-breakers which kept navigation open
from Montréal down-river, allowing the ice gener
ated by the Lachine Rapids to flow continuously
downstream. As a result, between the years 1969
and 1981, the water levels exceeded 9.1 metres
only three times: in 1971, 1976 and 1981. During
those three winters the ice-breakers were unable to
keep the channel open in January.
Extremely cold temperatures were prevalent
during those three winters. The cold weather
experienced during November and December 1980
and up to January 12, 1981, was more severe than
had occurred in any of the previous forty years.
Daily bulletins published by the Canadian Coast
Guard indicate the progression of the front of the
ice jam moving up the St. Lawrence River in
January 1981. On January 5, 1981, the front was
at Portneuf some 190 kilometres downstream from
Montréal. The next day, it advanced to Sorel,
some 65 kilometres away from Montréal. The
front remained there for a day, then moved
upstream, reached Cap Saint-Michel the next day
and the entrance of the port of Montréal on Janu-
ary 11, 1981.
According to F. E. Parkinson, a hydraulic con
sulting engineer and expert in ice, whom I found to
be learned and reliable, the front movement
through the port of Montréal in January 1981 had
a cover thickness of 5.4 metres in the reach be
tween Cap Saint-Michel and section 101. His esti
mate corresponds very closely to the 3.9 metres of
ice plus 2.4 metres of slush measured by the crew
of the ice-breaker Pierre Radisson at section 102
at 13:00 hours on January 12, 1981.
From the evidence of Mr. Parkinson, some time
around 24:00 hours on January 11, 1981, the front
would have reached section 43 and shortly thereaf
ter, the faster flowing current of St. Mary Rapids.
The incoming ice thickened the cover as a result of
two dynamics: firstly, the fairly gentle entrainment
of the loose ice under the cover already in place;
secondly, the pressure of intermittent shoves com
pressing the whole cover, thus thickening it and
pushing it down-river.
The evidence indicates that the ice-breaker
Pierre Radisson had been attacking the ice front
from Portneuf all the way to the port of Montréal
and had arrived at Cap Saint-Michel at midnight
on January 11, 1981. The ice-breaker cleared the
jam in the harbour the next day up to section 43,
hard by the M.V. Duteous, at midnight January
12, 1981. At that moment the channel was clear
downstream up to section 43. The ice-breaker
ceased operations for the night with her nose into
the front.
On the morning of January 13, 1981, the Pierre
Radisson resumed her attack. At 06:00 hours she
broke the key lodgement of the front, thus releas
ing the jam. Thereupon the whole mass of ice and
water retained upstream started to move, unleash
ing a force of awesome proportion. According to
Mr. Parkinson, "forces greater than six hundred
tonnes could have been acting on the ship" (the
M.V. Duteous).
The M.V. Duteous was not the only victim of
the debacle. The M.V. Thor I upon, or shortly
after the collision, also broke her moorings and
went adrift. Another vessel, the M.V. Bunga
Chempaka, berthed at section 55, broke her moor-
ings as well and went down-river. The M.V.
Atlantic Prosper also broke some moorings at
section 66 but clung safely to the wall. Two small
tugs, which had been called to the rescue of the
M.V. Duteous the previous day and spent the
night locked in the ice, were drifting away, out of
control. The Pierre Radisson, also swept away by
the ice, joined the ghostly procession down the
current into the sea smoke. The M.V. Duteous,
however, was the only vessel to cause damage
during her descent down-river.
3. Were the collisions inevitable?
A collision is said to be the result of an inevi
table accident if it could not have been prevented
by "the exercise of ordinary care, caution and
maritime skill".' Where a vessel runs into another
one lawfully moored in port, the onus is on her to
show that the collision was inevitable. In order to
do that, she must at least demonstrate that the
occurrence of the accident was consistent with the
exercise on her part of reasonable care and skill
and that she did in fact exercise reasonable care
and ski11. 2 In The Merchant Prince, 3 a much
stricter burden was placed on the colliding ship in
order to sustain the defence of inevitable accident.
Fry L.J. stated, at page 211:
To sustain that the defendants must do one or the other of two
things: they must either show what was the cause of the
accident, and show that the result of that cause was inevitable;
or they must show all the possible causes, one or other of which
might produce the effect, and must further show with regard to
every one of those possible causes that the result could not have
been avoided.
In Bell Telephone Co. v. The Mar- Tirenno 4 the
plaintiffs claim was for damages caused by the
anchor of the defendant ship to its underwater
telephone cables near the port of Québec. The
captain of the Mar-Tirenno was advised to double
his lines and maintain constant watch because Pier
' The Europa (1850), 14 Jur. 627 (Adm.), at p. 629. This
definition was approved by the Privy Council in The
"Marpesia" (1872), L.R. 4 P.C. 212.
2 Halsbury's Laws of England, 1983, 4th ed., vol. 43, para.
981.
3 (1892), 7 ASP. M.L.C. 208 (C.A.).
4 [1974] 1 F.C. 294 (T.D.).
18 was an extremely exposed wharf in the winter,
as the tides shift ice backwards and forwards. The
ship broke away and caused damages. Addy J. of
this Court maintained the action, finding that the
Master of the Mar-Tirenno had been negligent in
not having informed himself of the location of the
cables and in not assessing the possible alterna
tives, including tying up at another wharf. He also
found that the defendants' plea of inevitable acci
dent failed because the breaking away and the
resulting damage were clearly foreseeable. There
was a failure to observe and to carry out any
preventive action. He said, at page 300:
Where a person has actual dominion and control over an
object or has a legal duty to control it and that object goes out
of control and causes damage, then, it is obviously up to the
person in control to explain by positive evidence the reason why
the object went out of control or, at least, to establish by
positive evidence that it was not due to any act or omission on
his part or on the part of any other person whose actions were
under his control.
In Letnik v. Toronto (Municipality), 5 Addy J.
confirmed his previous statement and added, at
pages 32-33:
Furthermore the burden of proof on the part of a ship which
runs into another when moored or anchored in conditions of
good visibility and fair weather is a very onerous one.
Of course, the conditions in the instant case
were not good. The M.V. Duteous was coming
down in the grips of a debacle. 6 The questions that
come to mind and have to be answered are the
foreseeability of the debacle, the advisability of
shifting to a safer berth before the debacle and the
suitability of the manoeuvres taken by the Master
of the M.V. Duteous during the down-river drift.
In "City of Peking" (The) v. Compagnie des
Messageries Maritimes' the Privy Council dealt
with a case of a vessel running down a ship at her
5 Judgment dated March 27, 1985, Federal Court, Trial
Division, T-3456-81, not reported.
6 "Debacle: a sudden breaking up of ice in a river" (The
Living Webster Encyclopedic Dictionary of the English
Language).
7 (1888), 14 App. Cas. 40 (P.C.).
moorings in broad daylight, a prima facie evidence
of fault. The collision was attributable to the effect
of an exceptional current, known to be a possible
though improbable contingency, but it was shown
that the port anchor of the steamer was not in
readiness. The Court held that the steamer had
neglected ordinary precautions and could not be
absolved from blame. 8
In Wake-Walker v. SS. Colin W. Ltd., 9 the
Privy Council dealt with the plea of inevitable
accident in a collision between vessels in the Mon-
tréal harbour. Again, it confirmed that the onus
was upon the party asserting such a defence to
satisfy the Court that he was not to blame. It
found that the defendant vessel had taken a course
and speed which placed her in a position in which
she ought not to have been and therefore had not
discharged the onus.
The evidence adduced at the hearing, factual as
well as expert, leads me to the inescapable conclu
sion that the two collisions could have been avoid
ed. The possibility of a debacle was foreseeable.
The progression of the ice front was published
daily in the Information Bulletins above referred
to. VHF radio communications and VTM communi
cations from the Canadian Coast Guard broadcast
sufficient information to alert anyone who would
be prudent enough to tune in, to listen and to act.
All berths in the port of Montréal are safe under
normal conditions. But, in a debacle situation,
vessels tied alongside the channel are obviously
exposed to the awesome pressure of ice and water
coming down the current. Vessels safely tucked
8 For other cases where a defendant ship was not excused
from liability for a collision due to exceptional river or weather
conditions, see Bank Shipping Co'y v. "City of Seattle" (1903),
9 Ex.C.R. 146; Beauchemin, Gerard v. The King, [1947]
Ex.C.R. 102; The "Velox", [1955] 1 Lloyd's Rep. 376 (Adm.);
The Barge "T-429", [1957] 1 Lloyd's Rep. 135 (Trinidad and
Tobago S.C.); Canadian National Railway Co. v. The "Temple
Inn", judgment dated February 19, 1979, Federal Court, Trial
Division, T-1474-76, not reported. In the later case Collier J.
said at page 19 with reference to "inevitable accident": "I
doubt the concept has any place in modern tort law."
9 [1937] 2 D.L.R. 753 (P.C.).
away behind jutting piers are unexposed and
secure.
A chart of all the vessels moored in the port of
Montréal on Monday, January 12, 1981, was filed
in Court. The chart shows a number of vessels
resting safely in the protected sections of the Old
Port, then an open area along the riverside without
any vessels. The first vessel on a riverside berth is
the M.V. Duteous, firstly shown in her original
position at section 41, then in her second position
at section 43. Then, four vessels nicely tucked in
behind the protection of piers. The next exposed
vessel is the M.V. Thor I at section 52 followed by
the M.V. Bunga Chempaka exposed as well at
section 55. Past section 55, seven vessels are
moored safely in the sanctuary of Vickers Basin.
Further down at section 66, a riverside berth, is
the M.V. Atlantic Prosper which broke some
moorings but stayed at the wall. The chart shows
several protected berths still vacant.
The vessels brought downstream by the debacle
were either already in the channel (the ice-breaker
and the two tugs) or moored at riverside berths.
The other vessels moored in sheltered berths were
not displaced. Whether the initiative to move the
M.V. Duteous to a safer berth rested with the
Master of the M.V. Duteous, or with the port
authorities is an issue that I will attempt to resolve
later, but the collisions could manifestly have been
averted by simply moving the M.V. Duteous to a
safer berth before it became too late to do so.
In my view, the onus is on the M.V. Duteous
and her owners to show that her Master kept
himself informed as to the ice and water condi
tions, that he took all the necessary precautions
before the vessel broke her moorings, that he
carried out all the manoeuvres expected of a skill
ful master so as to avoid collisions as the M.V.
Duteous was drifting down-river for more than an
hour. I am not satisfied that the owners of the
M.V. Duteous have discharged that onerous
burden of proof.
4. The negligence of the M.V. Duteous
Unfortunately, the Master of the M.V. Duteous,
Captain Chuen Kwan Cheung, did not testify at
the trial. He gave his commission evidence on
February 9, 10 and 11, 1981, before the departure
of the M.V. Duteous from the port of Montréal.
Although conversant in English, he testified with
the assistance of a Chinese interpreter. So did his
Chief Officer Ting Sang Tam, his Chief Engineer,
Tak Chue, the Second Officer, Shien Kai Chao,
the Radio Officer, Kwok Keung Lui, the Fourth
Engineer, Chan Nai Wing and the Third Officer,
Wan Tung Lu. Obviously, the mere reading of
those long and laborious transcripts cannot be as
satisfactory as the presence in Court of witnesses
who are examined and cross-examined before the
judge who has to decide the case.
The Master of the M.V. Duteous had only
limited experience in navigation under such ice
conditions as prevail on the St. Lawrence River
and in the port of Montréal. He did, with the
assistance of a Canadian pilot, take his vessel up
the river with stops at Gros Cacouna and Québec
City before arriving in the harbour of Montréal on
December 31, 1980. He had a period of eleven
days in Montréal during which he could and
should have informed himself about local condi
tions. He had on board both the British and
Canadian Sailing Directions for the Gulf and the
St. Lawrence River, but did not read the sections
about ice conditions on the river. At the outset of
his voyage, he had received the annual edition of
Canadian Notices to Mariners in which the VTM
system and its services are described. During that
period, including his passage up the St. Lawrence
River, he ought to have acquainted himself with
all the information services available.
As pointed out by Captain Kai H. Boggild, a
marine consultant called as an expert on behalf of
the Crown, the publication Ice Navigation in
Canadian Waters was not placed on board the
M.V. Duteous until after the accident, despite the
fact that it is referred to in the Sailing Directions
and is required to be carried by the Charts and
Publications Regulations. 10 That publication pro
vides useful information about ice conditions in the
port of Montréal, including this warning which
appears at page 25:
Vessels Moored at Riverside Berths: Shipmasters are cautioned
that heavy ice floes coming down river, especially after a jam
has been recently broken, may strike moored vessels and cause
them to be broken out of their berth.
It appears that the Master of the M.V. Duteous
relied too heavily on the ship's agent, Mr. Tom
Megin, and on the port authorities (their respec
tive roles and responsibilities will be discussed
later) and not enough upon his own initiative.
During that early period in January, especially
after the M.V. Duteous had completed her load
ing, prudence would have called for a shift to a
safer berth. That would merely have involved a
request to the port authorities and a call for the
assistance of a tug. As mentioned earlier, there
were several protected berths available, some way
up in the Old Port, others, further down, sheltered
behind jutting piers.
The evidence reveals that shortly after noon on
Sunday, January 11, 1981, the agent Mr. Megin
received a telephone call from the Harbour Mas
ter's office warning about the rising water levels in
the port and advising reinforcement of moorings.
Some five hours later, Mr. Megin boarded the
M.V. Duteous and transmitted the message to the
Master. It is obvious that neither of the two men
appreciated the full urgency of the situation. After
the evening meal, the Master ordered three addi
tional mooring lines to be put out, as previously
described. Only the added head rope significantly
improved the mooring pattern as the M.V. Dute
ous was heading upstream and the force would
come from that direction. The other two lines did
not add significantly to the security of the vessel.
That arrangement, although sufficient under
normal conditions, proved to be inadequate in the
face of the oncoming debacle.
The next day, Monday, January 12, 1981, at
05:20 hours, all the mooring lines parted and the
10 C.R.C., c. 1415.
vessel was carried astern. The Master placed his
engine on full ahead with his helm to port so as to
keep the bow off the berth. That manoeuvre
allowed for heavy compact ice to come between
the M.V. Duteous and the pier, causing the vessel
to be beset in a field of ice and to rest in a nasty
position with her starboard quarter against section
43 and her bow about 50 feet off the wharf, an
extremely perilous situation.
After that first incident, all mooring lines avail
able on board were secured to bollards on the
wharf. Both anchor chains were also put out on the
pier. That final arrangement was probably the best
that could be marshalled under the circumstances.
However, with the angle that the M.V. Duteous
was offering to the oncoming debacle, it is the view
of most experts that no mooring could withstand
the irresistible impact to come.
It came very early the next day. The ice jam
broke loose as the Pierre Radisson successfully
open up the front which by then was almost abeam
of the M.V. Duteous.
From his own evidence it appears that the
Master was in bed when the break of his moorings
and the full fury of the debacle woke him up at
06:20 hours. It appears in the ship's log book that
at 06:30 hours, the moorings were fully broken.
The engine of the M.V. Duteous was not running
but at stand-by. It took a further seven to eight
minutes for the officers to get on the bridge and
the Chief Engineer to place the engine on full
ahead. The ice movement was from the ship's
starboard bow toward her port quarter. The
Master ordered his rudder hard to starboard in a
futile attempt to resist the ice movement, or to
protect his rudder and propeller from the wharf.
Admittedly, it is easier for experts to navigate a
ship from the safety of a witness box and for a
judge to assess the situation from the serenity of
the bench, than for a master to make the appropri
ate decisions in the agony of collision. " It does,
however, appear that with the angle the M.V.
" See The King v. Hochelaga Shipping & Towing Co. Ltd.,
[1940] S.C.R. 153.
Duteous was in, she would have had a greater
measure of manoeuvrability had she moved out
into the, channel and worked with the ice move
ment, not against it. Had she succeeded, she would
have cleared the berths, the M.V. Thor I and the
cranes.
As it was, the M.V. Duteous floated down out of
control for more than one hour at very close
proximity to the wharves. It is to be recalled that
the other vessels caught in the debacle managed to
steer free from collisions and to return safely to
their respective berths. After being struck by the
M.V. Duteous at 07:04 hours all mooring lines on
the M.V. Thor I parted, yet she managed to
manoeuvre out of the drifting ice and into the
shelter of Canadian Vickers at section 57. As to
the M.V. Bunga Chempaka, she was swept off her
berth at section 55 at 07:10 hours and carried
stern first down-river. By 08:30 hours she managed
to turn around and re-moor at section 48,
undamaged.
It appears that the Master of the M.V. Duteous
was much concerned with protecting her rudder
and propeller, first against the wharf, then against
the anchor chains of the M.V. Thor I. His concern
is quite understandable as both are essential to the
manoeuvrability of a vessel. However, the propel
ler and the rudder of the M.V. Duteous are safely
ensconced under the stern of the vessel. The angle
of the counter of the stern provided at least a
six-foot coverage, sufficient to protect the rudder
and the propeller from the wharves. As to the
anchor chains of the M.V. Thor I, the preponder
ance of the evidence indicates that they hung in a
straight, vertical, up and down, position from the
M.V. Thor I and not out in the channel as the
Master of the M.V. Duteous feared.
Unfamiliar as he was with the winter conditions
in the port of Montréal, and faced with the obvious
rise in the water level in the harbour, along with
the ominous gathering of the ice, the Master ought
to have kept a pilot on board, especially after the
first parting of the moorings.
A pilot could not have prevented the second
break of the moorings, because of the treacherous
position the M.V. Duteous had drifted into, with
her nose sticking out in the current and her star-
board bow bearing the impact of the rushing ice.
He could, however, have been of assistance in
manoeuvring the M.V. Duteous away from the
berths and steering her to a safer course
downstream.
Understandably, no one can control a vessel
totally frozen in ice. But, there is evidence to the
effect that the M.V. Duteous was not totally and
constantly encased in ice. There was much sea
smoke to be seen all along the channel indicating
the presence of open waters. There can be sea
smoke above slush, but on occasions several wit
nesses saw open water at the stern of the M.V.
Duteous. An alert pilot, knowledgeable of winter
navigation in the port of Montréal, could have
seized upon those stretches of open water to kick
the engine full ahead so as to provide sufficient
propulsion and control to steer clear of the berths.
Moreover, Montréal pilots know, or ought to
know, that ice jams are followed by break-ups and
that a break-up is imminent when the water level
rises and ice-breakers are biting away at the front
of an ice jam. A master, especially the master of a
foreign ship with little winter navigation experi
ence, would feel safer with such an experienced
man on board when the time of a debacle is near.
It is the responsibility of the master of a vessel
to retain or to dismiss a pilot. 12 The Master of the
M.V. Duteous dismissed his pilot, Gaétan Forbes,
after the final mooring arrangements had been
completed in the aftern000n of January 12, 1981.
If the pilot was negligent in not offering to remain
on board, his negligence under section 31 of the
Pilotage Act" becomes the negligence of the
shipowner.
I therefore find the M.V. Duteous negligent on
these six counts:
1. The Master, knowing that he was entering an
ice-bound port, failed to properly acquaint himself
12 Irish Shipping Ltd. v. The Queen, [1977] 1 F.C. 485
(T.D.); Dumurra (The) v. Maritime Telegraph and Telephone
Co. Ltd., [1977] 2 F.C. 679 (C.A.).
13 S.C. 1970-71-72, c. 52.
with the perils and requirements of winter
navigation.
2. The Master did not keep abreast of essential
and available information about ice conditions pre
vailing in the port of Montréal and did not make
proper use of the ship's wireless equipment.
3. The Master did not foresee the possibility of a
debacle and did not seek a safer berth before the
freeze-up of the harbour.
4. The Master did not moor the M.V. Duteous
securely before the first break of the moorings.
5. The Master was remiss in his duty in not
keeping a pilot on board.
6. The Master did not exercise reasonable care
and skill in the navigation of his vessel:
a) when the mooring lines first broke on January 12th, 1981, by
wrongly placing the engine on full ahead with helm to port
thereby allowing heavy compact ice to come between the M.V.
"Duteous" and the pier thereby allowing the ship to come to
rest in a precarious position;
b) when the mooring lines broke on January 13th, 1981, by
wrongly placing his rudder hard to starboard instead of work
ing with the ice movement and heading out into the channel,
thereby allowing the ship to drift too closely to the wharves and
to strike the M.V. "Thor I" and the cranes;
c) by failing to keep his engine on a more effective stand-by.
5. No negligence on the part of the charterers
There is, of course, privity of contract between
the owners and the charterers of the M.V. Dute
ous. Shortly before the trial, the owners attempted
to file an indemnity claim against the charterers.
The application was denied by the Court because
of its lateness and on the ground that the dispute
between them was, pursuant to the provisions of
the charterparty, placed in arbitration in London,
England.
In the course of the hearing before me the
Crown moved that all documents filed with these
arbitration proceedings be produced. Both the
owners and the charterers resisted the application.
I ordered under Rule 457 [Federal Court Rules,
C.R.C., c. 663] that the documents be referred in
confidence to this Court to be inspected by me for
the purpose of deciding whether or not they were
relevant, or privileged, in the instant proceedings.
I duly received the documents in question en
titled Points of Claim, Points of Defence and
Request for Particulars. I found them to be
"pleadings", or allegations prepared by the
London solicitors of the two parties in a private
arbitration matter and, as such, to be neither
useful nor relevant in the instant proceedings.
Any action which the other parties have against
the charterers must be founded in tort. Negligence
has to be proved against the charterers themselves.
Bearing in mind that the actual navigation of the
M.V. Duteous came under the responsibility of the
Master and the crew, thus the responsibility of the
owners, any alleged negligence against the charter-
ers would have to lie somewhere else. These
defendant charterers were time charterers, not
bare boat nor demise charterers. As such they paid
$6,700 U.S. per day for the services of the M.V.
Duteous.
The first allegation of negligence against the
charterers is that the charterers ought not to have
directed the M.V. Duteous to the port of Montréal
in the winter, on the ground that she was not an
ice-class vessel and lacked the protective shell and
the horse-power to deal with severe ice conditions.
I find no substance to this allegation. Firstly, the
charterers were entitled under the terms of the
charterparty to send the M.V. Duteous anywhere
in the world. Secondly, there are no regulations
limiting winter navigation in the port of Montréal
to ice-class vessels. Thirdly, there is no conclusive
evidence that any inherent disability on the part of
the M.V. Duteous caused the collisions.
The second allegation is to the effect that the
charterers should not have berthed the M.V.
Duteous at section 41, a "dangerous berth". The
evidence indicates that section 41 is not, prima
facie, a dangerous berth. It was safe when the
vessel came to the port of Montréal in late Decem-
ber 1980. That berth, because of its open location
alongside the channel, is more exposed to the
currents and to waves crested by passing vessels. I
am satisfied, however, from the evidence, that it is
generally safe. Vessels have been moored at that
location for years and still are, mostly without
problems. Of course, it is not the best place to be
when a debacle is imminent.
The responsibility for shifting a vessel lies
primarily with the master of that vessel—the role
of the port authorities will be discussed later. In
any event, section 41 was not selected by the
charterers. It is assigned on a yearly lease to Wolfe
Stevedoring Ltd. who had a contract with the
charterers for loading of vessels and who carry out
their stevedoring operations from that section.
I therefore find the charterers not to be negli
gent in any respect for these collisions.
6. No negligence on the part of the charterers'
agent
As mentioned earlier, the M.V. Duteous main
contact in the port of Montréal was Mr. Thomas
Megin, now deceased, an employee of Protos Ship
ping Limited, the agent of the charterers. It is
alleged in the pleadings, and claimed by some of
the witnesses, that his role was to inform and
advise the Master of the M.V. Duteous, that he
had no navigation experience—thus unqualified to
be a ship's agent, that he failed to apprise the
Master of the dangerous situation in the harbour
and to properly inform him as to what precautions
should be taken to protect his vessel against the
impending disaster. Authorities defining the role
of a "ship's agent", are not especially helpful. It
therefore becomes necessary to examine the par
ticular role of Protos Shipping Limited with
regards to the M.V. Duteous.
A basic definition of a ship's agent is provided
by Pearson L.J. in Blandy Brothers & Co., Lda. v.
Nello Simoni, Ltd. [at page 404]: 14
The ship's agent is, in the normal case, the agent of the
shipowner at the particular port, and the ship's agent, there
fore, at that port stands in the shoes of the shipowner; and it is
reasonable to suppose that he has the authority to do whatever
the shipowner has to do at that port.
Obviously, that definition applies more particu
larly to a shipowner's agent. The following defini
tion from an article in Lloyd's Maritime and
Commercial Law Quarterly 1978 15 (at pages 601-
602) appears to set out duties more commonly
applicable to any ship's agent:
3. Considering now the duties which a ship's agent has to
fulfill, the examples described have shown which kind of them
usually are performed (just to mention some examples):
Arranging for a berth; reporting to the harbour authorities and
Custom House and similar institutions; ordering of stores, fuel
and repairs; caring for the crew's needs (provisions, laundry);
delivering of notice of readiness to the shipper or consignee;
arranging for loading, discharging (contracting with stevedores,
warehouses, barges' owners); issuing of bills of lading or col
lecting them; ordering of surveys for ship and/or cargo; acting
as ship's husband; collecting and remitting of freight and
demurrage, etc.
Protos Shipping Limited was not the agent of
the owners of the vessel. The owners had no agent
until they appointed one after the accidents of
January 12, 1981. Protos Shipping Limited was
the agent of the charterers and was appointed by
contract dated May 17, 1979. The "General
Agency Agreement" provides that Protos Shipping
Limited shall act as "port agent". The port agent's
functions, as described therein, include soliciting
cargo, recommending stevedores, processing
claims, collecting freights, issuing cargo docu
ments, etc. The evidence at the trial indicates that
Protos Shipping Limited was mainly interested in
the commercial aspect of shipping, namely finding
business for their clients. The services provided by
Mr. Megin were mostly of the variety fulfilled by a
"water clerk", so-called. He had little knowledge
of navigation. Neither his employer, Protos Ship
14 [1963] 2 Lloyd's Rep. 24 (Q.B.); affirmed 393 (C.A.), as
reported in British Shipping Laws, (1967), vol. 13, at p. 295.
15 Dr. Johannes Trappe, "The duties, obligations and liabili
ties of the ship's agent to his principal", [1978] LMCLQ 595.
ping Limited, nor the charterers expected him to
make any contribution in the field of navigation.
The role of Protos Shipping Limited is to be
distinguished from the role of a "port captain".
The latter is generally a master with long experi
ence in navigation who may assist the master with
navigational problems. The M.V. Thor I had such
a port captain in Montréal who turned out to be of
much assistance to her Master. The M.V. Duteous
also had one who flew from Spain to assist the
M.V. Duteous in Gros Cacouna, Québec City and
Montréal as well. However, after the loading was
completed on January 8, 1981, the port captain
flew back home and was not around to assist the
Master of the M.V. Duteous in times of need.
The evidence reveals that Mr. Megin did visit
the M.V. Duteous on several occasions and made
himself useful to the extent of his limited compe
tence. When informed by the Harbour Master that
water was rising and that moorings should be
reinforced, he personally carried the message to
the Master of the M.V. Duteous. He provided no
further navigational advice and ought not to have
been expected so to do. It is trite law that in order
to be negligent there must first be a duty to
exercise care. It has not been established that there
was such a breach of duty by the agent towards
the M.V. Duteous and even less so towards the
other parties. He fulfilled the minor role he was
expected to play.
I therefore find no negligence on the part of
Protos Shipping Limited.
7. No negligence on the part of the Harbour
Master or the Queen
For the purposes of this hearing, the National
Harbours Board, the port of Montréal, the
Canadian Coast Guard, the Department of Trans
port, the Pierre Radisson and Her Majesty the
Queen were considered as one party and these
reasons will apply accordingly.
In a nutshell, the charges against the National
Harbours Board are that the Harbour Master of
the port of Montréal, Captain Dea Hassib, was
grossly negligent in failing to assign or shift the
M.V. Duteous to a safer berth and in failing to
properly warn those on board the M.V. Duteous of
the imminent peril arising from the ice conditions
in the port. The charge against the Crown is that
the Master of the Pierre Radisson broke up the ice
jam without any consideration for the security of
the M.V. Duteous, perilously moored abeam her
starboard.
The first question to be answered is the extent of
the legal responsibilities of the Harbour Master
towards the vessels moored in the port of Mon-
tréal. The second is whether or not he fulfilled his
responsibilities towards the M.V. Duteous.
The first question arose before the Supreme
Court of Canada in Owners of the Steamship
"Panagiotis Th. Coumantaros" v. National Har
bours Board, 16 on appeal from the Exchequer
Court of Canada, Quebec Admiralty District. The
Supreme Court of Canada held that the National
Harbours Board had an obligation to exercise
reasonable care to see that the harbour was safe
for navigation but that the duty must be looked at
in the light of the existing circumstances. The
Board was not obliged to drag or sweep in order to
ascertain that proper dredging had been carried
out by the Department of Marine. It held that only
where the Board knew or should have known that
the danger existed must steps be taken by it to
remove such danger or suitable warning be given
in respect of it. Bond J. said, at page 458:
The cases cited on behalf of the appellants establish clearly a
duty upon the harbour authorities to take reasonable care that
those who choose to navigate the harbour may do so without
danger to their lives or property.
In Sparrows Point v. Greater Vancouver Water
District,' 7 on appeal from the Exchequer Court of
Canada, British Columbia Admiralty District, the
16 [1942] S.C.R. 450.
17 [1951] S.C.R. 396.
Supreme Court of Canada held that the National
Harbours Board was negligent in its signalling of
the M.V. Sparrows Point causing it to anchor in
an area occupied by mains. Kellock J. (Rinfret
C.J. and Taschereau J. concurring) said, at page
401:
In my opinion, there was a duty on the Board not to do or omit
to do anything which might unnecessarily result in damage to
the water mains. In the present instance, I think there was a
breach of that duty.
He found the National Harbours Board to be
liable for damage done to only one of the mains;
liability for damage to the other mains was found
to be precluded by an Order in Council. Rand J.
said, at pages 409-410:
Since it had full knowledge of the existence and the placement
of the pipes, that responsibility would extend to foreseeing that
negligence in signalling might in the ordinary course of things
bring about emergency action in the channel by which property
of various kinds might be affected. There was, thus, a direct
obligation on the Commission toward the Water District to
avoid bringing that situation about negligently.
He found the National Harbours Board to be
liable for damage to all of the mains. The M.V.
Sparrows Point was also found liable for the
damage.
In Nord-Deutsche Versicherungs-Gesellschaft
et al v. The Queen et a1, 18 Noël J. of the Exche
quer Court noted the reluctance of courts to hold
the Crown liable, particularly where non-repair of
public works or non-feasance was at issue. How
ever, he cited The King v. Hochelaga Shipping &
Towing Co. Ltd., 19 Grossman et al. v. The King 20
and Workington Harbour and Dock Board v.
Towerfleld (Owners) 21 as exceptions to this reluc
tance. Following these cases, Noël J. also found
the Crown to be liable in tort under paragraphs
3(1)(a) and (b) of the Crown Liability Act 22 both
by the common law and by the civil law of Quebec
because Department of Transport officials had
failed in their obligation to ensure that a pier had
not been displaced by ice action or to give warning
18 [1969] 1 Ex.C.R. 117.
19 Supra.
20 [1952] 1 S.C.R. 571.
21 [1951] A.C. 112 (H.L.).
22 S.C. 1952-53, c. 30.
of the misalignment of the lights. In that respect
the decision was confirmed by the Supreme Court
of Canada (which allowed the appeal on other
grounds). 23 The liability was apportioned at 50 per
cent against the Crown, 30 per cent against one
vessel and 20 per cent against the other vessel.
In Angeliki Compania Maritima S.A. v. BP Oil
Limited, 24 the ship Angeliki was ravaged by fire
on June 3, 1966, while berthed in the port of
Montréal. The owners alleged three counts of neg
ligence against the National Harbours Board.
Firstly, for assigning a dangerous berth to the
Angeliki (next to an oil tanker); secondly, for not
having laid down specific safety procedures; third
ly, for not warning the Angeliki of the danger
(hydrocarbon escaping on the water). At the
outset, Pratte J. made these two observations at
page 6:
(a) I was referred to no enactment, and could find none,
imposing on the National Harbours Board or its employees a
duty to guarantee the safety of ships that tie up in the Port of
Montreal.
(b) While the Board does not have a duty to guarantee the
safety of ships moored in harbours placed under its control, it
does have a duty to inform those using the harbours of con
cealed dangers which may be constituted by harbour facilities.
And further on at page 7:
The Board's empl gees have not, I repeat, a duty to ensure the
safety of ships mooring in their harbours.
It is well established that, apart from exceptional cases in
which the law imposes a duty to act otherwise, a person is not
guilty of negligence in not acting to help another avoid a
danger which he himself has no part in creating. [My
emphasis.]
The damage to the Angeliki arose from fire
which a welder on board set by dropping molten
metal on the hydrocarbon discharged from the
nearby oil tanker. An appeal by the other defen-
23 [1971] S.C.R. 849.
24 Judgment dated April 16, 1973, Federal Court, Trial
Division, T-4159-71, not reported.
dants was dismissed by the Court of Appeal, 25 and
a further appeal was dismissed by the Supreme
Court of Canada. 26
In Warwick Shipping Limited v. R., 27 Addy J.
held that there was no requirement of the Crown
to maintain natural channels open and no duty to
sweep away obstructions therein, unless there has
been some representation to the effect that the
duty has been assumed in some manner. That
decision was confirmed by the Court of Appeal. 28
Pratte J. (now with the Court of Appeal), said at
page 389:
Before considering that argument, it must be kept in mind
that the respondent had no duty to place any buoy in that area.
In fact, it seems to me that the Crown could lawfully decide to
remove all buoys from Canadian waters: it would thereby
render navigation more difficult but would no incur any
liability.
As quoted earlier from the Angeliki decision,
there is no enactment imposing on the National
Harbours Board or on the Harbour Master any
obligation to guarantee the safety of vessels
moored in the port of Montréal. There is a by-law
dealing with the berthage of vessels, but it affords
no assistance to the claimants against the National
Harbours Board. To the contrary, section 8 of the
Berthage, Buoyage and Anchorage Charges Tariff
By-law 29 provides as follows:
8. Every vessel moored or anchored in a harbour shall be so
moored or anchored entirely at the risk of the owner of that
vessel.
In view of my findings, it will not be necessary
to deal with the immunity that such a by-law
would or would not afford to the National Har
bours Board against the negligence or gross negli
gence of one of its employees.
However, the jurisprudence aforementioned has
clearly established that there is at common law a
duty upon the National Harbours Board, and more
precisely upon the Harbour Master, to inform all
vessels in port of any "concealed danger which
may be constituted by harbour facilities".
25 (1975), 6 N.R. 216 (F.C.A.).
26 (1976), 8 N.R. 196 (S.C.C.).
27 [1982] 2 F.C. 147 (T.D.).
28 (1983), 48 N.R. 378 (F.C.A.).
29 C.R.C., c. 1061.
It appears to me that the ice conditions and the
ensuing debacle in the port of Montréal were not
concealed dangers, as they could have been
apprehended, as mentioned earlier, by any inter
ested party who kept abreast of the events. More
over, those conditions were not constituted by the
harbour facilities but created by nature and obvi
ously beyond the control of the Harbour Master.
Much was said at the trial about the role and
the attitude of the Harbour Master towards the
vessels moored in the port of Montréal in January
1981. His stand as a witness was described as "one
of injured innocence". He did indeed appear to me
to have been somewhat cavalier and not as forth
coming as he could have been. In his view, all
berths in the Port of Montréal were safe; all
information he had as to the ice conditions and the
water level was available to the masters of the
vessels: it was really up to them to ask for more
information if they needed more, or to ask for a
shift of berth if they felt uncomfortable at their
respective locations.
The evidence shows that on Sunday, January 11,
1981, the Harbour Master, was at home when the
man on duty at the office, Léon English, called at
09:00 hours to inform him that the water was
rising. At 15:00 hours, Mr. English called again to
inform him that the ice front had reached section
66, abeam the M.V. Atlantic Prosper, and that the
Ro Ro Ramp of a local agency had fallen on the
ice. The Harbour Master then called all the ships'
agents advising them to reinforce their moorings.
He also asked Mr. English to tell the Harbour
Police to inform all the vessels of the above condi
tions. By mistake, the police only informed the
Canadian vessels.
The next day, Monday, January 12, 1981,
around 07:00 hours, Captain Hassib was called
again and informed that the M.V. Duteous had
broken her moorings. He thereafter made a per
sonal round of the vessels in the port and visited
some of them. When he saw the M.V. Duteous
precariously moored at section 43, he did not go on
board because the vessel was not accessible from
the wharf. According to his own evidence, he said
to himself "if there is a break-up, that vessel will
not be able to do very much". He felt that there
was nothing that could be done for that vessel
because "it was too late". He made no further
attempt in the course of the day to contact the
Master of the M.V. Duteous. He knew there had
been a pilot on board, but was not aware whether
the pilot had stayed there or had left.
In Court, Captain Hassib did not appear to
recall if he knew at the time that those on board
the M.V. Duteous were foreign mariners with little
knowledge of winter conditions. His position was
that the ice-breakers would eventually open up the
ice jam and free the port of Montréal; as to the
vessels, they had all the information available and
it was up to their masters to take the necessary
precautions. That attitude may not reflect the
philosophy of the Good Samaritan, but under the
law the Harbour Master came under no obligation
to do more than he did.
Under the circumstances I cannot find the Har
bour Master or the National Harbours Board
guilty of any negligence in this matter.
An argument was made that a contract had
been struck between the National Harbours Board
and the M.V. Duteous on the ground that vessels
entering the port of Montréal have to pay wharf-
age and other tolls so as to occupy a safe berth and
that there had been a breach of that contract. The
jurisprudence is clearly to the effect that the pay
ment of tolls does not create such a contract (see
The King v. Canada Steamship Lines Ltd.). 30
I now turn to the allegation that the Canadian
Coast Guard was negligent for breaking the ice
jam front while the M.V. Duteous was moored in
such a precarious position.
The raison d'être for the Canadian Coast Guard
is its responsibility for navigation, including the
opening of the St. Lawrence River in the winter
and the breaking of ice jams where necessary. The
evidence clearly indicates that all available ice
3 ° [1927] S.C.R. 68.
breakers applied themselves diligently to that task
in January 1981 and were successful in breaking
up all successive fronts forming above the port of
Québec City up to the port of Montréal.
The ice-breakers most certainly cannot be fault
ed for lack of effort. The main charge against the
Pierre Radisson is that she did not provide suffi
cient warning or advice to the M.V. Duteous
before resuming her attack on the front the morn
ing of the debacle.
I find no sustenance, either legal or factual, to
support such an allegation. Firstly, I know of no
enactment, and was referred to none, that would
compel ice-breakers to keep vessels informed of
their progress on the St. Lawrence River. Second
ly, those on board the M.V. Duteous were very
much aware of the presence of the Pierre Radisson
which they could see some 500 feet abeam from
their own vessel. Any seaman who does not know
the role of an ice-breaker in a Canadian winter
ought to inform himself before entering our
waters.
In fact, the Canadian pilot on board the M.V.
Duteous on early Monday afternoon, January 12,
1981, Gaétan Forbes, spoke to the Pierre Radisson
and was perfectly aware of her manoeuvres. As an
experienced pilot in the port of Montréal, he knew
or ought to have known that an ice break-up was
bound to happen. Yet, he felt that the M.V. Dute
ous was so safely moored that she would never
move. "She could have spent her life there", he
said. Had he stayed on board, he would have been
perfectly aware of the position of the Pierre
Radisson which remained overnight abeam the
M.V. Duteous and resumed her operations in early
morning. If there be negligence on the part of the
pilot, it becomes the negligence of the shipowner
under section 31 of the Pilotage Act.
I cannot therefore find the Pierre Radisson nor
the Canadian Coast Guard, the Department of
Transport nor the Queen, negligent in this matter.
In the course of the arguments the plaintiffs
moved to file amendments to their statements of
claim to add interest in their claims against the
Queen and the National Harbours Board at the
legal rate together with the additional indemnity
provided by article 1056c of the Quebec Civil
Code, as well before judgment as after. Both
defendants resisted that motion. The parties filed
written arguments in the matter. Under Rule 420 I
am allowing the amendments to be filed, but in
view of my findings it becomes unnecessary to deal
with the legal entitlement to interest against the
Crown in this matter.
8. No contributory negligence on the part of the
plaintiffs
It was alleged that the M.V. Thor I should
somehow be found to be partly responsible for
having been hit. The argument, if I understand it
correctly, is to the effect that if the M.V. Duteous
was negligent in not mooring herself adequately
and in not shifting berth, then so was the M.V.
Thor I. Firstly, there is no conclusive evidence that
the M.V. Thor I was improperly moored. Second
ly, it has not been established that the M.V. Thor I
would have broken her moorings had she not been
run into by the M.V. Duteous. Thirdly, the M.V.
Thor I was lawfully positioned where she was and
did not contribute to the collision more than a car
legally parked along the highway should be
responsible for having been hit by a negligent
driver.
There were allegations as well that St. Lawrence
Stevedoring Company Limited ought to have fore
seen the debacle and ought to have moved its
cranes as soon as the M.V. Duteous was seen
approaching the wharf. This allegation is even
more far-fetched than the previous one against the
M.V. Thor I. The three huge cranes are emplaced
on tracks laid out along the quay, as provided by
the port authorities. The cranes were lawfully
positioned according to the lease between the port
of Montréal and their owners. On that morning
there happened to be an employee of St. Lawrence
Stevedoring Company Limited who saw the M.V.
Duteous appearing through the sea smoke shortly
before the impact. The proposition that he should
have moved quickly, climbed up the ladders lead
ing to the cabins of the three cranes, started their
engines and moved them away along the tracks
ahead of the M.V. Duteous, is too outlandish to
deserve serious consideration.
Conclusions
1. Judgment therefore against the owners of the
M.V. Duteous, Compagnia de Navegacion Dute
ous, S.A., with damages and interest against it in
favour of all claimants.
2. Costs of the three actions payable by Com-
pagnia de Navegacion Duteous, S.A. in the form
of a Bullock type order.
3. The claimants are agreed on the quantum of
some of the damages but are still negotiating on
others. If all damages are not agreed to, there shall
be a reference as requested by the parties.
4. The formal judgment shall be prepared by
counsel for A/S Omen and submitted to counsel
for all other parties for approval. Should there be
no agreement on the proposed judgment draft,
then counsel for A/S Omen shall move the Court
for a time and place for a hearing in the matter.
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.