VOL. XX. EXCHEQUER COURT REPORTS. 441 BRITISH COLUMBIA ADMIRALTY DISTRICT. 1917 Sept. 20. BETWEEN THE CLEEVE PLAINTIFF AND THE PRINCE RUPERT DEFENDANT. Shipping—Collision in harbour—Neglect to keep proper look-out—Failure to keep course and speed—Article 21, Sea Regulations. Held: That the making of a landing along the water-front of a busy harbour is a manoeuvre which ought to be accompanied by full precautions, the first of which is an adequate look-out. Brycev. Canadian Pacific Ry. Co. (1907) 13 B.C.96; 6 W.L. R: 53; (1907) 15 B.C. 510, pp. 512-3; referred to and applied. 2. That a serious burden is imposed upon a vessel if she fails to "keep her course and speed" as required by article 21 of the Sea Regulations, and she lays herself open to attack by the "give-way" vessel by departing from the directions of the article and must be • prepared to justify the departure by the proper execution of nautical manoeurves, such as in dropping a pilot, or approaching a landing or drawing up to an anchorage, or to lessen the consequences of collision, to save life or otherwise. S.S. Albano v. Allan Line Steamship Company, Limited, (1907), A.C. 193; 76 L.J., P.C. 33, at p. 40, followed. ACTION for damages by collision. 20th and 21st of June, 1917. The case was heard before the Honourable Mr. Justice Martin, L.J.A., at Vancouver. C. M. Woodworth, for plaintiff. C. B. Macneill K.C., for defendant. The facts are stated in the reasons for judgment.
442 EXCHEQUER COURT REPORTS. VOL. XX. 1917 MARTIN, L. J. A. now this (20th September, 1917), THE CiLEEVE delivered judgment. T$E This action arises out of a collision in Vancouver PRINCE RUPERT . harbour on December 28th last, at about 3.45 p.m. Reasons for when the high-powered steamship Prince Rupert Judgment. (Duncan McKenzie, master), 320 feet in length, Martin L.J.A. gross tonnage 3,379, registered 1,626, speed 18 knots, collided with the steam tug Cleeve (Wm. N. Coughlin, master), length 58 feet 6 inches, beam 15 feet, and caused considerable damage, her stern cutting into the Cleeve's port side about amidships. Both vessels had entered the Narrows, the Cleeve in advance, and passed Brockton Point and Burnaby Shoal, having the last behind them, with the Cleeve inside of it, the intention of the Prince Rupert being to make her landing at her owner's dock, the Grand Trunk Pacific, and that of the Cleeve to make the Hastings Saw Mill wharf, a short distance beyond said dock. It will thus be seen that their intentions, if carried out, having regard to the short distance to be travelled, would sooner or later result in converging and intersecting courses, dependent upon the rate of the speed of the respective vessels. The evidence is in certain important respects contradictory, but after an unusually careful consideration of it (necessitated by the fact that there is here the strange occurrence of a collision in broad daylight on a clear, calm day in a • harbour) I find as a fact that the Cleeve's straight course was kept at a speed of about six knots from Burnaby Shoal towards her said destination and that it was not varied till "in the agony of an impending collision." At one time the Prince Rupert was admittedly as regards the Cleeve, ' an overtaking vessel, up to, at least, when abeam of Burnaby Shoal at 3.37 p.m., and after she, the Prince Rupert changed her
Vot. XX. EXCHEQUER COURT REPORTS. course, after passing said shoal to S. 50°. E.,, and later to S. 25° E., to make a landing at said dock, she became c a crossing, if not still an overtaking vessel,, and in either case bound under articles 19, 22, or 24 to keep out of the , way of the Cleeve which `she had, her starboard side, and, in such case there was under J"agment• article 21 the correlative duty cast upon the "keep her course and speed," which duty I find she discharged. ' I am unable to take the ' view that the . stopping 'of the Prince Rupert's slowing down on encountering the North Vancouver • ferry changed her character as regards the lessened her obligations ; it seems to me that relying on the fact that she was at half-speed, going six to • , eight knots after passing the ,shoal, she either thought she could afford. to ignore the Cleeve time to make her landing before the intersected, or else she dismissed the from her mind on the erroneous and improper assump- tion . that she was only going as far as the Canadian Pacific Railway Company's Australian wharf, a long way short of the Grand Trunk Pacific dock, or up Coal Harbour, which ' latter view is sufficiently sup- ported by the evidence of her first mate, Roderick McKenzie. From either point of view this, in the circumstances, was a "neglect to keep a proper look-. out" • as required by the 'good seamanship" (article 29), and it was not taking proper "precautions" to speculate upon and miscalculate the 'speed of the Cleeve,, especially in ignorance of her destination. These misapprehensions as to speed and relative conditions lead to serious consequences as pointed out by the Lord Chancellor in 21799-22 443 1917 ~E~$ TAE PRINCE R UPERT: °I find, 'on Reasons for Cleeve to Martin L.J.A. engines and her Cleeve or and .would have.. Cleeve's course Cleeve entirely The Olympic and H.M.S.' •
444 EXCHEQUER COURT REPORTS. s VOL. XX. 1917 • Hawke (1). In my opinion the making of the landing THE CLEEVE along the waterfront of a busy and important harbour v is a manoeuvre which ought to be accompanied by TILE R ÉR . full precautions, the first of which is an adequate Reasons for look-out. I draw attention to my observations upon Judgment. the "proper, precaution" of keeping "a general look- Martin L.J.A. ou t" in Vancouver Narrows in Bryce y. Canadian Pacific Ry. Co. (2), which view was affirmed by their Lordships of the Privy Council, as reported in 15 B.C. 510, at pp. 512-3; 13 Ex. C.R. 394, wherein their Lordships said of the master of the Chehalis: "The real cause of this unfortunate collision was that there was no adequate look-out on board the Chehalis. It seems almost incomprehensible that he should not have noticed her (the Princess Victoria) even before she rounded, and as she was rounding ' . the (Brockton) Point, unless he never looked anywhere except straight ahead of his vessel." These observations are, in my opinion, very appropriate to the circumstances of the case at bar, and I also refer to those in Cadwell v. the ship C. F. Bielman (3). I think that the attention of the Prince Rupert was, after passing the shoal; so engrossed upon the ferry that she became "strangely oblivious of the presence of the Cleeve," to adopt the language of their Lordships of the Privy Council in S.S. Albano v. Allan Line Steamship Company, Limited (4). So far as the Cleeve is concerned, while her master had been aware for some little time of the presence and approach of the Prince Rupert, yet it was his duty (1) [1913] 83 L.J., Adm. p. 113; [1914], (3) [1906], 10 Ex. C.R. 155. 12 Asp. M.C. 580; 112 L.T. 49; [1915] (4) [1907], A. C. 193; 76 L.J., A.C. 385. P.C. 33 at p. 34; 96 L.T. (2) [1907] 13 B.C. 96, at p. 101; 6 335; 10 Asp. M.C. 365. W.L.R. 53.
VOL. XX. EXCHEQUER COURT REPORTS. 445 to obey article 21 and "keep his course and speed," 1917 and he was' justified, in his position, in assuming that CivE the Prince Rupert would conform to article 19 and T. keep out of his way, and he properly persisted in this PRE E N , RIIFERT. line of conduct till the Prince Rupert was upon him, Reasons for when "in the .agony of impending collision" he . tried Judgment. ineffectually to escape from, it by going astern and Martin L.J.A. putting his helm to starboard, .and though it was too late, yet no blame clearly can be attached to him for the failure of these final efforts. It was suggested that the Cleeve might have avoided the accident if she had earlier altered her helm, but the cases shew that it imposes a serious burden 'upon a vessel if she fails to conform to article 21, and she lays herself open to attack by the "give-way" vessel by departing from its directions and must be' prepared to justify that departure by the proper execution of nautical manoeuvres, such as in dropping a pilot, or approaching a landing, or drawing up to 'an anchorage, or to lessen the consequences of collision—to save life or otherwise. See the late cases of the Fancy (1) ; and The Echo (2), on the point; and also, those of The Velocity (3) ; Steamship Arranmore v., Rudolph (4); S.S. Albano v. Allan Line Steamship Company, Limited, supra; The Roanoke (5):, and the Olympic and H.S.M.' Hawke, supra. In the S.S. Albano case, supra, their Lordships said, p. 40: (1) [1916], 86 L.J., Adm. p. 38; (3) [1869], 39 L.J. Adm. 20; L.R. ]1917[ P. 13. 3 P..C. 44; 6 Moore, P. C. (2) [1917], P. 132; 86 L.J., Adm. (N.S.) 263. p. 121. (4) [1906], 38 S.C.R. 176. (5) [1908] P. 231; 77 L.J., Adm. p. 115; 99 L.T. 78. 21799-22i
EXCHEQUER COURT REPORTS. VOL. XX. 1917 "It must always be a matter of some difficulty for CT zE H E E V E the master of a vessel which has to keep her course v THE and speed with regard to another vessel which has to RINcE RIIPERT. keep out of her way, to determine when the time has Reaeoas tar arrived for him to take action, for if he act too soon Judgment. he may disconcert any action which the other vessel Martin L.J.A. may be about to take to avoid his vessel, and might be blamed for so doing, and yet the time may come at which he must take action. Therefore he must keep his course and speed up to some point, and then act, but the precise point must necessarily be difficult to determine, and some little latitude has to be allowed to the master in determining this." Applying this language to the case at bar, I determine that the master of the Cleeve kept his course and speed up to a proper point and that the accident is solely attributable to the negligence of the Prince Rupert in failing to comply with the articles above cited. The prior judgments of this court in The Cutch (1) ; and Smith v. Empress of Japan (2), confirm in general the conclusions I have arrived at. Therefore let judgment be entered in favour of the plaintiff with costs, and if necessary there will be a reference to the registrar, with merchants, to assess the damages. Judgment accordingly. (1) [1893], 2 B.C. 357; 3 Ex. C.R. (2) [1901], 8 B.C. 122; 7 Ex. C.R. 36e. 143.
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.