VOL. XX. EXCHEQUER COURT REPORTS. 399 BRITISH COLUMBIA ADMIRALTY DISTRICT. BETWEEN 1917 Sept. 21. THE CANADIAN PACIFIC RAILWAY COMPANY.... PLAINTIFF ; VS. STEAMSHIP BELRIDGE DEFENDANT. • Shipping—Collision---Excessive speed in snow-storm—Article 16, Sea ' Regulations—The Maritime Conventions Act, (4-5 Geo. V Ch. 13)—Default of two vessels—Division of damages. Held: A ship is not entitled to run through fog and snow at a speed which is safe for herself but immoderate and dangerous for others. Palien vs. The Iroquois ([1913] 18 B.C. 76; 23 W.L.R. 778.), followed. 2. In apportioning damages resulting from a collision between two ships; where the evidence does not establish that a clear preponderance of culpability rests upon one ship, the division of damages should be half and half. The'Peter Benoit ([1915] 13 Asp. M.C. 203; 85 L.J. Adm., p. 12.), followed. ACTION by the plaintiff, as owner of the steamship Empress of Japan for $30,000 damages, against the steamship Belridge occasioned by a collision which took place off Trial Island, near Vancouver Island, B.C., on the - 31st January, 1917. June 19th, 20th and 22nd, 1917, case tried before the Honourable Mr. Justice Martin, L.J.A., at Van-couver, B.C. J. E. McMullen, for plaintiff. E. C. Myers, for defendant. The facts are stated in the reasons for judgment.
400 EXCHEQUER COURT REPORTS. VOL. XX. 1 917 MARTIN L. J. A., now (21st September, 1917, THE delivered judgment. CANADIAN PACIFIC RAILWAY On January 31st, 1917, about half-past four (Vict- COMPANY v. oria time) in the afternoon, the British twin-screw STEAMSHIP BELRIDOE steamship Empress of Japan (W. Dixon Hoperaft, Reasons for Judgment. Master), length 455 feet, gross tonnage 5,940, collided Martin L.J.A. with the Norwegian steamship Belridge (Nels Olsen, Master), length 450 feet, gross tonnage 7,020, in the Strait of Juan de Fuca, between Trial and Discovery Islands, the Empress of Japan being inward bound for Vancouver pursuing a course from Trial Island to round Discovery Island, and the Belridge outward bound pursuing a course from Discovery Island to round Trial Island, which are about three miles and six cables apart. The tide was at slack and the state of the weather, according to the preliminary act filed by the Belridge, was "heavy snow-storm, very thick," with a varying north-westerly wind about 20-25 miles, and according to the Japan, a "snow-squall," with a "northerly moderate wind;" the latter vessel admits she was going at a speed of twelve knots and her best speed, her pilot says, was 16%, while the former alleges, erroneously, I find, that her speed was only "about three or four knots." The Japan alleges she first saw the Belridge "about half a mile distant ahead," and the Belridge first saw the Japan "two to three ship lengths about one point on the port bow." The ships came together about amidships on their port . sides and both sustained damage. For some time before as well as at the time of collision both vessels had been sounding fog signals, as had also the lighthouse at Trial and Discovery Islands.
VoL. XX. EXCHEQUER COURT REPORTS. So far as the Japan is concerned the case is very simple. She was on her own shewing clearly violating article 16 by not going at a "moderate speed" in. the P snow-storm (which speed was maintained till the Belridge came in sight) within the principles -fully s considered by me in The Tartar vs. The Charmer (1907), Mayers' Admiralty Law and Practice, p. 536; and Patten vs. The Iroquois (1) to which I refer, and also to The Counsellor (2) . In the second. case the contention that a ship is entitled to run through fog or snow at a speed which is safe for herself but immoderate and dangerous for others is disposed of. Then as to the Belridge. covery Island, . continued to go, I find, through the snow-storm at a speed of upwards of eleven knots, but' upon hearing a ship's fog signal to the southwest, apparently forward of her beam in the direction of Trial Island, .reduced her speed to half, making at the least six knots, and shortly thereafter upon hearing the same whistle repeated almost ahead changed her course one point to the westward, but did not for three or four minutes after half speed reduce to "slow," • not till after she had heard two more whistles from what she then knew was the Japan, "slow" for two .or three minutes sighted the Japan, and put her helm hard aport and engine full speed astern, but .too late to avert the impact. This is putting the matter in as favourable light as possible for the Belridge, based on admissions of her pilot and officers, and yet it clearly shews that she also violated article 16 in two respects, not going at a moderate speed at eleven knots, and not having stopped her engines and navigated with caution when she heard (1) (1913), 18 B.C. 78; 23 W.L.R. 778 401 1917 CANARd N R " A c r Z L W o AY CoBirANY E AM$aiE IP BE L RID( Rea sons for J"`Ill "t-Martin L.J.A Shp, after passing Disand after going; (2) (1913), P. 70; 82 L. J., Adm. 72.
402 EXCHEQUER COURT REPORTS. • VOL. XX. Z the signal of another vessel, apparently forward of her CiA T N R AD E I AN beam, whose position was not ascertained. No satis- ,,P A A I C L I W F A IC Y factory reason was given for her failure to comply R COMPANY with the requirements of the article, and at the very 73. STEAMSHIP least I cannot understand why she did not reduce BELRIDGE her speed to "slow" earlier than she did, especially in Reasons for Judgment. that frequented locality. Her case, therefore, is Martin L.J.A. also covered by the two authorities already cited. I have only to add that it seems an unaccountable thing that none of the witnesses for the Japan will admit that he heard any fog signal from the Belridge though the independent witness H. J. Austin, who was . waiting for her in his launch off Brotchie Ledge and saw the Japan pass him, says, and I believe him, that he heard her signals for some considerable time, nearly an hour, approaching from about Ten Mile Point, passing Discovery and Trial Islands on her course past the Ledge, about three miles from Trial • Island. . It remains, then, to consider the application of the Maritime Conventions Act, 1914, Can. Stats. 1914, Cap. 13, Sec. 2, which came into force on July 1st of that year: Canada Gazette, 6th June, 1914. The relevant portions of the section follow: "Where, by the fault of two or more vessels, damage or loss ' is caused to one or more of those vessels, to u their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault: "Provided that— "(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and
Void. XX. EXCHEQUER COURT REPORTS. "(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed; and . . . • This is the first time, I may say, that it necessary to consider the effect of this has been considered several times in England, begin- ning with The Rosalia (1) where the degree of liability Judgment. was apportioned at 60 and 40 per cent; at four-fifths and one-fifth; The Counsellor thirds and one-third; The Cairnbahn (4) portioned; The Llanelly (5) and three-fourths and one-fourth; thirds and one-third.; The Kaiser Wilhelm equally apportioned; and The Peter apportioned. There is a discussion of the question in this last and leading case, in the House of Lords, and it is there laid down, p. 207, by Lord Atkinson that where "the evidence does not establish that 'a clear preponderance of culpability rests upon one ship, the division of the damages should be half and half." How the apportionment should be arrived at is thus viewed by Lord Sumner, p. 208: "The conclusion that it is possible, to establish different degrees of fault must be a conclusion proved by evidence, judicially arrived 'at, and sufficiently made out. Conjecture will not do; a general leaning in favour of one ship rather than of the other will not (1) (1912), P. 109; 81 L.J., Adm. (6) 1914), P. 141; 83 L.J., Adm. 79; 12 Asp. M.C: 166. (2) (1912), 12 Asp. M.C. 311; 29 T.L.R. 122; 108 L.T. 430. (3) (1913), P. 70; 82 L.J., Adm. 72. (4) (1913), 12 Asp. M.C. 455; 83 (8) (1915), 31 T.L.R., 615; 85 L.J., Adm. 11; 110 L.T. 230. (5) (1913), 83 L.J., Adm. 37; 110 (9) (1915), 13 Asp. M.C. 203; L.T. 269; 12 Asp. M.C. 485, (1914), P. 40. 403 1917 THE CANADIAN " PACIFIC RAILWAY I have found COMPANY section, but it STEAaas:[e BEL RID(~~ R one for The Bravo (2) Martin L.J.A. (3) at two- equally ap- The Umona (6) at The Ancona (7) at two- II. (8) Benoit (9) equally 106; 111 L.T. 415; 12 Asp. M.C. 527. (7) (1915), P. 200; 84 L.J. Adm. 183. _ L.J. Adm. 26. 85 L.J. Adm. 12_ '
EXCHEQUER COURT REPORTS. VOL. XX. 1921 do: sympathy for one of the wrongdoers, too indefinite CAN T A IW DI AN to be supported by a reasoned judgment, will not R ~ AILWŸA do. The question is not answered by deciding who COMPANY v. was the first wrongdoer, nor even of necessity who BEL RAIDMS W was the last. The Act says, `having regard to all the Reasons for circumstances of the case.' Attention must be paid Judgment. not only to the actual time of the collision and the Martin L.J.A. manoeuvres of the ships when about to collide, but to their prior movements and opportunities, their acts, and omissions. Matters which are only introductory, even though they preceded the collision by a short time, are not really circumstances of the case but only its antecedents, and they should not directly affect the result. As Pickford, L.J., observes: 'The liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault.' That must be in fault as regards the collision. if she was in fault in other ways, which had no effect on the collision, that is not a matter to be taken into consideration." I feel that I should say in this case, as Lord Atkinson said in that (p. 207) : "There is not, in my opinion, any such preponderance proved in this case. Both vessels were to blame; and, in my view, the evidence leaves it very uncertain which was most to blame." There will be a reference to the registrar, with merchants, if necessary, to assess the damage. As both ships are to blame, each will bear her own costs, in accordance with the rule laid down in The Bravo case, supra. Let judgment be entered accordingly. Judgment accordingly.
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.