Ex. C.R. EXCHEQUER COURT OF CANADA 131 QUEBEC ADMIRALTY DISTRICT. 1958 Dec. 22 & 23 BETWEEN : 1959 —„— OWNERS OF THE MOTOR VESSEL Jan.20 PLAINTIFF L UBROLAKE AND THE SHIP SARNIADOC DEFENDANT. Shipping—Collision in St. Lawrence River—One ship at anchor—Anchor lights—Regulations for Preventing Collisions at Sea, Rules 11, 29— Rules of the Road, 14(2)--"Forepart" of ship—Anchor lights placed on forward part of vessel comply with Rule 11—Negligent operation of ship bound downriver sole cause of collision—Excessive speed and slackness of watch kept by defendant ship—Attempt to clear anchored ship at too close quarters inexcusable. In an action for damages resulting from the collision in the St. Lawrence River between the Sarniadoc bound downriver and the Lubrolake at anchor, the Court found the collision was brought about solely by the fault and negligence of those in charge of the Sarniadoc. Held: That the anchor lights on the Lubrolake being placed forward of amidship were on the forward part of the vessel as opposed to her after part and so placed complied with Rule 11 of the Regulations for Preventing Collisions at Sea. 2. That under the circumstances even if the anchor lights of the Lubrolake were not so placed as to comply strictly with the rules this was not the cause of the collision which was brought about by the failure of the Sarniadoc to keep clear of the Lubrolake when by the exercise of ordinary prudence and good seamanship she might have done so. 3. That the Sarniadoc was proceeding at an excessive speed, and the slackness of the watch kept by her and the inexcusable attempt to to clear the anchored vessel at too close quarters all contributed to the collision. ACTION for damages resulting from the collision of two vessels in the St. Lawrence River. The action was tried before the Honourable Mr. Justice Arthur I. Smith, District Judge in Admiralty for the Quebec Admiralty District, sitting with assessors, at Montreal. R. C. Holden, Q.C. and A. S. Hyndman for plaintiff. Jean Brisset, Q.C. for defendant. The facts and questions of law raised are stated in the reasons for judgment.
132 EXCHEQUER COURT OF CANADA [1959] 1958 ARTHUR I. SMITH D. J. A. now (January 20, 1959) OWNERS OF delivered the following judgment: THE MOTOR VESSEL This litigation arises out of a collision which occurred Lubrolake v in the St. Lawrence River approximately 3000 feet below THE SHIP Sarniadoc Buoy 5M on the south side of the channel and abreast of Lanoraie, Quebec, at about 0535 hours on October 30, 1956. The Sarniadoc, a twin screw motor vessel of the canaller type of 2289.9 gross tons and 1719.56 tons net register, having an overall length of 253.2 feet and a breadth of 44 feet and manned by a crew of 23 all told, was proceeding downriver on as voyage from Lorraine, Ohio, to Quebec with a full cargo of coal. She was carrying a pilot. Her speed at full ahead was 122 knots. The Lubrolake, a twin screw tanker of 1622.44 tons gross and 1224.56 tons net register, 250.4 feet in length overall and 43 feet in breadth. She was manned by a crew of 27 all told. She was on a voyage from Montreal to Chicoutimi but was at the time of, (and had been for a period of about 32 hours prior to,) the collision at anchor. The case for the plaintiff is that about 0200 hours on October the 30th, shortly after clearing the Ile St. Ours channel, fog began to set in and the Lubrolake went to anchor slightly south of midchannel below Buoy 5M, the current at that point being approximately 1.7 knots. It is alleged that Signal Service was notified by radio-telephone and the anchored position of the Lubrolake was thereafter broadcast by Signal Service at regular intervals to all ships. The plaintiff alleges that after the Lubrolake had been at anchor several hours the lights of a downbound vessel (which proved to be the Sarniadoc) were seen at a distance of about 1000 feet and bearing on the starboard bow of the Lubrolake. Warning signals of one shoist, one long and one short blasts were given by the Lubrolake, but the Sarniadoc came on at speed and with her port bow struck the starboard bow and stem of the Lubrolake causing heavy damage, after which the Sarniadoc continued on fast and disappeared in the fog. It is alleged that the said collision and the resulting damage were caused by the fault and negligence of the Sarniadoc and those on board her, in that they failed to keep a proper lookout, their
Ex. C.R. EXCHEQUER COURT OF CANADA 133 owners failed to provide her with efficient radar or failed 1958 to maintain same in proper order and those on board failed OWNERS OF' to make proper and seamanlike use of the radar or of their IVI L OR T ss radio-telephone and other navigational aids; they navigated Lubrolake the vessel at an excessive speed and failed to sound proper THE S$IP fog signals, failed to ease, stop or reverse their engines in Sarniadoc due time or at all, failed to keep clear of the Lubrolake or A. I. Smith, D.J.A. to exercise the precautions required by the ordinary practice of seamen or the special circumstances of the case and failed to take in due time or at all the proper or any steps to avoid the collision. It is alleged that those in charge of the Sarniadoc failed to comply with Rules 15, 16, 22, 23, 27, 28 and 29 of the Regulations for Preventing Collisions at Sea. On the other hand the case for the Sarniadoc is that, although light fog was encountered by her between Cap St. Michel and Verchères and her speed reduced, the weather then cleared and visibility abeam Verchères was over 5 miles. Under these conditions the engines of the Sarniadoc were put again at full ahead, the radar being on the 2 mile range. It is alleged that the vessel's navigation lights were burning brightly and that a sharp visual and aural lookout was being kept. The defendant avers that in these circumstances and while the vessel was being steered on the Ile St. Ours course, the lights of a number of ships at anchor ahead were sighted and in particular the lights of a vessel aground on the south side of the channel, the lights of a vessel at anchor almost abreast Buoy 5M on the north side of the channel and those of another vessel (which turned out to be the Lubrolake) below Buoy 5M and slightly to the south of midchannel. The defendant alleges that the Sarniadoc's course was altered to starboard to make the bend in the channel above flashing Buoy 5M and in order to come onto the Lanoraie Range Lights course from the Ile St. Ours Range Lights course and that as the vessel was approaching Buoy 5M it was noticed that fog was rising from the water ahead and the engines of the Sarniadoc were put on slow ahead and the order given to steer on 31° True. The pilot decided to manoeuvre the ship in order to bring her to anchor below the Lubrolake, which then was noticed to be exhibiting the anchor lights of a laker. It is alleged that in order to accomplish this the
134 EXCHEQUER COURT OF CANADA [1959] 1958 pilot decided to pass the Lubrolake on her portside and to OWNERS OF do so he altered course to 41° True and when the anchor THE MOTOR VESSEL lights of the Lubrolake came to bear about 5° on the port Lubrolake bow of the Sarniadoc the wheelsman was ordered to go THE SHIP another 10° to starboard and to steer a course of 51° True Sarniadoc i n order to give the Lubrolake a better offing, it being esti- A. I. Smith, D. J. A. mated at that time that the vessels would clear port-to-port at a distance of about 100 feet. It is alleged that during all of this time the hull of the Lubrolake was enveloped in fog and could not be seen but her lake anchor lights were visible above the fog. Suddenly however the bow of the Lubrolake loomed out of the fog bearing dead ahead and so close that the collision was inevitable; the wheel was ordered hard astarboard and both engines full speed astern, with the result that the stem of the Sarniadoc cleared the stem of the Lubrolake but the Sarniadoc's portside by way of forecastle came into contact with the Lubrolake's stem; the engines were immediately stopped and the starboard engines then ordered full ahead in order to swing the stern of the vessel away from the stem of the Lubrolake, but there was a second contact further 'aft than the point at which the first collision occurred. It is alleged that the collision and the damage occasioned thereby were caused by the fault and negligence of the Lubrolake and those on board her, in that the Lubrolake was not carrying the lights prescribed by Rule 11 of the Regulations for Preventing Collisions at Sea and, in particular, was not carrying the proper anchor lights for lake vessels, since her forward anchor lights were not installed forward on the ship but rather were just forward of amidship in contravention of Rule 14 of the Rules of the Road for the Great Lakes; the Lubrolake was not ringing her bell as prescribed by Rule 15 of the said regulations; she appeared to be lying partly athwart the channel and those on board her were not keeping a proper anchor watch. It is alleged that the Lubrolake contravened Rules 11, 15, 27 and 29 of the Rules of the Road. The proof shows that the Lubrolake came to anchor at a point approximately 3000 feet below Buoy 5M and slightly south of midchannel and that she lay heading upstream but at somewhat of an angle inclining towards the south shore.
Ex. C.R. EXCHEQUER COURT OF CANADA 135 The Sarniadoc left Montreal at about 0250 hours and the 1958 weather then being clear she proceeded at full speed until OWNERS OF TI OÎ oR she reached a point between Cap St. Michel and Verchères, VEs where she encountered some fog and reduced her speed. Incbrvolake . As she passed Verchères however she left the fog behind T$Es$IP and her engines again were put full ahead. Those on board Sarniadoc the Sarniadoc admitted that as the vessel approached Buoy , A. J Â h 5M, it was noted that there was considerable dense low lying fog ahead and above the fog the anchor lights of a laker (which later proved to be the Lubrolake) were seen slightly on the Sarniadoc's starboard bow. Shortly after leaving the Ile St. Ours channel the Sarniadoc, which had been on course of about 002°, was brought on 30° True and apparently the pilot had by then decided to pass the anchored laker to starboard and come to anchor below her. According to pilot Dussault the course of the Sarniadoc was altered 10° to starboard shortly after she had come onto course 30° and subsequently he altered a further 10° to starboard to bring her onto a course of 50° with the object of keeping the Lubrolake well to port as he passed her. There is contradiction between the testimony of the pilot Dussault and the first mate of the Sarniadoc as to the speed of the Sarniadoc as she approached the Lubrolake. According to the testimony of the first mate however she continued on at full speed until about 1000 feet from the Lubrolake when half speed was ordered. The first mate, who was with the pilot in the wheelhouse, stated that when the hull or bow of the Lubrolake was first sighted it was only from 25 to 50 feet distant. The pilot estimated this distance at from 20 to 50 feet. Up until that moment only the anchor lights of the Lubrolake showing above the fog had been seen. Although a number of faults were 'alleged against the Lubrolake I am satisfied that none of these have been established unless it is her alleged failure to carry the anchor lights prescribed by law. There is evidence that the Lubrolake blew fog signals and rang her bell when the lights of the Sarniadoc were seen approaching. In any event those in charge of the Sarniadoc were well aware of her presence, and of the fact that she was at anchor, when the Sarniadoc was still over half a mile upstream from her.
136 EXCHEQUER COURT OF CANADA [1959] 1958 The defence, in fact, based its case at the hearing solely OWNERS OF upon the alleged failure of the Lubrolake to carry the anchor THE MOTOR VESSEL lights prescribed by law. Lubrolake The second paragraph of Rule 11 of the Regulations for THE SHIP Preventing Collisions at Sea provides that: Sarniadoc A vessel of 150 feet or upwards in length, when at anchor, shall A. I. Smith, carry in the forward part of the vessel, at a height of not less than 20, D. J. A. and not exceeding 40 feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall be not less than 15 feet lower than the forward light, another such light. Rule 14 (2) of the Rules of the Road for the Great Lakes is to similar effect, except that it requires two white lights on the forward part of the vessel at the same height and not less than ten feet apart arranged horizontally and athwartship. The proof is that the Lubrolake carried two anchor lights at the same level on her foremast and two anchor lights on her aftermast, these being the lights prescribed by the rules governing navigation in the Great Lakes. The basis of the defendant's complaint however is that the anchor lights on the foremast, instead of being in the bow of the vessel, were approximately 92 feet abaft her stem and it was argued that this did not constitute compliance with the rules above quoted. It appears to me that there are two questions arising from this defence: 1) were the anchor lights so placed as to comply with the said rules; and 2) if not, was the fact that they were not so placed the cause or a contributing cause of the collision. Neither the Shipping Act nor the rules above cited define the "forepart" of a ship and, in the absence of any legal definition, it would appear just and reasonable to give the term "forepart" its ordinary connotation and interpret it to refer to that part of the ship leading towards the bow. There is evidence that the distance from the stem at which the forward anchor lights are carried on lake vessels varies widely from vessel to vessel. Apparently the normal distance is approximately 50 feet, but the evidence shows that some vessels carry their forward anchor lights considerably further aft at distances of 75 feet or more from the stem.
Ex. C.R. EXCHEQUER COURT OF CANADA 137 In the case of the Lubrolake, whose overall length is 1958 250.4 feet, the forward anchor lights were 92 feet from the OWNERS OF T stem and therefore about 33 feet forward of amidship and R vs EL hence on the forward part of the vessel as opposed to her Lubrolake v. after part. THE SHIP S a rniadoc As was pointed out by the Court of Appeal in the case — of the Philadelphians Smith A.L., the rule does not say AD JAt h, that the forward light is to be carried at or near the stem, — or that the after light is to be carried on the after part of the vessel. On the contrary, the rule stipulates that the after light shall be carried at or near the stern, while it is sufficient, according to the rule, that the forward light be placed on the forward part of the vessel. After giving the matter the best consideration of which I am capable I am unable to conclude that it has been established that the Lubrolake's anchor lights did not meet the requirements of the rule. The desirability of having the forward anchor lights closer to the vessel's stem would appear to be self-evident, and I can well imagine circumstances (particularly where vessels are compelled to navigate at night or in fog and at close quarters, e.g. in harbours, etc.) where the fact that the forward lights were so far from the stem as they were in the case of the Lubrolake might contribute to the danger of collision. However, in the circumstances of the present case, I am convinced that even if the anchor lights of the Lubrolake were not so placed as to comply strictly with the rules this was not the cause of the collision which, on the contrary, was brought about by the failure of the Sarniadoc to keep clear of the Lubrolake when by the exercise of ordinary prudence and good seamanship she might have done so. The anchor lights of the Lubrolake had been seen by those on board the Sarniadoc when she was approaching at a distance of approximately 3000 feet and at that time the Lubrolake was recognized as a laker at anchor. The river at that point is navigable over a width of about 2500 feet and I am satisfied (and I am so advised by the assessors) that in such circumstances there was ample time 1 [1900] P. 43 67295-6-3a
138 EXCHEQUER COURT OF CANADA [1959] 1958 and space for the Sarniadoc to have so directed her course OWNERS OF so as to have met and passed the Lubrolake safetly star- THE MOTOR VESSEL board to starboard. Although there was some suggestion Lubrolake v. that this might have involved difficulty having regard to a THE sou' vessel anchored below the Lubrolake, the proof does not Sarniadoc support such a proposition and pilot Dussault frankly A.I. Smith, D. J. A. admitted that this vessel was so far below the Lubrolake that it presented no difficulty whatever. Instead of passing to port of the Lubrolake (so as to leave her to starboard) the Sarniadoc elected to pass her to starboard which I am convinced (and I am so advised by the assessors) she had ample time and space to accomplish if she had altered course to starboard in time and had been proceeding at a speed consistent with the rules and good seamanship having regard to thick fog and other circumstances. (Rule 11 and Rule 29.) Pilot Dussault testified that it was his intention to clear the Lubrolake at a distance of 25 feet. There is nothing in the evidence to excuse or justify the action of the Sarniadoc in attempting to clear the anchored vessel at such close quarters and, having regard to the heavy fog, the speed of the Sarniadoc and the fact that those on board her could not see the hull of the Lubrolake and therefore could not know how far her forward anchor lights were from her stem, the action of the Sarniadoc in attempting to do so was foolhardy and reprehensible. In my opinion the proof amply justifies the conclusion not only that the course of the Sarniadoc was negligently laid in such a way as to needlesly bring her into too close proximity with the anchored vessel, but that the Sarniadoc was navigated at a speed which having regard to the fog was excessive and contrary to law. I am convinced moreover that the excessive speed of the Sarniadoc and the slackness of the watch kept by her indicated by the fact that the hull of the Lubrolake was only sighted at a distance of from 20 to 50 feet and that her fog signals were not heard by those on watch of the Sarniadoc were faults contributing to the collision. I find therefore that the collision was brought about solely by the fault and negligence of those in charge of the Sarniadoc.
Ex. C.R. EXCHEQUER COURT OF CANADA The plaintiff's action therefore is maintained with costs; and failing agreement by the parties as to the amount of OwNERS damages sustained by the plaintiff there will be a reference VESSEL to the Registrar for the purposes of having said damages established in accordance with the usual practice. 67295-6--31a 139 1958 OF THE MOTOR Lubrolake v. THE SHIP Sarniadoc A. I. Smith, Judgment accordingly. D. J. A.
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