Ex. C.R. EXCHEQUER COURT OF CANADA 215 BETWEEN : 1958 Oct. 30 DONNACONA PAPER COMPANY APPELLANT; 1959 LIMITED Mar. 2 AND JOSEPH DESGAGNE RESPONDENT. Shipping—Damage at berth—Vessel invitee of wharfinger—Duty to warn. The plaintiff's motor barge while docked alongside the defendant's wharf received damage by taking the ground at low tide so as to render her a total loss. In an action in damages brought by the plaintiff against the defendant in the Quebec Admiralty District, Smith, D.J.A., held that the barge was rendered a total loss due to the fact that the berth at which she docked was defective and unsafe. That the berth was owned and controlled by the defendant and the plaintiff's vessel was there as an invitee, and on business relating to that of the defendant. That the defendant had not established it had taken reasonable measures to make the berth safe for vessels docking at the wharf, or for the plaintiff's vessel in particular, nor had the defendant warned or notified the plaintiff of the unsafe condition of the berth and in the circumstances must be held liable for the loss and damage sustained as a consequence. Held: (Affirming the judgment appealed from) that where the Court below had ample evidence on the matters of fact and good reasons on the question of law to justify its decision, an appellate tribunal ought not to disturb the decree. Fraser v. S. S. Aztec 20 (Can.) Ex.C.R. 450 at 452, followed. APPEAL from the judgment of the District Judge in Admiralty for the Quebec Admiralty District. The appeal was heard before the Honourable Mr. Justice Dumoulin at Quebec. Jacques deBilly, Q.C. for appellant. Maurice Jacques and Leopold Langlois for respondent. DIMOULIN J. now (March 2, 1959) delivered the following judgment: This is an appeal from a judgment, rendered on January 16, 1958,_ by the Honourable Arthur I. Smith, then sitting in Exchequer Court of Canada for the Quebec Admiralty District. The respondent's action to recover damages sustained by his vessel, supposedly due to negligence of the respondent, was allowed by the learned trial judge. 71111-9-1îa
216 EXCHEQUER COURT OF CANADA [1959] 1959 Joseph Desgagné, plaintiff in the Court of first instance, DbNNACONA a master mariner, owned and operated, at all material times, PAPER LT D. G' a motor vessel of small tonnage, 30 tons net, called the v• St-Mathieu. DESGAGNE On August 8, 1955, this barge loaded with a cargo of pulpwood, had berthed, some hours previous, at one of the appellant's wharves opposite Donnacona village, on the St. Lawrence river. It is claimed that as the tide ran out, and on account of some unevenness or otherwise defective condition of her berth, the St-Mathieu grounding, was strained and damaged to such an extent that she became a complete loss. Respondent alleges the customary rules of law obtaining in, similaroccasions: implied instructions to use this berth; a consequent representation, if not an actual warranty, that it was safe; that appellant had attended to its security in the absence of any warning to the contrary. More precisely, paragraph 10, sub-paragraphs a) b) and c), of the statement of claim reproaches defendant below with having: a) Allowed ... said vessel to be placed in a berth which he knew or had the means of knowing was not safe for her to lie in; b) Failed, to take any or proper steps to ascertain whether the berth was safe before allowing the said vessel to be berthed therein; c) Failed to warn the master of the said vessel that the berth was unsafe or that he had not taken any or proper steps to ascertain that, the berth was safe. The defendant below admits owning and occupying this particular quay, when the mishap occurred, but from then on denies all other allegations, emphasizing that it received no remuneration for affording wharf facilities; that it was not owner or occupier of the river bed; that Captain Des -gagné was well aware of the immediate conditions since he previously had moored his barge at this precise berth. Furthermore, paragraph 13 of the amended defence reads: 13. Defendant had taken adequate steps to render the said berth safe. Finally, the factual cause of the loss (amended defence, paragraph 18) is attributed to the St-Mathieu's "... bad state of repairs, and because ... the greater part of its cargo
Ex. C.R. EXCHEQUER COURT OF CANADA 217 was stowed on deck and liable to capsize". Also the 'ship-1959 master or his crew would have omitted necessary precautions DONNAcoNA when berthing the motor barge "... and more particularly PAIEE C o. failed to moor said vessel properly". . DESGAGNE An ultimate repudiation of responsibility .to maintain — the berth in a fit or proper state concludes the statement of Dumoulin J. defence, paragraph 19. Needless to say the charge of pulp- wood was intended for delivery at the Donnacona Com- pany's paper mill close by. An interlocutory motion urged by appellant must now be disposed of before devoting further consideration to the merits of this appeal. Setting forth the remedy foreseen in s. 166 of the General Rules and Orders in Admiralty, this motion asserts that: WHEREAS two witnesses for the appellant, ERIC AUBRY CROCKER [the transcript of evidence reads: Crockett] and JAMES BARRYMAN had testified before the Court in the English language; WHEREAS the transcript of the evidence of those two English-speaking witnesses was hopelessly full of errors and omissions, which the attorneys of record, with the Court reporter, could not correct and rectify adequately; With an inference of grievous and irremediable prejudice to appellant, were the case submitted with a transcript containing such errors and inaccuracies, it is moved to have Messrs. Crocker and Barryman " ... heard again before the Registrar ..." and the ensuing record filed as part of the proceedings. I reserved my decision on this point and directed counsel to proceed with the argument. A careful perusal of the impunged testimonies convinces me that such a request cannot be entertained. True, Crocker's evidence (or is it Crockett?), as reproduced on pages 88 to 93, deserves the double qualification of incoherence and idiomatic nonsense. But, on the other hand, that of James Barryman, far more important (see transcript, pages 55 to 62 and 84 to 87), in his capacity of appellant's wharf superintendent, is readily understandable and satisfactorily covers, inter alia, all the ground in which Mr. Crocker's would-be version through no fault of his, was made to flounder. Errors and inaccuracies mar only a testimony of mediocre purport, a shortcoming fully compensated elsewhere, which therefore does not becloud a fair appreciation of all essential f actors.
218 EXCHEQUER COURT OF CANADA [1959] 1959 Adverting now to the subject-matter at issue, I would DONNACONA review that which impresses me as constituting the gist, in PAPER D.o. fact and law, of the learned trial judge's decision. V. DESGAGNE In pursuit of its industrial needs, Donnacona Paper Corn - J. pany, owned several wharves alongside which its suppliers Dumoulin could berth their lumber loaded schooners or barges, toll free. Mr. Leslie Palmer, one of appellant's vice-presidents (cf. pages 53 and 54), and Mr. James Barryman, wharf superintendent, make this clear (cf. p. 56). For some few years past, the respondent had performed several trips to Donnacona, and this ill-fated call was the eighth one in 1955. However, as pointed out by the vessel's skipper, Gaudiose Desgagné, one of the owner's many brothers, never before, in 1955, had the St-Mathieu slipped into moorings close by the eastern or Old Wharf, at right angles with the newer quays (cf. p. 47). When asked if he was aware that the river bed had a much softer consistency some few feet off the wharf, Desgagné replies negatively, adding he received no warning of this danger, and that had he known of it, he surely would not have run the risk of his vessel grounding on an uneven or canting surface (cf. p. 44). It is, I trust, a matter of general knowledge that most river beds consist of mud overlying streaks of jagged rock, the St. Lawrence being no exception to the rule. In shallow waters, along tidal wharves, this coating becomes shifting or disturbed by the ebb and flow, as also by the strain of grounding vessels, and the churning of propellers as they arrive or depart. Such are the prevalent conditions herein suggested. I noted, and will summarize accordingly, the evidence of four defence witnesses, with their indication of remedial precautions resorted to. Mr. Barryman says the river bottom affords, by the wharf, a coating of mud; that since the accident no dredging operations were undertaken on this spot, and in reply to a pointed question from his company's counsel, whether " ...the ship was damaged by rocks there?", answers: "No." (cf. p. 61). This last assertion, nonetheless, leaves un-rebutted a preceding one, at page 60, that he would
Ex. C.R. EXCHEQUER COURT OF CANADA 219 "... qualify the ground, as far as the grounding is con-1959 cerned", as " ...allright, but it is not too convenient for the DONNACONA bottom of the ships". PAPER CO. Lm. Fernando Ratté, a labourer in the company's employ, v. DESGAGNE indicates it is customary, from the spring season on, to Dumoulin J. clear the muddy bottom by the wharves in order to prevent silting-up. Ratté also notes that occasional "lumps" develop, or in his own words: "Ça peut arriver qu'il y ait des bosses, ce que la mer entraîne, on ne voit pas tout le temps", (pp. 76, 77). One Ubaldo Marcotte, then engaged in general maintenance jobs, explains why it became necessary to dredge the river ooze piling up after a certain time. This occurred, with consequent removals, about twice yearly. In 1955, up to July, one dredging was had (cf. pp. 67, 68). The defendant below also called a nautical mechanic and former shipmaster, Gabriel A. Dufour, who claims a long-standing experience of local wharfing conditions at Don-nacona. A rather verbose and somewhat exuberant person, Dufour describes the berth as one of the best, with a coating of mud six to seven feet thick, and a harmless rock spread underneath: "C'est comme si on aurait échoué sur de la plume; . c'était du papier mâché... " (cf. p. 5). Despite this auspicious prelude, the eider-down touch came to an abrupt end, as one may gather from Dufour's further statement on page 8: " ... du côté sud-ouest, il y avait un trou où c'était plus clair; si le bateau échouait sur ce trou-là, il aurait cassé en deux. C'était toutes des choses qu'il fallait savoir". This appraisal of the state of things was indeed vindicated throughout, with a trifling oddity: the good ship St-Mathieu instead of splitting in twain, elected to break open. Another "old timer" who, during 25 years, navigated between the lower St. Lawrence, Donnacona and the upper reaches, Captain Joseph Harvey, cited by the respondent, is quite emphatic concerning some concealed perils at this place. Harvey is asked: "Vous avez été là combien de temps?" He replies: "Ça fait peut-être vingt (20), vingt-cinq (25) ans que je vais là." Next question: "D'après vous, pour entretenir l'échouage (grounding berth) comme celui de Donnacona, est-ce qu'il serait suffisant de dragger
220 EXCHEQUER COURT OF CANADA [1959] 1959 ça une (1) ou deux (2) fois par année?" Answer: "Non. DONNACONA Ah non. Ah non. Non, faudrait que l'échouage de Don-PAPER CO. nacona, la place où on se met les petits bateaux, faudrait v. DESGAGNE que ce soit arrangé à tous les jours." I am of the opinion that Barryman falls far within and Dumoulin J. Joseph Harvey somewhat, beyond the objective mark; the former when he asserts dredging was superfluous, the latter in claiming this berth required a daily dragging. The upshot would be that soundings, at requisite intervals, though necessary, were practically omitted and no warning given. Appellant also failed to show the ship's perilous listing, at low tide on August 8, resulted from a top-heavy cargo or improper mooring arrangements. Lumber stowed on deck did not exceed eight feet in height, a normal practice, according to the shipmaster G. Desgagné and Joseph Harvey (cf. pp. 41 and 26). As for the barge's attachment alongside the quay, it was attended to in the usual way: four cables being fastened, two astern and two at the bow. Captain Harvey corroborates Desgagné regarding the adequacy of this method. The learned trial judge assuredly did not err in his conclusion of facts that the berthing space, extended to the St-Mathieu, hid à lurking insecurity which appellant took no steps to correct and made no attempt to disclose. What would accordingly be the legal implications flowing from this set of facts? Roscoe's Admiralty Practice, 5th Edition, page 85, procures a comprehensive analysis of the law in such matters. I quote: Harbour and dock authorities owe a duty to the owners of the vessels which they invite to enter and make use of the harbours, docks and berths under their control, to use reasonable care to ensure that such harbours and berths are reasonably safe for the vessels which they invite to them, or to give warning of any defect not known to the ship-owners, or that they have not taken the steps necessary to satisfy themselves that the berth is safe, so as to negative the representation implied in the invitation to the vessel to make use of the berth... . A like duty is owed by a wharfinger to the vessels which he invites to make use of his wharf, although the berth at which vessels lie whilst alongside the wharf is not subject to his control. The duty extends to the occupier of a wharf, and to a wharfinger who received no direct benefit from the use of his wharf; in the latter case it is sufficient that he should enjoy some indirect advantage, such as the receipt of freight for the land carriage of goods discharged at his wharf... .
Ex. C.R. EXCHEQUER COURT OF CANADA 221 The duty is not an absolute duty in the nature of a warranty, but 1959 is limited to the taking of reasonable care to ensure the safety of the Vessel. DONNACONA PAPER CO. LTD. Two well known precedents: the Moorcock'- and Grit DEBV. GNE cases, the latter, more especially, have such analogy to the — actual one that relevant excerpts will bear repetition, albeit Dumoulin J. reproduced in the decision below. THE MoORcocK The defendants, wharfingers, in consideration of charges for landing and storing the cargo, agreed to allow the plaintiff, a shipowner, to discharge his vessel at the defendants' jetty, which extended into the River Thames, where the vessel must necessarily ground at low water. The bed of the river adjoining the jetty was vested in the Conservators. The defendants had no control over the bed of the river, and had taken no steps to ascertain whether it was or was not a safe place for the vessel to lie upon. The vessel, on grounding, sustained damage from the uneven condition of the bed of the river adjoining the jetty :— Held, affirming the judgment of Butt, J., that the defendants were liable, for the use of their premises by the plaintiff could not, under the circumstances, be had without the vessel grounding, and the defendants must, therefore, be deemed to have impliedly represented that they had taken reasonable care to ascertain that the bottom of the river adjoining the jetty was in such a condition as not to cause injury to the vessel. Lord Esher, M.R. commented as follows:— Now the owners of the wharf and the jetty are there always, and if anything happens in front of their wharf they have the means of finding it out, but persons who come in their ships to this wharf have no reasonable means of discovering what the state of the bed of the river is until the vessel is moored and takes the ground for the first time. What, then, is the reasonable implication in such a contract? In my opinion honest business could not be carried on between such a person as the respondent and such people as the appellants, unless the latter had impliedly undertaken some duty towards the respondent with regard to the bottom of the river at this place. If that is so, what is the least onerous duty which can be implied? In this case we are not bound to say what is the whole of the duty. All we have got to say is whether there is not at least the duty which the learned judge in the court below has held does lie on them and to be implied as part of their contract. The appellants can find out the state of the bottom of the river close to the front of their wharf without difficulty. They can sound for the bottom with a pole, or in any way they please, for they are there at every tide, and whether they can see the actual bottom of the river at low water is not material. Supposing at low water there were two feet of water always over the mud, this would make no difference. Persons who are accustomed to the water do not see the bottom of the water with their eyes, they find out what is there by 1 [1889] 14 P.D. 64, 66, 67.
222 EXCHEQUER COURT OF CANADA [1959] 1959 sounding, and they can feel for the bottom and find out what is there DONNACONA with even more accuracy than if they saw it with their eyes, and when PAPER Co. they cannot honestly learn what they are 'desiring to learn without this, Lm. it is implied that they have undertaken to see that the bottom of the V. river is reasonably fit, or at all events that they have taken reasonable DEsoAONE care to find out that the botom of the river is reasonably fit for the Dumoulin J. purpose for which they agree that their jetty should be used, that is, they should take reasonable care to find out in what condition the bottom is, and then either have it made reasonably fit for the purpose, or inform the persons with whom they have contracted that it is not so. That I think is the least that can be implied as their duty, and this is what I understand the learned judge has implied, and then he finds as a matter of fact that they did not take reasonable means in this case, and in that view also I agree. I therefore think the appellants broke their contract, and that they are liable to the respondent for the injury which his vessel sustained. The Gritl case, as already indicated, has many striking aspects in common with the instant one; comparable conditions prompted Hill J. in Probate Division, to apply the doctrine of "invitee". It was held: (1) That, although the defendants did not charge dues for the use of the wharf, they derived benefit therefrom by reason of the freight earned for the land carriage of the cargo, and that they were in the position of persons who had invited vessels to use the wharf; that they owed a duty, therefore, if they had not taken steps to see that the berth alongside the wharf was safe for vessels to ground in, to warn that they had not done so. Hill J. then proceeded to elaborate those statements of law and I quote from his speech: In my judgment the defendants did invite the Grit to load at the wharf and came under the liabilities of those who own a wharf but not the bed of the river alongside the wharf, and invite ships to load at the wharf. Further, the defendants knew that ships which loaded at the wharf often did take the ground and, by their servant the stationmaster, knew that the Grit was of a size to take a cargo of 280 tons, and they knew, or ought to have known, that the Grit was likely in the ordinary course to take the ground. Their duty therefore extended to the safety of the ship as a ship which might take the ground when alongside the wharf. The duty is defined in The Moorcock (14 P.D. 64, 70). In that case Bowen L.J. said: "I think if they let out their jetty for use they at all events imply that they have taken reasonable care to see whether the berth, which is the essential part of the use of the jetty, is safe, and if it is not safe, and if they have not taken such reasonable care, it is their duty to warn persons with whom they have dealings that they have not done so" . . . 1 [1924] P.D. 246, 252.
Ex. C.R. EXCHEQUER COURT OF CANADA 223 Numerous other decisions to a like effect could be added 1959 to those above. DONNACONA PAPER CO. I also fully agree with Audette J., who spoke thus, in re LTD. Fraser v. S.S. Aztec': V. DESGAGNE Sitting as a single judge, in an Admiralty Appeal from the judgment of a judge of first instance assisted [or not] by two assessors, while Dumoulin J. I might with diffidence, feel obliged to differ in matter of law and practice, yet as regards pure questions of fact, I would not be disposed to interfere . . . unless I came to the conclusion that it was clearly erroneous. Indeed, as said by Lord Langdale, in Ward vs Painter (1839, 2 Beay. 85) : "A solemn decision of a competent judge is by no means to be disregarded, and I ought not to overrule without being clearly satisfied in my own mind that the decision is erroneous". The Court below had ample evidence on the matters of fact and good reasons on the question of law to justify its decision; therefore an appellate tribunal ought not to disturb the decree. The appeal will be dismissed with costs, including those on appellant's interlocutory motion. Judgment accordingly. Reasons for judgment of Smith berth was safe for the said vessel D.J.A.:— and that the defendant had taken The plaintiff sues to recover all reasonable means to make it damages alleged to have resulted safe, or that he would give plain-from the total loss of its motor- tiff due notice if said berth was vessel St. Mathieu. It is alleged unsafe. The plaintiff alleges, more-that on or about August 7, 1955, over, that it was the duty and the said vessel while berthed with obligation of the defendant to take a full cargo alongside the wharf all reasonable measures to make at Donnacona, known as the "Quai it safe and/or to give notice to aux barges" or "Le Vieux Quai", the plaintiff if it was or became which wharf was owned and unsafe. In particular, it is alleged occupied by the defendant, took that the defendant was at fault, the ground at low tide and owing in that: to the uneven and defective state of the said berth was so strained a) He allowed the said vessel and damaged that she became a to be placed in a berth which the defendant knew or had total loss. means of knowing was not It is alleged that the defendant safe for her to lie in; impliedly ordered the said vessel b) Failed to take any or proper to use the said berth to await her steps to ascertain whether turn to discharge cargo and. by so the berth was safe before allowing the said vessel to be doing warranted that the said berthed therein; 120 (Can.) Ex. C.R. 450 at 452.
224 EXCHEQUER COURT OF CANADA [1959] 1959 e) Failed to warn the master of the deck raised several feet, with the said vessel that the berth the result that the balance of the DONNACONA w no a t s t u a n k s e a n fe p o r r o p th e a r t s h t e had vessel was defective and it was the PAPER CO. eps to LTD. ascertain that the berth was remodelling and bad state of re- v. safe; pair of the said vessel which DESGAGNE The plaintiff concludes accord- caused the disaster. DumoulinJ. ingly that the defendant be held The defendant alleges that the liable in respect to the damage plaintiff's vessel by reason of its sustained by the plaintiff. construction and the fact that the For plea to the plaintiff's action, greater part of its cargo was stowed the defendant declares that it is on deck was liable to capsize, and ignorant as to plaintiff's ownership the plaintiff and its employees of the said vessel; it is admitted failed to take the necessary precau-that at all material times the de- tions when berthing the vessel to fendant was the owner or occupier insure against such an eventuality of the said wharf, but denies all and, in particular, failed to moor the other allegations of plaintiff's the vessel properly. statement of claim, and, in partie- It is alleged that the defendant ular, denies that the defendant was under no obligation to main-was the owner or occupier of the tain the said berth and further- said berth. more that if same was unsafe and The defendant alleges, moreover, defective, which is denied, it was that it received no remuneration due to the fact that vessels berth-from the plaintiff for the use of ing there had left the said berth the said wharf and that the de- when the tide was still low, or was fendant was not the owner or due to the tide and sea or to other occupier of the river bed. It is causes over which the defendant alleged that the plaintiff had had no control and could neither berthed his said vessel at the said foresee or prevent. wharf on previous occasions and For answer to defendant's state- was fully aware of the condition ment of defence, the plaintiff prays of the berth and/or had full acte of the various admissions con-opportunity to ascertain its condi- tamed in same and in the partic-tion at both high and low tides. ulars furnished in respect thereof The defendant alleges that it and otherwise denies the allegations had taken adequate steps to render of said defence. The plaintiff the said berth safe; that the con- dition of same could be examined alleges, moreover, .that the said easily at low and high tide and vessel was properly constructed, that it had previous to October 29, was in an excellent state of repair, 1955, examined the said berth which properly loaded and moored, the at that time was safe for the whole in accordance with the usage plaintiff's vessel. It is alleged that normally practiced for such vessels the vessel had berthed on numer- engaged in that trade in the ous occasions preceding October 29, St. Lawrence River. 1955, and no accident had occurred The St. Mathieu; with a full or been reported to the defendant, who had no reason to believe that cargo of pulpwood, arrived at the said berth was unsafe. Donnacona on the evening of The defendant alleges that the August 7, 1955, and tied up along-plaintiff's said vessel was in a bad side the quai known as "Le Vieux state of repair and had been re-Quai" or "Le Quai aux Barges" at modelled and that, in particular, about 11:00 p.m. (approaching high her bottom had been altered and tide).
Ex. C.R. EXCHEQUER COURT OF CANADA At about 5:00 a.m. the following the said mud and debris, there morning, it was noted that the was a solid base which was con- vessel was canting somewhat to siderably higher close to the wharf DO port (away from the wharf). than it was further away. Accord-During the hour or hour and a ing to these witnesses it was this half which followed, the St. Mathieu continued to cant more caused the and more to port and when she over onto her port-beam when she finally grounded at low tide she grounded. canted completely over onto her port-beam in such a manner that abovenamed was to some extent she was so strained and damaged corroborated by that of the wit- as to be rendered a total loss. It is established that the wharf on behalf of the defendant, who at which plaintiff's vessel docked testified that the use made by was owned and controlled by the vessels of the said berth often had defendant and that the St. Mathieu was carrying a cargo destined for on the river bed and stated that the defendant's plant. The evidence satisfies me that one or more holes had existed in the St. Mathieu was moored at the river bed at or close to the the said wharf in the generally place where the accepted manner and that she was berthed. Duf our also acknowl-there at the implied invitation, or edged the danger of damage to a at least with the permission, of vessel grounding at a place where the defendant and on business re- such a hole or unevenness existed. lating to the latter. The plaintiff complains that the produced two witnesses who wreck of the St. Mathieu was ported to attribute the accident caused by the uneven, defective to the fact that the and dangerous condition of the had been improperly moored and, berth due to the fact that the river in particular, tied up too close to bottom at that point was uneven, the wharf. Neither of these wit-the sound or stable portion of the nesses however saw the river bed close to the wharf being at her berth prior to the grounding considerably higher than that part and their testimony appeared to further away from the wharf, with be little more than mere surmise the result that when the vessel or supposition. Furthermore, the grounded at low tide, as she was bound to do, she tipped or canted testimony of several witnesses away from the said wharf. Captain Gaudiose Desgagné, was that the Master of the St. Mathieu, testified erly loaded and moored in accor-that after the vessel had grounded dance with the approved practice. he walked on the river bed and made an inspection of it and of half of the defendant testified that the vessel's bottom. His testimony, the river bed where the which is corroborated by the testi- mony of the plaintiff and of Ross grounded, being perfectly level and Desgagné, a member of the crew covered with mud, provided a safe of St. Mathieu, is that although and excellent berth. The testimony there was soft mud, mixed with of these witnesses however was sawdust and bark on the river bed based solely upon a visual inspec-which made it appear level, beneath tion. None of them had ever 225 1959 C P N AP N ER O C N O A . LTD. v. unevenness in the river bed which DESGAGNE St. Mathieu to cant Dumoulin J. The testimony of the witnesses nesses Dufour and Marcotte heard the effect of causing unevenness they knew that from time to time St. Mathieu was On the other hand the defendant pur-St. Mathieu St. Mathieu heard on behalf 'of the plaintiff St. Mathieu was prop-Several witnesses heard on be- St. Mathieu
226 EXCHEQUER COURT OF CANADA 1959 taken soundings and consequently were without knowledge of what Butt J.; That the defendants DONNACONA lay belOW the soft mud and water. were liable for the use of their PAPER Co. LTD. I am convinced that although under the circumstances be had v. the bed of the river at low tide without the vessel grounding, and DESGAGNE may have appeared to be level, the defendant must therefore be Dumoulin J. this p a P p pearance was attributable to the fact that the river bed was reasonable care to ascertain that covered with soft mud, mingled the bottom of the river adjoining with sawdust and bark which filled all of the holes and unevenness in such a way as to conceal these irregularities, the existence of which could only have been ascertained and the jetty are there always, and by soundings. The weight of the evidence justi- of finding it out, but persons who fies the conclusion that the river come in their ships have no reason- bed at the place where the St. Mathieu was berthed was in fact the state of the bed of the river uneven and that the canting and takes the ground for the first time. consequent damage to the plain- What then is the reasonable tiff's vessel was brought about by implication in such a contract? the fact that she took the ground at a berth which was unsafe for co a vessel of her type. It appears to be well established unless the latter had impliedly that the owners or persons having un control of a wharf who invite ves- tom of the river at this place. If sels to make use of such wharf that is so, what is the least onerous owe such vessels the duty of tak- duty which can be implied? In ing reasonable care to ascertain and assure that the bottom of the that we have got to say is whether river adjoining same is in such a there is at least the duty which condition as not to cause injury to the learned judge in the court or endanger vessels berthing there. The Moorcock•1 The defendants, wharfingers, in the river close to the front of their consideration of charges for land- wharfs without difficulty. They can ing and storing a cargo, agreed to sound for the bottom with a pole, allow the plaintiff, a shipowner, to discharge his vessel at the defen- they are there at every tide, and dant's jetty which extended into whether they can see the actual the River Thames, where the bottom of the river at low water vessel must necessarily ground at is not material. Supposing at low low water. The bed of the river water there were two feet of water adjoining the jetty was vested in always over the mud, this would the Conservators (not in the make no difference. Persons who defendant). The defendants had are accustomed to the water do no control over the bed of the river not see the bottom of the water and had taken no steps to ascertain with their eyes, they find out what w pl h a e c t e h f e o r r i t t h w e a v s e o s r s w el a t s o n l o ie t a u p s o af n e . is their sounding and they can feel The vessel on grounding sustained the bottom and find out what is damage from the uneven condition there with much more accuracy of the bed of the river adjoining than if they saw it with their eyes the jetty. 114 P. 64. [1959] Held: affirming the judgment of premises by the Plaintiff, could not repre- s de n em te ed t t o h h a a t v t e h i e m y p l h ie a d d ly t aken a th s e n o je t t t t o y c w au a s s e i n in s ju u r c y h t o a t c h o e n v d e i s ti s o e n l. LORD ESHER, M.R. page 66: Now the owners of the wharf if anything happens in front of their wharf they have the means able means of discovering what is until the vessel is moored and In my opinion honest business s u uc ld h n a o p t e b rs e o c n a a rr s i e th d e o r n e s b p e o t n w d e e e n n t and such people as the appellants, re d s e p r o ta n k d e e n n t s o w m it e h d re u g t a y r t d o t w o a t r h d e s b t o h t e this case we are not bound to say what is the whole of the duty. All a b n el d o w is h to a s b h e e i l m d d p o li e e s d l i a e s o p n a t r h t e o m f their contract. The appellants can find out the state of the bottom of or in any way they please, for and when they cannot honestly
Ex. C.R. EXCHEQUER COURT OF CANADA learn what they are desiring to Moorcock: In that case Bowen J. learn without this, it is implied that they have undertaken to see jetty for use they at all events DONNACONA that the bottom of the river is imply that they have taken reason- PAPER Co. reasonably fit, or at all events that able care to see whether the berth, they have taken reasonable care to which is the essential part of the find out that the bottom of the use of the jetty, is safe, and if it is DESGAGNE river is reasonably fit for the pur- not safe, and if they have not poses for which they agree that taken reasonable care, it is their their jetty should be used, that duty to warn persons with whom is, they should take reasonable care they have dealings, that they have to find out in what condition the not done so. bottom is, and then have it made reasonably fit for the purpose, or inform the persons with whom they have contracted, that it is not •so, That I think is the least that can be implied as their duty. . . . owe a duty to the owners of the The Grit:1 In the case of The Grit the defendants were the and make owners of the wharf but not of docks and berths under their con- the river bed. They collected no charges from the plaintiff for use berths are reasonably safe for the of the said wharf. The vessel took vessels which they invite to them, the ground and was damaged by or to give warning of any defect reason of the presence of stones no on the river bottom. Held: (1) That although the that the berth is safe, so as to defendants did not charge dues for negative the representation implied the use of the wharf they derived in the invitation to the vessel to benefit therefrom by reason of the make use of the berth. freight earned for the land carriage of the cargo and that they were finger to the vessels which he in the position of persons who invites to make use of his wharf, had invited vessels to use the although the berth at which ves-wharf ; that they owed a duty, sels therefore, if they had not taken is not subject to his control. The steps to see that the berth along- duty extends to the occupier of a side the wharf was made safe for wharf, and to a wharfinger who vessels to ground in, to warn they received no direct benefit from the had not done so. HILL J. at page 252: In my judgment the defendants carriage of goods discharged at his did invite The Grit to load at the wharf. wharf and came under the liabi-lities of those who own a wharf in the nature of a warranty, but but not the bed of the river along- is limited to the taking of reason-side the wharf, and invite ships abe care to ensure the safety of to load at the wharf. Further, the defendants knew that ships which l t o h a e d g e r d o a u t n t d h e a n w d h t a h r e f i o r f s te e n rv d a i n d t t t a h k e e that his vessel was damaged by the station-master, knew that The Grit defective and dangerous condition was of a size to take a cargo of of the river bed at the berth 280 tons, and they knew, or ought provided by the defendant, the to have known, that The Grit was likely in the ordinary course to latter, in order to escape liability, take the ground. Their duty there- was obliged to prove either that: fore extended to the safety of the a) it had taken all reasonable ship as a ship which might take measures to render the said berth the ground when alongside the wharf. The duty is defined in the safe and proper;, or b) that it has 1 [1924] P. 266. 2119061 P. 48 at 76. 227 1959 said: I think if they let out their Lmn. a. Dumoulin J. See The Bearn2. Also The Kates. Roscoe 's Admiralty Practice, 5th Edition, p. 85: Harbour and dock authorities vessels which they invite to enter use of the harbours, trol, to use reasonable care to ensure that such harbours and th t a k t n th o e w y n h a to v e t h n e o t s h ta i k p e o n w t n h e e r s s t , e o p r s necessary to satisfy themselves A like duty is owed by a whar- lie whilst alongside the wharf use of his wharf ; in the latter case it is sufficient that he should enjoy some indirect advantage, such as the receipt of freight for the land The duty is not an absolute duty the vessel. The plaintiff, having established 3 [19351 P. 100.
228 EXCHEQUER COURT OF CANADA [1959] 1959 given plaintiff due warning of the either to determine the condition DONNACONA unsafe and defective nature of the of the berth or to insure that it PAPER Co. said berth. was safe for vessels docking there. LTD. It was not pretended by the de- In fact, very little attempt was v. fendant that any notice or warning made to show that any care or DESGAGNE was given to the plaintiff. On the attention had been devoted to the Dumoulin J. contrary the defendant, by its condition of the river bed at the plea, merely denies that the said place where the St. Mathieu berth was in any way defective or grounded and such evidence as dangerous, was submitted was merely to the It remains to determine whether effect that it was a practice of the the defendant has discharged the defendant to do dredging twice a burden of proving that it exercised Year. The witness Marcotte how-all reasonable measures to provide ever, who testified as to this a berth which was safe for the practice, had to admit that he did vessels making use of the said not know whether dredging had, wharf, and, in particular, for the in fact, been done at the place St. Mathieu. of the accident in 1955 prior to the Not only does the proof show loss of the St. Mathieu, but he that the river bed at the said berth thought not. was uneven and unsafe at the time The witness Berryman, Wharf of the grounding of the St. Mathieu Superintendent for the defendant, and that it was this unevenness and the person who was in charge which brought about the loss of of dredging, was unable to state the said vessel, but there is evid- when dredging had last been done ence that it was known to the prior to the accident. defendant that as a result of the There is therefore no actual action of the water and of the proof that any dredging or other repeated berthing and manoeuvring work had been performed on or of numerous vessels at or near the in respect of the said berth during said berth, there was a tendency the year 1955 up to the time of for the river bed close to the wharf the loss of the St. Mathieu, or that to become raised and elsewhere any steps were taken to insure to develop humps and holes or that the said berth was safe. depressions. Such even is the Even if the Court were to accept testimony of various witnesses the statement of Marcotte and heard on behalf of the defendant, others that it was the custom notably Marcotte, Ratté and Du- to dredge twice during a season, four. the first dredging being done in That the defendant was well the spring, and even if dredging aware of this tendency and that had been done at that place in it recognized that some action to the spring preceding the accident, prevent the development of such this in itself, in my opinion unevenness on the bed of the river would not have constituted the was necessary is shown by the care and attention required of the evidence and, in particular, by the defendant. This is borne out by testimony of Marcotte and Ratté. the testimony of the witness Nothwithstanding this knowledge Harvey (Page 102). Moreover, it however no soundings were taken is obvious that without soundings by the defendant and there is no it would have been impossible to evidence that any measures were judge the effect of any dredging adopted during the months im- which may have been done, or to mediately preceding the accident form any reliable opinion as to
Ex. C.R. EXCHEQUER COURT OF CANADA the actual condition of the river bed either prior or subsequent to circumstance the defendant must such dredging. CONSIDERING that the weight damage sustained as a consequence of the evidence supports the con- of the wrecking of plaintiff's said DESGA clusion that the St. Mathieu was vessel; rendered a total loss due to the fact that the berth at which she docked was defective and unsafe; action AND DOTH CONDEMN CONSIDERING that the wharf the defendant to the payment of at which the St. Mathieu berthed the damages sustained by the was owned and controlled by the plaintiff as a result of the said defendant and that the plaintiff's accident, with interest and costs; said vessel was there as an invitee, and in the event of the parties and on business relating to that failing to agree as to the amount of the defendant; CONSIDERING that the de- REFER the present case to the fendant has not established that Registrar of this Court in order it had taken reasonable measures that he, with the assistance of to make the said berth safe for merchants, if necessary, may take vessels docking at the said wharf, account of such loss and damage or for the plaintiff's vessel in partic- and establish the amount thereof. ular, nor had the defendant warned or notified the plaintiff of the unsafe condition of the said berth; 71111-9-2a 229 CONSIDERING that in such 1959 DoNN A CONA be held liable for the loss and PAPER Co. LTD. V G . NE — Dumoulin J. DOTH MAINTAIN plaintiff's — of such loss and damage, DOTH Judgment accordingly. January 16, 1958.
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.