138 EXCHEQUER COURT REPORTS. [VOL. XIX. Jane 13. QUEBEC ADMIRALTY DISTRICT. 1911 THE CANADIAN PACIFIC RAILWAY COM- PANY, PLAINTIk`r'; V. THE STEAMSHIP "KRONPRINZ OLAV," DEFENDANT. AND JOHAN BRYDE, PLAINTIFF; P. THE STEAMSHIP "MONTCALM," DEFENDANT. Damages—Collision—Regulations 19, 21, and 27 International Rules of Road—Common Fault—Negligence. On September 24, 1910, at about 4 o'clock a.m. the "Kronprinz Olav" ,and the "Montcalm" came into collision in a narrow channel in the St. Lawrence River at a point some 50 miles below Quebec. The night was clear and the weather fine with a light northerly wind, and the vessels sighted each other when about 6 to 9 miles apart. Both ships carried all regulation lights. The "Kronprinz Olav", outward bound, kept to her side of the channel for a time, but shortly before the collision she starboarded her helm and threw herself across the channel. She failed to give right of way to the "Montcalm" and placed herself across her bows, at the same time giving two blasts, for cross signal. The "Mont-calm" was then to her starboard side and she (Kronprinz Olav) kept full speed ahead until the collision. She was struck on starboard side abaft the bridge. She took none of the precautions required by ordinary practice of seamen and did not have sufficient competent officers on duty and failed to stand -by after collision. The "Montcalm" was coming up the river with a young tide and when about 3 miles away gave a one-blast signal, indicating she would keep to her starboard side. For a short time she necessarily showed her green light, owing to a curve in the channel, but kept on her side until within 3 minutes of collision, when the other gave her second cross signal, she was skilfully navigated and all her move-
VOL. XIX.] EXCHEQUER COURT REPORTS. 139 ments were proper, but she failed to reverse her engines in time 1911 and the collision was contributed to by her negligent navigation im- CA A N D AN mediately prior to the accident, and the fact of her not reversing PACIFIC R.UCo. engines in due time. She reversed her engines about. one minute and _ • a half after the cross signal, and about same time before collision. " S.S. KRONPRINZ Held,—That as both vessels were guilty of negligence they were OLAY " at fault, and 'both were equally responsible for the accident. '7oHAN BIOME V. Reporter's Note.—There was an appeal and cross appeal to the S.S. Supreme Court of Canada which affirmed the judgment of Dunlop, J. ~MONTCALM" The "Montcalm" appealed to the Privy Council and, on August 1, 1913, 'judgment was delivered, exonerating her from all blame, and reversing the judgment of the . Supreme Court, • and confirming the dissentient opinion of 'Sir Louis Davies in the said Supreme Court. The judgment of the Privy Council is reported at 14 D. L. R. 46, but it is thouglit advisable to have it printed here to complete the report. (see post p. 156). T HE 'Canadian Pacific Railway Company, owners. of the "Montcalm," took action against the "Kron--prinz Olav" for damage to its ship, in collision with the latter, and the owners of the "Kronprinz Olav" also took action against the steamship "Montcalm" for damages it suffered in the same collision. The actions were consolidated and tried as one on February 16 and 17, 1911. F. E. Meredith', K.C., and A. R. Holden, K:C., for-the steamship "Montcalm" and its owners. H. Mellish, K.C., and R. O. McMurtry, K.C., for' the . steamship "Kronprinz Olav" and its owners. The owners of the "Kronprinz Olav," in their pleadings, allege in substance as follows : (1) That he has suffered damage by reason of a collision between his steamship the "Kronprinz Olav'. and the defendant steamship "Montcalm," which was solely caused by the negligent navigation of 'the "Montcalm"; (2) that about 3.40 a.m. on Fro September 24, 1910, the "Kronprinz Olav" was pro:, ~
140 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 ceeding down the St. Lawrence River below the CANADIAN PACIFIC Stone Pillar light; the weather was fine, clear moon- R. s.s. light and wind light northerly; the tide about 1 1 / 2 "KRONPRINZ LAv." miles per hour flood. She was proceeding on a JORAN BRYDE course north-east by compass—variation 1/4 point ss. west at a speed of 11 1/2 knots, about midchannel, in "MONTCALM. the river, exhibiting the regulation masthead and side-lights for a steamer underway and keeping a good look -dut; (3) under these circumstances those on board observed the mast head light and the green light of a steamship, which proved to be the "Montcalm" coming up the river diagonally 4 or 5 miles distant and a little on the port bow of the "Kronprinz Olav," whose course was thereupon changed half a point to starboard so as to bring her on the starboard side of the river channel: Notwithstanding this, the "Montcalm" continued showing her green light, and not exhibiting her red light for about 8 or 9 minutes, and crossed the bow of the' "Kronprinz Olav" and came over to her own port side; to avoid an otherwise inevitable collision, the "Kronprinz Olav" then altered her course to port, indicating the same by two short blasts on her whistle at the same time, the "Montcalm" altered her course to starboard, without giving at the time any signal, and followed the "Kronprinz Olav" up under a port helm, and coming on at great speed, struck the "Kronprinz Olav" on her starboard side with the port side of the stern and port bow of the "Montcalm," thereby doing the "Kronprinz Olav" great damage; (4) the "Montcalm" improperly failed to keep to the starboard side of the midchan-nel and improperly failed to pass the "Kronprinz Olav" port side to port side; (5) the "Montcalm"
VOL. XIX.] EXCHEQUER. COURT REPORTS. wrongfully crossed the bow of the Olav";(6)and thereafter. wrongfu came to starboard; (7} a good lookout was not kept on board the "Montcalm"; (8) and she wrongfully failed to indicate the change of her course to star- board by her whistle and (9) improperly failed to slacken her speed or stop or reverse her engines or to do so, in due time; (10) the said collision was occasioned by or contributed to' by the negligent navigation of the "Montcalm" and they claim (1) judgment against defendant and her bail for damages occasioned by reason of said collision and costs; (2) a reference to the Registrar assisted by merchants to assess the amount of said damages; The owners of the "Montcalm" one case, and defence in the other, allege in sub:stance, as follows :— (1) That at about 3.55 o'clock a.m., on September 24, 1910, the steamship "Montcalm" tiff was' and is owner, whilst on a voyage up the river St. Lawrence, was at about 50 miles below the City of Quebec; (2) she had her masthead light and optional-additional white light, as well as her and red starboard and port lights, all burning brightly, and a good lookout was being kept; (3) the Wind at the time was a moderate north-west breeze and the weather was cloudy, but clear and fine, while the tide as at "yôung flood," running with the 'S.S. "Montcalm"; (4) she was proceeding up the wind-.• ing river channel at about 11 knots, through the reach between the Upper Traverse Lighthouse and the Channel Patch Buoy, when she saw, the white light of 'a vessel which turned . out to be the prinz Olav'' in the reach between the Stone Pillar 141 "Kronprinz 1 911 l Y ly ported and CANADIAN PACIFIC R c v °' "KRONp RIxz OLAV. J°8AN BRYD6 s.s. . 7MONTCALM. " in their action in of which plain- . e green "Kron-
142 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 and the Channel Patch Buoy, which was apparently CPANcAf: about 4 miles away and on her way down the river ; R. Co. s. v s . . and the red light also became visible soon after; (5) "xRUNPRi , the lights of the "Kronprinz Olav" were first seen OLAV.'~ JOHAN BRYDE about a point on the "Montcalm's" starboard bow, s s' . as was to be expected owing to the bend in the river "MONTCALM. " channel at the Channel Patch Buoy and the consequent angle between the directions of the respective courses of the two vessels as they approached that buoy on different sides; (6) as the two ships approached each other in their respective reaches of the river channel after their lights became visible to each other, the "Montcalm" necessarily showed her green light to the "Kronprinz Olav" and the latter her red light to the "Montcalm" owing to the nature of the winding channel in that part of the river. As soon as the "Montcalm" got far enough along her reach of the channel to enable her to show her red light to the "Kronprinz Olav," the "Mont-calm" did so by porting her helm and at the same time gave one short blast on her whistle. This brought the "Kronprinz Olav's" red light about % of a point on the "Montealm's" port bow, as the two • ships were getting nearer the Channel Patch Buoy from above and below respectively. The "Kron-prinz Olav" had been continually showing her red light, but shortly after this her green light suddenly appeared to those on board the "Montcalm" and her red light was shut out at the same time; and then the "Kronprinz Olav" blew two short blasts on her whistle. The "Montcalm" then repeated her one-blast signal and her helm wàs put hard-a-port, but the "Kronprinz Olav" again answered by two blasts and kept her helm hard-a-starboard. The
VOL.' XIX.] EXCHEQUER COURT REPORTS. "Montcalm". repeated her one-blast signal again, which was again answered by two blasts from the "Kronprinz Olav," which came right on, chasing the ".Montcalm" out of the channel to the north ward: the "Montealm's" engines were at once put full speed astern, but the "Kronprinz Olav" on at hill speed across the "Montcalm's" bow and . struck her a severe blow. The "Montcalm" signalled by Morse lamp to see if the other ship needed assistance, but got no answer; and her master also . hailed the "Kronprinz Olav" through the megaphone for the same purpose, but the latter- went back to Quebec without answering; . (7) the collision occurred some distance to the. north of the Channel Patch Buoy, the starboard side of the "Kronprinz Olav" near the foremast striking the "Montcalm's stern, knocking it over from port to starboard and breaking the stem-bar; and . the "Kronprinz Olav" then swung in and her starboard quarter injured the "Montcalm" "Kronprinz Olav" did not keep to her own side of the channel; (9) improperly cut açross the "Mont- calm's bows; (10) improperly starboarded her helm when the ships were getting nearer together; (11) did not follow the proper course in the river channel and ignored its requirements as the vessels were approaching each other; (12) improperly refused and neglected to give the "Montcalm" as the latter came up with the tide; (13) did not observe and obey the "Montcalm's" one-blast signal, but improperly replied with a blasts; (14) did not stop and reverse in sufficient time, or. at all; (15) did not have due regard to the local conditions and to the special circumstances due 143 . 193:1 ' C N F O. R. s.s. "KA OL 1 A N v Z JOHAN BAYDE- came s.s. • "MONTCALM." then twice amidships; (8) the the right of way cross signal. of two' •
144 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 to the narrow, winding channel; (16) did not keep a CANADIAN proper lookout; (17) neglected the precautions re- R.vC o. s.s. quired by the ordinary practice of seamen under the 411(RONYRINZ circumstances and disobeyed the International OLAV." JOHAN BRYDE Rules of the Road applicable; (18) did not have suf- s .s. ficient or competent officers on duty; (19) nor suf- 44-MONTCALM.'' ficient or competent watch on duty; (20) that the collision and the damages and losses consequent thereon were occasioned by the negligent and improper navigation of those on board the "Kron-prinz Olav" ; and (21) plaintiff claims ; (1) a declaration that it is entitled to the damage proceeded for ; (2) the condemnation of the defendant and its bail in such damages and costs; (3) to have an account taken with the assistance of merchants and (4) such other or further relief as the nature of the case may require. After referring to pleadings in both cases, the Hon. Mr. Justice Dunlop in his reasons as filed, gives the facts as follows: Reasons for Judgment. DUNLOP D. L. J. A. (June 13,1911),delivered > judgment. (Recital of the pleadings is omitted). "By Order of the Deputy Registrar of date No-vember 28, 1910, in conformity with rule No. 156, the present two actions were joined for the purpose of proof and argument; that is to say, that one trial only was to be held upon the merits of the two actions, and that the proof so made should avail as proof in both cases to all items and purposes ; and by consent of the parties it was agreed that all the evidence made before Captain Demers, Wreck Commissioner, upon the Government investigation into the cause of the collision that gave rise to the pres-
VOL. XIX.] EXCHEQUER COURT REPORTS. ent actions should be accepted by the Court and avail as evidence in the said Admiralty actions as fully and effectually in every way as though each and -all of the said witnesses appeared and gave evidence `KR°NP ' for both of the parties to these actions but with the reservation that either or both of the. partites these actions shall have the right to make such ad- ditional evidence in the Admiralty trial by the same or other witnesses as they might hereafter deem ex- pedient, as appears by the consent of record; at Montreal, November 25, 1910. Iri case No. 268, the owner of the "Kronprinz Olav" claims $15,000 from the Canadian Pacific Railway. Company for damages caused to the said "Kronprinz Olav," by the steamship the property of the C. P. R. Co., while on the other hand in case No. 271, the C. P. R. Co. claims from the steamship "Kronprinz Olav," as for damages alleged to be suffered by the calm," resulting from the collision in question. The question at issue in the present case is as to whether the "Kronprinz Olav" was liable • for the damages resulting from the collision between the two steamships, which took place at or about 3.50 a.m: on September 24, 1910, when the "Kronprinz Olav" was proceeding down the River St. Lawrence below the Stone Pillar Light. After a very careful examination of the very voluminous evidence and the able arguments 'sub-mited by the counsel of the respective ships, in these two actions, I am of opinion that the question involved in these two actions narows itself plication of Rule 25 of the International Rules of the Road and Rules 19 and 21 read together. R. 27 must 145 1911 C AN ADIA N -PC IFIC ;,~°' s. s . RINz O LAV.~~ T OHAN BRYDE to "MONTCALM. " Reasons for Judgment. dated "Montcalm," the sum of $25,000 "Mont or the "Montcalm" down to the ap-
146 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 be read in conjunction practically with every one of CANADIAN PACIFIC the other rules. R. 25 is the narrow channel rule. R. Co. ti. R. 27 is the rule that requires every ship in obeying S. S. "KRONPRINZ and construing these rules to have due regard "to all OLAV." JOR A N BRYDE the dangers of navigation and collision and to any v. S.S. special circumstances which might render a depart-"MONTCALM . ure from the rules necessary in order to avoid im-Reasons for Judgment. mediate danger. Rules 19 and 21 taken together are to the effect that a ship that has the other on her starboard side has the obligation of keeping out of the way of the other, and the other, cinder such circumstances, has to keep her course and speed. These appear to me to be the rules that are applicable to this case. The sailing instructions contained in the "St. Lawrence Pilot," issued by the English Admiralty, are of extreme importance, and a copy of this work has been filed in the present actions. It must be remembered that the collision in question occurred in a narrow river channel and not in the open sea, and that the main thing, under such circumstances, is for each ship to obey R. 25 and keep her starboard side. Rule 25 reads as follows: "In narrow channels, every steam vessel, "especially when it is safe and practicable, shall "keep to that side of the fairway or mid-channel "which lies on the starboard side of such vessel." But of course if they have to round buoys and there is a certain amount of angle between the respective courses, and they are on the opposite sides of the buoys, the important thing is to keep their own side of the channel when passing the buoys. It makes no difference to . the ship above the buoys whether the ship below them is on her starboard .
VOL. XIX.] EXCHEQUER COURT REPORTS. side or port side. In these cases the evidence shows that the • "Montcalm" was never on the wrong. side of the fairway. One of the members of the Wreck Commissioners' Court who heard the evidence, asked the pilot of the "Kronprinz Olav" whether he knew the course a ship would take coming from the upper Traverse to -"Rsa the Channel P-atch Buoy. The pilot answered. "yes,'' and added that it was "the same course as we took." Then a member of the Court said: "Why did you "not wait? Why did you starboard ? " (as it is proved the "Kronprinz Olav" did). " "Why did you not - "wait then if you saw her green light on your star- "board bow at some point? Why did you not wait "and let her come round the buoy?" To'these ques- tions the pilot had no explanation to give. As I said before, these cases have narrowed down practically to R. 25. There is no question of lights on either side, -and I do not think there should be any question as to the lookout. The jurisprudence shows that where a" ship is navigated 'wrongfully, then the question of the lookout is of great importance. It is proved that the pilot and officers on the bridge, .and wheelsmàn and the master of the "Montcalm" saw the "Kronprinz -Olav" so clearly and knew so well what was happening,. that no importance as regards the "Montcalm" should be attached to the evidence concerning. the lookout, even if it were, un- favorable, which it' is not. Reference on this point might be made to Mars-den's "Collisions at Sea," a well p. 474, fith ed., where we read :-- - "In another case it" was held that the absence of "a lookout on board a: vessel will cause her to be held '147 .r19,~. C PALF AN R. Co. s.s. KRON PRINZ OLAY." JOHAN BIiYDE o MO s N . ¢ s : . ro mr." s~na fo Judgment. all , known authority
148 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 "in fault for a collision unless it is proved that the CANADIAN I other ship was seen as soon as it was possible to PACPIG R.tCo. " see her and that the proper steps to avoid her were S.S. "KRONPRINZ " taken as soon as it was possible to take them." OLAV.' ' JOHAN BRYD When the collision in question occurred, the s . 11toliTCA . Lm. weather was fine and 'clear, wind light northerly, the aaone for tide about 1 1/2 miles per hour flood; and the im- B ra e clgme at'. portant thing f ôr the "Kronprinz Olav" was to remain on her own side of the channel. If she had done so and waited a moment or two, the accident, in my opinion, might have been avoided. The evidence discloses that the "Montcalm" was bound for Montreal. Her master, when he turned in the night before the collision, had left instructions to be called at Cape Goose, some 15 miles below the scene of the collision. He was called at that point and went up on deck, as his evidence shows, and seeing that it was a fine, clear night, he said to the • bridge officer : ' "I am going to lie down on the "settee. Let me know at once if you need me for any "reason." Then he went back to his chart room and laid down. The pilot and the bridge officer, Carver, were on the bridge with the wheelsman, Polking-horn, and it is proved that until about the time they reached the Lower Traverse, they had been steering entirely by compass. From that point on, the pilot, as he explains in his deposition, instructed the wheelsman as to the leading lights, .while he, the pilot, at the same time used the compass. Then be- tween the Upper Traverse and the Channel Patch Buoy is Buoy No. 61, an unlighted buoy which I believe they did not see that night, and which indicates the southern limit of the channel at a point nearly half way between the Upper Traverse and
VQL. XIX.], . EXCHEQUER COURT REPORTS. • 149 the Channel Patch Buoy. The evidence shows the 2911 .course they took from the Upper Traverse to Buoy cpAc F CN No. 61. At Buoy No. 61 they starboarded their helm - s.s. a little, made a course somewhat more to port, which Ka °NPRir or.~Y course they kept until they got the Algernon Rock f°UA N BRYn8 Light above them up stream open to the south of the s s. ► l a: Channel Patch Buoy Light. It is here, where the "MoxTc, Reasons for important part of the navigation commences. I think Judgment. that the movements of the "Môntcalm" had been proper from the time when the "Kronprinz Olav's" lights were first.observed until the moment when the . "Kronprinz Olav'" sounded the two-blast signal for the second time. The Court avails itself 'of the "valuable service of Captain James J. Riley, a mariner of experience, holding a certificate of competency as mister from the British Board of Trade, No. 82599, now engaged in important public service, namely, Superintendent of Pilots and Examiner of Masters and Mates and Directors of the Nautical College,. and upon whose .judgment and opinion I shall find it mÿ duty- to rely, as to whom I have submitted the following questions and whose answers are appended thereto, namely :— "Q. Could the steamers "Kronprinz Olav" and "Montcalm" under the circumstances of this case, "as disclosed in the evidence, by thé _exercise of "reasonable care on the part of the officers navigat- ing them, have avoided the collision in question in "this case °I" "A. Yes. From the evidence given in this case, it "does not appear that all possible precautions were " taken 'by the navigating officers and crew of "the `Kronprinz Olav.' They had the right-of= "way (see Rule 25) and should have kept it and
1.50 EXCHEQUER COURT REPORTS. [VOL. XIX. 19. "signalled their intention to do so; but failed in CANADIAN PACIFIC "this matter. When fear of a collision seized the R. c0. s.S. E, "navigating officers and crew of the `Kronprinz "KRON PRI NZ "Olav,' they failed to observe R. 25 and to comply OLAV. " JOIIAN BAY DE "with RR. 27 and 29 in a seaman-like manner, and s s. "instead of slowing down, and reversing if neces- "MONTCALM. V "nary, they kept at full speed up to the time of the Reasons for judgment. "collision. They saw the masthead lights of "the `Montcalm' in line at the time or a little after "the first order was given to starboard, and after "this, they gave two orders to starboard, the last "one being a hard-a-starboard. They then ran "athwart the bows of the steamer 'Montcalm.' (See art. 19, Rules of the Road). The navigating officers and crew of the Steamer ."Montcalm" failed to comply with RR. 27 and 29 with sufficient promptness. When the first cross signal was heard on board the "Montcalm" from the "Kronprinz Olav," and when first the green . light was seen, the engines of the "Montcalm" should have been stopped and reversed at once; and the reversing signal should have been sounded. I find certain material facts proved. Amongst others, that when the collision took place the night was clear and fine; that the vessels had seen each other when a distance of from 6 to 9 miles away; that for sometime• before the collision, the "Kron-prinz Olav" was keeping to her own side of the channel, and the "Montcalm" was under a little starboard helm to get Algernon Rock Light clear of the Channel Patch Buoy. The "Kronprinz Olav" starboarded her helm and threw herself across the bows of the "Montcalm" in this narrow channel, with the dangerous channel Patch close to her. The
VOL. XIX. [ EXCHEQUER, COURT REPORTS. "Montcâlm 7 7 reversed and went full speed astern about à minute and a half before the collision, and the "Kronprinz Olav,"7 which then had the "Mont- . :calm" on her starboard side, continued at full speed ahead-until the time of the collision, when the "Montcalm" struck the abaft the bridge on the starboard side, causing con- siderabie damage to both vessels. . The master 'of the "Montcalm" was on the deck of his vessel when she was some 15 miles from the scene of the collision and retired to his cabin, but was afterwards, called when the officers on watch dis- • covered that the "Kronprinz Olav" had altered her course and blown' cross signals, and exhibited her green light. He was alarmed- to : find the masthead and green lights . of the "Kronprinz Olav" in view; _and on going on deck three 'minutes before the col-lisionf . he blew one blast .to show that his ship's course was being directed to starboard; à. minute or two afterwards, put his engines full speed astern and succeeded. in reducing -the ship's speed ahead to about 9 knots at the time of _ the col- . lision. The. navigating officer and pilot of, the "_Montcalm" very plainly and clearly declare that' before the "Kronprinz Olav" light, the two ships were red to red for an àppreci- able space of time. The master of the "Montcalm" of his vessel with the navigating officer and pilot and wheelsman for about 3 minutes before, the collision. The master of the "Kronprinz Olav" in his bed and was called by his first officer about a ' minute before the collision took place. He had gone as far as his cabin door when he says he saw that the 151 1911 C IAO,FI>Lh x.'c°' s.s. "KRONPF.TNZ. .. OLAV. thé bow of J OHAN B RVDF "Kronprinz Olav" i MONTCALM. • Reasons Mox. - Judgment. and in about . showed her green was on the-bridge was asleep
152 EXCHEQUER COURT REPORTS. [VOL. XIX. "1 "Montcalm's" stem was about 40 or 50 feet away._ CANADIAN PACIFIC I think that the course steered by the "Montcalm" R. Co. s.s. was a perfectly proper one in a narrow channel such , rKgoLAVI,IZ as she was in; and this is corroborated by the state-JOHAN B*YDE ment of the pilot. of the "Kronprinz Olav". I find rrMON s T s C . A LM." also that the navigation of the "Montcalm" until . Reasons cor shortly before the collision, was the usual navigation Judgment. for a steamer coming up through the reach between the Traverse and the Channel Patch Buoy. There is another uncontested fact, and that is that the "Kronprinz Olav" commenced by porting, knowing the channel was a narrow one and that the proper side for the "Kronprinz Olav" was the starboard side, and just about the time the masthead lights of the "Montcalm" came in line, showing she was straightening up to take her own side of the Channel Patch Buoy, the "Kronprinz Olav" 'star-boarded. The chief officer of the "Kronprinz Olav" said that at the moment he saw the green light of the "Montcalm" and knew they had to pass port to port, he ported on that account, and after the green light of the "Montcalm" had got, as he thought, on his starboard bow, or perhaps a little ahead, which is more likely—at all events in some position where the "Montcalm" could port and take the next reach to go south of the Channel Patch Buoy the chief officer says he starboarded. This is an important fact. It does not seem to me to be of great importance whether the collision occurred due north of the Channel Patch Buoy, as contended by the witness of the "Montcalm", or due east of the said Buoy, as contended by the witnesses of the "Kronprinz Olav". The evidence shows that when the "Kron-prinz Olav" starboarded, the steamships were at
VOL. XIX. L. EXCHEQUER COURT REPORTS. 153 least 3 miles apart, The speed of the "Montcalm" 1 911 was about 12 knots and the tide was running young PA=A:1 flood at th'e rate of about 1 1/2 miles, which made her R. „ C o. s.s. . • o rdinary speed up to the time her engines were re- "KRorrPRuNz OLAV. versed about 13 knots. The master of the "Mont- JORAN Ba,rnE calm” went on the bridge about 3 minutes before s.s. "MorrxcALaa: ' the collision, and blew one whistle blast himself, and Reas ons for. after so doing he .ordered full speed astern about 11/2 Judgment. minutes before the collision. We will afterwards consider the effect , of this manoeuvre. The master of the "Montcalm" was on the bridge with his bridge officer s, his pilot and his wheelsman. :hearing the second blast whistle, that is, tile cross. signal of .the "Kronprinz Olav" and seeing the proper manoeuvre of the "Kronprinz Olav" in star--boarding as she did, lie blew one blast .of the whistle to show that he was putting his helm aport and obey- ;in& the ' Rulei! of Navigation, and immediately after,. • o wing to the manner in which the other ship *as going, he ,put the "Montcalm" full speed astern. The , `Ktonprinz Olav" blew cross signals a second and third time and came on at. full speed, and her chief officer, notwithstanding the speed ,at which the "Kroinprinz Olav" • was • going, himself cast the anchor, a most extraordinary step to take under, the circumstances 'of this case. As. I have said before, as to the navigation of the ships, I have consulted the nautical assessor, a gentleman of great experience' and thoroughly con- versant with that portion of the river and its sur-`r-oundings where the accident occurred, and In his answers to ' the questions submitted to him, declares that both vessels were in fault for tho collision in question for the reasons in-his said answers given;
154 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 and I concur in the opinion arrived at by him, after CANADAI N PACIFIC a most careful consideration of the douments and R. Co. s. t s i. . the voluminous evidence taken in these cases. ••KRO PRINZ Therefore, in my opinion, the damages must be JOHAN BRYDE equally borne by both ships, both being in fault, each s .s. ship being liable for one half the damages suffered "MONTCALM. " Reasons for by the two ships. Judgment. I find that the "Kronprinz Olav ", her owners, of- ficers and crew were in fault (1) because she did not keep to her own side of the channel; (2) she improperly cut across the bow of the "Montcalm"; (3) she improperly starboarded her helm when the ships were coming nearer together; (4) she did not follow the proper course in the river channel, and ignored the requirements as to vessels that were approaching each other; (5) she improperly refused and neglected to give the right-of-way to the "Montcalm" as she came up with the tide; (6) she did not stop in sufficient time or at all, and she did not have due re - • gard to the conditions and the special circumstances due to the narrow channel; (7) she neglected the precautions required by the ordinary practice of seamen under the circumstances and disobeyed the International Rules of the Road; (8) she did not have sufficient and competent officers on duty; (9) after the collision she was in fault•in not standing by to ascertain the condition of the steamer "Mont-calm" with which she had collided ; I also find that the "Montcalm", her officers and crew were also in fault because (1) she improperly failed to stop or reverse her engines in due time; (2) that said collision was contributed to by the negligent navigation of the "Montcalm" by her officers and crew immediately prior to the accident-by
VOL. XIX. [ ' EXCHEQUER COURT REPORTS. 155 their failure to have her engines reversed in due 1911 time, and - the reversing signal should have been CANADIAN PAC I I C R. Co . sounded. v. s. s. I •am consequently of opinion that -both actions -KRÛ RiNz must be maintained only to the extent hereinafter JOHAN BRYDE v. mentioned, as I find that both ships were to blame; „ Mo N ...M: and I adjudge that the damages rising out of the Seasons for Judgment. said .collision to the steamship "Kronprinz Olav" as - well as to the steamship, "Montcalm", shall be borne equally by the said two steamships, one-half .by each vessel as provided by c. 113, s. 918 of the R. S. C., entitled "An Act Respecting Shipping in Canada" which reads: "918.—In any cause or pro- ceeding for damages arising out of a collision be- tween two vessels, or a vessel, and a raft, if both "vessels or both the vessel and the raft are found "to havé ' been in fault, the rules in force in His "Majesty's High Court of Justice, in England, so "far as they are at variance with the rules in force "in the Courts of common law, shall prevail, and the. "damages shall be borne equally by the two vessels, "or the vessel, and the raft, one-half by each." R.S. 79, s. 7. . And condemn the said steamship "Montealm ", her owners and her bail given on her behalf to pay to the plaintiff, owner of the steamship "Kronprinz Olav" one-half of the damages arising out ôf the • said collision and further doth condemn the plaintiff owner of the steamship "Kronprinz Olav" and the said steamship "Kronprinz Olav" and her bail given on her.behalf to pay to the C. P. R. Co., owner of the steamship "Montcalm" one-half of the damages arising out of said collision; and I order that an account should be taken and refer the 'same to
1.56 EXCHEQUER COURT REPORTS. [VOL. XIX. 1911 the Deputy Registrar; assisted by merchants, tore-AA IAN port the amount due for both claims, and that all ac- R. s . .s . counts and vouchers in support thereof shall be filed "KlwspRINz within 6 months; and I further order and adjudge OLAV.' JORAN BRYDE that the parties to the present suit shall respectively ss. bear their own costs of said action. "MONTCALM." Reasons for Judgment. Judgment of the Lords of the actions were tried as one, and Judicial Committee of the Privy in the result the learned judge Council on the consolidated Ap- (who was assisted by a nautical peals of The Canadian Pacific assessor) found both ships to Railway Company y. The Steam- blame. ship "Kronprinz Olav"; and of There were then cross-appeals the Steamship "Montcalm" v. to the Supreme Court which were Johan Bryde, from the Supreme heard before the Chief Justice Court of Canada, and four other judges. Three of. Present at the hearing: Loan these five judges confirmed the ATKIxsox, Loan MERSEY, Loan judgment of the judge of first MOULTON, LORD PARKER OF WAD- instancq. One judge was of rnxarox. opinion that the "Olav" was Nautical Assessors: Rear-Ad- alone to blame, and another mirai Robert N. Ommanney, C. judge was of opinion that the B., Commander W. F. Caborne, "Montcalm" was alone to blame. C.B., R.N.R. The result was that both appeals Loan MERSEY (August 1, 1913) were dismissed. The present delivered judgment of the Board: appeal to this Board is brought These are appeals from a judg- by the owners of the "Mont -ment of the Supreme Court of calm" only. The owners of the Canada affirming by a majority "Olav" no longer contest their the judgment of the Deputy liability. Thus the only question Local Judge in Admiralty at for the determination of their Montreal in two cross actions Lordships is whether any blame for damages by collision. attaches to the "Montcalm" in The collision happened on Sep- relation to the collision. Blame tember 24, 1910, in the St. Law- is imputed to her on one ground rence River between two steam- only, namely, that she was ers named the "Kronprinz Olav" guilty of negligence in failing and the "Montcalm". Both yes- to reverse her engines in proper sels sustained damage and there- time before the collision. upon cross actions were corn-This narrowing of the issues menced' in which the owners of between the parties makes it un-each vessel alleged that the other necessary to deal with the facts • vessel ,was alone to blame. Be- at any great length. The ma-fore the trial took place a wreck terial circumstances are as fol-inquiry was held in the course lows: At 4 a.m. on the morning of which a large body of evi- of September 24, 1910, the "Mont-dence was collected from the calm", a screw steamer of 5,500 crews of both vessels. By agree- tons' gross register, was proceed -ment the notes of this evidence ing up the St. Lawrence River. were used at the trial of the At the same time the "Kronprinz cross-actions, and they formed Olav", of 3,900 tons gross regis-the only material before the ter, was proceeding down the learned judge. He saw none of river. The night was dark but the witnesses. The two cross- clear, the wind light and the tide
VOL. XIX. [ EXCHEQUER COURT REPORTS. 157 'flood of the force of I% knots. evidence that the captain - of the 1911 Both vessels entered a narrow "Montcalm" was- negligent in not channel in the river in which it realizing before he did that -the CANADIAN ' was the duty of each to keep to risk of collision was imminent; R. Co the side of the fairway on her and even if he can be said to have v. own starboard side. The "Olav" miscalculated the time by some S.S did not observe this rule, but few seconds the very gross negli- -«KRô S R INZ OLAv. " negligently made for the "Mont- gence in the navigation of the calm's" side of the channel, cut- "Olav" was well calculatéd to JOHAN BRYDE ting across the "Montcalm's" confuse him and to cause• the S.S. -bows. A collision became im- error. He was, moreover, fully "MoNTcALM" ' minent and thereupon the "Mont- justified in expecting that the calm" reversed her engines but "Olav" would realize the danger- Jndgméâtr unfortunately not in time to ous position into which she had avoid the collision. ' • brought herself and would try It is said on the part of the _ to remedy it by herself ' revers-"Clay" that those in charge of ing. the "Montcalm" ought to have It, is worth while to examine recognized sooner than they did shortly the grounds ,upon which the danger created by the bad the judges in the Courts below navigation of the "Olav" and by based their judgments in so far a timely reversal of the "Mont- as they related to the alleged calm's" engines ought to have negligence of the "Montcalm". averted it. The trial judge expresses his In considering this question it opinion that the movements of , is necessary to bear in mind that the ,"Montcalm" had been proper the onus of proving the alleged from the time when the "Olav's" negligence rests on the "Olav" lights were first observed until and that it is an onus which can the moment when the. • "Olav" only. be . discharged by clear and sounded a two-blast signal for plain evidence. Very little of the second time. According to the evidence adduced at the trial the evidence from the "Mont- . bore upon this question of the calm" (which there appears no reversal of the "Montcalm's" en- reason to disregard) the engines gives; and an examination of were reversed almost at once what evidence there was fails to after this signal. Yet the trial • support the charge. The nar- judge after expressing his opin-rative of the collision covers only ion that there had been no negli-a few minutes of time and ac- . gence on the part of the "Mont-cording to the finding of -the calm" up to this point, seems trial judge the ""Montcalm" re- then to have surrendered his versed and went full speed judgment to the advice of the astern about one minute and a . nautical assessor who . sat with half before the collision took him . and to have adopted and place. That the risk of collision given effect to an expression of had not been realized and was that gentleman's opinion that the not apparent before this time "Montcalm" had failed to re-seems to be clear from the evi- verse with sufficient promptness. •d ence of the "Olav's" navigating That the "Montcalm" did not re-officer Toft-Dahl. This witness verse in time to avoid collision appears not to have 'been in fear is, of course, true,'but-the learn-of a collision until one minute cd judge seems to have thought, before the event, for it was not . that this bare fact was equiv-until then that he called his cap- aient to proof Of _negligence. It ' tain on deck, and even after this was not so. It was consistent the "Olav" kept her speed, and with proper care in the naviga- continued to keep it until the tion of the ship, and in any event moment of the collision. It it fell very far short of proof of seems to their Lordships impos- negligence. Turning then to the sible to say in the face of this judgments of the learned judges
- 158 EXCHEQUER COURT REPORTS. [VOL. XIX. . 1911 in the Court of Appeal it will peals. The last and fifth judge be found that the Chief Justice (Anglin, J.) mentions the allega- CANADIAN PACIFIC was not satisfied with theud g tion of negligence on the part of R. Co. ment of the Court of first in- the "Montcalm" in not sooner re- v. stance and yet because of the im- versing, and says that there was S.S. "RRON L Av.» perfect evidence he felt himself an implied duty on her part to unable to interfere with it. It reverse when the "Olav's" second can scarcely be said that this signal was given. The answer, JOHAN BRYDF . amounts to an expression of however, to this observation SS. opinion that the "Montcalm" had seems to be that in truth this "MONTCALM. " been guilty of negligence. The was when she did reverse. Reasons for next judge (Davies, J.) after an Neither in the evidence nor in Judgment. examination of the evidence came the judgments in either Court to the conclusion that no blame below are their Lordships able attached to the "Montcalm". to find satisfactory ground for . The third judge (Idington, J.) saying that the "Montcalm" was made no reference to the ques- guilty of any negligence what-tion of the failure of the "Mont- ever contributing to the disaster. calm" to reverse earlier than she They think that the right view of did. He appears to have been the matter was taken by Davies, of opinion that the "Montcalm's" J., and that accordingly these navigation was wrong from the appeals ought to be allowed and first and he came to the conclu- with costs here and below. They sion that she was alone to blame. will humbly advise His Majesty . The advisers of the "Olav" do accordingly. not seem to have concurred with this opinion for they had not the Solicitors for owner of "Mont- courage to attempt to support it calm"— Meredith, MacPherson, at their Lordships' Bar. The Hague 4 Holden. fourth ,judge (Duff, J.) contents Solicitors for owners of "Kron- himself with saying that he con- prinz Olav"—Brown, Montgom- curs in the dismissal of both ap- ery 4- McMichael.
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.