VOL. V.] EXCHEQUER COURT REPORTS. 151 QUEBEC ADMIRALTY DISTRICT. 1896 THE ACTIESELSKABET (THE COM- - : Apt 18' PANY OF THE OWNERS OF THE) PLAINTIFFS; " PRINCE ARTHUR" AGAINST HENRY S WELL, AND OTHERS, OWNERS OF THE TUG - " FLO- DEFENDANTS. RENCE" .. . Maritime law—Towage— Injury to tow—Negligence of pilot of tow— . Liability—Costs. In an ordinary contract of towage the vessel in tow has control over the tug, and if the pilot of the tow negligently allows the tug to steer a dangerous course INhereby the tow is injured the tug is not responsible in damages therefor. 2. Where a very great part of the blame is to be attributed to the tug the costs of the latter in defending the action may not be allowed; THIS was action for the recovery of damages for the loss of a ship while under towage. The facts of the case are stated in the reasons for judgment (1). (1) The following is the opinion the vessels to pass so close to the of W. H. Smith, R. N., Nautical light-ship as is stated, when there Assessor : was a wide channel of five miles I ani of Opinion that the W. between Red Islet Reef and Green S. W. magnetic course set and Island, upon the opposite shore steered by the pilot of the Prince and plenty of room to manoeuvre Arthur, when he went on board of iu. her, was maintained up to the thne I am also of opinion that the that he approached the said light- course of the tug was not altered ship and was also continued for after she passed the light-ship, in some time after passing it, and accordance with instructions given that as the distance off the light- by the first pilot before he left the ship was not accurately aster- deck. twined, the W. S. W. course was It was therefore highly imprud'- unsafe and improper, even for a ent for the 2nd pilot in charge of short time after passing the light- the tug, to keep on a course in a ship, as it took the vessel in a direction so dangerous in its prox- direction towards the shoal. imity to the shoal. That there was no necessity for It must be observed that there
152 EXCHEQUER COURT REPORTS. [VOL. V. 1896 The case was heard before the Honourable George PRINCE Irvine, Local Judge of the Quebec Admiralty District, ARTHUR on the 17th April, 1596. V. - FLORENCE. A. H. Cook for plaintiffs ; Reanone f g or m ent. C. A. Pentland, Q.C., for defendants. Jud IRVINE, L. J., now (April 18th, 1896) delivered judgment. This action is brought by the owners of the Nor-wegian barque Prince Arthur to recover from the tug was no other obstruction to the of any irregularity which might navigation of the vessel by passing occur to the steering of the tow. ships, and the evidence does not A proper look-out is a necessity show that the helms of the vessels on board a tug as it is on board of were at any time altered for that other steamers, and she is required purpose. to obey the sane International I am further of opinion that rules as are applicable to all ves-there was no competent person in sels, and it is necessary that a sharp charge of the deck of the tug, look-out should be kept at night sufficient for her safe navigation, when it may become a duty for the having a barque in tow, and no tug and her tow to keep out of the proper look-out was kept forward way of a sailing vessel which might on board the tug. be crossing the tug's bow. The night was clear and fine, The watch on deck cannot be with light breeze from the east- considered competent ou board ward and smooth water, and it any steamer or tug, after sunset, seems incredible that such a disas- without a proper look-out man at ter should have occurred if proper the bow, and the master and owners measures had been taken in time may not avoid their responsibility for the safe and proper navigation when such neglect in not having of the vessels. one, is shown At night time it is always neces-The 2nd pilot, the man at the sary that a look-out man should helm, had to look ahead to keep be upon the deck of a tug and clear of vessels, to notice the tow stationed outside of the pilot house astern and to navigate the vessel or any other deck-house, so as to and change the course as required. give timely warning of the ap-The attention of a wheelman proach of passing vessels. should be confined to steering the A tug employed towing a large ship and watching the compass, vessel in a channel which is fre- and this was more especially neces-quented by numerous steam and sary in the position in which the sailing crafts, requires to have a two vessels were placed when skirt-competent look-out man forward, ing along the edge of such a dan who may occasionally cast his eyes gerous shoal, and he should have astern and notice the appearance been fully occupied in attending •
VOL. V.] EXCHEQUER COURT REPORTS. 153 Florence the value of the ship, which, when under 1896 tow of the tug, was run ashore and totally lost on Red P RrxcE Island reef in the early morning of the 27th June, ATHUR Rv. 18 j3. FLORENCE. Reasons to such duties. One man in the and those in charge should employ au fmeat. wheel-house of a tug, with closed the accustomed diligence and care, doors, is not sufficient to steer, to notwithstanding there was a pilot keep a look-out for passing yes- on board the tow, and the fact of sels, and to watch the movements the tug passing inside of the buoy of the tow and attend to signals, goes far to prove either that the or listen to orders, given 540 feet second pilot was incompetent to away. navigate, or he was not paying the In such a position, if the helms- careful attention to the navigation man has sole charge, as in this case, of. the tug which was necessary and observes a light approaching, under the circumstances. he must of necessity watch it I am, however, of opinion that closely to ascertain the course the the pilot of the barque did not vessel exhibiting it is making and exercise that good judgment and the movement required to be made caution which was required, and to keep clear of her ; he must also the action he took was not done attend to the tow at the same time, in sufficient time to prevent the and if a sudden change in the di- casualty and he was therefore in rection of the tug's head, or any fault, but the cause of the accident communication is required, he be- should mostly be attributed to the ing by himself, would have no careless navigation of the 2nd pilot means of signalling to the vessel of the tug. in tow sand would either have to I consider this case proves .the leave the deck to call another man necessity of having some properly or make some signal for assistance. arranged signals to be used by ves- The occupation of tugs is a most sels in tow, and these should'be 'responsible one, as they frequently printed and registered and placed bave charge of vessels with cargoes in the hands of all pilots as well of considerable value to conduct as of those persons, in charge of long distances and through narrow tugs. and intricate channels where strong - I am further of opinion that the and irregular tides may be found, designation of 1st and 2nd pilot is and it is necessary that some corn- not correct, and therefore it is not petent and careful person should properly understood by seafaring be constantly in charge of the men, and such title does not exist navigation, especially at night in Great Britain or any of her time, that person being entirely colonies, except Canada, and then separate and distinct from the only in the Province of Quebec. wheelman who is steering the The lst pilot is in fact the mas- craft, ter, and the 2nd pilot the mate, of The contract for towing was a a tug, and the titles 1st and 2nd • written one and implied that the pilots are misleading and do not tug should be properly manned carry any pilot responsibility.
154 EXCHEQUER COURT REPORTS. [VOL. V. 1896 The ship was on a voyage from Sydney, Cape Bre-PRINCE ton, to Montreal with a cargo of coals. At 9.30 a.m. ARTHUR on the morning of the 26th June, being then off Pointe V. FLORENCE. des Monts, the vessel was taken in tow of the tug Reasons Florence and proceeded up the river towards Quebec. for Judgment. Arriving at Bic they signallEd for a pilot and at 8 p.m. Charles Francis Brown, a licensed pilot for and below the Harbour of Quebec, came on board the barque and took charge of her. No understanding or communication of any kind seems to have taken place between the pilot and the tug as to the manner in which the pilot could, if necessary, signal to the tug, and they proceeded on what, the pilot says, was the correct course—west south-west by ship's compass—the tug proceeding on and not deviating from the same course. The weather was fine and clear, the wind a light breeze from the east. All the lights were distinctly visible. There should have been no difficulty whatever either for the pilot, who is a man of forty years' experience on the river, or the parties on board the tug, in so conducting the navigation of the two vessels as to lead them safely on their voyage up the river. They had in front of them, on their starboard side, the Red Island light and Red Island light-ship, and to the south, Green Island light, all perfectly clear and easy to be seen. The second mate of the ship took charge of the watch shortly after the pilot came on board. The tug was manned by the first and second pilots, two engineers, two stokers and two deck hands. The first pilot of the tug, who was in charge when the ship was first taken in tow, went below shortly before they reached Red Island light-ship, and on going below he told the second pilot, who then took charge, to pass the light-ship at a good distance, and when he was clear of Red Island to steer S. W. half S., which is the usual
VOL. V.] EXCHEQUER COURT REPORTS. 155 course. This course is admitted by both the parties to 1896 be the correct one to undertake, and the chart shows pR âE that it would have carried the vessels well clear of the ARTHUR V. reef. FLORENCE. There can be no doubt that the loss of the ship un- Reasons der these circumstances shows that there must have Jut g f ment. been some gross culpable negligence on the part of the persons responsible for the safety of these vessels ; and the duty of the court, in the present case, is to discover where the blame lies. The law regarding the division of the responsibility between the pilot of the tow and the persons in charge of the tug is very clearly laid down in the case of the Niobe (1). Sir James Hannan said : "Under the ordinary contract of towage the vessel in. tow has con- trol over the tug, and is therefore primarily liable fox the wrongful acts of the latter unless they are done so suddenly as to prevent the vessel in tow from control- ling them." In that case the captain of'the Niobe, said, in his testimony, that if he saw the tug taking a direc- tion leading to danger she should be apprised of it, and that he should do so by altering his own course and this would be the effectual mode of doing it—girting the tug, he says, is a common manoeuvre. The judge in that case distinctly laid down that :— " The authorities clearly establish that the tow has, under the ordinary contract of towage, control over the tug." I hold it to have been the duty of the pilot of the ship to have in the first instance taken such pre- cautions as to prevent the accident that Occurred. He says that for twenty minutes, or, between fifteen and twenty minutes, he saw that the tug was going on a wrong course and that he starboarded his helm and kept the helm a-starboard for that period, and was un- able to succeed in compelling the tug to change her (1) L. R. 13 Prob. D. 55.
156 EXCHEQUER COU tiT REPORTS. [VOL. V. 1896 course ; that he shouted and apparently was not heard, PRINCE and filially put his helm hard a-starboard, which ARTHUR brought his vessel round seven points, but notwith- V . FLORENCE. standing these efforts on his part, the tug continued on Rea.... her way and finally dragged him on the reef. for Judgment. The evidence of what occurred on board • the tug seems to me to show that the second pilot, who was in charge of the tug, did not follow the instructions given to him by the first pilot—which was : to change his course on passing the light-ship S.W. half S.,—but kept on a different course which, instead of taking him away, as the proper course would have done, from the reef, led him directly unto it. While it must be admitted that the tug is under the control of the pilot of the tow, nevertheless vessels undertaking to tow ships up the River St. Lawrence must be supposed to be under the control of a person or persons reasonably acquainted with the river. The man at the wheel ought to have known enough to follow the instructions which he receivcd as to the course he was to take on. passing the light-ship, and when he found he was inside the buoy he should have known that he was in immediate danger of running on the reef. It is also plain to me that there was not a sufficient look-out on board the tug. One man at the wheel, even if it be in more experienced hands than the man actu- • ally on duty, was not sufficient to watch the motions of the tow and look out for lights or passing ships. The evidence of the persons on board the tow, and specially the testimony of the pilot goes to show that the pilot perceiving himself in danger put his helm a-starboard so as to bring the bow of the ship towards the port, and thus indicate to the tug the necessity of keeping more to the southward and further away from the reef. This the pilot said he did as soon as he perceived he was in danger from being on the wrong course, and
VOL. V.] EXCHEQUER COURT REPORTS. 157 that he continued with his helm a-starboard until the 1896 accident occurred—and this during fifteen or twenty PRoiNE minutes. The man at the wheel says that the pilot ARTHUR v. shouted to the tug and.put the helm hard a-starboard FLORENCE. about ten minutes before the accident occurred, and Reasons that shortly before the accident he put the helm hard Jnd g f went. a-starboard, which the pilot says, brought the vessel round seven points. The man at the wheel of the tug says that up to immediately before the accident he had never perceived any change in the course of the tow. After a careful consideration of the facts, as so testi- fied, and the position in which the vessel would have been in, if the story of the pilot were true, I am satis- fied that no reliance is to be placed on his statement. I am convinced that he never saw the danger until almost immediately before the accident, when he put his helm hard a-starboard, and it was then too late to avoid the reef. The answer given by the Nautical Assessor on this point shows that the story of the pilot is practically impossible, and therefore the accident could not have occurred in the way he described. I am of opinion that the evidence shows that the pilot was negligent and grossly in fault throughout. His statement that twenty minutes before' the acci- dent, or even fifteen, he commenced to starboard his helm with a view of keeping the tug on the star- board bow of the ship,, and continuing in that condi- tion up to a period shortly before the accident, when - he put the helm hard a-starboard, is entirely incredible. It is impossible that any such movement on the part " of the ship would not have been at once felt by the man at the wheel of the steamer, and it is incredible to suppose that, after feeling the effect which such a motion on the part of the tow would have had on the tug, he should have continued his course without
158 EXCHEQUER COURT REPORTS. [VOL. V. 1896 putting his helm to starboard ; and the only result that PRINCE I can deduce from the fact is that the pilot did not ARTHUR perceive his danger until he gave the order to the man v. FLORENCE. at the wheel to hard a-starboard, when it was evidently Reasons too late to save the vessel from going on the reef. for Judgment. I do not give an opinion in this case as to how far the owners of the vessel are responsible by the admissions of the pilot ; but the excitement which he showed after the accident occurred, and his lamentations and self-reproaches seem to show that his confidence in his own conduct was not as clear then as it was afterwards when he gave his testimony in this case. It is most unfortunate to have to believe that on a night so clear, a ship could not proceed safely up the River St. Lawrence in tow of what was supposed to be a well appointed steamer, and under the guidance of a branch pilot of long experience, and three brilliant lights in full view. Upon this part of the case it is not my duty to render any decision ; but seeing the great importance of the safety of navigation of the St. Lawrence to the welfare of the whole of Canada, I think it only right to call the attention of those whose duty it is to regulate these matters to the circumstances of this case, and to the very important and very interesting report made by the Assessor which, although a little unusual, I have permitted to be filed in the case. If I could have applied to this case the principles which govern the division of damage in cases of collision, I should have been pleased to do it ; but as the statute which makes the rule applies it only to cases of collision it is not in my power to extend it. The tow in this case being at fault through negligence of its pilot, however much the tug is to blame for the accident, the owners are not entitled to recover and their action will have to be dismissed, hut seeing
VOL. V.] EXCHEQUER COURT REPORTS. that very great part of the blame is to be attributed to the tug the judgment will be that each party pay its pR own costs. Judgment accordingly. Solicitors for plaintiff: W. isr A. K. Solicitors for defendants : Caron, Pentland 159 1896 ô i xE ARTHUR v FLORENCE. Reasons Cook. for J adgmant. Ç Stuart.
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.