VOL. V.] EXCHEQUER COURT REPORTS. 135 4 NOVA SCOTIA ADMIRALTY DISTRICT. 1896 Mar. 19. RONALD McMILLAN, HUGH Mc- MILLAN AND JOHN McMILLAN, PLAINTIFFS ; AGAINST THE OWNERS OF THE SHIP " CUBA," DEFENDANTS. Marittime law—Collision—Narrow roadstead—Rules of road—R. S. C. e. 79 Art. 21—Infraction. • On the 25th September, 1895, two steamships, the O. and the E., were in the outer roadstead of the harbour of Sydney, C.B., the O. proceeding seaward, the E. toward the poit of Sydney. The time was 7 o'clock p.m., the night fine and clear. Both ships had their proper lights burning, and those in charge of each ship descried the other sufficiently early to have prevented a collision if the rules prescribed by R. S. C. c. 79 had been complied with. Upon entering the roadstead. the E. had taken the starboard side of the fairway in compliance with Article 21 of such rules, but, noticing the lights of the outward bound C. about one or one and a half points on her (the E.'s) port bow, her pilot ported her helm to give the approaching steamer more room to pass clear on the port side--reel light to red light. When the•ships were one-quarter of a mile apart the red light of the O. disappeared from the view of the E., indicating that the former had starboarded her helm and was approaching the latter. Thereupon the E. put her helm hard to port with a view to averting collision. In a short time the O. blew two blasts, indicating, under Art. 19, that she was going to port. Then she was only a cable's length from the E. The engines of the E. were going full speed ahead, but when collision appeared unavoidable her engines were reversed full speed. It being immediately seen ou board the E. that the head of the C. was falling off to starboard, although she had signalled that she was going to port, the engines of the E. were again put full speed ahead in an unsuccessful attempt to pass the O. by crossing her bows. The E. was struck amidships and badly damaged. Held, that as Article 21 applied to the roadstead in question, the E. was on the proper side of the channel, and that the C.,having had ample room to take and keep her proper position relative to the fairway, was at fault in leaving it and solely to blame for the collision.
136 EXCHEQUER COURT REPORTS. [VOL. V. 1896 ACTION for damages arising out of a collision in the MCMILLAN harbour of Sydney, C.B. The facts of the case are THE SNIP stated in the reasons for judgment (1). , CUBA. The case was tried at Halifax, N.S., before the statement Honourable James McDonald, C.J., Local Judge of the of Facto. Nova Scotia Admiralty District, on the 22nd November, 1895. R. E Harris, Q.C., for the plaintiffs ; H. Mellish, for the defendants. (1) It was thought that the pub- for her proper side of the channel, lication of the opinion of the it would have been more prudent Nautical Assessor, Captain W. H. for the pilot of the Cuba to have Smith, R. N. R., might be helpful ported his helm directly after towards a clear understanding of passing the steamer to go under the facts of the case. It is as fol- the stern of the Elliott, when by lows : that action he would have been After a most careful examina- directing his course to his own side tion of all the circumstances in of the fairway. He would then connection with this collision, and have shown the red light of his having reviewed the evidence steamer to the red light of the taken before the Registrar, Mr. Elliott, and red light to red light Louis DesBarres, on the 13th and would have passed clear of each 20th November, 1895 ; also hav- other, and no doubt the collision ing read over the depositions of might have been avoided. several witnesses examined by con-I am further of opinion that it sent of the contending perties at was a wrong action on the part of Pictou, taken before John U. Ross, the pilot and master of the Cuba Commissioner, I am of opinion to persistently starboard the helm that the course of the steamer of their ship to a crossing vessel, Cuba was safe and proper im- when they ought to have known mediately after leaving the Vie- by the red light of the Elliott be-toria Pier, and as far as the buoy iug continuously in sight that the situated near the S.E. Bar Shoal. port side of that steamer was pre- The action of those in charge of seated to them, and that the said the said vessel in starboarding the vessel was steering towards the helm to pass under the stern of western shore to get on the pro-the steamer showing a green light per side of the fairway. was correct ; but in the position in The evidence appears to prove which the Cuba was situated, with that the masthead and red lights a steamer two or three miles away of the Elliott, and no other, were in the direction she was going, be- seen all the time from the Cuba, ing inward bound, showing her and the masthead and side lihgts masthead and red {port light) of the Cuba were in sight from the light, indicating she was making Elliott for ten or fifteen minutes
VOL. V.] EXCHEQUER COURT REPORTS. 137 MCDoNALD, (C. J.) L. J., now (March f 1.9th, 1896) 1896 delivered judgment. McM LAN v. before she starboarded her helm rules one of two ships is to keep THE SHIP CUBA. and shut out the port light and out of the way, the other shall displayed the green light, keep her course." And great stress Reasons I am still further of opinion appears to have been placed upon _ or gment. that the Cuba kept persistently the fact that the ships were in that starboarding her helm, which position as crossing ships. The wrong action caused her to follow Cuba acknowledged that she had a up the course of the other vessel, right to keep out of the way and while those on board were attempt- those on board were endeavouring ing to get on their own side of the to do so, and probably would have channel, and it would have been gone clear, if the other vessel had impossible for the three lights of obeyed the rule and kept upon her the Cuba to be seen for so long a course. time from the Elliott if the Cuba I am of opinion that these con- had kept on one steady course. It ditions did not exist at first, but is also admitted that her head was were afterwards brought about by afterwards kept off V.E. the wrong action of the Cuba in . When the collision appeared to persistently starboarding her helm; be inevitable, both vessels should and even if the ,vessels bad. been have stopped and reversed their placed in such a position, it was engines at once as risk of collision not proper seamanship for the was then involved, according to Cuba. to have attempted to cross Article 18. the bow of the other steamer go- As the night was clear with very ing at full speed, but her course little wind and the water smooth, should have been directed to go objects being observed from the under that vessel's stern. deck of the Cuba and the lights I have, therefore, to express my of that vessel being seen from on opinion that the wrong action of board- the Elliott at a distance of the Cuba was the cause of placing nearly three miles, it seems in- the Elliott in a , perilous position ; credible that the two steamers and I consider that as those in should have come into collision charge of the latter vessel did their when there was plenty of room to best to extricate their ship from it manoeuvre in, and there could have up to the time of their close prox-been no difficulty in each Vessel imity to the position in which the keeping upon her own side of the two vessels collided, it is sufficient channel. proof to show on which side of the The arguments in favour of the channel it occurred, and the fault witnesses on board the Cuba are of the• casualty should be attri-based on Article 16 :—" If two buted to the carelessness of those ships under steam are crossing so in charge of the navigation of the as to involve risk of collision, the Cuba. The severity of the blow, ship which has the other on her however, might bave been lessened, own starboard side shall keep out had both vessels stopped and re-of the way of the other." And versed their engines in time. Article 2i :—"Where by the above
138 EXCHEQUER COURT REPORTS. [VOL. V. 1896 This is a suit by the owners of the steamship Elliott mcmiLLAN of 227 tons burthen, against the steamship Cuba of v. THE SHIP 453 tons, to recover damages caused by a collision of CUBA. these vessels through the alleged fault of the Cuba. g,„„„o„H The Cuba in her defence denies any fault on her part, for Judgment. and throws the blame on the Elliott. The collision took place in the outer roadway of the harbour of Sydney, C.B., about 7 o'clock p.m. of the 25th Sept., 1895. The width of the navigable channel, a roadway from Low Point at its outer entrance to the mouth of the harbour proper, is about one or one and a half miles. The course from the harbour entrance to the outer entrance of the roadway is N.E. by E. magnetic, for a distance of about two and a half miles. The outer entrance is known as Low Point, although marked Flat Point on the chart. The Elliott was on a voyage from Charlottetown, Prince Edward Island, to Sydney, and when she arrived at Low Point about six o'clock p.m., stopped for a pilot. The ship, while waiting for the pilot, was about half a mile from the shore, and her head during that interval fell off somewhat from her course. It was but a few minutes till the pilot came on board, and the ship was put on her course W. by S. up the channel. The course indicated W. by S. while following the channel, was in a direction to the side of the channel opposite to Low Point, and would place the ship on that side of the fairway lying on her starboard side, thus obeying rule 21, which requires that : " In narrow channels every steamship shall, when it is safe and practicable, . keep to that side of the fairway or midchannel which lies on the starboard side of such ships." While proceeding on this course the masthead light of a steamer was observed, which the master of the Elliott supposed to be crossing the inner harbour in a northern direction, coming from a position near the
VOL. V.] EXCHEQUER COURT REPORTS. 139 Victoria Pier, inside the south bar light-house. After 1896 going some distance, the steamer appeared to stop, and MOMILLAN then as some of the witnesses phrased it, " she .THE SHIP appeared to angle down the channel." Immediately CUBA. afterwards her three lights, masthead, red and green itp.na for lights, were seen apparently coming end-ou to the audg.nent. Elliott, the lights showing about one ôr one and a half points on the Elliott's port bow. Up to this time the Elliott had kept the course on which the pilot put her when leaving Low Point, namely W. by S., but, noticing that the other vessel was coming down the channel, the pilot directed the helm to be ported, thus giving • the approaching steamer more room, if required, to pass clear on the port side, red light to red light. This steamer proved to be the Cuba outward bound. The lights of both steamers were at this time burning brightly, and the three lights of the Cuba had been seen by those, on board the Elliott for about ten or fifteen minutes after the former had squared on her course down the channel. When the Elliott's helm was ported according to the pilot's orders, it was found the ship fell off about two points to starboard, and the lookout on the Elliott's bow states that the Cuba's lights were a point on the port bow of the Elliott for 15 minutes before that time. It also appears from the evidence that at the time, 'or about the time, the Elliott's helm was ported and her course altered more to the northward, the red light of the Cuba disappeared, indicating that the Cuba had starboarded her helm and was approaching the Elliott. The ships were at this time about a quarter of a mile apart. Those in charge of the Elliott became anxious and her helm was put hard to port, hoping they could pass close to the. Cuba, and their helm was not again changed till the collision had taken place. Just about this time the Cuba blew two blasts of her whistle
140 EXCHEQUER COURT REPORTS. [VOL. V. 1800 indicating under rule 19 that she was directing her MOM AT course to port, an intention, however, which had vS already become apparent to the Elliott from the dis - TBE Bir ,CUBA. appearance of her red light and the appearance of her Reasons green light on the Elliott's port bow ; she was then for ent. only a cable length distant from the Elliott. The engines of the Elliott were still going full speed ahead when the Cuba blew the two blasts, and the master of the Elliott says it would have been impossible to avoid a collision, as they were going ahead through the water, and the Cuba being under her starboard helm was following the Elliott up as the latter endeavoured to evade her under her port helm. When the collision was seen to be inevitable orders were given on board the .Elliott to reverse the engines full speed, but it was immediately observed that the head of the Cuba was falling off to starboard, although she had signalled that she was going to port, and the engines of the Elliott were instantly put full speed ahead, hoping to clear the other vessel by crossing her bows. The Elliott, however, was struck amidships. So far, it would appear that the Elliott had committed no error. The channel through which she was passing is one to which the precautions required by rule 21 are particularly applicable. She was on her proper side of the channel under that rule, and she was there under circumstances which apparently made it impossible for the Cuba to mistake the position of either vessel, while she had ample room by keeping her own side of the channel, or even keeping the midchannel of the fairway, to go on her course without danger to either vessel. We must now consider the defence of the Cuba, which, as set out in her pleadings, is succinctly as follows :
VOL. V.] EXCHEQUER COURT REPORTS. In the circumstances aforesaid, those on board the Cuba saw the red and masthead lights only of a steam- Mo ship, the Elliott, from two to three miles ôff on the Cuba's starboard bow, and bearing about E. the Cuba by her compass, or E. by N. magnetic. The Elliott continued to show her red and masthead lights only, and to avoid risk of collision the hélm of the Cuba was starboarded, when the and a half miles from the Elliott Cuba was then directed about N.E. by her compass, or N.E. by N. magnetic—in ample time to avoid all risk of collision had the Elliott kept her course. The however, then ported her helm when she was about a mile or three-fourths of a mile from •the helm of the Cuba was then forthwith put hard .to star- board, and two short blasts blown on her whistle, indicating that the Cuba intended to clear the by such manoeuvre ; and as the Elliott at full speed under a port helm, attempting to cross the Cuba's bows, and causing risk of collision, the Cuba's engines were reversed at full speed, and three short blasts were blown on the Elli(itt did not slacken her speed, and the ships collided, the bow of the Cuba striking on the side of the about midships. It is admitted that the masthead and red lights of the Elliott were seen by the officers of the Cuba at a distance of three miles, being E. S. from the Cuba. That the Elliott her masthead and red lights only. That the boarded when about 1/ miles from the pleads that the Elliott brought on the disaster by port- ing her helm. This is practically the whole defence, and the facts to which I have referred in considering. the case of the Elliott are not at all shaken by the evi- dence for the Cuba. It was argued by Mr. Mellish. 141 1896 1 r.4 M a rri THE V S • n °' i " p Tü 2 S. from CUBA. Reneona .rudg e„t_ Cuba was about one and the course of the Elliott, Cuba. The Elliott continued to go Cuba's, whistle. The Elliott continued to show Cuba star- Elliott, and she
142 EXCHEQUER COURT REPORTS. [VOL. V. [896 that the Elliott must be considered a crossing ship, ma AN because when first seen at a distance of three miles her v. lights indicated that she was on that side of the fair- TaE CUBA. way where, under the rule referred to, she ought to be, Reasons or was then on her course for that position. I would Iaa r iuent. require the opinion of the Nautical Assessor, I think, to reject this contention, when it is apparent that the Cuba clearly understood, from the position of the .Elliott and her then course, and when it must have been as apparent to the master of the Cuba as it is now to me, that to make the position of both ships perfectly secure he had only to port his helm a point . or two to make a collision impossible. Indeed, if he had kept his course as it was when the Elliott saw his three lights, while she showed her masthead and red lights only, a collision would have been impossible, as it is not contended that there was not ample sea-room to enable the Cuba to port her helm and take the place on the one side of the channel which the Elliott had properly sought on the other. I am advised by my assessor that it is a maxim well known among seamen : " Never to starboard to red light of a crossing vessel when she is only a point or two on the starboard bow," and in this case the Cuba had nothing to gain by it, as by porting her helm a couple of points or less she would have passed clear, and would have regained her position on the right side of the channel without any fear of collision. I hold, therefore, that the Cuba was wrong in starboarding her helm when she did, that by doing so she brought on the catastrophe which happened, and is solely to blame for the collision of these two vessels. The opinion of Captain Smith, R.N.R., is in accordance with the conclusion I have announced, and I will file his memorandum with this judgment. The Cuba is condemned in damages and
VOL. V.] EXCHEQUER COURT REPORTS. costs. The usual reference to the registrar and merch- 1896 ants is ordered, and on payment of the damages and • costs the Cuba's bail will be released. • Judgment accordingly. Solicitor for plaintiff: W. A. Henry. Solicitor for defendants : H. Mellish. 143 VI IT I L L nN THE SHIP CUBA. Reasons Judgment.
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.