308 EXCHEQUER COURT OF CANADA [1939 ~ 1 -9 . 3 .-9 . ON APPEAL FROM THE ONTARIO ADMIRALTY DISTRICT June 20. B ETWEEN: July 3. PATERSON STEAMSHIPS LIM- ITED APPELLANT; (PLAINTIFF) AND TTi1 SHIP FRANK B. BAIRD } RESPONDENT (DEFENDANT) AND THE SHIP SORELDOC (DEFENDANT) ...APPELLANT; AND UPPER LAKES & ST. LAWRENCE TRANSPORTATION COMPANY RESPONDENT. LIMITED (PLAINTIFF) Shipping—Collision between two upbound ships—Duty of overtaking ship—Rule 36 of the Rules of the Road—Appeals dismissed. , The Soreldoc and the Baird, both laden and upbound from Quebec ports, were in collision off Weaver's Point gag buoy on July 15, 1937. About 11:00 p.m., July 14, 1937, the Baird anchored for the night in Pillars Bay, about three-quarters of a mile from Weaver's Point
Ex. C.R.] EXCHEQUER COURT OF CANADA 309 gas buoy. The Soreldoc came around Steen Island and shortly after 1939 saw the anchor lights of the Baird. The Soreldoc saw the green T SHm light of the Baird and blew a two-blast signal which the Baird Fra nk B. answered with a two-blast signal. The Baird weighed anchor and Baird proceeded on her way to Weaver's Point. The Soreldoc gave a v. second two-blast signal which was also answered by the Baird. THE SHIP Soreldoc. The two vessels collided at a point where the navigable channel is 1,000 — feet wide. The trial judge found that the Soreldoc had plenty of Maclean J. room to the port of the Baird in which to navigate and keep out — of the way of the Baird whilst the Baird could not safely have gone any closer to the buoy than she did. The trial judge also found that the Baird could have avoided the collision by slowing her speed and remaining in Pillars Bay. Both ships being equally at fault the trial judge ordered the damages assessed on the basis of 50 per cent -to each. On appeal to this Court the judgment was affirmed. Held: That it is the duty of a vessel overtaking another to keep out of the way of the overtaken vessel. 2. That the master or pilot of the Baird after answering the signal of the Soreldoc should have exercised more caution and facilitated in every reasonable way the passage of the Soreldoc towards the buoy. APPEALS from the judgment of the District Judge in Admiralty for the Ontario Admiralty District dismissing two actions consolidated for purposes of trial. The appeals were heard before the Honourable Mr. Justice Maclean, President of the Court, at Ottawa. C. Russell McKenzie, K.C. for appellants. G. P. Campbell, K.C. and F. H. Keefer for respondents. The facts and questions of law raised are stated in the reasons for judgment. THE PRESIDENT, now (July 3, 1939) delivered the following judgment: This is an appeal from the decision of the District Judge in Admiralty for the Ontario Admiralty District in the above two consolidated actions, which had their origin in a collision occurring between the ship Soreldoc and the ship Frank B. Baird, hereinafter referred to as "the Baird," off Weaver Point in the River St. Lawrence some distance below Morrisburg, Ontario, early in the morning on July 15, 1937. Both ships were laden, of about the same speed, and were bound up the River St. Lawrence. The learned trial judge found both ships equally to blame,
310 EXCHEQUER COURT OF CANADA [ 1939 1939 and from that decision both parties have appealed. On THE IP the hearing of the appeals I was assisted by Captain J. W. Frank B. Baird Kerr as Nautical Assessor. v S . HIP The important facts of the case are so concisely and So reldoc. clearlys et forth in the reasons for j ~ u dgment of the learned Maclean trial judge that it is unnecessary to repeat them. J. The first two-blast signal of the Soreldoc indicated to the Baird that the former was directing her course to port and to which the Baird promptly responded with the same signal, knowing that the Soreldoc was proceeding up the river and that she would have to turn the buoy at Weaver Point, where a definite alteration in course to starboard would be necessary. At that stage the master of the Soreldoc apparently thought the Baird was a down-bound ship and therefore his signal could not have been intended to mean that he was overtaking the Baird and was desirous of passing her on her port side. But the Baird was then about departing from her anchorage to take a course up the river and she also would be obliged to turn the buoy at Weaver Point, both ships then being on courses slightly converging toward the buoy. I think it was the duty of the Baird from the start to make sure that she did not crowd upon the course of the Soreldoc. The Baird, however, worked her engines at full speed for several minutes in heading towards the buoy after clearing her anchorage, while in slack water, and after responding to the signal of the Soreldoc with a two-blast signal. The master or pilot of the Baird on answering the signal of the Soreldoc with two blasts should have exercised more caution and facilitated in every reasonable way the passage of the Soreldoc towards the buoy, by proceeding at moderate or slow speed. Had the Baird's speed from her anchorage towards the buoy been moderate or slow until the Soreldoc was well on towards rounding the buoy, which would have been the proper and prudent thing to do in the circumstances, the collision would have been avoided. Instead of that the Baird crowded upon the course of the Soreldoc. I think the Baird was therefore in part liable for the collision. At some stage between the time of the first and the second two-blast signal of the Soreldoc it must have become obvious to her master that the Baird was bound up the river, and that she would have to turn the buoy at
Ex. C.R.] EXCHEQUER COURT OF CANADA Weaver Point The Baird was then on a course which would take her around the buoy, and she was ahead of Timsnip the Soreldoc. As they came into parallel positions, or almost so, the Soreldoc gave her second signal of two blasts. This signal was likely intended as one of an overtaking ship desirous of passing on the port side of a ship ahead. In any event Rule 36 requires that notwithstanding any- thing contained in the rules every vessel overtaking any other shall keep out of the way of the overtaken vessel, as would also the ordinary practice of seamen and the circumstances of the situation here require. There was, I think, a duty on the part of the Soreldoc to keep out of the way of the Baird notwithstanding the latter may have agreed that the Soreldoc might overtake and pass her on her port side. In point of fact the took and passed the Baird up to the time of the collision, and I do not think they were even approximately bow to bow` until about the moment of the collision. The Soreldoc did not keep sufficiently clear of the avoid the risk of collision and there was no reason for not doing so. I am advised by my assessor, as, I think, was the learned trial judge advised by his assessor, that in approaching Weaver Point the easily laid a course, preferably some distance from the buoy, to give the Baird a much wider berth, knowing that the Baird was also heading for the buoy, and with con- siderable speed, even though the Baird had responded to the second two-blast signal of the that the Soreldoc was an overtaking ship desirous of pass- ing on the port side of the Baird. with the current against the been able to stem the current without making any appre- ciable headway and still keep under command by reducing engine revolutions to equal or nearly equal the speed of the current and to manoeuvre a reasonable distance below Weaver Point buoy in such manner as to give it a wider berth than was given at the time of the collision. Had these precautions been taken the avoided the collision. The Baird have passed closer to the buoy than forty feet which was her distance from the buoy when she was rounding it. I see no reason for thinking that the easily have manoeuvered sufficiently to port, even when 311 1939 B F aa r r et d v. So a doo — Maclean J. Soreldoc never over- Baird to Soreldoc could have Soreldoc as meaning Further, I am advised, Soreldoc she should have Soreldoc could have could not with safety Soreldoc could not
312 EXCHEQUER COURT OF CANADA 1939 the ships were getting quite close together, without sub-THE SHIP jetting herself to loss of command or steerage way because Frank B. Baird of the current. I am therefore of the opinion that the v. Soreldoc was also in part liable for the collision. THE SHIP Soreldoc. I am in agreement with the learned trial judge that both Maclean J. ships were equally at fault. Both appeals are therefore dismissed and each party will bear its own costs. REASONS FOR JUDGMENT OF BARLOW These two actions were consoli-dated by order of the 8th day blast signal. When the of March, 1939. The action is the came to weigh anchor in Pillars result of a collision between the Bay, although she was an upbound Soreldoc and the Baird off Weaver's ship her bow was heading almost Point gas buoy about 3:00 a.m. due east, and although some of on the 15th day of July, 1937. the witnesses of the The Soreldoc is a canal type tion whether or not the with a keel length of 253' and could see her green light, I am of a beam of 43' 4". She was loaded the opinion that the Soreldoc with pulpwood on a voyage, from see the green light at the time Frankland, Quebec, to Thorold, she first blew her first two-blast Ontario. signal. The The Baird is also a canal type back and fill in making the turn with a keel length of 253' and a and in doing so her green light beam of 43' 1". She was laden was shut out and her red light with a cargo of corn on a voyage same into the view of the from Three Rivers to Toronto. About 11:00 p.m. on the 14th the day of July the Baird anchored not a down bound ship and at for the night in Pillars Bay about this time it would appear to the three-quarters of a mile from Weaver's Point gas buoy. The a crossing ship. When the Soreldoc came around Steen Island was turned sufficiently, she pro-and shortly after saw the anchor ceeded on her way to Weaver's lights of the ship anchored in Point. In the meanwhile the Pillars Bay, which ship later turned out to be the Baird. When about of the half way from Steen Island to her way, but was out in the cur-Weaver's Point, the Soreldoc saw rent whereas the Baird the green light of the Baird at which time the Soreldoc blew a two-blast signal. The evidence of lengths to the starboard of the the witnesses for the Baird is that the first two blasts were blown by the the Soreldoc when the Soreldoc was blast signal, which was answered just east of the point known as with a two-blast signal by the the Poplars, which point is about half way between Steen Island and Weaver's Point. There is, that the therefore, no dispute as to the evi- and the Soreldoc dence this far. [1939 Appeals dismissed. D.J.A.: The Baird answered with a two- Baird Baird ques- Soreldoc did Baird proceeded to Sorel- doc. It then became evident to Soreldoc that the Baird was Soreldoc that the Baird might be Baird Soreldoc, which was to the port Baird, was proceeding on was more or less in dead water. When the Baird was some two or three boat Soreldoc and slightly ahead of her, Soreldoc blew a second two-Baird. At this time the evidence is Baird was at half speed at full speed. If the Baird had checked her speed
Ex. C.R.] EXCHEQUER COURT OF CANADA 313 somewhat more after having At the point of contact the 1939 answered the second two-blast navigable channel is at least 1,000 THE SHIP signal of the Soreldoc, the Soreldoc feet wide, yet the course of the Frank B. would probably have gone ahead Soreldoc was within at least 105 Baird of her and no collision would or 110 feet of the buoy. I have v. have occurred. I have asked my asked my Assessor, Captain Felker, THE SHIP Assessor, Captain Felker, if the if the collision could have been Soreldoc. Baird should have waited for the avoided and he tells me that with Maclean J. Soreldoc to proceed ahead and he the width of the channel at this — tells me that in view of the width point the Soreldoc had some 900 of the river at Weaver's Point feet to the port of the Baird in and that there was plenty of room which she could safely navigate and for both ships to round the point, keep out of the way of the Baird, that there was no obligation upon and that the Baird could not safe-the Baird to do so. In any event ly have gone any closer to the both ships proceeded. buoy than she did. For a time it would appear that I am, therefore, of the opinion both ships were almost parallel, that both ships were at fault. If the Baird had slowed her speed and the Baird finding herself caught and remained in Pillars Bay no by the current, found it necessary accident would have happened. On to speed up to straighten herself the other hand, in view of the away, after which she again width of the channel at Weaver's checked to half speed. At this Point, she elected to proceed, and time the Soreldoc blew a check having done so the Soreldoc could signal which was not answered, have avoided the collision by keep-the explanation of the Baird's ing much more to the port of the pilot being that the Baird was Baird. Some evidence has been already checked to half speed. given as to the time which it took The evidence of the pilot of the the Baird to proceed from her Soreldoc is that he kept edging point of anchorage in Pillars Bay to port to keep away from the to Weaver's Point gas buoy, but Baird as the two ships were com- when it is remembered that the Baird was travelling in almost dead ing abreast of Weave w r's a s P o ab in o t u g t a 4 s 0' water the better part of the way buoy when the Baird whereas the Soreldoc was travel- off the buoy and the Soreldoc ling against the current, it can be about 25' from the Baird. The easily understood how they reached evidence of the witnesses for the the point of impact at the time Soreldoc is that the Baird took a they did. slight sheer to port and the two As I have come to the conclusion ships came into contact the buff that both ships are equally at of the starboard bow of the Sorel- fault, the damages will be assessed doc with the port bow of the on a basis of fifty per cent to each Baird. The witnesses for the with a reference to the Registrar Baird say that just before the to determine the same. collision the Soreldoc hauled to In view of the above finding starboard and that this caused the each party should bear its own collision. costs.
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