10 EXCHEQUER COURT OF CANADA [ 1938 1936 QUEBEC ADMIRALTY DISTRICT Dec.9 & 10 BETWEEN: N ov 93 1 0 PORT COLBORNE & ST. LAWRENCE NAVIGATION CO. LTD. AND THE MASTER, OFFICERS, MEMBERS OF PLAINTIFFS THE CREW AND PASSENGERS OF THE SS. BENMAPLE J AND THE SHIP LAFAYETTE DEFENDANT; AND LEONARD LABATTE, JOHN L. INTERVENANTS. DICKEY I ET AL Shipping—Collision in dense fog—Article 16 of the International Rules of the Road—Negligence in not proceeding at moderate speed— Failure to stop and ascertain position of the ships. A collision took place in a dense fog in the St. Lawrence river between the ships Benmaple and Lafayette. The Court found that the Ben-maple was chiefly to blame but that the Lafayette's speed was not moderate under the circumstances. Held: That under such a set of facts as existed the Lafayette should have stopped her engines until the position of the Benmaple had been ascertained with certainty. ACTION by plaintiffs claiming damages from the defendant alleged due them as a result of a collision of the SS. Benmaple with defendant in the St. Lawrence river. The action was tried before the Honourable Mr. Justice Philippe Demers, D.J.A., Quebec Admiralty District, at Montreal. R. C. Holden, K.C. for plaintiffs. L. Beauregard, K.C. and Georges Laurence for defendants. H. H. Harris for intervenants. The facts and questions of law raised are stated in the the following judgment: DEMERS, D.J.A., now (November 10, 1937) delivered the following judgment: Plaintiffs by their amended statement of claim say that the plaintiff, Port Colborne & St. Lawrence Navigation Co. Limited, was the owner of the steamship Benmaple at the time of the occurrences herein mentioned, the additional
Ex. C.R.] EXCHEQUER COURT OF CANADA 11 plaintiffs were the Master, Officers and members of the 1937 crew of the Benmaple and four passengers who were on PORT board her. Shortly before 4.55 a.m., daylight saving time, COLBORNE & ST. on the 31st August, 1936, the Benmaple, a steel screw LAWRENCE steamer of 1,729 tons gross and 1,074 tons net register, NAVIGATION Co. LTD. 250.1 feet in length and 43 feet beam, and carrying a crew ET AL. V. of 19 hands all told, was on a voyage from Montreal, in THE SHIP the Province of Quebec, to Sydney and Halifax, in the LAFAYETTE Province of Nova Scotia, laden with a cargo of flour and Demers, feed and some general cargo, and was proceeding down the D.J.A. channel of the river St. Lawrence between Red Island Lightship and Bicquette Island; the wind was S.W., light, and the weather was a thick fog, and the tide was ebb, running with the Benmaple. The Benmaple was carrying the regulation navigating lights, which were burning brightly, and was proceeding at a slow rate of speed, and was sounding fog signals of one prolonged blast on her whistle at regulation intervals, and a good lookout was being kept on board her. In these circumstances those on the Benmaple suddenly heard very close to the Benmaple and apparently ahead or a little on her starboard bow a signal of one prolonged blast from a ship which proved to be the motor vessel Lafayette, and at the same time the bow of the Lafayette loomed up in the fog, bearing down on the Benmaple at great speed. The engines of the Ben-maple were put full speed astern, but it was impossible for her to avoid the collision, and the stem of the Lafayette struck the Benmaple, cutting through her bows into the cargo hold, and causing such serious damage that shortly afterwards the Benmaple sank and was lost with her cargo and everything else on board. The collision and loss were caused solely by the fault and negligence of the Lafayette and those on board her, as herein alleged. The Lafayette was navigated at an excessive and improper speed through the dense fog; those on the Lafayette negligently failed to keep a proper lookout; the Lafayette failed to sound proper signals for fog in accordance with the regulations; the Lafayette after hearing forward of her beam the fog signal of the Benmaple, the position of which was not ascertained, did not navigate with caution until danger of collision was over; the Lafayette failed to take in due time, or at all, proper steps to avoid the collision; the
12 EXCHEQUER COURT OF CANADA [1938 1937 engines of the Lafayette were improperly handled; the PORT Lafayette improperly altered her course to starboard; when COLBORNE & ST. the Lafayette directed her course to starboard she im- LAWRENCE properly failed to give a signal of one short blast to indi- NAVIGATION Co. LTD. cate that she was doing so; the Lafayette failed to exercise ET AL. the precautions required by the ordinary practice of sea- THE snip men or by the special circumstances of the case; if those LAFAYETTE on the Lafayette had exercised reasonable care and caution De men s , and had navigated her in a proper and seamanlike manner - and with due regard to the existing circumstances, no collision would have occurred; the Lafayette failed to comply with Articles 15, 16, 27, 28 and 29 of the International Rules of the Road. The plaintiffs claim: (a) A declaration that they are entitled to the damage proceeded for. (b) The condemnation of the defendant, the ship Lafayette, and her bail in such damage and in costs. (c) A reference to the District Registrar, assisted by merchants, to assess the amount of such damage. (d) such further and other relief as the nature of the case may require. By her amended statement of defence, defendant avers that she is ignorant of the allegations contained in paragraphs 1 and 2 of plaintiffs' amended statement of claim; she denies the allegations contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of plaintiffs' amended statement of claim except in so far as they are in accordance with this, the defendant's amended statement of defence. Shortly before 5 a.m., daylight saving time, on the 31st August, 1936, the ship defendant, which is a motor steel passenger vessel of a registered tonnage of fourteen thousand, four hundred and thirty tons (14,430), owned by Cie Generale Trans-Atlantique, was proceeding on a voyage from Boston, Mass., to Quebec, properly manned, equipped and carrying a large list of passengers, and was proceeding up the river St. Lawrence between Bicquette Island and Red Island Lightship, in charge of a duly qualified and certificated pilot; there was practically no wind, the tide was ebbing and the current was about two knots against the Lafayette, but there was fog, and for that reason there was a double lookout kept on the forecastle head and two on each side of the bridge, and there were besides on the bridge the pilot, the master, the officer on watch, a security officer and the wheelsman. The Lafayette was carrying the regulation navigating lights,
Ex. C.R.] EXCHEQUER COURT OF CANADA which were burning brightly, and was sounding fog signals of one prolonged blast on her whistle at regulation inter- vals. At 4.52 a.m. one of the lookouts forward reported having heard a whistle signal apparently ahead, but a little on the port bow. The engines of the immediately stopped and all those on the bridge kept a sharp lookout for further whistle signals. After a few minutes, not having heard any further signals the engines of the Lafayette were ordered slow speed ahead, but short- ly after those in charge of the Lafayette, signal of a vessel which had been overtaken before, and which was approaching astern, and not hearing any other whistle signal ahead, ordered the engines of the half speed ahead. But shortly afterwards, however, the white masthead light of a vessel, which afterwards proved to be the Benmaple, suddenly appeared on the port bow of the Lafayette and almost immediately thereafter the green light was also observed. Immediately upon seeing the white masthead light of the Benmaple, the engines of the the helm ordered hard astarboard, the starboard engines full speed astern and then the port engines full speed astern, and, although the Lafayette diately, the Benmaple kept bearing down on the at great speed and struck the Lafayette at a short distance from her stem, doing considerable damage, the Lafayette having, prior to the impact, been brought to a standstill in the water. Immediately after the collision, one of the boats of the Lafayette was lowered down into the water in charge of a duly competent officer and was dispatched to inquire whether any assistance were needed by the those on board her, and shortly afterwards a motor boat was again lowered and sent in charge of a competent officer to give any assistance which might be required, and at 6.04, the first boat came back with seven 'persons from the Benmaple, and at 749, the motor boat came back with the captain and members of the crew of the and the master of the Lafayette Benmaple had sunk, and at 8.05 the with her voyage. 13 1937 PORT c" &s ' r. " 1 _ , A WRENCE NAVIGATION Lafayette were Co. L TD. ET AL. V. THE SHIP LAFAYETTE mers, DDe JA . . hearing the fog Lafayette Lafayette were stopped, obeyed her helm immeLafayette on her port bow Benmaple, or Benmaple, was informed that the Lafayette proceeded
14 EXCHEQUER COURT OF CANADA [ 1938 1937 No blame in respect of the said collision is attributable PORT to the Lafayette, or to any persons on board her, who COLRORNE &ST. did all that possibly could be done to avoid or minimize LAWRENCE the said collision. NAVIGATION co. LTD. The said collision was solely occasioned by, and solely ET AL, v . the consequence of the improper and negligent navigation THE SHIP of the Benmaple and those on board her, in the following LAFAYETTE respects: Demers, (a) The Benmaple was proceeding in a fog and failed to give at D JA. intervals of not more than two minutes a prolonged blast, in violation of Article 15 of the International Rules of the Road. (b) The Benmaple was not proceeding at a moderate speed, having careful regard to existing circumstances and conditions, but was navigating at an excessive and improper speed through fog. (c) Those in charge of the Benmaple failed to stop her engines and navigate with caution until danger of collision was over after hearing the fog signal of the Lafayette, in violation of Article 16 of the International Rules of the Road. (d) There was no pilot on board the Benmaple and her master was not on the bridge, although navigating through fog, in violation of all rules and customs of good seamanship. (e) Those in charge of the Benmaple negligently failed to keep a proper lookout. (f) The Benmaple was not in charge of competent officers and was not sufficiently manned and equipped. (g) The Benmaple was improperly steered and neglected to keep clear of the Lafayette. (h) The engines of the Benmaple were improperly handled and those in charge of her improperly neglected to ease her engines and improperly neglected to stop and reverse in due time. (i) Those on board the Benmaple failed to exercise ordinary and reasonable care and prudence and to act in a seamanlike manner. (j) Those in charge of the Benmaple failed to take in due time proper steps to try to avoid the collision. (k) The Benmaple violated and failed to comply with Rules 15, 16, 18, 19, 22, 23, 27, 28 and 29 of the International Rules of the Road. And by way of counter claim, the defendant owners of the Lafayette say that the collision caused damage to the Lafayette, and/or her owners, to the extent of the sum of seventy-five thousand dollars ($75,000), and they claim: (1) A declaration that plaintiffs are not entitled to the damage proceeded for. (2) The condemnation of the plaintiffs in the damage caused to the Lafayette and her owners, and in the costs of this action. (3) To have an account taken of such damage with the assistance of merchants. (4) Such further and other relief as the nature of the case may require This collision being admittedly not unavoidable, the Court is bound to examine the conduct of both ships.
Ex. C.R.1 EXCHEQUER COURT OF CANADA 15 I must say at first there was no doubt in my mind as 1937 to the responsibility of the Benmaple and that it was with PORT more difficulty that I arrive at the conclusion that the NE CO SI Lafayette was also in fault in a lesser degree. LAWRENCE NAVIGATION 1. The Benmaple had no pilot. She was not bound by co. Imo. law to have one, but in such a case it must be compensated E1„` S. by officers conversant with all the difficulties of naviga- LH E SEHTTIPE tion. As a result, the Benmaple did not follow the usual — course of ships going down the river. Demers, D.J.A. 2. The Benmaple was not sufficiently manned. Captain Johnson, in the opinion of my assessors and in my opinion, failed to meet his responsibilities. He could have retired for a moment, but he should not have taken off his clothes, in order to respond to a call. In this instance, he left Captain Lebrun in charge, and when he retired he had no intention of returning for some indefinite period. Captain Lebrun is a man of sixty-four years and is deaf. IIe had been on duty for seventeen hours, which is too much for a man of his age. 3. Those on board of the Benmaple were not keeping a proper lookout. The Lafayette was equipped with an exceptionally strong diaphone whistle which was placed forward of the funnel. The fog signals of the Lafayette were given at regular intervals and were always heard by the officer of the Doghill which was coming astern. My assessors say, at this point, that the vagaries of sound in a fog are well-known facts, likewise are silent areas, but in this instance, the latter phenomenon was not present. The signals of the Benmaple, though less powerful, were heard by the Lafayette, and there is nothing to indicate, in their opinion, that sounds from the Lafayette, though far stronger, could not be heard inversely. This negligence could be explained. The night was cold. On the Lafayette all were wearing overcoats. On the Ben-maple nobody was wearing overcoats. I:t is explained that they were enclosed in the wheelhouse. The fact that there was not a proper lookout is also evident. Those on board the Benmaple saw the Lafayette (the big boat) at a distance of fifty feet. Those on board the Lafayette saw the Benmaple (the small boat) at a distance of between five hundred and one thousand feet.
16 EXCHEQUER COURT OF CANADA [ 1938 1937 The fact that the people on board the Benmaple contend PORT that they did not see the Lafayette before, is an admission COLBORNE &ST. that their speed was excessive. LAWRENCE 4. It is admitted that the Benmaple was going half-NAVIGATION CO. LTD. speed; to this must be added three knots due to the ebb ET AL. V. tide. THE SHIP My assessors have estimated that the half-speed of the LAFAYETTE Benmaple was between five and a half and six knots, add- Demers, ing three knots for the ebb tide. They arrive at the con- D.J.A. elusion that the speed of the Benmaple was, at least, eight and a half knots. One must consider also that the Benmaple has a single propeller, and that a propeller is not as effective in a following tide as in a tide to be met. 5. I must now come to the question of signals. There is positive evidence by the Benmaple that they were regularly given. My assessors are of the opinion that they were not. They base their opinion on the fact that the Lafayette was stopped three minutes to listen and that all on board were very attentive and heard nothing; that the Doghill was coming astern but heard them, though the diaphone was on the funnel; and also very likely by the poor manner in which the Benmaple was conducted. This, however, being a question of evidence, I consider I am not bound by their opinion and that I must follow the ordinary rules of evidence and that I cannot reject positive evidence on presumption. The doubt in my mind is not sufficient. Plaintiff, therefore, is entitled to the benefit of the doubt. Now, let us come to the Lafayette. Nobody denies that the ship was well manned. Her officers were all on the alert. Her fog whistle was in operation with regularity. There were seven persons on the bridge exercising a vigil and there were two additional lookouts. The master and the staff were all at their posts. The only serious reproach is that she violated Article 16 of the International Rules of the Road. Let us say at first that she did not disregard the rule. If she had disregarded the rule and continued at full speed, very likely nothing would have happened. She started to obey the rule. Hearing a signal, she stopped for three minutes, and nothing being heard, she
Ex. C.R.] EXCHEQUER COURT OF CANADA 17 started to slow for two minutes and then she started half 1937 speed. She was so going for one or two minutes when she Po saw the Benmaple at a distance of between five hundred COLBORNE & ST. and one thousand feet. Iter engines were stopped and re- LAWREN CE versed, and the ships collided. N NcoïTD The question then remains: Was half speed a reasonable ET A v. L. speed? THE SHIP My expert estimates the half speed against the ebb tide LAFAYETTE to be nine knots. Demers, Considering her special and powerful equipment, that D J.A. the Lafayette was practically stopped, though they admit that she might have some advance, they are inclined to think that, under the circumstances, the speed was moderate; but if we admit—as I consider I am bound to do— that a vessel, in such a fog, should stop and go ahead slowly and stop her engines from time to time (1), and that in such a case the engine should have been stopped until it could be ascertained with certainty what the position of the Benmaple was and what she was doing (2) I arrive at the conclusion that the Lafayette was wrong in going half speed before ascertaining that there was no danger from the other ship. It is true that the crew of the Lafayette say that the ship was absolutely stopped when the collision occurred. but the logs of the Lafayette have been altered and this creates a presumption against the ship. I think she had some advance. I must add also that, in the opinion of my assessors, if the Benmaple had seen the Lafayette at the same distance as the Lafayette saw the Benmaple, though the collision very likely would have occurred, it would also very likely have considerably minimized the damage, that is to say, they approve the last part of what witness Gilbert says: Parce que je me reppelle même avoir fait cette reflexion au commandant après l'abordage: "Si le navire que nous avons rencontré avait fait le quart de ce que nous, nous pu faire, nous, nous ne nous serions certainement pas rencontrés" Du moins les dommages auraient été beaucoup limités, Considering all these circumstances, judgment should be entered condemning the Lafayette and her bail, to one- (1) The Campania (1900) 9 Asp. (2) China Navigation Co. Ltd. 151. v. Commissioners of Lord High Admiral of the United Kingdom (1908) A.C. 251. 38409—la
18 EXCHEQUER COURT OF CANADA [ 1938 1937 fourth of the damages, and the Benmaple to three-fourths PORT of the damages; no costs on the action nor on the counter COLBORNE & ST. action. LAWREATCE As to the additional plaintiffs, their action against the NAVIGATION Co. L TD. Lafayette and her bail, for one-fourth of their damages; ET AL. v. no costs. THE slur As to the intervenants, Mr. and Mrs. Dickey, who are LAFAYETTE really additional pl ainti ffs judgment should .be entered Demers, against the Lafayette and her bail, but any amount coming DJA. to Mrs. Dickey should go to the Port Colborne & St. Lawrence Navigation Co. Limited which was subrogated to her rights; no costs. All the damages on these different claims to be estimated by the Registrar, assisted by merchants. Judgment accordingly.
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