T-1125-73
British Columbia Packers Ltd., owner of the
M. V. Koskeemo (Plaintiff)
v.
Northland Industries Ltd., David Clattenburg,
Royal Fisheries Limited and the ship Pacific
Rover and John Mano, also known as Joao Mano
(Defendants)
Trial Division, Heald J.—Vancouver, January
15; Ottawa, January 31, 1974.
Maritime law—Collision between ships—Accident in "nar-
row channel"—Contravention of Rules 19, 23, 25(a) and
28(b) of the Collision Regulations—Apportionment of dam-
ages—Defendant owner counterclaiming for limitation of
liability under Canada Shipping Act, R.S.C. 1970, c. S-9, s.
647(2)—Failure to discharge onus.
The action arose out of a collision between the ships
Koskeemo and Pacific Rover in the waters of Grenville
Channel, British Columbia. It was discontinued against the
defendant Mano, by leave, and dismissed against the
defendant Royal Fisheries Limited, for lack of evidence.
Held, both ships acted in contravention of the Regulations
for Preventing Collisions at Sea. The "position of difficulty"
in this case was created, to a very large extent, by the
negligent acts of the Koskeemo. The negligence of the
Pacific Rover was causative, but to a lesser extent. Liability
should be apportioned on the basis of 75% to the Koskeemo
and 25% to the Pacific Rover. The counterclaim of the
defendant Northland Industries Limited, owner of the Pacif
ic Rover, for limitation of its liability, was dismissed,
because of the failure of this defendant to bring itself within
section 647(2) of the Canada Shipping Act, R.S.C. 1970, c.
S-9, by proving that it had nothing to do with the cause of
the accident. The ship's master, the defendant Clattenburg,
was a major shareholder and director of the defendant
Northland Industries Limited. He managed the vessel, in
operation and maintenance, and was guilty of the faults
found against the Pacific Rover.
New England Fish Company v. The Ship `Island
Prince" (Exchequer Court of Canada, unreported, July
16, 1968, File 63/67—B.C. Adm. Dist.); The Dundee
(1823) 1 Hag. Ad. 109; The Voorwaarts and the Khe-
dive (1880) 5 App. Cas. 876; The Thomas Powell and
the Cuba (1866) 14 L.T. 603; The Billings Victory
(1949) 82 Ll. L Rep. 877; Stein v. The Kathy K [1972]
F.C. 585 and Leonard's case, [1914] 1 K.B. 419,
considered.
ACTION.
COUNSEL:
J. R. Cunningham and P. D. Lowry for
plaintiff.
W. O'M. Forbes and A. B. Oland for
defendants.
SOLICITORS :
Macrae, Montgomery & Spring, Vancouver,
for plaintiffs.
Owen, Bird, Vancouver, for defendants.
HEALD J.—The plaintiff is a B.C. corporation
and was, at all material times, the owner of the
M. V. Koskeemo. The defendant, Northland
Industries Ltd., also a B.C. corporation, was, at
all material times, the owner of the defendant
ship Pacific Rover. The defendant, David Clat-
tenburg, was the master of the Pacific Rover at
the time of the collision herein.
At the trial, leave was given to the plaintiff to
discontinue the within action against the defend
ant John Mano, also known as Joao Mano. At
the trial, I dismissed the action against the
defendant Royal Fisheries Limited since no evi
dence was adduced in support of the allegations
in the pleadings against said defendant. In the
circumstances, and since said defendant was not
represented by a separate counsel, I think the
said dismissal should be without costs.
This action arises out of a collision on March
14, 1973 between the Koskeemo and the Pacific
Rover in the waters of Grenville Channel, Brit-
ish Columbia.
Grenville Channel is a tidal waterway some
forty miles long separating Pitt and Farrant
Islands from the mainland of British Columbia.
It is bounded on both sides by sharply rising
mountains and varies in width from about a
quarter of a mile to half a mile in its central
portion and to approximately a mile in its north
ern and southern portions.
The collision occurred at approximately 4
a.m. in the northern portion of the Channel
about one-half a mile south of Kumealon Inlet.
The Channel at this point is just slightly less
than a mile wide. The water is very deep in this
area and may be safely navigated close to both
shores. The collision occurred in darkness, the
sky being heavily overcast and it was misty and
rainy. The wind was south-east at 10 miles per
hour. The tide was shortly after low water and
was still ebbing in a northerly direction.
The Koskeemo was a diesel powered fish
packer of 95 tons gross, being some 80 feet
long, registered in Vancouver. She was fitted
with a magnetic compass, automatic steering
and radar. Her crew consisted of a master,
Captain Haan; a mate, Frank Ennest; an engi
neer, Joseph Widner; and a cook-deckhand,
Olaf Solvik. The vessel had taken a cargo of
fish from Bella Bella to Prince Rupert and was
returning to Bella Bella empty. She was thus
proceeding in a south-easterly direction in the
waters of Grenville Channel.
The Koskeemo was equipped with a white
mast light, a white stern light, a green running
light on the starboard side, and a red running
light on the port side. For some three hours
prior to the collision, the vessel was being navi
gated by the mate Ennest, a seaman of consider
able experience, having had his master's certifi
cate for this type of vessel since 1960. He
testified that all the navigation lights as above
described were operating on the night in ques
tion. He also said that the radar was in good
condition and operating on the three mile range.
The radar was positioned on his right as he
stood at the wheel and was so located that it
could be seen from the wheel. He was steering
the vessel manually. He was navigating the
vessel down Grenville Channel on the mainland
side, being his port side of the Channel, about
600 yards from the mainland shore.
He first saw the Pacific Rover's white mast
light when it was an estimated four to five miles
away in mid-channel on his starboard bow.
He said that when the Pacific Rover appeared
on his radar at three miles, she was coming
straight up the Channel. The Channel in this
area is slightly less than a mile wide. The Kos-
keemo was proceeding at her maximum cruising
speed of 11 knots, which was probably reduced
to a speed over land of 10 knots by a 1 knot
tidal condition. This speed was maintained from
the time the Pacific Rover was first sighted until
the collision. The Koskeemo was only put into
neutral after the collision. Ennest's own course
at all material times was 110° magnetic. He
made no alterations to course from the time he
first sighted the Pacific Rover until just immedi
ately before the collision. Ennest said that he
continued to observe the Pacific Rover on his
radar as she approached and, in his view, it
appeared that the two vessels would pass clear
of each other. At a point approximately 400 feet
distant, he saw the Pacific Rover's stern in the
glow of her stern light. He then realized that he
was looking at the port side of the Pacific Rover
and that she was crossing his bow. He says that
he then altered course to hard-a-port, shortly
thereafter he saw the Pacific Rover's green light,
and when he was about 100 feet distant, he
altered course to hard-a-starboard and in a
matter of seconds thereafter the two vessels
collided. The Koskeemo was struck aft of the
pilot house on the starboard side about 10 feet
forward from the stern and was severely
damaged. The stem of the Pacific Rover was the
portion of said )vessel making contact. The
Pacific Rover suffered no damage. Ennest said
that at no time did he see the Pacific Rover's red
port light and he only saw the green starboard
light a few seconds before the collision as above
described. He said that he realized from his
radar observations that the Pacific Rover was
altering to starboard but nevertheless he did not
consider that he should also alter to starboard
so as to pass red to red.
The Pacific Rover was also a diesel powered
fish packer, of 85 tons gross and some 63 feet
long, registered in Prince Rupert, B.C. She was
also fitted with magnetic compass, automatic
steering and radar. Her crew consisted of a
master, Captain David Clattenburg; a mate and
engineer, Alan Marsden; a deckhand John
Mano; and a cook Roger Hardy. The vessel was
transporting a load of herring from the Ivory
Island area of British Columbia to Prince Rupert
and was thus proceeding in a north-westerly
direction in the waters of Grenville Channel.
Her maximum cruising speed while loaded was
7 knots.
The Pacific Rover was also equipped with a
white mast light, two white stern lights, a green
running light on the starboard side and a red
running light on the port side. The Pacific Rover
had left Ivory Island about noon of March 13
northbound. Clattenburg was at the wheel until
11 p.m. on March 13. At 11 p.m. he was
relieved by the mate Marsden. Marsden was to
be in charge until 3 a.m. of March 14, when he
was to be relieved by Mano. Clattenburg says
he instructed Marsden and Mano to keep to the
starboard side of the Channel as he was doing.
He said that no course changes were necessary
until the vessel would reach Kerr Point, a few
miles north of Kumealon Inlet and that Mano
had been instructed to waken him at that time.
He was sleeping in his bunk at the time of the
collision. He was awakened by the collision and
called to Mano to stop the vessel but, for some
reason, Mano failed to do so. It was Clattenburg
who in fact stopped the vessel.
Marsden relieved Clattenburg at 11 p.m. He
was navigating on his starboard side of the
Channel on a course of 294°-295°. He said his
radar, radio and compass were all working prop
erly. Between 12.30 a.m. and 1 a.m. he instruct
ed Hardy to check the navigational lights and
satisfied himself that they were all operating
properly at that time. He turned over the wheel
to Mano at 3 a.m. at a point just below Baker
Inlet. He says he gave Mano the course of
294°-295° and asked him to call Clattenburg at
Kerr Point. He instructed Mano to keep to the
starboard shore. The vessel was on automatic
pilot when he went off watch.
Unfortunately, Mano was not called to give
evidence at the trial and the Court has thus been
deprived of the benefit of his eyewitness
account of the accident. However, based upon
the evidence which was adduced, I proceed now
to enumerate the acts of negligence which, in
my view, were causal factors in this collision.
Faults of the Koskeemo:
1. The Koskeemo was not in its own water—
that is to say, it was on the port side of a narrow
Channel when it should have been on the star
board side. The Koskeemo thus acted in contra
vention of Rule 25(a) of the Regulations for
Preventing Collisions at Sea (hereafter the Colli
sion Regulations) which reads as follows:
Rule 25.
(a) In a narrow channel every power-driven vessel when
proceeding along the course of the channel shall, when it is
safe and practicable, keep to that side of the fairway or
mid-channel which lies on the starboard side of such vessel.
Plaintiff's counsel submitted forcefully that
the portion of Grenville Channel where this
collision occurred was not a "narrow channel"
within the meaning of the Collision Regulations.
The authorities are clear that a "narrow chan
nel" is that which by the practice of seamen is
treated, and necessarily treated, as a narrow
channel or, the way in which seamen in fact
regard it and behave in it'. Counsel for both
parties acknowledged that I was entitled to seek
and follow the advice of the assessors on this
point. Both assessors have advised me that
Grenville Channel, including the area in which
this collision occurred, is a narrow channel and
is in fact so regarded and treated by seamen.
They have further advised me that when meet
ing traffic in Grenville Channel, the proper
procedure is to go to your starboard side of the
Channel and pass port to port (red to red). It is
also interesting to observe that approximately
this same stretch of water in Grenville Channel
was held to be a "narrow channel" by Thurlow
J. in the case of New England Fish Company v.
The Ship `Island Prince" 2 .
Counsel for the plaintiff called a number of
witnesses who said that it was a fairly common
practice for fishermen using Grenville Channel
to navigate on the port side thereof and to pass
oncoming traffic green to green. Thè defendants
called a number of witnesses conversant with
traffic in this Channel who said that it was also
common practice and the better practice to keep
1 Marsden, British Shipping Laws, 11th ed., vol. 4, pp.
576 and 577.
2 Unreported judgment—Exchequer Court of Canada,
July 16, 1968. (File 63/67—B.C. Admiralty District.)
to starboard and to pass oncoming traffic red to
red. I do not propose to analyze this evidence in
detail. It tends to show that perhaps some fish
ing boats use the Channel in contravention of
the Collision Regulations but does not change
my belief based on the evidence of the defend
ants' witnesses and the advice of the assessors,
that subject area of Grenville is a narrow chan
nel. Thus the Koskeemo clearly contravened
Regulation 25(a) and said contravention was, to
some extent, causative of the collision.
2. The Koskeemo acted in contravention of
Rule 19 of the Collision Regulations which
reads as follows:
Rule 19.
Power-Driven Vessels Crossing.
When two power-driven vessels are crossing, so as to
involve risk of collision, the vessel which has the other on
her own starboard side shall keep out of the way of the
other.
The evidence is that the Koskeemo's course
was 110° and the last known course of the
Pacific Rover was 294' 0 -295°. The assessors
advise me that the Pacific Rover was thus 4°-5°
off a reciprocal course. Thus it would seem that
Rule 19 dealing with vessels crossing would
apply here rather than Rule 18 which deals with
vessels meeting end on, or nearly end on. Thus,
under Rule 19, the Koskeemo was obliged to
keep out of the way of the Pacific Rover, which
it failed to do. However, even if Rule 18 were to
apply, the Koskeemo acted improperly because
under Rule 18, where two vessels are meeting
end on or nearly end on, each vessel is required
to alter her course to starboard so that each may
pass on the port side of the other. The evidence
here is that the Koskeemo altered course hard-a-
port rather than hard-a-starboard. The assessors
advise me that it is a common practice of the
sea in a situation like this to alter to starboard
rather than to port and that Ennest was negli
gent in altering his course to port when he did.
3. The Koskeemo acted in contravention of
Rule 23 of the Collision Regulations which
reads as follows:
Rule 23.
Duties of Burdened Power-Driven Vessels.
Every power-driven vessel which is directed by these
Rules to keep out of the way of another vessel shall, on
approaching her, if necessary, slacken her speed or stop or
reverse.
The Koskeemo, was obligated by virtue of
Rule 19 to keep out of the way of the Pacific
Rover. She was thus negligent under Rule 23 in
failing to slacken her speed or stop or reverse.
The Koskeemo knew that the Pacific Rover was
approaching, she must have been aware that she
was on the wrong side of the Channel and yet,
she continued full speed ahead without slacken
ing her speed at all. This was surely excessive
speed in the circumstances and such excessive
speed was certainly, to some extent, causative
of the collision.
4. The Koskeemo, when it altered course
hard-a-port should have given two short whistle
blasts to indicate such alteration and, in failing
to do so, was guilty of a violation of Rule 28(a)
of the Collision Regulations.
5. The Koskeemo failed to comply with Rule
28(b) of the Collision Regulations which pro
vides as follows:
Rule 28.
(6) Whenever a power-driven vessel which, under these
Rules, is to keep her course and speed, is in sight of another
vessel and is in doubt whether sufficient action is being
taken by the other vessel to avert collision, she may indicate
such doubt by giving at least five short and rapid blasts on
the whistle. The giving of such a signal shall not relieve a
vessel of her obligations under Rules 27 and 29 or any other
Rule, or of her duty to indicate any action taken under these
Rules by giving the appropriate sound signals laid down in
this Rule.
There was no evidence that the Koskeemo used
its whistle at any time.
6. Finally, the Koskeemo failed to keep a
proper lookout at all times after the presence of
the Pacific Rover in the area was known and
thus contravened Rule 29.
Faults of the Pacific Rover:
1. The Pacific Rover violated Rule 28 in that
it altered course to starboard without giving one
short whistle blast as is required under said Rule
to indicate an alteration of course to starboard.
Since Mano did not testify, there is no direct
evidence of course alteration. However, para
graph 7 of the defendants' Preliminary Act
reads as follows:
The M.V. "PACIFIC RovER" was steering a course of 294°
(magnetic) Northbound on the starboard side of Grenville
Channel making approximately 7 m.p.h. through the water.
When the "PACIFIC ROVER" was a distance of between one
and two miles from the vessel which proved to be the
"KOSKEEMo", the "PACIFIC ROVER" altered course to star
board and continued on a course of approximately 298°
(magnetic) to pass "KOSKEEMO" port to port. Shortly before
the collision "KosKEEMo" turned to port crossing the bow
of "PACIFIC ROVER". In an attempt to avoid the collision the
helm of "PACIFIC ROVER" was turned to port.
Since the defendants' Preliminary Act is binding
on them, I am entitled to assume the course of
alteration referred to therein. The assessors
advise me that in making such an alteration to
starboard one to two miles away, the Pacific
Rover was acting quite properly and in accord
ance with the ordinary practice of seamen so as
to ensure a port to port passing. The Pacific
Rover was, however, negligent in not signalling
said course alteration with one short whistle
blast. Since Mano did not testify, we cannot be
certain as to whether or not the whistle blast
was sounded. However, no one on either vessel
heard any such whistle blast. Accordingly, it
seems unlikely that the whistle was activated.
2. The plaintiff alleges as a fault of the Pacif
ic Rover that, immediately prior to the collision,
her port red running light was not on in contra
vention of Rule 7(a)(ii) of the Collision Regula
tions. In support of this allegation, the plaintiff
points to the evidence of Ennest who said that
he did not see a port red light at any time on the
Pacific Rover. The evidence is that about two
weeks previous to the voyage in question, the
port light of the Pacific Rover was not working.
The socket holding said light was corroded and
a wire was broken. Clattenburg had the socket
and wire replaced by Love Electric of Prince
Rupert and said that after said repair, the port
light worked satisfactorily. He said that he had
checked the lights on the night of the 12th-13th
at Ivory Island and they were all operative.
There was also the evidence of Hardy that he
had checked the navigational lights about 1
a.m., just three hours before the accident and
found them all to be operational. However, on
March 14, 1973, at Prince Rupert, after the
accident, an R.C.M. Police officer came aboard
the vessel and asked Clattenburg to turn the
lights on. The red port light did not go on. The
R.C.M. Police officer then went to take the
cover off the port light and as soon as he
touched it, the light went on. Clattenburg says
that, later on, he tightened up the bulb in the
socket, discovering that it had been loose and it
then seemed to be operating satisfactorily.
Nothing further was done at that time to the
port light, the Pacific Rover sailing that evening
on another trip. On March 19, the Pacific Rover
was back in Prince Rupert and, at that time, a
steamship inspector noticed that the port light
went off and on intermittently when it was
shaken or jiggled. He observed that the top of
the light cover was corroded to the point where
there was a hole in the cover. Accordingly, the
cover did not keep out the salt spray which
resulted in a short in the port light. It seems that
someone had contrived a tinfoil patch over the
hole in the cover but this device was not suc
cessful in keeping the salt water out.
There is no direct evidence as to whether the
port light was on immediately prior to the colli
sion. However, having regard to the fact that it
was shorting intermittently due to the defective
cover, I think it quite likely that the port red
light was not illuminated for at least a portion of
the time prior to the collision. Had the port light
been lit, there was a possibility that the Kos-
keemo would have seen it after the Pacific
Rover made the 4° alteration to starboard one to
two miles away. I accordingly find that the
defective port light and cover was, to some
extent, causative of the collision.
3. The Pacific Rover also failed to comply
with Rule 28(b) of the Collision Regulations
(supra) in that she also should have given at
least five short and rapid blasts on the whistle in
these circumstances. As in the case of the Kos-
keemo, there was no evidence that the Pacific
Rover used its whistle at any time.
4. The Pacific Rover also failed to keep a
proper lookout after she became aware of the
presence of the Koskeemo in her area and thus
she also contravened Rule 29.
5. The Pacific Rover should have slowed
down when a close quarters situation became
imminent. Her engines' were still going full
speed ahead at the time of the collision.
The legal principles to be followed in cases of
this kind are stated in Marsden, British Shipping
Laws, 11th ed., vol. 4, Collisions at Sea on
pages 2 and 3 thereof as follows:
The essential elements of actionable negligence were
stated in 1823 by Lord Stowell in The Dundee, ((1823) 1
Hag. Ad. 109 at p. 120) a case of collision between two
vessels, to be "a want of that attention and vigilance which
is due to the security of other vessels that are navigating on
the same seas, and which, if so far neglected as to become,
however unintentionally, the cause of damage of any extent
to such other vessels, the maritime law considers as a
dereliction of bounden duty, entitling the sufferer to repara
tion in damages."
It is the duty of seamen to take reasonable care and to use
reasonable skill to prevent the ship from doing injury, (The
Voorwaarts and the Khedive (1880) 5 App. Cas. 876, 890,
per Lord Blackburn) and what is reasonable must be tested
by the circumstances of each case.
The negligence usually relied on is a failure to exercise the
skill, care and nerve which are ordinarily to be found in a
competent seaman, amounting to a breach of the duty of
good seamanship, or a breach of the international or local
regulations for preventing collisions. "We are not to expect
extraordinary skill or extraordinary diligence, but that
degree of skill and that degree of diligence which is general
ly to be found in persons who discharge their duty (Per Dr.
Lushington, The Thomas Powell and the Cuba (1866) 14
L.T. 603).
In the case of The Billings Victory 3 , Willmer
J. said:
It appears to me that the most important thing to give effect
to in considering degrees of blame is the question which of
the two vessels created the position of difficulty.
The "position of difficulty" in this case was
created, to a very large extent, by the Koskeemo
and its negligent acts above set out. The negli
gence of the Pacific Rover was also causative,
but to a lesser degree.
I have therefore concluded that liability
should be apportioned on the basis of 75% to
the Koskeemo and 25% to the Pacific Rover.
LIMITATION OF LIABILITY
The defendants filed a counterclaim under
which they seek to limit the liability of North-
land Industries Ltd., pursuant to the provisions
of section 647 of the Canada Shipping Act,
R.S.C. 1970, c. S-9.
The relevant portions of said section read as
follows:
647. (2) The owner of a ship, whether registered in
Canada or not, is not, where any of the following events
occur without his actual fault or privity, namely,
(d) where any loss or damage is caused to any property,
other than property described in paragraph (b), or any
rights are infringed through
(i) the act or omission of any person, whether on board
that ship or not, in the navigation or management of the
ship, in the loading, carriage or discharge of its cargo or
in the embarkation, carriage or disembarkation of its
passengers, or
(ii) any other act or omission of any person on board
that ship;
liable for damages beyond the following amounts, namely,
(f) in respect of any loss or damage to property or any
infringement of any rights mentioned in paragraph (d), an
aggregate amount equivalent to 1,000 gold francs for each
ton of that ship's tonnage.
3 (1949) 82 U. L. Rep. 877 at page 883.
The defendants thus allege that any loss or
damage resulting from the negligent navigation
or management by those in charge of the Pacific
Rover occurred without the actual fault or privi-
ty of the defendant Northland Industries Ltd.,
and thus seek to limit the liability of said
defendant as provided for under said section
647(2)(O.
The onus is upon the owner of the ship to
bring himself within the above noted section of
the Act.
I dealt with the authorities covering such a
situation in the case of Stein Estate v. The
Kathy K 4 . At pages 601 and 602 of that judg
ment, I said:
To summarize the authorities, the onus is on the defend
ant here (plaintiff by counterclaim) to prove:
(1) The person whose very action is the action of the
company.
(2) That such person has not been guilty of a fault or
privity as previously defined.
(3) If there be a fault, it did not contribute to the accident.
Applying the above principles to the facts in
this case, the Pacific Rover was owned by the
defendant Northland Industries Ltd. Clatten-
burg, the ship's captain was a major shareholder
and director of the defendant Northland Indus
tries Ltd. He managed the vessel and the crew's
operations generally and was also responsible
for maintenance of the vessel. He knew about
the faulty port light, he knew or would have
known by a casual examination about the cor
roded light cover which covered the port light.
He was negligent in not having a new cover
installed. He admitted that he knew nothing
about the Collision Regulations. He was not
sure that he knew and appreciated the signifi
cance of the various whistle blasts required by
said Regulations. He admitted that there was no
copy of the Collision Regulations on board the
vessel. His instructions to the crew were casual
at best. He took no reasonable steps to ensure
that Mano was qualified to navigate the vessel.
4 [1972] F.C. 585 at pages 600,601 and 602.
In conclusion, I am satisfied that Clatten-
burg's actions were the actions of the defendant
Northland Industries Ltd.; that Clattenburg was
guilty of the faults and negligence above enume
rated and that said faults contributed to the
accident.
In proceedings such as this, the onus is on the
owner to show that he had nothing to do with
the cause of the accident—to show that he did
not contribute in any way to what happened 5 . In
the instant case, the owner has not discharged
that onus.
There will therefore be judgment as follows:
(a) Liability for the collision is apportioned on
the basis of 75% to the Koskeemo and 25%
to the Pacific Rover;
(b) The counterclaim of the defendant North-
land Industries is dismissed with costs;
(c) There will be a reference as to damages
pursuant to Rule 500, said damages to be
assessed by a prothonotary of this Court; and
(d) The costs of the action will be apportioned
on the same basis as liability has been appor
tioned in accordance with paragraph (a)
hereof.
Pursuant to Rule 337(2)(b), counsel for the
defendants may prepare a draft of an appropri
ate judgment to implement the Court's conclu
sions and move for judgment accordingly.
The invaluable assistance of the assessors
Captain Draney and Captain Docherty is grate
fully acknowledged.
5 See: Hamilton L J. in Lennard's case, [1914] 1 K.B. 419
at page 436.
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.