T-3573-71
The Bell Telephone Company of Canada—Bell
Canada (Plaintiff)
v .
The Ship Mar-Tirenno and owners (Defendants)
Trial Division, Addy J.—Quebec, January 22,
23 and 24; Ottawa, June 13, 1974.
Maritime law—Damage to underwater telephone cables by
the anchor of defendant ship—Wharf extremely exposed to
ice movement—Ship breaking away creating dangerous
situation—Negligence on part of captain—Inevitable acci-
- lea rejected—No contributory negligence—Action
sustained.
Interest Rights in admiralty `matters—Jurisdiction of
Court—Higher rates granted—Interest Act, R.S. 1970, c.
I-18, secs 11, 13.
The plaintiff's claim is for damages caused by the anchor
of the defendant ship to its underwater telephone cables
near the Port of Quebec. The defendant ship suffered some
damage to its hull on a return trip through the St. Lawrence
Seaway. In order to repair the ship, the cargo of grain had to
be unloaded at the Port of Quebec because of ventilation
facilities. It was decided to tie up at Pier 18 which was the
only pier that had special facilities for unloading and storing
of grain. The captain was advised to double his lines and
maintain constant watch because Pier 18 was an extremely
exposed wharf in the winter as the tides shift ice backwards
and forwards. The ship did break away, collided with the
wharf and continued upstream toward a shore-side restau
rant creating a very dangerous situation. The captain
ordered the engines to be started, ordered the starboard
anchor to be dropped to swing the stern away from the
shore and then ordered the port anchor to be dropped to
stop the movement of the ship. The anchor hooked on to the
plaintiff's cables causing the damage.
Held, the action is sustained. Since the defendant know
ingly adopted a dangerous course of action and damage to
the plaintiff ensued therefrom the burden of proof shifts to
the defendant to justify the dangerous course. The captain
was negligent in not having informed himself of the location
of the cables when he was warned of the danger of the ice at
that wharf. Also, the captain was negligent in not assessing
the possible alternatives i.e. moving on to Halifax, or tying
up at another wharf at the Port of Quebec or unloading the
grain from the forward hold by using the ship's machinery
and trucks from the wharf. Although the defendants estab
lished that watches had been ordered, they failed to estab
lish that the watches carried out their duties properly. The
defendants' plea of inevitable accident fails because the
breaking away and the resulting damage was clearly foresee
able and there was a failure to observe and to carry out any
,reventive action. There is no contributory negligence on
the part of the plaintiff. All persons navigating that area are
required by law to know of the existence and location of the
cables and of the prohibition against anchoring in that area.
The Europa (1850) 14 Jur. 627 at page 629; The
Marpesia v. The America (1872) L.R. 4 P.C. 212; The
Peterborough v. The Bell Telephone Co. of Canada
[1952] Ex.C.R. 462; The John Harley v. The William
Tell (1866) 13 L.R. (N.S.) 413, referred to. The Bell
Telephone Co. of Canada v. The Rapid (1895-97) 5
Ex.C.R. 413; The Czar (1875) 3 Cook Adm. 197, Bell
Telephone Co. of Canada v. Beverley Steamship Co.
Ltd. [1944] C.S. 154; B.C. Telephone Co. v. The Arabi-
en 34 B.C.R. 319 distinguished.
With regard to interest, the discretion to award or not to
award should not depend on whether the defendant was
grossly negligent or not since the right to interest in admiral
ty law is considered as forming part of the damage caused
for which the defendant is responsible, and is a right of the
person harmed, once the liability has been established. The
Kong Magnus [1891] P. 223; The Joannis Vatis (No. 2)
[1922] P. 213 and The Northumbria (1869) L.R. 3 A. &
E. 6, followed. Canadian Brine Limited v. The ship Scott
Misener [1962] Ex.C.R. 441 disagreed with. Interest should
be set at 6% (the commercial rates prevailing at the time)
since section 13 of the Interest Act is not applicable to the
Province of Quebec.
ACTION.
COUNSEL:
Roland Chauvin, Michel Racicot for
plaintiff .
Raynold Langlois, Richard Gaudreau for
defendants.
SOLICITORS:
Houle, Hurtubise & April, Montreal, for
plaintiff.
Langlois, Drouin & Laflamme, Quebec, for
defendants.
ADDY J.—The plaintiff's claim is for damages
caused by the anchor of the defendant ship to
its underwater telephone cables, running
between the Cities of Quebec and Levis within
the limits of the Port of Quebec.
It appears that the defendant ship suffered
some damage to its hull on a return trip through
the St. Lawrence Seaway. The ship had been
damaged on the 10th of December, 1970, when
it collided against the wall in the Saint Lambert
Lock. The damage was caused on the port side
in the vicinity of hold number 1, both above and
below the water line of the ship.
It was decided to proceed to Quebec, as the
shore facilities at Sorel, Trois-Rivières and
Montreal apparently did not include available
ventilated storage for grain. On arrival, the ship
was carrying approximately 13,235 tons of vari
ous grains. It had approximately 2,336 tons of
alfalfa pellets in the forward hold, of which
some 1,800 tons were to be discharged in order
to permit the repairs to be carried out.
In order to properly effectuate repairs, grain,
which had been loaded in the forward hold, had
to be discharged and it was decided to tie up at
Pier No. 18, which was the only pier that had
special mechanical onshore facilities for the
unloading and storing of grain. The facilities
consisted of two mobile towers on tracks.
The ship tied up to Pier No. 18 during the
afternoon of the 13th of December, 1970, after
having requested and received permission from
the port authorities to do so. The captain was
advised to double his lines and to maintain a
constant sea watch on the lines, both fore and
aft, and also to maintain a constant sea watch in
the engine room and on the bridge. This recom
mendation was made to him because of the fact
that Pier No. 18 is an extremely exposed wharf
in the winter-time by reason of the movement of
the ice, as the Port of Quebec is subject to tides
which shift the ice backwards and forwards as
the tides ebb and flow.
The harbour master of the Port of Quebec,
one Captain Henri Allard, testified that the
orders at the Port were that any vessel tied up at
Pier No. 18 was supposed to maintain a con
stant state of alertness in case it should be
necessary to pull away from the wharf at any
time because of the ice. It must be ready to
move away at any time with a sufficient com-
element of crew aboard at all times in order to
handle it efficiently.
When the ship was originally tied up on the
13th, it was tied to six different bollards on the
wharf. Each tie consisted of two separate lines:
there were, in other words, two lines' to the
forward bollard, two bow lines leading to the
port side of the bow, two forward springs, two
rear springs, two stern lines leading to port of
the stern and two lines leading aft, for a total of
twelve lines; on the following day, two addition
al lines were added: one forward and one aft,
for a total of fourteen lines. There is no doubt
that the ship was using about twice the number
of lines, as would normally be required in that
port, were there no danger from ice. It is worthy
to note that, although the ship's captain, when
giving evidence, stated that he did not have the
impression that any tugs were required to clear
the ice from the wharf in order to allow the boat
to tie up, the ship's log does contain an entry to
the effect that two tugs were required to do this
and it seems clear that this occurred.
The captain ordered a sea watch to be main
tained on the bridge, consisting of one officer
and two seamen. He also ordered an engine
watch to be maintained constantly, consisting of
one officer and one seaman, and also a watch
on the lines forward, consisting of one officer
and two men, and a similar watch on the lines
aft.
The following day, at approximately 5:45
p.m., after the major part of the 1,880 tons of
grain, which were to be discharged from the
forward hold, had been removed, all of the lines
suddenly parted within a matter of something
less than thirty seconds, and the ship moved
rapidly up river caught by the ice on the rising
tide. The stern of the ship collided almost
immediately with a wharf some short distance
upriver from the pier, to which it had been
secured and, after colliding with the wharf, it
continued upstream a very short distance
moving again toward shore and creating an
imminent and very dangerous situation for the
occupants of a shore-side restaurant known as
the Riviera Restaurant.
In an attempt to prevent the ship from collid
ing with the restaurant and to arrest the ship's
motion, the captain, who had been in the saloon
at the moment the ship started to move and who
rushed immediately to the bridge, issued orders
to start the engine and to drop the starboard
anchor in order to swing the stern away from
the shore. He then, immediately afterwards,
gave an order to drop the port anchor in an
attempt to stop the movement of the ship which
was still proceeding upriver with the ice. During
this time the normal procedures were being fol
lowed to start up the engine. It appears that it
did start after a normal interval of some two or
three minutes. Even with the engine going and
the two anchors out, the ship continued to move
upriver with the ice for a short distance until the
anchors finally took hold.
After the ship was stopped in the river and
the immediate danger from the ice had subsided
and the boat was being controlled by the power
of the propeller, an order was given to weigh the
anchors. The port anchor was somewhat dif
ficult to raise and, when it cleared the ice, it was
noticed that the flukes had hooked onto the two
submarine cables. The anchor was freed from
the cables without too much difficulty, and the
ship returned to port.
It is uncontradicted that the cables, which
were hooked by the anchor, were those of the
plaintiff and that whatever damage was caused
to the cables was caused by the anchor of the
defendant vessel.
As to the reason for the breaking of the ship's
lines, it was established in evidence, and I so
find, that the first line to give way was the
forward spring. This, in the opinion of the asses
sors, is a very clear and irrefutable indication
that the cause of the breaking of the lines was
the pressure of the ice on the bow and sides of
the ship pushing it upriver with the rising tide
rather than excessive tension on the bow lines
resulting from a possible failure to slacken
them, while the grain was being unloaded from
number 1 hold and the increased buoyancy for
ward was causing the bow to rise. I accept their
view on this point and agree with them that
there is no evidence to indicate that there was
any undue tension on the bow lines at that time
and that all the evidence points to the lines
having been broken by reason of the moving ice
seizing the ship and carrying it upriver.
The assessors were also of the view that the
watches, which the captain ordered, were quite
adequate in the circumstances. They were also
of the view that, once the lines had broken, the
correct orders were given in a proper sequence
and that these orders were promptly and effi
ciently followed and that there was no apparent
faulty seamanship on the part of the crew in
freeing the ship from the ice and bringing it
under control. They were also of the view that
the captain had no alternative but to order the
anchors to be dropped, when and where he did,
nor do they feel that, once it was noticed that
the telephone cables were hooked to the anchor,
anything but the proper procedures were adopt
ed to free the cables. After carefully reviewing
the evidence, I also accept their views on these
matters and can find no act nor omission which
might constitute negligence on the part of either
the captain or any member of his crew, subse
quent to the time the cables broke, nor is there
any evidence of defective equipment or ma
chinery which might have caused or contributed
to the mishap.
While dealing with the machinery and equip
ment, it is remarkable that no evidence whatso
ever was adduced by either side as to the actual
condition of the lines. When a line breaks, it
does so because it is not of sufficient strength to
resist the type and degree of strain put on it and
the first question which naturally comes to mind
is what the condition of the line was at the
moment it was put under strain. One would
have thought that, had the lines been in good
condition, the defendant would have been most
anxious to establish this fact and, conversely,
had they not been, the plaintiff would have been
equally as anxious to establish their defective
condition.
Since there was no evidence either way
regarding the actual condition of the lines as to
wear and tear and since, in the assessors' view,
the gauge and composition of the lines were
quite normal, having regard to the size of the
ship, no fault can be imputed to the defendants
for maintaining inadequate equipment from the
mere fact that the lines failed to hold the ship,
since, again according to the assessors, the
force of the ice with the rising tide would create
an almost irresistible strain on any lines. Fur
thermore, the onus would be on the plaintiff to
establish defective lines if it were relying on
that fact as constituting negligence.
The case, in my view, therefore, turns on
whether there was any negligence on the part of
the captain or any member of his crew in tying
up to that wharf in the first place, or in the
manner in which the ship was secured or
remained there, or in remaining there at all, and
finally, whether he and his crew took all precau
tions, which normally should be taken to avoid
the ship breaking away from its moorings as it
did, including constant and proper observation
of all conditions which might affect the security
of the ship.
Where a person has actual dominion and con
trol over an object or has a legal duty to control
it and that object goes out of control and causes
damage, then, it is obviously up to the person in
control to explain by positive evidence the
reason why the object went out of control or, at
least, to establish by positive evidence that it
was not due to any act or omission on his part
or on the part of any other person whose
actions were under his control.
The evidence is clear that, although this was
the captain's first experience in a port under
conditions of ice, he was specifically warned, at
least twice, of the danger of ice. He was told
that he should double his lines, maintain a sea
watch forward and aft on the lines, and also
maintain engine and bridge watches at all times.
He did, in fact, double his lines and order the
recommended watches to be maintained. He
was warned that there was a danger from the
ice, but there is no evidence whatsoever that he
even attempted to inform himself of the precise
nature of the danger or of the extent of the
danger.
As to the captain's failure to inform himself
of all of the conditions of the port, which might
affect his ship, he admitted at trial that he knew
of the existence of the submarine cables but did
not know of their location because the charts he
had aboard did not indicate them. The assessors
informed me that, for many years, the position
of these cables was indicated on marine charts
of the St. Lawrence. The ones filed at trial
clearly indicated the position of the cables and
the publication covering the typography and
facilities of the Port of Quebec also indicated
their location. In the same way that failure to
consult a chart constitutes negligence, (refer
The Sub-marine Telegraph Company v.
Dickson'), failure to have up-to-date charts
aboard would equally constitute negligence. It is
true that the lack of knowledge in this case
might not have contributed to the damage. At
the very least, this is evidence of the failure of
the captain to inform himself fully of the condi
tions when he knew he was assuming a risk by
tying up at Pier No. 18. This must also be
considered in the light of the evidence of the
captain when, even at the time of trial, he admit
ted that he did not yet know whether any
member of his crew had ever had any experi
ence in the handling of a ship in a port where ice
was present. One would think, since he had no
experience whatsoever himself, he would, at the
very least, have informed himself as to whether
any crew member possessed any.
The assessors advise me that under certain
conditions of ice and tide the force exerted by
ice could not be overcome by doubling or, at
times, even tripling the lines and, to that extent
at least, the force might be considered as irre
sistible and, for that reason, the wharf in ques
tion was considered extremely dangerous in
winter and was to be avoided, except in condi
tions of extreme emergency. I accept their
advice on this matter. But again, there is no
evidence whatsoever that the captain was aware
of this nor was there any evidence that he made
any attempt whatsoever to inform himself of
that fact. Had he done so, he might never have
7- [18641 C.B.N.S. 758.
tied up at the wharf at all, but might well have
chosen to move on to Halifax (there was no
evidence adduced that he could not have pro
ceeded to Halifax), or he might very well have
decided to tie up at some other wharf at the Port
of Quebec and to unload the grain from the
forward hold by using the ship's machinery and
trucks from the wharf.
The tying-up at the wharf in question, without
informing himself fully, or, at least, taking all
reasonable steps to inform himself fully of the
nature and extent of the danger and, more
specifically, of the very great force which the
ice would exert on a ship on a rising tide at that
particular wharf, constituted negligence on the
part of the captain. He chose to merely accept
the fact that there was a danger and to accept,
without knowledge of the extent of it, the
recommendations the two persons in question
chose to make. As a result of that negligence,
the very situation, which would otherwise have
been foreseen or which, most probably, would
have been foreseen had the captain not neglect
ed to inform himself, arose and, as a direct
result and a clearly foreseeable result thereof,
the lines broke and the ship was put in a peri
lous situation and in a state of emergency
which, in order to avoid the very real danger of
loss of life to the occupants of the Riviera
Restaurant, necessitated the dropping of the
anchors.
Not only is the chain of causality unbroken
but all of the ensuing events, including the
emergency anchoring, were clearly foreseeable.
It is, of course, trite law to state that one
cannot be excused by reason of actions result
ing from the existence of a state of emergency
when the emergency itself is caused or con
tributed to by one's own negligence, and it mat
ters not whether the negligence is founded on
misfeasance or on nonfeasance. Where it is the
duty of a person to inform oneself of the nature
and extent of a dangerous situation, knowledge
of the nature and extent of the danger will be
imputed to that person and his actions will be
judged as if, at the time of the act or omission,
he actually had the knowledge which it was his
legal duty to acquire.
Finally, once a plaintiff has established that a
defendant has knowingly adopted a dangerous
course of action and that damage to the plaintiff
has ensued therefrom, he has discharged his
burden of proof, at least temporarily, and the
burden shifts to the defendant to justify his
having taken such a dangerous course. Without
any such evidence by the defendant, as a matter
of reasoning and of fact the plaintiff would
necessarily succeed.
The captain exposed his ship to a very dan
gerous situation, which was dangerous not only
for his ship and its crew but dangerous for
others and for the property of others. The
extent of that danger is uncontradicted; he was
not acting under a situation of immediate emer
gency since the ship had been damaged in Mont-
real three days previously and had proceeded to
the Port of Quebec without any evident change
in the condition of the vessel or its cargo having
been proven in evidence. In such a case, it is
obvious that the defendants must establish that
there was no other reasonable alternative open
to the ship but to put itself in that particular
situation and then must establish also that,
having taken the risk, all precautions, which
could reasonably have been taken, were adopt
` ed having regard to the nature and extent of the
danger.
As to the first part of the test, the defendants,
as stated previously, failed to establish that sail
ing on to the Port of Halifax, or unloading at
another pier in Quebec, would not be other
reasonable alternatives which could have been
adopted in lieu of tying up at Pier No. 18. There
might well have been other reasonable courses
open to the defendant ship but, in any event, it
has failed to establish that there were no other
reasonable and less dangerous alternatives open
to it. As to the second portion of the test, there
is a lack of evidence that the very danger, which
should have been anticipated, was ever
observed by any member of the crew of the
ship. There is no evidence that any crew
member ever noticed the ice approaching with
the rising tide. Had this been done, then, other
actions might well have been taken such as
giving immediate orders to start up the engine
before the lines actually broke in order to assist
the lines in withholding the strain of the ice. The
captain gave specific orders that watches were
to be maintained and he and his officers did
carry out periodic inspections. However, for the
period of some one-and-a-half hours immediate
ly preceding the accident, there is no evidence
whatsoever that the people who were detailed to
the watches, actually carried out their duties or
that those detailed to slacken and to keep watch
over the lines were actually doing so. This,
coupled with the fact that no member of the
crew was called to give any evidence as to what
observations were made of the ice previous to
the lines breaking, leads me to the conclusion
that, although the defendants established that
watches had been ordered, they failed to estab
lish that the watches carried out their duties
properly.
There was a failure to observe and to carry
out any preventive action. The defendants, in
this case, plead inevitable accident and, in order
to succeed, they must establish that all reason
able precautions were taken to avoid the mishap
and that the accident itself was inevitable in the
sense that it could not be reasonably foreseen
or, if foreseen, could not be guarded against by
using all reasonable precautions under the
circumstances.
Inevitable accident has been defined as an
accident "which a party charged with an
offence could not possibly prevent by the exer
cise of ordinary care, caution and maritime
skill." This definition is to be found in The
Europa 2 and was approved by the Privy Council
in The "Marpesia" v. The "America " 3 and was
also adopted by Cameron J. (as he then was)
when sitting on appeal from a judgment of a
district judge in admiralty for the Quebec Admi
ralty District in The Peterborough v. The Bell
2 (1850) 14 Jur. 627 at page 629.
3 (1872) L.R. 4 P.C. 212.
Telephone Co. of Canada 4 . Since inevitable
accident is a state of affairs relied upon by a
defendant to exist in order to avoid liability, its
existence must be established affirmatively by
the person relying upon it, namely, the defend
ant. See Burrard Terminals Ltd. v. Straits
Towing Ltd. 5 ; The Merchant Prince 6 ; Tremblay
v. Hyman'; Poplar Bay _ Steamship Co. v. The
Charles Dick 8 ; also the Peterborough case,
(supra). The same principles as to onus apply to
a plea of an act of God. See Carver's Carriage
By Sea by Colinvaux 9 . Exceptional currents,
which only occur on rare occasions, do not
constitute an act of God. See The Kepler 10 ; The
Pladda "; and The "Velox " 12 .
The breaking away, which caused the acci
dent, was clearly and distinctly foreseeable and,
in fact, foreseen and was the object of two
separate warnings; the resulting damage was
also clearly foreseeable. The accident was,
therefore, not of the type of rare occurrence
which normally characterizes an inevitable acci
dent at law. In view of this, the burden on the
defendant ship of establishing that it "could not
possibly prevent it by the exercise of ordinary
care, caution and maritime skill" is greatly com
pounded, and, in my view, for the same reasons
mentioned above which constitute negligence on
its part, the defendant ship also fails in this
particular defence. In addition thereto, as to the
defence of inevitable accident, it , is worthy of
note that there were two icebreakers available
in the vicinity and no explanation was given as
to why the icebreakers were not engaged to
4 [1952] Ex.C.R. 462.
5 (1965) 50 D.L.R. (2d) 41.
6 [1891-4] All E.R. Rep. 396.
7 (1917-21) 20 Ex.C.R. 1.
8 [1926] Ex.C.R. 46.
9 Vol. I, 12th Ed. paras. 9, 10, 11. (British Shipping
Laws—Vol. 2).
10 (1876) 2 P. 40.
" (1876-7) 2 Prob. Div. 34.
12 [1955] 1 Adm. 376 at page 380.
stand off in front of the vessel in order to
attempt to break up any large ice flow before it
actually reached the defendant ship. I would
have thought also that, since the anchor chains
were strong enough to hold when hooked to the
cables, they would have been strong enough to
secure the ship to the wharf instead of using
lines. The assessors, however, felt that this was
not a recognized procedure in this part of the
world, although used in the Mediterranean when
hurricane warnings were given. Be that as it
may, the accident cannot be said to be inevi
table when clearly foreseen and when it has not
been affirmatively established that there were
no other reasonable alternatives open.
Where the plaintiff has established that the
damage originated from the ship breaking away
from its moorings, the defendant ship must
explain how this happened without negligence
on the part of its crew or by reason of faulty
equipment. See The John Harley v. The William
Tell 13 .
The case of Bell Telephone Co. of Canada v.
Beverley Steamship Co. Ltd. 14 relied on by the
defendants is not, in my view, of great assist
ance. In this particular case, the ship was
anchored in an authorized anchorage. It was
held that, on the facts, the ship was properly
anchored and that there was no negligence
whatsoever in the manner in which the ship had
anchored. Subsequently, a completely unexpect
ed hurricane arose, which wrecked many ships,
and caused the anchors of the defendant ship to
drag and finally catch in the telephone cables. It
was held that the ship was not responsible for
the damage caused in hooking the cables, but, it
was found responsible for the manner in which
the cables were disengaged from the anchors—
the ship's crew having cut the cables instead of
taking proper steps to disengage them.
The case of British Columbia Telephone Com
pany v. The Arabien i 5 . is not very helpful either
to the defendant ship. Although it was held in
that case that the plaintiff had failed to dis-
i3 (1866) 13 L.R. (N.S.) 413.
14 [1944] C.S. 154.
15 34 B.C.R. 319.
charge the onus of proving negligence, there
was no indication as to the grounds of the
finding in the report of the case; on the con
trary, the trial Judge stated that his conclusion
was a result of careful consideration of all of
the facts but that he was refraining from review
ing the facts.
In the case at Bar, the defendants also allege
that the plaintiff was interfering with rights of
navigation and was, therefore, the author of its
own misfortune, or, at least, contributorily neg
ligent. The plaintiff enjoyed a valid easement
entitling it to have its cables installed where
they were. Navigable waters such as the St.
Lawrence River have often been likened to
public highways giving one the right to navigate,
pass and repass at all times and states of the
tide.
There is no doubt that the easement granted
to the plaintiff _ does not entitle it to interfere
with the ordinary rights of navigation any more
than the ownership of the soil on which the
cables are laid would do so. Refer to Mayor of
Colchester v. Brooke 16 and The Swift".
But the rights of navigation in territorial
waters are necessarily restricted. Among the
many restrictions, one finds prohibition against
anchoring in certain areas. The installation and
maintenance of cables on the bottom of a river,
in an area where anchoring is prohibited, is not
an interference with the rights of navigation
since the rights to navigate in this area do not
include the right to anchor there.
It would not have been necessary for the
vessel to drop anchor at that place in the river if
the master and crew had used proper care in the
first place. Refer Bell Telephone Co. of Canada
v. Canada Steamship Lines, Limited 18 . '
16 7 Q.B. 339.
17 [1901] P. 168.
18 (1938) 76 C.S. 473 at page 477.
For the above reasons, it is clear, in my view,
that negligence has been established against the
defendant ship and that it has failed in its plea
of inevitable accident.
As to the existence of contributory negligence
on the part of the plaintiff, I was somewhat
concerned over the argument that, notwith
standing its knowledge that its cables had been
hooked on many occasions previously by ships'
anchors, the plaintiff continued to maintain
them between the Cities of Quebec and Levis in
the middle of a very busy port, when the same
cables could presumably be installed elsewhere
or perhaps encased in cement in such a way that
ships' anchors could not catch in them.
The fact that the cables were installed, within
the limits of the Port of Quebec, undoubtedly
increased the possibility of damage occurring to
the cables, having regard to the number of
ships, which not only pass by but which ma
noeuvre about the area, tie up at the various
piers and anchor in the authorized anchorages in
the general area of the Port. The installation,
however, does not in any way constitute a
hazard to navigation as lawfully authorized in
that area; it does not, in fact, interfere with the
manoeuvring of ships on the surface over the
cable area, which is all that the ships are entitled
to do in that particular place. The position of the
cables is clearly indicated on up-to-date naviga
tional charts and the official releases of publica
tions covering navigation and piloting on the St.
Lawrence. All persons navigating in that area
are required by law to know and, therefore, are
presumed at law to know of the existence and
location of the cables and of the prohibition
against anchoring in the area. The plaintiff was,
therefore, entitled to assume that the defendant
ship knew these facts. The plaintiff was further
more entitled to assume that the defendant ship
would act lawfully, in a reasonable and prudent
manner, and in accordance with the recognized
standards of seamanship and failure on the
plaintiff's part to take all precautions, which
might be required to guard against any possible
damage to itself or its property arising out of the
negligent or unlawful acts or omissions of other
parties, does not constitute negligence on its
part in the circumstances of this case. I fail to
see how the maintenance of cables in a lawful
place, where they create no hazard whatsoever
to navigation as authorized and where they can
only be damaged by either a deliberate unlawful
act or a negligent act of another party, can
constitute contributory negligence on the part of
the plaintiff.
There were many cases where damages were
claimed by the plaintiff herein resulting from
ships' anchors hooking its cables in the Port of
Quebec in the very area where the present
damage occurred, yet, in no case did the Courts
find any contributory negligence. In many of
these cases, contributory negligence was alleged
and pleaded. I do not intend to review all of
them here but it is interesting to note that in the
Peterborough case, (supra), there was a claim of
contributory negligence against the company for
the manner in which the cable was laid and the
Trial Court, upheld on appeal, found that there
was nothing in the laying of the cable which
indicated negligence. It is true that each case
turns on its facts and that another case cannot
be used to interpret the facts in the case at Bar,
but, I can find no facts whatsoever in the case
at Bar different from those in the Peterborough
case which would indicate contributory negli
gence on the part of the plaintiff, The Bell
Telephone Company of Canada. Another case
in point, which also happens to deal with the
same cable in Quebec Harbour, is The Bell
Telephone Company of Canada (Limited) y. The
"Rapid " 19 . Here again, the Court found that
there was no negligence on the part of the
plaintiff in placing its cable at this particular
point since it had full permission to do so and
that anchorage in that particular area was
prohibited.
19 (1895-97) 5 Ex.C.R. 413.
Another case where underwater cables were
damaged by a ship anchoring in Quebec Har
bour, and that no contributory negligence was
found against the plaintiff, is the case of The
"Czar'no.
It is interesting to note also that in all of these
cases nothing more and nothing less was done
by the plaintiff which might lead one to con
clude that there was contributory negligence on
its part than in the case at Bar.
I come now to the question of damages. Of
the total amount of $228,414.80 of damages
claimed, the defendants, by joint admissions,
filed as Exhibit No. 13 at trial, admitted the sum
of $190,447.67 as damages properly arising
from the accident.
The defendants claim that a depreciation of
$6,090.55 should be allowed on one of the two
cables, that is, cable number 517, since it was
one-and-a-half years old and that the plaintiff
was getting a new cable in return. It was clearly
established that it was necessary to put in a new
cable as the old cable could not be repaired. The
plaintiff is entitled to restitutio in integrum but
to no more. A depreciation as such should not
be calculated but it is the duty of the Court to
consider the value of the object destroyed at the
time of destruction in order that the object can
be replaced by money's worth.
Joint admissions, filed as Exhibit No. 13,
established the life of the cable as being thirty
years and on that basis the value of the cable
destroyed can be fairly established at the cost of
a new one less the sum of $6,100.00. That
amount should, therefore, be deducted from the
total claim of $228,414.80.
The defendants claimed further that, as one
of the two cables, namely cable number 517,
was replaced in January 1971 and the other,
namely cable number 518, was replaced in the
summer, an allowance of some $31,876.58
should be made, as this represents the increased
20 (1875) 3 Cook Adm. 197.
cost of installing number 517 in winter-time as
opposed to summer installation. This argument,
in my view, is completely answered by the fact
that both cables were in actual service; cable
517 carried 689 pairs and it is reasonable to
deduce that these lines were required to supply
the plaintiff's service to its customers. Commer
cial enterprises, such as that of the plaintiff, do
not install expensive cables unless there is a
business requirement for them. The mere fact
that the plaintiff was 'able to operate with one
cable in lieu of two until the summer-time, when
the second cable was replaced, is not evidence
from which we can conclude that neither cable
was required until summer. In the absence of
evidence that both cables might have been dis
pensed with, I find no difficulty in coming to the
conclusion that on the balance of probabilities
the first cable was required to be replaced
immediately.
The plaintiff claims interest on the total
amount of damages and the defendants dispute
this amount.
It is clear that this Court, under its admiralty
jurisdiction, has the right to award interest as an
integral part of the damages suffered by the
plaintiff regardless of whether the damages
arose ex contractu or ex delicto.
The Admiralty Courts, in the exercise of their
jurisdiction, proceeded upon different principles
from that on which the common law authorities
were founded; the principle in this instance
being a civil law one, to the effect that, when
payment is not made, interest is due to the
obligee ex mora of the obligor. Refer Canadian
General Electric Co. Ltd. v. Pickford & Black
Ltd. 21 ; Canadian Brine Limited v. The Scott
Misener 22 and the authorities stated therein at
pages 450 to 452. Since the principle is based
on the right of the plaintiff to be fully compen
sated, including interest, from the date of the
tort, I am not, however, prepared to hold, as
seems to have been done in the Canadian Brine
case, (supra), that the discretion to award or not
21 (1971) 20 D.L.R. (3rd) 432 at page 436.
22 [1962] Ex..R. 441.
to award interest should depend on whether the
defendant was grossly negligent or not. Since
the right to interest in admiralty law is con
sidered as forming part and parcel of the
damage caused for which the defendant is
responsible, and is a right of the person harmed,
flowing from the actual commission of the tort,
I fail to see how, once the liability for the
damage has been established, the question of
whether or not there has been gross negligence
on the part of the tortfeasor phould be taken
into consideration, in any way: interest in these
cases is not awarded to the plaintiff as punitive
damages against the defendant but as part and
parcel of that portion for which the defendant is
responsible of the initial damage suffered by the
harmed party and it constitutes a full application
of the principle of restitutio in integrum. See
The Kong Magnus 23 ; The Joannis Vatis (No.
2) 24 ; and The Northumbria 25 . In the present
case, although I find that there indeed was negli
gence, it is not a case of gross negligence. Yet,
notwithstanding this, I am satisfied that the in
terest should be awarded unless there should be
some reason flowing from the plaintiff's con
duct or some reason to reduce or eliminate the
claim for payment of interest, other than the
question as to whether there was or was not
gross negligence on the part of the defendants.
The action originated in the former Excheq
uer Court and was commenced by writ. The
statement of claim issued in the French lan
guage, reads in part as follows:
... avec intérêts depuis l'assignation et dépens.
This would mean the date of service of writ and
not of the statement of claim. Since the plaintiff
has not claimed interest from the date of the
accident but merely from the date of service of
the writ and since no amendment of the state
ment of claim has ever been requested, it is
obvious that this Court cannot award interest
for any time previous to the service of the writ.
Had the statement of claim merely mentioned
23 [1891] P. 223 at page 236.
24 [1922] P. 213 at page 223.
23 (1869) L.R. 3 A. & E. 6 at pages 10 and 14.
interest without any specific time I would then
have been obliged to consider whether interest
should be awarded from the actual date of the
accident. Since the second cable was not
replaced until the summer-time and there was
no evidence to establish that there was any real
necessity for replacing it before that time, and
the plaintiff was not put to the expense of
replacing it before that time, interest, in the case
of the second cable, should run from the time of
actual replacement on the basis of the principles
stated by Lord Denning M.R., and approved by
Jackett P. (as he then was) in the case of
Canadian General Electric Co. v. The "Lake
Bosomtwe" 26 . The relevant passage of Lord
Denning M.R.:
(a) When a profit earning ship was sunk in a collision, the
Court of Admiralty awarded interest on the value of the
ship ... from the date of the loss to the date of the trial,
(b) When a ship was not sunk, but only damaged, the
Court of Admiralty awarded interest on the cost of
repairs, but only from the time that the repair bill was
actually paid, because that was the date from which the
plaintiff had been out of pocket, and
(c) Where there was loss of life in a collision, the Court of
Admiralty allowed interest only from the date of a regis
trar's report.
Due to the fact that admissions were made by
statement of admissions, filed as Exhibit 13, as
to the total cost only and no detail' was fur
nished as to the actual cost of the two cables, it
becomes most difficult, on the evidence before
me, to separate exactly the cost incurred in
purchasing and installing both sets of replace
ment cables, except that the admitted difference
between the cost of laying the new cable to
replace cable number 517 in the wintertime and
to replace number 518 in June was $31,876.58.
Deducting this from the total amount of $222,-
314.80 leaves $190,438.22. One-half of this
amount or $95,219.11 would presumably repre
sent the actual cost of purchasing and installing
the replacement for cable number 518 in the
summer-time and the balance of the amount of
$222,314.80, namely, $127,095.69 would repre-
26 [1970] Ex.C.R. 552 at 558—NOTE: This case was
reversed on appeal: ref. (1971) 20 D.L.R. (3rd) 432. But the
principle as to interest being allowed in all admiralty cases
was approved.
sent the cost of purchasing and installing the
replacement for cable number 517.
As I can find nothing in the conduct of the
plaintiff, or in the circumstances of the case to
deny interest, interest would therefore run from
the date of service of the writ, namely, from the
15th of December, 1970 on the sum of $127,-
095.69 and from the 15th of June 1971 on the
sum of $95,219.11.
As to the rate of interest, although in the past
most cases have been awarding interest at the
rate of 5%, in view of the great increase of
interest rates generally over the last few years,
it seems to me that a rate of 5% interest is
completely unrealistic altogether apart from the
legal rate of interest which runs on judgments
once they are rendered. Section 13 of the Inter
est Act 27 provides that every judgment shall
bear interest at the rate of 5% in the Provinces
of Manitoba, British Columbia, Saskatchewan,
Alberta, the North-West Territories and the
Yukon Territory. Other provinces have fixed
rates of interest laid down by their provincial
statutes, but these rates of interest cover inter
est on a judgment debt. Other statutes provide
for a rate of interest to be paid on monies paid
into Court.
It seems clearo me, however, that if one is
to consider the right of the plaintiff to interest
as a part of his damage under principle of
restitutio in integrum, then, in order to be fair,
the actual commercial rate of interest prevailing
at the time should be applied regardless of what
rate of interest a judgment debt should bear at
this time or what rate of interest any govern
ment at the time should choose to pay on
monies paid into Court. In the last year and a
half, interest rates generally and prime bank
rates have risen in a most spectacular fashion.
In that period the prime bank rate has risen
from 6% to something around 9i% and one
might well speculate whether, until judgment
and as long as the amount is unpaid, the rate
that should be applied should, in fact, be the
prime bank rates which have prevailed from
time to time until judgment. But this point was
27 R.S.C. 1952, c. 156, (now R.S.C. 1970, c. I-18).
never raised by the plaintiff and I refrain from
deciding the issue or making any finding based
on that view, for it would be grossly unfair in
any event to award damages on a basis which
was never claimed or raised in the pleadings, or
in evidence or argued at trial.
As a suitable yardstick and good indication of
what would be fair, would be the prime bank
lending rate prevailing at the time that the right
to calculate interest as part of the damage arose.
At the date of the accident and the date when
the writ was issued, as well as at the dates when
the expenditures for repairing the cables were
made, the prime bank lending rate of interest
was identical, namely 6%, and interest shall
therefore be calculated at that rate.
Judgment will, therefore, issue in favour of
the plaintiff in the amount of $222,314.80 plus
interest at 6% per annum on the sum of $127,-
095.69 from the 15th of December, 1970 and on
the sum of $95,219.11 computed from the 15th
of June, 1971 until date of judgment. The plain
tiff will also be entitled to its costs.
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.