T-1275-72
Fraser River Harbour Commission and Johnston
Terminals Limited (Plaintiffs)
v.
The Ship Hiro Maru and Nippon Yusen Kaisha
and Hatchiuma Kisen K.K. (Defendants)
Trial Division, Urie J.—Vancouver, November
13, 14, 15, 16, 1973; Ottawa, January 31, 1974.
Maritime law—Break-away of defendant ship from dock—
Damage to defendant ship and to berthing facilities of plain
tiff Commission—Apportionment under provincial Contribu
tory Negligence Act—Damages to loading facility of plaintiff
corporation—Not recoverable.
These consolidated actions were based on the claim of the
plaintiff Commission for damages to its berthing facilities
and the claim of the plaintiff corporation for damages to its
loading facility when the defendant ship Hiro Maru broke
away from her mooring. The defendant ship was owned by
the other two defendants, which counterclaimed for
damages.
Held, the damages resulted from the negligent handling of
the defendant ship by its officers and the negligence of the
plaintiff Commission in the maintenance of the dock by its
servants. The Canada Shipping Act, R.S.C. 1970, c. S-9, s.
648, was inapplicable because the action did not involve a
collision between ships, but between a ship and a shore-
based structure. The plaintiff Commission, as an agent of
the Crown in right of Canada, under the Harbour Commis
sions Act, R.S.C. 1970, c. H-1, could invoke the application
of the Contributory Negligence Act, R.S.B.C. 1960, c. 74, s.
2. Under that Act, damages may be apportioned and the
liability of the defendants for the plaintiff Commission's
damages is fixed at 80% and the liability of the plaintiff
Commission is fixed at 20% of the defendants' damages.
But the plaintiff corporation failed in its claim, since the
negligence of the servants of the plaintiff Commission was
imputed to the plaintiff corporation; the latter was unable to
prove that the proximate cause of its damages was the
negligence of the defendants, and was ineligible to invoke
the provincial Contributory Negligence Act.
The Algoma Central and Hudson Bay Railway Com
pany v. Manitoba Pool Elevators Limited and Lakehead
Harbour Commissioners [1964] Ex.C.R. 505, followed.
S.S. `Peterborough" v. Bell Telephone Co. [1952] 4
D.L.R. 699; The "Fir" (1943) 76 Ll. L.R. 77; H.M.S.
"Princess Astrid" (1944) 78 Ll. L.R. 99; Williams &
Sons Ltd. v. Port of London Authority (1933) 47 Ll.
L.R. 81; City of Halifax v. Halifax Harbour Commis
sioners [1935] S.C.R. 215; Gartland Steamship Co. v.
The Queen [1960] S.C.R. 315; The Chinkiang [1908]
A.C. 251; The Hero [1912] A.C. 300; The Queen v.
Nord-Deutsche [1971] S.C.R. 849; Sparrows Point v.
Greater Vancouver Water District [1951] S.C.R. 396;
The Devonshire [1912] A.C. 634, considered.
ACTION.
COUNSEL:
A. Barry Oland and R. K. MacKinnon for
plaintiffs.
Boon S. Lee and J. W. Pearson for
defendants.
SOLICITORS:
Owen, Bird, Vancouver, for plaintiffs.
Campney & Murphy, Vancouver, for
defendants.
URIE J.—This action is a consolidation of two
actions brought by the respective plaintiffs
against the defendants, which consolidation was
pursuant to the Order of Sheppard D.J. dated
August 22, 1973. The actions arose out of
damage sustained to certain berthing facilities
owned by the plaintiff Commission and to a
loading facility owned and operated by the
plaintiff Company at the said berthing facilities,
due to the breaking away of the defendant ship
from her mooring at the said berth. The defend
ant ship is owned by the other two defendants
who counter-claimed against the plaintiffs for
damages sustained by the ship in the mishap.
The berth in question, known as Fraser
Surrey Dock, Berth No. 4, was designed, built
and modified in accordance with the plans and
specifications of Fraser River Pile Driving Com
pany Limited, a firm, which according to the
evidence, had wide experience in this type of
construction. The loading equipment at the
berth was erected, installed and operated by or
on behalf of the plaintiff, Johnston Terminals
Limited.
The berth, which is almost completely con
structed of wood and is located on the south
side of the Fraser River opposite Annacis
Island, B.C., lies at an angle of approximately
10 degrees to the shoreline with the down river
end being further out from the shoreline than
the up river end. It was built to provide a dock
for bulk freighters loading wood chips and saw
dust destined for Japan. At the time of the
accident it consisted of the following:
(a) A catwalk with handrail lying in an
approximate northeast and southwest direc
tion between 60 feet and 200 feet off shore.
(b) Six mooring dolphins placed along the
river side of the catwalk, with the first being
placed at the upstream end thereof which are
numbered 1 to 6 respectively in a downstream
direction from the aforementioned first dol
phin. Each is constructed of 16 vertical piles
within which are meshed 20 batter or brace
piles angled at 45 degrees toward shore, the
whole of which are bolted together to form a
single unit. All were originally driven into the
river bottom for a distance of 20 feet.
(c) A platform or deck on each dolphin. Two
of the vertical piles are extended through this
platform. Affixed to the top of each of these
piles is a 4 foot steel mooring cap with 2
horns extending from each side to hold a
vessel's mooring lines in place. It is called a
bollard. This cap is attached to each pile with
four 9 inch lag screws. Starting from number
1 the dolphins are placed at intervals of 155
feet, 155 feet, 66 feet, 124 feet and 150 feet
respectively from each other.
(d) A floating anchor buoy positioned in line
with the mooring dolphins along the catwalk
at a distance of 445 feet downstream, which
buoy is attached to a 2 inch, high strength
stud link chain leading to a concrete anchor
weighing approximately 17.4 tons buried 10
feet beneath the river bed at a distance from
number 6 dolphin of 550 feet, being about the
furthermost boundary of the Commission's
property line ashore.
(e) A steel loading tower on a concrete pad
capable of loading sawdust or wood chips
under pressure located at a point approxi-
mately in the centre of the line of mooring
dolphins.
(f) 12 fender piles on the river side of all of
the above are connected to the main structure
by means of horizontal waling timbers and
chains with rubber bumpers between each set
of waling timbers. The purpose of the fenders
is to transfer the force of a docking ship or of
a moored one on to each of the main dol
phins, that is to absorb the energy and trans
mit it in to the complete dolphin.
(g) A scow area for the purpose of discharg
ing sawdust and wood chips either directly
into the cargo area of the berthed ship or to a
storage area ashore is located inshore from
the catwalk approximately opposite dolphin
number 4. Scows enter this area from the
vicinity of the down river end of the berth.
(h) Two breast line mooring facilities on
shore, the first a vertically imbedded log
approximately opposite number 2 dolphin at
about 125 feet therefrom and the second a 10
foot log, 3 feet in diameter buried in a hori
zontal position at a depth of 10 feet and
known as a "dead man", situated downstream
opposite number 6 dolphin at a distance of
approximately 210 feet therefrom. Each of
these onshore facilities had 1 inch steel moor
ing cables running to the catwalk adjacent to
the nearest dolphin for attachment to the
ship's lines. The use of the downstream breast
line facility was subject to interruption since
the breast line had to be let go when a scow
was brought into or taken out of the berth by
reason of the fact that the scow, when either
loaded or emptied, extended above the height
of the breast line when it was in a taut posi
tion. When it was let go or slackened it simply
sank to the bottom of the river where it
remained until it was again tightened by the
ship's crew.
The berth layout above described is shown on
Exhibits P-21 and P-21A and was described as
having a total length of approximately 665 feet.
Its composition as at the date of the accident as
above described was not totally as originally
designed. As a result of the recommendations of
representatives of the defendant ship owners a
number of modifications to the original plans
were made and were reflected in the final berth
layout described above. Firstly, the floating
mooring buoy was moved a distance of 70 feet
and then a further 95 feet downstream from the
point at which it was originally planned to place
it. This change was required because of the
possibility of longer ships being docked at the
facility and the necessity, therefore, of having
the lines from the stern of such ships as nearly
in line with or at as shallow an angle to the dock
as possible. At the time of the move of 95 feet
further downstream the anchor was buried to a
depth of 10 feet in the river bed rather than 5
feet as had been the case theretofore.
Secondly, the two breast line mooring facili
ties on shore with the steel cables therefrom
attached to the catwalk were added, apparently
to provide better moorings to hold vessels tight
ly to the dock. Thirdly, the original design called
for only 5 dolphins. An additional one, which
became number 4 dolphin, was added. Fourthly,
the mooring buoy which was originally con
structed of wood was changed to a cylindrical
steel buoy because of its greater durability.
Fifthly, wooden blocks were placed between the
vertical piles just below the deck elevation of
each dolphin to reduce the length of the lever
age on the piles extending above the deck upon
which the bollards were attached to prevent
snapping under stress when ships' lines were
attached to them.
The defendant ship Hiro Maru arrived at
berth number 4 at 0800 hours on December 11,
1971 at which time 3 head lines were run to
bollards at berth number 3. A line was run from
the forward area to dolphin number 2 and was
described as a breast line. A forward spring line
was run aft to dolphin number 4. An after spring
line was run forward to dolphin number 4. A
line, which the ship's Chief Officer described as
a breast line, was run forward from the stern
area to dolphin number 5. Three stern lines
were run to the floating mooring buoy down
river. No lines were attached to dolphin number
6 since it had been tilted by a vessel some time
previously and had not been re-imbedded in the
river.
To appreciate the problem posed in this case
it is necessary to understand the purpose of the
various lines as they were disclosed in the evi
dence by several of the witnesses:
1. Head Lines. These lines run from the bow
at a shallow angle to a mooring point and are
used in conjunction with the stern lines and
spring lines to prevent the vessel from surging
back and forth and to shift the vessel back
and forth along the dock.
2. Stern Lines. They perform the same func
tions as the head lines and are fixed in the
same manner except that they run from the
stern of the ship.
3. Spring Lines. These are run from a for
ward point in the ship back to a mooring
bollard or from a point toward the stern of the
ship forward to such a bollard, in each case at
very sharp angles to the side of the ship.
Their purpose is, first, to prevent a ship from
surging back and forth with the currents, tides
or winds, and, second, in conjunction with the
stern and head lines, to assist in shifting the
vessel back and forth along the dock.
4. Breast Lines. These are run from points
toward the bow and toward the stern of the
vessel to mooring points at as nearly a verti
cal angle to the ship as possible to prevent
lateral or sideways movement of the vessel
away from the dock due to tides, currents or
winds. In other words, its function is to hold
the vessel firmly to the dock.
All lines complement one another and their
respective functions may- change somewhat as
the ship is moved up and down the dock during
the course of loading. It must be borne in mind
that in this case the Hiro Maru had 5 cargo
loads. The first hold to be filled was number 2,
the second required the ship to be moved back
to fill number 5. The order in which each hold
thereafter was filled was carried out to ensure
that a proper balance was kept on the ship
forward and aft. When hold number 1 was being
filled the stern of the vessel would be at its
furthest point out in the river since the loading
tower remained stationary and number 1 hold is
the one closest to the bow of the vessel.
Captain Grozier, at that time the Harbour
Master employed by the plaintiff Commission,
testified that dolphin number 6 had been tipped
on September 5, 1971 during the departure from
berth number 4 of the ship Diashan Maru
because its crew had not let go the line attached
to that dolphin quickly enough. It had not been
repaired until early in January, 1972 because
berth number 4 had been under almost constant
use and when it was not the contractor had not
had equipment available to effect the repairs.
He further testified that it had been reported to
him by one of his foremen on October 8, 1971
that the ship Zencoran Maru had dragged the
mooring anchor from its position. Immediately
thereafter it was moved a further 95 feet down
stream and buried 10 feet in the river bed as
previously described.
Captain Grozier also testified that at or about
that time he instructed his Assistant Superin
tendent, Kenneth Cavanaugh, that ships in berth
number 4 were to use the ship to shore breast
lines at all times and only in ebb tide or slack
water conditions and when on-shore winds pre
vailed were they to be slackened. Under no
circumstances were ships in the berth to be
moved or the breast lines slackened during
flood tide conditions or in off-shore winds even
if scows were waiting to berth or depart from
berth number 4.
At about 0420 hours in the morning of
December 14, 1971, just after a change in
watch, loading of number 1 hold of the defend
ant ship was proceeding normally. At that time
the ship's Chief Officer testified that he
observed that the stern of the vessel was 3 or 4
feet off the berth as a result of which he
instructed crew members to winch in two of the
stern lines attached to the buoy with a view to
pulling the vessel tight against the dock. At this
time he testified that he noticed that rather than
the ship moving back into position the buoy was
moving in the same direction as the lines,
indicating that the anchor had been pulled from
its position in the bottom of the river. He then
turned out the full crew and with another
member thereof he went to check the forward
spring line at which time he noticed that the
bollard on dolphin number 4 had come off as
well as the spring lines attached to it. At this
time the stern of the vessel was moving rapidly
toward midstream. He then slackened the bow
breast line and in order to slow down the out
ward movement he lowered the port side
anchor. He then tightened what he described as
the after breast line and this pulled number 5
dolphin into the sea. At or about this time
sections of the catwalk on each side of dolphin
number 4 collapsed, one of them falling into the
sea.
The plaintiffs take the position that the
damage to their berthing and loading facilities
occurred as the result of the negligence of those
persons in charge of the defendant ship, who
were servants or agents of the defendant
owners in that they failed properly to moor the
ship at the berth and, in particular, failed to set
and maintain in position a breast line at the after
end of the ship knowing that this was contrary
to good seamanship practice and to the instruc
tions of the port's Harbour Master.
On the other hand, the defendants allege that
the plaintiff Commission by permitting or invit
ing the ship to use berth number 4 impliedly
warranted that the mooring facilities were in a
good and proper condition. They further allege
that the facilities were not in such a condition in
that the down river mooring buoy was defective
in construction and insufficient for its purpose
and had been dragged or partially dragged from
its position prior to the arrival of the Hiro Maru.
This allegation, they submit, is reinforced by the
fact that number 6 dolphin was unusable. They
also allege other acts of omission or commission
which will be referred to hereinafter.
The plaintiffs led evidence from the Assistant
Superintendent of the Harbour Commission,
Mr. Cavanaugh, which was corroborated by one
of his foremen, Mr. McCullough, that on the
morning of December 11, 1971 he observed that
neither of the breast lines to shore were
attached to the Hiro Maru but were still hanging
from hooks on the catwalk. Since he had
received instructions from Captain Grozier that
they were to be attached he went aboard with
Mr. McCullough to find out why they were not.
He testified that he spoke with the Chief Officer
and told him that on the Harbour Master's
instructions all breast lines had to be secured.
The Chief Officer, whose native language was
Japanese, appeared to Mr. Cavanaugh to under
stand his instructions. However, to ensure that
he did so, he relayed similar instructions to the
charterer's agent who, accompanied by the Cap
tain, had arrived while he was talking to the
Chief Officer. The agent spoke in Japanese to
the Chief Officer and told Mr. Cavanaugh that
"it would be all right" which he took to mean
that the message had been understood. On
December 13 he spoke to Captain Grozier and
advised him that the Hiro Maru was still not
using the after breast line.
The Chief Officer testified that he had no
recollection of receiving any such instructions
from Mr. Cavanaugh. He admitted that the ship
to shore breast lines were not attached because
he thought that the stern one constituted an
obstruction for scows. Moreover, during the
course of movement of the ship up and down
the berth for the purpose of changing holds for
loading purposes, the aft breast line would
damage light stanchions projecting above the
catwalk on the rail, the handrail and perhaps
some of the pilings on the dolphins. He admitted
in cross-examination that the aft breast line
could be slackened and dropped into the water
to permit the entry or departure of scows and
that it would be far higher than either the light
stanchion or handrails when tightened since the
ship's deck was some 30 feet above the water
line. He also admitted that a line from the aft
starboard quarter to number 5 dolphin, which he
termed a breast line, was really an after spring
line. He agreed that it would have been prudent
to have set the after breast line to shore after
the ship moved off the berth to bring it back to
the berth but he did not do so because on the
four previous occasions that the Hiro Maru was
there it had not been used. Evidence tendered
by the plaintiff in the form of shift reports for
each of three shifts of the shore crews loading
the vessel during the period December 11 to and
including December 14 indicate that from 10.30
a.m. on December 12 to approximately 10.00
a.m. on December 14, which is after the acci
dent, there had been no scow in the scow berth.
The shift foreman on duty at the time of the
mishap, Steve Hryniuk, confirmed that neither
of the ship to shore breast lines was set. He
further testified that just before the lunch break
at 0430 hours he noticed that the Hiro Maru
was approximately 30 feet away from the berth
at a point opposite dolphin number 6. After
instructing that the loading apparatus be
removed to prevent damage to it as the ship
moved away from the berth, he called a tug boat
operator to assist the ship to get back to the
berth. He observed that the bollard on number 4
dolphin had been pulled off.
Captain John Y. Kennedy, a marine surveyor
and the holder of a Masters Foreign Going
Certificate since 1950, called as an expert for
the plaintiffs, testified that on December 14,
1971, according to Canadian Tide Tables, high
water was reached at 0600 hours so that flood
tide conditions prevailed at the time of the acci
dent. He stated that when number 1 hold on the
Hiro Maru was being filled, its stern would
overhang the downstream end of the catwalk by
approximately 200 feet. In such circumstances
it was his opinion that good practice by a com
petent master would have required that particu
lar attention be paid to the after breast line
ensuring that it was in place. Further, in his
opinion, the use of the mooring line from the
starboard quarter aft to number 5 dolphin did
not constitute setting a breast line for the pur
pose of keeping the vessel snug to the dock but
was simply another aft spring line. He was of
the opinion that the probable cause of the
breaking away was the failure to use the after
breast line facility and had it been in place the
breaking away would not have occurred. When
such a substantial portion of the vessel was out
in the stream a line direct from the stern to the
dead man ashore would not have had the proper
breasting effect so that in his view it would have
been necessary to take the breast line from the
stern winch along the starboard quarter to a
point where it would go through a closed fair
lead to give the nearly vertical pull required for
a proper breasting.
There was considerable evidence both from
the Chief Officer and from the defendants'
expert, Thomas W. Morgan, that the latter was
impossible because of the obstruction created
by certain vertical pipes adjacent to the accom
modation area in the starboard quarter which
would prevent the line being run in the manner
suggested by Captain Kennedy. Moreover, he
testified that there were insufficient winches at
the stern of the ship to look after the three stern
lines to the mooring buoy as well as the after
breast line. I find that neither objection is valid
and that there was sufficient room for the line
to pass the vertical pipes to the fair lead from
one of the winches at the stern after passing
through the stern starboard closed fair lead. My
impression was that the Chief Officer simply
believed that the stern breast line was unneces-
• sary and a nuisance because it might have had
to be released from time to time as scows
entered or departed the scow berthing area. Mr.
Morgan admitted that a way could have been
found to make use of a winch for the aft breast
line by taking off one of the spring lines and by
using a fixed bollard on the ship a crewman
could tighten the spring line by hand.
Furthermore, I accept the testimony of Cap
tain Grozier concerning his instructions as to
the use of breast lines and find as a fact that
Messrs. Cavanaugh and McCullough conveyed
those instructions to the Chief Officer and to
the Captain of the Hiro Maru who, for reasons
best known to themselves, chose to ignore
them. It is probable that the inconvenience
involved in the use of the aft breast line was the
motivating factor in making this decision,
although no scows had entered or departed from
the loading areas from December 12 until after
the accident so that during that period at least
there could have been no inconvenience result
ing from the movement of scows. I also accept
the testimony of Captain Kennedy and find as a
fact that it was the duty of the ship's officers to
carry out the instructions of the Harbour Master
even though they disagreed with them. If they
did so disagree, the proper course of action
would have been as Captain Kennedy put it, to
carry out the order under protest which would
have had the effect of fixing liability for any
damages sustained in carrying out the order on
the Harbour Master.
Having accepted • this evidence and made
these findings, I further find that had the breast
lines been properly set as it was possible to do
within the limitations prescribed by Captain
Grozier using one of the methods suggested by
Captain Kennedy, it is unlikely the ship Hiro
Maru would have broken away from its moor
ings. Representatives of the defendant owners
had anticipated the necessity for using such
breast lines when they recommended the instal
lation of the shore moorings for the breast lines
at the time of original construction, which
recommendation the plaintiff Commission
implemented. I find that its officers were negli
gent further in having moved the ship in flood
conditions without the breast lines being set or
alternatively without the use of tugs because in
doing so they created a situation of danger due
to the rapidly moving water pressing against the
substantial overhang of the stern into the river.
All of these errors of omission or commission
arose out of the failure to fix the ship to shore
breast lines and this negligence was, in my view,
the basic cause of the damages sustained.
However, this does not end the matter and I
must determine whether the plaintiffs, or either
of them, were in breach of contract and/or
warranty of safe berth as alleged by the defend
ants, or, as also alleged by them, were guilty of
negligence which contributed to the accident
and thus to the damages sustained.
The defendants allege that the plaintiff Com
mission owes a statutory duty to provide and
maintain a safe berth at Fraser Surrey Dock and
it was in breach of that duty so that it is liable to
the defendants for damages to the ship or, if I
find, as I have, that the defendants were negli
gent, then the plaintiff Commission was in
breach of that duty and partly to blame for the
accident. Alternatively, they allege that both
plaintiffs owed a contractual duty to the defend
ants as wharfingers to take reasonable care to
see that the dock was in a proper condition or
failing that to give warning that they had not
done so. In the further alternative they allege
that the plaintiff Commission was negligent in
the construction and maintenance of the dock
and that this was the sole proximate cause of
the damage both to the dock and to the defend
ant ship. The allegations of negligence as I
understand them are as follows:
(a) the plaintiffs knew or ought to have
known that the mooring anchor was insuffi
cient in weight to withstand the pulling force
of vessels of the size of those expected to be
berthed at the Fraser Surrey Dock. In addi
tion, the Commission knew or ought to have
known that for the greatest possible resist
ance for such an anchor the line from the
stern of any berthed ship to the mooring
anchor should be at the shallowest possible
angle to the face of the buried anchor. It was
for this reason, they point out, that the origi
nal design was changed before construction at
the request of the defendant owners to place
the anchor at a point further upstream than
the original plans called for. Notwithstanding
this change, the anchor had been dragged on
October 8, 1971 by the Zencoran Maru, one
of the largest ships to berth at the dock, at
which time the distance of the mooring buoy
from number 6 dolphin was extended by 95
feet and the anchor was buried to a depth of
10 feet instead of 5 feet but its weight was
not increased. The defendants submitted that
the Commission knew or ought to have
known, that this change did not provide a
sufficient resistance to ships of the size of the
Hiro Maru and larger. Proof that this was not
enough is found, it was submitted, in the fact
that gravel was added to the top of the anchor
after it was installed the second time, presum
ably to give it more holding power and after
the Hiro Maru accident the anchor was dou
bled in size and weight;
(b) the Commission ignored evidence avail
able to them indicating that a scouring condi
tion prevailed in the river which had the
effect of eroding some of the earth away from
the buried piles thus reducing their holding
capacity. In support of this contention they
point to evidence of both the plaintiffs and
their own witnesses indicating that after the
piles were pulled from the river by the Hiro
Maru breaking away, there was evidence that
the soil had been washed away from a sub
stantial portion of some of the piles and in
particular the brace piles, an extent varying
from 8 to 12 feet;
(c) since the brace piles were buried into the
shore side alone, they were meant to resist
the strain of a vessel in compression, that is
as it rested alongside the dock. In the opinion
of Mr. Morgan there was no anchoring
arrangement whatsoever to tie the dolphins
toward the shore line with the result that the
dolphins were inadequate in that there were
no reinforcements to counteract any force or
tension pulling the dolphins away from the
shore side;
(d) the bollards on the dolphins were weak
due to faulty construction in that the lag
screws holding the bollards to the wooden
piles were insufficient for the purposes for
which they were designed;
(e) number 6 dolphin had been tipped by the
Diashan Maru on September 5 but had not
been repaired although the berth had been
vacant for all but eleven days in November.
Since all lines from ship to dock have a pur
pose and complement one another, the inabili
ty to use number 6 dolphin due to the negli
gence of the plaintiff Commission in effecting
repairs contributed to the accident;
(f) the whole design and construction of the
dock was faulty in that it was built for com
pression of vessels when lying against it and
not for tension that occurred in flood tide
conditions at certain seasons of the year when
the current of the river actually may run
upstream, having the effect of tending to pull
the vessel away from the dock.
The evidence of Leslie A. Corbett, the Presi
dent of Fraser River Pile Driving Company, is
vital in determining the validity of these allega
tions of negligence. I was most impressed with
the technical qualifications and candour of this
witness and accept his testimony as wholly
credible.
He testified that each dolphin and bollard was
designed to withstand a 50 ton pulling force and
each dolphin itself to withstand a 30,000 ton
dead weight vessel approaching at .33 feet per
second. The anchor, weighing over 17 tons and
buried at a depth of 5 feet in the river bed, was
designed to withstand a pulling force of 100
tons which, together with a safety factor of 50
tons, meant that it was capable of withstanding
a 150 ton pulling force. Burying to a depth of 10
feet did not add appreciably to this capability
but it did offset any possible scouring or erosion
of soil from the cover over the anchor. The
capability of withstanding the full pulling force
was at its maximum when the pull was axially
along the line from the catwalk to the face of
the buried anchor. Any substantial deviation
from this alignment reduced the maximum capa
bility so that the stern of a vessel swinging away
from the berth as did that of the Hiro Maru had
the effect of reducing the resistance capability.
Mr. Corbett admitted that he was aware of
the possibility of scouring anywhere on the
Fraser River and had in fact discussed it with
Captain Grozier on several occasions prior to
the Hiro Maru incident although no evidence of
any scouring had made itself apparent until after
that incident. Even then, he states, there was no
evidence of scouring in respect of the vertical
piles on either number 5 or number 6 dolphin
but there was evidence thereof on the brace or
batter piles, the extent of which varied from 8
to 12 feet. Some weakening in the resistance
capabilities of such piles would, therefore, have
occurred.
Mr. Morgan, the defendants' expert, made
calculations which confirmed that a 100 ton
anchor even with the current on the river flow
ing at a speed of 2 knots would have sufficient
resistance to withstand the pulling force of a
vessel of the size of the Hiro Maru. However, it
was also his opinion that there was insufficient
resistance to withstand the pulling force of a
much larger ship such as the Zencoran Maru
and he concluded, therefore, that in all probabil
ity such a ship would drag the anchor. Counsel
for the defendants argued on this basis that
since the Zencoran Maru had in fact dragged
the anchor on October 8 with the result that it
had been moved downstream, it was likely to
have dragged it again on its next trip to the
berth on November 15, notwithstanding its
replacement at a greater depth.
I believe that the latter contention only
amounts to a possibility and no evidence was
adduced before me which could make it more
than that. I must conclude, therefore, that the
mooring anchor was in its proper position on
December 14 and capable of withstanding the
pulling force of the Hiro Maru under the condi
tions for which it was designed although as
subsequent events proved, it was unable to
resist a force from a direction it was not
designed to meet without the assistance of a
complementary line, namely the aft breast line
of the Hiro Maru. In my view this does not
constitute negligence in the design and construc
tion of the mooring anchor. While I make no
finding on the admissibility of evidence showing
that the anchor was doubled in size after the
incident in question, assuming its admissibility,
the fact that it was or the purposes for which it
might be does not in any way detract from this
view but merely indicates that there was a
recognition that faulty seamanship might again
create a situation of danger and precautions
were taken to prevent a possible recurrence of
the anchor being dragged in such an event.
However, Mr. Corbett did admit that the
possibility of scouring weakening the effective
ness of the dolphins had been discussed with
Captain Grozier prior to the Hiro Maru incident
but nothing had been done to determine whether
such scouring had taken place, such as taking
soundings or examination of the dolphins by a
diver. To the extent that the scouring had con
tributed to the breakaway of the Hiro Maru by
pulling out number 5 dolphin, the omission to
take such action in my view constitutes some
negligence. In addition, the fact that number 6
dolphin could not be used because it had been
out of service for over three months when the
Commission knew or ought to have known, that
it was very necessary for the proper mooring of
ships at berth number 4, was negligence which
contributed to the accident since there was
ample time for it to have been repaired, which
repairs were not carried out.
I do not believe that the evidence is such as to
show that the design of the individual dolphins
was faulty or that the design of the whole berth
was faulty as alleged by the defendants. On the
contrary, in my opinion the evidence that it was
fully utilized without major incident, other than
the damages caused by the Zencoran Maru and
Diashan Maru, from the time it was completed
in February 1970 to December 14, 1971, indi
cates that it was properly constructed and only
when it was used in a negligent manner did it
break down and this was caused by its being
subjected to forces substantially beyond those
which any reasonable engineer would have
anticipated.
While the determination of this case essential
ly depended on my findings of fact, a number of
authorities were cited to me by counsel for the
parties, the majority of which were not neces
sary for my decision. However, the following
are cases which I did consider. The principles to
be derived from them are well known and have
been taken into account in these reasons and in
the determination of the respective liabilities of
the parties: S.S. "Peterborough" v. Bell Tele
phone Co. [1952] 4 D.L.R. 699; The "Fir"
(1943) 76 Ll. L.R. 77; H.M.S. "Princess Astrid"
(1944) 78 LI. L.R. 99; and Williams & Sons
Ltd. v. Port of London Authority (1933) 47 LI.
L.R. 81.
For all of the above reasons, therefore, in my
opinion, the case is one for the apportionment
of liability but first I must decide whether in
such circumstances the plaintiffs can recover
anything. In response to a question addressed
by me to counsel for the defendants during
argument, I was advised that there was no ques
tion that as a matter of general law contributory
negligence could be found and presumably,
therefore, liability for damages sustained could
be apportioned. Counsel for the plaintiffs, as I
recall it, did not disagree with this submission
but neither counsel addressed any argument to
me on the subject. It is clear that section 648 of
the Canada Shipping Act is not applicable
because this action did not involve a collision
between two or more ships, but between a ship
and a shore-based structure. That being the
case, since the defendants have established their
plea of contributory negligence, apart from any
statutory relief which may be available by virtue
of the Contributory Negligence Act of British
Columbia, R.S.B.C. 1960, c. 74, the plaintiffs'
action would fail because they did not prove
that the defendant ship was the sole proximate
cause of the damages claimed.
There are, of course, two plaintiffs in this
action. Fraser River Harbour Commission was
established by a Proclamation dated April 20th,
1965 made pursuant to the Harbour Commis
sions Act, S.C., 1964-65, c. 32. The plaintiff
Johnston Terminals Limited is, according to the
pleadings, a body corporate incorporated under
the laws of the Province of British Columbia.
The applicability of statutory provisions enacted
by provincial legislatures in circumstances such
as this was comprehensively reviewed by Wells
D.J.A., as he then was, in The Algoma Central
and Hudson Bay Railway Company and Parrish
& Heimbecker Limited v. Manitoba Pool Eleva
tors Limited and Lakehead Harbour Commis
sioners [1964] Ex.C.R. 505.
In that action the plaintiff railway was the
owner of a ship transporting wheat for the
co-plaintiff, Parrish & Heimbecker Limited and
sued the defendants for damages arising out of
the grounding of the ship at the dock of the
defendant, Manitoba Pool Elevators Limited in
the City of Port Arthur. The defendant, Lake-
head Harbour Commissioners, was a corpora
tion created by a statute of the Parliament of
Canada being chapter 34, 7 Eliz. II. The Lake-
head Harbour Commissioners pleaded inter alia
that they constituted a public authority within
the Public Authorities Protection Act as passed
by the Legislature of the Province of Ontario,
R.S.O. 1960, c. 318, section 11 of which prohib
ited the bringing of an action unless commenced
within six months from the act of negligence
complained of. The Commissioners claimed to
be agents of the Crown and that under the
prerogative rights of the Crown they were en
titled to claim the benefit of a provincial statute.
Wells D.J.A. carefully reviewed the incor
porating statute and found that the Lakehead
Harbour Commissioners operated as agents of
the Crown in right of Canada. That being so, he
found that the Public Authorities Protection Act
was a statute upon which those defendants as
agents of the Crown could rely and, therefore,
dismissed the action as against the Harbour
Commissioners since it was not commenced
within the time limited by the statute.
An examination of the Harbour Commissions
Act, the Act creating the Fraser River Harbour
Commission, discloses that the Governor in
Council is empowered by proclamation to estab
lish a harbour commission for any harbour in
Canada that is not named in the National Har
bours Board Act or for any harbour commission
that has not otherwise been established by Par
liament. Each such commission is declared to be
a body corporate. A proclamation establishing
such a commission must state the name of the
commission, define the limits to the harbour for
which the commission is established and fix the
number of members. A majority of the members
is appointed by the Governor in Council and all
members hold office during pleasure for a term
not exceeding three years. Their remuneration is
fixed by the Governor in Council and is paid out
of the revenues of the commission. It empowers
each such commission to regulate and control
the use and development of all land, buildings
and other property within the limits of the har
bour and all docks, wharves and equipment
erected or used in connection therewith. A com
mission may, with . the approval of the Minister
of Transport, purchase land and purchase or
construct and operate and maintain docks,
wharves and other structures and is precluded
from leasing any land administered by it on
behalf of Her Majesty in right of Canada with-
out either the approval of the Minister of Trans
port or of the Governor in Council, depending
upon the length of such lease. It is empowered
to make by-laws, with the approval of the Gov
ernor in Council, respecting the management of
its internal affairs and the duties of its officers
and employees. It may borrow money for the
purpose of defraying the expense of construct
ing or improving wharves, structures and other
works within the limits of the harbour on such
terms and conditions as the Governor in Council
may approve. All excess revenues, after the
payment of all expenses at the end of each
fiscal year, are to be paid by the commission to
the Receiver General of Canada. The commis
sion may also expropriate lands with the
approval of the Governor in Council.
The words of Wells D.J.A. at pages 510 and
511 in The Algoma Central and Hudson Bay
Railway Company and Parrish & Heimbecker
Limited case (supra) seem appropriate in char
acterizing the statute under which the plaintiff
Commission herein operates:
This over-all control seems to run like a thread through the
whole statute. In my view the statute examined by Duff Ci.
in the case of the City of Halifax v. Halifax Harbour
Commissioners ([1935] S.C.R. 215) and the Act incorporat
ing the Lakehead Harbour Commissioners bear striking
resemblances. After analyzing the statute governing the
Harbour Commissioners of Halifax, that learned Judge at p.
226 summed up the powers and duties of the Commission
ers of Halifax Harbour in the following words:
Their occupation is for the purpose of managing and
administering the public harbour of Halifax and the prop
erties belonging thereto which are the property of the
Crown; their powers are derived from a statute of the
Parliament of Canada; but they are subject at every turn
in executing those powers to the control of the Governor
representing His Majesty and acting on the advice of His
Majesty's Privy Council for Canada.
and after some further examination of those Commissioners'
powers at p. 227 he summed the matter up as follows:
I cannot doubt that the services contemplated by this
legislation are, not only public services in the broad sense,
but also, in the strictest sense, Government services; or
that the occupation of the Government property with
which we are concerned is, in the meaning with which
Lord Cairns used the words in the passage cited (and in
the sense in which those words were interpreted by Lord
Blackburn and Lord Watson), an occupation by persons
"using" that property "exclusively in and for the service
of the Crown".
It is not without importance to observe that, since Con
federation, except in special cases where it has been
found convenient to make provision for the administration
of harbours by the appointment of harbour commission
ers, the control, management and regulation of the matters
committed to the charge of the respondents have been
treated in this country as belonging to the services of the
Crown.
With respect these words seem just as applicable to the
defendant Commissioners in the present action. In my opin
ion from a careful reading of the statute it is quite patent
that these defendants operate as agents of the Crown in the
right of Canada.
A careful review of the Harbour Commis
sions Act pursuant to which the proclamation
above referred to was passed indicates that it
employs much the same terms as did the statute
with which Wells D.J.A. was dealing. He con
cluded, as above noted, that the Commissioners
operated as agents of the Crown in right of
Canada and it would appear to me that on a
plain reading of the statute creating it, the
Fraser River Harbour Commission likewise is
an agent of the Crown in right of Canada
because the ovérall control of it by the Gover
nor in Council or the Minister of Transport
"seems to run like a thread through the whole
statute". It has little in the way of independent
power.
The question, therefore, which requires
adjudication is whether or not the claim of the
Fraser River Harbour Commission is affected
by the negligence of its servants. The subject
has been dealt with in several cases in the
Supreme Court of Canada to which I will here-
inafter make reference.
Gartland Steamship Co. v. The Queen [1960]
S.C.R. 315, was a case in which a collision
occurred between a ship and a bridge owned by
the Crown. Judson J. at p. 327 referred to
Toronto Transportation Commission v. The
King [1949] S.C.R. 510 where at page 515
Kerwin J. said:
The Crown is plaintiff in an action based upon the negli
gence of the defendant's servant. The defendant does not
make a claim against the Crown but in resisting the action
sets up the negligence of the Crown's servants which equal
ly caused the damage. There is no question that if, when the
doctrine of contributory negligence was in full flower, one
subject sued another for damage in these circumstances the
plaintiff could not recover because he failed to prove that
the defendant caused the damage. The Crown coming into
Court could claim only on the basis of the law applicable as
between subject and subject unless something different in
the general law relating to the matter is made applicable to
the Crown... Here, if the common law alone were appli
cable, the Crown would have no claim by reason of the fact
that it failed to prove that the negligence of the Commis
sion's servants caused the damage. In Admiralty, the Com
missioners for Executing the Office of the Lord High Admi
ral of the United Kingdom, as plaintiffs, have been held to
be entitled only to one-half of their damages when their
officers, as well as the defendant, were held to be at fault.
The Chinkiang ([1908] A.C. 251) The Hero ([1912] A.C.
300).
The Crown is able to take advantage of the Ontario
Negligence Act and is therefore entitled to one-half of the
damages.
In the Gartland case (supra) Judson J. at
pages 326 and 327 stated:
Apart from statute this action would be dismissed. With a
plea of contributory negligence established as in this case,
the plaintiff fails because he does not prove that the defend
ant caused the damage: T.T.C. v. The King ([1949] S.C.R.
510, 515, 3 D.L.R. 161, 63 C.R.T.C. 289.) The Canada
Shipping Act, incorporating the Maritime Conventions Act
1911, has no application to a collision between a ship and a
structure on land. The choice is between no recovery at all
and a recovery under the Ontario Negligence Act. This is a
common law action for damages within s. 29(d) of the
Exchequer Court Act, R.S.C. 1952, c. 98, and in my opinion
the Crown, as plaintiff, is entitled to the advantage of the
Ontario Act: T.T.C. v. The King, supra. It should have
judgment for one-third of its loss.
The Gartland case was followed in the
Supreme Court of Canada in a Quebec case in
The Queen v. Nord-Deutsche [1971] S.C.R. 849
at 878 and as well, by Wells D.J.A. in The
Algoma Central and Hudson Bay Railway Com
pany case (supra).
It thus appears clear that the plaintiff Com
mission is entitled under section 2 of the British
Columbia Contributory Negligence Act to recov
er damages on the basis of the apportionment to
which I shall hereinafter make reference. How
ever, in my opinion, the claim for damages of
the plaintiff Johnston Terminals Limited must
fail by reason of the negligence of the servants
of the plaintiff Commission, which is imputed to
Johnston Terminals Limited. This is so because
it cannot take advantage of the provincial stat
ute to which the plaintiff Commission is entitled
to claim benefit, as I have already found. The
reasons for so holding are fully set out by Wells
D.J.A. at pages 518 and 519 in The Algoma
Central and Hudson Bay Railway Company
case, where he states:
If the provisions of the Ontario Negligence Act were appli
cable it might enable me to apportion damage in accordance
with responsibility of the Manitoba Pool on one hand and
the ship's officers on the other. Under the authorities,
however, it would seem to me to be quite clear I am not
entitled as between the ship, the owners of the Algoway and
the elevator company to apportion negligence. The Ontario
Negligence Act has no application to such a situation. The
matter was discussed in the Supreme Court of Canada in the
case of Sparrows Point v. Greater Vancouver Water District
et al. ([1951] S.C.R. 396) At p. 411 Rand J. said in respect
of another aspect of the Contributory Negligence Act of
British Columbia:
It seems to have been assumed by counsel that the
provincial Contributory Negligence Act applied as
between the respondents, but I am unable to agree that it
does. There is here a special situation. By the National
Harbours Act the Commission is declared for all purposes
of its administration of this harbour to be the agent of the
Crown. Although that Act creates a duty on the Commis
sion, by its commitment, in such a case, to the Admiralty
Court, the law of that Court becomes applicable; and from
the judgment of the House of Lords in The Devonshire
[1912] A.C. 634 the maritime law, in this respect, is seen
to be the same as the common law. It follows that there
can be no contribution between the defendants.
And it seems equally clear to me that apart from statute
there is no relief from the results of contributory negligence.
Likewise in the decision to which I have already referred,
that of Gartland Steamship Company v. The Queen, at p.
326 in a paragraph already quoted, Judson J. in delivering
the judgment of himself and Taschereau and Cartwright JJ.,
made the observation dealing with the case, in which he held
that contributory negligence had been established, that in
this event "apart from statute this action would be dis
missed." With a plea of contributory negligence established
as in this case the plaintiff fails because he does not prove
that the defendant caused the damage: T.T.C. v. The King
([1949] S.C.R. 510, 515), and as Judson J. went on to
observe, the Canada Shipping Act incorporating The Mari
time Conventions Act of 1911 has no application to a
collision between a ship and a structure on land, in this case
a small boulder on the floor of the harbour. In the Gartland
case the action was between the Queen on one part and the
Steamship Company on the other and happily, it was held
that the Crown as plaintiff was entitled to claim the advan-
tage of the Ontario Negligence Act. Under the circumstances
operating here, however, and as between three parties, none
of whom represent the Crown in any way, there is in my
opinion, no right to resort to the provisions of that statute,
useful and just as such a resort would be. Up to the present
time Parliament has not seen fit to enlarge the ambit of the
provisions in the Canada Shipping Act relating to collisions
between ships to other maritime mishaps. It would, there
fore, seem to me that because of the plaintiff's contributory
negligence in this case by which, in my opinion, the plain
tiffs Parrish & Heimbecker Limited are also bound, in so far
as the defendants are concerned, these plaintiffs are not
entitled to any recovery against the defendant elevator
company. [The emphasis is mine.]
In my opinion the damages • sustained
occurred substantially as a result of the negli
gent handling of the ship Hiro Maru by its
officers and I therefore fix the liability of the
defendants for the plaintiffs' damages at 80%
thereof. The plaintiff Commission was negligent
in the maintenance of the dock for the reasons
aforesaid and I fix their liability for such negli
gence at 20% of the defendants' damages.
Unfortunately, for the reasons set forth in The
Algoma Central and Hudson Bay Railway Com
pany decision, the plaintiff Johnston Terminals
Limited is not entitled to take advantage of the
British Columbia Contributory Negligence Act
and its action, therefore, will be dismissed with
costs. The assessment of damages based upon
the above division of, liability will be the subject
of a reference pursuant to Rule 500 of the Rules
of the Court. The plaintiff Commission and the
defendants shall be entitled to their taxed costs
of this consolidated action and of the assess
ment of damages, in the same proportions at
their respective degrees of liability for damages.
Counsel for the plaintiffs shall prepare a draft
on the judgment and move for judgment in due
course.
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.