T-958-80
MacMillan Bloedel Limited and Kingcome Navi
gation Company Limited (Plaintiffs)
v.
Pan Ocean Bulk Carrier Limited, the ship Yu
Kong and A. MacKinnon (Defendants)
Trial Division, Collier J.—Vancouver, February
11; Ottawa, February 26, 1981.
Maritime law — Appointment of assessors — Application
by plaintiffs for order appointing assessors pursuant to Rule
492(2) — Action for damages allegedly sustained by plaintiffs
following ramming incident — Plaintiffs claim that the
appointment of assessors precludes the tendering at trial of
expert evidence on matters of navigation and seamanship —
Order appointing two assessors made — Order not prohibiting
any party from tendering expert evidence, pursuant to Rule
482, on matters of seamanship and navigation — Federal
Court Rules 482, 492(2).
APPLICATION.
COUNSEL:
J. R. Cunningham and Marc MacEwing for
plaintiffs.
Nils Daugulis for defendants.
SOLICITORS:
Macrae, Montgomery & Cunningham, Van-
couver, for plaintiffs.
Bull, Housser & Tupper, Vancouver, for
defendants.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiffs applied for an order,
pursuant to Rule 492(2), that two assessors be
appointed to assist the Court at trial on matters of
navigation and seamanship.
The second plaintiff owned a tug which, at the
material times, was towing a boom of logs owned
by the first plaintiff. The vessel Yu Kong is alleged
to have negligently rammed the log boom in the
Strait of Georgia off the mouth of the north arm
of the Fraser River. Action was brought for dam-
ages alleged to have been sustained by the
plaintiffs.
Counsel for the defendants felt assessors were
not necessary in this case. Other than that, he had
no serious objection to their appointment, provided
the defendants were not precluded, by that
appointment, from tendering at trial expert evi
dence on matters of navigation and seamanship,
relevant to the facts and issues in this suit.
Counsel for the plaintiffs took the view the
presence of assessors prevents the proffering of
expert evidence on matters of navigation and sea
manship. He relied on a recent decision of my
colleague, Dubé J.: Egmont Towing & Sorting
Ltd. v. The "Telendos" (T - 219 - 79 — unreported,
November 17, 1980), and on the cases referred to
in footnote 1 to those reasons. Dubé J. said at
pages 2-3:
At the outset of the trial, counsel for the plaintiff moved to
strike out the affidavits of several expert witnesses to be called
by the defendant on the ground that no expert evidence is to be
heard on matters of seamanship and navigation when assessors
are sitting.
The arguments on that point were postponed to be heard at
the time each of the proposed witnesses was to be called by the
defendant. In due course a full debate was held in the matter
and several authorities were quoted from British as well as
Canadian jurisprudence. I ruled that when the Court is assisted
by nautical assessors, whose duty it is to advise on matters of
nautical skills and knowledge, the evidence of witnesses ten
dered for expert testimony on those very matters is not to be
received.
I therefore disallowed the proposed evidence of expert wit
nesses whose affidavits revealed quite clearly that their compe
tence and proposed evidence lay exactly in the field of expertise
of the two assessors, namely the navigation of vessels in the
Port of Vancouver. As I pointed out to counsel at the time, the
two captains sitting beside me have themselves taken vessels,
deep-sea as well as tugs, in and out of Vancouver Harbour
hundreds of times.
I did, however, allow the expert evidence of a captain whose
expertise lies in the field of naval architecture, a field foreign to
the two assessors.
I am unable to accept the general proposition
that "no expert evidence is to be heard on matters
of seamanship and navigation when assessors are
sitting".
I expressed my views on this point in an appen
dix to The "Sun Diamond" v. The "Erawan"
(1975) 55 D.L.R. (3d) 138. I reviewed the English
practice, and the former Exchequer Court prac
tice, which followed the English view that expert
evidence was inadmissible when assessors were
sitting. Neither of those earlier practices is, in my
view, binding on the Trial Division of this Court. I
set out, in the Sun Diamond case, the restricted
use of assessors which I felt should be made; and
that their appointment should not debar expert
evidence on matters of navigation and seamanship.
I do not propose to repeat here my reasons. I
reaffirm those views on this application.
In Nord-Deutsche Versicherungs-Gesellschaft
v. The Queen [1969] 1 Ex.C.R. 117, Noël J. (later
A.C.J. of the Federal Court) sat with an assessor,
in a case which essentially involved maritime mat
ters, including navigation and seamanship. Several
expert witnesses were tendered on matters of navi
gation. It was argued, on the same grounds put
forward by the plaintiffs here, the evidence of the
experts was inadmissible. Noël J. overruled the
objection, and permitted the expert witnesses to
give evidence. (See pages 144-146, 148, 155.)
The point raised here came up in a recent case
in this Division: Misener Transportation Limited
v. The "George N. Carleton" (T-5952-78, Mar-
ceau J., unreported, May 6, 1980). A vessel, while
being assisted by a tug, came into contact with the
wall of a quay in Thunder Bay, Ontario. One party
applied for the appointment of an assessor to assist
the Court. Mahoney J. directed the appointment,
but added a proviso that the appointment did not
preclude the tendering of expert evidence on mat
ters of navigation and seamanship. Marceau J.,
who heard the trial, said, at pages 8-9:
What then caused the stern of the vessel to react as it did and
take a wrong direction? I was assisted during this trial by an
assessor, Captain Storey, but pursuant to an order of the Court,
the presence of the assessor was not to prevent the parties from
calling expert evidence. The defendants called three expert
witnesses, two of whom greatly impressed me by their qualifi-
cations and the way they expressed their opinions, Jack Augus-
tus Potter, a former sea Captain, now a marine surveyor, and
Cyril Harrison, a recently retired Captain and Great Lakes
pilot. According to these experts three reasons must account for
the sheering of the vessel to port.
At the conclusion of argument on this case, I
said I would make an order appointing two asses
sors. But the order would not prohibit any party
from tendering expert evidence, pursuant to Rule
482, on matters of seamanship and navigation
relevant to this action. j said, also, I would give
short written reasons in case the plaintiffs might
wish to appeal my order.
These are the written reasons.
The costs of this motion are in the cause.
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