374 EXCHEQUER OOl7RT 'REPORTS. [VOL XII. ON APPEAL FROM THE NOVA SCOTIA ADMIRALTY DISTRICT. BETWEEN 1908 ISAIAH WATTS (SOLE OWNER OF THE Sept. 7. SCHOONER REGINA B.) CHARLES L. AUCOIN, JOHN' PORRIER, . APPELLANTS THOMAS PORRIER AND ANSEN I BARGONS (PL AINTIFFS). . AND THE STEAMSHIP JOHN IRWIN R ESPONDENT. (DEFENDANT) Shipping—Collision—Steamer and sailing ship—Regulations—Arts. 20 and 21—Right of sailing ship to go about when not compelled to. Art. 20 of the Regulations for Preventing Collisions at Sea provides that where a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel, Art. 21 provides that where by any of the rules one of two vessels is to keep out of the way, the other shall keep her course and speed. Held, that under the latter rule, a sailing ship when she is compelled to go about cannot do so close ahead of a steamer, so as to embarrass the latter and make it difficult for her to keep out of the way. 2. In this case a sailing ship and a steamer were so close together as to involve risk of collision. The sailing ship undertook to go about without being compelled to and without any good reason to justify the manoeuvre, and by so doing embarrassed the steamer and rendered her unable to avoid a collision. Held, that the sailing vessel had violated Art. 21, and was responsible for the collision. APPEAL from a judgment of the Deputy Local Judge for the Nova Scotia Admiralty District. The case arose out of a collision in Halifax harbour. The facts of the case are fully set out in the reasons for judgment on the trial, which are printed below.
VOL XII. EXCHEQUER' COURT' DRYSDALE, D. L. J.: This action is brought by the ownéré, master and crew . of the Regina B. a schooner of 79 tons, which was sunk in a. collision had with defendant steamer in Halifax Jom IRWIN. harbour on the night of the 19th of October, 1008. ` The Regina B in charge of Captain Aucoin was, on said night. between 9 and 1.0 p.m.,, coal laden, beating into Halifax Harbour, the wind was north, or, according to the tain of the Regina B, a little east, of north " bating tô the east ", as he puts it. The contention' of those on board the after coming inside of Meagher's Beach light, at or near thepoint marked." ax" on the chart used, the vessel corn-menced a starboard tack towards middle ground and, according to plaintiffs preliminary act, on northwest course ; that this tack was continued until they passed the middle ground buoy about 200 yards, and passing to the south of it ; that the schooner then tacked and stood to the north-east on the port tack ; that before and at the time of, and after tacking, they had observed the red light of the steamer John Irwin coming 'down' the harbour ; that after they had proceeded about 200 yards on the port tack and when about abreast of middle' ground buoy, the John Irwin her green light, altered her course and bore down on them, striking the Regina B. on the Port side aft of the main rigging, with the stem and starboard bow of the John Irwin. The master of the Regina . B. has drawn a diagram marked " G-1 " to 'illustrate his contention as to the manner of the collision: The • contention' of the Irwin is that they were coming out the harbour on the fairway, heading south' with the middle ground buoy always on their starboard bow ; that they saw the' Regina' B. standing to the west on the starboard tack and showing her green' light; that she was then about . of a mile ,REPORTS. 375 :' 1909 WATTS V. THE S TEMA SHIP . T R ri e a n l s o J n u 9 d O ge f ' -CapRegina B. is that . buoy; a; west only as she was suddenly opened John
376 EXCHEQUER COURT REPORTS. [VOL XII. 1909 distant, and bearing a point and a half on the John WATTS Irwin's port bow ; that they then starboarded their helm THE so as to bring green to green and pass astern of the STEAMSHIP JOHN IRWIN. schooner; that whilst they were so proceeding with the Rea so -ns of intention of passing astern and having brought green to Trial Judge. green, the Regina B. suddenly came up in the wind and tacked close ahead; that although they then at once ported their engines, the .Regina B. was struck aft of the main rigging, but by the stem and port bow of the John Irwin. Under the evidence I have to consider which of these contentions is supported. There is no dispute as to where the collision occurred ; it was in the main ships' channel, very near the fairway ; the John Irwin was admittedly going out the harbour, and it is fair to assume on the usual course in the fairway. Her officers so state, and she would, as they state, naturally be keeping the middle ground buoy on her starboard bow, and if this were so I cannot understand the statements of those on board the Regina B. when they say they were west of the buoy mentioned some two hundred yards when they tacked, and still saw only the red light of the John Irwin. If they were as far west as the buoy, the John Irwin keeping the fairway, as I have no doubt she did, would be chewing her green light, and I think when the Regina B. undertook to tack she could not have been as far west as her captain alleges. A steamer, it is true, must keep out of the way of a sailing vessel when such vessels are proceeding in such directions as to involve risk of collision. But it is also true that where by the rules one of two vessels is to keep out of the way the other shall keep her course and speed, and under this rule I take it to be settled that a sailing ship must not, when she is compelled to, go about close ahead of a steamer éo as to embarrass the steamer and make it difficult for her to keep out of the way ; and that where risk of collision exists a sailing ship is not entitled to go about until
'VOL XII.] EXCHEQUER COURT REPORTS. 377 compelled to. The real point in dispute here is whe-1909 ther the Regina B. improperly tacked right, or close, WATrs in front of the steamer, and thus violated Rule 21. THE Captain Aucoin's statements as to the bearing of the r Jo. N Aids wi N. Irwin when he first saw her are most unsatisfactory. Reasons of In his examination he first states that he first saw the Tr~a1 J nage. John Irwin when he was on a W. N. W. course on the starboard tack about half way between Meagher's beach buoy and middle ground buoy ; that the Irwin was then about of a mile or a mile distant, coming out the harbour, and bearing about a point or a point and a half on his (the Reg 0 i na B's.) starboard bow, and that the Irwin's red light got broader on his bow as he continued his western tack. This statement cannot be accepted as to the bearing, as it is a very material contradiction of plaintiffs' preliminary act. In such act the bearing of the John Irwin when first seen is given as five or six points on the starboard bow of the Regina B. when the John Irwin was first seen at a distance of about one mile, though the captain then further states that after continuing his starboard tack to the west of middle buoy the John Irwin was at the point when he decided to tack about a half mile distant, and bearing about 2i-points on his starboard bow with his red light only showing. Such a statement puts the John Irwin in an altogether improbable place and position, considering her course out of the harbour, and her bearing when first seen and Captain Aucoin's statements as to this position and his own reasons for tacking were most unsatisfactory. Another striking feature of Captain Aucoin's testimony was as to his course at the time of, and the manner in which the ships came together. I3e states he was sailing on a northeast course on the port tack for about 200 yards after tacking west of middle ground buoy when the collision occured, and that sometime after he was on that course the John Irwin opened her green light and came
378 EXCHEQUER COURT REPORTS. i in contact with him aft of the main rigging, with her WATTS stem and starboard bow. It is apparent this v. THE require an extraordinary change of course on the part of STEAmsI3IP the Joax Ix ~,vi`. John Irwin at short rang Reasons such a statement ; and the of Trial Judge• the wind as stated sail on a N. E. course ; the best she could do would be probably a point north of east. Again, this method of collision is inconsistent with the admission that the John Irwin's fouled the main rigging of the Regina at the 'whole evidence I am satisfied the vessels came together in the manner indicated by the officers of the John Irwin, that is to say—that the had just come up in the wind, and was in the act of tacking ; that the her under a port helm struck with her stem and port bow. As to the manner of the collision I accept the statements of the officers of the satisfied that when the two vessels were so close that of collision existed the took to go about without being compelled to, and without any good reason for so doing ; that her conduct in this respect embarrassed the otherwise have cleared her; that she was guilty of a violation of article 21, and such violation was the cause of the collision. It was contended that the John Irwin was' in fault in not slackening her speed or stopping and reversing earlier. As to the speed the was making I find it was about under the circumstances, seems reasonable. I accept the statements of the officers of the John Irwin as to her course out of the harbour, and as to the positions of the vessels just before the collision. When the captain speaks of minutes during which he was under a starboard helm I think allowance must be made always as to time, the substance' of the statement is in the fact that he went to • {VOL XII. would g e , a nd it difficult to accs P t Regina B. could not with port anchor in the collision B. Looking Regina B. John Irwin in the effort to clear John Irwin. I am risk Regina B. improperly underJohn Irwin which would John Irwin 7 miles an hour, which,
VOL XII.]: EXCHEQUER COURT REPORTS. port enough .to bring green to green, -and after the Regina' B. tackéd so close as to make a collision almost inevitable no fault _ or 'delay can be. attributed to the John Irwin's captain in his effort to stop and reverse, Jôax iRv N. or in any of his emergency orders. It is true it is the duty of a àteamer, where there is risk of collision, what- ever may be the conduct' of the sailing vessel, to do everything in her power that can be- done to avoid collision; at the same time, as stated in the leading case on the subject, if a steamer is to be condemned for omitted to do something which she ought to have done, it seems right to require proof of three things—first; that the thing omitted was clearly.in the power of the steamer to do ; second, that if done it would in all probability have prevented collision, and thirdly that it was an act which would have occured to any officer of competent skill and experience in command of the steamer. When the captain . of the • John Irwin • brought green to green, as I find he did, the original risk of collision was determined ; and going at a moderate rate I do not see he was then under any obligation to slacken or stop, and after the B. tacked in front I do not think under the evidence there is anything that I can reasonably say he omitted that he ought to have done. In fact as to the conduct of the John Irwin's offices throughout I do not find any act_ or omission on their part that in my opinion should decree them in fault. The action will be dismissed. June 12th, 1909. The appeal was argued at Halifax. A. , G. Morrison, K.C., for the. defendant, contended that the John Irwin was out of her course, -not ,having kept on the western side of the channel. She was there- , fore to blame for the collision, The Rhondda (1). (1) 8 App. Cas. 549. 379 1909 WATTS TAE T R r e ia a l s o J n u s d o g f e. . having . Regina . V
380 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 Furthermore, when the Regina B. proceeded to come WATTS about she was half a mile away from the steamer, and `i there was abundant opportunity for the steamer to avoid STEAMSHIP JOHN IAWIN. collision. But the latter failed to keep out of the wayp) Ar-eAt and so brought about the collision. She was solely to of Counsel blame. The Regina B. was obliged to tack or go ashore. Cites the Norma (1). The Palatine (2) is express authority for the right of a sailing vessel to go about, while the obligation upon the steamer is still to keep out of her way. As to greater credence to be given to evidence of those on board the Regina B., cites The Dahlia, (3). As to lights on sailing vessels, cites The Earl Spencer (4). H. Mellish, K, C., for the respondent, contended that there was no evidence to justify the Regina B. in going about, when she did, as a matter of necessity. The steamer was on the proper course; she was steered to go astern of the schooner, and if the latter had kept her course there would have been no collision. The case of the Palatine, cited by counsel for appellant, supports a counter proposition to the one he contends for. The onus is on the plaintiff to show that the collision occurred by the fault of the defendant, and that onus has not been discharged. Cites Marsden on Collisions (6) Williams & Bruce's Adm. Pr. (6). Mr. Morrison replied. CASSEL6, (now September 7th 1909) delivered judgment. This is an appeal from the decision of Mr. Justice Drysdale, Local Judge in Admiralty at Halifax. The appeal was argued before me at Halifax. By consent of both parties Captain Neil Hall was requested to sit with me and hear the appeal as nautical assessor. (1) 35 L. T. N: S. 418. (4) L. R, 4 Ad. & Ec. 431. (2) 1 Asp. M. L. C. N. S. 468. (5) 5th ed. pp. 285, 236. (3) 1 Stuart 242. (6) 3rd ed. p. 99. r..1011.....I . -
VOL. XII.1 EXCHEQUER COURT REPORTS. 381 The appellants' case was forcibly argued by Mr. 111or- sos rison, K. C. • WATTS v. Captain Hall made his report, which reads as follows : STF.THEH IP "Having been requested to act as Nautical Assessor JO HN IR.~vxx. herein, and after hearing with your lordship the argu- ons Jeua n for ment of counsel both of plaintiffs and defendant, and after carefully perusing all the evidence, I am of the opinion that the evidence goes to show the night was dark,, the 810 clear, and the wind blowing a stiff breeze northerly. . Under such circumstances lights should be seen their full range. The steamer John' Irwin going down Halifax Harbour, sights a green light on his port bow, which after proved to be the starboard light of the schooner Regina B. Ordinary precaution seems to have been taken by the steamer John Irwin to clear the Regina B. I do not think the Regina B. could have been west of the middle ground buoy that night, or she must undoubt• edly have seen the green light of the John Irwin. The crew of the Regina B. say they saw the red light of the John Irwin at the time of tacking west of the middle ground buoy, and continued to see the red light till just before the collision. This I cannot believe to be correct. In regard to the John Irwin, porting her helm and going full speed astern was the only action she could take in the emergency, and in my opinion the Regina B. tacked almost under the bows of the SS. John Irwin. For the above reasons I find the schooner Regina B. in fault." I have, since being furnished with this report, carefully considered the evidence and documents adduced and produced before the trial judge. To a great extent the question involved is one of disputed fact. I think the trial judge arrived at a correct conclusion on the evidence adduced, and I agree entirely
382 EXCHEQUER COURT REPORTS. [VOL. XII. 1909 with his carefully considered finding, and also with the WATTS conclusions of the Nautical Assessor. v. THE The appeal is dismissed with costs. STEAMSHIP JOHN IRWIN. Judgment accordingly. Reasons for Judgment. Solicitor for appellants : A. G. Morrison. Solicitors for respondent : McInnes, Mellish, Fulton & Kenny.
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