Ex. C.R.] EXCHEQUER COURT OF CANADA 71 ONTARIO ADMIRALTY DISTRICT 1953 Jan. 7, 8 & 9 BETWEEN : Jan.29 COLONIAL STEAMSHIPS LIMITED .... PLAINTIFF AND THE SHIP WINNIPEG DEFENDANT. Shipping—Action for damages—Failure to discharge onus of showing collision was caused by the faulty navigation of defendant ship—Action dismissed. Held: That in an action for damages arising out of a collision between two ships in the Soulanges Canal the onus is on plaintiff to show by a preponderance of evidence that the damage to its ship was caused by the faulty navigation of defendant ship and since that onus has not been discharged the action must be dismissed. ACTION by plaintiff to recover damages allegedly caused by defendant ship. The action was tried before the Honourable Mr. Justice Barlow, District Judge in Admiralty for the Ontario Admiralty District, at Toronto. Peter Wright and F. O. Gerity for the plaintiff. R. C. Holden, Q.C. for the defendant ship. The facts and questions of law raised are stated in the reasons for judgment. BARLOW, D.J.A. now (January 29, 1953) delivered the following judgment: An action arising out of a passing on the 3rd day of November, 1951, about 0455 hours E.S.T. by the Ship George M. Carl, hereinafter called the Carl which was downbound and the ship Winnipeg which was upbound in the Soulanges Canal east of Lock 5, when the plaintiff alleges that by reason of the faulty navigation of they Winnipeg the Carl rubbed the bank of the canal and damaged certain plates on her starboard side and twisted her rudder stock necessitating repairs costing about $25,000. Each ship is about 250 feet long with a beam of about 43 feet. The canal has a width at full depth of 96 feet and a width from bank to bank of 162 feet.
72 EXCHEQUER COURT OF CANADA [1953 1953 The plaintiff alleges that the Carl observed the Winnipeg COLONIAL when about a mile distant. The plaintiff then pleads as STEAMSHIPS LIMITED follows: v. The George N. Carl kept her course and dead slow speed, sounding THE SHIP one blast. This was answered by one blast from the Winnipeg Winnipeg. When some 300 feet, or so, from the Winnipeg the course of the George M. Carl Barlow was altered to starboard so that the vessels might safely pass. When it D.J.A. was seen that the Winnipeg had not altered course the wheel of the George M. Carl was put to starboard in an endeavour to clear the Winnipeg. As the ships neared each other the Winnipeg was seen to be headed for the George M. Carl and it appeared that she would strike amidships. The wheel of the George M. Carl was then put to port to straighten the ship in line with the canal bank and to avoid collision. The George M. Carl struck the east bank of the canal, and the Winnipeg coming on at speed struck the port quarter of the George M. Carl and drove her heavily into the canal bank, causing extensive damage. The defendant, the ship Winnipeg observed the Carl when about one and a half miles distant, and then pleads as follows: When the vessels were about half a mile apart passing signals of one short blast were exchanged, and the engines of the Winnipeg were at once reduced to slow, and shortly afterwards to dead slow. When the ships were still two or three ship's lengths apart the Carl was seen to have gone against or too close to her starboard bank and there appeared to be danger that she would get out of control and sheer out towards the Winnipeg when passing. The Winnipeg had been coming up in the centre of the canal and at the time was commencing to direct her course gradually to starboard in order to take her own starboard side and to meet and pass the Carl in the usual and proper manner. When it was seen that the Carl had got too close to her starboard bank too soon the course of the Winnipeg was directed further to starboard, in order to try to keep clear of the Carl if the latter should sheer, and when the ships met their bows cleared by a greater distance than usual. As the ships passed the Winnipeg straightened up, and while passing she was completely on her own starboard side of the canal. The Carl had ample water in which to pass safely, but was not under proper control, and shortly before the sterns of the ships cleared one another the stern of' the Carl came out towards the Winnipeg and her port quarter rubbed the port side aft of the Winnipeg lightly while passing, but without doing any damage to either ship. When it was seen that the ships were going to rub the Winnipeg was given port wheel, but her stern was over against or close to her starboard bank and it was not possible for the Winnipeg to avoid the rubbing which occurred. After rubbing lightly the ships cleared one another and the Carl proceeded on down and the Winnipeg up in the centre of the canal. The above quoted pleadings set out the facts which each party endeavoured to prove. There is some conflict between the evidence of the Captain and Mate of the Carl and the evidence of the Captain and Mate of the Winnipeg.
Ex. C.R.] EXCHEQUER COURT OF CANADA 73 I was impressed with the demeanour in the witness box 1953 of the Captain and Mate of the Winnipeg and accept their solo r. evidence where it conflicts with that of the Captain and ST T E AAMSHrPs /MUTED Mate of the Carl. Clearly the two ships did not pass y. within 1,000 feet of Lock 5 as is sworn to by the Master of THE g the Carl. The passing took place at least three-quarters of Barlow a mile east of Lock 5. The evidence clearly establishes D.J.A. that the rub of the two vessels on their port quarters did not move either ship out of her course and did not drive the Carl into the canal bank causing damage as alleged by the plaintiff. The evidence establishes that it was a normal passing. The port quarters merely rubbed slightly as the ships cleared one another. When the Carl was dry-docked at the end of the season it appeared that she at some time had suffered damage to certain of her plates on the starboard side, which damage could have been suffered by the rubbing of the canal bank. If this damage was suffered during the voyage in question, and at or about the time the two ships passed, the evidence satisfies me that it was caused before the passing and by reason of the faulty navigation of the ship Carl as she approached the Winnipeg. I accept the evidence of the Captain and Mate of the Winnipeg as to the course of the Carl and as to the course of the Winnipeg as the two ships approached each other. Furthermore, the onus is upon the plaintiff to show by a preponderance of evidence that the damage to the Carl was caused by the faulty navigation of the Winnipeg. There is not sufficient evidence to satisfy me that the navigation of the Winnipeg caused the Carl to rub the bank of the canal. The evidence as to the twisting of the rudder stock is most unsatisfactory and does not show how this damage could have been suffered at the time of the passing of the ships. The rudder of the Carl would be about 21 feet from her starboard side. At no time was the Carl in such position in the canal as to cause her rudder to come in contact with the bank. Again the onus is upon the plaintiff and this onus has not been satisfied. For the above reason the action will be dismissed with costs. Judgment accordingly.
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