362 EXCHEQUER COURT REPORTS. [VOL. III. 1893 BRITISH COLUMBIA ADMIRALTY DISTRICT. April 28. THE ESQUIMALT AND NANAIMO PLAINTIFFS ; RAILWAY COMPANY AGAINST THE SHIP " CUTCH." Maritime law—Collision—Responsibility for, where uninjured ship declines to assist helpless one—The Navigation Act, R. S. C. e. 79, secs. 2 and 10. Under the provisions of section 10 of the Navigation Act (R.S.C. c. 79) where a collision occurs, the ship neglecting to assist is to be deemed to blame for the collision in the absence of a reasonable excuse. Two steamships, the C. and the J., were leaving port together in broad daylight, and a collision occurred between them. The J. received such injury as to be rendered helpless. The C. did not assist, or offer to assist, the disabled ship, but proceeded on her voyage. The excuse put forward by the master of the C. was that the J. did not whistle for assistance, although the evidence showed that he must have been aware of the serious character of the damage sustained by her. He further attempted to justify his failure to assist by the fact that other ships were not far off ; but it was shown that these ships were at anchor and idle. Held, that the circumstances disclosed no reasonable excuse for failure to assist on the part of the C. and that the consequences of the collision were due to her default. Held, also, that the C. was in fault under Art. "16 of sec. 2 of the Navigation Act for not keeping out of the way of the J., the latter being ou the starboard side of the C. while they were crossing. ACTION for damages by collision. The plaintiffs' vessel Joan and the steamer Cinch, both moored at the same wharf, (Gordon's wharf, Nanaimo) were advertised to leave at the same hour, 7 a.m. Both cast off their lines within a few seconds of each other. Both were endeavouring to leave the harbour by the South channel, but a short distance before entering it, they came into collision under the
VOL. III.] EXCHEQUER COURT REPORTS. 363 circumstances mentioned in the judgment. The .Joan 1893 having suffered considerable injury brought this action THEÉ suI- for damages. - 'MALT AND NANAIM0 April 26th and 27th, 1893. RAILWAY COMPANY The case was tried . before Sir Matthew B. Begbie, THE SHIP C.J., Local Judge in Admiralty for the District of CIJTCR, . British . Columbia,--Lieut. Masters, R.N., and Lieut. xe oon Nugent, R.N ., sitting with him as Assessors. Judgnaent. Pooley, Q.C. for the plaintiffs. E. V. Bodwell (with him P. 2E. Irving) for the defendants. Sir MATTHEW B. BEGBIE, C.J., L.J.A., now (April '28th, 1893) delivered judgment. This case has been somewhat embarrassed by the different views taken of the facts by the witnesses for the plaintiffs and defendants ; a difference not altogether unprecedented in the case of maritime collisions, and naturally accounted for by" the well-known, although unaccountable, sympathy that every man feels for the vessel in which he happens to be ; bÿ the suddenness and unforeseen nature, in general, of all collisions ; and by the erroneous views too often taken by the masters of vessels of their owii rights and of the rights of others.' The evidence, which has occupied the court nearly eleven hours 6n two days, refers wholly and entirely to events which, in fact, from first to last, were commenced and concluded in eight minutes of time'on the morning of November 19th, 1892, just before sunrise. A great deal of contradictory evidence was given upon a preliminary, and, I think, an imtnateriâl point, viz.,'which of the two colliding vessels was the first to leave the wharf ; the master and mate and some passengers on board the Gutch alleging (what she also
364 EXCHEQUER COURT REPORTS. [VOL. III. 1893 insists upon in her Preliminary Act) that the Catch was THEÉ s I II- clear of the wharf at which both vessels had peacefully M , ALT AND lain all night, i.e., had all her lines thrown off before AN AIM 0 RAILWAY the Joan. Upon this point, however, I am quite clear CoM . that they are all in error. Verbally perhaps, and for a I Srnr moment, two of the Catch's lines were the first removed CiE from the mooring pile ; she had come into the wharf M Judg o m r e n n ' t . on the 18th, later than the Joan, and her head and spring-lines were thrown over the Juan's, so that it was necessary to remove them in order to let the .Town's lines go, and that is what the wharfinger says he did; but he immediately, and as soon as ever he had lifted the Joan's lines, replaced the Cutch's lines on the pile ; and he says he cleared the Joan first, and that he saw her completely detached from the wharf, although quite alongside of it, before he cast off the last line of the Cu/eh, and while the Cutch was still swinging to her stern line. Both vessels were lying at Gordon's wharf, and purposed leaving by the South channel, the entrance to which is distant about 1,100 feet. E.N E. from the wharf. The Joan was â twin-screw moored with her head nearly S.E. The Cutch was a single screw, lying nearly S.W. across the Joan's bow, having come in at a later hour on the previous day. It was therefore necessary for the Clutch, in order to get her head round, that she should hang on to 'her stern line and that the Joan should have got out of her way. It was not necessary for the Joan to hang on to her stern line : she was a twin-screw, and had a much smaller angle to move through. Other quite independent witnesses (Mr. Thompson and Mr. Jensen) also saw from the shore that the Joan was free while the Gulch was still fast. Now, in weighing these contradictory statements, we must consider that the wharfinger's business was to free these
VOL. III.] EXCHEQUER COURT REPORTS. ' 365 lines ; that none of the defendants' witnesses handled or 1893 could have handled the Catch's ropes, or could probably THEE rn-have seen exactly what the wharfinger did with them, MAL T AND NAP IMO or could see the Joan's lines ; that all the defendants' RAILWAY witnesses were either crew or passengers on board the COMPANY Catch, and so, liable to the mysterious sympathy already THE SHIP CIITCH. alluded to ; and that the wharfinger's statement is sup- ported not only by the Joan's crew, but by independent Itefor Judgment. Witnesses and by the high probabilities of the case. I am quite sure that the Joan was the first to get clear of the wharf. And the chief conclusion I drew from all this evidence of the defendants was, that they placed great reliance upon the point which vessel cast off first (which I consider quite immaterial as regards the actual collision), imagining that it gave them priority of right of entry into the South channel (by which both vessels purposed to leave the harbour), whereas that priority would depend entirely upon the subsequent manoeuvres of the two vessels ; and I think this erroneous notion of right probably influenced the subsequent conduct of the Cutch and the views of her master. And the positiveness with which the Catch's witnesses swore to these things, which could not have been within their own knowledge, and as to which they were clearly in error (although there is no suggestion against their firm belief that they were right), very much impairs the force of their statements upon other points which they believe they saw. The defendants' case is that she got clear of Gordon's wharf before the Joan, and so obtained a prima facie right of priority of leaving the harbour by such channel as she might select ; that she was the first to get into the open harbour, and was making at a moderate speed for the South channel, as the leading ship, with the Joan on her starboard quarter, when the latter exerting 'her full power overtook the Cutclr, and, making for the
36(1 ' EXCHEQUER COURT REPORTS. [VOL. III. 1893 wrong side (viz., the port side) of the South channel, THEÉ S III- for which they were both bound, threw herself at full , ANA Mo speed on the Gulch's bow, which was actually reversing RAILWAY her screw to mitigate the force of the collision which Cooly. the extraordinary conduct of the Joan had rendered in- THE SHIP CUTCH. evitable. The Cutch being thus entirely innocent, and the Joan guilty of various infractions of the Articles of Reasons for the Navigation Act, as an overtaking ship she ought Jpdment. to have kept out of the Catch's way (Art. 20),—there being risk of collision, the Joan ought to have slackened her speed (Art. 18),--moreover, the Joan, intending to leave by the South channel, ought to have left by the South or starboard side, and was guilty of gross misconduct in endeavouring to get to the North side (Art. 21). To all this there are several answers. In the first place, it is clearly made out in the opinion of myself and assessors that the Gulch was not, and the Joan was, the first to leave the wharf. As already intimated, the mere fact of casting loose did not confer on either vessel the unqualified right of being the first to take the channel. But whatever expectations the Gulch founded on her supposed priority were founded on a complete misconception of the facts ; and this double error, both of the facts and of the rights founded on those facts, probably influenced the subsequent conduct and belief of the master. In the next place, from a very careful measurement of distances and bearings as given by the defendants themselves, quite irrespective of the plaintiffs' witnesses, or of the natural probability of the case, the assessors have come to the conclusion that it is quite impossible that the Joan, which was always on the starboard hand of the Gulch, could ever have been abaft her beam ; and therefore that the Gulch's second contention that she was the leading vessel at the start for the South channel, is equally devoid of founda-
VOL. III.] EXCHEQUER COURT REPORTS. 3e7 tion. It is true, some of the passenger witnesses of 1893 the Cutch, and one or two others on board, were of THQE svI- opinion that the Joan was at the commencement ofAALN I T ~i A A I N M D O their course abaft the Cutch's beam ; which would R AILWAY make the Joan a following or overtaking ship COMPANY within Art. 20. But the times and distances and ThE SHIP CIITCR. bearings given by the master and other skilled wit- nesses on the Cutch (the defendants' own witnesses) iseasons row Judgmer4., quite contradict this: though it would, of course, be possible that in turning and twisting in the neighbourhood of the Babcock (1) she might momentarily have her quarter towards the Joan. That would have been an accident merely : but we are of opinion that it never did so happen ; and that in fact during all her manoeuvres in. the harbour, she had the Gulch forward of her beam. And then when we look at the plaintiffs' witnesses, they produce three who are quite independent of either ship : Mr. Thompson, Mr. Jensen and the mate of the Quadra, who all agree as to the relative position of the vessels, viz.: That the Joan was, from the time when the Gulch first began to move her head towards the South channel, always nearer than the Cutch to that channel. And the probabilities of the case are so great in the same direction that it would require the greatest unanimity of testimony to . make one believe that the Cutch could ever have been the leading ship. She had on leaving the wharf eight points, an entire right angle, to make good more than. the Joan, before she could head for the channel. On backing out it would manifestly be her natural manoeuvre to turn her stern through the North towards the West as well as she could, and that the curve so described would probably carry her to the North much further than the point, assigned by her. master, and, (1) NOTE.—This was a ship that happened to be lying at anchor in the harbour a short distance from Gordon's wharf.
368 EXCHEQUER COURT REPORTS. [VOL. III. 1893 indeed, according to the time and rate of speed given THE Q UI_ b y him, very nearly to the position assigned by the MALT NAD NANAIMO plaintiffs in t hcheasrut bmitted bythem, leaving the RAILWAY Joan several points forward of the Gulch's beam ; but COMPANY even from the point indicated by the defendants on the THE SHIP chart submitted by them—not, as I have said, borne out CUTCH. Reasons by the times and rates of speed sworn to by their own Judg fo m r e nt. master—and supposing (what is incredible, and contrary to the evidence) that the Joan remained stationary all that time, off the north end of Gordon's wharf, she still would be forward of the Gulch's beam, and therefore entitled to have her way given to her under Art. 16, and not bound to give way to the Gulch under Art. 20, as contended by the defendants. But it can be mathematically proved that the theory of the Cutch as to the conditions of the actual collision is entirely baseless. - It would be mathematically impossible that the Joan, throwing herself at the rate of ten knots per hour across the bow of the Gulch, a nearly stationary ship, as the. defendants' witnesses would appear to suggest, could cause the injuries described and not disputed, viz., a deep cleft nearly perpendicular to her beam: If the injuries were occasioned as the defendants contend, the rent would extend in a direction from the stem of the Joan towards her stern, and would be mainly external, without much penetration. But if two vessels of nearly equal size and speed, of equal momentum, collide at an angle of about 45°, the injury will extend inwards into the vessel that receives the shock, in a direction nearly perpendicular to her beam. This will be apparent on drawing the necessary diagram so as to show the resultant thrust : the impetus of the recipient vessel being exactly represented by an equivalent thrust in the direction opposite to her motion. That is to say, the injury inflicted and shown to have been suffered by the Joan, is exactly
VOL. III.] EXCHEQUER COURT REPORTS. 369 explained by the plaintiffs' .account of the position and 1893 speed of the vessels, though their witnesses did not THE EsQuI-seem to understand that ; and is quite irreconcilable NANAI o with the circumstances suggested b,y the defendants. RAILWAY C°MD.A NY Neither is there any force in the defendants' conten- tion that the Joan ought to. have entered the South THE SHIP CUTCH. channel close on the starboard hand, and to the South- Reasons ward of the mooring buoys, (Art. 21,) and that it was for Judgment. improper navigation.for her to attempt to pass to the North of the buoys. If the Cutch were, as the defendants contend, the leading vessel, surely it was equally her duty to make for the Southward of the buoys ; but she was herself making for the North side. In fact, I am advised that, on the evidence and the statement of the practice, it is a reasonable and proper course of careful navigation, having regard to the risk of lines from the buoys to the wharfs, and other matters, to pass to the north of these buoys, especially when another vessel is lying between the mooring buoys. Neither vessel was in fault in this respect. I believe the Cutch did, in fact, go to the starboard side of the channel, South of the buoys, after the collision. The Cutch, therefore, we consider to be in fault, under Art. 16, which throws upon her the duty of keeping out of the way of the Joan. Even if the Joan had been utterly mismanaged, had been steering a wrong course—it was the duty of the Cutch to keep out of her way ; to take all possible precautions to prevent a collision. Now, what precautions did she take ? None whatever ; except stopping and reversing her engine two or three seconds before the impact ; when such a stoppage could produce no sensible.effect ; and, in fact, two independent witnesses who were watching the proceedings decidedly declined to believe that the Cutch ever stopped her engines at all. Yet the Joan was in sight, and the possibility .of a collision evident if the 24
370 EXCHEQUER COURT REPORTS. [VOL. III. 1893 Cutch had any sort of a lookout (and if she had none, THE Qur- she is again in fault) from the first moment that she MALT AND beganherf orward pro p g r g ess, especially if, as some of NANAIMO r ' ess F ec RAILWAY her witnesses say, that was only about 300 feet off. It COMPANY is possible, of course, that the master of the Cutch had THE SHIP no eyes for anything but his rival the City of 1Yanaimo, Cu'rcu. just disappearing with a few minutes start. If so, that Reasons for ag ain makes him in default. A master cannot claim Judgment. to be blameless if, being on deck, he fails to see a vessel of the size of his own right ahead and only her own length off in clear daylight. But there is another section which imposes on a colliding ship a duty the neglect of which is decisive. Seamen generally eagerly accept it as a privilege, requiring no Act of Parliament to command them, to assist fellow seamen in distress. This was entirely neglected on the present occasion. Section 20 says in the absence of a reasonable excuse, the ship neglecting to assist is to be deemed to blame for the collision. Now, what is the reasonable excuse put forward ? That the Joan did not whistle. But there was no evidence that she could whistle. The force of the blow was so great, and on such a part of the ship as to burst the steam. gear and drive all the engineers from below, the steam escaping in clouds. The master of the Cutch says he saw nothing of this, which seems almost incredible, but, if true, it shows that he was not in a state of attention properly to conduct the navigation of any ship ; and the accuracy of all his disculpatory observations may be questioned if he did not observe this. His other excuse is that there were other ships not far off ; but they were at anchor, and otiose ; he was on the spot, with all his crew in hand. Life might have been at stake. If the Joan had drifted ashore she might have been a total loss, at all events much more extensively injured. As it was, she was only brought up
VOL. III.] EXCHEQUER COURT REPORTS. 371 on the edge of the flat, and made fast to the black buoy 1893 on the south side of the channel, having drifted help- THE É III- lessly in the high wind across the tail of the middle MALT AND AN AIMO bank, while the Cutch went straight on in full chase RAILWAY of her rival, the City of Nanaimo. I am bound by this COMPANY v. section to say that it alone fixes the consequences of THE SHIP the collision as being due to the default of the Cutch. CUTCH. But then, was the Cutch alone in default'? Upon R fora this point Mr. Bodwelt urged Art. 18, which says that 'I"' every steamer approaching another so as to involve risk of collision shall slacken speed, or stop and reverse if necessary. Now, as to this, it is to be observed that the whole of these rules are intended to prevent collisions, if possible ; and that it is the most mischievous pedantry to insist on a literal compliance with a rule when such compliance would increase the probability of a collision. Now, the position of the Joan was this : She was making, probably as fast as she could, though she had perhaps not acquired full headway, for what we think was a proper way of entering the South channel. She saw the Cutch coming down on her port bow, probably not quite so fast as herself, but yet fast. She would say : " The Cutch has, under Art. 16, to keep out of my way ; she will probably slacken speed, perhaps pass under my stern, though she seems, like myself, to prefer .to make for the North side of the mooring buoys. If I slacken speed, under S. 218, I shall very likely run into her. If she keeps on as at present and I slacken, I shall certainly run into her, and then I shall be liable for damages ; I should be in default under Art. 22. Much my best plan is to keep my course according to. that Article. ; if the Cutch slows down I shall get abundantly clear." And I am advised that such reasoning is founded on good and careful seamanship. I therefore declare the ship Cutch to be alone in default, and that the Joan was not in any default, and 241/2'
372 EXCHEQUER COURT REPORTS. [VOL. III. 1893 there will be the consequent condemnation in damages TEE ESQUI- and costs. I refer it to the Registrar and Merchants to MALT AND NANAIMO ascertain the amount of damage. RAILWAY I cannot conclude without some observations as to COMPANY v. the very serious consequences of allowing several TE SHIP steamers to leave the wharfs, especially in narrow waters, at the same hour. In time of war, when two Reasons For belligerents are in a neutral harbour, they are never Judg ment. permitted to leave together ; nor, I believe, until a period of 24 hours has elapsed after the sailing of the first. In the present case the Cutch and the City of 1lTanaimo are not in one sense belligerents. They do not fire red-hot bullets or shells at each other, but they run the manifest risk of inflicting on each other, or on innocent neutrals, as the present case shows, quite as important damage and loss, both of property and life. Two steamers colliding in the Gulf and bursting their steam-chests may settle their differences quite as substantially by going to the bottom with all their cargo and passengers as they could possibly manage it with the most improved projectiles or explosives. And although it was in evidence that these vessels never race--that is forbidden by the Pilot rules—yet it was ingenuously confessed that they never meet without seeing which of them can go the fastest. This the Harbour Master can hardly prevent. But a fine of $200 upon any master who leaves this confined wharfage until some small interval— eight minutes is, according to the present case, far more than is necessary—say five minutes after the other, or even $10 on the wharfinger who throws off a line earlier, might be effective. Judgment accordingly.
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.