VOL. XI.j EXCHEQUER COURT REPORTS. 113 TORONTO ADMIRALTY DISTRICT. THE NEW ONTARIO STEAMSHIP 1907 COMPANY, LIMITED PLAINTIFFS ; June 24. vs. THE MONTREAL TRANSPORTA- TION COMPANY, LIIVII T E D, THE OWNERS OF THE SHIP , DEFENDANTS. WESTMO UNT ........... J Rule of the road—Definition of Fairway--Amendment of Preliminary Act. In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies to thé starboard side of such vessel, and the defendant ship having violated this rule, they were held liable. When the pleadings and the Preliminary Act were at variance and no objection taken before trial, and nobody has been misled by the pleadings an amendment of the pleadings was allowed. .A.CTION in rem for damages for collision between vessels of thé defendants and plaintiffs. The case was tried at Toronto before the . Honourable Thomas Hodgins, Local Judge of the, Toronto Admiralty District, on the 5th, 6th, 10th and 11th days of April, 1907, and written arguments were put in on the 27th and 80th May, 1907. The facts of the case are stated in the reasons for judgment. The arguments of counsel were submitted in writing on the 27th and 31st May, 1907. IIoDGINS, L. J. now (24th June, 1907) delivered judgment. Since the argument of this case I have re-read the evidence which I find to be conflicting in many particulars, 8
114 . EXCHEQUER COURT REPORTS. [VOL. XL 1907 and it has confirmed the impression I formed at the con-THE NEW clusion of the evidence that the plaintiffs were entitled to ONTARIO STEAMSHIP succeed. CO. V. The plaintiff's claim in this case is for damage caused THE to their steamer Neepawah's propeller by the defendant's MONTREAL TRANSPORTA- steamer Westmount, and the main issue is whether the TION CO. defendant's steamer, the Westmount, bumped the plain-Reasons roil J nd~ment. tiffs' steamer, the Neepawah, when passing her in the level between Locks 23 and 24 in the Welland Canal on the night of the 20th October, 1904. The night has been described by several witnesses as a "dark, rainy night ;" and this fact and the conflicting statements of witnesses, so general in Admiralty cases, have increased the difficulty of deciding to which side a preferable credence should be given. But the evidence as to the fact of the bumping of the Westmount on the Veepawah satisfies me that such bump-; ng took place, and that, together with what must have been the resultant pressure of the water on the Neepawah caused by the swing of the Westmount in straightening her course in the middle of the canal so as to enter the lock while passing the Neepawah, caused the Neepawah to swing across the canal as described by several of the witnesses on both sides. See Cadwell y. C. F. Biel-man (1). The Captain of the Neepawah states that he heard the reversing bell of the Westmount, and that her reversing had the effect of turning her against the Neepawah and moving her stern against his boat ; and that he felt something touch his boat and that his boat at once swung out," the stern swinging to the bank, and the bow swinging out into the canal, and that when the stern swung over the bank the two flanges of the propeller wheel were broken by striking the stone side-wall of the canal. (1) 10 Ex. C. R. at p. 156.
VOL. XL] EXCHEQUER COURT REPORTS. 115 The wheelsman Laroche states that he was at the wheel 1907 steering the Neepawah and kept her straight but did not 'PIIE NEW ONTARIO feel the bump, but was sure that. the Westmount had STEAMSHIP struck the Neepawah "because we changed direction in- stantly." • MONTREAL Legault, who was at the stern of the Neepawah with a TRANSPORTA- Tz o l~ Go. fender, states that the Westmount's stern struck the Neep- -Reasons f or awah between the aftermast and the boiler house about five uf t d tejI t. or six feet from the stern of the Neepawah, and shoved her on the bank ,and broke her wheel. • McLeary, one of the defendant's witnesses, states that when the steamers were passing their _ respective sterns were about three feet apart and that he saw the sterns corne together, and that they were coming closer together as they passed. Tracy, a lock tender, an independent witness on shore, states that when the 14 estmount was heading to enter the lock, she was three or four feet away from the Neepawah. ; that the Westmount was about half way past the Neepa-wah when she began to get straightened for dock 28. and that the sides of the after part of the end-of the two boats came nearest together. Captain Milligan, of the Westmount, states that all the time he was straightening the Westmount he was shifting her stern over the centre line; and thàtwhen he was straight for the lock he would necessarily be twenty feet into his port water, and therefore there would not be room for the Neepawah to lie between him and the shore.• And he added that he would let it go " that the Neep-awah had got as far as the centre line,—but not across it,— though he afterwards varied this. The frequent changes of the position of the models made by this witness and his admissions that he was only guessing has affected his credibility. And similar changes of-the position of the models by others of the defendants' witnesses have caused me to hesitate in accepting their fairness in giving evi-1 , I/
116 EXCHEQUER COURT REPORTS. [VOL. XI. 1907 dence. At first some of them placed the models anglewise THE NEAT across the canal but when attention was called to such ONTARIO STEAMSHIP positions, some of them altered the anglewise for another Co. V. position. THE There is another fact which is established by the MONTREAL TRANSPORTA- evidence of the captain of the Westrnount that he corn- TION Co . menced to straighten for the lock before he had passed Reaons for Judgment. the Neepawah, and that he thereby got into the Neepa- wah's water. The rule of the road provides that "in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies to the starboard side of such vessel." The " fairway" mentioned in this rule has been defined by Bargrave Dean J., in the Glengarf (1), thug : " A fairway is practically defined by this article to be the midchannel. There is no rule which says that you must keep in the fairway, but the rule says you must keep to the starboard side of the fairway or midchannel in narrow channels." Ile water-width of the canal between locks 23 and 24 is 108 feet; the West-mount's beam is 43 feet and the Neepawah's beam is 41 feet. But the Westmount began to straighten her course and thereby to get out of her starboard water and into the Neepawah's water before she had passed the Neepawah, and thus violated this rule of the road. I must also find that the Westmount further failed .to observe the rules of the road which direct crossing steam vessels to " keep out of the way of the other." These violations of the rules of the road led to the bumping of the stern of the Neepawah, which I find was the primary cause of the propeller wheel of the Neepawah striking the boom or wall of the canal and breaking two of its blades. The defence raises an objection to the plaintiffs' preliminary act in that article 13 states that " the parts of (1) [1905] P. 106.
VOL. XI.] EXCHEQUER COURT REPORTS. 117 each ship which first came into collision were the port bow 1907 of the Westmount and the port quarter of the Neepawah THE NEW abreast of the kitchen." The plaintiffs' statement of S EAMSHIP claim alleges substantially the same that the Westmount vo. sheered on the Neepawah and struck her on the port side moTT . abreast of the kitchen, and forced her stern against the TRANSPORTA- boom along the stone wall * * * by reason thereof TION CO. the Neepawah's screw camein contact with the said boom a eui. and two of her propeller blades were broken." The rule of practice is that no mistake in the preli- minary act can be amended unless an application to amend is made before trial (1). But in the Frankland (2), Sir Robert Phillimore, while_ refusing to allow the preli- minary act to be amended . allowed an amendment of the pleadings— adding that it would be competent to counsel " to comment on the discrepancy between the pleading and the preliminary act." And in the Miranda (3), the same learned judge said : " The parties in an action of damages are not bound in their pleadings to repeat any errors or omissions which may exist in their preliminary act ; and it is open to them in their statement of claim, or 'statement of defence to state correctly any facts which may have been omitted, or erroneously stated in their preliminary act." Apparently from these decisions ,the only penalty for errors and omissions in the preliminary act is that they may be "commented upon by counsel." But they could be amended if an early application for leave to amend bad been made. In the Dictator (4), the court allowed an amendment of the writ by increasing the amount of the claim after judgment ; and the plaintiffs were subsequently allowed to sue out execution for the increased amount allowed by the amendment of the writ. (1) Vortigern, Swab. 518. (3) [1882] 7 P. D.185. (2) [1872] L. R. 3 A. & E. 511. (4) [1892] P. 64, 304.
118 EXCHEQUER COURT REPORTS. [VOL. XL 1907 But in the Alice and .Rosita (1), the rule that a party TILE NEW seeking redress for an injury can only recover "secundum ONTARIO STEAMSHIP allegata et probata" was held to apply only to cases Co. v. where the averments alleged in the pleadings were THE material to the issue. While I must find that the state- M ONTREAL TRANSPORTA- ment of claim incorrectly states the locality of the collision TION Co. between the two steamers, I think the statement of u ne for Jund gment. defence is rather helpful in determining the locality of the bumping by stating that " the Neepawah's bow, being light, fell out from the bank and across the canal astern • of the Westmount as the latter passed." The Westmount was in her own proper water and at a considerable dis. tance from the point (i.e. the bow) where the alleged impact of the vessel is said by the plaintiffs to have taken place. This pleading, I think, indicates the locality more fairly than the plaintiffi3, that the impact was not near the bows of the two vessels but somewhere near their sterns—which the evidence warrants me in finding. And as the plaintiffs' pleading has not apparently misled the defendants, and as the points as to the preliminary act and pleadings were not taken at the opening, or early in the case, I think the plaintiffs may have leave to amend their pleading, as it seems the defendants have not been prejudiced. After the amendment the decree will be for a reference to the Registrar to ast3ess the damages and to tax the plaintiffs their costs of the action and reference.* (1) [1868] L. R. 2 P. C. 214. * REPORTER'S T OTE--. This judgment was reversed on appeal to the Supreme Court. (40 S.C.R. 1G0).
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.