MARITIME LAW |
Torts |
Gravel and Lake Services Ltd. v. Lake Charles (The)
T-1063-96
2001 FCT 468, Lemieux J.
11/5/01
49 pp.
Action for damages by plaintiff, owner of two tugs Robert John and George N. Carleton, against defendants, ocean-going bulk carrier M/V Lake Charles and its owners and managers--Plaintiff alleging while two tugs hooked up to Lake Charles in port of Thunder Bay on May 1, 1996, Lake Charles negligently drifted into Robert John, squeezing it on southern bank of Kaministiquia River--Tug continued servicing ships on May 2 and 3--In second incident involving another vessel, on May 4, 1996, Robert John grounded--Issues whether any accident occurred on May 1; whose fault; what damages; whether plaintiff's terms and conditions contained in its Tariff entitle it to indemnity and contribution--Action allowed in part--Hamilton Marine & Engineering Ltd. v. CSL Group Inc. (1995), 95 F.T.R. 161 (F.C.T.D.) comprehensively reviewed principles governing law of tug and tow: in determining duties and obligations between tug and tow, important to determine which in control; tug must show competent skill; duty of tug to look out for itself and tow; positive duty on tow not to increase tug's difficulties by any act or omission on its part; in contracts of towage, law will imply proper skill and diligence must be exercised in performance of contract--As to damages, burden of proof Lake Charles responsible for damages sustained by Robert John resting on plaintiff; no event amounting to novus actus interveniens must have intervened between defendants' fault and plaintiff's damage; burden of proving novus actus interveniens lying on defendants--On evidence, Robert John grounded by Lake Charles on May 1, 1996--Both Robert John and Lake Charles at fault in manoeuver leading to tug's grounding--Major element their failure to account for wind and current--Fault apportioned at 75% to Lake Charles and 25% to Robert John--Damages assessed at $177,846--Therefore, plaintiff awarded $133,384.50 in damages, plus GST where applicable, representing 75% of assessed damages, as well as pre-judgment interest from May 1, 1996 to date of judgment and payment--Each party to bear its own costs as success equally divided--On evidence, insufficient factual basis to bind owner and managers of Lake Charles with plaintiff's indemnity clause (owners and managers cannot be bound by terms of towage contract plaintiff performed as requested by charterer's agent; could only be bound by those terms if they agreed either expressly or constructively with them)--Charterer had no authority to bind owners with indemnity clause; hiring of tugs charterer's undertaking and not that of owners and managers of Lake Charles.