Porto Seguro Companhia de Seguros Gerais v. Belcan S.A.
T-2057-85
Tremblay-Lamer J.
19/6/94
26 pp.
Action for damages to cargo arising out of collision between two ships -- Plaintiff, insurer of cargo, seeking to recover indemnity paid to cargo owner, costs of salvage -- Pinto beans loaded aboard Beograd in U.S. for carriage to Brazil -- Federal Danube anchored in authorized anchorage area close to designated navigable area below Lower Beauharnois Lock -- Beograd exiting from lock and proceeding on course which would have it pass to south of Federal Danube -- Minutes before collision Federal Danube commencing to heave anchor, causing it to veer uncontrollably to port and bringing it into contact with Beograd -- Water damage to cargo in holds -- Cargo sold on salvage market in Montréal -- Plaintiffs alleging violations of Seaway Collision Regulations as defendants failing to report exact location when anchored; proceeding with heaving anchor before letting Beograd pass; failing to call Beograd to discover its intentions and to inform it of its readiness to heave anchor; failing to take appropriate evasive action; failing to use bow thruster; failing to maintain proper lookout -- Maintaining since insurance policy issued in Brazil, law of that country should govern question of subrogation and therefore entitled to bring action in own name -- Defendants submitting Canadian common law must apply and therefore action should have been commenced in name of insured -- Action dismissed -- (1) Importer owner of cargo -- (2) Subrogation not part of substantive maritime law, and therefore under provincial jurisdiction -- As cause of action arising in Quebec, law thereof applying -- Whether law of Brazil or Quebec applying, to extent of indemnity, insurer subrogated to rights of insured against third persons who have caused harm and can institute proceedings in own name -- (3) Insurer proper plaintiff although 98.6% of indemnity payment made by Institute of Reinsurance of Brazil -- Contract of reinsurance between IRB and insurer not conferring right of recovery against third party defendants -- (4) Pilot aboard Beograd demonstrating several instances of poor seamanship by passing through designated anchorage area at full ahead; by passing close ahead of anchored vessel which was stemming a current when he could quite safely have passed astern; by undertaking insufficient course corrections in light of current; by interfering with vessel in process of weighing anchor whose manoeuvring capability reduced -- Position of Federal Danube may have changed over ground to limited extent due to shortening of anchor chain, but slight change of position not perceptible from Beograd being navigated by eye -- That Federal Danube stemming current and swinging to port due to heaving of anchor may have given pilot and captain of Beograd impression moving -- Such misperception stemming from movement of Beograd itself -- Federal Danube anchored at time of collision -- Seaway Regulations, s. 83 requiring vessel anchoring in designated anchorage area to report position, but not specifying must call in exact coordinates -- Beograd's negligence sole cause of accident -- Pilot's decision to proceed through anchorage area at full speed and failure to compensate for current cause of collision -- Federal Danube anchored in designated anchorage area, and entitled to assume passing vessels would regard it as unable to move and give it a wide berth -- Cannot be blamed for not taking evasive action as still immobilized -- Proceeding to weigh anchor in seamanlike manner -- Not yet reaching stage where Collision Regulations for vessel under way would apply -- Not obliged to notify Beograd weighing anchor as already having permission from Seaway authorities to do so -- Master and crew of Federal Danube committing no error attracting liability -- Onus on ship under way to choose safe route and avoid ship at anchor -- Civil Code of Lower Canada, art. 2576 -- Seaway Regulations, C.R.C., c. 1397, s. 83 -- Collision Regulations, C.R.C., c. 1416.