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Olaf Angell & Erling Johansen (Plaintiffs) v.
The Ship Oceanic Peace, Associated Bulk Carri ers Inc. (Defendants)
Trial Division, Collier J.—Vancouver, B.C., June 19; Ottawa, July 6, 1972.
Maritime law—Practice and procedure—Passing ship cuts cable of fishing vessel—No "collision between vessels"— Preliminary acts not required—Federal Court Rule 1013.
The Oceanic Peace, a deep sea cargo vessel, passed the fishing vessel Baron close astern severing the cable con necting the Baron's trawl net. The Baron's owners brought action for damages and filed a preliminary act pursuant to Rule 1013.
Held, granting defendants' motion to dispense with the filing of preliminary acts, Rule 1013 did not apply. There was no "collision between vessels" as required by the Rule.
Bennett Steamship Co. v. Hull Mutual Steamship Pro tecting Society Ltd. [1913] 3 K.B. 372, applied.
MOTION by defendant owners.
James T. Rust for plaintiffs.
V. Hill, Q.C. for defendants.
COLLIER J.—This is a motion by the defend ant owners of the Oceanic Peace for an order dispensing with the filing of preliminary acts in this action as "inappropriate to the litigation" and for particulars of the negligence alleged against the defendant in paragraph 6 of the statement of claim. It is necessary to set out the facts in order to appreciate the point involved.
The plaintiffs are the owners of the Baron, a fishing vessel. The Oceanic Peace is a deep sea cargo vessel. On July 29, 1970, the Baron was fishing off Cape Flattery in the State of Wash- ington. She had her trawl net out and in the statement of claim it is alleged she was display ing the proper fishing signals. The Oceanic Peace, apparently bound for Vancouver, is alleged to have snagged the trawl cable connect ing the net to the Baron and severed it. It is further alleged the trawl net was lost. I point
out there was no collision or impact between the Oceanic Peace and the Baron except to the extent I have described.
The owners of the Baron commenced action claiming damages, presumably for the loss of the net and, I suppose, further consequential damages. Paragraph 5 of the statement of claim is as follows:
5. At approximately 0900 on or about the 29th day of July, 1970, the fishing vessel "BARON" was engaged in fishing approximately 55 miles off Cape Flattery. The "BARON" was dragging 300 fathoms of trawl net and was displaying the proper fishing signals. The "OCEANIC PEACE" appeared at approximately 0845 on a Westerly course, and approached the "BARON" without altering course. The "BARON" blew its whistle and shortly thereaf ter, the "OCEANIC PEACE" altered course to port and passed the "BARON" close aboard off the "BARON"'s stern severing the line connecting the trawl net to the "BARON". The net was lost and the "BARON" was unable to continue fishing.
The plaintiffs have filed a preliminary act purportedly pursuant to Rule 1013 of the Rules of Court.
The relevant words in Rule 1013 are "In an action for damage by collision between vessels ..." and the Rule then goes on to require (speaking generally) the filing of a "Preliminary Act". Counsel for the defendant contends, on this motion, there was no collision between vessels, but at most a collision between a vessel, the Oceanic Peace and another object, in this case a steel cable connected to a trawl net. Therefore it is not a case where preliminary acts should be filed. Counsel for the plaintiffs, on the other hand, takes the position that the cable and net were, because of the character of the Baron as a fishing vessel, an essential part of that vessel. Therefore there was, from a practical point of view, a collision between vessels.
Counsel for the plaintiffs relied, in support of his argument, on Re Margetts [1901] 2 K.B. 792 where there was a collision with an anchor by which a ship was moored. That was held to be a collision with a ship.
Reliance was also placed on The Niobe [1891] A.C. 401 where it was held there was a collision between ships. That was based on the theory of a tug and tow being one ship.
I was referred to Bennett Steamship Co. v. Hull Mutual Steamship Protecting Society Ltd. [1913] 3 K.B. 372 by counsel for the defend ants. In that case a steamer fouled the nets of a fishing vessel. The nets were about a mile or more from the vessel itself. The hull of the steamer did not at any time come in contact with the hull of the fishing vessel. The facts are obviously very similar to the facts in the present case. The question before Pickford J. was whether there was a collision within the meaning of a clause in a Lloyd's policy. The clause read:
And it is further agreed that if the ship hereby insured shall come into collision with any other ship or vessel and the assured shall in consequence thereof become liable to pay and shall pay by way of damages to any other person or persons any sum or sums not exceeding in respect of any one such collision the value of the ship herein insured this company will pay the assured such proportion of three- fourths of such sum or sums so paid as its subscription hereto bears to the value of the ship hereby insured.
Pickford J. said at p. 376:
The question is whether in the circumstances of this case there was a "collision with any other ship or vessel" within the meaning of the collision clause attached to the usual form of Lloyd's policy. The plaintiffs under the provision contained in the defendant society's rules are entitled to recover if the ship insured comes into collision with any other ship or vessel and the claims for losses, damages, or expenses arising from or consequent upon the collision are not recoverable under the Lloyd's policy clause. The cir cumstances are stated in paragraph 1 of the special case. (Having read the paragraph, the learned judge continued:) It is perfectly clear that as a matter of ordinary language no one would say that the Burma came into collision with another ship or vessel. If any one were asked, apart from decided cases, whether to run into a net at a distance of a mile from the ship, the ship being attached to the other end of the net, was running into the ship, I do not suppose he would hesitate to reply in the same sense as that which Lord Bramwell expressed in giving judgment in The Niobe ([1891] A.C. 401), namely, that as a matter of ordinary English she did nothing of the sort.
He then went on to deal with the Margetts and the Niobe cases and said at pp. 377-8:
... Another case is In re Margetts and Ocean Accident and Guarantee Corporation ([1901] 2 K.B. 792). In that case the collision was with an anchor by which a ship was moored, and that was held to be a collision with the ship. That may be going rather further possibly than The Niobe ([1891] A.C. 401). It may perhaps very well be said that the anchor which is used for the purpose of mooring a ship and is necessary for its navigation, and without which she could not prudently put to sea (to use, in effect, the words of Wills J. in In re Salmon and Woods, 2 Morr. 137), is a part of the ship; but it does not seem to me that there is any principle laid down in those authorities which obliges me to extend them still further, and to hold that the end of a net— to which the ship is not necessarily always attached, because she leaves it from time to time—a mile away from the ship is a part of the ship, or that a collision with the end of that net is a collision with the ship. It may be that the principle upon which those cases were decided (whatever it may be) ought to be held to extend the meaning of the words used in the judgments to the circumstances of the present case, but I am unable to see anything which com pels me to so hold, and such an extension must be made by the Court of Appeal if it is to be made.
He found there was no collision within the meaning of the clause.
I do not think that the distinctions made on the facts by counsel for the plaintiffs, that is, the net in the Bennett case was not always attached to the ship, the net was a mile long and the collision occurred with the seaward end of the net, are sound distinctions.
I respectfully agree with the reasoning of Pickford J. and hold in this case there was no "collision between vessels" within the meaning of Rule 1013.
I therefore order that preliminary acts are inappropriate to this action and should not be filed.
I further order that particulars of negligence be furnished to the defendants by July 20, 1972, and that the time for filing the defence be extended to August 3, 1972.
If there is any difficulty with these time limits, liberty is given to either side to apply.
The defendants are entitled to their costs of this motion in any event of the cause.
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