A-110-72
The Ships Kathy K (also known as Storm Point)
and S.N. No. 1, Egmont Towing & Sorting Ltd.,
Shields Navigation Ltd., Leonard David Helsing
and James Iverson (Appellants) (Defendants)
v.
Marjorie Hexter Stein, for herself and as the
widow of Charles Simenon Stein, deceased, and as
a co-executrix of the estate of the said deceased,
and Maurice Schwarz and William I. Stein, co-
executors of the said estate (Respondents)
(Plaintiffs)
Court of Appeal, Jackett C.J., Thurlow and
Pratte JJ.—Vancouver, May 6-10, 13 and 17,
1974.
Shipping accident—Collision between sailboat and barge
towed by tug—Apportionment of liability—Sailboat solely
liable—Canada Shipping Act, R.S.C. 1970, c. S-9, s. 635
and Collision Regulations, Rules 20-24, 26-29, ss. 638, 639,
647 et seq., 718-726—National Harbours Board Act, R.S.C.
1970, c. N-8, s. 14 and Regs., ss. 25(1), 35(1), 37(1).
The tug Kathy K, of which the appellant (defendant)
Helsing was captain and the appellant (defendant) Iverson
was deckhand, was engaged in towing the unmanned barge
S.N. No. 1 in English Bay of Vancouver Harbour when a
collision occurred between the barge and a sailboat manned
by the deceased Charles Simenon Stein and his son, aged 16.
The elder Stein lost his life in the collision. Action was
brought by the executors of the deceased Stein against the
appellants (defendants) for damages, on behalf of the
deceased's wife and children, under Part XIX of the Canada
Shipping Act. The Trial Judge apportioned the liability 75
per cent to the defendants' tug and 25 per cent to the
sailboat of the deceased. The defendants appealed.
Held, (Thurlow J. dissenting) the appeal is allowed. The
negligence of the deceased and his son in handling the
sailboat was solely to blame for the collision and the action
should be dismissed. The priority of a sailing vessel over a
power-driven vessel, in terms of the Collision Regulations,
Rules 20(a) and 21, even if applicable, does not operate to
determine civil liability. Neither the tug nor the sailboat was
navigating on the basis of the Rules. Moreover, the priority
is inapplicable, because Rule 27 makes it subject to the
circumstances. Here, it would have been improper naviga
tion for a 16' sailboat, which is highly manoeuvrable, to put
a large commercial craft (such as a tug and tow) that is
difficult to manoeuvre, in a position where the large
unmanoeuvrable craft would be faced with a duty to "keep
out of the way", of the sailboat in the manner contemplated
by Rules 20(a) and 21. Once the confusion caused by the
consideration of Rule 20(a) is eliminated, the conclusion is
reached that the collision resulted from a complete failure
on the part of those in the sailboat to keep any look-out as
to where they were going. Rule 29 provides that nothing in
the Rules shall exonerate any vessel from "the consequence
of any neglect to keep a proper look-out."
The question whether apportionment, on the basis of
contributory negligence, was applicable under section 638 of
the Canada Shipping Act, on which the parties relied, or
whether it was rendered inapplicable to a claim for loss of
life under section 639(2) was a decision unnecessary to
consider in view of the finding that the deceased was wholly
to blame.
Per Thurlow J. (dissenting): The finding of the Trial Judge,
that a cause of the collision was the failure of those on
board the sailboat to keep a proper look-out and to take
earlier action to avoid colliding with the tug and barge,
should be affirmed. But there was also fault on the part of
those operating the tug and barge who contributed to the
collision. By letting out too much towline and proceeding
too fast, the defendant Helsing had so incapacitated himself
from controlling the barge and bringing it to a stop within a
reasonable distance, that when the prospect of a possible
collision arose, he could not take effective action. The Trial
Judge's finding of liability should be varied by assessing 50
per cent to the sailboat and 50 per cent to the tug.
H.M.S. Sans Pareil [1900] P. 267; The Lionel v. Man-
chester Merchant [1970] S.C.R. 538; SS. Cape Breton v.
Richelieu and Ontario Navigation Co. (1905) 36 S.C.R.
564; S.S. Devonshire (Owners) v. Barge Leslie (Owners)
[1912] A.C. 634; Sparrows Point v. Greater Vancouver
Water District [1951] S.C.R. 396; Algoma Central &
Hudson Bay Ry. Co. v. Manitoba Pool Elevators Ltd.
[1964] Ex.C.R. 505, considered.
APPEAL.
COUNSEL:
D. B. Smith and W. Esson for appellants.
J. R. Cunningham for respondents.
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
appellants.
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for respondents.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a
judgment of the Trial Division holding in effect
that the appellant S.N. No. 1, a barge, and the
appellant Kathy K, a tug, were 75 per cent.
responsible for the death of Charles Simmon
Stein resulting from a collision in Vancouver
Harbour between the barge and a sailing boat
operated by Stein and his sixteen-year-old son.
The judgment of the Trial Division (in an
Admiralty action under the fatal accident provi
sions of the Canada Shipping Act (Part XIX)
and a counterclaim to limit liability under sec
tions 647 et seq. of that Act), in addition to
holding the tug and barge, on the one hand, and
the sailing boat, on the other hand, responsible
for the collision in the proportions of 75 per
cent. to 25 per cent., held
(a) that the owner and operator of the tug and
barge were not entitled to limit their liability,
and
(b) that the defendant Helsing, who was in
command of the tug, could limit his liability
on the basis of a limitation tonnage of 600
tons,
and referred the amount of the damages to a
referee. 1
The appeal attacked the finding concerning
responsibility for the collision, the finding that
the owner and operator could not limit liability
and the finding that the defendant Helsing could
The form of the judgment is explained by a paragraph in
the reasons of the learned Trial Judge [[1972] F.C. 585],
reading as follows [at page 586]:
Counsel for all parties agreed at the trial that the trial
evidence be restricted to the issues as to (1) liability for
the collision and (2) as to whether the defendants are
entitled to limit liability under the Canada Shipping Act.
Counsel also agreed that it should be left for a subsequent
hearing to (1) assess the damages to which the plaintiffs
are entitled and, if a decree limiting liability is granted, (2)
to decide the equivalent value in Canadian funds of a
"gold franc" as defined in the Canada Shipping Act.
Presumably other facts, such as the fact that Stein's death
was caused by the collision, were not in issue by the time of
the trial. The basis of the liability of the owner of the tug
and barge is not apparent but there is no issue with regard
thereto on the appeal and there does not appear to have
been any such issue at trial.
limit on the basis of a limitation tonnage of 600
tons instead of a tonnage of 300 tons. 2
During the course of argument on the ques
tion as to whether responsibility was properly
apportioned, reference was made to section 638
of the Canada Shipping Act, on which both
parties relied for any such apportionment, and
this brought out the fact that that provision does
not apply to a claim in respect of loss of life,
which class of claim would appear to be gov
erned by section 639, subsection (2) of which
would appear to preserve defences otherwise
available. Superficial reference to such cases as
S.S. Devonshire (Owners) v. Barge Leslie
(Owners), 3 Sparrows Point v. Greater Vancouver
Water District 4 and Algoma Central & Hudson
Bay Ry. Co. v. Manitoba Pool Elevators Ltd. 5
raises the possibility that, on the Trial Judge's
findings of fault in this case, the action should
have been dismissed by reason of contributory
negligence of the deceased. 6 In my view, how
ever, and this was communicated to counsel at
the end of the argument, if our conclusions on
the points that were argued make it necessary to
decide this question, the parties should have an
opportunity to make submissions in writing with
regard thereto.
2 The Court intimated at the end of argument for the
appellants that it did not require to hear counsel for the
respondent on the third point.
[1912] A.C. 634.
4 [1951] S.C.R. 396, per Rand J. at p. 411.
5 [1964] Ex.C.R. 505, per Wells D.J.A. at pp. 518-19.
6 Compare section 719 of the Canada Shipping Act,
which confers the right of action in respect of loss of life
"against the same defendants against whom the deceased
would have been entitled to maintain an action in the
Admiralty Court". Attention might particularly be drawn to
the reasons of Lord Atkinson in the S.S. Devonshire case,
where he said at pp. 650-51:
The point upon which controversy arises between the
parties is as to how these particular instances are to be
regarded, and what is the conclusion to be deduced from
them. Counsel on behalf of the appellants contend that
they are but applications of an old and general principle of
admiralty law, differing altogether from the principle of
the common law, that there is to be contribution between
tortfeasors, and that each delinquent is only to be mulcted
according to the degree of his culpability for the joint
wrong; that for convenience in practice the damages have
been divided into equal moieties, but that the principle
I turn now to the questions that were argued.
The first question to be decided is whether
the collision that took place between the 30' by
80' appellant barge and the 16P Stein sailing
boat on June 27, 1970 was caused by the fault
of the Master of the 15' by 49' appellant tug, by
the fault of those operating the sailing boat, or
by the fault of both.
Any attempt to trace with precision the
respective courses and speeds of the tug (with
its barge) and the sailing boat in relation to each
other and to determine with precision what
steps were taken at particular points of time on
the respective vessels is doomed to failure
having regard to the state of the evidence. I,
accordingly, limit myself to a statement in gen
eral terms of what, as I appreciate it on the
balance of probability, did happen. When I refer
to a specific speed or other fact in mathematical
terms, I will use the mathematical term general
ly used in the evidence without in any way
basing my conclusions on its being anything
more than an extremely rough approximation.
Immediately prior to the manoeuvres that led
to the collision, the tug and barge had emerged
into English Bay from False Creek with the
barge close-hauled to the tug, the line between
the two had been let out to 150' and their speed
had been increased to 7 to 71 knots as they
proceeded along the fairway marked out on the
above mentioned is the true origin of the limitation of
damages as practised; while on the other hand counsel for
the respondents contend that these instances are merely
exceptions to the general rule or principle of law, common
to Courts both of common law and admiralty, that there is
not to be contribution between joint tortfeasors, and that
each is liable for the entire damages inflicted on an
innocent person by their joint wrong.
and at page 657:
... I think the contention of the respondents is right, that
the cases relied upon by the appellants as applications of
the alleged principle of admiralty law for which they
contend are in truth special exceptions from the general
rule enforced in the Courts of Common Law and Admiral
ty alike, namely, that there is to be no contribution
between tortfeasors, that all these exceptions are covered,
protected, and perpetuated by s. 25, sub-s. 9, of the
Judicature Act of 1873.
chart from False Creek in the general direction
of Ferguson Point. The Master of the tug then
observed that one of a number of sailing boats
on his starboard bow had veered off from the
group and was proceeding on what appeared to
be a collision course.'
Immediately prior to the manoeuvres that led
to the collision, the sailing boat was sailing in
company with two similar racing boats in prac
tice manoeuvres and without keeping any look
out ahead, its crew's view ahead being very
substantially blocked by its spinnaker sail. At
about the same time that the tug Master took
special note of the sailing boat, the sailing boat
skipper caught a glimpse of the tug but (inex-
plicably, having regard to the physical arrange
ment of things) did not see the barge. 7
When the tug's Master became conscious of
the sailing boat's potential danger, he made a
15° port turn and started to slow down his tug;
and, when the sailing boat's skipper glimpsed
the tug, he made a 20° port turn.
From the time when the sailing boat's skipper
made that 20° port turn until the moment of
collision, he made no effort to ascertain what
was ahead of him. He was satisfied that he had
avoided the tug without difficulty. He remained
unconscious of the presence of the barge.
Whether the sailing boat continued on the
course resulting from the 20° port turn, as its
skipper testified, or whether, after passing the
tug, it made a turn to starboard to resume its
prior course, as submitted on behalf of the
appellants, is doubtful. In either event, within
two or three minutes from making the 20° port
turn, the sailing boat found itself between the
7 While the learned Trial Judge states that the tugboat
Master says that one of the sailboats appeared to veer off
and to proceed in his general direction "when it was about
4/10 mile away", the point was explored in the course of the
argument of the appeal and no evidence was found that the
sailing boat was on a collision course for any substantial
time before it made its 20° port turn. It also appeared, from
a scrutiny of the evidence, that the sailing boat had made a
prior alteration toward the wind, which presumably brought
it on to the collision course.
tug and the barge where it collided with the
barge near the centre of the front of the barge.
(According to the appellants' submissions, the
collision took place after the sailing boat had
made a further panicky turn to port.)
It must be emphasized that those on the sail
ing boat never saw the barge before they found
themselves between the tug and the barge in
such a plight that collision was inevitable—and
this notwithstanding the fact that conditions
were such that any lookout forward would have
brought the barge's presence very forcibly to
their attention.
By the time of the collision, the speed of the
barge had been slowed down very substantially
as appears from the fact that the sailing boat
skipper, after being thrown out, only had to
swim 10 to 15 feet to return to his boat and
from the fact that another similar sailing boat
was able to sail all the way around the barge
very shortly after the collision.
The evidence is that the sailing boat was
about 1000' from the tug when it made its 20°
port turn. The sailing boat's skipper estimated
_his speed before that turn at 3 knots and his
speed after that turn at 2 knots. Like all the
other approximations, these estimates must be
regarded as subject to large allowances for
error.
What I have summarized represents, in my
view, the salient facts in so far as they bear on
the question of responsibility for the collision.
The determination of that question, in my
view, depends upon what application, if any,
Rule 20(a) of the Collision Regulations has to
that question. Rule 20(a) and Rule 21, with
which it must be read, read, in part, as follows:
Rule 20.
(a) When a power-driven vessel and a sailing vessel are
proceeding in such directions as to involve risk of collision,
except as provided for in Rules 24 and 26, the power-driven
vessel shall keep out of the way of the sailing vessel.
Rule 21.
Where by any of these Rules one of two vessels is to keep
out of the way, the other shall keep her course and speed.
As it seems to me, the matter may be con
sidered in two stages. In the first place, it may
be considered on the assumption that, properly
construed, Rule 20(a) was applicable in the cir
cumstances of this case. In my view, even on
that assumption, it does not operate to deter
mine the question of civil liability. In the second
place, it may be considered from the point of
view as to what application, if any, Rule 20(a),
properly construed, has in the circumstances of
this case. In my view, properly construed, Rule
20(a) has no application to the circumstances.
I will first consider the first of these two
approaches.
Rightly or wrongly, neither those on board the
sailing boat, nor the tug Master, were navigating
on the basis of Rule 20(a) and Rule 21. The
sailing boat's skipper testified that it was his
practice to give way to large vessels and the tug
Master, by his testimony, indicated clearly that
he was navigating on the assumption that small
sailing craft would give way to him. Further
more, the sailing boat, somewhat belatedly but
in ample time, did give way to the tug and did
not "keep her course and speed" as she would
have been required to do by Rule 21 if she had
been navigating on the basis that Rule 20(a) and
Rule 21 were applicable in the circumstances. 8
8 I am of the view that it would have been "improper
navigation" for a 16' sailing boat, which is highly manoeuvr
able, to put a large commercial craft that is difficult to
manoeuvre (such as a tug and tow) in a position where the
large unmanoeuvrable craft would be faced with a duty to
"keep out of the way" of the 16' sailing craft in the manner
contemplated by Rule 20(a) and Rule 21 even if Rule 20(a)
properly construed applied in the circumstances. Rule 27
would come into play in such circumstances. It reads, in
part:
Rule 27.
In obeying ... these Rules due regard shall be had to all
dangers of navigation and collision, and to any special
circumstances, including the limitations of the craft
involved, which may render a departure from the above
Rules necessary in order to avoid immediate danger.
Compare `H.M.S. Sans Pareil" [1900] P. 267, at pp. 282-83,
and The Lionel v. The Manchester Merchant [1970] S.C.R.
538, per Ritchie J. at pp. 544, et seq.
In my view, therefore, Rule 20(a) cannot be
resorted to to determine responsibility for this
collision. 9
Once the confusion caused by consideration
of Rule 20(a) is eliminated, the matter, in my
view, becomes relatively simple. The collision
was the result of a complete failure on the part
of those in the sailing boat to keep any lookout
as to where they were going. Had they kept any
reasonably adequate lookout, they would have
become aware of the presence of the barge at
the same time that they became aware of the
presence of the tug. Had they been aware of the
presence of the barge and if the 20° port turn
was not adequate to miss the barge, steps to
avoid it could have been taken, during the time
taken to traverse the approximately 1000' that
had to be traversed by the approaching vessels,
even if it had been necessary to turn the sailing
boat into the wind so as to bring it to a stop until
the barge passed by. If, on the other hand, the
20° port turn was adequate to miss the barge
and the collision was caused, as contended for
the appellants, by a subsequent starboard turn
back to course, a knowledge of the presence of
the barge that would have resulted from any
reasonable lookout ahead would have avoided
any such foolhardy conduct. 10
9 That being so, it follows, in my view, that the various
findings of fault that were only "causative" of the collision
on the view that they had resulted in the tug having
incapacitated itself from complying with Rule 20(a) also
become irrelevant. I refer particularly to the learned Trial
Judge's findings that the tug was going too fast and had let
out too much line too soon.
10 The faults found by the learned Trial Judge that might
have some bearing on the events at the critical stage have
not, in my view, been shown to be "causative" of the
collision. Even if some whistle signal or other noise had
been emitted by the tug at that stage, there is not, in my
view, a balance of probability that it would have awakened
those on the sailing boat to the presence of the barge, which
was 150 feet away, in time to avoid the collision. That five
blasts on the tug's whistle when the vessels were more than
1000 feet apart (i.e., just before the sailing boat skipper saw
the tug) would have caused the boat crew to look at the
barge as well as at the tug would seem to be merely
conjectural and against the balance of probability.
For the above reasons, my view is that the
collision was caused by the fault of those oper
ating the sailing boat.
Having reached the conclusion that the colli
sion was caused by the fault of those operating
the sailing boat on the basis that the two vessels
were not being navigated with reference to the
rules contained in Rules 20(a) and 21 and that,
regardless of the technical effect of Rule 20(a),
application of the Rule to determine fault
between the parties for purposes of civil liability
would be unrealistic, I turn to consideration of
the matter from the more technical point of
view.
In my opinion, Rule 20(a) must be read with
Rules 27 and 29. I repeat Rule 20(a) for
convenience:
Rule 20.
(a) When a power-driven vessel and a sailing vessel are
proceeding in such directions as to involve risk of collision,
except as provided for in Rules 24 and 26, the power-driven
vessel shall keep out of the way of the sailing vessel.
Rules 27 and 29 read, in part, as follows:
Rule 27.
In ... construing these Rules due regard' shall be had to
all dangers of navigation and collision, and to any special
circumstances, including the limitations of the craft
involved, which may render a departure from the above
Rules necessary in order to avoid immediate danger.
Rule 29.
Nothing in these Rules shall exonerate any vessel, or the
owner, master or crew thereof, from the consequence of any
neglect to carry lights or signals, or of any neglect to keep a
proper look-out, or of the neglect of any precaution which
may be required by the ordinary practice of seamen, or by
the special circumstances of the case.
In my view, the duty imposed on a power-
driven vessel to "keep out of the way" of a
sailing vessel when the two vessels "are pro
ceeding in such directions as to involve risk of
collision" does not arise when the sailing vessel
has adopted a collision course in relation to the
power-driven vessel's course at a time when it is
not reasonably possible for the power-driven
vessel to keep out of the way of the sailing
vessel. So to construe Rule 20(a) would be
contrary to Rule 27." Regulation 20(a) must be
so interpreted as not to require the power-driv
en vessel to do the impossible, at least when the
sailing vessel has brought about the circum
stances that would otherwise give rise to the
application of the Rule.
As I understand the facts in this case, Rule
20(a), as I interpret it, never applied. While the
time when the sailing boat first started on the
collision course with the tug and tow (which
vessels had been on their course since they
entered English Bay) cannot be determined with
precision, the balance of probability on the evi
dence is that it was shortly before the time
when the tug made its 15° port turn and the
sailing boat made its 20° port turn. That being
so, in my view it is clear on the evidence that,
when the sailing boat first started on the colli
sion course, it was not reasonably possible for
the tug to have brought the barge to a stop so as
to "keep out of the way" of the sailing vessel, it
was obviously impossible for it to "keep out of
the way" by any sort of starboard turn, and,
while what would have happened if it had made
a substantial port turn has not been established,
it has not been established that such a turn
would have resulted in its keeping out of the
way of the sailing boat. 12 In my view, in such
circumstances, it was, for all practical purposes,
impossible, at that time, for the tug to keep out
" Compare The American Law of Collision by John
Wheeler Griffin (1949) at page 390 where he says:
... The steamer's obligation to keep out of the way
means, of course, merely that she must take all proper
measures to do so. She is not an insurer. If she has kept a
good lookout, she is not liable for failure to go clear of a
sailing vessel which appears so suddenly that it is not
possible for the steamer to avoid her, provided, of course,
that her appearance was not to have been anticipated ...;
nor is the steamer obliged to take action at a time when
the course of the sailing vessel does not involve risk of
collision ... .
12 In addition, it is probable that any such radical change
of course to port at the speed of the tug and barge would
have created a dangerous situation for other craft even
though the area was "fairly clear".
of the way of the sailing boat and the require
ment of Rule 20(a) never came into play.
On the other hand, in my view, what turned a
perfectly safe situation into a potentially dan
gerous situation was the act of the sailing boat
crew when it put the sailing boat on a collision
course with the tug at a time when the two
vessels were so close that the tug could not, by
any normal manoeuvre, 13 keep out of her way.
Clearly, such an act, if done deliberately,
involved neglect of a precaution required by
"the ordinary practice of seamen" and by "the
special circumstances of the case". In this case,
it would appear to have been rather the direct
result of "neglect to keep a proper lookout". In
either event, the sailing vessel crew is preclud
ed, by Rule 29, from relying on Rule 20(a) to
exonerate them, in whole or in part, from the
consequences of such neglect, which was the
sole immediate cause of the collision.
The question remains as to whether the pres
ence in the Bay, at the time that the tug entered,
of a number of small sailing boats, imposed on
the tug a duty of proceeding through the Bay in
a manner different from that that would, other
wise, be quite proper. To be more specific,
while there seems to be no doubt that, if there
had been no sailing vessels in the Bay, it would
have been perfectly proper for the tug to let out
its line 150 feet and accelerate to full speed, we
are asked to hold that, because of the presence
of small sailing craft in the Bay, letting out the
line and increasing speed were faults that were
"causative" of the collision. 14
13 As appears from the learned Trial Judge's judgment,
Captain Greenfield has testified that you could stop the
barge "if you were close-hauled at a speed of 2 or 3 knots"
but "With 150 feet out, there is no way you could stop".
14 In my view, the position as seen by the tug boat Master
before he let out his line and accelerated is indicated by the
following portions of his evidence:
Once it is recognized that, at the time the tug
let out line and accelerated, none of the craft in
the Bay were operating on collision courses
with the tug, the only basis on which it can be
said that the presence of the small sailing boats
in the Bay imposed on the tug a duty to main
tain a capacity to stop suddenly is that there
was an obligation on her to be in a position to
avoid dangers that such a boat might create by
bad navigation. In my view a tug with a tow,
just like any other vessel in the harbour, is
entitled to navigate on the assumption that other
Q. My question is a little confusing. What did you see at
the spit with relation to traffic beyond that or no
traffic?
A. Traffic cleared considerably then, especially on the
course that I would be going on or be concerned with
except my starboard hand side there was a concentra
tion of sailboats anywhere from there and English Bay
towards Second Beach.
Q. And did you see any other traffic at that time?
A. There was other traffic possibly, but from my course
and to my port, there weren't as many. There was
some but none that were—that I felt would interfere
with my progress there.
THE COURT: ... Cast back and use whatever you need—
use the dividers but please tell me as close as you can
how far that congestion of sailboats was when you
first saw them.
A. I shall take reference—not seeing the circle on this
chart but knowing approximately where it is to the
point I'm showing on this chart, what portion it would
touch I don't know, 51 cables.
On my reading of this evidence, making allowances for
verbal imprecisions, the Master said that traffic had, before
he accelerated, cleared on the course that he would be going
on or be concerned with except that, on his starboard side,
there was «a concentration of sailboats» about 51 cables
away "towards Second Beach" and, to his port side, there
were some other traffic but none to interfere with him. In
my view, when this evidence is read with reference to the
charts that are in evidence, it discloses no reason why a
reasonably careful navigator should not go at a good speed.
Furthermore, I do not find in the remainder of the evidence
any testimony that makes any change in the picture so
disclosed. In particular, I find no evidence that the Bay was
"congested" but only that there was a "concentration" of
small boats over towards Second Beach. Evidence of the
fact that the Bay was usually congested on weekends is, to
my mind, irrelevant. The question was what the conditions
were in the Bay on the occasion in question.
vessels are going to navigate in accordance with
the law and the dictates of good seamanship.
Compare SS. Cape Breton v. Richelieu and
Ontario Navigation Co. 15 per the Chief Justice
at page 574. The faults found against the tug
that were regarded as "causative" of the colli
sion because they disabled the tug from stop
ping to avoid the dangerous situation created by
the sailing boat are, as it seems to me, based on
an unjustified implication from Rule 20(a). In
my view, Rule 20(a) does not impose an abso
lute duty to "keep out of the way" regardless of
how the collision courses arise. That being so, it
can give rise to no implied duty to navigate in
such a way as to be able to "keep out of the
way" whenever a collision course arises. 16
In the result, I am of the view that the appeal
should be allowed with costs, the judgment of
the Trial Division should be set aside and the
action should be dismissed with costs; and it is
unnecessary for me to express any opinion con
cerning the limitation questions.
In so far as the counterclaim for limitation of
liability is concerned, if the action is dismissed,
there will be no judgment on the counterclaim
15 (1905) 36 S.C.R. 564.
16 If I am wrong, and the correct view of Rule 20(a) is that
it imposes an absolute duty on a motor vessel to "keep out
of the way" whenever a sailing vessel sees fit to adopt a
collision course, then it would follow, in my view, that a
motor vessel must be so operated, whenever there is a
possibility of a sailing vessel turning on a collision course,
that it can come to a stop or otherwise "keep out of the
way". It is not necessary to illustrate the grave conse
quences of any such view. I am satisfied that rule 20(a) is
not open to any such interpretation. My brother Thurlow is
going to read the conflicting opinions of our assessors on
this question. While I do not subscribe to the view that
common practice justifies recklessness or poor navigation, I
do think that it is relevant to record that our assessors are
agreed that most tug boat Masters would not take such a
cautious position as Captain St. Clair does on Questions one
and two of the questions that we submitted to them. Fur
thermore, as I understand it, there is no middle ground
because, according to the evidence, unless the barge was
close-hauled and the speed was slow, it would not have been
possible to make an emergency stop.
but, as the questions litigated with reference
thereto could properly have been raised by way
of defence, for purposes of costs, in my view,
such questions should be regarded as having
been dealt with as part of the main action.
On behalf of the Court, I express to our
assessors, Captain C. H. St. Clair and Captain J.
McNeill, our gratitude for their very helpful
assistance in our endeavours to understand the
difficult questions involved in this appeal.
The following are the reasons for judgment
delivéred orally in English by
THURLOW J. (dissenting): This appeal is from
a judgment of the Trial Division in an action
brought by the respondents under what is now
Part XIX of the Canada Shipping Act for dam
ages resulting from the death of Dr. Charles
Simmon Stein. Dr. Stein died on June 27, 1970,
when a 16 + foot sailboat in which he was sailing
with his son, Ross Stein, on English Bay in
Vancouver Harbour, collided with the un
manned barge S.N. No. 1 which was in tow of
the tug, Storm Point.
The collision occurred at approximately 3:35
on a clear, sunny Saturday afternoon. The wind
was light and variable and from a general easter
ly direction. It was about an hour after high
water and the tide was ebbing, but with little
force, and had no effect on navigation.
The deceased and his son had come to Van-
couver the previous day from their home in
California for the purpose of competing in sail
boat races which were to be held on English
Bay beginning on June 28, 1970. On the after
noon in question they and some twenty to thirty
others, some of them also from California, had
engaged in an informal practice race and there
after the Steins and some of the others were
continuing their sailing for further practice.
Having sailed out to the vicinity of Ferguson
Point at least three of them had turned at some
juncture and thereafter for from ten to twenty
minutes, and with the Stein boat in the lead,
they were sailing with the wind on the port
beam proceeding at from three to three and a
half miles per hour in a generally south-easterly
direction with their mainsails, jibs and spinnak
ers set. The Steins were experienced sailors but
they were not familiar with the sight of large
barges being towed by comparatively small tugs,
which is a common thing in Vancouver Har
bour. They were about to take down their spin
naker, preparing to proceed to the Kitsilano
Yacht Club, and had released its sheet when
Ross Stein saw on his port side the bow and
starboard side of a tug, which turned out to be
the Storm Point, but he did not see the barge
which it was towing at a distance of some 150
feet behind. He altered course to port at once
and neither anticipated nor had any difficulty by
that manoeuvre in clearing the tug but, accord
ing to his evidence, which the learned Trial
Judge appears to have adopted, he had just
steadied and picked up way on his new course
when for the first time he saw the barge directly
in front of him. He thereupon made strenuous
efforts to avoid the barge by going further to
port but his spinnaker had collapsed and with
what way he had he was unable to bring his boat
into the wind so as to go on a starboard tack.
The bow of_ the sailboat came in contact with
that of the barge just to the starboard of its
centre, the boat was pushed around so that its
port side came in contact with the starboard
portion of the bow of the barge, the sailboat was
thereupon capsized, and Dr. Stein was thrown
out and lost his life.
The barge S.N. No. 1 at the material time was
80 feet long, 30 feet wide and 6 feet high from
deck to bottom, with a 15 foot ramp at the bow
which projected forward and upward roughly in
line with the rake of her bow and which could
be lowered to docks for the loading or discharge
of cargo. She had been unloaded earlier that
afternoon at Johnston Terminals in False Creek
and was outbound in tow of the Storm Point on
a voyage through English Bay and around Stan-
ley Park to a shipyard in Burrard Inlet. The
Storm Point was some 49 feet long and 15 feet
wide. Her full speed was about 9 knots and at
the material time she was manned by a crew
consisting of Captain Helsing, who was in com
mand, and a deckhand named Iverson who died
before the trial. She had a flying bridge where
there were engine, clutch and rudder controls
but no means of operating the whistle.
The evidence of Captain Helsing is that when
leaving Johnston Terminals the barge was close-
hauled on the stern of the Storm Point and
while in False Creek he operated the tug and
tow from the flying bridge and proceeded at
some three to four knots. There were many
small pleasure craft moving about in False
Creek and before leaving it he could see pleas
ure boats in English Bay. He had ascertained by
radio telephone that there was no inbound com
mercial traffic and as he reached the Bay he
noted that there were boats on his course ahead,
but none that he considered would interfere
with his progress there, that there were a few
boats to the port side of his course and that
there was what he referred to as a concentration
of sailing boats to the starboard side, that is to
say, between his course and the eastern shore of
the Bay. At or about the time when he was
`passing Kitsilano spit or entering the Bay, he
left the flying bridge and returned to the wheel-
house, let out 150 feet of tow line and increased
his speed but he had not reached full speed
when he saw a group of sailboats off his star
board bow, one of which veered off from the
group and started proceeding in his general
direction. The approach of this sailboat caused
him some concern as to whether it might
attempt to cross his bow or pass on his star
board side, but when some 1,000 feet distant it
altered to port. Thereafter its course altered
several times and at one time it appeared that it
might attempt to pass between the tug and the
barge. When it was abeam of the tug its action
was erratic and it made a severe alteration to
starboard which brought it between the tug and
the barge. The boat then made another severe
alteration to port which brought it in bow to
bow contact with the barge.
Captain Helsing also said that when the sail
boat first began to cause concern he had started
to slow the tug and when it was some 1,000 feet
away he had altered his course 15° to port and
further slowed his engine. The alteration of
course caused the barge to sheer slightly to
starboard but it then came back in line behind
the tug. He did not signal the alteration of
course but after making it he left the wheel-
house and went to the flying bridge to get a
better view and at the same time he directed the
deckhand to go to the windlass to be ready to
slacken the two line. It was at that time that he
thought the sailboat might try to pass between
the tug and the barge and his purpose in slack
ening the line was to let it sink so that the
sailboat could pass over it. When the sailboat
made the severe alteration to starboard which
brought it between the tug and barge the tow
line was in fact slackened. He estimated that by
the time of the collision the tug was stopped in
the water and the barge was still moving for
ward at 11 knots.
On the evidence as I have outlined it, it seems
clear that the barge must have been plainly
visible at the time when Ross Stein saw the tug
and indeed that both tug and barge must have
been plainly visible for several minutes before
that. It also seems to me that the cause of the
collision was the failure of those on board the
sailboat to keep a proper lookout and to take
earlier action to avoid colliding with the tug and
barge. This was a fast, highly manoeuvrable
small boat which could easily have kept out of
the way had those on board her seen the barge
earlier and that is undoubtedly what they would
have done had either of them seen it in time.
There was never any question of the sailboat
being a stand on ship in a Rule 21 17 situation as
the evidence of Ross Stein and his immediate
action on seeing the tug shows. Accordingly
whether it was the 20° turn to port alone or that
plus a subsequent alteration to starboard which
17 Rule 21.
Where by any of these Rules one of two vessels is to keep
out of the way, the other shall keep her course and speed.
brought the sailboat astern of the tug and
between it and the barge the case is essentially
one of the Steins having failed, by reason of
their inadequate lookout, to see the barge in
time to take action to avoid it. The learned Trial
Judge found those in charge of the sailboat at
fault in not keeping a proper lookout and that
such failure was a cause of the collision and
these findings, in my view, should be affirmed.
There remains, however, the question wheth
er there was fault on the part of those operating
the tug which contributed to the collision and
loss. The learned Trial Judge held that there
was. In a careful review of the conduct of
Captain Helsing from the time of leaving John-
ston Terminals to the time of the collision he
found that Captain Helsing had been negligent:
(1) in letting out his tow line too soon and
also in letting out too much tow line in the
circumstances, in particular the heavy sail
boat congestion ahead and that these two acts
contributed in large measure to the collision;
(2) in operating the tug and tow at an exces
sive speed in the circumstances from the time
the tow line was let out, a speed which he
found to have been from 7 to 71 knots until
the tug slowed just prior to the collision,
which speed disabled him from stopping the
barge and contributed to the serious results of
the collision;
(3) in not making an alteration to port sooner
than he did and that such negligence con
tributed in large amount to the accident;
When, from any cause, the latter vessel finds herself so
close that collision cannot be avoided by the action of the
giving-way vessel alone, she also shall take such action as
will best aid to avert collision (see Rules 27 and 29).
(4) in failing to comply with the requirement
of Rule 20(a) of the Collision Regulations that
he keep out of the way of a sailing vessel and
that this failure and neglect on the part of the
tug was clearly causative of the collision;
(5) in failing to keep a proper lookout con
trary to Rule 29 and that this breach of the
Regulation was to some degree causative of
the collision;
(6) in failing to signal his alteration to port as
required by Rule 28(a), the causative effect of
which was considered to be arguable, his fail
ure to alter to port much earlier and to signal
at that time, which was considered to be
causative, and his failure to sound five short
blasts when the sailboat was some 50 to 100
feet from the tug or to shout a warning, such
failure to sound a five blast signal being in his
view a breach of Regulation 12. He also
found the Storm Point to have been in breach
of (a) the preliminary rules for obeying and
construing the steering and sailing rules, (b)
Rule 22, and (c) Rule 23 of the Collision
Regulations and Rules 35(1) and 37(1) of the
National Harbours Board Regulations relat
ing to navigation in Vancouver Harbour. He
concluded his findings of fault by apportion
ing 75% of the liability for the collision to the
Storm Point and 25% to the Stein sailboat.
Turning first to paragraph 5 of these findings
I am, with respect, unable to conclude that there
was any failure on the part of Captain Helsing
to keep a proper lookout or that any failure of
lookout on his part had any effect as a cause of
the collision. His evidence of what he saw and
of what he did at the several stages of the
events related, in my view, indicates that at all
material times he was personally keeping a con
stant watch on the traffic that he was likely to
encounter and in particular the sailboat in ques
tion from the time when its presence and con
duct had any bearing on his navigation of the
tug and barge. Nor in my view is there any basis
in the evidence for an inference that a proper
lookout was not being kept by him or that some
failure of lookout by him had an effect in caus
ing the collision.
I am also, with respect, unable to agree that
Captain Helsing was negligent in not making an
earlier and much more substantial alteration to
port so as to keep out of the way of the sail
boats. In this connection both Captain St. Clair
and Captain McNeill, the assessors appointed to
assist the Court, gave the same answer to the
following question which was put to them.
Q. In the circumstances described in question
(1) would good seamanship have required
Captain Helsing to alter course 30° to port
when passing Crystal Pool and to proceed
through the western portion of English
Bay in order to keep out of the way of
sailboats to the eastward of the course
indicated by the range lines on the charts?
A. No, because of foul ground in near vicini
ty on port side.
I should add that unless Captain Helsing was
to go out at high speed I am not persuaded that
by such a manoeuvre he would have avoided
the sailboats to the starboard side of his course,
some of which might have been on their way to
the Kitsilano Yacht Club. Moreover if he had
made the manoeuvre at full speed, as I see it, he
might well have encountered other traffic in
doing so, besides causing the barge to sheer
with such dangers to other traffic as that might
entail. Further, even if making an early and
substantial turn to port would have been a
reasonable way of avoiding the possibility of
collision with any of the sailboats I would not
regard his not having made such an alteration as
a proximate cause of the collision here in ques
tion any more than his not having stayed at
Johnston Terminals could be regarded as a
proximate cause of it. In my opinion, therefore,
his not having made, and signalled, such a turn
should not be regarded as a fault or faults which
caused the collision.
I also think it is unrealistic and much too
strict an application of Rule 20(a) 18 of the Colli
sion Regulations to hold Captain Helsing as
bound by that Rule to keep out of the way of
such a sailboat. The practical consequence of
such an application of the Rule appears to me to
be that the commercial activity of transportation
by barges cannot be carried on in these waters
at times when pleasure craft are out in force for
no sooner would a tug and barge act to keep out
of the way of one of them when he could expect
to be involved with another or others and the
very action taken to avoid one might well put
him in breach of the Rule with respect to
another. A tug with a barge in tow at its best
cannot be expected to have the manoeuvrability
of a handy small sailboat and to my mind the
solution of the question as to the right-of-way in
a situation of the kind that appears to have been
developing in this case is that the special cir
cumstances of the high manoeuvrability of the
sailboat and the lack of manoeuvrability and of
means to quickly bring the barge to a stop cast
upon the sailboat under Rules 27 19 and 29 20 the
obligation to take early and effective action to
avoid collision with the tug and barge. Whether
for the right reasons or not this view as to which
vessel had the right-of-way appears to have
been that both of Captain Helsing and of Ross
16 Rule 20.
(a) When a power-driven vessel and a sailing vessel are
proceeding in such directions as to involve risk of collision,
except as provided for in Rules 24 and 26, the power-driven
vessel shall keep out of the way of the sailing vessel.
19 Rule 27.
In obeying and construing these Rules due regard shall be
had to all dangers of navigation and collision, and to any
special circumstances, including the limitations of the craft
involved, which may render a departure from the above
Rules necessary in order to avoid immediate danger.
20 Rule 29.
Nothing in these Rules shall exonerate any vessel, or the
owner, master or crew thereof, from the consequence of any
neglect to carry lights or signals, or of any neglect to keep a
proper look-out, or of the neglect of any precaution which
may be required by the ordinary practice of seamen, or by
the special circumstances of the case.
Stein who, there is no reason whatever to doubt,
would have kept out of the way of the barge had
he not, unfortunately, failed to see it in time. It
appears to me to follow as well from this view
that Captain Helsing should not be held to have
been in breach of the preliminary rules for
obeying and construing the steering and sailing
rules or of Rules 22 21 and 23 22.
With respect to paragraph 6 of the findings,
while the assessors advise that the two blast
signal for a turn to port should have been given
by Captain Helsing on making his 15° alteration
to port I do not think his failure to give it can be
regarded as having been a cause of the collision.
The signal required by Rule 28(a) 23 is not
intended as a wake-up signal but as a notice of a
change of course and it would be speculative to
hold that giving it would have drawn the atten
tion of the Steins to the presence of the barge.
21 Rule 22.
Every vessel which is directed by these Rules to keep out
of the way of another vessel shall, so far as possible, take
positive early action to comply with this obligation, and
shall, if the circumstances of the case admit, avoid crossing
ahead of the other.
22 Rule 23.
Every power-driven vessel which is directed by these
Rules to keep out of the way of another vessel shall, on
approaching her, if necessary, slacken her speed or stop or
reverse.
23 Rule 28.
(a) When vessels are in sight of one another, a power-
driven vessel under way, in taking any course authorized or
required by these Rules, shall indicate that course by the
following signals on her whistle, namely:—
One short blast to mean "I am altering my course to
starboard".
Two short blasts to mean "I am altering my course to
port".
Three short blasts to mean "My engines are going astern".
(6) Whenever a power-driven vessel which, under these
Rules, is to keep her course and speed, is in sight of another
vessel and is in doubt whether sufficient action is being
taken by the other vessel to avert collision, she may indicate
(Continued on next page)
This leaves for consideration the faults
described in paragraphs (1) and (2) of the find
ings and that of failing to sound a five blast
signal when Captain Helsing was in doubt as to
the action the sailboat was going to take.
On these points the Court put a series of
questions to the assessors and received answers
as follows:
Q. (1) Was it proper navigation to let out 150
feet of tow line and proceed to accelerate
to full speed when Captain Helsing was
off the spit and had established that traffic
had cleared on the course that he would be
going on or be concerned with except
(a) that, on his starboard side, there was a
concentration of sailboats about 5i cables
away toward Second Beach, and
(b) that, to his port side there was some
other traffic but none to interfere with
him?
A. Captain St. Clair—No.
Captain McNeill—Yes.
Q. (2) In the circumstances described in
question (1) how, as a matter of prudent
seamanship, should the tug and barge have
been navigated?
A. Captain St. Clair—Barge close hauled and
slow speed.
Captain McNeill—If sailboats on star
board side were no apparent problem I
would navigate out the clear channel
ahead and keep a close watch on sailboats.
(Continued from previous page)
such doubt by giving at least five short and rapid blasts on
the whistle. The giving of such a signal shall not relieve a
vessel of her obligations under Rules 27 and 29 or any other
Rule, or of her duty to indicate any action taken under these
Rules by giving the appropriate sound signals laid down in
this Rule.
Q. (3) What would the answer to the first
question be if the situation were otherwise
the same but there were no sailing boats in
the Bay?
A. Captain St. Clair—Yes.
Captain McNeill—Yes, 150 line out and
full speed.
Q. (4) As a matter of prudent seamanship in
the circumstances described in question
(1), should the whistle of the Storm Point
have been sounded, and if so, in what
manner,
(a) when the sailboat was on a collision
course but more than 1,000 feet distant?
and
(b) at any and, if so, what later stage?
A. Captain St. Clair (a)-5 short blasts:
Rule 28.
Captain McNeill (a) —5 short blasts as for
doubtful of intentions.
Both assessors (b) —2 short blasts when
tug altered to port. Rule 28.
The difference of opinion of the assessors in
answer to questions (1) and (2) makes it neces
sary for the Court to reach its own conclusion
on what appears to be a critical part of the case.
For my part I find myself in agreement with the
opinion of Captain St. Clair that in the circum
stances it was not proper navigation to let out
150 feet of tow line and to accelerate to full
speed and that the barge should have been kept
close-hauled and the tug operated at slow speed.
This I think is supported at least to some extent
by the evidence of Captain Greenfield and by
the advice which the learned Trial Judge
appears to have received from his assessors. By
letting out too much tow line and by proceeding
too fast Captain Helsing in my view had so
incapacitated himself from controlling the barge
and bringing it to a stop within a reasonable
distance that when the prospect of a possible
collision arose he could not take effective action
to avoid it either by stopping the barge or by
getting out of the way. The result was that the
barge was still moving when the collision
occurred. In my view its speed shortly before
the collision reduced the time available to the
Steins in the last stages to take effective action
to avoid it and in the result it was the barge's
momentum and motion that caused the damage.
Moreover, in my opinion, from the time Captain
Helsing observed the concentration of sailboats
to the starboard of his course he ought to have
anticipated the possibility that they or some of
them might not stay where they were or to
starboard of his course and that he should be
ready to deal with a situation that might be
presented by one or more of them coming
across his course. The capacity to do this, as I
see it, could only be maintained by his keeping
the barge close-hauled so as to afford him the
maximum control over it and by proceeding at
such a speed as would enable him to stop if
necessary within a reasonable distance. I would
therefore hold him at fault in causing the
collision.
I am also of the opinion that Captain Helsing
was at fault in not blowing a 5 blast signal when
the sailboat was still more than 1,000 feet away
and had already been causing concern as to its
intention, and more particularly so in view of
the fact that he had tow line out and had been
increasing to full speed, but I think it is specula
tive to suppose that the signal would have
drawn attention to the barge, as opposed to the
tug, and in the circumstances I am unable to
conclude that the failure to blow such a signal
was n cause of the collision.
I should add that I do not think the learned
Trial Judge's finding that Captain Helsing was
also in breach of subsection 35(1) 24 of the Na
tional Harbours Board Regulations is support
able as I see nothing about the speed of the tug
24 35. (1) No vessel shall move in the harbour at a speed
that may endanger life or property.
and barge that could as such be regarded as
dangerous to life or property.
I am also of the opinion that the finding that
Captain Helsing was in breach of subsection
37(1) 25 of the National Harbours Board Regula
tions adds nothing to the finding of fault in
having let out too much tow line and proceeded
at too great a speed.
This brings me to the question of apportion
ment. In my opinion the extent of the differ
ences in my conclusions and those of the
learned Trial Judge as to the fault attributable to
Captain Helsing is such as to warrant an appel
late Court in substituting its own apportionment
and as I see no basis on which different degrees
of fault might be established I would apportion
the responsibility 50% to the sailboat and 50%
to the tug.
To this extent I would allow the appeal and
vary the apportionment made by the learned
Trial Judge.
My conclusion as to the facts, however,
would make it necessary to consider and resolve
as well the question as to the right of the
respondents to recover anything in respect of a
loss of life where contributory negligence on the
part of the sailboat and its owner in causing the
loss has been established. As the question was
not fully argued and as it was intimated to
counsel that the point would not be decided
without their being afforded an opportunity to
submit written argument on it I express no
opinion beyond saying that the Sparrows Point 26
and Algoma Central & Hudson Bay Railway
Co. 27 cases appear to raise a serious question as
to whether anything is recoverable. However, as
the majority of the Court is of the opinion that
the action must fail on a different ground it•
25 37. (1) Every vessel towing another vessel shall have
sufficient power to perform such service properly and shall,
at all times, keep as complete control as possible of the
vessel in tow.
26 [1951] S.C.R. 396.
27 [1964] Ex.C.R. 505.
appears to me to be unnecessary for me to
further consider the point in question or to
consider the question of the right of the corpo
rate defendants to limit their liability.
The following are the reasons for judgment
delivered orally by
PRATTE J.: There is no doubt that, as found
by the Trial Judge, Dr. Stein and his son were
both negligent in sailing without keeping a
proper lookout. In my opinion, this negligence
was the sole cause of this unfortunate accident.
The Trial Judge thought otherwise. He was of
the view that the main cause of the collision was
the negligence of the master of the tug. His
chief findings in this respect may be summa
rized under four heads. He blamed the master
of the tug:
1. for having let out his tow line and proceed
ed at a speed of 71 knots; (by doing so, the
master of the tug incapacitated himself from
complying with Rule 20(a) of the Collision
Regulations which requires a power-driven
vessel to keep out of the way of a sailing
vessel);
2. for not having made sooner a greater alter
ation to port;
3. for having failed to blow the tug's whistle
or to otherwise alert the sailboat to the pres
ence of the barge; and
4. for not having kept a proper lookout.
I must say, with respect, that the evidence, as
I view it, does not show that those on board the
tug failed to keep a proper lookout. Moreover, I
cannot infer from the evidence that the accident
would have been avoided by the tug either alter
ing her course to port or blowing her whistle.
Assuming that the Trial Judge was right in
holding that the master of the tug should have
proceeded at a lower speed with his tow close-
hauled, one must consider whether his failure to
do so was in fact the cause of the collision. The
negligence of a defendant cannot be said to be
the cause of the damage suffered by a plaintiff
unless there exists, between the negligence and
the damage, a certain connection. And such a
connection does not exist, in my view, if the
negligent act or omission of the defendant was
such that it was not reasonably foreseeable that
the defendant's conduct would result in an acci
dent similar to the one in which the plaintiff was
involved.
In this case, it is my opinion that a reasonable
person would not have foreseen that the con
duct of the captain of the tug might result in an
accident such as the one in which Dr. Stein lost
his life. It could not reasonably be foreseen, in
my view, that, on a clear sunny day, those on
board a sailboat would fail to see a barge being
towed by a tug; it could not reasonably be
foreseen, either, that the operator of a small
manoeuvrable sailboat would, in an area such as
English Bay, sail so near a tug proceeding at
more than 7 knots with a barge in tow, that he
could not avoid colliding with the barge.
For these reasons, as well as for those given
by the Chief Justice, I would dispose of this
appeal in the manner suggested by the Chief
Justice.
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.