T-3324-75
Warwick Shipping Limited (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Montreal, September 9;
Ottawa, November 26, 1980.
Crown — Torts — Action for damages — Plaintiff's ship
sheered off a shoal which was situated near the range line and
struck a submerged rock — Accident occurred in a natural
channel — Dredging was commenced a few weeks before the
accident pursuant to a contract — Ship was under direction of
pilot who did not rely on navigational aids except the range
lights which were functioning properly and in position —
Chart and amending notices to mariners issued by defendant
did not indicate that shoal extended across the range line —
Surveys done by defendant's servants prior to the accident
showed that shoal extended across range line — Plaintiff
alleges that a buoy was improperly positioned, that chart and
notices issued by defendant were incorrect and misleading, that
defendant failed to advise of known hazards and that defend
ant failed to properly dredge the channel — Whether defend
ant is liable in tort for the negligence of her servants or as the
owner or occupier of property — Action dismissed — Crown
Liability Act, R.S.C. 1970, c. C-38, ss. 3(1)(a),(b), 4(1)(a),(2).
This action arises from the grounding of the plaintiff's ship
and the resulting damage thereto. The claim is based on
allegations of improper positioning of a buoy, of incorrect and
misleading information on a chart issued by the defendant and
amended up to the date of grounding by two notices to marin
ers, of failure to advise of hazards known to the defendant and
also of failure to dredge or of improper dredging of the channel
along a range of lights leading to the port. The plaintiff claims
that the damage arose out of a tort committed by a servant of
the Crown and also claims a breach of duty attaching to the
ownership, occupation, possession or control of property pursu
ant to section 3(1)(a) and (b) of the Crown Liability Act. The
ship was proceeding along a range of navigational lights, under
the immediate direction of the pilot when it suddenly sheered
off a shoal which was situated near the range line, and struck a
submerged rock. The range line was represented on the chart
by a solid line which means a "recommended track". A 1972
survey indicated that a shoal was found approximately 50 feet
north of the range line and extended over the range line with a
least depth of 26 feet. The two notices to mariners each
indicated only the presence of one high spot or sounding, with
both of these soundings north of the range line. No indication
was given of any extension of the shoal to or beyond the range
line to the south. The chart represented that all depths for some
distance north of and on the range line as well as south of it
were over 30 feet above chart datum. The accident occurred in
a natural channel which had been partially dredged a few
weeks before the incident pursuant to a contract. No naviga
tional aids were relied on except the range lights which were
functioning properly and in their true position. The question is
whether or not the defendant was negligent for any of the
reasons alleged by the plaintiff.
Held, the action is dismissed. The mere act of dredging or
the mere fact that a contract has been let by the Crown for
dredging to a certain depth does not constitute a representation
by the Crown to the public that the bottom has been or will be
dredged to the depth stipulated in the contract. In any event,
the public work, even if there was one sufficient to bring the
area within the scope of section 3(1)(b) would not be con
sidered as having been completed until the postdredging survey
had been made. Finally, there was no representation that the
shoals had been successfully removed. Since the defendant
cannot be held liable under section 3(1)(b) in so far as the
dredging is concerned, any liability covering this activity would
have to be founded on section 3(1)(a). There exists no duty on
the part of the defendant to remove obstacles to navigation in
areas not required to be maintained. There is no requirement to
maintain natural channels. Since there exists no specific duty to
perform, there can be no liability for negligence in the perform
ance of the task unless the negligent actions create a more
dangerous situation than previously existed and the damage is
occasioned as a result of the increased hazard. In addition, in
accordance with section 4(2), the Crown cannot be held liable
under section 3(1)(a) unless its servant could have been sued
personally for the negligence. The dredging was done by an
independent contractor pursuant to a contract in which the
plaintiff had no interest whatsoever. The contractor owed no
duty to the plaintiff of proper performance of its contract.
Although all of the shoal was not removed from the range line,
it appears that the contract itself might not have provided for
the removal of the shoal on the actual range line and it has not
been established that the contractor was in actual breach of the
terms of its contract. There is no liability toward the plaintiff
for failure to remove all of the shoal. On the evidence, no
responsibility can attach to the defendant as to any navigation
al aids. The mere preparation and issuing to the public of a
navigational chart does not constitute the authority issuing
same, an owner of, occupier of or in control or possession of the
land or features represented by the chart and, therefore, no
liability can be founded on section 3(1)(b) on that basis. The
plaintiff did not establish that at the time the chart was issued,
the soundings and depth change colourings on the chart were
not accurate. There was no duty on the part of the defendant to
search out obstacles and record them either by amendments to
the chart or by notices to mariners because the channel was a
natural one. The mere issuing of the two notices to mariners
covering two spot soundings to the north of the range line,
which remained a recommended track, was misleading and
amounted to a misrepresentation. The misrepresentation,
although negligent was an innocent one: there was no intention
to deceive. The representation was made for a public purpose
and made to the public at large or, at least, to a special class of
the public, namely all mariners who might be expected to use
the chart. Where such public representations for public pur
poses are made, with full expectation of a reliance on the
representations, there is no need for the existence of any greater
particular or special relationship between the person making
them and the person relying on them for a duty to take care to
arise. In addition where the safety of many lives and serious
damage to property might be at stake, and the breach of duty
may thus result in very serious consequences, the degree of care
must be correspondingly high. However, the Crown's liability is
strictly statutory and is limited to the terms of the statute
creating liability. It is only section 3(1)(a) of the Crown
Liability Act which can apply to the issue of misrepresentation.
The conditions under which a Crown servant can be held
personally liable to a third person for failure to act in the
course of duty to the Crown require that there be intended to
be created a direct relation between the servant and the third
person. There does not exist any "direct relationship" between
the plaintiff and servants of the Crown who neglected to
perform their duty. None of the servants engaged in either
taking the soundings, preparing the surveys or reports and,
finally the notices to mariners were servants of the Crown who
were in the course of their duties required to deal with the
public. Their duties were all exclusively owed to the Crown.
Cleveland-Cliffs Steamship Co. v. The Queen [1957]
S.C.R. 810, applied. Grossman v. The King [1952] 1
S.C.R. 571, distinguished. Candler v. Crane, Christmas &
Co. [1951] 2 K.B. 164, distinguished. Hedley Byrne & Co.
Ltd. v. Heller & Partners Ltd. [ 1964] A.C. 465, distin
guished. Workington Harbour and Dock Board v. Tower-
field (Owners) [1951] A.C. 112 (H.L.), distinguished.
Haig v. Bamford (1977) 72 D.L.R. (3d) 68, distinguished.
The Stoomvaart Maatschappy Nederland v. The Direc
tors, &c., of The Peninsular and Oriental Steam Naviga
tion Co. (1880) 5 App. Cas. 876, agreed with. The Grit
[1924] P. 246, referred to. "The Mersey Docks and Har
bour Board" Trustees v. Gibbs (1866) L.R. 1 H.L. 93,
referred to. R. v. Canada SS. Lines, Ltd. [1927] 1 D.L.R.
991, referred to. R. v. Hochelaga Shipping & Towing Co.
Ltd. [1940] S.C.R. 153, referred to. Hendricks v. The
Queen [ 1970] S.C.R. 237, referred to. St. Just Steam Ship
Co., Ltd. v. Hartlepool Port & Harbour Commissioners
(1929) 34 LI. L. Rep. 344, referred to. "Neptun" (Owners)
v. Humber Conservancy Board (1937) 59 LI. L. Rep. 158,
referred to. Kommanvittselskapet Harwi v. MIV "Gerwi"
1971 AMC 2435 (U.S.C.A.), referred to. The Hamburg
American Packet Co. v. The King (1901) 7 Ex.C.R. 150,
referred to. Pacific Steam Navigation Co. ("Orita") v.
Mersey Docks & Harbour Board (1925) 22 LI. L. Rep.
235, referred to. Japan Line, Ltd. v. U.S.A. 1976 AMC
355, referred to. R. v. Nord-Deutsche Versicherungs-
Gesellschaft [1971] S.C.R. 849, referred to. R. v. Canada
Steamship Lines, Ltd. [1927] S.C.R. 68, referred to. The
Owners of the Steamship Panagiotis Th. Coumantaros v.
National Harbours Board [1942] S.C.R. 450, referred to.
Meredith v. The Queen [1955] Ex.C.R. 156, referred to.
Burton v. The Queen [1954] Ex.C.R. 715, referred to. R.
v. Anthony [1946] S.C.R. 569, referred to. Magda v. The
Queen [1953] Ex.C.R. 22, referred to. M'Alister (or
Donoghue) (Pauper) v. Stevenson [1932] A.C. 562,
referred to.
ACTION.
COUNSEL:
Pierre G. Côté and Johanne Gauthier for
plaintiff.
Derek Aylen, Q.C. and David Sgayias for
defendant.
SOLICITORS:
Ogilvy, Renault, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: This action was instituted by the
owners of the oil tanker Golden Robin which
suffered damage on striking bottom in the vicinity
of the navigational channel leading to Port Dal-
housie, New Brunswick, at the junction of the
mouth of the Restigouche River and the open sea
at Chaleur Bay. The tanker was at the time carry
ing 26,000 tons of bunker C-oil for delivery to the
New Brunswick Power Corporation.
The claim is based mainly on allegations of
improper positioning of a buoy, known as buoy
2 1 / 2 D, of incorrect and misleading information on
chart 4426 issued by the defendant, and amended
up to the date of the grounding in accordance with
two notices to mariners, of failure to advise of
hazards known to the defendant and also of failure
to dredge or of improper dredging of the channel
along a range of lights leading to the port.
The plaintiff relies on section 3(1)(a) and
3(1)(b) of the Crown Liability Act'. It claims, in
other words, that the damage arose out of a tort
committed by a servant of the Crown and also
claims a breach of duty attaching to the owner
ship, occupation, possession or control of property.
R.S.C. 1970, c. C-38.
OBSERVATIONS AS TO SOME GENERAL FACTS *
The grounding occurred at approximately 4:13
a.m. in the early morning of the 30th of Septem-
ber, 1974. The night was clear and visibility un
limited. The water was relatively calm and the
wind was light westerly (i.e., 3 to 4 on the Beau-
fort scale). Captain Reid stated that "it was such a
beautifully clear morning that you could see every
thing." For all practical purposes, the conditions
can best be described as ideal.
The ship had been at anchor for a few hours, a
short distance to the southeast of the entrance to
the harbour awaiting the arrival of the pilot, since
the approach was in a compulsory pilotage area.
The pilot, one Mr. Fearon, came aboard and the
ship remained at anchor for a short time awaiting
proper conditions of tide, it being the intention to
arrive at the entrance to the harbour at high tide
and at dock side at high water slack. The ship
proceeded from the anchorage toward the course
of what will be described as range 260, being a
navigational range of lights on a true bearing of
260° leading westerly from the open sea to the
southeast into the narrow waters at the entrance to
the harbour, immediately to the east of the dock.
The proposed course, time and conditions of tide
had been discussed to some extent with the pilot
and agreed to by the Captain. The course from the
anchorage to the wharf was not actually plotted on
the chart.
The ship was, of course, under the immediate
direction of the pilot, but Captain Reid, the master
of the ship who, as such, had the ultimate responsi
bility for its safety, was on the bridge with the
pilot at all times.
Directions as to speed and course were passed
from the pilot to the Captain who relayed them as
orders to the helmsman for course changes and to
the first officer for control of the engine. The latter
would convey the orders to the engine room officer
in the normal way by signalling on the bridge
telegraph and record the time and details of the
* In order to orient the reader, a rough sketch not to scale is
attached as Appendix "A".
orders in the bridge movement book. As the helms
man was Spanish, there was also on the bridge an
officer who was fluent in Spanish. He stood
immediately behind the helmsman and ensured
that the Captain's orders were understood and
executed.
Several circumstances rendered the determina
tion of the true factual situation in the case at bar
more difficult than usual: the ship had been deliv
ered to shipbreakers for scrap before the issues
between the parties were fully raised, including an
issue as to engjne response. Many of the ship's
original documents and logs were lost or mislaid
and the pilot died before the date of trial. The
parties and the Court were thus deprived of impor
tant evidence including the benefit of the viva voce
examination of the pilot at trial. As the latter had
previously been a party to the action and had been
examined for discovery as such, a transcript of his
examination was filed by consent as an exhibit to
be used in evidence. It was understood as a condi
tion of the filing that the discovery of the pilot was
not to be considered as having been submitted by
either of the two parties as an integral part of their
cases. It was, however, to be considered as fully
admissible evidence as to all issues before the
Court, with each party remaining free to rely on,
contradict or argue for or against any portion of
that evidence.
Witnesses generally, even when genuinely
attempting to be truthful and objective, if they are
to err, are most likely to do so in the direction of
their self-interest rather than against it. Since the
pilot was a party to the action at the time of
discovery, it makes eminent good sense, in my
view, to examine any of the statements which
might be considered as directly inculpatory as
being more likely representative of the true state of
affairs and, conversely, to scrutinize most carefully
any exculpatory statements, especially since that
evidence has not been subjected to the purifying
process of cross-examination.
The ship had been proceeding in a westerly
direction toward Dalhousie Harbour entrance
when it suddenly sheered to port off a shoal which
was situated on its starboard side near range 260.
Corrective engine and rudder action were applied,
but, before the sheer could be corrected, it con
tinued diagonally across the channel where it
struck a submerged rock off the shore of Dalhousie
Island which, at the moment the sheer occurred,
had been lying off the ship's port bow. All of the
damage was caused by the rock which was never in
fact located although efforts were made to do so.
As in most collision or grounding cases, the
results turn on relatively small differences in time
and variations in speed and distance. There is some
difference in the evidence of Pilot Fearon and of
Captain Reid as to the position of the Golden
Robin with regard to the range line at the time the
sheer first began. Both agree that it was on a
course of 260°. Fearon states, however, that it was
"nicely coming on the ranges" and almost dead
centre on the ranges and that he was standing on
the con position and "just about to give the order
`steady' when the sheer to port started" while
Captain Reid, at the trial, stated that it had been
proceeding parallel to the range approximately one
ship's beam (i.e., some 82 feet) to the south. The
Captain's evidence at trial as to the position of the
ship at time of sheering does not agree with his
evidence on discovery. At trial, he stated that the
sheer occurred before they were abeam of buoy
2 1 D; on discovery, he had stated that the sheer
began when a ship's length (i.e., some 600 feet)
past the buoy. Furthermore, the Captain had never
been to Port Dalhousie previously and he was not
precise as to the approach course of the ship or as
to the point where it grounded. His recollection on
these matters were approximations only. He stated
that he was indicating the course roughly and that
it might not be accurate. I am more inclined to
accept the evidence of the pilot on this matter
since the latter was very familiar with the area and
it would not be in his interest to place the ship on
the range line rather than a short distance to the
south.
It was admitted on the agreed statement of facts
filed that soundings made by Canadian Hydro-
graphic Surveys shown on field sheet No. 4575
accurately represent the configuration of the
bottom of the approach to Dalhousie Harbour at
the time the survey was carried out, between the
12th and the 31st of October, 1974, that is, within
the few weeks immediately following the accident:
as a result, I find that this, for all practical pur
poses, would also have represented the configura
tion of the bottom on the date of the accident as
there is nothing to indicate why any substantial
change could have taken place in the matter of a
few weeks.
From an examination of the results of that
survey, it is clear that the shoal had not been
completely removed and that part of it still existed
to the north of the range line, on the range and for
a few feet to the south of it.
From the evidence which at times is somewhat
contradictory, the following conclusions of fact
emerge as to the position, course and speed of the
ship immediately previous to, up to and including
the moment when the Golden Robin struck a rock
or rocks along the northeasterly shore of Dalhousie
Island. The Golden Robin sheered off the remain
der of a shoal or formation of shoals, the 26-foot
contour part of which had previously extended
some short distance, that is some 25 feet or so
south of the range line. The sheering occurred in
the vicinity of and apparently immediately to the
s9uth of buoy 2 1 / 2 D as it was then situated. The
ship was moving toward the mouth of the harbour
on a 260° course at the time and was either
directly centred on or very close to the course of
the range line. There is no evidence that the ship
actually struck any part of the shoal and I find as
a fact that it did not, but that the sheering was due
entirely to what is known as bank action which
results from changes in pressure against the side
and bottom of any ship immediately approaching
or passing in the immediate vicinity of a bank or
shoal. Bank action causes the stern of the vessel to
move in toward the obstacle and the bow to swing
out and away from it.
The ship travelled something in the range of
1,300 to 1,400 feet from the point of sheer to the
point where it struck bottom. The obstacle did not
cause the ship to stop but it continued on its way
into port and tied up at Dalhousie Wharf.
CROWN LIABILITY IN TORT
Different departments of government bear re
sponsibility for different operations, works and
services on which this action is founded, aids to
navigation being the responsibility of the Minister
of Transport, construction and maintenance of
public works pertaining to navigation, such as
dredging of ship channels, being shared by the
Departments of Transport and of Public Works
and hydrographic surveys which, in 1974, were the
responsibility of the Department of Environment
being now carried out by the Department of Fish
eries and Oceans.
These responsibilities are assigned by various
statutes but, in my view, nothing turns on this in so
far as the case at bar is concerned, as each depart
ment involved is but part of the administrative
organization of the defendant, for the operations of
which the defendant ultimately will be held
responsible, where responsibility exists at law for
the act or omission in issue.
The present action is founded in tort. The liabil
ity of the Crown in this area is now contained in
the Crown Liability Act. The two pertinent provi
sions of that Act on which responsibility in tort
may rest read as follows:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the Crown,
or
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
Section 4(2) is also quite important. It reads as
follows:
4....
(2) No proceedings lie against the Crown by virtue of
paragraph 3(1)(a) in respect of any act or omission of a servant
of the Crown unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in tort
against that servant or his personal representative.
Section 3(1)(a), of course, refers to vicarious
liability and section 3(1)(b) refers to liability as an
owner, occupier or person in possession or in con
trol of property.
It is most important, in my view, when consider
ing the leading cases in England on the subject, to
bear in mind that there are some differences in the
law on which responsibility of the Crown may be
founded. In addition to differences in the wording
of certain statutes, England, unlike Canada, oper
ates under a unitary system of senior government
and actual ownership, possession and control of all
bottoms of lakes, rivers and other such waters are,
originally in any event, vested in the same Crown.
In certain cases, public authorities and boards
other than the Crown itself were involved as being
in possession and control and it is not always clear
whether the immunity normally attaching to the
Crown applied or whether, if it did apply, it was in
fact subject to the same terms and conditions as
those mentioned in section 3(1)(a) of our Crown
Liability Act or under terms similar to section
3(1)(b) or both.
It is equally important to bear in mind, in the
case of Canadian decisions that, previous to the
14th of May, 1953, the liability of the Crown now
found in section 3(1)(a) was founded on section
18(1)(c) (formerly 19(c)) of the Exchequer Court
Act 2 , the wording of which was the same as section
3(1)(a) but that section 3(1)(b) itself was not
proclaimed in force until the 15th of November
1954. All Canadian decisions affecting rights
which arose previous to the 15th of November
1954, at which time liability other than strict
vicarious liability for tort was first created by
statute, must therefore be read with this in mind.
A typical example of such cases is the decision of
the Supreme Court of Canada in The Cleveland-
Cliffs Steamship Co. v. The Queen'. The ground
ing of the ship in that case occurred in August
1953 at which time section 3(1)(a) was in force
but section 3(1)(b) had not yet been proclaimed
and the question of whether the misplaced buoy
was property within the meaning of that section
never arose.
NEGLIGENCE OF THE DEFENDANT
In all claims founded on tort, in order that there
may be a right of recovery, there must exist a duty
of care owed by the defendant to the plaintiff.
2 R.S.C. 1970, c. E-11.
3 [1957] S.C.R. 810.
(a) Dredging
Dealing first with the question of responsibility
for dredging of channels, it is of paramount impor
tance to distinguish between man-made or dredged
channels and natural channels. In so far as the
former are concerned, in addition to a vicarious
liability which might arise under section 3(1)(a), a
direct liability under section 3(1)(b) may well
arise as a result of a duty owed to the persons
using the channels in the same manner as the duty
owed to persons using wharves, docks and all other
such public works. There are many cases which
deal with the general duty to take all reasonable
steps to maintain wharves, docks and other such
works in a reasonably safe condition and to issue
or post proper warnings of any particular known
hazard or danger pertaining thereto. (See The
Grit 4 ; "The Mersey Docks and Harbour Board"
Trustees v. Gibbs 5 ; The King v. Canada SS. Lines,
Ltd. 6 ; The King v. Hochelaga Shipping & Towing
Company Ltd. 7 ; and Hendricks v. The Queen 8 .)
The cases touching upon the duty to maintain
man-made channels or natural channels which are
held out as being dredged or maintained to a
certain depth are based on identical principles.
(See St. Just Steam Ship Company, Ltd. v. Hart-
lepool Port & Harbour Commissioners 9 ; "Nep-
tun" (Owners) v. Humber Conservancy Board 10 ;
Kommanvittselskapet Harwi v. MIV "Gerwi"";
Japan Line, Ltd. v. U.S.A. 12 ; The Hamburg
American Packet Company v. The King"; Pacific
Steam Navigation Co. ("Orita") v. Mersey Docks
& Harbour Board"; Workington Harbour and
Dock Board v. Towerfield (Owners) 15 ; and The
Queen v. Nord-Deutsche Versicherungs-
Gesellschaft 16 .) There exists in such circumstances
no doubt about the duty to maintain. Although in
the case of The Owners of the Steamship Panagi-
4 [ 1924] P. 246.
5 (1866) L.R. 1 H.L. 93.
6 [1927] 1 D.L.R. 991.
7 [1940] S.C.R. 153.
8 [1970] S.C.R. 237.
9 (1929) 34 LI. L. Rep. 344.
1° (1937) 59 LI. L. Rep. 158.
" 1971 AMC 2435 (U.S.C.A.).
12 1976 AMC 355.
13 (1901) 7 Ex.C.R. 150.
14 (1925) 22 LI. L. Rep. 235.
15 [1951] A.C. 112 (H.L.).
16 [1971] S.C.R. 849.
Otis Th. Coumantaros v. National Harbours
Board", the Board was held not to be liable for
failure to remove an obstruction, it was not on the
basis that there existed no duty to maintain but
rather because, at the time of the accident, the
work was not under its control as it was being done
by the Department of Marine. The above cases
establish, however, that the duty to maintain a
dredged channel is not an absolute or permanent
one: the duty will no longer exist where proper
warnings have been issued or advice communicat
ed to the effect that a channel is no longer being
maintained or dredged.
In so far as natural channels are concerned,
however, there exists no duty to sweep away
obstructions whether natural or otherwise from
any shore or river unless there has been some
representation to the effect that the duty has been
assumed in some manner.
The facts in the case at bar establish that it was
a natural channel and that no dredging had been
done until a few weeks before the accident when
work commenced pursuant to a contract given
with a view to removing the shoals in the vicinity
of the range line. There is some conflict as to
where the dredging was actually carried out. I
find, as a fact, that the predredging survey carried
out by one Hamilton in the spring of 1974 covered
an area immediately to the north of and excluding
the range line. The dredging itself was probably
carried out in that general area with possibly some
on the range line.
The mere act of dredging or of attempting to
remove any obstruction, natural or otherwise, from
a natural channel, without more, does not of itself
constitute a public work, the nature of which
would render the defendant either the owner of, in
occupation of, in possession of or in control of a
natural channel within the meaning of section
3(1)(b) of the Crown Liability Act. It would be
quite a different state of affairs if, following the
work, the area would be held out by the defendant
as being dredged or maintained to a specific depth
or if it were stated that whatever obstacles were
there had now been removed and that further
17 [1942] S.C.R. 450.
adverse changes in the area would be controlled. In
my view, it would then become a channel over
which the defendant would be exercising sufficient
occupation or control to bring into play the provi
sions of section 3(1)(b). The mere act of dredging
or the mere fact that a contract has been let by the
Crown to a dredging contractor for dredging to a
certain depth, does not constitute a representation
by the Crown to the public, that the bottom has in
fact been or will be dredged to the depth stipulated
in the contract. In any event, the public work, even
if there was one sufficient to bring the area within
the scope of section 3(1)(b), would not be con
sidered as having been completed until the post-
dredging survey had been made, which was not the
case here. Finally, there was no representation
whatsoever that the shoals had been successfully
removed.
Since the defendant cannot on the facts of this
case be held liable under section 3(1)(b) in so far
as the dredging is concerned, any liability covering
this activity would have to be founded on section
3(1)(a). On this issue, there exists no duty at law
on the part of any servant of the defendant, or of
the defendant itself, through any of its servants to
remove obstacles to navigation in areas not
required to be maintained. There is no require
ment at law to maintain natural channels. Since
there exists no specific duty to perform, there can
be no liability for negligence in the performance of
the task to which the duty would relate unless the
negligent actions create a more dangerous situa
tion than previously existed and the damage is
occasioned as a result of that increased hazard. In
addition to this, it has been held in accordance
with section 4(2) of the Crown Liability Act, and
also previous to that enactment, that the Crown
cannot be held liable under section 3(1)(a) unless
its servant could have been sued personally, by the
person claiming against the Crown, for the negli
gence relating to the act or the omission com
plained of.
The statement of the law by Rand J. in The
Cleveland-Cliffs Steamship Co. v. The Queen,
supra, at pages 814 and 815 of the report is very
topical.
Assuming that the centre red buoy was outside the easterly
channel line, there is nothing to show when or how it reached
that position. Nor have there been shown any circumstances
that could possibly lead to a cause of action against any servant
of the Crown. The administration of navigation aids depends on
the action by Parliament in voting money. But apart from that,
the conditions under which a Crown servant can be held
personally liable to a third person for failure to act in the
course of duty to the Crown require that there be intended to
be created, as a deduction from the facts, a direct relation
between the servant and the third person. The primary duty of
the Crown servants is to the Crown; and the circumstances in
which the servant can, at the same time, come under a duty to a
third person are extremely rare. The rule laid down in Gross-
man v. The King ([1952] 1 S.C.R. 571, [1952] 2 D.L.R. 241)
is, as I interpret it, this: that the servant from the nature of his
specific duty, a duty immediately related to action of the third
person, is chargeable with knowledge that the latter, in his own
conduct, is justifiably relying on the performance by the servant
of that duty, and that the servant is chargeable with accepting
the obligation toward the third person. In other words, between
them a de facto relation of reliance and responsibility is
contemplated. There are no such circumstances here. The
government administration, as disclosed by the evidence, is of a
general character, unrelated directly and immediately to any
particular navigational work in these waters and with no
acceptance by any of the public servants concerned of obliga
tion toward the third person, nor any immediate reliance on the
performance of individual duty related to the latter's use of a
public work. Buoys are not warranted fixtures for navigation.
Nothing has been shown of neglect in their original placement
or of failure to discover their change of position. The "sweep-
ing" and other work suggested to be done in the channel
assumes a duty on the Crown, not on a servant. The placement
and maintenance in position of these buoys is work under
direction of a general character. As a public accommodation,
their maintenance is, in relation to the individual servant,
attended to only in the aspect of the duty to the employer. So
far as the evidence shows, the direction and responsibility do
not go beyond the departmental offices. The situation is not,
then, one in which a personal liability is engaged by a Crown
servant; and there being no basis for the claim against a
servant, a prerequisite to a claim under s. 18(c) of the Excheq
uer Court Act against the Crown, the action on this ground
must fail. It is not contended that a claim lies based on a duty
owing by the Crown, and admittedly there is no such duty.
As the majority dismissed the appeal strictly on
the facts, this might be considered obiter, but a
similar statement of the law was made by Kerwin
C.J. at page 813 of the same report. The strictly
vicarious nature of the Crown's liability is also
confirmed in the following cases: Meredith v. The
Queen 18 ; Burton v. The Queen 19 ; The King v.
Anthony 20 ; and Magda v. The Queen 21 .
's [1955] Ex.C.R. 156.
19 [1954] Ex.C.R. 715.
20 [1946] S.C.R. 569.
21 [1953] Ex.C.R. 22.
As to the facts, in the first place the dredging
was done by Vigneault Navigation Ltd., an
independent contractor and not a servant of the
Crown; secondly, it was done pursuant to a con
tract and any failure to remove all of the shoal was
a failure to perform a contract in which the plain
tiff had no interest whatsoever; thirdly, Vigneault
Navigation Ltd. owed no duty to the plaintiff of
proper performance of its contract with the
Crown. I might add that, although all of the shoal
was not removed from the range line, it appears
from the predredging survey, as previously stated,
that the contract itself might not have provided for
the removal of the shoal on the actual range line
and it has, therefore, not been established that the
contractor was in actual breach of the terms of its
contract by reason of any failure to dredge along
the range line.
For the above reasons, I can find no liability
toward the plaintiff for failure to remove all of the
shoal or for the manner in which the dredging was
carried out.
(b) Navigational Aids
The next matter concerns navigational aids. The
only aids involved in any way were buoy 21D,
buoy 4, the 260° range lights and the lighthouse
on Dalhousie Island. As to buoy 4, there is no
issue: apparently it was at all times functioning
and in its proper place. There is also no evidence
that range line 260° was not properly installed or
functioning as it should. I accept and agree with
the evidence of Captain Boggild to the effect that
the 260° range shown for part of its length as a
solid line on the chart would not, in the context,
indicate a recommended track for a ship of the size
and draft of the Golden Robin, along which it
might safely proceed. The Pilot Fearon stated that
there was an understanding that they were to call
Captain Ball of the Pilotage Authority with
respect to any large ships, discuss the matter and
decide whether or not they should be handled. As
to the lighthouse, which had been changed some
what since the chart was issued, there was not the
slightest evidence that it was in any way relied on
to navigate or determine the position of the ship at
any time. On the contrary, the testimony of both
the pilot and the Captain established that the night
was so clear that all of the island was quite visible
and the ship was being guided in without any
reference to the light.
Buoy 2 1 / 2 D was a quick flashing red spar buoy
indicating a shoal on the starboard side of ships
entering port. (The quick flashing characteristic
indicates a "distinct cautionary emphasis.") I find
that it was most difficult to maintain in place and
was continually being dragged from its charted
position by the tides and currents acting on lumber
booms being floated on the Restigouche River. I
find further, on the evidence of Fearon, that the
pilots were fully aware of the difficulty of main
taining buoy 21D in its charted position and never
relied on it for navigational purposes, nor did
Fearon, in fact rely on it that night. He so stated
and added that, though he did not rely on the
buoy, he believed that on that particular night it
was on its charted position. The Captain also
stated in his evidence that he only relied on the
range lights and radar in so far as positioning the
ship was concerned. Buoy 2 1 / 2 D was not relied on.
The publication entitled Sailing Directions
— Gulf and River St. Lawrence, 1973 edition, pub
lished by Canadian Hydrographic Service is
required to be read in conjunction with all charts
issued by that service covering that region. It
contains the following statement at page 5 under
the heading "Buoys.—Caution.":
Mariners should not rely on buoys being in their charted
positions at all times. Buoys should be regarded as aids to
navigation and not as infallible navigation marks. The position
of any buoy may not be as charted due to storm, ice, collision,
or topographical features such as shoals, reefs, or ledges, that
tend to render the buoy easily displaced. Masters should always
navigate their vessels by bearings or angles on fixed shore
objects and by soundings whenever possible, rather than by
complete reliance on buoys.
I therefore conclude that no navigational aids
were in fact relied on except the range lights and
that these were in good condition, functioning
properly and in their true position. Thus, no re
sponsibility can attach to the defendant as to any
aids.
(c) Chart 4426 and Notices to Mariners
The plaintiff also claims that the chart was
incorrect and misleading and that the defendant
issued inaccurate or incomplete notices to mariners
and, thus, failed to fully warn as it should, of
known dangers which ultimately caused or con
tributed to the accident. Charts are representa
tions of the nature, character and position of navi
gational aids as well as of the land and bottom
configuration, depths and other features of both
the shore and the sea bottom. The information
given speaks, of course, as of the date of the last
survey which is always indicated on the face of the
chart. The last survey for the chart in issue was
1966, eight years previous to the accident. The
previous surveys were taken in 1923 and 1964. In
addition, a chart is to be read subject to all
reservations shown on the chart itself and subject
to any instructions, notices, cautions and other
hydrographic and navigational information com
municated in conjunction with, previous to or sub
sequent to the publication of the chart and which
are required to be read with it.
All information contained on a chart is there
primarily for navigational purposes. It is, there
fore, addressed to mariners, that is, persons who
are presumed to possess a working knowledge of
seamanship, navigation and related subjects such
as winds, tides and currents and who are, there
fore, presumed to read and apply the information
on the chart in the light of that expertise.
With regard to soundings, they are not a stand
ing offer of depth, that is, they do not constitute
guarantees that the depths shown will remain or be
maintained, unless there is representation to that
effect on the chart.
The mere preparation and issuing to the public
of a navigational chart covering any particular
area does not constitute the authority issuing
same, an owner of, occupier of or in control or
possession of the land or features represented by
the chart and, therefore, no liability can be found
ed on section 3(1)(b) on that basis. On the other
hand, as to any areas of the chart covering
wharves, docks, locks, man-made or dredged chan
nels and other such marine works, over which the
Crown does have control or possession, any mis
representation issued by or on behalf of the Crown
would, if damage resulted thereby, bring into play
the provisions of section 3(1)(b). Such is obviously
not the case here as the channel was a natural and
not a man-made one. Thus, as to the present issue,
there remains only section 3(1)(a) on which liabili
ty could be founded.
It was clearly stated by experts of the defendant
and Captain Reid, as well as any other mariner or
expert who was questioned on the point, that it is
elementary knowledge among seamen, that chart
ed depths are liable to constant change, especially
in river estuaries with shoals of mud and sand.
Furthermore, the publication Sailing Directions
— Gulf and River St. Lawrence, 1973 edition, (to
which I have previously referred) contains the
following statement under heading "Accuracy of a
chart" at page 4:
The chart represents general conditions at the time of surveys
and on what has been reported to the Canadian Hydrographic
Service, which does not necessarily portray present conditions.
Areas where sand or mud prevails, especially the entrances
and approaches to bays and rivers exposed to strong tidal
streams and heavy seas, are subject to continual change.
Section 4(1)(a) and the following cases The
Cleveland -Cliffs Steamship Co. v. The Queen;
Meredith v. The Queen; The Grit; and Hendricks
v. The Queen to which I have already referred (see
pages 157, 159 and 160 respectively) in dealing
with the question of liability for dredging are quite
pertinent.
From the law as expressed in that jurisprudence,
it must be determined whether any servant of the
Crown acted negligently in the performance of his
duties as a servant of the Crown and in addition
whether at law the servant could have been held
liable to the plaintiff for that negligence. Should
one of these two conditions not be fulfilled, then,
the Crown will not be held liable.
Following an incident in May 1972, when the
Golden Falcon lifted some three feet when coming
in along the range line, the local pilots attempted
to locate the high spot and could locate no shallow
er depth than thirty feet. Representations were
then made by the Pilots Association to the defend
ant as a result of which a line of soundings at
50-foot intervals and along a strip 300 feet wide
were taken between the 31st of May and the 9th of
June of that year, by the Hydrographic Survey
Services of the defendant. Following that, two
notices to mariners were issued in 1972, that is,
notices to mariners No. 622 on the 30th of June
and No. 1039 on the 3rd of November. No amend
ment to the chart and no further relevant notices
to mariners were issued from 1966, when the chart
was issued, up until the date of the accident.
A bottom survey was carried out in 1973 by the
Hydrographic Survey Services. Subsequently, in
1974, Hamilton's predredging survey of the area to
the north of the line was carried out. However, this
last-mentioned survey covers an area to the north
of the range line and not on the range line itself.
This is confirmed by one of the plaintiff's own
expert witnesses, one Mr. Redmond. It is thus of
no value in determining the present issue. The
1966 survey on which the chart was based was not
produced and no evidence of any soundings taken
between that date and 1972 was produced.
I therefore conclude that the plaintiff has not
established that, at the time the chart was issued
in 1966, the soundings and depth change colour-
ings on the chart were not accurate.
As to what might have transpired between 1966
and the date of the accident, two questions arise:
1. Whether there was any duty on the part of
the defendant to search out obstacles and record
them either by amendments to the chart or by
notices to mariners. In the case of natural chan
nels which is the situation in the case at bar, the
jurisprudence indicates that the answer is clear
ly "no."
2. Leaving aside the sole question of whether, in
the case of a natural channel, there exists at law
any duty on the part of any authority in control
of navigation, such as the defendant, to warn of
any hazard which it discovers or is brought to its
attention, and considering the situation where,
in addition, that authority actually undertakes
to issue a warning of the newly discovered
danger, does there arise at that time, a duty to
ensure that all of the hazard as discovered, is
sufficiently described to ensure that its extent
and nature is properly understood? In other
words, where description of only part of the
hazard, although accurate in itself, might,
because it is incomplete, reasonably tend to
mislead the mariner as to the full extent or area
of the hazard and such omission causes or con
tributes to an accident, is there liability arising
out of a duty to furnish a reasonably complete
description of the hazard?
The answer to this second question is by no means
as clear cut as the first one. For that reason, I
intend to consider it strictly in the light of the
particular facts of the present case.
As previously stated in my general finding of
facts, the shoal, in September 1974, existed direct
ly on and in the vicinity of range line of lights
260°. The range line was represented on chart
4426 by a solid line. This, according to interpreta
tion of chart symbols as issued by the defendant,
when used to indicate a range or line of lights,
means also a "recommended track," while a
broken or interrupted line simply means the direc
tion of the range or actual line of the lights.
The text of the report of the 1972 survey, on
which the two previously mentioned notices to
mariners were based, read as follows: "A shoal was
found approximately 50 feet north of the range
line with a reduced depth of 17 feet. This shoal
extends over the range line with a least depth on
the range of 26 feet." The two notices to mariners,
on the other hand, each indicated only the pres
ence of one high spot or sounding, one at a depth
of 17 feet and the other at a depth of 26 feet, with
both of these soundings north of the range line. No
indication was given of any extension of the
26-foot depth to or beyond the range line to the
south.
On examining the 1973 survey, there is no doubt
that, at that time also, the defendant's servants in
the Hydrographic Survey Services, if they even
looked at the document, could not help but be fully
aware that a shallow depth of some 26 feet extend-
ed across the range line to a distance of some 25
feet south of the line. The chart itself, since it was
coloured white at that point, represented that all
depths for some distance north of and on the range
line as well as south of it were over 30 feet above
chart datum and, furthermore, the nearest sound
ing figure showed seven fathoms or 42 feet above
datum.
I reject the evidence of the expert hydrographer
of the defendant who stated that the reason why
the chart itself was not amended either in 1972,
1973 or before the accident was because, being of
such a small scale, that is 1:36,360, more informa
tion could not be inserted without cluttering it up
and rendering it difficult to read and decipher. In
the first place, the warning could have been
accomplished very easily by a proper notice to
mariners describing the extension of the shoal as
discovered in 1972, much along the same lines as
the interdepartmental report quoted above, rather
than by merely indicating the presence of two spot
soundings. In the second place, and more impor
tantly, in 1976 an amendment to the chart was
published extending the 30-foot contour by a
dotted line well south of the range line and the
chart remains every bit as clear and legible as it
was previous to the amendment.
It is not an answer to say that no hydrographer
contradicted this evidence at trial. A chart is not
addressed merely to hydrographers.
It is true that the round mound marked with a
depth of 17 feet and coloured deep blue indicating
a maximum depth of 18 feet might perhaps be
taken to imply the possibility of the existence of a
depth of less than 30 feet near the range because
of the nature of the bottom and the comparatively
close proximity of the mound to the range, but it
might equally indicate a very steep drop north of
the range because, unlike other parts of the chart,
there is no light blue colouring adjacent to it
indicating a 30-foot contour. On the contrary, the
closest sounding immediately to the south of the
mound and still to the north of the range line
showed a depth of 42 feet. This could not have
been the situation in 1972 and 1973 and the
defendant's servants were aware of it. In the light
of this evidence, I find that the mere issuing of the
two notices to mariners covering two spot sound
ings to the north of the range line, which remained
a recommended track, albeit not necessarily a
track recommended for deep draft vessels, was in
fact misleading and amounted to a misrepresenta
tion. Much greater care must be taken in the area
of such a line than in ordinary circumstances. This
was, to the knowledge of all of the departments
involved, a critical and sensitive area. The mis
representation, however, although negligent was
an innocent one: there certainly was no intention
to deceive.
Counsel for the defendant argued that, even if
there might have been a misrepresentation, there
was no duty owed the plaintiff in this action in
regard to same. He referred to the dictum in Lord
Denning's dissenting judgment in the case of Can-
dler v. Crane, Christmas & Co. 22 , which was
subsequently approved by the House of Lords in
the well-known case of Hedley Byrne & Co. Ltd. v.
Heller & Partners Ltd. 23 Lord Denning in the
Candler case stated at pages 182 and 183 of the
above-mentioned report:
Thirdly, to what transactions does the duty of care extend? It
extends, I think, only to those transactions for which the
accountants knew their accounts were required. For instance, in
the present case it extends to the original investment of 2,0001.
which the plaintiff made in reliance on the accounts, because
the accountants knew that the accounts were required for his
guidance in making that investment; but it does not extend to
the subsequent 200l. which he made after he had been two
months with the company. This distinction, that the duty only
extends to the very transaction in mind at the time, is implicit
in the decided cases. Thus a doctor, who negligently certifies a
man to be a lunatic when he is not, is liable to him, although
there is no contract in the matter, because the doctor knows
that his certificate is required for the very purpose of deciding
whether the man should be detained or not; but an insurance
company's doctor owes no duty to the insured person, because
he makes his examination only for the purposes of the insur
ance company: see Everett v. Griffiths ([1920] 3 K. B. 163,
211, 217), where Atkin, L.J., proceeds on the self-same princi
ples as he expounded fully later in Donoghue v. Stevenson
([l932] A. C. 562). So, also, a Lloyd's surveyor who, in
surveying for classification purposes, negligently passes a mast
as sound when it is not, is not liable to the owner for damage
caused by it breaking, because the surveyor makes his survey
only for the purpose of classifying the ship for the Yacht
Register and not otherwise: Humphery v. Bowers ((1929) 45 T.
L. R. 297). Again, a scientist or expert (including a marine
hydrographer) is not liable to his readers for careless state
ments in his published works. He publishes his work simply for
22 [1951] 2 K.B. 164.
23 [ 1964] A.C. 465.
the purpose of giving information, and not with any particular
transaction in mind at all. But when a scientist or an expert
makes an investigation and report for the very purpose of a
particular transaction, then, in my opinion, he is under a duty
of care in respect of that transaction.
It will be noticed that I have confined the duty to cases
where the accountant prepares his accounts and makes his
report for the guidance of the very person in the very transac
tion in question. That is sufficient for the decision of this case.
I do not agree with counsel's argument that the
law as enunciated by Lord Denning would apply to
the case at bar. In both the Candler and the
Hedley Byrne cases, the honest non-contractual
misrepresentation was made to a specific individu
al for a very definite purpose by the person pos
sessing special knowledge. In those cases, it was
held that the duty extended only to the particular
transaction in the contemplation pf the parties and
only to the parties themselves. It has also been
held that it extends to persons whom one might
reasonably expect to be directly or necessarily
involved even though the person or persons might
not be known to the defendant. (See Haig v.
Bamford 24 .) There exists the requirement in such
cases, however, of some special relationship be
tween the party making the presentation and the
party relying upon it.
In the case at bar, not only is the representation
made for a public purpose or object (i.e., aiding
and assisting navigation in the area) as opposed to
a private object (i.e., advising an individual), but
the representation itself is made to and intended
for the public at large or, at least, to a special class
of the public, namely all mariners who might be
expected to use the chart. It was also made with
the full knowledge and expectation on the part of
the authority making it, that it would be relied on
by the masters of ships and other craft sailing
those waters, to ensure the safety of their vessel,
cargo and passengers. Where such public represen
tations for public purposes are made, with full
expectation of a reliance on the representations,
there is no need for the existence of any greater
particular or special relationship between the
person making them and the person relying on
them for a duty to take care to arise. In addition,
24 (1977) 72 D.L.R. (3d) 68.
where, as in the present case, the safety of many
lives and serious damage to property might well be
at stake, and the breach of duty may thus result in
very serious consequences, the degree of care must
be correspondingly high.
On the basis of the above findings of fact and of
my view of the law, I would, if the Crown were an
ordinary defendant, find it responsible at law for
any damage resulting from the misrepresentations
made in issuing the incomplete notices to mariners
which, having regard to the other information on
chart 4426 might reasonably be expected to mis
lead any person wishing to follow a course into
harbour on or immediately to the south of the
range line.
However, it is quite evident that the Crown's
liability is strictly statutory and is limited to the
terms of the statute creating liability. For reasons
previously stated, it is only section 3(1)(a) and not
section 3(1)(b) of the Crown Liability Act which
can apply to the issue of misrepresentation as
outlined in these reasons. Although the liability in
tort stands to be determined in accordance with
the law of the province where the tort occurred, in
this case the Province of New Brunswick, that law
applies only to the extent that it is not repugnant
with the nature of the liability created under the
Crown Liability Act. (See Gaetz v. The Queen25.)
1 cannot, in the circumstances of this case, find
that, as contemplated by the law, there exists any
"direct relationship" between the plaintiff and the
servant or servants of the Crown who neglected to
perform his or their duty. I refer particularly to
the statements of Kerwin C.J. and Rand J. in The
Cleveland -Cliffs Steamship Co. v. The Queen
case to which I previously referred at pages 156,
159 and 164 of these reasons and to the decision of
the majority of that Court in Grossman v. The
King which was quoted by both Kerwin C.J. and
Rand J. in the former case.
It is of some importance to note that at the time
of the Grossman decision where no vicarious liabil
ity was found and of other decisions of the
25 [1955] Ex.C.R. 133.
Supreme Court of Canada such as The King v.
Canada Steamship Lines, Limited 26 where the
Crown was found vicariously liable, although a
provision identical to section 3(1)(a) of the Crown
Liability Act was to be found in the Exchequer
Court Act, there was no specific statutory provi
sion similar to the present section 4(2) of the
Crown Liability Act. This might well explain the
decision in The King v. Canada Steamship Lines,
Limited, supra, and it certainly accounts for cer
tain reservations expressed by Cartwright J. [as he
then was] in the Grossman case, where he never
theless agreed with the decision of the majority
that The King v. Anthony, supra, should be
applied.
Where the direct or personal responsibility of
servants or agents toward third parties has been
considered by the Supreme Court of Canada, it
has, in certain instances, such as the Grossman
decision, supra, alluded to the relevance of the
distinction between occurrences due to misfeas
ance as opposed to non-feasance. Several English
courts relied on this distinction. The case at bar
might better be characterized as one of non-feas-
ance, since the plaintiff has failed to establish that
the point sounding described in either of the
notices to mariners was incorrect. My finding of
negligence is based solely on the fact that the
notices were quite incomplete and for that reason
were misleading in the circumstances of this case.
This might well constitute misfeasance, but, in any
event, liability does not here turn on that issue.
None of the servants engaged in either taking
the soundings, preparing the surveys or reports
and, finally, the notices to mariners were servants
of the Crown who were in the course of their
duties as such required to deal in any way with the
public. Their duties were all exclusively owed to
the Crown ex contractu and did not, even indirect
ly require them to have anything to do with those
members of the public who ultimately would ben
efit or suffer from the consequences of their joint
efforts. The only servant or servants who might
possibly be found to be subject to any such rela
tionship would be those who actually issued or
26 [ 1927] S.C.R. 68.
ordered the issuing of the notices to the public.
The plaintiff has failed to establish that any such
servants were actually persons who personally pos
sessed or would be expected to possess personally
the special knowledge required to render them
liable at law in their personal capacity for com
municating the innocent misrepresentations in
issue. It appears that a hydrographer might not be
liable in tort to a member of the public even if he
were not merely an employee obtaining informa
tion for a principal but also the person actually
publishing the hydrographic information for public
use. At least, this is Lord Denning's view as stated
in the Candler decision to which I have already
referred. I might add, however, that I do not
consider this to be settled law in Canada or even in
England.
I would, for the above-mentioned reasons, dis
miss the case on the basis that, in the present
circumstances, no duty to take care was owed to
the plaintiff by any servant of the Crown because
no "direct relationship" or sufficient relationship
existed between them to create that duty.
At the outset of the trial, both parties indicated
that, should they not be successful, their intention
was to appeal to the final level of the Supreme
Court of Canada if necessary. The trial involved
not only determination of several issues as to lia
bility including alternative defences but also an
assessment of damages. It was a comparatively
lengthy trial involving considerable expense and
preparation as well as the testimony of many
expert witnesses, several of whom were from out
side Canada. As it always remains possible that an
appellate tribunal might, on the facts or on some
legal grounds such as the rule of reasonable
foreseeability as laid down in M'Alister (or
Donoghue) (Pauper) v. Stevenson 27 , come to an
opposite conclusion and decide that the servant
would be responsible to the plaintiff, I shall now
proceed to make certain findings on the other
issues raised and also on the question of quantum
of damages, as if I had in fact found that the
provisions of section 4(2) of the Crown Liability
Act had been satisfied. It is hoped that this might
obviate the necessity of a new trial and its attend
ant delays, costs and expenditures, should an
27 [1932] A.C. 562.
appellate tribunal come to a decision contrary to
mine as to the effect of section 4(2) and should it
also wish to finally determine all the issues be
tween the parties.
CAUSE OF SHEERING
In 1972, shortly after deep draft vessels began
using Port Dalhousie, the Golden Falcon, a sister
ship of the Golden Robin, struck bottom and lifted
about three feet when being piloted by Mr.
Fearon. It was drawing about 34 feet of water at
the time and was moving toward the entrance to
the harbour on a course immediately to the south
of the 260° range line. The ship was not damaged
but the incident led to a report by the Pilots
Association which ultimately led to the 1972
soundings which in turn resulted in the two notices
to mariners No. 622 (June 1972) and No. 1039
(November 1972) being issued.
Ever since the Golden Falcon grounding, Mr.
Fearon and the other pilots at Port Dalhousie had
been guiding in all deep draft vessels along a
course which curved in toward the entrance of the
harbour from the southeast, in order to keep well
clear of the range line to the north until reaching
the narrow entrance of the harbour in the vicinity
of buoy 4D, upstream of Dalhousie Island.
Approximately twenty-five deep draft tankers
were brought in along this course. Since 1972, Mr.
Fearon had, without experiencing any trouble, not
only piloted in other deep draft vessels but had, on
four or five occasions, brought in the Golden
Robin itself along this southerly course. It was
clearly established that Mr. Fearon and the other
pilots were all fully aware of the danger which
existed prior to the dredging operations which
commenced on the 9th of September 1974, and
terminated on the 18th day of September 1974, of
going near range 260° with deep draft vessels
except in the immediate vicinity of buoy 4D.
Where dredging has taken place along a naviga
tional channel, it is invariably the practice to carry
out a postdredging survey of the area to ensure
that all high spots have been completely removed
and that the area has been dredged throughout to
the required depth. The pilot was fully aware of
this and was aware that the survey had not yet
been carried out.
He stated that, subsequent to the 18th of Sep-
tember, he had on six to eight occasions personally
carried out some soundings using his 16-foot pilot
boat and his depth sounder. Some of these were
carried out while going out to meet incoming
vessels. He apparently sounded on a couple of
occasions from incoming shallower draft vessels
when piloting them in along the range.
The evidence also establishes that local pilots
were normally so familiar with their local waters
that, in order to determine position and course at
any time, they did not have to refer to charts for
information or to the position of navigational aids,
with the possible exception of the range lights.
They also relied to a great extent on their knowl
edge of the surrounding landscape, especially per
manent shore lights, buildings and other such fea
tures. Fearon stated that the pilots, upon a new
chart being issued, would look it over to see if
there were any changes, but, other than that, they
would not use the chart.
In so far as buoy 2 1 / 2 D was concerned, the pilot
was also fully aware that it could not be main
tained in position because of the log booms in the
river mouth and did not rely on it for positioning
his ships. He indicated that the landmarks were
generally relied on. When questioned as to chart
4426, he could not even be certain whether he saw
it at all on that night.
As an explanation as to why he chose to adopt
the course along range 260 that night, he stated
that he and the chief pilot had, a couple of weeks
previously, whilst a dredge was still working on the
range, decided that after the dredging was com
pleted they would use range 260. It is, of course,
obvious that it is much easier to approach the
harbour by following a straight course along a line
of range lights leading directly from the open
water to the east into the harbour, than by a
curved approach from the southeast. I do not
accept, however, that there ever was a decision by
the senior pilot or anybody else except Mr. Fearon
to follow range 260° until after the postdredging
survey had been completed. I find that the pilot
was not in any way misled by any failure on the
part of the defendant to properly or fully describe
existing shoals or high points on the chart or in the
notices to mariners nor by any failure to maintain
buoy 2 1 D in its fixed charted position nor any
other regular navigational aid.
In this respect, the case of Workington Harbour
and Dock Board v. Towerfield (Owners) 28 is worth
considering. The fact that the action involved a
grounding in a man-made channel is, of course,
crucial to the decision. The House of Lords treated
the case as one involving occupier liability, that is,
the relationship of invitor and invitee. Negligence
was found on the part of both the pilot and the
harbour authority. A plan supplied by the Harbour
Board to the Admiralty showed a channel having a
width of 250 feet. This was reproduced by the
Admiralty as an insert on its plan. It was stated on
the insert that the channel and turning basin were
maintained by dredging to a depth of 4 1 / 2 feet
chart datum. The information given to the Admi
ralty by the Harbour Board was inaccurate and
misleading as the advertised depth had seldom, if
ever, been maintained and the channel was sub
stantially narrower than its advertised width. The
Admiralty, as the chartmaker, was never made a
party but it seems that as such it would not have
been found responsible.
In touching upon the duty to warn pilots of
dangers, Lord Normand stated at page 140 of the
report:
The pilot also is a user of the harbour and the appellants
were under a duty to warn him as well as the master of the
Towerfield against any unexpected dangers affecting the navi
gation of the channel.
But the pilot was not a stranger to the port and it was his
business to make himself familiar with the conditions affecting
safe navigation within it. The appellants were not bound to
warn him of dangers of which any competent pilot ought to
have known, for the measure of the duty to warn of unexpected
dangers must depend upon the qualifications and presumable
knowledge of the person to whom the duty is owed. But there is
one respect in which I think it is proved that the appellants
failed in their duty to the pilot. It is not enough that a pilot
should know of the existence of obstructing banks. He should
know as accurately as is reasonably possible the limits of the
navigable water in the channel. That knowledge was not avail
28 [1951] A.C. 112 (H.L.).
able to him because the appellants, as has been shown, neglect
ed their duty. The neglect can be brought to a precise date, for
the learned judge has held that there was no reason why
soundings were not taken on October 6 and 7. I agree with the
finding and my conclusion is that there was here a breach of
the duty owed to the pilot in failing to make available to him
records of reasonably accurate soundings taken at the latest
practicable date.
The case at bar is to be distinguished on the
facts from the Workington Harbour case, supra,
because here the pilot's action is entirely attribut
able to his own decision based on his personal
knowledge of what the actual situation was previ
ous to the dredging and his assumption based on
his own observations that the dredging had effec
tively cleared away the shoals. It is axiomatic to
say that for any misrepresentation to be actionable
it must have actually misled or influenced the
person whose action or decision resulted in the
damage. It is equally axiomatic that the plaintiff
must not only prove negligence on the part of the
defendant but must also establish that the negli
gence caused or contributed to the accident.
In the result, I cannot find that any misrepre
sentation by the defendant or any breach of any
possible duty to inform in any way caused or
contributed to the decision of the pilot to follow
range 260 that night for the first time since the
Golden Falcon grounding in 1972.
My conclusions on this issue may be, therefore,
summarized as follows: the defendant has estab
lished by positive and convincing evidence that, in
addition to the existence of the shoal, the sheering
was caused by the decision of the pilot to adopt a
course along range line 260 and the plaintiff has
failed to establish that the decision was in any way
influenced by any negligence or misrepresentation
of the defendant.
NEGLIGENCE OF THE PILOT
In the event of there being a contrary finding by
a higher tribunal that the misrepresentations did in
fact cause or contribute to the pilot's decision, the
question of possible contributory negligence on the
part of the pilot or the Captain or other servant of
the plaintiff would arise. It would, therefore, be
useful to comment on the issue of the pilot's
negligence.
On this issue, in addition to the findings under
the next preceding heading which led to my con
clusion as to the cause of sheering, the circum
stances under which and the manner in which the
soundings were taken by the pilot are quite
pertinent:
1. There is no evidence that the pilot had any
training whatsoever as a hydrographer in taking
soundings or in the use and limitations of a depth
sounder.
2. Even among those who did qualify at trial as
experts in the field of hydrographic surveying,
although there was a great similarity in their
results, there was not complete agreement on all
points as to the configuration of the bottom and
there was some doubt as to the actual location of
one of the surveys in relation to the range line.
3. The soundings were taken from his pilot boat
by means of an uncalibrated depth sounder during
a period when the authorities of Canadian Hydro-
graphic Surveys felt that weather conditions were
unsuitable for carrying out a survey.
4. There is no evidence that the soundings were
based on any particular methodical sectioning and
exploration of the critical area. On the contrary,
the evidence indicates that he merely took the
soundings on runs in his boat along and in the
vicinity of the range line. He did not attempt to
determine with any instrument where the dredging
was being done nor by talking with anybody actu
ally involved in the dredging.
5. He could not recall even approximately the
minimum depth which he found nor is there any
evidence of notations made as to the actual state of
the tide at any particular time.
6. After the incident of the Golden Falcon in
1972, the pilots at Port Dalhousie attempted to
locate the shoal but were unable to locate any
sounding shallower than 30 feet. Yet, a few weeks
later, the hydrographic survey by the defendant
revealed the 17 feet and 26 feet soundings.
The decision of the pilot, taken under the cir
cumstances which I have previously described, and
particularly in view of the fact that he knew that
the high points had existed previous to the dredg
ing and knew or should have known that, until the
postdredging survey had taken place and the
results announced, there could be no assurance
that the shoals had been completely removed,
amounted to much more than a mere mistake in
judgment of the type which would not constitute
negligence at law. He was not justified in relying
either on the haphazard and inexpertly conducted
soundings which he made or on his ability to
conduct proper soundings in the circumstances
which prevailed. With regard to the dredging, he
had never checked with either the people involved
in the actual dredging, the dredging contractor,
the Departments of Public Works or of Transport
or the harbour master.
I, therefore, conclude that, in acting as he did,
under the above-mentioned circumstances, the
pilot was negligent when, with full knowledge of
the inherent dangers and of the possible conse
quences and without any justification, he chose to
expose the Golden Robin on a hazardous course
when a tried and relatively safe course existed. I
also find that it was this action of the pilot which
resulted in the sheering of the ship off the shoal.
EFFECT OF MISREPRESENTATION ON CAPTAIN'S
DECISION
Although I have found as a fact that the pilot's
decision to follow the course which he did was not
influenced in any way by any lack of information
on the chart or in the two notices to mariners,
which lack of information I have found amounted
to misrepresentation in the circumstances, there
remains the complementary question of whether
the Captain would not have agreed to the course
suggested by the pilot, had all of that information
been supplied by the defendant previous to the
accident. In such event, the misinformation would
indeed constitute one of the contributory causes of
the mishap.
Some of the considerations hereinafter men
tioned under the heading "NEGLIGENCE OF CAP
TAIN" (refer page 180 infra) are relevant to this
issue. I will merely mention them here.
The course from the anchorage was within a
compulsory pilotage area. The Captain was totally
unfamiliar with those waters. It was evident to him
that the course involved passing through compara
tively narrow waters at a river estuary over a mud
bottom, where the combined effects of wind, ice,
tide and currents, would most likely cause constant
changes to the configuration of the bottom and
that the true situation at that time might bear
little resemblance to the information shown on the
chart. He knew that the ship had been piloted into
the harbour on other occasions without incident.
He consequently relied on the knowledge of the
pilot as to local up-to-date conditions and on the
latter's decision as to the proper course to be
followed.
Captain Reid was quite vague as to the
approach course which was followed and in his
evidence regarding the course and position of the
ship in relation to the range line just before the
sheering occurred. His evidence on discovery on
this last issue did not conform to his evidence at
trial. He himself described or characterized his
recollection as being approximate or general. I find
that he did not discuss the course in any detail
with the pilot. Had he done so the pilot would, at
the time of the original inquiry held very shortly
after the grounding and then later on during his
examination for discovery, have been able to recall
that he had at least seen a copy of chart 4426 on
the Golden Robin that night. Similarly, the Cap
tain would have been able to recollect the course
much more accurately, in greater detail and with
greater assurance, since the course and position of
the ship undoubtedly constituted one of the basic
questions raised at the time of the inquiry.
Conditions were ideal; one could see everything
including the land features quite clearly and there
was no need to use radar. There is no evidence
whatsoever that the Captain consulted the chart
after the ship left the anchorage. If he had, he
would have stated so and, furthermore, the pilot
who was with the Captain on the bridge at all
times, would at least have recalled seeing the chart
on the bridge.
I therefore find that in fact the Captain did not
consider on the chart the suggested course in any
detail either before or during the approach to the
range line and the shoal and relied for the decision
on the course to be followed on the expertise of the
pilot. I conclude on this issue that the plaintiff has
failed to establish that the existence of any lack of
information, which, I have held, amounted to mis
information, caused or contributed to the accident
since neither the pilot nor the Captain was in fact
misled by the misinformation. The action must
therefore fail on these grounds also since they were
the only two who might have been misled and who
were responsible for the course followed.
Because the above conclusions might imply that
there was negligence on the Captain's part and
also because considerable evidence was led by the
defendant, including expert evidence, in an
attempt to establish its plea of contributory negli
gence based on the alleged negligence of the Cap
tain, I will deal with this issue notwithstanding the
fact that I have found no liability on the part of
the defendant.
NEGLIGENCE OF CAPTAIN
One Captain Boggild was called as an expert
witness of the defendant. With the wisdom afford
ed by hindsight, it is not difficult to accept the
proposition that the plan of approach chosen by
Captain Boggild is to be preferred to that agreed
to by the Captain of the Golden Robin. Even
without hindsight, if one were attempting to plot
the ideal approach course, merely from the infor
mation to be gathered from chart 4426 as amend
ed at the time by the two relevant notices to
mariners, and without the benefit of any detailed
knowledge of the actual local conditions such as
bottom configuration, tides and currents, Captain
Boggild's suggested course does appear to be pref
erable to the course actually chosen, even though
Captain Boggild's suggested track involves a 15°
change of course (from 285° to 270°) in compara
tively narrow waters of between one-half to one
cable in width and at a point affording little
margin for error.
According to an expert of the plaintiff called in
rebuttal, the course suggested by Captain Boggild
would be hazardous for precisely that very reason.
On applying easy helm of 10° to 15°, the quarter
of the Golden Robin would be moved out from the
original track, a distance of the order of 100 to 130
feet and, in planning any route through a narrow
channel, this extra width of the ship's path would
have to be considered. However, a similar course
involving an equally large change of heading and
very close to the same point had in fact been
adopted and safely used by all local pilots for all
deep draft vessels since the incident of the Golden
Falcon in 1972.
I am, on the balance, prepared to accept Cap
tain Boggild's evidence to the effect that, from an
examination of chart 4426, his suggested course
would be preferable from the standpoint of good
seamanship and navigation to that which Captain
Reid apparently agreed to adopt.
It does not necessarily follow, however, that
Captain Reid was, because of that fact, guilty of
negligence. When, as in the present case, several
courses or more than one course are open, failing
to adopt the ideal one does not necessarily consti
tute negligence. The test to be applied is that of
the reasonable man, not that of the ideal or the
perfect man.
It is true that much greater care and skill is
required of a master mariner acting as the Captain
and master of a ship than would be required of an
ordinary person performing an every-day task, yet
the measure is still reasonableness and not perfec
tion. It remains the degree of skill and diligence
which is generally to be found in experienced
persons discharging their duty under the circum
stances prevailing at the time. In other words, the
test is what a careful and prudent master possess
ing the required skills might reasonably be expect
ed to do in any given circumstance. Lord Black-
burn stated in The Stoomvaart Maatschappy
Nederland v. The Directors, &c., of The Peninsu
lar and Oriental Steam Navigation Company 29 at
pages 890 and 891:
I should add, to prevent possible misapprehension, that
although apart from statute law, the duty which the Court casts
upon him who has the management and control of a ship at sea
is the same as that which the law casts on those who have the
management of a carriage on shore, viz., to take reasonable
care and to use reasonable skill to prevent it from doing injury,
yet that the different nature of the two things makes a great
difference in the practical application of the rule. Much greater
care is reasonably required from the crew of a ship who ought
29 (I880) 5 App. Cas. 876.
to keep a look out for miles, than from the driver of a carriage
who does enough if he looks ahead for yards; much more skill is
reasonably required from the person who takes the command of
a steamer than from one who drives a carriage.
I adopt this statement of the law. The course
suggested by Captain Boggild is not ideal in the
sense that it involves no risk, because the change of
course at the place indicated does include a certain
element of risk. It is a course which, on careful
analysis, appears to be preferable and no more. It
is a question of judgment, for, even after mature
consideration, the experts themselves could not
agree at trial on whether it was the better course.
The question, which I must ask myself in the
case at bar, is whether a person possessing the
skills and knowledge required of a competent
master of a tanker such as the Golden Robin,
would probably, in the light of all of the circum
stances of this particular case, be considered to
have failed to exercise reasonable care in agreeing
to the course suggested by the pilot.
It is one thing to choose from a small scale chart
what might appear to be the better course and
quite another to presume that the course suggested
by the pilot which involves lining up on the 260°
range well before reaching the narrow waters
south of buoy 4D rather than effecting a 15° turn
immediately before that point, should not be
accepted by a competent Captain exercising
reasonable care, or should even, in the circum
stances of this case, be put in question by the
Captain. On leaving the anchorage the Golden
Robin entered a compulsory pilotage area. The
Captain was obliged by law to receive from the
pilot precise directions as to timing, speed and
course and would normally be expected to follow
them unless he had reason to believe that the
safety of the ship or its crew was endangered. Pilot
Fearon could be presumed to be, and in fact was,
experienced and quite familiar with the area. Cap
tain Reid who had never before been to Port
Dalhousie was, in the absence of any evidence or
actual knowledge to the contrary, entitled to rely
on the familiarity and knowledge of the pilot as to
local conditions and, more specifically, as to
depths and courses. The Golden Robin had, on at
least four or five previous occasions in the two
preceding years, been safely piloted into Port Dal-
housie. Although, unfortunately, the Captain does
not seem to have been questioned on this point, he
may reasonably be presumed to have been aware
of this from either the ship's log, the owners, the
charterers or the crew. The Captain had no reason
whatsoever to suspect that the pilot had chosen to
depart from the usual approach plan and was for
the first time since 1972 adopting a line of
approach along range 260° or that the new course
passed over a recently dredged area which had not
yet been verified by a postdredging survey. He
stated and I accept his evidence on this point, that
the pilot never told him that the ship was to be
taken through a recently dredged area.
I find that the so-called plan of approach was
certainly not discussed with any precision or in any
detail. The pilot was completely familiar with the
waters and it appears that he would have merely
indicated generally the course which he intended
to take. According to good seamanship and navi
gational practice, it is not the custom nor is it
considered necessary in such circumstances actual
ly to plot the course of the ship on the chart. Most
of the time it would be completely impractical to
do so as the pilot frequently boards the ship while
it is underway into port. I accept the evidence also
that most local pilots do not even refer to a chart
but rely entirely on their local knowledge of the
waters to guide the ship in. Indeed, he could not
recall whether he had in fact even seen chart 4426
on that occasion. Finally, the conditions of sea,
weather and visibility were ideal. There was noth
ing to alert the Captain to any particular danger.
It is true that in such places as river estuaries,
there is always a much greater possibility of rapid
and dramatic changes to the bottom due to silting
and to the action and counteraction of currents
and tides, but it is precisely due to this that a
Captain is entitled to rely on the up-to-date knowl
edge of the pilot as to local conditions, especially
when, as in the present case, the survey on which
the soundings, contours and coloured depth indica
tions are established on the chart is several years
old.
In those circumstances, I am not prepared to
hold that the Captain was in any way negligent in
agreeing to the suggested course, nor can I find
any failure on his part to exercise properly his
duties as the master of the Golden Robin, in
accordance with good seamanship and recognized
navigational practice.
CAUSE OF GROUNDING
Counsel for the defendant, as an alternative
defence, led considerable evidence in an attempt to
establish that, even if the defendant were in any
way to be held responsible at law for the actual
sheering to port of the shoal near range 260, if the
ship had responded as it should have to the helm
and engine orders which were given after the sheer
was noticed, it could not possibly have continued
on its course to port across the channel to be
damaged as it was on a rock off the shore of
Dalhousie Island. On the contrary, according to
the defendant, the sheer would quite easily have
been controlled by a change of course to starboard
and the Golden Robin would have continued safely
on its way into Port Dalhousie.
Though this issue required several days of trial
time and considerable technical and expert evi
dence, I do not intend to deal in any great detail
with the scientific aspects of the evidence. I will,
however, make certain general findings of fact
based on the expert evidence as a whole as well as
the related factual evidence touching upon the
occurrences of that night and also comment on
certain aspects of the evidence.
Considerable argument was addressed to the
time which elapsed between the moment when the
sheer first developed and the moment when the
ship struck the rock off Dalhousie Island on the
opposite side of the channel. This, of course, is
very important when attempting to determine
whether the ship responded as it should have to the
orders given from the bridge and executed in the
engine room. The bridge bell log and the engine
room log both agree as to the time which elapsed
between each order to the engine room. It is true
that the entries are generally made to the nearest
minute (although some entries show half minutes)
and that, by coincidence, both could show either
too long or too short a time. But neither the
evidence of Fearon nor of the Captain would justi
fy any finding other than that recorded in both
logs, the one on the bridge being the responsibility
of the first officer who recorded the time by the
ship's clock as he signalled each order to the
engine room on the ship's telegraph and the other
that of the engineering officer as he received the
signal in the engine room and also recorded it on
the log there. There does not appear to be even the
slightest suggestion in the evidence that the time
spans so recorded would not, in all probability,
reflect the true state of affairs.
Although there is some uncertainty as to the
degree of sheer which was experienced, I find that
it amounted to something approaching but not
exceeding 15° to port. When the sheer occurred,
the engine was turning slow ahead, i.e., 25 rpm
and was manoeuvring at a speed of approximately
41 knots through the water. The sheering was
noticed when it had moved some 1.7° to port
whereupon corrective rudder action was taken by
ordering right full rudder and the order "half
ahead" was given to be followed a few seconds
later by "full ahead" (i.e., 75 rpm). Since the ship
was in its manoeuvring state and the engine room
personnel would have been on the alert at their
respective posts, it would have taken approximate
ly ten seconds from the time the sheer was actually
noticed for the order for increase of speed to be
given and executed, that is, for the engines to
commence to respond to the "half ahead" order.
"Half ahead" was actually ordered at 4:10 a.m.
and, before the engine could attain the number of
revolutions ordered, the order of "full ahead" was
given. I therefore find that it would not have made
any difference if "full ahead" had been ordered
immediately rather than "half ahead."
The ship continued to sheer off on a northwest
erly course toward the southeast tip of Dalhousie
Island. At 4:12 a.m., that is two minutes after the
order of "half ahead" was given, "slow ahead" was
ordered followed immediately by "dead slow
ahead" and approximately one minute later, that
is at 4:13 a.m. the bottom on the port side forward
struck a rock or rocks on the edge of Dalhousie
Island.
The evidence of both the Captain and the pilot
establishes quite clearly that, in the two minutes
which elapsed from the moment that the order
"half ahead", followed almost immediately after
wards by "full ahead", was given until the order
"slow ahead" was given, the ship's engine never
reached its maximum revolutions of 75 rpm at
manoeuvring speed. The Captain stated that it had
reached 50 rpm and the pilot, 65 rpm. I am much
more inclined to accept the Captain's evidence
rather than the pilot's mainly because of the for-
mer's greater familiarity with the ship and also in
view of the fact that the pilot believed that the
maximum rpm at manoeuvring speed was 95 rpm
in lieu of 75 rpm. I therefore find that the ship had
only reached 50 rpm in two minutes from a speed
of 25 rpm when the order was first given to correct
the sheer.
On the issue of the time required to increase
from 25 rpm "slow ahead" to 75 rpm "full ahead"
at manoeuvring speeds, Captain Reid stated that it
would take between 25 to 40 seconds while Mr.
Cowing who had been the chief engineer of the
Golden Robin for one and a half years and left the
ship in August 1970, stated that it would take
about thirty seconds. The latter also stated that
loss of vacuum and steam will cause an engine to
slow down even though there is no change in the
controls. He also stated that this would be noticed
in the engine room. Although the ship's documents
do not indicate that the engine was defective at
that time, no witness was called who was present
in the engine room on that night. Even allowing
ten seconds for total reaction time, which I find on
the evidence to be ample, the engine should have
taken between 35 to 50 seconds to reach 75 rpm.
The evident lack of engine response remains com
pletely unexplained. There is no evidence that
there was any defect with the rudder or in the
steering system and I must conclude that they
were functioning properly. All experts seem to
agree that the proper corrective engine and helm
orders were given as soon as the sheer was noticed.
The engine room bell order book indicates that the
orders were received and properly executed on
time. There is an exact correlation between that
log and the bridge movement book.
Although the onus of establishing that the
engine was defective is clearly on the defendant,
the evidence adduced would require some explana
tion on the part of the plaintiff, failing which one
would have to conclude that, on a balance of
probabilities, the engine's response was grossly
defective, that is, less than 40% of what it should
have been. In the case of a ship, there is always the
requirement that reasonable care be taken by the
owner to ensure that it may be navigated with
safety and that the hull, machinery and equipment
are in reasonably good working order. Where there
is evidence of a gross lack of response as in the
present case and there is no explanation to the
effect that it might have been due to a sudden
defect which could not reasonably have been fore
seen or prevented, then, the natural conclusion is
that the defect was due to lack of reasonable care
or maintenance of the machinery.
An expert of the defendant, one Dr. Corlett,
testified that, independently of the results of any
tank tests which he caused to be taken in Holland,
if the rpm had increased to 75 within one minute
there would have been no possibility of grounding
on Dalhousie Island. He testified further that, as a
result of his view which he arrived at following his
study of the evidence taken at the inquiry and on
the discoveries, to the effect that the Golden Robin
should not have grounded at all, he caused a scale
model of the ship to be constructed at Netherlands
Ship Model Basin, Wageningen, Holland. It was
tested there in their special test tank. The general
configuration of the bottom in the vicinity of the
range line and shoal were reproduced in the tank
and several tests involving various engine and
rudder programs were run.
As a result of the tests, Dr. Corlett came to the
conclusion that the grounding was not caused by
an uncontrollable sheer off the shoal or lump but
rather that a moderate sheer developed which
proved uncontrollable due to the lack of engine
response.
There were some discrepancies between the con
figuration of the bottom as represented in the tank,
and part of the sea bottom itself, for instance, one
spot sounding was higher in the model than on the
actual shoal and the shore of Dalhousie Island was
not reproduced in the model. The courses followed
did not correspond exactly to that apparently
taken by the Golden Robin and it is clear that it is
impossible to reproduce exactly to scale by means
of a model all the relative forces of rudder, propel
ler, bank action and currents, and their inter
actions.
However, the following opinion was expressed
by Dr. Corlett, with which Dr. Beck, the expert
witness called in rebuttal by the plaintiff, did not
disagree:
1. A ship responds to controls better than a
model.
2. The effect of propeller thrust is greater in a
model than in a ship.
3. As a net result, in the type of ship being
considered, the ship would turn about 5% more
efficiently than the model.
4. The sheer effect of approaching a bank is
more marked in a model than in the case of a
ship.
The largest sheer obtained with corrective
rudder and engine action in the model tests was
eight degrees and without any corrective action the
largest sheer was fourteen degrees. For the tests 55
seconds were allowed for engine increase from 25
rpm to 75 rpm and I consider this quite generous
in view of the evidence as to what the ship should
be capable of doing even having regard to its age.
In so far as the tests are concerned, although
there are inaccuracies and certain allowances must
be made for possible errors and variations when
compared to the true situation and, although the
conclusions of Dr. Corlett required that some
mathematical interpolations be made, I am of the
view that the effect of all these factors is compara
tively minimal. Dr. Corlett convinced me that the
proposition which he advanced would be capable
of supporting a large margin of error and still
remain basically valid. The tests if they were
intended to be used to determine such things as
course, speed, distance travelled and point of
impact with any degree of mathematical precision,
would be open to serious objections as to their
probative value, but I am satisfied that they are
close enough to reality and quite accurate enough
to determine the general proposition that, had the
engines responded as one might reasonably expect
that they should, the Golden Robin would have
recovered from the sheer without grounding on
Dalhousie Island, where the damage occurred.
However, I consider the lack of engine response
as a contributing cause as opposed to the sole
cause of the grounding. The defect, whichever it
was, must probably have existed at the time of the
sheering. The sheering and the engine failure were
joint effective causes of the grounding.
I find further that the lack of engine response
was a serious one and is probably due to a defect
in the engine, the existence of which, failing any
explanation to the contrary, leads one to the con
clusion that it was attributable to either poor
maintenance or failure to reasonably inspect the
engine. Either one of these would constitute lack of
reasonable care in ensuring that the machinery is
in reasonably good working order.
DAMAGES
The Golden Robin had been on hire under a
three year time-charter when the accident
occurred. After receiving temporary repairs in
Dalhousie, it was taken to a shipyard in Baltimore,
U.S.A., where a survey of the damage was carried
out and an estimate of the cost of repairing the
hull was obtained. It was subsequently decided not
to repair the ship but to sell it to a Spanish firm of
shipbreakers for demolition and scrap.
An issue was raised which occurs quite frequent
ly, especially in admiralty cases, when the repairs
are not carried out, namely, whether the amount
required to compensate for the damage to the ship
itself should be based on the total estimated cost of
repairs or on the difference between the actual
value of the ship immediately before and immedi
ately after the accident.
As I am dismissing the action, no useful purpose
would be served in my deciding this issue or
further legal issues raised such as whether certain
damages should be calculated in accordance with
the "breach day rule", i.e., at the discount rate
existing between the United States and the
Canadian dollar as of the date of the accident or at
the payment date, judgment date or date of insti
tution of the proceedings, or the further issue of
whether loss of use in such cases should be cal
culated only to the date when the decision is made
to sell rather than repair, or to the date of the
contract of sale or to the date of delivery of the
ship. Should an appellate tribunal come to a dif
ferent conclusion than I as to liability, it will be in
an equally good position to determine these points
of law and to assess damages accordingly provid
ing all the required findings of fact are made by
this Court.
As I see them, the required findings of fact
including assessments of itemized amounts and
several facts admitted by the parties are as follows:
1. The Golden Robin went directly into port
after the grounding, without stopping, and off-
loaded its oil cargo that very day, namely on the
30th of September, 1974. It is, by agreement of
the parties, to be considered as having gone off
hire on the following day, that is on the 1st of
October, 1974.
2. It remained in Port Dalhousie from the 30th
of September to the 7th of October, left for
Baltimore for its survey on the 7th of October,
arriving on the 11th, and was surveyed on the
12th and 13th of October.
3. A decision was taken by the owners to sell the
ship for demolition on the 1st of November,
1974.
4. It was sold in damaged condition to Spanish
shipbreakers by contract dated the 7th of
November, 1974.
5. It was delivered to the purchaser on the 25th
of November, 1974.
6. It would have taken 44 consecutive days to
effectuate the repairs had the repairs taken
place.
7. The amount of $3,591.91 CAN was expended
for divers services at Port Dalhousie.
8. The loss of use per diem amounted to
$4,594.45 U.S.
9. The agreed estimated cost of repairs would
have been $844,429 U.S.
10. The sale price of the damaged vessel paid by
the shipbreakers was $885,000 U.S.
11. The agreed value of the U.S. dollar was as
follows:
as of date of accident $1.02 CAN
as of date of proceedings
as of date of payment } $1.15 CAN
as of date of judgment
12. Value of ship in undamaged condition:
On this issue several expert appraisers were
called by both parties. They all endeavoured to
establish the market value of the Golden Robin
by what is termed the "desk appraisal" method,
that is by considering the sale of tankers of
somewhat similar tonnage about the time when
the damage occurred and without inspecting
either the Golden Robin or any of the vessels
used as comparisons or applying anything
approaching an individual consideration of the
actual physical state of or quality of construc
tion of the hull machinery or equipment. The
details of each sale were extracted from official
lists and reports of sales of commercial and
other ships and craft. No attempts were made to
obtain from the vendors, the purchasers, their
agents or any other person any particular details
as to the reason for either selling or buying, in
other words, to find out whether any of the
vendors were under any particular pressure to
sell or whether any of the purchasers had any
overriding and pressing motive for buying. In no
case were particulars of the actual condition of
the ship, including the Golden Robin, obtained.
The only considerations regarding condition
were dates of last survey and age. In only one or
two cases was it known whether the ship, at the
time of sale, was subject to a time-charter.
Charter terms were not known. Yet, it seems
obvious that the sale price may well be affected
by the terms of any charter to which a ship is
subject at time of sale.
Adjustments for age were made by applying a
mathematical formula consisting of a fixed per
centage for annual depreciation. Each expert
would apply a depreciation factor (on the basis of
a fixed annual percentage) in order to adjust for
age and to express the value of the vessel under
consideration in terms of the age of the Golden
Robin. There was not too much consensus as to
what the actual depreciation figure should be. All
stated that their figure was the "normal one"
which they invariably applied to all sales of vessels
when adjusting for age. Yet, none could properly
justify the choice of their percentage figure over
that of the others. In each case the number of sales
considered was so limited that it is difficult to term
the exercise a consideration of a real market as
opposed to a mere comparison with a very limited
number of individual sales. It has often been said
that "one sale does not a market make." A con
sideration of only two or even three sales is not
much better. The only appraiser who considered
more than three sales took sales of motor diesel
ships into consideration and the other four com
pletely rejected this approach.
Of the five experts called, the following figures
were used for age adjustment: three used 5% of
depreciated value, one used 6'/4% of the depreciat
ed value, and one used a straight 5% annual
depreciation. One considered two sales, three con
sidered three sales, and one considered five sales.
None of the sales used as comparison by the two
experts of the plaintiff were used by any of the
three experts of the defendant. Some appraisers
made adjustment for speed and others did not. The
one appraiser who considered some motor tankers
made a percentage adjustment downwards to
arrive at the value of a comparative steam turbine
such as the Golden Robin.
On the whole, the evidence, in so far as market
value is concerned, was meagre and the quality
was not too satisfactory: it appeared to me that
some of the appraisers lacked the objectivity
required of experts and others were unable to
satisfactorily explain their conclusions on certain
items of appraisal. Once the formulae applied by
the appraisers were chosen, the so-called market
value could have been determined by any person
with no more expertise than a rudimentary knowl
edge of arithmetic. Since the only evidence avail
able as to value was the evidence as to market
value, the Court has no choice but to base its
findings upon it.
After considering the five reports and the evi
dence of the experts at trial and eliminating those
estimates which, on the whole, appear to be inordi
nately high or inordinately low, I arrive at the
conclusion that the market value of the Golden
Robin, immediately previous to the accident, was
$1,930,000 U.S.
For the reasons previously stated, this action
will be dismissed with costs.
APPENDIX "A"/ANNEXE «A»
SKETCH NOT TO SCALE (FOR ORIENTATION PURPOSES ONI Y)
SCHÉMA N O N À L'ÉCHELLE (À TITRE n7Nn(ATIONS SEULEMENT)
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