138 EXCHEQUER COURT OF CANADA [19571 1957 ONTARIO ADMIRALTY DISTRICT Apr. 30 THOMAS A. NEIL PLAINTIFF; May 2 AND NORTHERN SHIPBUILDING & REPAIR CO LTD. DEFENDANT. Shipping Action for damages allegedly caused plaintiff's schooner by defendant's ship—Defendant a gratuitous bailee—No negligence on part of defendant—Action dismissed. Plaintiff claims for damages sustained by his schooner the Heron which had been purchased by him from an officer of defendant company who had given permission to plaintiff to moor the schooner at defendant's wharf. The damage was caused by another ship the Magedoma moored at the same dock at the same time and which by reason of unprecedented high water and terrific wind broke from the dock and shoved the Heron against the dock causing the damage complained of. Held: That defendant was a gratuitous bailee and could only be responsible for damage caused by its negligence. 2. That the Magedoma had been reasonably and properly moored and defendant was not negligent in any way. ACTION for damages. The action was tried before the Honourable Mr. Justice Barlow, District Judge in Admiralty for the Ontario Admiralty District, at Toronto. (1) [1905] P. 198.
Ex. C.R. EXCHEQUER COURT OF CANADA 139 L. A. Fitzpatrick for plaintiff. 1957 J. W. Thompson, Q. ELL C. for defendant. NV. NORTHERN BARLow D. J. A.:—The plaintiff as the owner of the SH D IP IN O schooner Heron claims for damages sustained by the Heron ceLRE PAL3 when, on the night of Hurricane Hazel on the 15th October, Co. LTD. 1954, she was shoved against the dock of the defendant in the harbour at Bronte by the SS. Magedoma, which was also docked in the same harbour. The Heron was purchased by the plaintiff from Harry D. Greb, a Vice-President of the defendant Company under a bill of sale dated the 5th day of June, 1954. The Heron was the personal property of Greb and had been moored while he owned it, in the harbour at Bronte, at a dock owned by the defendant. I accept the evidence of Greb that after the sale he told the plaintiff that he, the plaintiff, could continue to moor the Heron at the same dock. A number of other vessels were moored in the same harbour and at the same dock or nearby, among them the ship Magedoma. At no time was any arrangement made by the plaintiff with the defendant company, unless it can be said that the permission of Greb, the Vice-President of the defendant Company to moor the Heron there was an arrangement. The Heron continued to be so moored when not in use during the summer of 1954, and no payment therefor was made or requested to be made. The fact that the defendant Company continued to permit the plaintiff to moor the Heron at its dock cannot place the defendant in a higher position than a gratuitous bailee. As such the defendant would only be responsible for damage caused by its negligence. The Magedoma was moored some little distance from the Heron alongside the bank, with lines from its bow and its stern attached to two blocks of cement partly buried in the earth, each weighing about ten tons. On the night of Hurricane Hazel by reason of the unprecedented high water and terrific wind, the bow of the Magedoma pulled the block of cement to which its bow lines were attached, out into the river, and the bow of the Magedoma swung around in a 180 degree arc against the Heron shoving the Heron against the dock and thus causing the damage. 89512-14a
140 EXCHEQUER COURT OF CANADA [1957] 1957 The question is: Was the Magedoma reasonably and NEIL, properly moored? The Magedoma had been moored in the v. NORTHERN position in which she was at the time of Hurricane Hazel sIlL for some two years, and had withstood the spring freshets. BUILDING & REPAIR co. The evidence of experienced and reputable witnesses LTD. satisfies me that the Magedoma was reasonably and pro-Barlow A. perly moored, and that the defendant took all such reason- A. precautions in her mooring as it would have done with its own goods. This is all that can be required from a bailee for reward, whereas I have already found that the defendant was in no higher position than a gratuitous bailee. I cannot find that the defendant was negligent in any way. The action will be dismissed with costs. Judgment accordingly.
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