254 EXCHEQUER COURT OF CANADA [1957] 1957 QUEBEC ADMIRALTY DISTRICT Jan. 30 & 31 CANADA STEAMSHIP LINES LTD. PLAINTIFF; Mar. 14 AND THE SHIP WALDEMAR PETER AND HER OWNERS DEFENDANTS. Shipping—Action for damages sustained by grounding of vessel caused by alleged negligent operation of defendant vessel—Both vessels to blame —Apportionment of damages—Rule 31 Great Lakes Rules—Courses to be pursued by upbound and downbound vessels in St. Clair River. The action is brought by the plaintiff company to recover damages sustained as the result of the grounding of its vessel the Goderich on the United States shore of the St. Clair River allegedly caused by the negligent navigation of the defendant vessel Waldemar Peter. The Court found that the grounding of the Goderich was brought about by the joint and concurrent fault of those in charge of both vessels but that the fault of the Waldemar Peter was the greater and more serious and the responsibility should be apportioned between them on the basis of seventy per cent against the defendants and thirty per cent against the plaintiff. Held: That the Goderich, upbound, was at all times to her right of mid-channel and that this should have been seen and appreciated from the outset by those in charge of the downbound Waldemar Peter who were negligent and at fault in attempting under such conditions to proceed downstream on the port side of the channel, that fault being all the greater since the Waldemar Peter was without means of giving normal and adequate warning of her intentions due to the fact that her whistle and her radio telephone were not operating. 2. That the effect of the fault and negligence on the part of those on board the Waldemar Peter was to put the Goderich in a position of imminent danger from which it was not possible to extricate herself although all reasonable means were taken in an attempt to do so. 3. That having regard to the currents and the circumstances generally the speed maintained by the Goderich was normal and necessary for a vessel of her length in order for her to maintain proper steerageway and even if the Goderich committed a technical fault in maintaining her speed, this did not constitute fault or negligence which caused or contributed to the disaster. 4. That those in charge of the Goderich were at fault and negligent in not maintaining a proper lookout forward and in failing to comply with Rule 31 of the Great Lakes Rules which required the Goderich to sound a danger signal as soon as she had occasion to doubt the intentions of the Waldemar Peter to keep to the channel normally reserved for downbound vessels. 5. That in departing from the general rule and practice requiring down-bound vessels to navigate the United States channel of the St. Clair River, a downbound vessel is obliged, as a matter of ordinary prudence, to exercise particular care not to follow such a course unless every reasonable means has been taken to ascertain that the Canadian channel is free of upbound traffic which may present danger of collision.
Ex. C.R. EXCHEQUER COURT OF CANADA 255 ACTION for damages to plaintiff's vessel. I 957 CANADA S.S. The action was tried before the Honourable Mr. Justice L iNEs LTD. Smith, District Judge in Admiralty for the Quebec Admi-Tu Snip ralty District at Montreal. Waldemar Peter F. O. Gerity for the plaintiff. HER OWN R. C. Holden, Q.C. and A. S. Hyndman for the defendant. SMITH D.J.A.:—The plaintiff, owner of the steamship Goderich, sues to recover damages alleged to have been sustained as the result of the grounding of the said vessel on the United States shore of the St. Clair River on the evening of November 21st, 1955, which grounding is claimed to have been a consequence of the negligent navigation of those in charge of the defendant vessel Waldemar Peter. The steamship Goderich, whose length is 500 feet and breadth 54 feet, is a steel screw vessel propelled by one set of triple expansion engines. Her full speed is 10 knots per hour and her port of registry is Midland, Ontario. At about 9.08 p.m. on the 21st day of November, 1955, the Goderich fully laden with a cargo of coal and drawing 19 feet three inches forward and 19 feet 92 inches aft, was proceeding up the St. Clair River on a voyage from the Port of Toledo to the Port of Sault Ste. Marie. She was being navigated at her full speed at about 10 miles per hour and it is alleged that she was holding to the usual upbound course and was at a point in the river approximately off the more southerly of the two red lights lying just north of Bay Point Light on the Canadian shore. It is alleged that at that time the weather was clear, though partially cloudy and that there was little wind. The plaintiff alleges that the Goderich was in charge of a competent master, was fully manned and fit for the voyage being undertaken. The case for the plaintiff is as follows:—In the circumstances abovementioned, those in charge of Goderich sighted the lights of a vessel—later known to be Waldemar Peter, downbound—that vessel being just north of the Blue Water Bridge and somewhat to the American side of the international line. A one-whistle signal was sounded and, not being replied to, was repeated. On first sighting, the navigation lights of Waldemar Peter were not visible owing to the brightness of working lights in and about her decks.
256 EXCHEQUER COURT OF CANADA [1957] 1957 Almost immediately upon sounding of the second whistle CANADA S.S. signal a green side light on Waldemar Peter was sighted— LINES LTD. at this time the vessels were some three ship lengths apart THE SHIP Waldemar and Goderich was headed over to the Canadian side of the Peter river. Upon sighting of the green side light aforesaid, it OWNE$s was apparent that Waldemar Peter was being so headed as Seth D.J.A. to cross the course of Goderich; on sighting of the green side light referred to in the next preceding paragraph, which side light was dim and not readily visible, it was apparent from the course of the approaching ship Waldemar Peter that collision between the vessels must ensue if prompt action was not taken. Being thus in a position of danger, the wheel of Goderich was put hard to starboard in order to avoid the oncoming vessel, which manoeuvre was successful, the vessels clearing each other by some 30 feet. This manoeuvre placed Goderich off and a little to the north of wharf premises situated at Point Edward on the Canadian shore and in such a position of danger that she must strike the shore or take the ground unless action by helm or engines was undertaken. The vessel was put hard over to port, since action by use of engines could not avail in these circumstances; as the result of the manoeuvre recited in the next preceding paragraph, the bow of the ship Goderich swung out into the river and, being seized by the force of the down current, her master was unable to bring her head up. The vessel was thus set bodily toward the American shore and, being unable to extricate herself by the use of helm or engines or any seamanlike manoeuvre, took the ground on the American shore approximately opposite the premises of Peerless Cement Corporation, about 9.10 p.m. On this day and date and time aforesaid the current running down under the Blue Water Bridge was estimated at some four miles per hour. Subsequently, by the use of engines and with the assistance of a small local vessel owned by Purdy Fisheries, Goderich was freed from the ground and proceeded to her destination. It is the plaintiff's contention that the grounding and resultant damages to Goderich were brought about by the negligent navigation and improper management of the ship Waldemar Peter and that those in charge of the navigation of that vessel were negligent, in that; they failed to keep a good lookout; proceeded at an excessive speed; failed to
Ex. C.R. EXCHEQUER COURT OF CANADA 257 observe the Rules of the Road for the Great Lakes and more 1957 particularly Rules 2, 24, 27, 30 and 31 thereof ; failed to CANADA S.S. INES LTD. take any precautions as dictated by the practice of seamen L V. navigating the Great Lakes and having regard to the cir- T$E SazP Waldemar cumstances; failed to make use of radio-telephone equip- Peter ment to give timely warning of her intention, or alter- Ôw natively, failed to keep such radio-telephone equipment in smithD.JA. full and efficient operation as is required by the ordinary — practice of seamen navigating in these waters; permitting excessively bright lights to be borne on and about their decks in such a manner as to obscure or render less visible the prescribed navigation lights; failed to answer whistle signals, or alternatively, failed to have a whistle or sound signal in efficient and proper working order; failed to sound a danger signal; so navigated their vessel as to cross upbound traffic without timely warning by whistle, radio- telephone or otherwise and without regard to existing cir- cumstances and conditions; failed to slacken speed, reverse or take timely action to avoid placing Goderich in a position of difficulty or danger from which she could not extricate herself and, under reserve of the foregoing, it is alleged that those in charge of the navigation of Goderich were placed in a position of difficulty and danger by reason of the negligent navigation or management of Waldemar Peter, which made it impossible for those in charge of Goderich to avoid the subsequent grounding and the damage resultant therefrom which was brought about and occasioned by the negligent navigation or management of Waldemar Peter. The Waldemar Peter is a steel screw motor-vessel of the Port of Cologne, West Germany, 77.13 metres in length and 12.82 metres in breadth, of 2,322.07 tons gross and 1,606.61 tons register, fitted with two 8 Cylinder Diesel Motors of 1,000 h.p., each working on a single shaft. At the time of the accident Waldemar Peter was manned by a crew of 26 all told, including a British shipmaster as super-cargo. The case for the defendants is that: On the evening of the 21st November 1955, Waldemar Peter, laden with 654 tons of general cargo, was downbound from Milwaukee, Wisconsin, to Sarnia, Ontario, where she was to load addi- tional cargo at the Government dock. She was carrying regulation navigating lights, which were burning brightly, and a good lookout was being kept on board her. The
258 EXCHEQUER COURT OF CANADA [1957] 1957 weather was dark and clear and there was little or no wind. CANADAS.S. After passing the Port Huron Light vessel off the entrance LINES V LTD. to the St. Clair River Waldemar Peter while coming down W T a H ld E em S ar H IP on the Point Edward Range met and passed an upbound Peter vessel after sounding a signal of one blast on her whistle. ANDE R This upbound vessel answered Waldemar Peter's one blast Smith D.J.A. whistle signal with one flash on her foremast signal light, as is customary on many upper lake vessels, and the ships passed safely port to port in the usual manner. When Waldemar Peter altered to starboard on the Fort Gratiot Range to proceed down towards the Blue Water Bridge her engines were reduced to half speed, and then to slow, and subsequently as she reached the bridge were reduced to dead slow. As is customary for downbound vessels intending to berth at the Government dock at Sarnia Waldemar Peter when approaching and after passing through the Blue Water Bridge kept close to the Canadian shore in order to keep in the upstream eddy along that shore and to be able to proceed sufficiently slowly to turn in to her berth at the said Government dock. When in the vicinity of the Blue Water Bridge Waldemar Peter met and passed another upbound vessel starboard to starboard. When meeting this vessel Waldemar Peter, which vessel had the right of way and the right to choose on which side she intended to pass, attempted to give a signal of two blasts on her whistle to indicate that she intended to keep to port on the Canadian side of the river and to pass green to green, but it was then found that her whistle would not operate. Waldemar Peter therefore gave a signal of two flashes on her Morse signal lamp, which signal was answered with two blasts by the upbound vessel, and the ships passed safely green to green in the usual manner. After she arrived at Sarnia it was discovered that a rubber diaphragm or washer in Waldemar Peter's tyfon whistle had broken, making it impossible for the whistle to be sounded until the said diaphragm or washer had been removed. It is customary on Canadian and American upper lake vessels to have a signal light on the foremast which lights up when the whistle is sounded, and it is a recognized practice to give passing signals by means of such signal light if the ship's whistle will not function or for some reason cannot be heard. After passing the upbound vessel (hereinabove referred to) green to green,
Ex. C.R. EXCHEQUER COURT OF CANADA 259 and while proceeding down close to the Canadian shore 1957 those on Waldemar Peter observed at a considerable dis-CANADAS.S. LINES LTD. tance ahead the green side light and range lights of another v upbound vessel, which turned out to be the Goderich. The THE sIIrP Waldemar Goderich was coming up the river about in mid-channel or Peter a little on the United States side of the International A ND HER OW NERS boundary, and the bearing of her green light was well on Smi th D.J.A. the starboard bow of Waldemar Peter and her range lights were well open. Waldemar Peter was proceeding down close to the Canadian shore and the ships were green to green, and it was clear that if both maintained their respec- tive courses they would pass safely starboard to starboard. As her whistle was temporarily out of commission Walde- mar Peter gave a signal to the Goderich of two distinct flashes on her Morse signal lamp. Goderich did not respond to this signal with two blasts or two flashes on her masthead signal light, or sound a danger signal, but gave a cross signal of one blast. Waldemar Peter thereupon gave a second signal of two distinct flashes on her Morse signal lamp, but Goderich was then observed to be turning to star- board and heading to cross the course of Waldemar Peter from starboard to port. To avoid a collision the engines of Waldemar Peter were at once rung up to full speed ahead and her wheel was put hard to starboard, and she gave a signal of one flash on her Morse signal lamp. The ships then passed each other safely port to port at a distance of about 100 feet. After passing Goderich the engines of Waldemar Peter were again reduced to slow, but being then out in the current it was not possible for her to turn in directly to her intended berth at the Government dock at Sarnia and after proceeding past that dock she turned about and proceeded back upstream and turned in to her intended berth. The defendants allege that if the Goderich grounded on the American side of the St. Clair River a sub- stantial distance after she passed Waldemar Peter on the Canadian side her said grounding and any damage thereby caused were due solely to the improper and negligent man- ner in which Goderich was navigated and to the fault and negligence of those in charge of her, in that: they navigated her at an excessive and improper speed under the circum- stances; negligently failed to keep a proper lookout; failed to respect Waldemar Peter's right of way; improperly
260 EXCHEQUER COURT OF CANADA [1957] 1957 turned to starboard across the course of Waldemar Peter; CANADAs.s. failed to sound a cross signal or cross signals of one blast; LINES LTD. V failed to sound any danger signal; failed to slow to a speed THE SHIP barely sufficient for steerageway; failed to slacken speed or Waldemar Peter reverse the speed of Goderich in due time or at all; after AND HR O wN ER B passing Waldemar Peter s afely port to port on the Canadian side of the river, they negligently failed to keep Goderich Smith D.J.A. under proper control; failed to make proper use of their helm or engines; negligently directed and continued to direct the course of Goderich across the river towards the United States shore until she finally ran aground; failed to exercise the precautions required by ordinary practice of seamen or by the special circumstances of the case; failed to take in due time or at all proper steps to avoid running aground on the United States shore; in contravening Rules 27, 31, 32, 35 and 36 of the Rules of the Road for the Great Lakes and not having sufficient officers or watch on duty. It is alleged that if those on the Goderich had navigated her in a proper seamanlike manner she would not have gone aground or sustained damage and that the proximate cause of the grounding was the negligent and improper manner in which she was navigated both before and after she passed Waldemar Peter; the grounding of Goderich was not due to any fault or negligence on the part of Waldemar Peter or those on board her. The proof is that those in charge of the Goderich first sighted Waldemar Peter at about 9.08 o'clock near the Blue Water Bridge, the Goderich at that time being in the vicinity of Bay Point, approximately 3,000 feet down river from the said bridge and on the Canadian side of the river. The testimony of those on board the Goderich is that they were not in a position to distinguish the navigation lights of the Waldemar Peter when she was first sighted, owing to the brightness of working lights on and about her deck, but a one blast signal was sounded by Goderich and when no reply was received this signal was repeated. The proof indicates that at the time the second one blast signal was sounded the vessels were about 500 feet apart and almost immediately thereafter those in charge of Goderich sighted a green side light on the Waldemar Peter and realizing that the vessels were on crossing courses and in
Ex. C.R. EXCHEQUER COURT OF CANADA 261 imminent danger of collision, the Goderich put her helm 1957 hard to starboard with the result that the vessels passed CANADA S.S. LINE LTD' one another port to port at a distance which those on board the Goderich estimated at 35 feet while those in charge of THE San , Waldemar the Waldemar Peter placed the distance of 100 feet. Peter AND HER The testimony of those on board the Goderich is that OWNERS after clearing the Waldemar Peter their vessel was in great Smith D.J.A. danger of collision with the wharf or bank on the Canadian side and that in order to avert this danger and combat the current which runs about 4 knots per hour at this point, the helm of the Goderich was first put hard to port and then, as the vessel came out into the channel, it was put hard to starboard in an effort to bring her around to head into the current. This attempt, however, was unsuccessful because of the weight of the current on the vessel's star- board bow and the ship, while proceeding towards the American shore, was also being carried downstream. When her bow reached a point 200 to 300 feet from the United States shore, the engines of the Goderich were put full astern and this order was almost immediately followed by the signal for double full astern and the vessel then grounded slightly below the Blue Water Bridge. The evidence is that the river in the vicinity of and below the Blue Water Bridge presents navigational hazards due to the narrowness of the channel which at the bridge is only approximately 800 feet wide, the configuration of the river and the nature of the currents, cross-currents and eddies which are to be encountered. The Great Lakes Pilot, Lake Ontario, Lake Erie and Lake St. Clair, 3 Edit. 1953 contains the following directions, page 186: Regulations. The west channel shall be known as the American Channel and the east channel as the Canadian Channel, and the following traffic rules shall govern on and after July 5, 1921: Rule 1. All downbound vessels shall navigate the American Channel. All upbound vessels shall navigate the Canadian Channel. Vessels under 100 gross tons and vessels making local stops along these routes are exempt from this rule. Rule 2. The speed of vessels navigating these channels shall not exceed 9 miles per hour. Similar directions are to be found in the Great Lakes Pilot (1955) (United States Lakes Survey) p. 281.
262 EXCHEQUER COURT OF CANADA [1957] 1957 Although it was suggested that it was the common prac- CANADA 83. tice for vessels, particularly small ones, to proceed down- LiNEs LTD. V. stream close to the Canadian shore if it was the intention to THE SHIP put in at Sarnia, the weight of the evidence is that such is W a ld em ar Peter not the general or approved course, although it appears A Ow N N D ER H s ER that it is resorted to on occasion. Smith D.J.A. While small vessels making local stops are exempted from the obligation imposed by the Rule that downbound vessels are to take the American side of the channel, the Court is satisfied that in departing from the general rule and practice a downbound vessel is obliged as a matter of ordinary prudence to exercise particular care not to follow such a course unless every reasonable means has been taken to ascertain that the Canadian channel is free of upbound traffic which may present danger of collision. In the circumstances prevailing just prior to and at the time of the occurrences which gave rise to the present action, the burden of care imposed upon Waldemar Peter was particularly heavy inasmuch as: (a) it was dark; (b) those in charge of the Waldemar Peter stated that they became aware when their vessel was at the Blue Water Bridge and in a position to elect which channel to take that the Goderich was upbound; (c) the Waldemar Peter was aware at that time she was without the usual means of communicating her intentions to the Goderich, since neither her whistle nor her radio-telephone was functioning. The Court is convinced that it was negligent and poor seamanship for the Waldemar Peter in such circumstances to proceed down the Canadian side of the channel. Although an attempt was made on behalf of the Waldemar Peter to establish that when the Goderich was first sighted she was well towards the United States shore, the weight of the evidence does not support such a proposition. While Captain Crisp, heard as a witness for the defendant, testified that when the Goderich was sighted she was about three points on the starboard bow of the Waldemar Peter and near the American Reporting Station on the Port Huron side (and although the testimony of Captain Messing was to similar effect) the evidence of Captain Somers, who was navigating the Waldemar Peter, is that when he first sighted the Goderich she was near the centre of the channel.
Ex. C.R. EXCHEQUER COURT OF CANADA 263 On the other hand the testimony of Captain Hall and 1957 others is that the Goderich passed Bay Point Light well to CANADA S.S. LIN v LTD. the Canadian side of the river and was on the course pre- . scribed by the rules for upbound vessels. (See Great Lakes THE SHIP Waldemar Pilot (Canadian) 1953, page 189.) It is possible that the Peter explanation of the testimony of Captains Crisp and il OWN RS Messing to the effect that when first sighted the Goderich S mith D.J.A. was seen over the Waldemar Peter's starboard bow and apparently near the American side of the river, is that the river takes a bend about midway between Bay Point and Blue Water Bridge, so that the starboard navigation light of the Goderich would, in all likelihood, at a certain time have been open to the Waldemar Peter and the Goderich would have appeared to be on the American side of the channel. I am satisfied that the weight of the evidence establishes that when the Goderich was first sighted by the Waldemar Peter she was to her right of mid-channel and that at no time did she cross to the United States side. The Court is convinced that when those on board the Waldemar Peter testified that when the vessels were 1,500 feet apart the Goderich swung suddenly to starboard and came across the bow of the Waldemar Peter they were in error, the explanation being that what appeared to these witnesses to be a change of course to starboard on the part of the Goderich was nothing more than the change of position of the two vessels in relation to the bend in the river and such was the opinion of the Assessors. The Court finds therefore that the Goderich was at all times to her right of mid-channel and that this should have been seen and appreciated from the outset by those in charge of the Waldemar Peter who were negligent and at fault in attempting under such conditions to proceed downstream on the port side of the channel, and the fault of the Waldemar Peter was all the greater having regard to the fact that she was without means of giving normal and adequate warning of her intentions. In my opinion the effect of this fault and negligence on the part of those on board the Waldemar Peter was to put the Goderich in a position of imminent danger from which it was not possible for her to extricate herself although all reasonable measures were taken in an attempt to do so.
264 EXCHEQUER COURT OF CANADA [1957] 1957 It was argued strongly that the Goderich was at fault cANADA s.s. particularly in that she was proceeding at full speed right LINES LTD. up to the time of the grounding, and failed to maintain a THE SHn Waldemar proper lookout or sound dang g er warnin g g s when she first Peter became uncertain as the intentions of the Waldemar Peter. AND HER OWNERS I have sought the advice of the Assessors with regard to Smith D.J.A. the matter of speed and I am advised that having regard to the currents and the circumstances generally the speed maintained by the Goderich was normal and necessary for a vessel of her length in order for her to maintain proper steerageway. I am advised, moreover, that even if the engines of the Goderich had been put at slow ahead as soon as those in charge of her became doubtful as to whether the Waldemar Peter intended to keep to the American side of the channel, it would have made little, if any, difference in the result, and that moreover it is problematical what effect such action would have had upon the ability of those in charge of the Goderich to control her. The advice of the Assessors on this aspect of the case accords completely with my own views and the conclusion I reach is that even if the Goderich committed a technical fault in maintaining her speed, this did not constitute fault and negligence which caused, or contributed to, the disaster. On the other hand, I am persuaded that there was fault and negligence on the part of those in charge of the Goderich in that they failed to maintain the lookout forward which should have been kept, and particularly in that they failed to comply with Rule 31 of the Great Lakes Rules, which required the Goderich to sound a danger signal as soon as she had occasion to doubt the intentions of the Waldemar Peter to keep to the channel normally reserved for downbound vessels. This rule reads as follows: 31. If, when steam vessels are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving the danger signal of several short and rapid blasts of the whistle, not less than five, and if both vessels shall have approached within half a mile of each other, both shall immediately be slowed to a speed barely sufficient for steerageway and, when necessary stopped and reversed, until the proper signals are given, answered and understood, or until the vessels shall have passed each other.
Ex. C.R. EXCHEQUER COURT OF CANADA 265 I have considered with the Assessors the argument 1957 advanced on behalf of the defendants to the effect that in CANADA S.S. LiN LTD. any event the proximate cause of the grounding was, not v what occurred prior to or at the time of the meeting of the THE SHIP Waldemar vessels but was rather the faulty and unseamanlike han- Peter dling of the Goderich after the vessels had met and cleared OWNERS in safety port to port. In particular it was argued that the Smith D.J.A. grounding might have been avoided if the Goderich, as she should have done, had gone full astern when confronted with the danger of striking the dock or bank on the Cana- dian side. I am convinced however by the evidence and having regard to the advice of the Assessors that the Goderich was faced suddenly with an emergency resulting from the action taken by her to avoid collision with the Waldemar Peter, and that having regard to the circumstances Captain Hall acted without negligence and exercised reasonable competence in the manner in which he handled his ship. The Assessors advise me that in the circumstances to have gone astern would have been merely to invite disaster, having regard to the current and nature of the channel, and this is a conclusion which appears to me to be altogether reasonable. On the whole therefore the Court finds that the grounding of the Goderich was brought about by the joint and concurrent fault of those in charge of -both vessels, but that since the fault of the Waldemar Peter was the greater and more serious responsibility should be apportioned between them on the basis of 70% against the defendants and 30% against the plaintiff. There will be judgment accordingly; the costs to be borne by the parties in the same proportion, namely, 70% by the defendants and 30% by the plaintiff; and in the event that the parties fail to agree as to the amount of damages, there will be a reference to the Registrar for the assessment of same. Judgment accordingly. 89514-2a
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