160 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 QUEBEC ADMIRALTY DISTRICT. April 27. CANADIAN PACIFIC RAILWAY COMPANY, PLAINTIFF, V. THE STEAMSHIP "STORSTAD," DEFENDANT. Shipping—Collision.—Fog—Rule of road—Liability. A collision occurred between the plaintiff's ship, an outward-bound vessel, and the defendant ship, an inwardbound vessel, while passing each other in converging courses on open water of the St. Lawrence river during a fog, Held, that the rules governing the open sea applied, and that the former having complied with art. 23 of the Rules of the Road was blameless in manæuvering herself out of the danger of a collision; that the collision was brought about by the negligence of the officers of the defendant ship in altering lier course in the fog and failing to slacken her speed, in violation of arts. 16, 21 and 29 of the Rules. ACTION for damages resulting from a collision. Tried before the Honourable Mr. Justice Dunlop, Local Judge of the Quebec Admiralty District, Captain Francis Nash, Assessor, on February 15, 16, 18, 19, 22, 23, 25, 26, and March 1, 2, 3, 4 5, 1915. A. Geoffrion, K.C., for plaintiff. J. W. Griffin, and W. P. Sedgwick, of New York Bar, for defendant. DUNLOP, Loc. J. (April 27, 1915) delivered judgment..
VOL. XVII.] EXCHEQUER COURT REPORTS. The plaintiff, as the owner of the Steamship "Em-Press of Ireland," claims the sum of three dollars against the Ship "Storstad" for the loss of the Steamship "Empress of Ireland," and the amounts paid or that may hereafter 'be paid for loss of life, or personal injury to members of ,the' crew or others, whether under the Compensation Act or otherwise, and for other. and all losses 'and damages occasioned by the collision which took place in the St. Lawrence River; near Father Point, on May 29th, 1914, and for costs. Whereas the plaintiff, by its statement of claim, alleges as follows : , (1) That between 1.45 .and • 2 o'clock A.M., on the 29th May, 1914, the Steamship "Empress of ,Ire- - land," 8028 net registered tonnage, of which the plaintiff is theowner,whilst on avoyage .fromQuebec to Liverpool, with passengers and general cargo, • was between 6 and 7 . miles . to the northward and eastward- of Father Point, which is 'on the south shore of the River' St. Lawrence; (2) there was fog and no ' wind and the tide was about half flood, al- though there remained a current down stream run- ning at the rate of about one and . a half knots ; (3) the "Empress of Ireland" had dropped ' her pilot near the Father Point gas buoy, and had then got under way, taking a course of N.470 deg. E. mag- netic, until she had the Cock Point gas buoy abeam, when the course was changed to N. 73. deg. E. mag- netic; (4) that the lights of turned out to 'be the "Storstad," were first seen sev- eral miles off before the fog shut in and bearing at. first about 4 points on the starboard bow of the "Em- press of Ireland," but when the latter altered her . 161 i , million r g i Co. s.s. f "s R S ea — sons foor Ja441li°nt• Workmen's . another ship, 'which
162 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 vv course, off Cock Point buoy, the "Storstad's" lights r~ "FR co , bore about a point or a point and a half on the star- -ST g ..+n... board bow of the "Empress of Ireland" and the ves- 8easoneior sels would have passed each other starboard to star- Judgment. board, at a safe distance, if the "Storstad" had not subsequently altered her course in the fog; (5) there had been intermittent fog earlier in the night, bui the weather was clear when the "Empress of Ire-land" left Father Point, and it was somewhat later, a little after altering the course off Cock Point buoy, that fog coming from the south shore was seen to be dimming the "Storstad's" lights; the "Empress of Ireland" was duly exhibiting the regulation lights for a steamship under way; (6) that seeing said fog, the engines of the "Empress of Ireland" were reversed full speed and her whistles blown three short blasts, which signal was a few minutes later repeated. When the "Empress" was stopped in the water her engines were stopped and two long blasts were twice sounded on her whistle. When the lights of the "Storstad" were seen coming out of the fog, the Master of the "Empress" hailed the "Storstad" to go astern and in the hope of avoiding or minimizing the effect of a collision, the engines of the "Empress" were ordered full speed ahead and her helm hard-a-port; (7) nevertheless, the "Storstad" came on at a considerable speed and the "Storstad's" stem struck the starboard side of the "Empress of Ireland" about amidships, causing her to sink soon after; (9) that the helm of the "Storstad" was improperly ported; (10) that the "Storstad" failed to keep her course and pass the "Empress of Ire-land" starboard to starboard; (11) that the "Stor-stad" was navigated at an immoderate rate of
y . VOL.. XVII.] EXCHEQUER COURT REPORTS. 163 speed; (12) that those in charge Of th4 "Storstad" 49 1.5 failed to reduce her s P p eed and sound her fog sign al Ci is R. N PecrrYc R. co. before she ran into the fog; (13) that the engines ., s.s. STORSTAD. of the "Storstad" were not in due time slowed Beams tor stopped or reversed; (14) that no competent offi- Judgment. cers were on dutyon the "Storstad"; (15) that those • in charge of the "Storstad" neglected to comply with articles 16, 27 and 29 of the International Rules in force in Canadian waters. And plaintiff claims— (1) A declaration that it is entitled to the damage, proceeded for (2) the condemnation of the defendant and its bail in such damage and costs ; (3) to, have an account taken of such damage with the as- sistance of merchants; (4) such other and further relief as the nature of the case may require. , The defendant, by its statement of defence and counter-claim, alleges in substance the following: (1) That except as hereinafter admitted, the several statements contained in the plaintiff's statement of claim are denied; (2) the defendant is owner of the Norwegian Steamship "Storstad," of 6028 gross tonnage; (3) that at about 2 A.M., on the 29th May, 1914, the "Storstad," while on a voyage from Syd-ney, Cape Breton, to Montreal, with a cargo of coal, came into collision with the "Empress of Ireland" at it point about 7 miles to 'the northward and mast-ward of Father Point, in the River St. Lawrence ; (4) the "Storstad," proceeding up the riv i er, passed Metis Point at about 12.35 Â.M. There was no wind; . the tide was flood, but in spite of the tide, there was a current setting down the river at the speed of between one and two knots; the "Storstad" left Metis Point about 3 miles off and proceeded on a course of west one-quarter - south magnetic, for a distance,
164 EXCHEQUER COURT REPORTS. [VOL. XVII. 1 measured by patent log, of 6 miles, and then on a CANADIAN PACIPIC R. CO. course of west of one-half south magnetic for a dis- s.s. $ToRsTAD. tance, measured by patent log, of 5 miles; and thence season for on a course of west by south magnetic, which course sn ü$m.nt she held until the collision; (5) that at about the • time when the "Storstad" changed her course to west by south, those in charge of her sighted the masthead lights of a steamer, which proved to be the "Empress of Ireland"; the lights were several miles away and were on the port bow of the "Stor-stad." As the vessels proceeded, those on board the "Storstad" saw the green light of the "Empress" still on the `Storstad's" port bow. Shortly afterwards the "Empress" changed her course, so that, in addition to her masthead lights, her red light was visible to those on the "Storstad" and her green light was shut out. The vessels were then 2 miles away and the "Empress" was a point or more on the "Storstad's" port bow; (6) that shortly after a bank of fog, which had been moving out from the southern shore of the river, dimmed and finally shut out the lights of the "Empress." The "Storstad's" engines were at once slowed, and, about 2 minutes later, when the fog bank enveloped the "Storstad" also, her engines were stopped; (7) that 4 or 5 minutes after the "Storstad's" engines had been stopped, her wheel was ported in order • to prevent the current swinging her head to port and in the Sirec-tion of the "Empress" and in order thus to insure ample space for clearance. The "Storstad" did not swing under the port wheel, since her steerage way was lost, or nearly so. The engines of the "Storstad" were then ordered slow ahead, because it was desirable to preserve steerage way, and immediately
VOL. XVII.] EXCHEQUER COURT REPORTS. • 165 thereafter the green. light and masthead lights of xsxs the "Empress" were seen on the "Storstad's port pA c gifit. N co. bow moving across her bow. The "Storstad's" en-"STO s RS l T . A D." gines were at once put full speed astern and kept so Reaeoae for until the collision. The stem and the bluff of the J n °nt. starboard bow of the "Storstad" struck the starboard side of the "Empress" .about amidship, the vessels, at the moment of the contact, forming an angle of about 31/2 points. The "Empress" continued to go ahead across the bow of the "Storstad," which was swung around` in the direction of the, "Em- , press's" movement. As soon as the vessels touched, the . "Storstad's" engines were ordered ahead, .for the purpose of keeping her stem` in the wound, but the headway of the' "Empress" caused the vessels tô ,separate. At the dime the vessels. came together, the "Storstad" was still heading west by south. (8) That as soon as the fog set• in, fog whistles of, one long blast were blown by the "Empress," and were answeredby the .` `Storstad." Shortly there- after, 2 signals of 3 whistles each were heard ,from . the "Empress;" all the "_Empress's' whistles sounded on the `.`Storstad's" port bow. The "Stor-stad," so long as she retained headway, continued to blow fog signals, but when it was found that she had lost .steerage .way, a signal bf 2 long blasts was sounded on her whistle. When, after the lights of the - "Empress" were seen through the fog, the "Storstad" went full speèd astern, a signal of 3 blasts was blown on her whistle. (9) • The defendant charges against plaintiff, its agents and servants, the following faults : (a) In keéping a bad . look-out; (b) in that she was in charge of incompetent officers; (c). in. attempting to cross the 'bow of
166 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 9 5 the "Storstad" although the vessels, when the fog PA C c A i N fi A c D IA . N RCo. shut in,were clear tpoapsso rt to po p r t ; , ( d) in fail- v. S.S. ing to hold her course and to pass the "Storstad" "STORSTAD." Ressonsfor port to port; (e) in changing her heading and course Judgment. to port in the fog; (f) in that, having headed across the bow of the "Storstad," she put her engines full speed astern, reduced her speed, and thereby caused collision; (g) in that she attempted to pass the "Storstad" too close; (h) in that she failed to comply with articles 15, 16, 18, 19 and 22 of the International Rules of the Road at Sea, which were then and there in force; (i) in that she blew a signal of 3 whistles when the vessels were enveloped in fog, contrary to article 28 of the said rules; (j) in that she failed to indicate her position and manoeuvres by blowing proper or sufficient whistles; (10) that no blame and resulting damage is attributable to the steamship "Storstad" or to any of those on board of her; And by way of counter-claim defendant says: That the collision has caused great damage to the defendant and to the steamship "Stor-stad," and claims : (1) A declaration that the defendant is entitled to the damage asked under its counter-claim; (2) the condemnation of the plaintiff in the damage caused to the "Storstad" and 'to defendant, and in the costs of this action; (3) to have an account taken of such damage with the assistance of merchants ; (4) such further and other relief as the nature of the case may require. The plaintiff, in answer to the foregoing defence, prays acta of the allegations contained in the 3rd, 7th and 8th paragraphs of the said defence ; as to paragraph 9, it takes exception to the allegations as
VOL. XVII.] . EXCHEQUER COURT REPORTS. 167 ~ to "other faults that may develop at the hearing" ' 191. 5 "others in future respect which will be pointed p i2Vfir co . out at the trial," the same being illegal, otherwise s.g. 41 STORSTAD." denies said paragraph; that plaintiff denies all the Ressous for other allegations of the defence, except in so far as Judgment.' the same are in accordance with the statement of claim and this answer. An.d as to the so-called coun-ter-claim, plaintiff alleges : That the same is illegal and incompetent to the defendant ; and witho 1 ut waiver of said allegations, it denies the same in any . event. - The pretensions of the parties are set forth in: the 'pleadings, a summary of which is given in the pres- ent judgment. , . The plaintiff moved to strike from paragraph (9) of the defence, the words "(k) and in other and further respects which will be pointed out at the trial" . . as being illegal.. This motion was granted by judgment of this Court of date' the 15th Decem-ber, 1914. After the issues had been joined on -the 12th Feb-. ,. ruary; 1915, the plaintiff moved to amend its pre- liminary act and statement of claim by adding the words "in the middle-of the river but at the place of. the collision and all along the shores the ' current ran up stream" to paragraph 6 of the plaintiff's preliminary act and paragraph 2 of the statement of claim, on such conditions, as to costs, as the' Court may deem appropriate. I thought it better to hold this motion over until . • the trial, and I am of opinion that same can be granted, and it is granted, costs of same to be paid by plaintiff, as appears by judgment on said motion, of even date. .
168 EXCHEQUER COURT REPORTS. [VQL. XVII. 1915 •••+••••••,•••.., I grant this motion more especially because evi-CANADIAN PACIFIc R. Co. dence in support of it has been adduced before this 47. s. s. Court, without any objection being made thereto. " STORSTAD." Besson. for Evidence in this cause is very voluminous because, Judgment. by consent of parties, it is agreed that all the evidence taken and exhibits filed before the Commission of Enquiry into the casualty of the "Empress of Ireland," held at Quebec on the 14th June, 1914, and following days, would be read and used as evidence to all intents and purposes as if taken in this case, the whole as appears by consent of the parties of date the 23rd June, 1914, and 'filed the 12th August, 1914. Under said consent, the right was reserved to each party to recall any witness examined in said enquiry and to put in further evidence, if desired, and that said agreement was made effective in all respects, in and for any class of action, counter-claim, or any action or proceedings against the "Empress of Ireland." A very large amount of additional evidence was taken before this Court, in Montreal, and the record is, consequently, very voluminous. The question as to who, if anyone, is to blame for the collision in this case depends largely on which of the two stories put forward by the respective owners of the respective vessels, is to be accepted. The evidence on material points is absolutely contradictory. The main difference between the two vessels' stories is to be found in the description of the way in which the two vessels were approaching each other at the time when the "Empress of Ireland"
ITOL. ENCHEQUERCOURT , R EPORTS. '169 ' changed her course after having Obtained an offing 9 15, , 1 from Father Point. .Father Point is the place where FA c t Ac c0. the "Empress of Ireland," the outwardbound ship, S.S. sTOABzan. had dropped her pilot; it is also the . place where Bensons ror the inwardbound ship, the "Storstad," was to pick Judgment. up her pilot. It is situated on the south 'side of the, river. The witnesses from the "Storstad" say they were approaching so as to, pass red to red, while those from the, "Empress of Ireland" say they were approaching so' as to pass green to green. , I feel that I am safe in making the assertion that the "Storstad" never saw the red light. of the "Empress" at any time, which can be proved' by converging courses. But it is within the bound's of possibility that the "Empress" might have seen the green light of the "Storstad" at some .time, and the Assessor quite agrees with me in''this finding. I am going to prove later that the "Empress" was stopped in a position which is indisputable, and the present position of the wreck will verify it, whereas the "Storstad," having nothing to verify her position by, might have, been somewhat to the south, , in which case the `f Empress" might have' seen the "Storstad's" green light at some time. Thé fact that the "Storstad" ported her helm and ran_ into the "Empress" on the starboard side shows 'that the "Storstad" must have ..been somewhat to thè south. So, of the two stories of green to green of the "Empress," and red .to red of the "Storstad," the "Empress" has the best of the argument, as hers is a possibility, but the" Storstad's" is an impossibility. Now, having shown that there is 'a pos- . • sibility of the "Empress" having seen the green
170 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 . light of the "Storstad" at some time, it immediately CANADIAN PACIF IC R. Co. places her in the enviable position of being a pass- , ing ship instead of a crossing ship. The stories are "STOASTAD. " $eAs - for absolutely contradictory and we have to determine Judgment. which is the more probable. The whole trend of the evidence taken at Quebec was evidently made with the purpose of establishing which of the two vessels had changed her course in the fog, and this was the main question the commission had to decide. The defendant, in opening its case, charged the plaintiff with three faults : (1) that the alteration of th0 "Empress's" course at Cock Point buoy was, according to it, a wrong thing to do ; (2) that the speed of the "Empress" was maintained until the collision took place, and (3) the "Empress of Ire-land" is charged with not having a proper lookout. , As to the alteration of the course at Cock Point buoy, the defendant pretends that by so doing, a risk of collision was produced. A manoeuvre is wrong if it creates a risk of collision. The test, therefore, is whether this manoeuvre created a risk of collision. A further test is again if it did create a risk of collision, did it contribute to the disaster in question? If a given manoeuvre creates a risk of collision, it would be a breach of the rule, and if it creates a risk of collision which contributed to the collision or caused it, then it would be a fault. As is well known, there is a difference between the English law and our law that used to exist and which has been very recently abolished. All the English jurisprudence is under the old law. In England, formerly, a breach of the rules was pre-
,VOL.'XVII.] EXCHEQUER a COURT REPORTS. 171 sumed to have'contributed to 'the collision or caused s 5 it,unless the contrarywas proved. Whilst, in our . CcIFIc . P A CIFIC R. Co. law, the plaintiff has to prove the breach of the rule, s.s. STORSTAD. and also that it caused or contributed to the colli- Reaso nsior slop. Judgment. In this particular case, either the 'ships were, for some minutes . to the knowledge of each other, green to green, or they were, for some minutes before the collision, to the knowledge of each other, red to red,. after the Cock Point buoy alteration. There' is no suggestion that the ships were head- on or nearly head-on. The ships were ,passing ships, each one seeing the other. Even if the ships were either red to red, or green to green, to the knowledge of each other, for some minutes before the fog, the courses were safe: there was no risk of collision at that moment. The anterior manoeuvre had not created a risk of collision and the material and vital question is, as was stated in Quebec by everybody before the, commission; which ship destroyed the safe position? The ship, which altered its course was at fault. If the ships entered the fog red to red,.the courses were absolutely safe. If red to red is safe, then green to green is' equally safe. I cannot see that there should be ,any difference " in the "Empress's" favour in that risk. What is true of red to red must be true of green to green, so on defendant's statement, there ,is` nothing in the suggestion that the. initial manoeuvre created a risk of collision, or otherwise created a dangerous position, or that the initial manoeuvre, in any way, caused or contributed to the collision, since the ships
172 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 were each on passing courses and each knew that Pw C c A z N rr A c D R IA . N C o. theywere on passingcourses be f ore th e fog set in. v. "STD s a . S s A . D." As to the second alleged fault, that the speed of Bea d c g o m ns e n fo t. r the "Empress of Ireland" was maintained until the Ju collision took place, I will take this into consideration when I treat of the responsibility for the accident. As to the third alleged fault, that the "Empress of Ireland" had no proper look-out, this has certainly not been established, as the witness Carroll was in the crow's-nest look-out and faithfully fulfilled his duty and remained there to the last moment. It has also been charged that the "Empress of Ireland" changed her course, not by reason of any wilful alteration of her wheel, but in consequence of some uncontrollable movement which was accounted for on the assumption that the telemotor steering gear was out of order and on the theory that having regard to the fulness of the stern of the "Empress," the area of the rudder was insufficient. It may be remarked that this was not pleaded by the defendant and, in my opinion, the evidence shows clearly that the steering gear was in good order, and there is not a shadow of evidence to show that there was anything wrong with it at the time of the collision, or that it, in any way, contributed to the said accident. In addition to the evidence taken before the commission at Quebec, which will hereafter be referred to by the number of the questions applicable to the different matters at issue in this cause, the Liver-pool Pilot, who was examined for the first time before this Court, testified that he had been pilot in
VOL. XVII.] EXCHEQUER COURT REPORTS. charge of the "Empress of Ireland" while she was p proceeding to P sea ev A er since C the ship sometime in the year 1906, and he spoke in the high-s. o. est terms of her steering gear. I do not think this szoR question requires a more detailed explanation. Much comment has been made Captain Kendall says, just before the ship sank, 'he looked at the compass and found her head S.E. The. present position of the wreck is with her head N.E. When we take into consideration the fact that there was no light for him to see the compass by, and take into consideration that he was ' steering eastward, it would be easy for him to confound S.E. with N.E. There is also another explanation. Nothing will cause 'deviation of the compass more than a heavy jar. The "Empress" had jar enough to send her 'to the bottom. Then the angle of the ship ' was 45° or more, and no ship has her compass adjusted for such a serious heeling error, so that this compass which he looked at night be altogether useless, and the S.E. that Captain Kendall . imagined he saw might be several points out. The evidence being so contradictory, ' the witnesses from the "Storstad" saying. that they were approaching so as to pass red to red, while those of the "Empress of . Ireland" say they were approaching so as to pass green to green, the stories are irreconcilable, and we have to determine which is the more probable. In order to place the responsibility for the disaster, the first point I will dispose of is the position of the "Empress" at the time of the collision, say at 1.55 A.M. I think I am entitled to state positively that it was 1200 to 1500 feet to the eastward or past 173 1 916 I wa F s launched, CANADIAN IC R . co. R s e z a A son D s f . o r rudgment. . on the fact that
174 EXCHEQUER COURT REPORTS. [VOL. XVII. 1 s i the place where the wreck now lies and that is mark- 'j 0 . ed on the defendant's chart or diagram No. 3, pro- w. "STORSTA D." duced by Mr. Griffin, one of the defendant's coun- 8easonafor sels, in illustration of his argument from the posi-Jndgment. tion of the churches, namely : It lies N.62~/2 °.W., 7 1-6 miles from Ste. Flavie church. It lies N.11°E., 4 2-5 miles from St. Luce church. It lies N.45° E., 6 3/4 miles from Father Point Lighthouse. The position of the wreck has been checked by me, with the assistance of the assessor, and it agrees with the above bearings. I know the position of the wreck and I know by many witnesses that there was a current of one mile an hour running westerly, and it is well known that the "Empress" sank 15 minutes after the collision. She drifted back with the current 15 minutes after she was struck. Thisplacesherposition exactly at the time of the collision 1200 to 1500 feet to the eastward or past the wreck, provided she was lying dead in the water, as she claims to be at the time of the impact. We have the evidence of Captain Kendall, (Q. 20), Captain Murray (Q. 4079), Brennan (Q. 138), Mur-phy (Q. 2177 to 2194), that she could be stopped dead in the water from 2 to 3 minutes, and cases have been cited where it has been done, such as off Point Lynas, off the Welsh Coast, in 2 minutes and 15 seconds (Q. 4199). On the present occasion, we have the evidence of Captain Kendall (page 26), Brennan, that on seeing the "Storstad's" light being shut out by the
VOL. XVII.] EXCHEQUER COURT REPORTS. 175 fog, they reversed their engines for 3 minutes, blow- 19 15 while doing so, 2 whistles of 3 short blasts, to r gVc R co. let the "Storstad" know that she was reversing. « s T s OH .s ST . A D. Then, according to the evidence, she blew 2 whistles Reasons:or of 2 long blasts, indicating that she was stopped in auagm eno. the water, which is verified by Jones, the First Officer . (Q. 1764), Captain Kendall . (Q. 218), John Murphy (Q. 2194), Brennan (Q. 2149), Liddell (Q. 2540), and ' Miss. Townsend (Q. 7205). Tufteness and Saxe heard the three short blasts twice (Q.Q. 1092, 1094), which is ' important and material evidence, as Tufteness ' admits he heard the "Empress's" 3 ' short blasts about one or two minutes apart: Therefore, he admits she was reversing for that time, sufficient to bring her to a standstill. Saxe (Q. 4650) also admits the same, though the "Storstad" denies at all times ,hearing the "Empress's" 2. whistles of 2 long ,blasts saying she was stopped. After carefully considering all the evidence,. I• have come to the conclusion that the "Empress" was stopped. I think it has been established that the "Empress's" position, at the time 'of the collision, was 1200 to 1500 feet eastward from the wreck, notwithstanding the .contradictory evidence that has been produced. The fact remains that she was dead in the water 15 minutes before she sank, and she had to be from 1200 to 1500 feet past -the position where the wreck now lies, notwithstanding all arguments to the 'contrary. Having established the position of the "Empress" dead in the water at the time of the collision, I will review the action of the vessels which led 'to the collision.
176 EXCHEQUER COURT REPORTS. {VOL. XVII. 19 1 6 I will first speak of the courses of the two ships, CANADIAN PACIFIC R. C O which I consider as most important. The evidence S. S. is emphatic that the "Empress" was steering a $TOHSTAD. " Reasonn final course of N.73° E. and never varied this course. . ",5TORS D . Judgment. I am forced to accept it, and the Assessor concurs, and the same applies to the "Storstad's" course of W. by S. Now, it is shown by the chart or diagram .prepared at my request by the Assessor, verified by me, and signed by me and the Assessor for identification and hereto annexed,I that these two courses were converging and that two ships approaching each other, in opposite directions, on these courses would meet or cross each other at a given point. This crossing point must be the . position of the "Empress" after she was stopped in . the water at the time of the collision. It having _ been proved that the "Empress" was stopped in the water, and that her position was from 1200 to 1500 feet to the eastward of the wreck, by looking at the chart, it will be seen that during the whole time the "Empress" was following her N.73° E. course. She had the "Storstad" on her starboard bow and disposes finally of the contentions of the "Storstad" that she saw the "Empress's" red light. At a distance of a mile and a half or two miles apart, where both parties agree they last saw each other before the collision, and when their lights were commencing to be dimmed by the fog, the. "Empress" would be showing the "Storstad" her green light, and the "Storstad" would be showing the "Empress" .,her red light, unless the "Stor-stad" was to the southward, as I think she was, then she would be showing her green light. This T At p. 183 post.
VOL. XVII.] EXCHEQUER COURT REPORTS. 177 can be verified by looking at the chart. 'I think, it is. 9 15 quite probable that at this . time the colôured lights PAC[FIC R C . of both ships were 'obscured by fog, but if they saw s.s. STORSTAD. any coloured lights at this time, they wôuld have Reasons for to be as stated by me. Judgment. Now, I will take up the question of the action' of the two ships when they both arrived at. the position,. of one, mile and a half to two miles- apart, after which they were obscured by the fog until the time of the' collision, which is proved to be about 8 minutes. They enter this area of one mile, and a half to two miles going full speed, say 16 miles per hour for the ,"Empress" and 11 miles per hour for the ".Storstad." Therefore they 'were approaching each other at the rate of 27 miles an hour. At this rate of speed, they would have either' collided or passed clear in 3 or 4 minutes. Considering the close proximity of the vessels at this time, any change of course might have been imprudent, particularly as they were -running into a fog bank, and this explains the ,fact that at this point, say at 1.47 A.M., the "Empress" ordered her engines' full speed astern, and notified the "Stor-stad" by the appropriate -whistle of '3 short blasts that she had done so. . • t ' Instead of following the, example of the "Em-press" and reversing her engines, the "Storstad" merely slowed her engines and continued her speed; about 8. minutes after the "Empress" started to reverse her engines, the collision occurred, say at 1.55 A.M. - , Any ,difference of opinion as to the time here seems to be absolutely of no importance, as we have the evidence of the "Empress" that she was re-
178 EXCHEQUER COURT REPORTS. [VOL. XVII. 15 , versing for 3 minutes and the evidence of the "Stor- Pe C ci e x x ~ , c w R in . a C t o. stad" that she knew the "Empress" was reversing, ..sr o s ~ „ having heard her signal of 3 short blasts. Reasons for Judgment. Now, what happens in this interval of 8 minutes before the collision occurred? The "Empress" goes about a quarter of a mile, or practically 3 ship lengths, under reversed engines before she is brought to a standstill. The evidence shows that this took 3 minutes. During these 3 minutes the "Storstad". is going on with no effort to check her speed other than slowing her engines, and must be going at a speed of say 8 knots, which is a compromise between full speed, 11 knots, and slow speed, 5 knots. She would cover the distance . of nearly half a mile. This leaves the ships about three-quarters of a mile apart, and 5 minutes yet to go before the collision occurred. The "Empress" is dead in the water and the "Storstad" is continuing on her course. At some part of this period, she claims she came to a dead stop, then ported her helm, only affecting her heading a quarter or half a point, and ordered slow speed ahead again. I will make some observations as to the probable speed of the "Storstad" at the time of the collision. At a mile and a half apart, the "Storstad" was going 11 knots an hour with the current. She then slowed her engines. At the time of the order to slow down, she was still going 11 knots. It would take some time to come back from her 11 knot speed to slow speed, which is about 5 knots an hour. Therefore, when the next order to slow the engines was given 2 minutes later, by the evidence, it was reason-
VOL. XVII.] ' EXCHEQUER COURT REPORTS. 179 able to suppose that she was going at 8 knots per hour. As it would take her some time to come 'to a p A 1,, standstill from a speed of 8 knots an hour without ' s.s. "SroaSTAD." reversing her engines, and taking into consideration Reaso ns for how close she was to the "Empress" after these ,+ J1 ! first orders were given, I cannot see how she can have lost her way, particularly as she again started slow speed ahead before the collision, and after her order to stop. Her next order was full speed astern and that was only 30 seconds before the collision. She therefore seems to have maintained her speed all through the short period before the collision, and it is my opinion that at the time of the impact she was going at not less than 6 knots an hour, and probably more. The depth she penetrated into the "Empre R ss's" side, which the evidence gives all the way from 10 to 18 feet, and the condition ,of her own bows after colliding, would go to substantiate this speed. I would mention , that the "Storstad" is built longitudinally, or Isherwood system, and consequently very strong, and the damage to her bows was very extensive. In my opinion, three facts have been established. The position of the. "Empress", when she was stopped in the water, 15 minutes before she sank— The fact that the "Empress" was stopped in- the water—and The fact that at the time of the impact, the "Ston- stad" was travelling at least at a rate of 6' knots an hour, or probably more.
180 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 In arriving at my finding as to the responsibility CANADIAN PACIFIC R. Co.. or the collision, other considerations come in, which S.S. I will enumerate later, but I would like to mention "STORSTAD." ,on for that I consider the evidence on both sides, other Judg m ent. than that above referred to, immaterial and of little value. For instance, the defendants, on their chart and in the calculations of course and distance, &e have gone on the assumption that the current was against them at the rate of a mile and a half per hour, while it was in their favour one mile per hour, so that on their own contentions, with their own chart, they would be in a position past the wreck before they ever started the manoeuvres that occurred just previous to the collision. They base their contention that the "Empress" could not cover the distance to the wreck and remain dead in the water for some time before the collision, on the theory that when the "Empress" started from a point one miles N.43° W. from Father Point buoy, she had stopped to let her pilot off, but it appears that her engines had never been stopped, but were only slowed down, as is the usual practice, as I am advised by the Assessor, and, therefore, she did not lose any time in the warming-up process of her engines, which would have happened had they been stopped, but was able to increase her speed rapidly. The coloured lights were as I have represented them. If you will follow out the courses of the ships to the time of impact, on the chart hereto annexed and above referred to, you will see that the lights would appear as I have stated.
VOL. XVII.] EXCHEQUER COURT REPORTS. 181, I am confirmed in my 'opinion _ that these vessels ., 1 915 appr oached each other .on their convergi ng courses C ANADIAx PA CIFIC R co., more rapidly than they realized, and as the "Ems.s. &ORSTAD. press" had the "Storstad" on her starboard bow, Reasons for she adhered to the green light story, and as at' the Judgment. 'same time the "Storstad" had the 'Empress" on her port bow, she adhered to the red light story, in order to evade responsibility for the collision. Art. 23 of the Rules. of the Road says: "Every steam vessel which is directed by these `rules to keep out of the way of another vessel, "shall, on approaching her, if necessary, slacken "her speed, or stop or reverse." The "Empress" obeyed this rule. ~ ART. 16. `A steam vessel hearing, apparently "forward of her beam, the fog signal of a vessel "the position of whieh is not ascertained, shall, so "far as the circumstances of the case admit, stop "her engines, and then navigate with caution, until "danger•of collision is over." ART. 21.— " When, ' in consequence of thick wea- '. "they, or other causes, such vessel finds herself so "close that collision cannot be avoided by the action "of the giving-way vessel alone, she also shall take ``such action as will best aid to avert the collision:'' ART. 29.—"Nothing in these rules shall exoner-"ate anyL vessel . . ' . of the neglect of any pre-"caution; which may be required by the ordinary • "practice of seamen, or by the special circumstances "of the. ease."
182 EXCHEQUER COURT REPORTS. [VOL. XVII. 1915 Attention might be called to the way the "Em- CANADIAN PACIFIC co. press of Ireland" was navigated. She had 3 first- s:4 class officers on the bridge, namely: Captain Ken- "STORSTAD." Reasons for dall, Mr. Jones, first officer, and Mr. Moore, third Judgment. officer. On the "Storstad," Mr. Tufteness, first officer,. was in charge, perhaps assisted by Mr. Saxe, third officer, though the latter claims he had nothing to do with the navigation of the ship. In my opinion, Mr. Tufteness, in not stopping the "Storstad," when he heard the first 3 blasts from the "Empress," made a great error of judgment, and to my mind, had Captain Andersen, the Master of the "Storstad," been called earlier and had been on deck, he would immediately have stopped his ship and avoided the whole calamity. I cannot emphasize this neglect too. strongly. I regret very much to have to find Mr. Tufteness at fault in violating Articles 16, 21 and 29 of the Rules of the Road above quoted. Through his neglect or inexperience, in my opinion, the cause of the accident was the speed of the "Storstad," and the porting and hard-aporting of her helm, and the "Storstad" is entirely to blame for the said accident, because Mr. Tufteness had the opportunity to take. the speed off his ship, the same as the "Empress" did, and if he had not ported her helm, I believe he would have gone clear and the collision would not have occurred. I regret very much to have to impute blame to anyone in connection with this lamentable disaster and I would not have done so, and would not do so, if 'I had felt that any reasonable alternative was left to me.
184 EXCHEQUER COURT REPORTS. [VOL. XVII. 1916 There is nothing to show that the disaster was CAN PAciFiAc D R IA . N Co. in any way attributable to the St. Lawrence route, s.s. and, being open water, all sea rules apply. "STOHSTAD.', I n conclusion, I am of the opinion that Mr. Tufte- eases or ness, the first officer of the "Storstad," was wrong . and negligent in altering the course of the "Stor-stad" in the fog, as he undoubtedly did, and that he was also wrong and negligent in keeping the navigation of the vessel in his own hands and in failing to call the Captain when he saw .the fog coming on. I am further of opinion that no fault or blame is attached or attributable to the "Empress of Ire-land," and, consequently, I am of opinion that plaintiff's action must be maintained, with costs, and the counter-claim of the defendant rejected, and the defendant is condemned by the present judgment to pay to the plaintiff the sum to be found ,due to said plaintiff, and"in costs, and doth further •order that an account should be taken and doth refer same to the Deputy-registrar, assisted by merchants, to report the amount due the plaintiff in respect of its claim, and that all accounts and vouchers, with the proof in support thereof, shall be filed within 6 months from the date of the present judgment. Judgment for plaintiff. Solicitors for plaintiff : Meredith, Macpherson, Hague, Holden, Shaughnessy & Heward. Solicitors for defendant : Duclos & Bond.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.