Ex. C.R.] EXCHEQUER COURT OF CANADA ON APPEAL FROM THE NOVA SCOTIA ADMIRALTY DISTRICT THE SHIP CAVELIER, HER CARGO 1 AND FREIGHT (DEFENDANT) AND LIVERPOOL SHIPPING COMPANY (PLAINTIFF) Shipping—Collision—Altering course—Articles 19, 22, 23, 27 and 29 of the Rules of the Road—Travelling red to red. The collision herein occurred in Halifax harbour, the bow of the C. ing the K. on her starboard quarter. The Automatic Buoy and the K. was northward and westward of the buoy, 205 1931 Sept. 22. J} APPELLANT Oct. 17. RESPONDENT. strikC. was heading for the Inner
206 EXCHEQUER COURT OF CANADA [1931 1931 each showing her red light to the other, until the K., almost imme-% ay-d diately after passing the buoy, altered her course suddenly, showing THE Saar Cavalier her green light on the port bow of the C. which would be about half V. to three-quarters of a mile S.S.E. of the buoy, and in attempting to LIVERPOOL cross the bow of the C. was struck as aforesaid. The K. gave no SHIPPING signal of her intention to change her course. Co. Held, [varying the judgment appealed from] that as the vessels were travelling red to red, the K. by altering her course without justification, and especially without signalling the C. her intention to do so, and in attempting to cross the C's bow, thus creating a danger of collision, violated Articles 19, 22, 23, 27 and 29 of the International Rules of the Road, and was guilty of mismanagement and bad seamanship, and was solely to blame for the collision which occurred. This was an appeal from the judgment of the Honourable Mr. Justice Mellish, Local Judge in Admiralty, for the Nova Scotia Admiralty District, finding both vessels to blame for the collision, and condemning the plaintiff to two-thirds of the damages and the defendant to one-third. The following are the reasons for the judgment of the Local Judge. MELLISH, L.J.A. (April 21, 1931), delivered the following judgment. This is an action for damages sustained by the plaintiff's ship the Mary E. Kenny with the defendant ship off Hali-fax harbour on the 17th November last. The Mary E. Kenny is a motor boat, 68 feet long 16 feet beam and 7 feet depth; gross tonnage 49, nett 40. The Cavelier is a steam freighter. The Kenny's crew on duty just before the collision were the master, Ernst, who was steering the ship, and a seaman, Crouse, who is said by Ernst to have been on duty as look-out, but who was unfortunately drowned just after the collision. The collision occurred between 3 and 4 o'clock in the night, which was dark but with good visibility. The only witness on behalf of the plaintiff is the master, who says that he was bound from Halifax to New-foundland, that he sailed from Halifax after passing George's Island on a course due south to the Inner Automatic buoy; that he rounded this buoy close-50 feet; and that he then proceeded on a course S.E. z S. to pick up the Outer Automatic Buoy and incidentally to test his compass; that he first saw the Cavelier when the Kenny was about half a mile north of the Inner Automatic buoy and about two miles away, about two points on his port bow,
Ex. C.R.] EXCHEQUER COURT OF CANADA showing her green light. After rounding this buoy and changing his course 32 points to the eastward he says that Ta he again saw the Cavelier's green light about 12 away, about half a point on his his attention was next called to the Cavelier blast of the latter's whistle she was about three points on his starboard bow shewing both side lights about / mile away; that in about 20 or 30 seconds the collision occurred and that during this interval to avoid the collision he star-boarded his helm; that the collision followed, the striking the Kenny on the starboard quarter at an angle of about 60' from the bow of the Kenny about seven feet. The master of the Cavelier swears that the awaiting a pilot on a course N. 50 W. from the vicinity of the Outer Automatic buoy; that the pilot came aboard, and that the ship's course was then directed to the Inner Automatic N.N.W. when he saw the red light of the two to two and a half miles away, half a point on his port bow; this was after the pilot came aboard and the ship was proceeding full away for the buoy at 3.07—a moderate northerly breeze; that the look-out reported the red light at the same time. He first saw the which broadened to two points on his port bow; that the Kenny then changed her course shewing her green side light only, about two points on the when about half a mile away; that then the following steps were taken by the Cavelier—stop, astern, with appropriate signals; that the on her course shewing her green light; and that the Cave-lier struck the Kenny on her starboard side, about two minutes after the green light was first seen, about S.E. of the Inner Automatic buoy. According to the lier's log the collision took place at 3.17 or seven minutes, taking the captain's testimony, after the Kenny was first seen. On cross examination he puts the westward of the buoy when first seen. The Cavelier's look-out, Arcand, says he came on duty at 3 a.m., that at 3.10 he saw a light, " first one the white, and I looked afterwards, and the red one: and I gave two bells "; that he saw the red light one point on the port bow, and afterwards the red and green, and then the green. 207 1931 s z P or 14 miles Cavvalier . starboard bow; that when LIVERPOOL by as ingle Sxrnrlxa Co . Cavelier cutting into her Cavelier was Kenny Kenny's light at 3.10 Cavelier's port bow hard a port, full speed Kenny continued 4 mile Cave-Kenny two cables
208 EXCHEQUER COURT OF CANADA [ 1931 1931 This witness appeared to be at some disadvantage in speak-THE SHIP ing English, but appeared to be an intelligent witness and Cavalier had a mate's certificate. He says nothing about seeing LIVERPOOL either the green or red lights of the Kenny two points on SHIPPING co. port bow, but he is I think the onl y w itness on the de- fendant ship who says he saw all the Kenny's lights at once, although he does not say how they bore when he saw them. The second officer of the Cavelier, Roach, corroborates the captain as to the Kenny's green light being two points on the port bow of the Cavelier and the distance from the Inner Automatic when the collision occurred. The following extract is from his evidence: Q. Which way were they moving?—A. Towards us very rapidly. Q. Straight towards you or to your left or right?—A. About an angle of 90 degrees he appeared to be coming across our bow. Q. You did hit the ship?—A. Yes. By the Court: Q. How much did you shift your head before the collision?—A. I should say something about six points; the helm was hard aport we were swinging very rapidly; I think she was heading about N.E. As to the position of the Kenny when first seen he says: A. He appeared to be slightly to the wéstward of the buoy, possibly a little N. of W. of the buoy. Q. Fairly close to it?—A. Yes, not too far. A. He must have been very handy to the buoy when we saw him first. The Cavelier's helmsman, Rose, who also held a mate's coasting certificate, says the first lights he saw were the Kenny's white and green lights two points on the port bow. He heard no report from the look-out. After seeing the green light the Cavelier he says " Gave him one blast, hard a port, and stop—pretty nearly the same time—and then maybe a minute or so after that, the engines went full astern; I heard the captain jingling the telegraph." Reyno, the pilot in charge of the Cavelier, according to his evidence, boarded the ship about two miles S.S.E. of the Inner Automatic buoy at 3.07 a.m. Then " went full ahead, ported our helm on the buoy " the ship heading N.N.W. After about three minutes he saw the red and white lights of the Kenny a couple of miles off, half a point on the port bow; then broadening to two points. After this the Kenny " changed to green, altered to the eastward."
Ex. C.R.] EXCHEQUER COURT OF CANADA 209 The evidence then proceeds as follows: 1931 kw y.0 Q. You could not see the ship?—A. No. THE Surf Q. What do you mean altered to eastward?—A. He starboarded his Cavelier helm and pulled around the buoy. v LIVERPOOL By the Court: SHIPPING Q. Did you think that was what he was doing?—A. When he showed Co. his green, yes. -- At the time of the collision he says the Cavelier was making 11 knots heading about N.E. That when he first saw the Kenny she would be about W. or N.W. of the buoy in his judgment and that the collision was about head on. The plaintiff's preliminary act says: That the collision took place mile S.E. 4 S. from the Inner Automatic Buoy. That the other ship was seen first about four miles away S. 5' E. Defendant's preliminary act which was filed too late, and after there had been a marine enquiry by the government, says: That the collision took place S.E. of that buoy and about a mile distant therefrom. That the defendant ship was heading N.N.W. when the other was first seen. It is difficult to find any fact in relation to this collision, but the evidence justifies I think the following findings which I make: 1. The collision took place at a point lying about S.E. .4 S. of the Inner Automatic buoy. 2. That at the time of the collision the Cavelier was heading about N.E. 3. That the Cavelier changed her course just before the collision from N.N.W. to N.E. 4. That at the time of the collision the ships met on courses about at right angles. 5. That the Kenny rounded the Inner Automatic buoy and then took a course about S.E. .4 S. The first four of these findings are practically undisputed, at least by the defendant, but if they are to be accepted, the defendant's explanation of the accident cannot be accepted. Defendant claims that the Kenny was two points on the Cavelier's port bow when the Kenny's green light was first seen. If the Cavelier was then heading 36334—la
210 EXCHEQUER COURT OF CANADA [1931 1931 N.N.W. which is not disputed, it is impossible that the THE Ir Kenny could have been heading S.E. i S. or even S.E. Cavelier Under such circumstances the Kenny's green light would LIV v E . RrooL be invisible by itself (i.e., apart from her red light) at any Sa No distance. And if the Kenny's course was more to the east- Co - ward so as to make her green light visible two points on the Cavelier's port bow, the ships could not have collided, S.E. or S.E. j S. of the buoy at right angles with the Cave-lier heading N.E. but must necessarily have collided at an obtuse angle to starboard of both ships, which no one contends for; and there is no evidence that the Kenny changed her course to starboard after her green light was first seen by the Cavelier. And in this connection, it is significant that neither the Cavelier's look-out or pilot • say that the Kenny's green light was seen two points on the Cavelier's port bow. The Kenny appeared to this pilot to be rounding the buoy when her green light was displayed, which is corroborative to some extent at least of Ernst's evidence that he rounded the buoy close—although I think he probably did not round it as close as he claims. If the latter's intention were to round the buoy close on his course S.E. 4- S. it is natural that on his previous course about S. he would be heading somewhat to the westward of the buoy and before changing his course would for some time be exposing his port or red light off the port bow of the Cavelier and would really have to cross the latter's bow twice before coming again on the starboard bow of the Cavelier where he was when a half mile north of the buoy. Having crossed the Cavelier's bow from starboard to port when on a course about S. the Kenny was attempting to pass from the Cavelier's port to her starboard. Ernst saw the Cavelier, he says, when he was a half mile north of the buoy and I think did not see her again until after he had changed his course without notice and I am not satisfied that he saw the Cavelier's green light on his starboard bow until after the Cavelier had changed her course to avoid him, i.e., im- mediately before the collision. The great weight of the evidence is against the contention that the Cavelier took the extraordinary course of porting to the green light after it had passed to her starboard bow. I find that the Kenny was rounding the buoy as the pilot of the Cavelier thought she was doing when she shewed
Ex. C.R.] EXCHEQUER COURT OF CANADA 211 her green light, but I find that the green light was not then 1931 as much as two points on the Cavelier's port bow, and that THE it should have been seen earlier by the Cavelier when she Cavvelier was more than half a mile from the Kenny. As the Cave- LIVERPOOL lier would after seeing the light be swinging to starboard Sn xa co the green light of the Kenny would for some time widen — on her port bow until the speed of the Cavelier would be so diminished that the green light of the Kenny seemed to cross her bow at right angles. The collision is said in plaintiff's preliminary Act to have taken place about half a mile from the buoy and in defendant's preliminary Act about a mile from it. The latter's preliminary Act was delivered after the evidence was taken so late as to be of no use for the purpose for which it is primarily intended. The only evidence on the point, that of the master of the Cavelier, puts the distance at about three-fourths of a mile. I am accordingly of opinion that the green light of the Kenny was visible westward of the buoy at more than half a mile and should have been seen on the Cavelier's bridge before it was, and that it was less than two points on the port bow of the Cavelier when it was so seen. Whether at that time the green light was so fine on the Cavelier's port bow as to justify her keeping her course and speed or in using a starboard rather than a port helm is difficult to determine. When the Kenny shewed her red light off the Cavelier's port bow (red to red) it was to be expected that the Kenny would not imperil this safe position which may perhaps account for, though not justify, the Kenny's green light not being sooner seen. A green light off the port bow would appear to be a more important one to report than a red one, but it does not appear that any side light except the red one was reported by the look-out. From the defendant's Preliminary Act and from the defendant's conduct of the trial, there is an indication that the Cavelier's officials may have thought that the rules as to meeting ships were applicable to these steamships. This however is clearly not so, as there is no evidence that both side lights of either ship were seen ahead of the other. In the result I find: 1. That the Kenny was at fault in not keeping a good look-out, and in not stopping or reversing when she heard 88334-1 is
212 EXCHEQUER COURT OF CANADA [ 1931 1031 or should have heard the Cavelier's course signal, and that THE IP she should not have attempted to cross from the port to Cavelier the starboard bow of the Cavelier under the circumstances V. LIVERPOOL at least without giving a signal. (4 P.D. 226.) SHIPPING CO. . That the C a velier w as at fault in not earlier seeing the Kenny's starboard light. By consent of the parties, Captain W. F. Mitchell, local Examiner of Masters and Mates, has given me the great benefit of his services as assessor herein. In the result I adjudge that the plaintiff should bear two-thirds of the damage caused by the collision and the defendant one-third. The appeal was heard before the Honourable Mr. Justice Audette at Ottawa. Lucien Beauregard, K.C., J. E. Rutledge for the appellant. The Hon. W. L. Hall, K.C., for respondent. The facts are stated in the reasons for judgment of the Honourable Mr. Justice Audette, printed below, and of the Honourable Mr. Justice Mellish. AUDETTE J., now (October 17, 1931), delivered the following judgment: This is an appeal from the judgment of the Local Judge of the Nova Scotia Admiralty District, pronounced on the 21st May, 1931, decreeing that the respondent should bear two-thirds of the damage caused by the collision in question in this case and that the appellant should bear one-third of such damage. And furthermore that the respondent recover from the appellant one-third of the damage suffered by the respondent. No costs to either party. The present appeal, however, is limited to such part of the said judgment " whereby the ship Cavelier was adjudged at fault at not earlier seeing the starboard light of the ship or motor boat Mary E. Kenny and as a result thereof was ordered to bear one-third of the damage caused by the collision between the ship Cavelier and the ship Mary E. Kenny. The appellant hereby asking that the Mary E. Kenny be held wholly to blame for the said collision, the whole with costs.
Ex. C.R.] EXCHEQUER COURT OF CANADA 213 The facts of the case being stated at length in Reasons 1931 for Judgment of the Local Judge, it becomes unnecessary THE SH ip to repeat them here. Cavelier v. The SS. Cavelier is a steamer of 3,396 tons gross and LIVERPOOL 2,213 net tonnage, speed 12 knots. The Mary E. Kenny is S$Co Na a motor vessel of 49 gross tons, speed 7i knots. Audette J. The Cavelier being a large vessel having two mast head — lights, at regulation height, would be visible to the Kenny before the lights of the latter vessel were visible to the Cavelier and any change in the course of the Cavelier, with her two mast lights, could be readily detected by the Kenny, irrespective of the side lights; while in the case of the Kenny, with a single mast head light and showing either a port or a starboard light, the change in her course could only be ascertained with certainty by the approaching vessel by carefully watching the compass bearing of the light on the Kenny. To qualify this statement, it is generally admitted that the master of the Kenny first observed the two mast head lights and the green light of the Cavelier on her port bow, while the Kenny was still approximately half a mile of the Inner Automatic Buoy—at a distance from one another of about 22 miles. Presumably at that time the Cavelier was still on her north 50° west course picking up the pilot and before that vessel was headed for the Inner Automatic Buoy on her N.N.W. course. According to the evidence submitted on behalf of the Cavelier, the Kenny's lights were first observed when the Cavelier was at point B on exhibit E-H, which is approximately one and three-quarter miles S.S.E. of_ the Inner Automatic Buoy, when the single mast head light and red light of the Kenny were reported by the lookout half a point on the bow of the Cavelier. These statements would appear to be correct in each case after checking from the chart the respective angles of approach, assuming that each vessel was on the course as stated when the respective lights were first observed. Therefore, when the Cavelier was first on her N.N.W. course heading for the Inner Automatic Buoy, the Kenny was still to the northward and westward of that buoy, and such being the case, each vessel must have been showing her red light—with possibly the Cavelier showing both
214 EXCHEQUER COURT OF CANADA [1931 1931 side lights, until such time as the Kenny altered her course, THE IP almost immediately after passing the buoy, suddenly show- Cavelier v. ing her green light on the port bow of the Cavelier when LIVEaPooL she would be approximately half to three-quarters of a SHIPPING mi le S.S.E. of the Inner Automatic Buo Y y • . Audetted. By so changing her course, in face of an approaching vessel showing either her red, or her red and green and the two white head mast lights, the Kenny, without justification and in obvious transgression of the well known rules of the road, interfered with the safety of the Cavelier and thereby jeopardized her position in attempting to cross her • bow from port to starboard at an unsafe distance and without signalling her intention of so doing. It was only after the Kenny thus altered her course for the Outer Automatic Buoy that her green light became visible to the Cavelier, when the master, realizing the risk of collision resulting from such lubberly manoeuvre, immediately did all in his power to avoid the collision, gave one short blast, which remained unanswered, ordered the helm hard a port, stopped his engines, followed by a full astern order and a three blast signal. I find without hesitation that the Cavelier was properly equipped and all through behaved with good seamanship and did all that was possible and all that is provided by the rules of the road in such an emergency—that is to say in the agony of collision— through the obviously wrong manoeuvring of the Kenny. When the Kenny heard the one blast of the Cavelier, intimating she was directing and keeping her course to starboard, she still had time to stop and reverse to avoid the collision. She still had time to resume her former course and pass red to red. However, she stubbornly persisted and proceeded full speed on her altered course and was still going full speed ahead at the time of collision while the Cavelier at that time, if not stopped, might be going ahead on her momentum at the speed of one or one mile and a half an hour. Previous to the time the Kenny altered her course, both vessels were travelling in opposite directions, each showing her red lights. While in that position, the master of the Kenny, without signalling, changed his course to port, against the strict inhibition of such course provided by the rules of the road and aggravated his manoeuvre by
Ex. C.R.] EXCHEQUER COURT OF CANADA 215 admitting in his evidence that he did not look at the 1931 Cavelier immediately before altering his course. THE I have come to the conclusion that the master of the Cavelier v. Kenny has violated Articles 19, 22, 23, 27 and 29 of the LnERPooL International Rules of the Road. There was no justifica- SWING tion for altering his course under the circumstances, and Anuletted. much more so without any signal to the other vessel of such intention, and that he is guilty of mismanagement and bad seamanship. This manoeuvre was erratic and devoid of any seamanship. He created the danger of collision, placed the Cavelier in the agony of collision while the latter has shown all through good seamanship and has done all in her power to avoid this collision. The Kenny is solely to blame for the collision; she should not have attempted to cross the bow of the Cave-lier under the circumstances. The appeal is allowed with costs both before this court and before the trial judge. I have had the advantage in this case of being assisted by Captain L. G. Dixon, Marine Superintendent of the Department of Marine of Canada, a Captain in the Merchant Service and a retired Lieutenant R.N.R., who has been of great service to me and I am pleased to say that he entirely shares the view I have arrived at upon the facts. Judgment accordingly.
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