G A S S I)ETI:RDIINEI) IN THE EXCHEQUER COURT OF CANADA. TORONTO ADMIRALTY DISTRICT. THE GEORGIAN BAY NAVIGA- TION COMPANY . .. PLAINTIFFS ; 1002 June 2. AGAINST THE SHIPS "SHENANDOAH" AND " CR B TE." Admiralty law—Collision—Right of way. In the case of a river traversed annually by thousands of vessels and used by two nations, a custom which in effect supersedes a statutory rule ought to be established by the most conclusive and cogent proof ; and when it is sought to make it binding upon foreign as well as domestic vessels, the proof should include some convincing evidence that a knowledge of the alleged custom existed amongst mariners generally, and extended to mariners sailing on vessels carrying a foreign flag and habitually traversing a busy river. THIS is an action brought by the plaintiffs against the American steamer Shenandoah and the barge Crete, the latter being in tow of the former, to recover damages for injuries to the plaintiffs' steamer Carmona, as the result of a collision which took place in the River St. Clair, on the. morning of the 25th of June, 1899. The trial of the case took place at Windsor on the 17th, 18th and 20th days of January, 1902, and the argument of counsel was heard, at Toronto, on the 1st day of February, 1902.
2 EXCHEQUER COURT REPORTS. [VOL. VIlL 1902 The facts of the case are fully set out in the reasons TEE for judgment. GEORGIAN BAY T. Mulvey and J. W. Hanna for the plaintiffs ; NAVIGATION Co. F. A. Hough for the defendants. ~• T. Mulvey for the plaintiffs : I do not think there is THE SHIPS SHENAN- any doubt as to how the Carmona came into the river. DOAH AND S L h e .' .. on. her vo y a f g r e o m Go n r ti nh to Sarnia . rd CRETE. of course came down the easterly side of the lake, and, ,argument of Counsel. while still in the lake, passed a tow starboard to star- board. After she got into the river and some distance below the lighthouse, she passed a single vessel port to port, and that is the point I lay stress upon ; because it is to some extent an answer to the contention of my learned friend that she should not have gone down the American side of the river, and of itself, I think, shows that we were taking our proper course down the river. When she passed this vessel there was no fog. It was not until about as she crossed the ranges that the fog set in. This would bring her about opposite the (grand Trunk freight sheds on the Ameri-can side, and the chart shows that point to be about 1,500 feet from the place where the collision occurred. Various opinions were expressed with regard to the strength of the current. The defendants' preliminary act says seven miles an hour, some witnesses say four ; but the reason I take up that point is to estimate the time that the Carmona was in the fog. Supposing she was run as slowly as she could be to retain steerage way—about two miles an hour, and the current was running five miles an hour, she would be travelling about the rate of seven miles an hour and would be passing the land at the rate of half a mile in the neighbourhood of four minutes. [BY THE COURT : In other words she would have been travelling from the time she entered the fog, from four to five minutes.]
VOL. VIII.] EXCHEQUER COURT REPORTS. 3 • It would be in the neighbourhood of three and one-1902 half minutes she was in the fog. There is no doubt s she came quite close to the American bank in the fog, GE A GR Art and we say that at the time she sighted the Shenan- NAVIGATION doah CO. she was within about 75 or 100 feet from the bank. . Tam SHIPS SHENAN- There are some 'variations in evidence as to how the DOAE AND Carmona was headed at the time the CRETE. Shenandoah saw her. Captain Stevenson, the master of the Shenandoah, Argument ofCbiunsel. said she was coming down broadside, but the evidence of the plaintiffs' witnesses do not agree with that. Captain Stevenson also states that the Shenandoah moved up the river and swung a little to port, and then the Carmona backed into the Shenandoah. By models here I show this would be impossible, because if the Carmona were coming down broadside upon the bow of the Shenandoah she must ,have gone into . the bank, and she could not, as he states, have backed into her. I think the evidence of the master of the Shenandoah is on that point entirely inaccurate, because there was not room for the Carmona to come broadside like that—there was not room to do it, as her length was 180 feet over all. [By THE COURT : Or they must have been a good deal further out.] In their evidence they do . not, say they were any further out—not one of their witnesses say they were more than 200 feet out, and there was this barge at the . dock with a of 40 feet, and they expressly said that the space between the barge and the Shenandoah was not 200 feet ; but there was that space between the dock and the Shenandoah,-so that there could have been only 150 feet between the barge and the Shenandoah at the time of the accident. We say that the Shenandoah was nearer, that they were., only from 100 to 150 feet from the shore at the time of the accident, and that the position r,z
4 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 of the Carmona was heading down the river almost T parallel with the American shore, and her port bow GEORGIAN in a line with the stem of the Shenandoah. Not only BAY NAVIGATION does the position of the vessels at the time indicate Co. that, but also their subsequent manoeuvres, because the THE .SHENA Carmona in backing made very little headway against IPS DOAH AND the current—one of the witnesses for the defendants, I CRETE. think the master of the Shenandoah, said that although o A f rg u u me s n l t , Co ne the Carmona was backing for all she was worth, she was still going down the stream, and he also states that when they came together the Carmona was going down the stream, that is relatively with the Shenan-doah. [BY THE COURT : That she was moving down stream although she was backing.] Yes, and the Shenandoah was going ahead relatively to her. That shows that the pleadings are not accurate. The Carmona did not back with the Shenandoah, but they came together while passing one another. It may have been a sheer or suction from the Carmona that brought them together. It is hard to say how that happened, for at any rate the Carmona was backing, but was not going up the stream faster than the Shenandoah. [BY THE COURT : Still the backing into her might be while passing,, that is to say, she was altering her. position in the stream while moving onwards.] But the position in which they came together shews it was not a backing but a pulling together. It is well known that a large vessel will pull a small vessel towards her when passing. [BY THE COURT.—That may be in still water.] A large number of collision cases, even in the Detroit. River, show that that it is very likely to happen. There is considerable dispute regarding the whistles. that were given and I draw attention to the fact that.
VOL. VIII.] EXCHEQUER COURT REPORTS. 5 a starboard whistle was given by the Shenandoah and 1902 subsequently a port whistle. It is true that the crews T s of the Crete and Granada both say that they did not GEORGINA BAY pay any attention to these whistles. That may be so, NAVIGATION but I submit that it is impossible to give an intelli-. o . gent explanation of how this accident happened un- less they did give some attention to these whistles, be- DOAH AND cause I think it is most clearly shown that the Crete had CRETE. her bow turned in somewhat towards the American fc ` nrel. shore, and therefore she had starboarded when the two-whistle blasts were given. I am not saying whether the two-whistle blasts were given before or after the Carmona signalled, but at any rate they Were given, and subsequently the Shenandoah gave one blast, and they ported their wheels. The Crete, after that port whistle was given, could not have had time to change her course because it was almost immed- iately, the captain of the Shenandoah says, when the Carmona was passing by his stern that she gave that whistle, and then the Carmona would have only about 300 feet to go to come to the Crete, and in that dis- tance the alteration of the Crete could amount to very • little. Now there is some dispute in the evidence as to the way the tow-line was broken. 1 submit the circumstances show clearly that the plaintiffs' contention on that point is accurate. The evidence is that the tow-line was " chewed " up to about 100 feet from the bow of the Crete—that about 100 feet of it went in on the Crete, and the balance, 400 feet, was taken in on the Shenandoah ; and there was no chewing whatever on the part the Crete took in, and there was no " chewing" near the stern of the Shenandoah—but that the " chewing " took place in the outer 100 feet of the part taken in by the Shenandoah. One of the witnesses for the defence says he was at the bow of the
6 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 Crete when the collision took place, and saw the TsE Carmona about 75 feet from the Crete and saw the GEORGIAN BAY line snap across the bow of the Carmona. The cir- NAVIGATION cumstances do not show that that is accurate. If that â CO . were so how would the line be " chewed " in the last THE SHIPS 100 feet from the break ? The only thing that could SHRNAN- DOAx AND " chew " the line was' the action of the paddle, wheels CRETE. on it, and how could it be " chewed " if it broke o A r c rr o n u m ns e el n . t across the bow of the Carmona. On the other hand one witness, who was on the bow' of the Carmona immediately before the Crete and Carmona came into collision, says that while the Car-mona was fifteen f Set away from the Crete he looked down and saw the line still taut against the side of the Carmona. I think the evidence all shows that the way the break of the line took place was, that when the vessels came together there was a sudden jar, and the line at that time being under the wheel of the Carmona, the sudden jar broke it 'off. The line could not have been snapped across the how of the Carmona. The line was a very heavy one and the Carmona was • not headed across the line. Then the Carmona came down upon the Crete and struck her about five feet from the stem on her starboard bow. Now as to the law applicable to the case. First, I will take a point raised by my learned friend that there was a custom of vessels to go to the American side of the river in going up. In discussing that point I draw attention to the International rules. Art. 25. says " In narrow channels every steam-vessel shall when it is safe and practicable keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel." That is not the United States rule but the International rule, and that applies to all vessels over which the Canadian Government has jurisdiction. It applies to mid-channel in that river.
VOL. VIII.] EXCHEQUER COURT REPORTS. , That is concluded in authority because it has been held in more than one American case, that the Cana • d ian rules apply on the Canadian side of the channel. (Cites the Lansdowne (1),. [By THE COURT :—Do the United States courts hold that this rule applies to their vessels in Canadian waters ?, Yes. Their vessels are governed by the Canadian rules when they pass the centre of the river. That is of held by the Supreme Court in the case of the York (2). The whole point is considered there. It is held there that the Canadian and United States rules apply on their respective sides of the International boundary. My learned friend put a series of questions to his expert witnesses as follows : " Do you know the custom of mariners in passing Botsford's elevator ?— A. Yes. What do you do there ?--A, We go to starboard." Now if they went to starboard in Canadian waters they would be going contrary to Art. 25, and they would be in fault, so that they were going a little. beyond the mark in answering those questions as they did. There is no corresponding rule for the United States side of the boundary ; but there is a clear and well defined rule for the Canadian side ; and these' expert witnesses did not limit their testimony at all, • b ut without qualification they said, in passing that part of the river—they didn't say one side or the other—we go to the starboard, because it is proper to go to starboard. There is a number of cases in which the law on this subject is clearly and well laid down. The cases I propose to cite show that it is good navigation to go port to port in such places as that and not starboard to starboard. I will cite English cases decided before this (1) 105 Fed. Rep. 436, (2) 175 U. S. 187. 7 1903 GEORGIAN BAY NAVIGATION C,°' THE SaiPs S HENAN- DOAH AND CRETE. A C rg o u me e n l t uuB . New
8 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 Article 25 was adopted as a rule of law, that is adopted Ts$ R as practically laid down by statute, and I submit that GEORGIAN Bey even for United States waters these are g b o od decisions NAVIGATION now. The first rules on the subject were adopted by the ~,. Trinity House in 1840, but these rules had no binding T SHIPS effect ; they were rules laid down by the Trinity masters SHENAN- DOAH AND for the guidance of navigators, and one of the rules was CRETE. " a steam-vessel passing another in a narrow channel Argument or Counsel. m ust alwa y y s have the vessel she is passingon the — larboard hand." (Cites the Duke of Sussex (1) ; The Friends (2). The rules of the Trinity House were superseded in 1853 by The Merchants Shipping Act of 1854, sec. 297, but it is unimportant to discuss that section here and it practically gives statutory force to this particular rule ; before that the rule was merely good seamanship. In 1862, 25 & 26 Vict., that section of The Merchants Shipping Act was repealed, and for some time after that there was no statute upon that ppint at all, and it was not until the rules of 1880 that the rule was adopted again that in narrow channels the ships must go to port. [By THE COURT :—Were there any intermediary decisions when there was no statutory rule ?] Yes ; in the case of the Unity (3) decided in 1856, while the statute was in force the same point was held ; there is also the case of the Fyenoord (4). This case merely holds that these rules apply to foreign vessels. . 1 refer you to the Vianna (5) ; that was the case of a collision at a launching and it was contended that all customary notice was given of the launching ; there the court says " no custom is proved because a custom in law must be universal, or at least so universal that any departure from it is recognised as unusual and extraordinary." (Cites Hand of Providence (6) ; The (1) I W. Rob. 274. (4) Swab. 374. (2) 1 W. Rob. 478. (5) Swab. 405. (3) Swab. 101. (6) Swab. 107.
VOL. V III.] EXCHEQUER COURT REPORTS. 9 Sylph (1) ; The Nimrod (2) ; The Seine (3) ; The Velocity 1902 (4) ; explained in The Esk. (5). E TH It was held in The Rhondda (6), since the rules, ( BAYIAN that the vessel which, in a nairow ;channel, did not go NAVIGATION CO. to the starboard side was to blame or in fault. There are some United States cases also, which may be a SHE TH N E A SH N I Ps little more instructive. DOAH AND THE COURT :—They are more apposite, dealing CRETE. [By with American waters.] f Cgouu neut of Counsel. • I refer also to the Newport News (7), this was a case of a collision in a`fog on the Potomac, tried in 1900. The Pavonia (8) ; The fames Bowen (9). [By THE COURT :—All the masters and seamen called in this case' stated that the general rule was to keep to the right, but they contended that there was a custom here which varied it.] Mr. Mulvey cites The City of Macon (10) ; The Mil-waukee (11) ; and the Mary Shaw (12). There is only one case, so far as I know, in Canada where there is any such local custom as that spoken of by the expert witnesses for the defence, and that is provided for in Art. 85 of the International rules. There are circumstances where the port side should be taken in a narrow channel, and the rules provide for it ; that exception is • as well known as the rules themselves. That is what I think the case of the Mary Shaw requires. Wheeler v. The Eastern State (18), is another case regarding the effect of custom, as is also Barrett y. Williamson (14). I say the Shenandoah and Crete both acted improperly in not cutting the hawser and in support (1) 2 Spinks 75. (8) 26 Fed. Rep. 106. (2) 15 Jur. 1201. (9) 52 Fed. Rep. 510. (3) 5 Jur. N.S. 298. (10) 85 Fed. Rep. 236. (4) L. R. 3 P. C. 44. (11) Brown's Ad. Rep. 313. (5) 2 L. R. 3 P. C. 436. (12) 6 Fed. Rep. 918. (6) 8 App. Cas. 549. (13) 2 Curtis 141. (7) 305 Fed. Rep. 389. (14) 4 McLean 589.
10 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 of that I cite the Jane Bacon (1), a decision of the TUE Court of Appeal. It is quite clear if in this case the GEORGIAN BAY Crete had cut their tow rope as soon as the Carmona NAVIGATION came in sight, there would have been no accident at Co. v. all ; no complaint is made about the collision with THE SHIPS the Shenandoah ; it was trifling. SHENAN- DOAH AND There are a number of United States cases also CRETE. showing the duty and liability of tugs and tows. I Argument of Counsel. cite the Mary A. Bird (2) ; The America (3). These cases show that the English and the United States law upon this subject is the same. [By THE COURT :—Had the Crete any time to do anything when she first saw the Carmona?] The matter was almost instantaneous. I have some other authorities which will help us out on that point. A second would have done it. There should have been an axe there ready to cut the hawser, and then the Carmona could have gone down the river without any trouble at all. It was the headway that the Crete was making up the river at the time which caused the injury to the Carmona. I also refer to the George S. Shultz (4), and the Mount Hope (6). The Shenandoah should have arranged a signal with the Crete to tell her to cut the tow-line. That is held in the case I last cited, and also in the David Crockett (6). In the Osceola CO, it is held that the tow is bound to stop just the same as the other vessel. More than one rule says that the plaintiffs here would have the right of way, and that the other vessel should have stopped. Every rule applicable to navigation shows that the Shenandoah should have stopped. There are a number of authorities about stopping in fogs, and ou that point I cite the Kirby Hall (8). It is only fair (1) 27 W. R. 35. (5) 84 Fed. Rep. 910. (2) 102 Fed. Rep. 648. (6) 84 Fed. Rep. 698. (3) 102 Fed. Rep. 767. (7) 50 Fed. Rep. 326. (4) 84 Fed. Rep. 508. (8) 8 P. D. 71.
VOL. VIII.] EXCHEQUER COURT REPORTS. 11 to say that the English decisions qualify to some extent 1902 the liability of a tow, and the latest case upon the fa subject is the Lord Bangor (1). In that case it is, held GE RGIAN BAY that for all purposes a tug and a tow are not one NAVIGATION vessel, and that the rule should not govern them as one v°' vessel. In that case it is also held that in a fog a tug ES S H H I PS and tow are not bound to come to a stand still, but they DOAH AND are bound to come to such a speed as will merely keep CRETE' their tow-line out of trouble. Apply that case to the â one before us. Here we are in a current going at the . • rate of about five miles an hour ; if the Shenandoah had stopped, her line could not have been fouled ; even if she had reversed—had gone' back, she could not have fouled because the current would have held the barges away from her. If she had slackened her speed in the first instance the accident would not have happened at all. It was the Shenandoah's duty to have stopped as soon as she saw the Carmona, and she would have gone back without trouble ; in either case she was at fault. If she had had only headway on, and no more, she could have stopped and reversed without getting her line into trouble. I refer here to the Passaic (2); as showing that it would be impro- per for the Carmona to have anchored there when she . found herself ' in the fog. I also refer to the Galatea (3); also to the Columbia (4). There are a number of other cases to show that in a' fog the fact that a whistle is not heard should not prevail against the person that does not hear it. The Genevieve (5) relates to cross signals and the duties of vessels under such circumstances. In the Marguerite (6), it is held that a vessel which has a right to be where she is should not be held to be in fault for (1) [1896] P. 28. (4) 104 Fed. Rep. 105. (2) 76 Fed. Rep. 460. (5) 96 Fed. Rep. 859. (3) 92 U. S. 439. (6) 87 Fed. Rep. 953.
12 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 an unwise manoeuvre made in a moment of extreme T danger. I also refer •to the H. M. Whitney (1), a case GsORaIAN i n BAY regard to tu â g s and tows. NAVIGATION The defendant in his evidence sought to show that Co. at the time of the accident the Shenandoah was making T HE SHIPS BHNAN- for the Grand Trunk wharf. I objected to that evi-o DOAH AND deuce but was overruled. I point out that there is CRETE. nothing with regard to this in the preliminary act o A f c r o , n w ~i e ee n l. t . o f the defendants and at the trial a partycannot give evidence contrary to the statements contained in his preliminary act. On that point I refer to the Vortigern (2). It was not until the second day of the trial that we heard anything about the Shenandoah making for a dock. The defendants no doubt saw that it was necessary to account more particularly for the presence of the Shenandoah on the American side, and I object strongly to the admission of this evidence, a.nd I say that that evidence should not be considered in disposing of this case ; my learned friend might say that his preliminary act is substantially correct and that the course was up the St. Clair Rapids ; but is there not a very great omission? Her course was not up, but across, if he were landing at the wharf; and when my learned friend put in a preliminary act as he did, he had in his mind that the Shenandoah was on her course to Duluth. While I object to the evidence, if it is to be considered I wish to comment upon it. Notwithstanding the fact that the Shenandoah was going for the wharf she should have looked out. for us ; we had the right of way, and she was taking the risk. I call attention to the fact that the Carmona was following her usual course in going down the river. As to the question of damages from loss of profits, I think a perfectly fair way to get at, it would be to (1) 86 Fed. Rep. 697. (2) Swab. 518.
VOL: VIII.] EXCHEQUER COURT REPORTS. 13 compare the trips of that season with the trips of the 1902 succeeding season. I do not think it would be fair to THE take the succeeding trip in 1899, i.e, after the accident GE ORGIAN BAV happened, and say what the profits likely would be NAVIGATION CO. from that. I think you might take the two correspond- ing trips. THE SHIPS SHENAN- I also refer to two further cases, the Godiva (1), and DOAH AND the Miranda (2). CRETE. T. W. Hanna followed for the plaintiffs : Argument of Counsel. I wish to draw attention to the evidence of Capt. Stevenson. There can be no doubt that the Shenandoah was moving up the river, and did move up the river, from the time when she first met the Carmona until the Crete's tow-line was broken, some 900 feet. If you take the evidence of Capt. Stevenson ,as to the rate of speed at which he was moving, it would occupy twenty minutes to go 900 feet ; but there can be no doubt that. from the time the two boats met until the tow-line of the Crete had parted there were only a few minutes. The circumstances that we find do not tally with Capt. Sevenson's evidence that he was only going through the water at the rate of a mile an hour, but they do corroborate the evidence of the plaintiff's witnesses that he was going at a greater speed, in • fact that he was running at an illegal rate of speed. I also point out that in the statement of defence the place of contact is given differently from what any of the witnesses have sworn to. [By THE COURT : Of course the pleadings are not conclusive.] They are an indication of the instructions given the solicitor at the time as to which part of the ship came into contact. The statement in the defence is exactly as we state, that it was on the port side aft that the two ships came into contact ; but according to Capt. (1) 11 P. D. 20. (2) 7 P. D..185.
14 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 Stevenson's version, as soon as the Carmona had passed T the bow of the Shenandoah, after striking, she appeared GEORGIAN BAY to go down sidewise. Some of the other witnesses, NAVIGATION however, say that she went down with her bow thrown Co. v. in and her stern towards the middle of the river. The THE SHIPs theory of the defence is that after the Shenandoah and SHENAN- DOAH AND the Carmona came together, the Carmona was put ahead CRETE. apparently without any regard to which direction she A r nt uY V u g u m un e s r.l. g ~ o r in g g and she did run across the tow-line. If that contention were correct, if there were any force being applied by the Carmona as against the tow-line, as quick as the tow-line parted, would not the Carmona be released and would not that very same force that had broken the towline drive her over onto the other side so that she would have avoided the Crete altogether ? Instead, however, we find that she came down and struck the Crete, almost on the starboard side of the bow. What I submit the facts show is this, that it was the fault of the Shenandoah that the Crete acted as she did, and that she was to blame. 1 think the captain of the Crete did exactly what any good seaman would do ; he tried to pass the Carmona on the side that it was indicated to. him the steamer was going to pass on, and in doing that I think he exercised good judgment. The captain of the Shénandoah said that there was • between 150 to 200 feet between him and the shore. Why did he blow an alarm whistle if there was no danger ? Why did Captain McFarlane go out and tell the captain of the Carmona to run her nose in the mud if there was no danger, if there was 150 feet of clear water there ? Or is the fact not as we have stated that we were being crowded by those barges, and there was not that much water ; we have evidence that they did attempt to pull the barges out, and it seems to me that that is really the key-note of the whole thing.
VOL. VIII.] EXCHEQUER COURT REPORTS. McFarlane would not have spoken in that way if there had not been some occasion for it. I wish to point out further that there are three wit-nesses which should be called in the case of. a collision, N that is the captain, the wheelman and the engineer, but here we have only the captain. The whole question comes down to this, was the Carmona rightfully where she was ? If she was, did she herself contribute to the accident ? The authorities . cited by my learned friend show clearly that she did have a right to be where she was. Then we ask was there anything she should have donè that she did not do ? There is no doubt as soon as she heard another steamer approaching it was her duty to slow down ; hut I do not think it was her duty to back as it was . the duty of the other steamer, she having the right .of way. I refer to rule 15 of the American rules corres- ponding to the 16th English rule, rule 77 American,. corresponding to rule 18 English, rule 18 American cor- responding to rule 19 English, 21 American corres- ponding to 23 English. These rules all apply more or less to this case. I refer also to the case of Maatschappy Nederland y. Peninsular, 4'c., Navigation Co. (1) ; the Ceto (2) ; the Franklin and the Kestrel the Love Bird (4), and the Kirby Hall cases make it incumbent for a boat meeting another to stop and back ; it is not merely sufficient that she should stop, but she should stop and back, and there does not appear to be any exception made in the case of a tow. All the circumstances corroborate the plain- tiff's story, and there are none that corroborate the defendants' story as to how the collision occurred. F. A Hough for the defendants (1) 5 App. Cas. 876. (3) L. R. 4 P. C. 529. (2) 14 App. Cas. 670. (4) 6 P. D. 80. (5) 8 P. D. 71. 15 1902 T $nÂY IAN_ AVIGATION V v°' THE SHIPS SHENAN- DOAH AND CxETE, o a ' f ' s C n u ~ n. n ~s : el. Stoomvaart (3)'; (5). These
16 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 It is clear that we have never claimed the custom • TILE which we have set up in this suit to be one which GEORGIAN BAY exi sted through the whole of the St. Clair River ,but NAVIGATION simply at this particular point, and the moment you o. Cv. pass the shoulder of the bend in the river the reason THE SHIPS SHENAN- for that custom ceases to exist and the custom ceases DOAH AND to exist with it. As to my learned friend's statement CRETE, that above the scene of the accident they had passed Arg u or ~„ n m „ e a n a i t another vessel port to port, and his using that as an argument against the custom which we have set up, we might with just as much consistency say that the fact of their having passed another boat further up starboard to starboard, is an argument in favour of the custom for which we are contending. I submit that neither of these instances can have any effect on the situation at the point where the collision took place. My learned friends also urged that the Carmona did not back into the Shenandoah. If that is so and the mate of the Carmona shouted out to the captain to " (moo ahead, you are backing into this ship "—that was their own language—it seems to me it is immaterial whether he backs astern or backs in a sideways direction. The facts on the evidence, I think, show that the Carmona did the backing into the Shenandoah, and did the running into the Crete. As far as the question of suction is concerned, it is a well known fact that there can be no suction unless the vessel which caused it is a very large one and moving very rapidly ; but that I submit on the evidence was not the case here. The next statement made was as to the tow-line, and my learned friends wish to show that the tow-line did not break until the collision took place and that the " chewing" was done by the paddle-wheel. The evidence is that the line was chewed for a distance of seventy-five feet from the bow. If that were done by the paddle-wheel it could not have got within that
VOL. VIII.] EXCHEQUER COURT REPORTS. 17 distance of the bow because the paddle-wheel of the 1902 Carmona is about 125 feet from her bow, so that it is. $E impossible that the chewing could have been done by d BAYTAN the paddle-wheel. Looking at the lithograph of the.NAFIGATION Carmona I submit fairly that these braces could be v°' held to cause the erosion and straining of the line. THE SHIPS SHENAN- The next point that I wish to refer to is that. the. DOAH AND Carmona buckled to starboard; I do not know that it is CRETE. necessary to give any reason for it buckling to starboard;. Ar.nieiit ~ oY l:ounsel, if it were, as I think it is clear, practically a shell, it must buckle some way when there is force coming. against it, and the ordinary law would be that it would give in the weakest point. I submit that the least inclination would . be sufficient to buckle the stein in the opposite direction. The fact of the Carmona coming down as she • did and crossing 'the tow-line and getting on the. shore, when she was not working • her engines, simply indicates to my mind the fact that the current sets in towards the American shore at this point ; and I think that that fact is also established by the fact that the Crete and the Grenada both, when they were loosened, went ashore here on the American side. It was hot because the Grenada was out in the stream in one 'direction and the Crete in another ;'.it seems to me a ridiculous contention to make that the tow could go up the river in that zigzag way such as is now indicated. Unless my learned friends can show that the Crete was headed in. shore, and headed in shore by reason of those two whistles, then their case must fail. The next point my learned friends made was that the Shenandoah must have gone 900 feet up the river during the accident. If the Carmona did not move at all, if she stood perfectly still, that would take the Crete away up to this position (indicated on chart) 'before she would strike. I submit the . proposition is ridicù- 2
18 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 lows. The minute the Crete's tow-line was broken she TH E dropped her anchor, that is as soon as the collision took GEORGIAN place, and it is safe to say she did not go any further BAY NAVIGATION up than that. Co. As to the variation of the testimony of the witnesses, THE SHIPS when the plaintiffs' witnesses made their declarations SHENAN. DOAH AND before the notary they all wanted, no doubt, to hold CRETE. their jobs ; if there was any inducement for a man to ofCannsel stretch a point in favour of his employer it was at that time, and havinz made them they were tied down to them. I would expect, however, that when they made those declarations the day after the collision that there would be a perfect unanimity among them with regard to all the salient facts ; but when one man swears the very next day as to one set of signals and another man swears to a different one, if their evidence is the same now, then I say it is not reliable. The defendants' witnesses differ in many of the minor points, but as to the one point of the signals they are absolutely unanimous, there is no difference of opinion, and I submit that the evidence of the defendants show that they were thoroughly honest in everything they did say and that they did agree in all the important points. Then the plaintiffs urge that the Shenandoah and Crete acted improperly in not cutting the tow-line. I submit that the navigators of the Shanandoah and Crete had no reason to suppose that this vessel was going to attempt to cross their tow-line until she actually did it. The Crete could not have known the Carmona was coming down on her tow-line until she saw her, and she was then 150 feet from her, and I submit that at that time and under those circumstances there was not time to cut the tow-line or do anything which could possibly have prevented it at that point. I wish to cite the case of the Lord Bangor (1), already referred to, as to a vessel with a tow not being bound (1) [1896j P. 28,
VOL. VIII.] EXCHEQUER COURT REPORTS. 19_ to reverse or jeopardise herself by getting the tow-line 1902 in her wheel ; that is good seamanship the world • T over. I am satisfied to have the evidence given by the GEORRGIAN witnesses who swore that they were going to the NAVIGATION dock and that the lines were ready at the time of the C,°' " collision. I think the circûmstanees show that it was THE SHENANps a very wise thing for the captain of the Shenandoah to• DOAH AND do under the conditions existing at the time. As CRETE. to the delay in the plaintiff bringing this action, it del. seems to me that the man who is honest and who thinks he has a fair case would not have waited two years in bringing his action unless there was some motive. The plaintiffs knew that there was a fog and they knew that there was a vessel in the fog ; then I say they were negligent in coming down the river as they did. By coming down the river in the position in which the Carmona placed herself, she could not alter her course to starboard, she could not alter her course in any way except by crossing the bows of another boat, and I submit that the fact 'of the Carmona coming down there as she did put her in a pocket for which they alone are liable, and I .say that, aside from any custom existing at that point, they should have expected and provided for the very thing that happened. I submit the Carmona had no business to go down the river at the rate she did. The cases are clear that when a vessel hears another ahead of her in a fog in such a position that she cannot ascertain her location she must stop ; it is not sufficient for her to check her speed, but she must stop. That is what I say the Carmona should have done until she ascertained where the other vessel was. I submit that when the Carmona did get the starboard signal from a vessel in front of her, if her navi- 2
20 EXCHEQUER COURT REPORTS. [VOL. VIII. 19 2 gators were at all familiar with the locality, she THE should have taken it for granted that the other boat GEORGIAN BAY was either close to the dock, or going to the dock, or NAVIGATION was hugging the American shore, and she should have Co. V. known that there was ample room to the starboard ; THE SHIPS then she should have accepted the signal and passed to SHENAN- DOAH AND starboard. CRETE. My next reason is that having come in to the port Argument of Counsel. of the Shenandoah, she clearly should have held her course. That, I think, is the foundation and the vital point of this whole action ; as she saw that she had about 150 feet of water inside there was no reason for her attempting then to cross the tow-line. But instead of doing that she moves across the tow-line and gets herself caught, and is, I submit, responsible for her own misfortune. Another alternative which my learned friends suggested was that they could have tied up at the G-rand Trunk dock ; that would have been a wise thing to do according to the experts ; anything would have been wise rather than what they did coming down that river in a fog. It is considered one or the most dangerous localities on the Great Lakes. That brings me to the first proposition which I have to make, which is that, if the defendants were entirely in fault, the plaintiffs cannot succeed if at any time they could have done anything to prevent the damage and did not do it. The second proposition is that unless the preponderance of evidence is found in favour of the plaintiffs, the onus being upon them, the action must fail. I submit that the experts who gave testimony clearly prove the existence of a custom at the point where this accident took place, that the up-bound boat should take the west side of the channel, and the down boats should pass to starboard. I submit that
VOL. VIII.] EXCHEQUER COURT' REPORTS. 21 your lordship cannot but find on the evidence of' the 1992 defence that there is such a custom existing at the T point where this collision took place. If this is so G}$ORa " BAY found, then the Carmona was clearly wrong in attempt- NAVIGATION ing to come down, knowing, as she should have ti°' known, that she was liable to meet an up-bound boat. THE S H E I S $nA As to the discrepancy spoken of between the prelimi- DOAH AN N D nary acts of the defendants and the evidence, I submit CRETE. that. there is no great discrepancy in our act, in not mom ;ÿ i, saying that we were going to tie up at the dock any more than there is ' in their preliminary act by their not saying that they were bound for Sarnia. I submit that there is no substantial variance, and if there is it is owing to the plaintiffs' delay in bringing the action and our inability to get reports and to get the evidence in shape. I do not think that I need argue that the White Law is to govern in this case and the White Law only, the collision taking place in American waters. [By MR. MULVEY : That is admitted.] The International rules have no bearing on the subject whatever. [BY MR. MULVEY : I do not admit that by any means ; they have some bearing on the question of whether there is a custom at that point.] [By THE COURT : Do I understand the contention of the plaintiffs is that even with the White Law, the defendants are in fault unless the custom they allege lets them out ?] [BY MR. MULVEY : Yes, and I say there cannot be a custom because under the Canadian rules it is illegal for a vessel to go down on that side—it is contrary to the express statement in the International rules for a vessel to go down on the Canadian side, so that if a Canadian vessel starboarded opposite the elevator in Canadian water she is in fault.]
22 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 [BY THE COURT : The point is this, that even under T their own rules they were in fault as to the steps GEBAGIAN taken unless they establish, with clearness, a custom NAVIGATION which should be known to people using the American Co. side of the river ; and if it were a custom established TEE SHIPS by such consensus of opinion and for a large number SHENAN- DOAH AND of years, that the Carmona should be presumed to CRETE. have notice of by using American waters.] Argnnent Should have known it ; if they did not it is immaterial to us. As to the negligence of the Carmona I would cite the Baltimore (1). I submit that the Carmona did not comply with that rule; that she could have stopped much sooner than she did, and if she had done so the collision would have been avoided. I refer also to the Aurania (2). The fact that the cases are all strong to the effect that we had the right of way", is not a sufficient answer to the damage as done. (The Beryl (3). I think it is plain in law that the simple fact of one vessel having the right of way does not entitle her to navigate without using ordinary precautions. The strong case on that point is the Warren (4). As to the negligent navigation of the Carmona in the fog at the time of this collision, I refer to the North Star (5). Also the City of New York (6). I submit that the captain of the Shenandoah acted in accordance with what is laid down in these cases—he brought his vessel to a practical stand-still. He swore to his intention of going into the dock and states he thought he would wait until the vessel which he heard coming down got by. And I submit that he took every precaution that a careful man should take, (1) 34 Fed. Rep. 660. (5) 62 Fed. Rep. 71, and in (2) 29 Fed. Rep. 98. appeal 22 U. S. App. 242. (3) L. R. 9 P. D. 137. (7) 35 Fed. Rep. 604, afterwards (4) 18 Fed. Rep. 559. • in 147 U. S. 72.
VOL. VIII.] EXCHEQUER COURT REPORTS. 23 and that the other boat continued to come down the 1902 river three miles' an hour and never once stopped. I E refer to Marsden on ,Collisions (1). As to the general OEB G rAN usage governing the navigation of local waters, I refer NAVIGATION again to rule 38 of the White Law to the City of v°' Washington. (2) ; to Spencer on Collisions (3) ; Marsden SâExAx"$ on Collisions (4). And also to the James Bowen (5), as DOAH,'AND to the effect of a custom in regard to vessels meeting CBSTE. and passing in the Delaware River ; in that case it is o nrei clearly held that the custom superseded the rules. I submit that on the whole evidence the plaintiffs cannot succeed in their action. T. Mulvey in reply. Notwithstanding what my learned friend says it is quite apparent from the map that the Shenandoah went 1,000 feet during the accident, and the assertion of my learned friend to the contrary I think does not answer that. My learned friend argues that the Carmona crowded the Shenandoah into shore and did not go to starboard. The evidence all shows that it was impossible, when the Carmona saw the Shenandoah, to go any other way than to port ; the Carmona could not have gone slower than she did and have maintained steerage way. As to the reasons given by my learned friend why the plaintiffs should not succeed, even assuming that the plaintiffs' evidence were true—there is no question that we knew there was a fog, but we did not know of that fog until after we got into the river, and got into the current, so that we could do nothing but go down. The second point he advances is that the armona had no business to come clown the river at the rate she did, and should have 'stopped when she heard the (1) 3rd ed. pp. 396, 435. (3) See. 22. (2) 92 U. S. 31. (4) P. 467. (5) 52 Fed. Rep. 510.
24 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 whistle ahead. My answer is that she could not have THE gone down the river at any other rate. She would GEORGIAN not have BAY steerage wayif she went slower, and she NAVIGATION stopped as soon as she saw a vessel ahead. v O. His next point is that having come in to the port THE SHIPS side of the Shenandoah she should have held her SHENAN- DOAH AND course and not come across the tow-line. I have a CRETE, comment to make on that which I made a short time of e nte sel, ago. The mate of the Shenandoah said " Hun ashore !" I do not think that is very satisfactory advice to give. There was some chance of getting out the other way, and if the Crete or Shenandoah had cut their tow-line as they should have done, we could have got out the other way, and there would have been no accident at all. My learned friend's next - proposition is that if the defendants are in fault and the plaintiffs could have done anything to prevent the accident and did not do it, they cannot recover—but he does not cite any authority upon that subject neither does he suggest anything that we might have done to prevent the accident which we did not do. My learned friend also says that the onus is upon the plaintiff, and he says, too, that Captain Cameron in his evidence stated that this was his first trip down the river and that he was taking the usual course. It is not fair comment to say that because this was his first trip he did not take the accustomed course. MCDOUGALL, L J., now (June 2nd, 1902) delivered judgment. This is an action instituted by the plaintiffs in the Exchequer Court, Admiralty side, against the Ameri-can steamer Shenandoah and the barge Crete, (the latter being in tow of the former, but both belonging to the same owners), to recover damages for injuries to
VOL. VIII.] EXCHEQUER COURT REPORTS. 25 the plaintiffs passenger steamer Carmona as the rèsult -1902' of a collision between the Carmona and both the T Shenandoah and Crete on the morning of the 25th GEBaI AN June, 1899. The collision took place in the Ri' er St. N AVIGATION vo. Clair, opposite Botsford's Elevator, Port Huron, at or near the foot of what is commonly known as the St. TEE SHIPS SHENAN- Cloir Rapids. DOAH • AND CRETE. The Carmona is a British paddle wheel steamer one hundred and eighty-three feet long, and the $ for Jaagm e t n e 4 . Shenandoah •is au American steam barge or propeller three hundred and twenty-eight feet long, and the Crete is an American tow barge three hundred feet long. The Shenandoah and her tow were coming up the 'river on their way to Duluth, loaded with. coal ; the Carmona was descending the river with passengers upon her regular voyage from the Sault St. Marie to Cleveland, intending to call at Sarnia on her way down the river. The time of the accident was about 1.30 a.m. ; the weather had been clear .and fine and there was no wind but a bank of fog covered the river from about the Grand Trunk Railway docks for some distance down the river. When the Carmona entered the river it was clear and she had no difficulty in getting the range lights, but when she reached the, Grand Trunk docks she encountered the fog. The Shenandoah had had clear weather up the river until a little below the water works dock on the American side, or about five hundred yards below Botsford's elevator, when • she too entered the fog. The collision took place opposite Botsford's elevator, which•, as nearly as may be,'is about four or five hundred yards down the river from the G-rand Trunk Railway docks ; in other words the fog bank covered approximately a thousand yard's of the river. The collision took place between the vessels about the centre of the fog.'
26 EXCHEQUER COURT REPORTS. V I OL. Viii. 1902 The plaintiff's case, as made upon the pleadings' zT charges that the cause of the collision was the negli- GEORIAN gent navigation of the Shenandoah, and alleges that the NAVIGATION Carmdrna . did everything possible to 'avoid the collision. v The defence sets up that when first seen the Carmona THE .SHEN S A H N-I P was coming rapidly down the river, and apparently DOAH AND heading for the docks on the American side. The CRETE, night is alleged to have been very f o b gg y, with no ns $e ôr wind ; that the Carmona had no lights, or such inferior .rudtmeat. lights as to be invisible to those on. the Shenandoah. It also alleges that the latter vessel was properly navigated, and had all her regulation lights duly burning. As soon as the Shenandoah saw the Carmona, the former's helm was put .hard aport and several sharp danger whistles were blown. It is further alleged that the Carmona was uncontrollable, and, after clearing the Shenandoah's bows, reversed her engine and backed stern first into the Shenandoah striking the latter on the port side aft ; the Carmona's engines were then started ahead and she crossed the tow-line of the barge Crete, cutting the same in two, and struck the starboard bow of the Crete. The allegation is then repeated that the Carmona was then controllable, was not kept on her course as required by law, and was negligent in attempting to run down the St. Clair Rapids during the heavy fog prevailing at the time. The defence avers that the collision was caused by some or all of the matters and things therein alleged, or otherwise by the default of the Carmona or those on board her, and was not caused or contributed to by anything done by the Shenandoah or those in charge • of that ship. The defendants then counterclaim for their damages for injuries caused by the collision and for the breaking of the tow-line by the Carmona, and the consequent delay and damage to the Crete and
VOL. VIII.] EXCHEQUER COURT REPORTS. Grenada (another tow barge), which' latter vessel it is alleged went ashore. The plaintiffs in reply deny the allegation of the counterclaim and allege that any loss or damage suffered by the Shenandoah and Crete was solely due to their own negligence' and that the plaintiffs were TEE guilty of no contributory negligence whatever. No action was taken by either vessel against the other at the time, but in August, 190 I, the Crete got Be upon a shoal or bar at or near the lime-kiln crossing in the Detroit River, in Canadian waters, and the plaintiffs hearing of this fact issued process out of this court and had her libelled for .damage§ for the collision. The case came on for trial before me, at Windsor, on the 17th, 18th and 20th days of January, 1902. As usual in such cases a large number of witnesses were examined on behalf of the plaintiffs and defendants, and the usual. dispute arose as to which vessel was in fault and responsible for the collision. , The argument of counsel was heard on the 1st of February at Toronto. At the argument it was arranged that the shorthand notes of the evidence should be • extended before my judgment should be considered ; the lengthy transcript took the reporter five or six weeks to prepare, and my judicial engagements in other courts during March and April my considering the matter earlier. I find upon the evidence that the full crew and was properly ' manned, and that her proper lights were burning, and that she was upon her regular trip between the Sault St. Marie and Cleve-land on the night in question. The weather had been clear and bright on the lake, and when she passed the lighthouse beyond the mouth of the river that she picked up, without difficulty, the range lights, one of them being at the entrance to the river, another at the 27 1902 HE (EO B R e ( y } IAN NAVIGATIO t,°' SHIPS SHENAN- DOAH AND CRETE. "(Iglu." havé prevented Carmona had a
28 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 freight sheds and the third at the Botsford elevator. THE After getting into the river and as the Carmona was GEORGIAN BAY making the turn in the river after passing the freight NAVIGATION sheds, the fog bank appeared ahead and in a moment CO. a. it surrounded the vessel. The Carmona, before enter- THE SHIPS ing the fog, and inside the lighthouse, had passed SHENAN- DOAH AND another steam vessel, port to port, going out of the CRETE. river. The Carmona came down the American shore "" following the trend, at first keeping about three Judgment. hundred feet out, but when the fog came up so thick as to obscure and shut out the shore lights, the master altered his course so as to get closer to the shore in order to.pick up the land-marks and loom of the land. Just prior to the collision the Carmona's course would take her to • within fifty or sixty feet of the bank. Before entering the river her engine had been checked down to five or six miles an hour ; and on entering the fog a second check was given and the engine reduced in speed to about two miles an hour. The second check meant that the engineer was standing at the engine, working it with a hand bar. This speed would give a reasonable steerage way only. The current of the river varies at different points ; at some points it is said to be six or even seven miles an hour ; but at the point of collision, about opposite Botsford's elevator, it is said to be between four and five miles an hour. On the night of the collision, as I have said, there was no wind to affect the current and the current therefore may be assumed to have been normal. Captain Stevenson, the master of the Shenandoah, states that the current opposite Botsford's elevator would be between four and five miles an hour. Before entering the fog the master of the Carmona had heard fog signals down the river, but he states these would not indicate with certainty whether the vessel giving them were coming up or going down. The
VOL. VIII.] EXCHEQUER COURT REPORTS. . 29 men were at the wheel and the master, Captain 1902 Cameron, was on the bridge. After entering the fog THE the Carmona commenced to sound regular fog-signals (EBAY AN and just as Botsford's elevator loomed up, the Car- NAVIGATION mona being then perhaps seventy-five feet. from the ti°' shore, Captain Cameron and his mate saw a light HE SHIPs TSHENAN- ahead, two head lights and a green light, over his DOAH AND CRETE' port bow, nearly abeam ; this would indicate that the Shenandoah (whose lights they were) was, approaching Refrn. him nearly stem on. He immediately stopped his "14;:enk engine and reversed while his mate sounded a port whistle—one blast. The Shenandoah answered with two blasts. The Carmona immediately repeated the. single blast and a danger signal—three or four short blasts. The Shenandoah ported her wheel, and when the bows of the two boats were almost abreast of each other, blew a port signal. The Carmona by reversing her engine practically stopped her way and the two steamers passed within ten or fifteen feet of each other, the Carmona's engines still backing. The mate of the Carmona sung out, " Stop backing, or you will back into the steamer ; " and 'at the same moment Saunders, a sailor, called out, "There is a:tow-line." The master stopped the engine backing and took a turn or two ahead. The port quarter of the Carmona, however, grazed and touched the side of the Shanandoah but doing no special damage to either vessel. Just as the engine started ahead came the warning about the tow- line and the engine was instantly stopped, when sud- denly the Crete, which was being towed about four or five hundred feet behind the Shenandoah, loomed up dead ahead, showing both her port and starboard lights but with her stem pointing towards the American shore ; she was coming directly into the.Carmon~c; the latter's engines ; were immediately reversed again at full speed, but the vessels came together. The. Crete
30 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 struck the Carmona on the starboard bow, buckling it TEE to starboard. The Carmona struck the Crete on the GEORGIAN BAY bluff of her starboard bow. After passing the Shenan- NAVIGATION doali, the Carmona had apparently got foul of the tow- Co, v,pa lin s e s of i th n e l g atte r u ve n sse d l, i e t r her port THE SHIPS guards, -and she apparently follo w r ed along the line to SHRNAN- DOAH AND within 75 or 100 feet of the Crete's bow when the tow-CRETE. l i ne parted. Immediately after the contact with the 114̀ 118°1111 Crete, the Carmona's rudder became jammed and she Jo ̀ °A~ could not use her helm. At the instant of contact the Carmona's engine was still reversing, but she had apparently not yet got stern way. After the collision the engine was stopped, and the current then carried the Carmona down the stream and she drifted past the starboard side of the Crete and then across the tow-line between the Crete and the Grenada and past the port side of the Grenada till she brought up on a mud bank below the Grenada. The Crete, when the tow-line between herself and Shenandoah parted, promptly dropped her anchor, and the Grenada hung in the stream. The Carmona did not touch the Grenada in passing. It was speedily ascertained that the Carmona was not leaking badly, the damage done being well above the water-line. She signalled for a tug, and one came in a few moments and pulled her off the bank and towed her over to Sarnia. An examination of her condition was made at Sarnia and an hour or two later she proceeded down the river to Detroit, discharged her passengers and went upon the dry dock for repairs. The master of the Shenandoah states that he first came into the fog a little below the water works ; that he checked down his engine to a speed of between two and three miles an hour over the ground, and later checked the engine down again to a speed of perhaps not more than half or three quarters of a mile against
4`
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VOL. V'III.] EXCHEQUER COURT REPORTS. 31 the current. He had made up his mind, he says, to tie 1902 up at Botsford's elevator dock till the morning ; he had T not given out the order but had told his men to stand GEBAYIAN - by the lines. When he got abreast of the elevator, NAVIGATION however, he found another vessel lying there and he n°' decided to proceed further up the river and tie up at S H ENAN-S Grand Trunk docks. He thinks his vessels were about NOAH AND 150 feet out in the river, outside of the vessel tied up CRETE. at the elevator dock, in other words out in the stream Win. Judgment. about 190 to 200 feet from the face of the dock. He could make out the face of the dock and the elevator 150 feet away, but he could not make out his own tow 500 feet down the river behind him. He had blown fog-signals as he came up the river after encountering the fog. He had heard several fog-signals ahead of him up the river, and later, the sound of paddle-wheels, and by the sound this appeared to him to be a vessel several thousand feet, or say, about half a mile distant. Fie answered the fog-signal and also blew a danger signal, and a moment later, he says, and before the Carmona came in sight, he blew a starboard. signal. To this .the Carmona replied by a port signal ; he states he at once announced it by a port signal and a danger whistle ; and by the time he, gave the danger signal the Carmona suddenly appeared about 800 feet above him almost head-on and starboarding rapidly. He then quickly ported his whéel and cleared her: He is quite positive he heard no other signal from thé Carmona (save a fog signal which he heard before any passing signals had been given), except the one port signal and this was in reply to his first passing star- board signal. On the other hand the master of . the Carmona and several of his witnesses are equally posi- tive that the first passing signal given by either vessel was the Carmona's port signal, followed by the reply from the Shenandoah of a starboard signal. That then
32 EXCHEQUER COURT REPORTS. [VOL. VIIL 1902 the Carmona's . port signal was repeated and later T adopted by the Shenandoah, and a port signal given by GEORGIAN that vessel. sjut s a s the bows Were BAY pass ing each other. NAVIGATION Captain Cameron avers that he followed both his port q°' signals with danger whistles, and upon giving his own THE SHIPS first port whistle had stopped and reversed his engine. SHENAN- DOAH AND Each master, therefore, charges the other with crossing CRETE, signals. ReMssons for After carefully considering this conflict of testimony, Judgment. in which both masters were supported by several witnesses, I find as a fact that the Carmona blew the first port whistle and that it was answered by the Shenan-doah with a starboard signal ; that the Carmona instantly repeated the port signal, which was answered later by a port signal, thus indicating that the up-bound vessel would comply with the signal and pass to port. The Carmona stopped and reversed ; the Shenandoah kept on, porting her wheel half a point. Captain Stevenson says that the Carmona when she passed his stem was twenty or twenty-five feet to port of him (reversing her engines had stopped her way or given her sternway) and when she had gone about one hundred feet from his bow she backed into him, grazing his vessel. Then the Carmona stopped backing, and took a turn or two ahead, drifting past and clearing the Shenandoah. The collision with the Shen-andoah, however, is not the one especially complained of ; neither vessel was appreciably injured by the contact. The subsequent collision with the Crete caused the chief damage. The fact of fouling the line between. the Shenandoah and Crete was evidenced by marks along the braces under the guard of the Car-mina from the point of their commencement near, the bow aft as far as her paddle-boxes. After the slight contact with the Shenandoah the Carmona's engine had only taken a couple of turns ahead before the lights of
VOL. VIII.] EXCHEQUER COURT REPORTS.' 33 the Crete appeared. The engine, as I have said before, 1902 was instantly stopped, and reversed at full speed, but E H this manoeuvre.did not prevent the collision. Fouled B G AY M ' with the tow-line, carried down by a five mile cur- NAVIGATION rent, the Crete moving up stream, bow towards shore, a collision between the two vessels became • inevitable. THE SHIPS SHENAN- In going slightly ahead to avoid the Shenandoah she DOAH AND had got to perhaps within fifty or sixty feet of the CRETE. shore ; . ahead of her, lying at the dock, was a vessel frs occupying a portion of this fifty or sixty feet of space; judgmfnc. she had lost 'steerage way by backing and was vir- tually pocketed. In trying to keep out a little to avoid the vessel at the dock, she fouled the Crete's tow-line and as the Shenandoah continued to move up stream the Crete approached her at the speed the Shenandoah was making. In reference to the position of the Shenandoah just before the collision the defendant's witnesses say that their vessel was from 150 to 200 feet from the shore. This is disputed by those on the Carmona who say that the Shenandoah was very little, if any, more than 100 feet from the shore. It is fortunate under all the circumstances that the collision did not do more dam- age. It is equally fortunate that the injuries were all above the water-line. One of the 'witnesses on the, Carmona, . the second mate, states that as they were passing the Shenandoah he heard the latter signal to the engineer to go ahead at full speed. The master of the Shenandoah positively denies giving any such signal ; his engineer, however, was not called, and, no satisfactory explanation was made for his absence. It would not perhaps have been unreasonable to have given such a signal had its object been . to endeavour to pull his barges, out further into the stream before the Carmona reached them. The course of the Shenan- doah had been changed half a point according 'to her 3
34 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 master's statement, with the object of giving more THE sea room to the Carmona to pass him to port ; as far as GEORGIAN BAY the Shenandoah was concerned this change of course NAVIGATION had cleared the Carmona, except the slight contact due Co. to the sternway acquired by the Carmona from re- THE versing her engines. Although the Carmona's engine SHE SHIPS DOAH AND took a turn or two ahead she was moving with a five CRETE. mile current and the Crete was approaching her at ro~~̀ whatever speed the Shenandoah and her barges were Judgment. making up stream, and she struck the Crete with considerable force. The period of time between coming in contact with the Shenandoah and the collision with the Crete was so brief that the Carmona, without steerage way, was practically helpless to avoid the Crete, notwithstanding that she had reversed her engine the instant she discovered that vessel directly in her course. The Crete was uninjured by the collision ; with a bluff bow, and deeply laden, she withstood the shock and beyond the knocking off of a little paint she sustained no injury. The value of the tow-line broken exceeded many times the pecuniary injury occasioned to her hull. As soon as the line broke the Crete let go her anchor. Singularly enough, as before remarked, after drifting past the starboard side of the Crete, the Carmona drifted across the second tow-line, between the Crete and Grenada, without breaking it, and passed on the port side of the Grenada until she took the ground below both barges. It is said by several witnesses on the Carmona that at the time of the collision the Crete was apparently under a starboard helm and heading towards the American shore, while the Grenada appeared to be under a port wheel and pointing more directly out into the stream. This is positively denied by the master of the Crete and his mate, who were the only two of the crew of that vessel called as witnesses.
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VOL. VIII.] EXCHEQUER COURT REPORTS 35 The master was at the wheel at the stern of the vessel 1,902 when the collision occurred. He swears he paid no T$ attention to the starboard signal first given by the GEORGIAN BAY Shenandoah, butwaited for an answer from the approach- NAVIGATION ing vessel before acting; that he next heard an answer Co v. of a port whistle from the approaching vessel, and THE SHIPS HENAN- then a port signal from the Shenandoah. He then imme-. D S O AHAND diately ported his wheel about half a point. This CRETE. movement, according to the same witness, would $e or • throw the Crete's head out about twenty-five feet to judgment. starboard from the course he had been steering, yet the Carmona struck him on his starboard bow, and drifted by him bn his starboard side and a moment or two later passed his consort. 500 feet down stream on her port side. The way 'on the two barges could not have entirely ceased for a moment or two after the line between the Crete and the Shenandoah had parted ; the Carmona, her engines stopped, drifting in the cur-rent, would take about a minute to pass the Crete, 5280 x 5 - 440 feet per minute. 60 The actual course of the Carmona seems to point to the conclusion that the Grenada and the Crete could not have been in a direct line with each other or steering the same course ; the Grenada must have been further out in the stxeam than her sister barge. Had it been otherwise, the Carmona would doubtless halte also collided with the Grenada and passed her to starboard. This conflict of testimony illustrates how widely witnesses will differ in their account of the same . occurrence. The fact is, however, admitted that the Carmona passed one barge to starboard and the other barge to port. This, to my mind, strongly supports the ,testimony of the plaintiff's witnesses in their statement that one barge was heading towards the Ameri- ail
36 EXCHEQUER COURT REPORTS. [ VOL. VIII. 1902 can shore while the other was pointing out into the T stream. It is to be noted that the trial took place two GEORGIAN BAY and a half years after the collision. It is in evidence NAVIGATION that the crew . of the Carmona immediately on the Co. v. arrival of that vessel at Detroit were taken before a THE SHIPS notary and they made sworn statements as to the facts SHENAN- DOAH AND relating to the collision ; the plaintiff's witnesses had, CRETE. therefore, a means of refreshing their memories by $° f f o or r reference to their former statements. The crews of Judgment. the Shenandoah and Crete, on the other hand, not hearing of any action taken, had probably dismissed the matter from their minds, and at the trial, in 1902, were compelled to rely solely upon recollection for the incidents of what had become to them a remote occurrence. The recrudescence of the case, two and a half years later, was the last thing they could probably have anticipated after such a lapse of time. Other features in the evidence given for the defence at the trial calls for comment. The master of the Shenandoah, apparently in part explanation of his close proximity to the elevator dock on the night in question in the fog, swore that he had formed the intention to land at that dock and tie up till the fog lifted ; he and his mate both stated that orders had been given to the crew to stand by the lines so as to prepare for the landing. This important fact ought certainly to have been communicated to the defendant's solicitor and by • them to. have been incorporated in the prelimiary acts filed by the defendants ; but no statement of the intention to land is mentioned in the defendant's preliminary acts filed nor is it set out in their statement of defence. In answer to the question in the preliminary acts, " the course and speed of the ship when the other was first seen" the. defendants say " np the St. Clair Rapids, well over on the American side of the channel, going very slowly." Preliminary acts
VOL. VIII.] EXCHEQUER COURT REPORTS. are instituted for two .reasons : To get a statement of the facts from the parties of the circumstances facto, and to prevent the defendant shaping his case GEORQ to meet the case put forward by the plaintiff. practice it has been found very useful, and neither party is allowed to depart from the case he has set out THE in his preliminary acts (1.). If the truly making for a dock this would reasonably account for her proximity to the American shore, apart from any evidence of an alleged customary track. Another statement in the defendants' preliminary, acts was that the Shenandoah's wheel was put hard aport as soon as the Carmona appeared on the port bow. But the master, in the witness box, gives a very different account of what was done with the• wheel; he swore that after he, had answered the Car- mona's port signal by a port signal he put his wheel • to port half a point, and as soon as he had cleared the • Carmona he immediately steadied his wheel. The defendants' preliminary acts and statement of defence are, also silent as to any crossing signals given by either vessel save, it is stated in both, that the Shen-andoah had blown several sharp danger whistles. In the preliminary acts of the plaintiffs, in answer to the question : "The measures which were taken, and when, to avoid the collision?" the answer is : " Engines reversed and one blast sounded. answered with two blasts. The blast and an alarm whistle." The plaintiffs in both their preliminary acts and statement of claim charge that the collision was due to the negligent navigation of the Shenandoah and her tow the Crete ; and aver that everything was done on the part of the avoid the collision. The defendants, in their preliminary act assign, as constituting the negligence of the • (1) The Vortigern, Swab. 518. 37 '1902 recenti THE BA r Y A N In NAVIGATION O v. . sHIPs sHSNAx- Shenandoah was DOAH AND CRETE. °W Shenandoah's The Shenandoah Carmona blew one Carmona to
38 EXCHEQUER COURT REPORTS. [VOL. VIII. 19°2' Carmona causing the collision, the absence of lights on TEE the Carmona, that the Carmona was not under control, GEORGIAN BAY was on the wrong side of the channel, did not exercise NAVIGATION proper precautions in coming down the rapids in such v . a fog ; and in their statement of defence they charge THE SHIPS the absence of lights on the SEENAN- Carmona, or such inferior DOAH AND lights as to be invisible to those on the Shenandoah ; CRETE. that the Carmona was uncontrollable, and was not kept Ra f l o s r o n` on her course as required by law, and was negligent Judgment in attempting to run down the St. Clair Rapids in the heavy fog which prevailed at the time of the collision ; and aver proper action on the part of the defendants' vessel, and that the collision was not caused or contributed to by any default of the defendants. A s this collision took place in American waters, the rules to be observed by vessels using the American side of the river will be thoseprescribed by the American law for the navigation of inland waters. These rules were put in at the trial and spoken of as the " White Law." The Act of Congress is entitled "An Act to regulate navigation on the Great Lakes and their connecting and tributary waters" (1). The first of these rules, important in the light of the issues raised in the present case, is rule 24 : " That in all narrow channels where there is a current, and in the rivers St. Mary, St. Clair, Detroit, Niagara and St. Lawrence, when two steamers, are meeting the descending steamer shall have the right of way and shall, before the vessels shall have arrived within the distance of one half mile of each other, give the signal necessary to indicate which side she elects to take." In the present case the Carmona, therefore, had the right of way under the rule ; and I find, as a fact, that as soon as she sighted the Shanandoah she sounded a port signal to indicate the side she elected to take. It is true that it is contended that this signal was not heard by the (1) Statutes at Large Vol. 28 cap. 64. p. .646.
VOL. VIII.] EXCHEQUER COURT REPORTS. 39 Shanandoah. In a dispute between vessels as to what 1902 signals havé been given by either vessel the evidence of TG witnesses upon the vessel giving the signal, if no cir- GEORG BA I Y A N cum stances are shown which would go to impeach their NAVIGATION credit or truthfulness, is to be preferred to the evidence CO • v. of witnesses equally credible upon the other vessel, who THE ~ SHIPS also testified that the alleged signal was not given .by DO H: AND the first vessel (1). It may be the fact that such signal CRETE. from the Carmona was not heard on the Shenandoah, but aero:" the rule provides for giving the signal, and the vessel Judgment which gives the signal cannot be held responsible be- cause those on the approaching vessel did not hear it. The Campania (2). If the fact of giving the signal is satisfactorily proved the rule to that extent has been obeyed. The Carmona's whistle was in working order, for the fog whistles sounded by it further up the river had been heard by those on the Shenandoah. If the Shenandoah did hear the first port whistle then the Shenandoah was in serious fault in not crossing signals by sounding a starboard signal after receiving a port signal (8): If the Shenandoah did not hear the • port signal of the Carmona, hut heard the approach- ing paddle-wheels and heard no passing signal, her master was justified in sounding a starboard signal if he desired the approaching vessel to pass him to star- board ; and when he heard the port signal sounded after he had given the starboard signal his following port signal would be, as far as he was concerned, a cross signal. If he had thought it was not safe to accept the port signal he did hear he should have sounded a danger whistle and stopped or reversed his engine, and not replied to it by a port signal. He • said he did not sound a danger signal, but admits he first sounded a port signal in reply. He thus ind-i • (I) The Milwaukee, Brown's Ad (2) [1901] P. D. 289. Cas. 313. (3) Rule 26.
40 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 Gated to the Carmona that he would give her the port THa side, and in doing so he undertook the responsibility GEORGIAN of keeping out of her way. If the port signal was BAY NAVIGATION given by the Shenandoah, as stated by her master, as co. soon as he sighted the Carmona, under Rule 20, the THE Slurs Carmona was bound to keep her course. The Shenan- SHENAN- DOAH AND doah by adopting the passing signal of the Carmona CRETE. (3) was bound on approaching the Carmona, if there Reasons for was any apparent danger, to slacken speed or stop Ju`°n`' and reverse ; but she did none of these things.. The èvidence of the different witnesses establishes the fact that the Shenandoah and her barges were proceeding at a very moderate rate of speed over the ground, possibly less than a mile an hour—the master puts it at not more than half a mile an hour—against the current. One would think, working against a five mile current, there would be no difficulty or danger in stopping his engine, even if there was danger from his tow-line by reversing. By his own admission the master of the Shenandoah must be held to have been in fault ; he got, according to his testimony, a cross signal from the Carmona, and he then sounded a danger whistle ; but he did more, he crossed his own first signal by a reply which invited the Carmona to keep on. her course to starboard and so pass him port to port. Rule 26 of the American rules regulates his procedure in such a contingency and directs him to reduce his speed to bare steerage way, and, if necessary, to stop and reverse, not or reverse as in Rule 21. Now, applying these same rules to the Carmona, what appears to have been her conduct ? She was coming down the river having the right of way ; she gave, as I have found, the first passing signal (a port signal) and her signal was crossed by a starboard signal of the Shenandoah. The Carmona immediately stopped her (3) Rule 21.
VOL. VIII.] EXCHEQUER COURT REPORTS. 41 engines and reversed and .sounded a' danger whistle 1902 and then repeated her port signal ; this was answered T an instant later by the Shenandoah with a ratifying GEOORŸIAN BA port signal, and the Carmona kept on her course to NAVIaATiox starboard. At question 76 of his examination in chief v°' Captain Stevenson puts the position this way : • THE SHIPS SHENAN- " 76. Q. What did you do after you heard one blast DOAH AND in answer to your two ?.---A. Shortly after he blew the CRETE. one, he came in sight ; and I seen how he was going, AM!'" and I answered his one whistle, and ported my judgment. wheel. " 77. Q. You answered the one with one whistle ?— A. Yes. " 78. Q. That was the first you sawn of him, just about the time he blew his 'one blast ?—A. Shortly after, yes. " 79. Q. Then what did you do ?—A. I ported my wheel. " 80. Q. What did you do with your whistle if anything ?—A. 'I blew an . alarm whistle, a danger signal. " 88. Q. What was the next thing that took place ? —A.. The steamer appeared in sight heading about on to us, and rapidly swinging to. starboard. I ported quick, and got clear of him." v . • It was equally the duty of the Shenandoah in taking measures to avoid the Carmona to consider the safety of her tow as well as her own safety. It has been held that the taking of a step which would clear the towing ship, if she were unencumbered, might be held to be a fault contributing to the collision if in the taking of such a step, though clearing herself, she should bring about a collision with her • tow. The Arthur Gordon and The Independence (1). The Kingston by the Sea (2). (1) Lush. 270. . (2) 3 W. Rob. 152.
42 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 The giving df the starboard signal followed by a THE port signal was confusing to her tow and if the giving GEORGIAN BAY of such a port signal contributed in any way to bring-NAVIGATION ing about the collision between the Crete and the Co. Carmona, the Shenandoah is responsible under the Ts$ slim's rules. Again, if the Carmona by keeping her course, SHENAN- DOAH AND was likely to collide with either of the barges in tow, CRETE. it appears to me that the observance of Rule 21. de-r' manded that the Shenandoah should have stopped her Jatlgmenw engine even if she could not safely have reversed. She did not stop, but kept on at the rate of speed over the ground she had been pursuing, and therefore increased to that extent the weight of force of the impact between the Crete and the Carmona which followed. The object of Rule 21 of the American rules (Rule 23 English) is to obviate as well as minimize the results of a collision (1). In the same case it is laid down that the burden of sheaving why she did not comply with the rule, and stop and reverse, is thrown upon the steam-ship which was by the rules bound to keep out of the way of the other. It is important now to consider for a moment what effect upon the movement of the tow barges was produced by the Shenandoah sounding the, starboard signal followed immediately by a cross port signal. The position of the Crete and Grenada, at the time of the collision and immediately thereafter, throws some light upon the matter. I may say I discredit the statement of the master of the Crete that he paid no attention to the first starboard signal given by the Shenan-doah. The latter position of the two barges, as indicated by the Carmona's course in passing them, convinces me that the Crete, immediately before the collision, had been carrying a starboard helm, while (1) Stoomvart Maatsehappy tal Nay. Co., 5 App. Cas. 876, Nederland v. Peninsular & Orien- 902, 903, 904.
VOL. VIII.] EXCHEQUER COURT REPORTS. 43 the Grenada below her had apparently followed the 1902 last signal and had ported' its helm: and was, therefore, further out in the stream. The force of the current GEORG BA IA Y N against the bows of the barges was sufficient to cause N AVIGATION them to obey their rudders. I am satisfied that the Co. Crete obeyed the Shenandoah's first starboard signal THE HI a and the Grenada the later port signal. DOAH AND If the Carmona, in descending the river, made her CRETE. election of the side she would take, by giving the first El's passing signal, the fact that the Shenandoah did not ̀~~• hear it cannot put the Carmona in fault. If the Shenandoah in good faith thought she herself had given the first passing signal, then she could only justify crossing her own signal as an act in extremis and rather as a warning to her tow that .as necessary to protect herself, for by slightly porting her wheel without more she had been able to clear the Carmona. According to the rule the Shenandoah's duty I repeat was to keep clear of the Carmona, as the latter had signalled her choice to keep the port side. Judged by these rules the Shenandoah was' alone in fault and solely responsible for the collision. To combat this view and displace the force of the navigation rules laid down by the American statute, the defendants at the trial set up the defence that in navigating the St. Clair Rapids a local custom prevails which supersedes the rule, and a number of witnesses were called to prove the alleged custom. For many years past, they deposed, it has been the almost invariable practice or custom for vessels coming up the St. Clair Rapids, especially. steamers having tows, to keep close to the American bank from a point a little below Botsford's elevator to the mouth of the river, or at least to a point above the Grand Trunk freight sheds and dock, while the descending vessels came down out in the stream 'passing the up-bound vessels starboard to starboard.
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44 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 It was urged that the custom was well known to all T navigators in these waters, and therefore, it was urged GEORGIAN BAY that the Carmona was in fault in coming down the NAVIGATION river on the night in question so close to the shore, o. Cv. especially in a fog ; for she was thus placing herself in THE SHIPS the well-known customary track of up-bound vessels ; SHENAN- DOAH AND and that as the Carmona on entering the river had CRETE. heard fog-signals below, she was guilty of culpable Reasons negligence in thus choosing her course close to the judgment. American bank, and the collision which followed, under all the circumstances, was the result of her own negligence in contravening this local custom. This particular defence is not hinted at in the statement of defence, though in the preliminary acts filed by the defendants ; amongst the negligent acts charged against the Carmona, it is said that she was on the wrong side of the channel. Seven witnesses, chiefly masters of vessels who had navigated the St. Clair River and the Upper Lakes for many years, were called to give evidence of the existence of the alleged Custom ; two or three of them were very positive that such a practice had to their personal knowledge prevailed in navigating the St. Clair Rapids . for at least thirty or forty years, ascending vessels hugged the shore and descending vessels kept further out in the stream, passing up-bound vessels starboard to starboard. One of the witnesses, however, Captain Basset, a local man and a tug captain residing at Port Huron, with twenty-eight years experience, put it thus : " As a general rule a steamboat going up with a tow always makes the land very close on the Ameri-" can side, and if she meets a down bound boat she " always give her the starboard side ; that is the gene-' " ral rule." He gives the current as the reason for the custom—stating that if a down bound boat makes the shore closely it sets him 'in to the shore and the
VOL. VIII,] EXCHEQUER COURT REPORTS. 45 up-bound boat with a tow has a better chance for 1902 keeping away. The current is not as strong in close to. E H the shore as it is in the centre ; and he declares this ORGYIAN GEBA practice or custom is, g enerally, known to navigators. NAVIGATION In cross-examination, however, he said that in a fog a ÿ°' down-bound vessel generally takes the course next .to THE SHIPS &MAN- the American shore through the rapids; that is because DOAH AND . they can pick up points, docks and elevators, along CRETE, that shore and know where they are ; and down BI vessels proposing to turn at Butler Street for Sarnia " °O '". also keep close to the American shore. He adds that at the date of the collision there were no land marks which would serve as guides on the Canadian side of the river at. this point, opposite the rapids. This witness thus gives conflicting answers, namely : that under conditions of fog, vessels, both in going up and coming down, keep close to the American shore, especially down vessels intending to turn at Butler Street for Sarnia. In clear weather the alleged custom prevailed, and the descending vessel should keep to starboard of up-bound vessels. Several other masters who had sailed in these waters for many years spoke of the custom much as contended for by the defendants, and spoke of its having been in existence for all the years they had sailed in the river. Captain David-son, the owner of the Shenandoah, admitted that it was impossible for a down bound vessel to come down through the rapids in a fog and steer by the compass ; if it were attempted, the cross currents would place the vessels in a very short time either ashore or on the middle ground, .or into some vessel; and his view of the course to be taken by a down-bound boat in case of fog was either to not enter the, river at all, or if they did so and encountered fog to. tie up at the,first . dock, or to drop anchor in the stream and not attempt to come down. Up-bound vessels by hugging the
46 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 shore might probably safely ascend. He added if a T fog struck his vessel coming up the river before getting GEORGIAN into the rapids he would tie up at Sarnia, or some BAY NAVIGATION Other point, and wait for the fog to disperse rather Co. than attempt to go up the river. THE SHIPS Captain Cameron of the Carmona and his first and SHENAN- DOAH AND second mate, the former holding a master's certificate, CRETE. on the other hand declare that they never knew or 'ten. heard of this alleged custom of the river and they ment. Jud g had been navigating it for years. Captain Bassett rather limited the custom to steamers having tows and did not make out clearly that the practice prevailed between steamers unencumbered ; but several other of the masters examined declared that it applied to all vessels ascending and descending the river at this point. In point of numbers the witnesses l'or the defendants exceeded the plaintiffs' witnesses on this point, and their testimony supported the contention of the defendants that at the St. Clair Rapids a practice or custom appeared to exist for up-bound vessels to keep to the west side of the river and close to the bank, and for down-bound steamers to keep out in the stream and pass up-bound vessels to starboard. There is no corresponding statutory rule in the American regulations to Rule 25 of the English Navigation Rules. The English rule reads as follows :— " 25. In narrow channels every steam-vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of such vessel." For the period between the years 1862 and 1880, Rule 25 did not exist in the English rules of Navigation, and hence we have some English cases upon the question of the practice or course of conduct to be observed by vessels traversing rivers—in the absence
VOL. VIII.] EXCHEQUER COURT REPORTS. 47 of a statutory regulation on the subject, regulated 1902 since 1880 by Rule 25. The first of these oases, T the Velocity (1), held that a down vessel, pursuing O B RAGYIAN a customary track in the river in the absence of NAVI(IATION Co. express regulations, was not in fault in keeping on her course, and where the up-vessel departed from a course sxrotus which would have carried her safely by, and a collision DOAH AND ensued the latter vessel was held solely in fault. The CRETE. ground for so holding the Velocity not in fault being Reasons Judgment. that she was pursuing the customary track of vessels coming down the river, and the approaching vessel ought to be held . to be aware of the custom and should not have assumed, because he, saw the port light of the Velocity for a moment due to a bend in the river, that that vessel intended to cross the river and thus depart from the customary track along the north shore. The court did not hold that a custom binding on all vessels had been actually proved, but held that where the collision was due to the up-vessel crossing into the customary track of the down-vessel, while if she had kept up the river on the course she was following when she sighted the down-vessel she would have passed clear, the ascending vessel was alone in fault for the collision. The court also stated with emphasis, " Even supposing the Carbon (the up-vessel) to have excusably mistaken the course (i.e. the inten- tion to cross the river) of the Velocity, how can she recover unless' she shew that the Velocity was in fault." This case was followed and commented- on in the case of the Esk and the Niord (2) in the same volume. The repeal of the section of The Merchant Shipping Act corresponding to the present English Rule 25 allowed (the court-said in both cases),," Vessels navi- gating the river were now at liberty to go on whichever side of it they pleased, taking care of course to observe (1) L. R. 3 P. C. 44. (2) L. R. 3 P.C. 436.
48 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 the regulations for preventing collisions." The general T principles laid down in the Velocity were approved and GEORGIAN followed in the Ranger and the Cologne (1). BAY NAVIGATION I think, therefore, that the Shenandoah was not in Co, v. fault (assumin b g the alleg ed custom in the St. Clair THE SHIPS River at this point to have been satisfactorily estab- SHENAN- DOAH AND lished) in taking her course close to the American bank, CRETE. for she was in the customary track of up-bound yes-son. for sels. I do not, however, for a moment hold that she judgment. had the exclusive right to that side of the river ; but she was not guilty of negligence in being where she was on the night in question. The Carmona in coming down in a fog on the west side of the river must be taken to have been aware (if such a custom existed, that it was the customary track of up-bound vessels, and she was, therefore, bound to exercise unusual care and precaution in following this course, and if a collision took place she alone would be held in fault if the other vessel did all in her power to avoid the collision which ensued. As between the two vessels, if the custom prevail, and be held to supersede the statutory rule, the Car-mona was on the wrong side and the Shenandoah was on the right side ; but the important question remains to be determined : Did the Shenandoah do. all the law required to keel) clear and avoid a collision ? Rule 24 is the Statutory rule that differs from the alleged custom. Rule 24 enacts that the descending vessel shall have the right of way, but must indicate by signal the side she elects to take, and this choice must be made when the vessels are within half a mile of each other. This rule, however, could not be complied with where the vessels, by reason of fog, failed to see each other until they arrived within three or four hundred feet of each other, therefore the giving of the port (1) L. R. 4 P.C. 519.
VOL. V III.] EXCHEQUER COURT REPORTS. 49. signal by the Carmona, when. within• three or four 1902 hundred.feet from the Shenandoah, could hardly be con- THE sidered . to have been a signal under Rule 24. 'There C BRAyIAN was imminent danger of collision the moment the two N AVIGATION vo' vessels sighted each other: They, were approaching each other end on or. nearly end on ; :the evidence of T HE SHIrs SHENAN- both masters, in my judgment, establishes this fact: DOAH AND. The Carmona was slightly closer to the American shore ÇRETE. -than the Shenandoah. So far as I. can see the Carmona i it" fo " r " when their position was apparent, .did everything pos- judgmene. sible to avoid the collision. A., five mile. current was driving her forward, and a vessel was approaching her . at an unknown rate of speed. It would have been the worst of judgment to have attempted. to cross the latter's bows . and go to starboard. Rule 17 applied, and the Carmona did. what the rule commanded. She reversed at full speed. and gave a port signal and a. danger signal, and having the right of way kept on her course (1). What did the Shenandoah do to• avoid a..collision ? Her master alleges that ;he did not hear the first port signal claimed to have been given, but he heard a paddle wheel steamer approaching him ; he sounded .a starboard signal:an.d a danger whistle; in'answer he got a port signal'.aiid almost immediately he sighted . the Carmona- coming. towards 1 him .and on or. nearly: end on.. -He at onde sounded a port whistle and ported his wheel. , He did not slop or revere. Did he hear~. the first pert. signal ? I have :no : doubt: whatever that it was given. 1. am unable. to find .as 'a fact that: he actually heard it. Brown, one of the owners of the.'_Carm_oita,, says- that the'.She ndandoah's .starboard: signal in reply to the .first port .signal. was almost a. con tinuation'of. the whistling • of the' :Carmona;:l it: fellowe& :so quickly:. Captain Cameron, 'the. ma$ter_..of the: Ccirmona , ïn -answer to • 0) Rule '20. • 4
50 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 question 103, " What interval was there between the T E one blast of the . Carmona and the two by the Shenan- GEORGIAN doah ? " answered : " There was very little I think BAY NAVIGATION when he-- " the Carmona's mate—" stopped his first v . blast, the first one, the other fellow was blowing." THE SHIPS From this it would appear that it is quite possible that SHENAN- DOAH AND the signals were practically simultaneous, and that CRETE, Captain Stevenson may not have picked out the port Ker r ' signal, as he has sworn. Getting no passing signal Jnasmont" from the approaching vessel the Shenandoah's master was justified in giving a passing signal. His starboard signal indicated his intention to pass to starboard. , A moment later the situation became critical, for he suddenly saw the Carmona bearing down upon him swinging rapidly to starboard so as to take his port side ; he decided to go to port, and put his wheel over half a point. Was this action calculated to take his tow out of danger ? Had he put his wheel hard aport and, seeing his own vessel Would clear, had gone ahead at full speed, he might have materially changed the course of his tow and possibly have prevented the collision with the Crete ; or having ported and cleared his own steamer he could have stopped his engine and so diminished the shock of a collision with the Crete if one was inevitable. The giving of the conflicting signals of starboard and port confused his tow and as I have already found caused one to carry a starboard helm and the other a port helm. He ported only half a point for a moment then steadied his helm. Having cleared the Carmona with the Shenandoah he kept on his way up the river. I find that the Shenandoah was in fault in not having adopted any effective measures to avoid a collision. Had the Shenandoah committed no fault the Carmona would' have been without recourse for the damage she sustained. The speed of the Carmona for some time
VOL. VIII.1 EXCHEQUER COURT REPORTS. ~1 before the collision of about two miles an hour faster 1902 than the current,. I find was moderate—barely enough T to give her proper steerage way. As soon as she GEOBAY GIAN • B sighted the Shenandoah at a distance of three or four NAVIGATION hundred feet, she at once stopped her engine and ÿ°' reversed at full speed. She gave the correct signals Ts E S HIPS followed by danger signals. Her way was stopped, DOAH AND and she had even acquired steerage way to such an CRETE. extent that she touched with the Shenandoah. The r turn or two ahead her engine subsequently made, 41141611 ' when her master saw she was backing into the Shen-andoah, was necessary to avoid injury to that vessel and his own. The Carmona reversed again at full speed when she discovered the Crete, and had that vessel not been out of her course and headed towards the American bank, the collision would probably not have occurred with the Crete. Unless the single circumstance of the Carmona coming down the course on the west bank, close to the shore, assuming it to be the customary track of up-bound vessels, amounts to negligence, and that such negligence contributed to the collision, I do not see wherein she was to blame. The St. Clair River is an international highway, and therefore a custom which varies or conflicts with the regular rules of navigation should be strictly proved by the party setting it up. The custom should be universally known that any departure from it would be considered as unusual and extraordinary (1). I have already adverted briefly to the evidence offered in support of the alleged custom. More witnesses affirm 'the custom than negative it ; but is the evidence so overwhelming as to justify the court in holding. that it supersedes statutory Rule 24, which gives the descending vessel the right of way and choice of course ? As put by the learned iud 'e in the Milwau-(1) The Vianna Swab. 405: 4%
52 EXCHEQUER COURT REPORTS. [VOL. VIII. 1902 kee (1). "There is no rule that vessels navigating T rivers must in all cases when meeting keep to the GEORGIAN right of the centre of the navigable channel. Vessels NAVIGATION navigating rivers in this country, like vehicles on the Co. • „° highway, may use any part of the channel they see THE SHIPS SaENAN- fit, observing in all cases when meeting and passing DOAH AND other vessels, the ordinary rule of navigation." - Again, CRETE. in reference to a local custom, it is said in the Newvort Reasons o News (2) : "There should be no doubt of its actual Judgment. ex i stence known generally to persons engaged in the business to be affected and the proof should be clear and conclusive." I think that upon a river like the St. Clair traversed as it is annually by thousands of vessels, and used by two nations, a custom which in effect superseded a statutory rule ought to require the most conclusive and cogent proof ; and as it is sought to make it binding upon foreign as well as domestic vessels, the proof should include some convincing evidence that a knowledge of the alleged custom existed amongst. mariners generally, and extended to mariners sailing on vessels carrying the foreign flag and habitually. traversing this busy river. After. the most careful consideration of the testimony, I have arrived at the conclusion that the evidence offered to support the existence of the alleged custom falls short of satisfying the conclusive proof demanded by the dicta expressed in both American and English cases (3). I am of opinion upon the evidence, and after a careful consideration of the American Rules of navigation in force in. the St. Clair River and the American and '(t) Brown's Ad. 313. Topaze (2 Mar. Law. Ca. O. S 38.). (2) 105 Federal, 3S9. The Duke of Sussex (1 Wm.. Rob. (3) The. Unity (Swab. 101). 270). The Pavonia (26 Fed. 106). The Hand of Providence (Swab. The fames Bowen (52 Fed. 510). 107): The Velocity (IrR. $ P.C: The Newport News (105 Fed. 389). 44). The Promise, and H. M S. The Vanderbilt (6 Wall. 225).
VOL. VIII.' EXbift4(TEA WM-if REPORTS English cases, to which I have been referred, that the 1902 Shenandoah was solely in fault for the collision set out THE in the pleadings, which occurred between the Carmona GEORG-IAN BAY and herself, and also with the Crete her tow, on:the NAVIGATION morning of the 25th June, 1899 , • Co. As to the damages, I find that: the Carmona , is ,entitled THE SHIPS, StIENAN- ici recover for. the Cost' of the repairs made 'upon her- at DOA H AND Detroit amounting $1,0,54. These I fix at $1,054 CRETE. She is also entitled to recover for the cost o ) fmain- taming her crew, for thé tithe- she was delayed at judg:ent. Detroit while -the rupairs .were-. being .executed,,which I fix at $100 per diem for eight days ; expenses of, sending passengerS to Cleveland:, $50, and interest at 5 per cent. from 25th June, 1899, to 31st May, 1902. The plaintiffs' evidence as to. loss of 'profits is soun- satisfactory that I an allow 'nothing in respect alleged loss of profits. I make the •same remark and . finding as to 'the claim 'for advertising. The' a ' mOunt of these items, with 'interest, makes the total damages fôr- which the plaintiffs .are'entitled to judgment, the sum of $2,183.25• and full costs of suit: •" • • I -find, therefo e r. ; fthe :collision in question in this .' case wa& oCCasioned by the fault or default of the master and crew-of the stearn-ship Sfhenandoith; and find that the plaintiffs .are 'entitle&to damageS'in'con ,' sequence thereof. And further 7 find against -the' d'efendants'counterclaim, and: order that the :same be dismissed with 'Costs ; `and I direct that the said shipf ,- . the Shen,andoah, the defendAttS and. theitbail be con: de- mned in2the sum of . $2,18.3.25- for damages' and • the plaintiffs'. 'costs.' 'Judgment according*' 'Solicitor for 'plaintiff: T. W H4nna. • . 'S O j iicitor fOr'detendant : Bou gh ,r • .• .0; •,) ..!
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.