118 EXCHEQUER COURT REPORTS. [VOL. XV. 1f114 TORONTO ADMIRALTY DISTRICT. Ai.ril 2. C. H. STARKE DREDGE & DOCK COMPANY PLAINTIFFS; AGAINST THE SHIP WILLIAM S. MACK Shipping-Collision—Rules of the Road--Failure to observe—Negligence. In case of a collision between vessels, when damage has accrued, the responsibility lies upon the ship guilty of negligent navigation in failing to observe the rules which should have governed her course and speed. T HIS estas an action for damages for collision, and was tried at Windsor, on March 23rd and 24th, 1914, before the Honourable Mr. Justice Hodgins, Deputy Local Judge of the Toronto Admiralty District, when judgment was reserved, counsel to put in written argument. The facts of the case are fully set out in the reasons for judgment. F.A. Hough, for plaintiff. J. H. Rood, for defendant. HODGINS, D. Lo. J.,.now (April 2nd, 1914) delivered judgment. The west half of the Ballard Reef Channel, which stretches north-westerly from the north end of the Limekiln Channel, in the River Detroit, was closed to navigation from 23rd of August, 1913, until some time after the accident in question here. This left the east half, three hundred feet in width and twenty feet deep, open; and the black gas buoy No. 71 was shifted to the eastward at the southern end
VOL. XV.] EXCHEQUER COURT REPORTS. 119 of the channel so as to ,prevent vessels using the west half, which the plaintiff company was at work deepen- C. H. STARKE DREDGE, AND ing. This end was also marked by a light. ship, and DOCK Co. there is a distinct bend in leaving the Limekiln Channel THE SHIP . WILLIAM for the other, which latter channel is only used for up- S. MACK• bound craft. Reasons for Judgment. There was in use, belonging to the plaintiffs, a tug, — drill, dredge and scow, and on the 11th of September ; 1913, the drill was at work and stationary, the dredge lying to the south of it, and the tug Milwaukee was tied up at Texas Dock beyond and across the east half of the channel, on which dock is Duff and Gatfield's reporting station mentioned in the evidence. The work was in charge of engineers employed by the :United States Government; and one of them, Wright, • states that there were three spar buoys marking the dividing line between the east and west halves of the channel, extending over one mile north of the lightship, the most southerly being 1200 feet north of the light- ship, showing a white light at night. A steamer, the Byers upbound, grounded on the débris caused by the operations just on the dividing line between thé east and the west halves, 500 , feet north of this spar buoy, or 1700 feet north of the light-ship. • This occurred on the night 6f the 11th of September, 1913. The Byers, owing to the force of the current, began to swing, pivoting upon the débris, the point of contact being just abaft her smoke-stack. This allowed the forward two-thirds of her length to swing to the westward. The drill found herself in danger and got up lier anchors, or spuds, cut her kedge, and signalled the tug Milwaukee to come to her assistance. Both the swing of the Byers and the current drove the drill down stream, and the two vessels were practically • in contact until the Byers stuck in the position shown
120 EXCHEQUER COURT REPORTS. [VOL. XV. 1914 on exhibit 2. The tug had come across, took the drill DRE s D . G S E T A A ND R s in tow and headed up stream to pull her around the Docx Co. v. stern of the Byers, which was sixty feet over into the smP east half of the channel. The defendant ship, the S. MACK. Mack, just then hove in sight, coming up out of the !Lam = r Limekiln Channel, 1700 feet to the south. The action arises out of a collision between the Mack and the drill which occurred shortly after, and the contest centres round the exact courses held by the tug and drill and the Mack, and their actions during the intervening time. The night was clear and there was moonlight. Captain McCauley of the tug, O'Neill foreman of the- drill, and Captain Ferguson of the Mack all seem to have sighted each other about the same time, i.e., when the Mack was south of the lightship at the south end of the Ballard Reef Channel In this agrees the-United States Government Inspector, Colton. The tug went south before turning to get hold of the drill and this probably accounts for Captain Ferguson. saying he saw both green and red lights as he looked north. In consequence the question as to whether. the spar buoy was lighted on that night is unimportant, though the Captain of the Byers gives it as a reason. why he was so close to the west side of the east half of the channel. • The natural thing for the tug to do is what its captain says he did, i.e., to go upstream, past the stern. of the Byers so as to get the drill back to where she-was. The captain of the Mack admits that when on. the last reach of the Limekiln Channel he thought. there was trouble and checked to slow, i.e., three-miles an hour. He then heard four whistles, which he. says he did not understand. This was either the signal blown by the drill and dredge or from the tug before she
VOL. XV.] EXCHEQUER COURT REPORTS. 121 started with the drill in tow. He, however, blew a 1914 danger signal • when he had got 500 or 600 feet above the c. $. sTA Bgi DE 3HD(3 ~ AND turn because; â's he says; he saw the tug starting out DO o C c !K Co. : into the channel. He knew the west half was closed, TŸ and, therefore, that he had to Navigate in a 300 foot 8 . MACK. channel. He also admits that the Mack handles well, aûa mebt and he and his mate say they could hold her against the current for an indefinite time, which, as explained in the .evidence ; means that the Mack could have been held at the point he had then reached ; practically motionless, by keeping the engines going against the current. He then heard four blasts from the tug, says he. did not understand them, but he stopped and went full speed astern. As the accident happened 1700 'feet above the. entrance to the Ballard Reef Channel it is hard to reconcile his testimony with the facts. The Mack, he says, would stop in that current when going full speed astern in her length, 380 feet, so that; Adding that to the 500 or 600 feet would still leave the Mack about 700 feet south of the point of collision. Evidently~ from the fact that after her first four whistles, the Mack, gave a passing signal, he must have proceeded, before stopping; much farther north; and indeed Captain Ferguson admits that he was 50 feet out from. the Texas Dock and 200 feet south of it When he struck the drill, and on cross-examination says he stopped his engines a second time when he thought hé would strike: the dock. He claims 'that he had the right of way a's• he had the tug on his port bow and that his passing signal was not answered: The- captain and mate of the tug say it was. At one time Captain Fergûson. . states that he was 200 feet south of the dock and. practically standing still when the ' tug was driftüig down on him At right angles and crossing the channel. •
122 EXCHEQUER COURT REPORTS. [VOL. XV. 1914 I am satisfied that the tug when engaged in this c. H. sT'ARKE difficult manoeuvre, with a heavy drill in tow, would DREDGE AND DOCK co. not, in the face of an upbound vessel, attempt to cross V. T AE SHIP the river exposed to the* current and, therefore, rieces- W ILLIAM S. MACK. warily drift down upon the Mack. I accept the Reasons for Judgment. account given bythose on board of her that having pulled the drill round they endeavored to hold her and the tug steady till the Mack passed. They succeeded in doing so, except that the drill swung to and fro in the current. If the drill was not swinging she would have been hit in the stern. The tug, after the passing signal, blew a danger signal as the Mack was not far enough to the east, to which the Mack responded, and the tug then blew again. All of the plaintiff's witnesses say that the Mack showed no appearance of stopping or checking, during the time they saw her coming up. The account given by those on the Mack as to their position and that of the tug and drill at the time of the collision seems to be somewhat incredible. The captain says the Mack was 50 feet out from the dock and that the tug had not crossed his bow at all. His mate puts the Mack 20 feet or less away from the dock. Kelly, in charge of the signal station on the dock, gives the east side of the channel as 50 to 75 feet out from the dock which would leave the Mack out of and to the east of the channel. The Mack struck the drill 19 feet aft of her forward end. The tow line between the tug and the drill was about 50 feet long, so that the tug must have been close to the Canadian shore or the deck if she were towing straight across. If the Mack was fifty feet out from the dock the drill must have been at least as close and I cannot see how she could have got in that position in view of the fact that she was being towed, unless the tug had gone across the bow of the Mack and turned
VOL. XV.] EXCHEQUER COURT REPORTS. 123 north close to the dock, but Captain Ferguson. is. clear 1914 that the tug did not cross his bow. C. H. STARBE DREDGE AND • It is possible that the endeavors of the tug to pull n°v Co. the drill around may have thrown both further TgE sIfP WIL LIAM east in the .channel than is admitted. But this only S. MACK. .R accentuates the necessity for extreme caution on the âgmsentr part of the Mack. The evidence of the engineer of the Mack is that he checked speed at 6.45 , p.m. and at 7.01 p.m. went full speed astern for about one and a half minutes, and then full speed ahead at 7.05 p.m. This gives seven minutes under check, in which the Mack would have. travelled, at three miles an hour, which is the 'speed her captain gives, about 1700 feet. This indicates that the Mack was not checked in reasonable time before the collision. Assuming in her favour that she had checked while still in the Limekiln Channel, and had gone full speed astern when 500 or 600 feet north of the lightship, and that the Mack was 200 feet south of.the dock when the collision took place, and then went full speed ahead for half a .minute to give her a kick to the west and then reverse again, it is . difficult to see how she could have traversed the intervening distance if the engineer's time is correct. Upon the whole, and after carefully considering the evidence, much of which I ' have not cited, and the written arguments put in after the trial, I come to the conclusion that the Mack was wholly to blame, was negligent in navigation and failed to observe the rules which shôuld have governèd her course and speed under the circumstances. Judgment will go condemning the Mack in the . damages fixed by the Deputy Registrar at Windsor, to whom the. assessment ' of damages is referred, ' with costs. . Judgment accordingly: .
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.