VOL. XIII.] EXCHEQUER COURT REPORTS. 389 BRITISH COLUMBIA ADMIRALTY DISTRICT. CANADIAN PACIFIC RAILWAY} 1910 COMPANY P LAINTIFFS;. ~ ~ 1.4 AGAINST THE TUG BERMUDA Shipping—Collision--Tug and Scow—Narrow Channel—Departure from Rules—Justification. Held, that while a channel, admittedly difficult of navigation under certain conditions, might properly be used by a ship, she is under an obligation to take all precautions to avoid collision with another ship. 2. Where prudent seamanship precludes a tug, in charge of a laden scow, from following certain of the regulations, she will be exonerated from blame in departing therefrom. A CTION for damages caused by collision. The facts appear in the reasons for judgment. The trial took place in Victoria, B.C. on the 8th and 9th December, 1909, before the .Local Judge for the British Columbia Admiralty District ; Captain J. F. Parry, R.N. and Captain P. C. Musgrave sitting as Nautical Assessors. E. P. Davis, K.C. and J. E. McMullen for plaintiff. J. A. Russell and H. B. Robinson for Tug. Judgment in favour of the Bermuda was handed down on 14th February, 1910. MARTIN, L. J. In this action the owners of the steamship Charmer seek to recover damages from the owners of the tug Bermuda because of a collision which occurred between the two vessels about 12 or 15 minutes after one o'clock in the afternoon of the 3rd December, 1908, in the First
390 EXCHEQUER COURT REPORTS. [VOL. XIII. 1910 Narrows at the entrance to Vancouver Harbour. The THE day was clear and calm, with a flood tide of about two CAN. PACIFIC HWAY. CO. knots. v. Tua The Bermuda had a large barge, containing 510 tons_ BERMUDA. of coal, secured to her port bow, projecting forward, Re r a i s l o e n s e f n o t r . and came up the channel towards Brockton Point on -- her proper course, viz: a little south of mid-channel, at a speed of about three knots, or with the tide, five knots over the ground The Charmer left her wharf in Vancouver Harbour two minutes after one by her time, and in entering the Narrows between Burnaby Shoal and Brockton Point, on a course N.W. by N. N., so as to cross mid-channel and go out on the N. side of the Narrows, she admittedly got a little too near the kelp on Burnaby Shoal for safety, upon which, as her master says, he hauled off to port and « "ran a little bit to get clear of it and then straightened up again. . . the same as before." .... The Bermuda was ,first sighted about three cables distant and bearing about two points off the Charmer's port bow, the Charmer's speed being about nine knots, or seven over the ground. At this juncture sound signals were necessary according to Article 28, but a strange and embarrassing dispute here arose (doubtless owing to an intervening tug, the Edith) regarding the signals blown by the respective vessels, the Charmer contending that she blew one blast for the Bermuda, and the Bermuda answered with two blasts, a cross signal; but the weight of evidence supports the contrary contention of the Bermuda that she blew two blasts and the Charmer answered with one, which I find to be the fact. This unfortunate mistake of the Charmer's master about the signals is also important in showing not only that he was confused on the point but that he had the intention of directing the Charmer's course
VOL. XIII.] EXCHEQUER COURT REPORTS. contrary to that course which she actually signalled, and consequently it becomes very difficult to place reliance upon his evidence as regards her course after R the signals, or upon the means he took to avoid - the collision, or his opinion as to the relative positions and courses of the two vessels. In such circumstances RJen it is hard to say what his exact intentions were, seeing that his mind was working on the very important erroneous assumption that he had blown two blasts, instead of one. His contention is that after the muda blew her two blasts the Charmer put her helm hard-a-starboard and began to swing to port and continued so to swing till the time of the collision, and that if the Bermuda had continued on her port course, pursuant to signals, after the to swing there would have been no collision, but that it was caused by the Bermuda again changing ,her course from port to starboard when about 60 or 70 yards distant from the Charmer. Both vessels towards the last reversed their engines, but too late •to avoid the collision, the corner of the scow striking the Charmer on her starboard side about 40 or 50 feet from her stem. The reversal of the Bermuda's engine necessarily had the effect of bringing her back to her original course. Just.before the moment of impact the Bermuda ly went ahead (to avoid swinging crosswise to the channel) on the chance of reducing the tangent and sliding past, in which she was nearly successful, but not quite. The Charmer's master admits that after he blew his whistle for the Bermuda, helm a little to port so as to swing off to starboard, but contends that the Charmer did not have time to swing before the Bermuda blew. Here is clearly where serious difficulty first arose, because in the .first place there is the error about the Bermuda's 391 isio THE CAN. PACIFIC wAr. Co. Tv. BERMUDA. u " d o g n e s n ro t. r m Ber-Charmer began properhe shifted his whistle, which
392 EXCHEQUER COURT REPORTS. [VOL. XIII. 1911? was, I find, blown first, and in the second place the THE Charmer's master underrated and in his evidence CAN. PACIFIC un - RwAY. Co. duly minimized the effect of porting his helm in the V. TUG flood tide. I am advised by the Assessors that if the BERMIIDA. Charmer had continued under a port helm as indicated R Jn e d a g s m o e n n s t for b yher one blast(in re p p l y y to the Bermuda's two blasts) she would undoubtedly have run clear of any possibility of collision. When her helm was eventually put to starboard, having regard to the swinging of the ship under port helm augmented by the flood tide on her port bow, it was too late to turn within a sufficiently small circle to avoid the Bermuda. I am further advised by the Assessors that seeing that the Bermuda was on her proper course (a little to the south of mid-channel) in a narrow channel, and having a very unhandy scow, much longer than herself, secured on her port side, and heavily laden with 510 tons of coal, and being on a correct course to clear Burnaby Shoal and proceed up harbour, she, in view of her unwieldy tow and the proximity of Burnaby Shoal, with a flood tide of two knots, was, in the circumstances, precluded, as a matter of prudent navigation, from either using the channel between Burnaby Shoal and Brockton Point, or altering her course to starboard. Therefore her action in blowing two blasts and then starboarding her helm was justified, and the above specified indecisive action of the Charmer after said signal was given justified the Bermuda in reversing her engines at the time she did. I am further advised that while the channel between Burnaby Shoal and Brockton Point is a recognized and navigable channel for light draught vessels of moderate dimensions, and proper at that time for the Charmer to use (though not so now since the regulations of July 17th, 1909, passed subsequent to the
OL. XIII.] EXCHEQUER COURT REPORTS.' _ 393' collision) yet it is of such a nature that in -Using it to 910' enter the Narrows, especially on a flood tide, as here, CAN. P e 1Fic3 it is necessary to be prepared to take precautions to R WAY. Co' clear incoming vessels. Tua: BERMUDA. With respect to the signals it seems desirable to observe that. the Charmer should have promply blown Jud gments two blasts to indicate her change of course to port, because the failure to do so withheld information from the Bermuda of the Charmer's change of course which would have been more valuable than the master of the Bermuda appears to have appreciated, according to his evidence, it being not quite clear what he means to convey by the statement that he was not "confused by the omission." I am entirely in accord with the advice of the Assessors, and the case appears to me to be eminently one to be decided by practical seamanship. It is also to be noted that neither . ship gave the prescribed signal for going astern, though neither ship alleges that it was affected by that oversight. • . The omission of the plaintiff to call the quarter- master who was on duty in the Charmer at the time of the collision, whose evidence would have been of great value to this. Court, is something which was not satisfactorily explained and is to be regretted. With regard to the alleged custom of vessels in the Narrows, it is not necessary, in view of the foregoing, that I should consider that matter, because; apart from it, the Charmer in my opinion- must in all the circumstances be held to be solely responsible for the collision. There will be judgment for the Bermuda on the. claim and counter-claim, with the usual reference to
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