394 EXCHEQUER COURT REPORTS. [VOL. XIII. Judgment g BRYCE V. CAN. PACIFIC REPORTER'S NOTE. —The learned RWAY. Co. Local Judge of the British Columbia collision was caused or contributed Admiralty District held the in quo to be a narrow channel, under tion of the Article 25, in Bryce v.Canadian Pacific Ry. Co. (13 B. C. R. 96). His tried in February, 1907, before Mr. judgment was confirmed on appeal to Justice Martin, the Local Judge in the Judicial Committee of the Privy Admiralty for British Columbia, Council on the 30th July, 1909, the assisted by two nautical assessors, judgment of their Lordships pro- and on the 22nd May, 1907, the ceeding as follows:— Present at the hearing: Lord assessors, that the collision was Macnaghten, Lord Collins, Lord caused solely by the negligent nay- Goren, Sir Arthur Wilson. Nautical Assessors: Admiral Sir dismissed all the actions with costs. Archibald L. Douglas, G.C.V.O., K.C.B.; Commander W. F. Caborne, Supreme Court of British Columbia, C.B., R.N.R. [Delivered by Lord Gorell.l The appellants in this case are the costs were awarded to all the plain-Canadian Pacific Railway Company, tiffs except the plaintiff Cyril James the owners of the steamship Victoria, which came into collision about or near the Parthia Shoal, off missed. Brockton Point, near Vancouver, at about 2.20 p.m. on the 21st July,1906 with the steamer Chehalis, in consequence the latter vessel sank, and Irving, J., held the and some of her passengers and solely to blame. crew were drowned. Six actions failed, because he was responsible for were afterwards brought in the the navigation of the Supreme Court of British Columbia the result of the judgments was that against the appellants by certain he could not recover, and he has not passengers and members of the crew appealed against this decision. of the Chehalis or their personal representatives to recover damages cult to understand why the trial for loss of life and personal injuries should have lasted so long as it did. and loss of effects, on the alleged ground that the collision was caused screw steamship of 1,943 tons gross by the negligent navigation of the register, left the wharf on the south Princess Victoria. The appellants denied that. the tocus to by any negligence in the naviga-Princess Victoria. The actions were consolidated and learned judge, after a very long trial, held, with the concurrence of the igation of the Chehalis, and he On appeal to the full Court of the sitting without assessors, it was held by a majority of the judges that the Princess Victoria was to blame for the collision, and damages and Princess Eldridge House, the master of the Chehalis, whose appeal was dis-The Chief Justice held that the Princess Victoria was solely to blame. and Clement, J., held both ships to blame Chehalis was House's appeal Chehalis, and The facts are simple, and it is diffi- The Princess Victoria, a twin- side of Vancouver harbour bound
VOL XIII.] EXCHEQUER COURT REPOROS. 395 to Victoria, with passengers, mails, Princess Victoria and afterwards sank, 1909 and baggage, and a crew of about and seven persons were drowned. 100 hands, at about 2.05 p.m. on the Broadly stated, the case on the BRYCE day of the collision. The weather other side was that the Chehalis v was fine and clear. A strong tide was proceeding on her course out of TILE about two hours' flood was setting the Narrows, and that, after.she had CAN PACIFIC to the eastward through' the Nar- passed Brockton Point, her master RwnY. Co. rows of Burrard Inlet. The Princess heard a whistle behind him, and on eteu.uns fee ' Victoria proceeded at .a speed of looking through a stern window in Judgment. about 14 knots through the water, in his wheelhouse, saw the Princess between Burnaby Shoal and Broék- Victoria coming down on him, that ton Point, and rounded the point he saw she was coming right into him, under starboard helm so as to and that he threw his helm hard-a- straighten down the Narrows. port and gave a short blast of the The Chehalis was a small screw whistle, but that in a few seconds tug of about 54 tons register, with a the Princess Victoria struck his crew of six hands, House being her vessel. master. She left the wharf at Van- couver about 1.20 p.m. with passen-The main question in the case was gers, and, after crossing to North purely one of facts viz.: whether the Vancouver and picking up some more Chehalis starboarded or was im-passengers, left that place at about properly allowed to swing over to 2.05 p.m., bound to the westward port across the course of the Princess, through the Narrows for Blunden Victoria, or whether the latter Harbour. House was in charge, vessel came too close to the Chehalis and was at the wheel in a closed and ran into her, or was allowed to wheelhouse, steering, giving such be sheered into her by the tide. orders as were required, attending to the whistle and keeping the look-out. The learned judge who tried the case There was no one else on the look-out. and saw the witnesses accepted the The Chehalis proceeded at about account of the officers of the Princess nine knots through the water down the Victoria as being substantially cor inlet, being steered by the land and rect. He found that, beyond doubt, not by any compass course. there was ample room for her to have The appellants' case was that, passed between the launch and the after rounding the point, the Princess Chehalis, and in the course of his Victoria was steadied so as to pass judgment said,— to the northward of a steam launch and to the southward of the Chehalis, "I am satisfied that the officers which was then proceeding on the in the pilot house of the Princess did starboard bow of the Princess Vic- . keep a proper and continuous look-out toria some distance off on a course and that at the time the two blasts nearly parallel to that of the Princess were blown she, having just then Victoria; that two blasts were then freed herself from the anticipation of sounded on the Princess Victoria to any danger from the launch close to indicate that she was intending to her port bow, which had caused a pass to the southward of the Chehalis, momentary but immaterial devia-but that the Chehalis suddenly came tion from her course, was steadied on off to port towards the Princess a course W. by N. ; N., within a , Victoria, causing risk of collision; quarter of a point, so as to just clear that thereupon both engines of the Prospect Point and take her straight Princess Victoria were put full speed down the Narrows, which course astern, and her helm hard-a-star- was, roughly, parallel to that of the board, and that the Chehalis came Chehalis. Had these respective rapidly to the southward, and, al- courses and speeds been maintained, though she ported at the last moment there was at that time no reason to she struck the starboard bow of the anticipate any danger of collision,
396 EXCHEQUER COURU REPORTS. [VOL. XIII. 1909 though the courses would probably across the bows of the Princess Vic- have ultimately converged. . . . toria, and he considered that that BRYCE But I find that while said blasts were vessel was to blame under Articles T U H ' E being blown, or immediately there- 22, 23, 24 and 25 of the regulations. CAN. PACIFIC after, the Chehalis suddenly altered Clement, J., held that he could not, RwAY. Co. her course at least three to four points having due regard to the principles from west to southward, thus bring- which should guide an appellate Reasons for Judgment. ing herself across the bows of the tribunal in reviewing a judgment as Princess. . . . I have very little, to matters of fact, say that the if any, doubt that it was owing to learned judge was wrong in finding the fact that Captain House, as he Captain House to blame, i.e., guilty admits, only kept a look-out ahead, of contributory negligence; but he and I believe he was startled when held that the Princess Victoria had he heard the signal and made a broken Article 25, and that that was wrong movement of his wheel at a "the larger inducing cause of the critical moment in the strong tide. catastrophe." Irving, J., supported There must have been something of the judgment on all grounds. the kind, for House did not take the There are two different matters to position that he was thrown out of consider in this case. The first is, his course by an unforeseen eddy what were the facts; and the second, or current or otherwise." upon the facts whether either or The learned judge further held both of the vessels were to blame? that the Princess Victoria had not Their Lordships consider that the committed a breach of any of the facts appear to have been very fully regulations for preventing collisions in and carefully investigated by Martin, Canadian waters, which are similar J., with the assistance of assessors, to those made under the Imperial and that no adequate ground has Act, though the statutory section is been shewn for an appellate court to different (cf. section 916 of Revised take a different view of the facts Statutes of Canada, I906, chap. 113, from that taken by the learned and section 419 (4) of the Merchant judge. He had the great advantage Shipping Act, 1894). In particular of seeing and hearing the witnesses, upon the point which appears to have and unless it could be shewn that been much discussed, that is to say, he had taken a mistaken or erroneous whether the Princess Victoria had view of the facts, or acted under some broken Article 25 of the regulations— misapprehension, or clearly came to the narrow channel rule—he stated an unreasonable decision about the that, having regard to the relative facts, he should not, in accordance positions of the three vessels after the with well recognized principles, be Princess Victoria had rounded the overruled on matters of fact which point, the mid-channel course which depended mainly upon the credibility she took was the only proper one for of the witnesses. her to take as a matter of, good sea- manship, as he was advised, con-An examination of the evidence in sistent with her own safety, and it this case shows that, not only was the would have been unreasonable to the learned judge entitled to come to expect her to have gone to the north the conclusions of fact at which he of the Chehalis, already on the arrived, but that the weight of the northerly course, and under her evidence is in favour of those conclu- stern. sions, and that the real cause of this On the appeal to the Full Court unfortunate collision was that there the Chief Justice differed from the was no adequate look-out kept on finding of fact by Martin, J., that board the Chehalis, and that her the Chehalis altered her course master was unaware of the presence
VOL. XIII.] EXCHEQUER COURT REPORTS. 397 of the Princess Victoria until she was with regard to tide, etc., have to be 1909 about to pass him, and improperly put considered. The learned trial 'judge his helm to starboard, or allowed his held that the course taken by the BItYCE vessel, which had just entered the Princess ,Victoria was justified by T v x ' E of the Narrows where he began the circumstances, but the Chief CAN. PACIFIC to feel the full effect of the tide, to fall Justice and Clement, J., appear to R WAY. Co. off her course towards the Princess have considered that she should Victoria. Broadly speaking, there have gone outside the Burnaby Shoal Reaso ns for udgmen t. can hardly be the least doubt that, or at any rate under the stern of the `f if House had seen and been aware of Chehalis. the presence of the Princess Victoria The Princess Victoria appears to the collision would never have hap- have followed the usual course in pened. It seems almost incompre- passing through the narrow channel hensible that he should not have between the Burnaby Shoal and noticed her even before she rounded, Brockton Point, and to have rounded and as she was rounding the point, the point in a proper course to pre-unless he never looked anywhere vent herself from being swept out by - except straight ahead of his vessel. the very strong tide which she, would The finding of the learned judge have had on her, port broadside, if upon this point really makes an end she had attempted to pass directly of the case, but it is desirable to deal across to the north side of the channel briefly with the other points made leading outwards, and a similar on this appeal. effect would have been produced upon her if, having regard to the 'It was urged that the Princess Vic- position of the vessel, she had pro-toria , broke Articles 22, 24, 25 and 28. ceeded to attempt to pass under the Article 22 is the crossing rule, and stern of the Chehalis. Article 24 is the overtaking rule. The 24th Article is that which was Their Lordships are advised by applicable, for the Princess Victoria the experienced assessors who have was an overtaking ship, but the assisted them on this appeal that the charge is disposed of by the finding Princess Victoria pursued a proper that there was ample room for the course having regard to the locality Princess Victoria to pass the Cheha- and tide, and was, in the circum -lis, and that there would have been no stances, justified, as a matter . of collision but for the improper action good seamanship, in taking the mid- of the Chehalis and her breach of channel course between the two Article 21, according to which she other vessels, and therefore they do was bound to keep her course and not agree with the views expressed speed. ' on this point by the majority of the Full Court. They further do not Article 25 is the narrow channel . consider that the course pursued by rule, which provides that— the Princess Victoria can be held "in narrow channels every steam to have caused or contributed to the •v essel shall, where it is safe and collision, which was solely brought practicable, keep to that side of the about by the improper action of the fairway or mid-channel which lies on Chehalis. the starboard side of such vessel." The collision took place somewhere With regard to Article 28, the point about midway across the channel, made under it against the Princess which their Lordships consider has_ Victoria was that she did not sound been correctly stated to be a narrow her whistle when she began to round channel within the meaning of the the point, and improperly failed to Article. Then the configuration of indicate bÿ whistle signals the course the locality and the circumstances she was taking. There does not
398 EXCHEQUER COURT REPORTS. [VOL. XIII. 1909 seem to have been much, if any, arrangement between the parties argument on these points in the should remain unaffected by His 13.1 1Yee Courts below. It is to be noticed Majesty's order. u. that when proceeding to round the Their Lordships will therefore THE point, the Princess Victoria was humbly advise His Majesty to allow (IAN PACIFio RwAY. Co. acting in the ordinary course of nav- the appeal, to set aside the judgment igation, and that it has been but faint- of the Full Court dated the 18th of Reasons for ly suggested that she did anything February, 1908, except so far as it Judgment, wrong at a later time with regard relates to House, to restore the judg-to her whistle. A breach of the Art- ment of Martin, J., dated the 22nd idle does not seem to their Lordships of May, 1907, and to order that the to be made out in the circumstances. present respondents do pay to the The conclusion at which their present appellants their costs of the Lordships have arrived is that the appeals to the Full Court, but that decision of Martin, J., was right His Majesty's order be without and should be affirmed. It would prejudice to any arrangement which seem from the order of the Full may have been made between the Court that some dealings have taken appellants and the said William place between the appellants and James Crawford and Ruby Craw-the plaintiffs William James Craw- ford. ford and Ruby Crawford with regard The respondents who have con- to withdrawing the appeal of these tested this appeal must pay the plaintiffs to that Court, and any appellants' costs thereof.
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