208 EXCHEQUER COURT REPORTS. 1898 ON APPEAL FROM THE TORONTO ADMIRALTY DISTRICT. Dec. 14. THE SHIP "PORTER " (DEFENDANT)...APPELLANT; ARTHUR HEMINGER Collision—Ordinary care—Contributory negligence—Evidence. Where a ship could with ordinary care, doing the thing that under any circumstances she was bound to do, have avoided the collision, she ought to be held alone to blame for it although the other ship may have been guilty of some breach of the rules, but which did not contribute to the collision. 2. Where the defence of contributory negligence is set up by the defendant in an action for collision, he must show with reasonable clearness not only that the other ship was at fault, but that her fault may have contributed to the collision. APPEAL from the judgment of Macdougall, Local Judge of the Toronto Admiralty District, reported ante (1). The facts of the case are stated in the report of the case below. October 3rd, 1898. The appeal was now argued. T. E. O'Connor for the appellant, cited the following cases : The Benin (2) ; The (4) ; The McLeod (5) ; The Oliver The Oscar Towsend The Granite State (10); Cuba v. Macmillan (1) P. 154. (2) L. R. 12 P. D. 58. (3) 2 Stu. 198. (4) 2 Stu. 144. (5) 2 Stu. 140. (6) 22 Fed. Rep. 848. [VOL. VI. AND (PLAINTIFF).....RESPONDENT. Gordon (3) ; The Oriental (6) ; The Davis (7) ; (8) ; Buzzard v. Scow Petrel (9) ; Cayzer v. Carron t ompany (11); (12) ; The Miramichi (13) ; The (7) 19 Fed. Rep. 836. (8) 17 Fed. Rep. 93. (9) 6 MacL. 491. (10) 3 Wall. 310. (11) 9 App. Cas. 873. (12) 26 Can. S. C. R. 638. (13) 1 Stu. 318.
VOL. VI.] EXCHEQUER COURT REPORTS. 209 Ella B. (1) The Bywell Castle (2) ; Desty's Admiralty 1898 Law (3) ; Marsden on Collisions (4). . PORTER Henry Clay for the respondent, cited the following : HEM LAGER. The Pleiades (5) ; The Margaret (6) ; The Duke of ftrn ■one Buccleug h (7) ; The Fire Queen (8) ; Owen v. Odette "Pl. 1 ud guent. (9) ; The City of Antwerp (10). THE JUDGE OF THE 'EXCHEQUER COURT now (De- cember 14th, 1898), delivered judgment. . This is an appeal on behalf of the owners of the ship Porter against a judgment pronounced on the 14th day of July, 1898, by the learned judge of the Toronto Admiralty District, whereby he maintained the plaintiff's action for damages to-the steam tug, the Fern, occasioned by the Porter, a three masted schooner, coming into collision with the Fern on the sight of the 2nd of September, 1897. The plaintiff was' the owner and master of the Fern; which at the time of the collision-was•lying at anchor in Lake Erie about mid-channel between Colchester •Reef and the main shore,--the channel at this place. being about two miles and one half wide. She had been engaged for some four months in removing the cargo and wreck of a sunken schooner, and was at the time anchored over the wreck.. The night was clear and fine, with a light breeze from the northeast,. or as some of the witnesses say, from the north northeast. The Porter's course at the time of the collision was west northwest; and she was making about four miles an hour. Her lights were lit and burning brightly. The Fern was lying with her head to the wind and across .the Porter's course. Whether -she -was at :the , time._ carrying an (1) 19 Poi.' Rep. 792. '(6) 8 P. D. 128 ; 9 P. D. 47. (2) L. R. 4 P. D. 216. (7) L. R. 15 P. D. 85.' • (3) P. 381 . (8). L. R. 12 P. D..147. (4) 3rd Ed. 497. (9) Cass. Dig. p. 519. (5) [1891) 'App. Cas.'259. (10) L. R. 2 P. C. 25.
210 EXCHEQUER COURT REPORTS, (VOL. VL 1898 anchor light is a question in dispute. On the con- PORTER flicting testimony presented by the case the learned judge has found " that on the night in question at the HEMil~QER. " time of the collision the Fern was carrying a regula- R iason,. for " tien white light upon the top of her pilot house Judgment. " which would be about nine feet above her hull " where it could best be seen, and where it could " clearly be seen by the Porter if a proper look-out had " been kept on that vessel ;" and that " it was visible " on the night in question for more than a mile." This finding I accept in the main as justified by the evidence. The light according to the regulation then in force should have been carried forward. It was as a matter of fact carried on the pilot house a few feet aft of midships ; and I see no reason to believe that it would be better seen when so set or carried than it would have been had it been carried in the position prescribed by the regulation. But I agree that the Porter has nothing to complain of in that respect. The fact that the light was carried on the pilot house and not forward did not in any way occasion or contribute to the collision. To a vessel approaching the Fern on the course the Porter was steering the light was as distinctly visible where it was placed as though the regulation had been in terms complied with, and it is obvious that the persons in charge of the Porter could not have been misled as to the position of the Fern by a light which they failed to see. The contravention of the statutory rule will not prevent the plaintiff from succeeding in his action if otherwise he is entitled to succeed, unless it occasioned or contributed to the collision. The Act respecting the navigation of Cana-dian waters (R. S. C. c. 79, s. 5, re-enacting 43 Viet. c. 29, s. 6) follows in this respect the Act of the United Kingdon, 25th & 26th Victoria, c. 63, s. 29, and not the later Act, 36th and 37th Victoria, c. 85, s.k17, the
VOL. VI.] EXCHEQUER COURT REPORTS. 211 provisions of which are now in substance to be found 1898 in The Merchant Shipping Act, 1894, s. 419. So that PORTER the question that arises under the Canadian statute is v. HEm I N CiER. as the question under the earlier English Act was, — abrone whether or not the non-observance of the rule occa- Jte fo Judgment. sinned or contributed to the collision ; and in the present case, as I have said, it seems to be clear that it did not. Perhaps it is unnecessary, but I should like to add something to guard against being understood to hold the view that it is immaterial whether that part of the rule that requires a vessel of the size of the Fern to carry., her anchor light forward is infringed or not. It may or may not be material according to the circumstances of the case, and ,the person whin contravenes the rule takes' the risk of"itl15eink,. found to be material. There has been a change in the. rule which indicates that some importance should be attached to the position in which in this respect the light should be carried. By, the 11th article of the regulations approved by His Excellency in Council on the 9th. of February, 1897, and which came into force on the first day of July, 1897, it is provided that a vessel under 15') feet in length when at anchor shall carry forward where it can best be seen, but at a height not exceeding .20 feet above the hull a white light in a lantern so constructed as to show a clear uniform and unbroken light visible all round the horizon at a distance of at least a mile ; and that : _a vessel of 150 feet or upwards in length, when at anchor shall carry in the forward part of the vessel at a height of not less than 20 feet, - and not exceeding 40 feet above the hull, one such light, and at or near the stern of the vessel, and at such a , height that it shall not be less than .15 feet lower than -the forward light; another such' light. The regulations in which this provision occurs are in
212 EXCHEQUER COURT REPORTS. [VOL. VI. 1898 conformity with the regulations for preventing col- PORTER lisions at sea approved by Her Majesty in Council on v the 27th of November, 1896, and which also came into HEMIN(}L+R, force on the 1st of July, 1897. By the 8th article of Ammons u or aâ g m the regulations in force in Canada prior to that date it was provided that a ship, whether a steam-ship or a sailing ship, when at anchor, should carry, where it could best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of not less than eight inches in diameter and so constructed as to show a clear uniform and unbroken light visible all around the horizon at a distance of at least one mile (1). The later article omits the requirement about the shape and size of the lantern, but pro- vides that a vessel under 150 feet in length shall carry her light not as provided in the earlier article where " it can best be seen," but " forward where it can best be seen," and that a larger vessel must carry two lights in the manner provided in the regulation ; and it is obvious that a case might arise in which the position in which the light was carried might be very material. In the present case I think it was not material. For the Porter it is also contended that the Fern was to blame for not having an anchor watch at the time of the collision, and that if both vessels are found to be in fault the damage should be divided according to the rule that prevails in Admiralty in such cases. There is no dispute as to what happened. Up to about half an hour before the collision the watch on board the Fern was on deck. He saw the Porter when she was two or three miles away, her port light being then visible, and he concluded that she was going clear of the Fern. Then he went below to get something to eat and remained there until the collision. The Fern being anchored in (1) R. S. C. c. 79, s. 2, Art. 8.
VOL. VI.] EXCHEQUER COURT REPORTS. 213 a place near which vessels were constantly passing, it 1898 was her duty to keep a competent person on watch. (1). P;ox RT In the case of the Meanatchy it is said that their v. l3EMINGER. " Lordships entertain no doubt that in the case of a Reasons " vessel at anchor there is an obligation to keep a corn- Jndforme. " petent person on watch ; and that, it is his duty not " only to see that the anchor light or lights are pro-" perly exhibited but also to do everything in his power " to avert or to minimize a collision. Many such things " may no doubt be done, and it is necessary also to be " prepared to summon aid for any needful purpose" (2). In the present case the person whose duty it was to keep the watch left his post and neglected his duty, and if it were reasonably clear that his absence continuing as it did' up to the time of the collision may have contributed thereto, then I should think that the Fern as well as the Porter ought to be held to be in fault. That the absence of the anchor-watch ,did• not actively contribute to the collision is of course clear, and it is not suggested that if he had remained on deck he could have done anything to avert it or to minimize its effect, by changing the position of the Fern. What is suggested is that when he saw that a collision was imminent he could have rung the tug's bell or shouted, and in that, or some such, way have attempted to . attract the attention of those on board the Porter to the position of the Fern and to their own carelessness in not noticing her anchor light. A number of witnesses have said that he ought to have done that, and I have no doubt that it was his duty, ; but no witness has said or has been asked to say that in his opinion such a warning would probably have been effectual to (1) The Miramichi, l Stuart 237 ; The Guyandotie, 39 Fed. Rep. 575 ; The Master.. and Raynor, 1 Brown The Meanatchy, [1897) App. Cas. Ad. 342 ; The Clara, 102 U. S. 351. 200; The Rigaud; 11 Q. L. R. 382; (2) [1897) A. C. 356.
214 EXCHEQUER COURT REPORTS [VOL. VT. 1898 avert the collision. The wind at the time was blow- PORTER mg across the Porter's course and not in her direction, v. and it appears that she was slow to answer her helm. HEMINQEB, -- To be of any use the warning' should have been given Rcn.on■ when she was at a considerable distance from the Judgment. Fern; and whether it would likely have been effectual or not is left to conjecture. This defence of contributory negligence is set up by the owners of the Porter, and it is for them to make out their case, and to show with reasonable clearness not only that the Fern was at fault, but that her fault may have contributed to the collision. On the whole I think that they have failed to make out such a case. The Fern's light was exhibited where it could have been seen by the look-out of the Porter, if he had been attentive. He ought to have seen it, and if he had, the collision could have easily been avoided by the Porter whether an anchor watch was kept on the Fern or not. The Porter was the moving vessel and it was her clear duty to keep a good look out and to avoid the anchored vessel. And though the latter was in fault in that a sufficient watch was not kept, the Porter could with ordinary care, doing the thing that under any circumstances she was bound to do, have avoided the collision and ought I think to be held alone to blame (1). The appeal will be dismissed and with costs. Judgment accordingly. Solicitor for appellant : J. E. O'Connor. Solicitor for respondent : H. Clay. (I) The 1llurgurer, 9 App. ('a .H73.
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.