Ex. C.R.] EXCHEQUER COURT OF CANADA 145 ON APPEAL FROM TH.N. QUEBEC ADMIRALTY DISTRICT 1940 May22&23. BETWEEN : 1941 Jan. 10. THE SHIP NEW YORK NEWS APPELLANT; AND PATERSON STEAMSHIPS LIMITED ... RESPONDENT; AND QUEBEC & ONTARIO TRANSPOR-1 TATION COMPANY LIMITED APPELLANT; COUNTER-CLAIMANT) AND PATERSON STEAMSHIPS LIMITED (COUNTER-DEFENDANT) ( RESPONDENT. Shipping—Collision--Rules 19, 22 et 26—Both ships equally to blame for collision—Damages assessed equally on both ships—Judgment of District Judge in Admiralty varied. The ship New York News, owned by the Quebec and Ontario Transportation Company Limited, and the ship Fort Willdoc, owned by Paterson Steamships Limited, collided during a dense fog in Lake Superior while proceeding in opposite directions on or about the courses usually followed by ships in Lake Superior bound from Port Arthur or Fort William down the Great Lakes or vice versa. The District Judge in Admiralty for the Quebec Admiralty District allowed an action brought by the Paterson Steamships Limited against the ship New York News for damages suffered by the Fort Willdoc as a result of the collision and dismissed the counter-claim of the owner of the New York News against Paterson Steamships Limited for damages suffered by the New York News in the same collision. On appeal the Court found that both ships were to blame for the collision and the resulting damage, and directed that the judgment at trial be varied by apportioning the blame and damages equally between the two ships. Held: That both ships were in error in proceeding at full speed contrary to Rule 19 which requires that every ship shall, in thick weather, by reason of fog or other causes, go at a moderate speed, observance of which rule is required whether the fog signals of approaching ships are 'heard or not. 25305—Ya
146 EXCHEQUER COURT OF CANADA [1941 1941 2. That both ships violated Rule 19 in not immediately reducing speed THESHrP to bare steerage way on hearing the fog signal of another vessel less New York than four points from right ahead, and navigating with caution until News they had passed each other. V. PATERSON 3. That it delay of over half a minute before giving STEAMSHIPS a signal is not a LIMITED. prompt answer within the meaning of Rule 25. 4. That both ships in the circumstances here erred in not blowing a danger signal promptly as required by Rule 22. APPEAL from the judgment of the District Judge in. Admiralty for the Quebec Admiralty District. The appeal was heard before the Honourable Mr. Jus- tice Maclean, President of the Court, at Ottawa. L. Beauregard, K.C. for appellant. C. Russell McKenzie, K.C. for respondent. The facts and questions of law raised are stated in the reasons for judgment. THE PRESIDENT, now (January 10, 1941) delivered the following judgment: This is an appeal, heard with the assistance of a nautical assessor, Captain G. B. Frewer, from the judgment of Cannon J., District Judge in Admiralty for the Admiralty District of Quebec, maintaining an action brought by the respondent, Paterson Steamships Ld., against the ship New York News (hereafter called " the News"), the appellant, for damages suffered by the respondent's ship Fort Willdoc (hereafter called " the Willdoc"), following a collision in Lake Superior between the two ships mentioned, and dismissing the counter-claim of the owners of the News against the respondent for damages suffered by the News in the same collision. As will appear from the narration of the material events the case is a complicated one and not without its difficulties. The News, a canal type of steel ship of 2,310 gross tons, having a length of 256 feet over all, was on a voyage from Port Arthur to Montreal, laden with grain. The Willdoc, a steel single screw steamship of 4,542 gross tons, having a keel length of 416 feet, was proceeding light in the
Ex. C.R.] EXCHEQUER COURT OF CANADA 147 opposite direction, from Port Colborne to Fort William. 1 941 The News had a maximum speed, loaded, of 7 knots, while THE snip the full speed of the Willdoc was approximately 112 knots. srk N Ne Both ships were proceeding on or about the courses usually PATERBON frequented by ships in Lake Superior, bound from Port STEAMSHIPS LIPdITEII. Arthur or Fort William to eastern Canadian ports on the Great Lakes, and vice versa. At all times material here Maclean J. the weather was a dense fog. I may now state the principal events leading up to the collision, and the movements and manceuvers of both ships just prior to the collision. The News left Port Arthur on September 11, 1938, at 1 a.m. At about 5.20 a.m., daylight saving time, the News first heard the fog signal of an approaching ship, afterwards identified as the Willdoc. On hearing this fog signal the second time, a minute or so after the first signal was heard, the engines of the News were put at half speed, about four knots, but not before. The fog signals of the Willdoc appearing more distinct as the ships approached closer together, the Willdoc appeared to the master of the News to be a little to starboard and he thereupon gave a passing signal of two blasts, that is, the News proposed that the ships pass each other starboard to starboard, as provided by Rules 21, 24 and 25. The News then reduced her speed to slow, and then to dead slow. At this time the News states that her speed was between two and three miles an hour. While blowing her two whistles the News heard one whistle from the Willdoc and immediately the News was put full speed astern, followed shortly thereafter by a danger signal. She then proceeded full astern for about a minute, and during that time the Willdoc blew two whistles, which the News understood as an answer to her two whistles, and it was so intended by the Willdoc. Just before this, or at about the same time, the News saw the red light of the Willdoc bearing on her port bow and heading for about the bridge of the News. At that moment the ships were somewhere between 200 and 300 feet apart. Perceiving this situation, and realizing that a collision was imminent, the News, in order to minimize the consequences of a collision, if not to avoid it altogether, ordered full speed ahead and hard astarboard, giving at the same time a danger signal. Then it was 28305--4 a
148 EXCHEQUER COURT OF CANADA [1941 1941 realized that the News was swinging to starboard and the THE SHIP helm was ordered hard aport in order to swing her stern New York News away from the Willdoc. But this did not avoid a collision, v. and the Willdoc struck the News a glancing blow at an PATERSON STEAMSHIPS angle of thirty-five or forty-five degrees, the damage sus- tained by the News being pretty well aft. The collision Maclean J. occurred at about 5.30 a.m. That is the story of the News. At about 5.15 a.m., the Willdoc, while proceeding at full speed, 11-i knots, first heard a fog signal ahead, which would be about fifteen minutes before the collision. Upon hearing this signal her engines were ordered from full speed to slow speed ahead. It is to be assumed from the evidence that while the two blast signals of the News was being given, the Willdoc was simultaneously blowing one whistle, and this would indicate that the Willdoc was directing her course to starboard. Then, the Willdoc on hearing the two whistles of the News replied with the same signal, two whistles, and her helm was directed to port, but the first mate of the Willdoc states that this was from one-half to three-quarters of a minute after hearing the two whistles of the News, and it is claimed on behalf of the News that this signal should have been given immediately, " promptly," to use the word used in Rule 25, and that the failure to do so was perhaps the major factor contributing to the collision. The Willdoc states she was hard aport for about three minutes when she saw the red light and the mast head light of the News, on her starboard bow, at a distance of about 200 feet, the News coming across her bow at right angles. The Willdoc further states that her speed had in the meanwhile been ordered to bare steerage way, and that she had been proceeding at that speed for the last two miles. That is the story of the Willdoc. It might be desirable now to turn briefly to the time when the ships were approaching each other, either head and head, or nearly so, or at least on close parallel courses, some little time before the collision. First, it is to be remembered that the weather was a dense fog, and the ships, as events disclosed, were only able to see one another at a distance of somewhere between two and three hundred feet, and they were each on about the course usually frequented by all ships, as I understand it, bound to or from
Ex. C.R.] EXCHEQUER COURT OF CANADA 149 Port Arthur or Fort William. Prior to the time when 1941 each ship heard the fog signals of the other both ships THE SHIP were proceeding at full speed contrary to Rule 19 which N 1ÿé srk requires that every ship shall, in thick weather, by reason v. N of fog or other causes, " go at a moderate speed." In such STEAMSHIPS circumstances observance of this rule is required by ships LIMITED. whether or not they hear the fog signals of approaching Maclean J. ships. It is an intelligible and common sense rule designed to avoid danger to ships in the navigation of the seas, and does not purport to make any alteration in the law. Apart from the rule the law requires a ship in fog to be navigated at a moderate speed. Moderate speed has often been defined as to mean that a ship navigating in fog must be able to stop within the distance she can see ahead. That definition may not in all circumstances be regarded as a practical working rule but it approximates the spirit of Rule 19. One of the reasons for this requirement is that it gives a better opportunity for one ship to hear the fog whistle of another ship, and so of ascertaining her whereabouts, always a matter of great difficulty by reason of the capricious way in which sound is conveyed in fog. As has often been stated, it is so absolutely well known that it is impossible to rely upon the direction of whistles in a fog, that no man is justified in relying with certainty upon what he hears when the whistle is fine on the bows, and he is not justified in thinking it is broadening or that it is far distant, unless he can make sure of it. I must now refer briefly to the evidence pertaining to the relative positions of the ships as they were approaching closely one another, and when each was hearing the fog signals of the other. The evidence given on behalf of both the News and the Willdoc would indicate that on hearing the first fog signals ahead, the ships were pretty well head and head. But there is evidence on both sides to the effect that, as the ships came closer together, each was slightly on the starboard side of the other. For example, the first mate of the Willdoc testified that he heard signals of an approaching vessel which " seemed to be pretty well ahead," " my impression was it was on the starboard side," " as we approached closer to him the sound appeared to be coming a little bit to starboard," " we could not say he was really to starboard, what I mean is with the
150 EXCHEQUER COURT OF CANADA [1941 1941 fog and everything we figured we were far away, that we TEE Sun' would give the one whistle," and " the vessel was not so New York News far to starboard to us that it mattered. The sound seemed v. to be coming just a shade to starboard pretty well ahead, PAT STEAMSHIPS and you could barely tell." The same witness stated in LIMITED. answer to a question by the Court, that if the master of Maclean J. the Willdoc had known the exact position of the approach- ing ship her signal would have been two blasts and not one blast, and this one blast was after consultation between the master and his first mate. When the first mate is speaking of the " position " of the News he has reference to the distance ahead. The master and first mate of each ship, just before or at the time each gave _a passing signal,. apparently were of the opinion that each was on the starboard side of the other; it was in that belief that the News gave the two-blast signal, and, as the first mate of the Willdoc stated, the master of the Willdoc would also have blown two whistles had he realized that the two ships were so close together, and in the end the Willdoc by giving a two-blast signal expressed assent to pass starboard to starboard and direct her course to port;, and the evidence rather indicates that the Willdoc believed the News was in fact on her starboard bow. It seems to have been the opinion of the master and first mate of each ship, that when the passing signals were given the ships were on the starboard side of each other, and not head and head, or nearly so; whether this was in fact precisely so is perhaps another question. The whole situation, as it developed, shows how important it was that the ships should have been proceeding at a moderate speed, and with caution. Now, Rule 25 states that when ships are approaching each other head and head, or nearly so, it shall be the duty of each ship to pass on the port side of the other, and either ship may be the first to determine to pursue this course and she shall give as a signal of her intention one short blast which the other ship "shall answer promptly by a similar blast of his whistle," and thereupon such ships shall pass on the port side of each other. But the rule further states that if the course of such ships is so far on the starboard of each other as not to be considered as meeting " head and head," or nearly so, the ship so first deciding shall immediately give two short and distinct
Ex. C.R.] EXCHEQUER COURT OF CANADA 151 blasts of her whistle and they shall pass on the starboard 1941 side of each other. The master of the News evidently THE SHIP considered the ships were not head and head, or nearly so, N lvewsrk and accordingly he gave two short blasts of his whistle. v PAT ERBO N The master of the Willdoc gave one blast of his whistle sTEA T sate s indicating that he wished to pass port to port, but unf or- lam"". tunately this signal was given simultaneously with the Maclean J. two blasts of the News. This signal of the Willdoc, accord- ing to her first mate, was not one that was seriously con- sidered, because it was thought that the ships were then far apart. The master and first mate of the Willdoc then apparently further conferred and decided that the two- blast signal of the News, which they both heard, was on their starboard bow, and after a lapse of about forty seconds they responded with two blasts of the whistle to indicate they would pass starboard to starboard; the News so understood this signal, and the Willdoc directed her course to port. But what transpired is another matter. The situation then at one moment was that the News was proposing that they pass starboard to starboard and the Willdoc was proposing that they pass port to port, and this created an embarrassing, situation for the News, and particularly because the Willdoc gave no danger signal and did not promptly give two blasts of her whistle in answer to the signal of the News, if she were going to assent to it at all. The one blast of the Willdoc meant to the News that the Willdoc was starboarding and would likely cross the bow of the News, and the delay of forty seconds, nearly three-quarters of a minute, in assenting to the passing signal of the News was obviously calcu- lated to confuse and embarrass the News, because in the meanwhile it would be natural for her to assume that the Willdoc was crossing to starboard. Even the first mate of the Willdoc appears to have thought that the pause of forty seconds was excessive. In the meanwhile the News went full speed astern, on hearing the one blast of the Willdoc and shortly afterwards followed this with a danger signal. Had the News taken a definite course to port with engines ahead, after giving her two blasts, and had the Willdoc answered this signal promptly, and directed her course to port, there would probably have been no collision. The fact that when the News and the Willdoc sighted each other the News had swung considerably to starboard
152 EXCHEQUER COURT OF CANADA [1941 1941 and across the bow of the Willdoc is something quite easily THE SIDE understood, and in the situation obtaining it is quite plain rk NNe ws why it would appear that the News had swung consider- v. ably to starboard and across the bow of the Willdoc. On PATERSON STEAMSHIPS hearing the one-blast signal of the Willdoc the News LIMITED. went full speed astern on her engines for a time, and her Maclean J. stern would therefore have a tendency to back to port thus throwing her bow to starboard, while stopping her headway. Up to this time the News could not have been proceeding at more than about three knots. The News had assumed for forty seconds that the Willdoc intended to cross her port bow and she went astern at full speed, to stop her headway and to swing her head to starboard, and my assessor advises me this was good seamanship, and, I think, that must be so. Then, after a delay of more than half a minute, the News heard her own two-blast signal answered but it was then too late for her to get her head back to port sufficiently to clear the bow of the Willdoc. It may be granted that the News had heard and understood the Willdoc's two-blast signal but it must be remembered that by this time the News was going full speed astern on her engines and her bow would be beginning to swing to starboard. My assessor tells me that it would take a little time for a loaded ship to steady by her head and recover herself from a natural swing to starboard caused by her engines going full speed astern, and before this recovery to port could happen the Willdoc appeared close to the port bow of the News, and to me that seems just what happened. The News had probably changed her course to starboard from her original course, but the act of going full astern on her engines after she heard the one-blast signal of the Willdoc would satisfactorily account for this, and I do not think it " can be said that the News crossed the bow . of the Willdoc in the sense suggested on behalf of the Willdoc, and, I think, by the learned trial judge. I think the later action of the News in going full speed ahead and starboarding her helm in an attempt to clear the bow of the Willdoc was justified under Rule 37, if by doing so her master thought he could minimize the effect of the collision which at the moment appeared unavoidable, and this manoeuvre apparently had the desired effect.
Ex. C.R.] EXCHEQUER COURT OF CANADA 153 Just shortly before the collision each ship appears to 1941 have thought the other on her starboard bow. It is diffi- THE SHIP cult to understand then why the Willdoc blew one blast N 1Vesrk of her whistle because she then would have to cross the P y. A TERSO bow of the News, or incur the risk of so doing, but appar- sTEA I H0 NS ently she did not act upon this signal as either the master LIMITEn* or the mate stated that she did not starboard her helm. Maclean J. After the Willdoc answered the two blasts of the News it is claimed that she ran for about three minutes hard aport, during which time she appears to have altered her course to port only about sixteen degrees, or to about twenty-two degrees as the learned trial judge found. My assessor advises me that this is hardly believable, because even at slow speed, in three minutes, a ship, especially at light draft, would swing far more than that, and Mr. Beauregard in his argument upon this point seemed very convincing to me. Although the evidence is against it, there is, of course, the possibility that the Willdoc was swinging to starboard after she had blown the one blast of her whistle, and if that were the case it might account for the fact that it took her nearly four minutes, on a hard aport helm, to reach only sixteen or twenty odd degrees from her original course. Had the original scrap log of the Willdoc been produced this might have been explained, and, I think, it required some explanation, but that is a point upon which I do not propose to rest my conclusions. Again, as I have already indicated, the Willdoc gave no danger signal after hearing the two-blast signal of the News, and I think the Willdoc should have given such a signal and gone astern as did the News though the latter did not give a danger signal immediately. In any event, a delay of over half a minute before giving her two-blast signal was not, I think, a " prompt " answer within the meaning of Rule 25, and this was doubtless an important factor in contributing to the collision. A delay of forty seconds was a considerable time in the circumstances obtaining at the moment, and, I think, the Willdoc was at fault in not promptly changing her one-blast to a two-blast signal, and particularly when she seems to have believed that - the News was on her starboard bow. The conclusions I have reached are the following. Both ships were violating Rule 19 in proceeding at full speed
154 ( EXCHEQUER COURT OF CANADA [1941 1941 in a dense fog. Both ships also violated Rule 19 in not THE sap immediately reducing speed to bare steerage way on hear- New York News ing the fog signal of another vessel less than four points from right ahead, and navigating with caution until they PATERBON STEAMSHIPS had passed each other; in such a state of facts it is no LIMITED. defence for one ship to say that the fog signals of the Maclean j * other appeared to be far away. If on the evidence it be thought that the ships were approaching each other "head and head" or nearly so, then the News was at fault in not giving a one-blast signal at first instead of a two-blast signal, as required by Rule 25. But there came a time when the News considered that the ships were not approaching each other head and head, or nearly so, but were sufficiently on the starboard of each other that she decided to give two blasts of her whistle, which meant a signal to pass starboard to starboard, and to this the Willdoc expressed assent and signified her willingness and intention to direct her course to port, but the Willdoc was at fault, as I have already stated, in not having promptly responded with her answered signal. Rule 21 requires every vessel receiving a signal from another to respond promptly with the same signal, or to sound the danger signal as provided in Rule 22. Rule 22 states that when ships are approaching each other and there is a failure on the part of either ship to understand the course or intention of the other, the one in doubt shall immediately signify the same by the prescribed danger signal, and both ships shall be immediately slowed to bare steerage way, and, if necessary, stopped and reversed until the proper signals are given, answered, and understood, or until the ships have passed each other. Both ships, I think, in the circumstances here, failed in not blowing a danger signal promptly. The News went full astern on her engines and blew a danger signal though perhaps not promptly, but the Willdoc took no action. I am ,of the opinion that both ships - were to blame for the collision and its consequences. It is always difficult to determine with confidence and precision the degree of blame to be attached to each ship in cases of this kind but I am of the opinion that in the facts and circumstances of this case the blame should be equally apportioned.
Ex. C.R.] EXCHEQUER COURT . OF CANADA 155 With great respect I am, therefore, of the opinion that 1941 the judgment appealed from should be varied to the extent TaESHW I have indicated, and judgment will be in accordance with Nev Yo New r k s the terms of the opinion I have just expressed. I reserve v PATERSON the question of costs until the settlement of the minutes STEAMsHws of judgment. Lamm. Judgment accordingly. Maclean J.
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