Olaf Angell & Erling Johansen (Plaintiffs)
v.
The Ship Oceanic Peace, Associated Bulk Carri
ers Inc. (Defendants)
Trial Division, Collier J.—Vancouver, B.C.,
June 19; Ottawa, July 6, 1972.
Maritime law—Practice and procedure—Passing ship cuts
cable of fishing vessel—No "collision between vessels"—
Preliminary acts not required—Federal Court Rule 1013.
The Oceanic Peace, a deep sea cargo vessel, passed the
fishing vessel Baron close astern severing the cable con
necting the Baron's trawl net. The Baron's owners brought
action for damages and filed a preliminary act pursuant to
Rule 1013.
Held, granting defendants' motion to dispense with the
filing of preliminary acts, Rule 1013 did not apply. There
was no "collision between vessels" as required by the Rule.
Bennett Steamship Co. v. Hull Mutual Steamship Pro
tecting Society Ltd. [1913] 3 K.B. 372, applied.
MOTION by defendant owners.
James T. Rust for plaintiffs.
V. Hill, Q.C. for defendants.
COLLIER J.—This is a motion by the defend
ant owners of the Oceanic Peace for an order
dispensing with the filing of preliminary acts in
this action as "inappropriate to the litigation"
and for particulars of the negligence alleged
against the defendant in paragraph 6 of the
statement of claim. It is necessary to set out the
facts in order to appreciate the point involved.
The plaintiffs are the owners of the Baron, a
fishing vessel. The Oceanic Peace is a deep sea
cargo vessel. On July 29, 1970, the Baron was
fishing off Cape Flattery in the State of Wash-
ington. She had her trawl net out and in the
statement of claim it is alleged she was display
ing the proper fishing signals. The Oceanic
Peace, apparently bound for Vancouver, is
alleged to have snagged the trawl cable connect
ing the net to the Baron and severed it. It is
further alleged the trawl net was lost. I point
out there was no collision or impact between
the Oceanic Peace and the Baron except to the
extent I have described.
The owners of the Baron commenced action
claiming damages, presumably for the loss of
the net and, I suppose, further consequential
damages. Paragraph 5 of the statement of claim
is as follows:
5. At approximately 0900 on or about the 29th day of
July, 1970, the fishing vessel "BARON" was engaged in
fishing approximately 55 miles off Cape Flattery. The
"BARON" was dragging 300 fathoms of trawl net and was
displaying the proper fishing signals. The "OCEANIC
PEACE" appeared at approximately 0845 on a Westerly
course, and approached the "BARON" without altering
course. The "BARON" blew its whistle and shortly thereaf
ter, the "OCEANIC PEACE" altered course to port and
passed the "BARON" close aboard off the "BARON"'s
stern severing the line connecting the trawl net to the
"BARON". The net was lost and the "BARON" was unable
to continue fishing.
The plaintiffs have filed a preliminary act
purportedly pursuant to Rule 1013 of the Rules
of Court.
The relevant words in Rule 1013 are "In an
action for damage by collision between vessels
..." and the Rule then goes on to require
(speaking generally) the filing of a "Preliminary
Act". Counsel for the defendant contends, on
this motion, there was no collision between
vessels, but at most a collision between a
vessel, the Oceanic Peace and another object, in
this case a steel cable connected to a trawl net.
Therefore it is not a case where preliminary
acts should be filed. Counsel for the plaintiffs,
on the other hand, takes the position that the
cable and net were, because of the character of
the Baron as a fishing vessel, an essential part
of that vessel. Therefore there was, from a
practical point of view, a collision between
vessels.
Counsel for the plaintiffs relied, in support of
his argument, on Re Margetts [1901] 2 K.B. 792
where there was a collision with an anchor by
which a ship was moored. That was held to be a
collision with a ship.
Reliance was also placed on The Niobe
[1891] A.C. 401 where it was held there was a
collision between ships. That was based on the
theory of a tug and tow being one ship.
I was referred to Bennett Steamship Co. v.
Hull Mutual Steamship Protecting Society Ltd.
[1913] 3 K.B. 372 by counsel for the defend
ants. In that case a steamer fouled the nets of a
fishing vessel. The nets were about a mile or
more from the vessel itself. The hull of the
steamer did not at any time come in contact
with the hull of the fishing vessel. The facts are
obviously very similar to the facts in the
present case. The question before Pickford J.
was whether there was a collision within the
meaning of a clause in a Lloyd's policy. The
clause read:
And it is further agreed that if the ship hereby insured
shall come into collision with any other ship or vessel and
the assured shall in consequence thereof become liable to
pay and shall pay by way of damages to any other person or
persons any sum or sums not exceeding in respect of any
one such collision the value of the ship herein insured this
company will pay the assured such proportion of three-
fourths of such sum or sums so paid as its subscription
hereto bears to the value of the ship hereby insured.
Pickford J. said at p. 376:
The question is whether in the circumstances of this case
there was a "collision with any other ship or vessel" within
the meaning of the collision clause attached to the usual
form of Lloyd's policy. The plaintiffs under the provision
contained in the defendant society's rules are entitled to
recover if the ship insured comes into collision with any
other ship or vessel and the claims for losses, damages, or
expenses arising from or consequent upon the collision are
not recoverable under the Lloyd's policy clause. The cir
cumstances are stated in paragraph 1 of the special case.
(Having read the paragraph, the learned judge continued:) It
is perfectly clear that as a matter of ordinary language no
one would say that the Burma came into collision with
another ship or vessel. If any one were asked, apart from
decided cases, whether to run into a net at a distance of a
mile from the ship, the ship being attached to the other end
of the net, was running into the ship, I do not suppose he
would hesitate to reply in the same sense as that which
Lord Bramwell expressed in giving judgment in The Niobe
([1891] A.C. 401), namely, that as a matter of ordinary
English she did nothing of the sort.
He then went on to deal with the Margetts and
the Niobe cases and said at pp. 377-8:
... Another case is In re Margetts and Ocean Accident and
Guarantee Corporation ([1901] 2 K.B. 792). In that case the
collision was with an anchor by which a ship was moored,
and that was held to be a collision with the ship. That may
be going rather further possibly than The Niobe ([1891]
A.C. 401). It may perhaps very well be said that the anchor
which is used for the purpose of mooring a ship and is
necessary for its navigation, and without which she could
not prudently put to sea (to use, in effect, the words of
Wills J. in In re Salmon and Woods, 2 Morr. 137), is a part
of the ship; but it does not seem to me that there is any
principle laid down in those authorities which obliges me to
extend them still further, and to hold that the end of a net—
to which the ship is not necessarily always attached,
because she leaves it from time to time—a mile away from
the ship is a part of the ship, or that a collision with the end
of that net is a collision with the ship. It may be that the
principle upon which those cases were decided (whatever it
may be) ought to be held to extend the meaning of the
words used in the judgments to the circumstances of the
present case, but I am unable to see anything which com
pels me to so hold, and such an extension must be made by
the Court of Appeal if it is to be made.
He found there was no collision within the
meaning of the clause.
I do not think that the distinctions made on
the facts by counsel for the plaintiffs, that is,
the net in the Bennett case was not always
attached to the ship, the net was a mile long and
the collision occurred with the seaward end of
the net, are sound distinctions.
I respectfully agree with the reasoning of
Pickford J. and hold in this case there was no
"collision between vessels" within the meaning
of Rule 1013.
I therefore order that preliminary acts are
inappropriate to this action and should not be
filed.
I further order that particulars of negligence
be furnished to the defendants by July 20,
1972, and that the time for filing the defence be
extended to August 3, 1972.
If there is any difficulty with these time
limits, liberty is given to either side to apply.
The defendants are entitled to their costs of
this motion in any event of the cause.
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.