Ex. C.R. EXCHEQUER COURT OF CANADA 211 BETWEEN : 1953 Nov. 16, 17 CANADA STEAMSHIP LINES 1 APPELLANT ; 1954 LIMITED } Mar. 8 AND THE' SHIP MARIA PAOLINA G 1 RESPONDENTS. AND HER OWNERS f Shipping—Collision—Excessive speed in dense fog—Narrow channels— Articles 16 and 25 of the International Rules—Course of another vessel within a danger zone not yet ascertained—Safety of navigation— Radar aid to navigation only—Common sense duty to avoid danger of collision—Excessive speed in fog being a statutory fault onus on vessel violating the rule to prove speed not the sole or a contributory cause of collision—Appeal from District Judge in Admiralty dismissed. On June 10, 1950, at about 5.28 p.m., the St. Lawrence, owned by the appellant, while in the entrance • of the Saguenay River and proceeding up to Tadoussac, came into collision, port to port, with the Maria Paolina G. which was proceeding down to the St. Lawrence River. There was a dense fog at the time and an ebb tide running in a westerly direction with a force of about 1.5 to 4 knots. Alleging that the Maria Paolina G. was on the wrong side of the fairway and that this was the cause of the collision, appellant took an action for its damages resulting from the collision. The action was dismissed by the District Judge in Admiralty for the Quebec Admiralty District. - On appeal the Court found that the St. Lawrence was at fault by
212 EXCHEQUER COURT OF. CANADA [1954] 1954 proceeding at an excessive speed at the time of the collision and that the Maria Paolina G. was on her right side of the fairway and com-CANADA STEAMSHIP, witted no fault. LINES Held: That it is a general rule of navigation when in"fog that a vessel LIMITEDhearing a fog signal apparently forward of her beam should slow v. THE SHIP down her engines and navigate cautiously until the course of the other Maria vessel within the danger zone has been ascertained. The contention Paolina G that it was impossible because of the danger to the passengers, crew AND HER and vessel and would not have been good seamanship is unsound. OWNERS The Campania (1899-1904) 9 Aspinall's Rep. 151 referred to. 2. That radar is an aid to navigation and does not override the principles of article 16 of the International Rules. Puget Sound Navigation Co. v. The Ship Dagmar Salem [19501 Ex. C.R. 284 referred to and followed. 3. That in a dense fog and knowing the difficulties of navigation on the Saguenay River, one would, as an ordinary prudent person, stop until the direction of the approaching vessel was ascertained and there remain until the danger which might arise had passed. The Oceanic (1899-1904) 9 Aspinall's Rep. 378 referred to and followed. 4. That excessive speed in fog being a statutory fault, a vessel violating this rule has to prove that her speed was not the sole or a contributory cause of the collision. APPEAL from the judgment of the District Judge in Admiralty for the Quebec Admiralty District. The appeal was heard before the Honourable Mr. Justice Fournier at -Montreal. R. C. Holden, Q.C. for appellant. Lucien Beauregard, Q.C. for respondents. The facts and questions of law raised are stated in the reasons for judgment. FOURNIER J. now (March 8, 1954) delivered the following judgment: This is an appeal from the judgment of the District Judge in Admiralty for the Quebec Admiralty District, whereby in an action for damages arising out of a collision between the ss. St. Lawrence, owned by the appellant, and the ss. Maria Paolina G, owned by the defendants, he dismissed the plaintiff's action and maintained the defendant's cross-action. The facts of the collision in •dispute are hereinafter summarized. The St. Lawrence is a steel twin screw passenger steamship, 329.8 feet in length, 68.1 feet in beam, of 6,828 gross tons, engaged in a regular service between Montreal
Ex. C.R. EXCHEQUER COURT OF CANADA 213 and Bagotville. Her full speed was 14 knots, her half speed 1954 7 or 8 knots and her slow speed 3 or 4 knots. The Maria CANADA Paolina G is a steel single screw steamship, 416 feet in , HIP NÉ length, 56.102 feet in beam, of 7,166 gross tons, registered LIMITED at the port of Genova and engaged in the carrier trade. THE SHIP Her full speed was 102 knots, her half speed 8 knots and palLraiaG her slow speed 5 knots. AND HER OWNERS The former was in the entrance of the Saguenay River — proceeding up river from Prince Shoal lightship No. 7 to Fournier J. the harbour of Tadoussac and the latter was proceeding down river from Port Alfred to the St. Lawrence River. The critical time runs from 5.13 p.m. (Eastern Daylight Saving Time) on June 10, 1950. At that moment the St. Lawrence was abeam the lightship and about 1,000 feet off. She was fitted with triple expansion engines of 4,500 h.p. nominal and equipped with a radar detector screen. There was little or no wind but there was a dense fog and the tide was ebb of a force of about 1.5 to 4 knots. She was making about 14 knots through the water with an ebb tide that may have brought her speed down to approximately 12 knots over land. Her engines were on stand by and she was sounding fog signals regularly at intervals of less than two minutes. After rounding the lightship she steered a course of 298° magnetic for about one minute and then put on a course of 300° magnetic. All her courses are magnetic. Her witnesses estimate that she proceeded on that course for about 8 minutes. She received a radio telephone message from Pointe Noire warning that a large vessel was downward bound and sounding fog signals infrequently and then her course was altered to 305° for three or four minutes. While on that course, the chief officer, who was at the radar, reported that he saw the other vessel nearing the course line of the St. Lawrence. Then another alteration of the course to 310° was made for two minutes and a third alteration to 315° some short time before the collision. The times on these different courses are estimates. As to her speed, she proceeded at full speed till her course was 310°, then reduced to half speed and again reduced to slow speed when on the 315° course. After the collision she continued on course 300° to Tadoussac harbour at full speed.
214 EXCHEQUER COURT OF CANADA [1954] 1954 The Maria Paolina G was proceeding downward on the CANADA Saguenay when at 5.20 p.m., approaching Pointe Noire, the STLINESIP weather became misty. The order "stand by" was given LIMITED on the engines and a lookout was sent forward. Fog signals THE SNIP of one prolonged blast were given regularly at intervals of Pa ! o M lin a a r G ia less than two minutes. The radar was not working prop- AND HER erly though it had been repaired a short time previous. At OWNERS 5.25 Pointe Noire Lower Range Light was abeam and the Fournier J. distance off shore was between 200 and 1,000 feet. Her course was set at 97° true. The fog became dense and her engines were ordered slow. At practically the same moment a long blast was heard forward and her engines were stopped and the vessel navigated with caution. When the lookout shouted that there was a ship ahead, seven or eight minutes later, her engines were put full speed astern and the helm ordered hard astarboard. She was struck by the St. Lawrence on her port bow while she was practically still in- the water. Two questions are to be determined. First, did the Maria Paolina G come across to her port side of the narrow channel contrary to article 25 of the International Rules of the Road relating to navigation in narrow channels? This article reads as follows: 25. In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel. Second, did the St. Lawrence contravene article 16 of the International Rules which enacts: 16. Every vessel shall, in a fog, mist, falling snow or heavy rain storms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall so far as the circumstances of .the case admit, stop her engines and then navigate with caution until danger of collision is over. To establish the fact that the Maria Paolina G was on her wrong side of the fairway at the time of the collision, three groups of persons were brought forward as witnesses, namely, members of the personnel of the St. Lawrence, two passengers travelling on the Maria Paolina G and persons who heard the noise of the collision from or close to shore or who from the shore saw the Maria Paolina G after the fog lifted.
Ex. C.R. EXCHEQUER COURT OF CANADA 215 The evidence of the captain, the chief officer and the 1954 pilot is to the effect that after passing Prince Shoal Light-CANADA ship No. 7 the course of the St. Lawrence was changed four STEAMSHIP LINES times from 5.13 to 5.27. The reason given for changing LIMITED V. from 298° to 300° was to take the course she ordinarily THE SHIP followed at ebb tide going up to Tadoussac. Three other Maria Paolina G alterations were made in the course to try to keep clear of AND HER the oncoming vessel, whose direction seemed on the radar OWNERS screen to close in on the course of the St. Lawrence. Fournier J. The times of the different courses being estimates, it is quite difficult to pin-point the exact spot or location where the collision occurred. No record was kept of the times and of the different alterations of courses. Furthermore the effect of ebb tide on the two vessels is a matter of conjecture and the evidence on that point is far from conclusive. My assessors tell me that at the time of the collision, the water being low the current and tide had little effect on the vessels. The direction of the ebb tide and current was east-west and would not alter their courses to any appreciable degree. After the collision, no bearings or soundings were taken; she proceeded at full speed in a dense fog on course 300° to the harbour of Tadoussac. There is no evidence that the radar apparatus was used after the collision. It seems to me that the conclusions arrived at' by the officers of the • ss. St. Lawrence as to the place of the collision are based on estimates as to speed, times and courses (magnetic). One fact seems positive and not contradicted: the course 'followed by the Maria Paolina G from a point close to Pointe Noire was 97° true and no alteration to this 'course was made from there on to the place of the collision. When the Maria Paolina G was 'first seen on the radar screen on the port bow of the St. Lawrence she was at a distance of two miles, the latter being then between buoys 95B and 94B and on a course of 300°. The Maria Paolina G had h'er engines slow at the time and the St. Lawrence was proceeding at full speed.. The time lapse from the moment the Maria Paolina G was seen and the time of the 'collision was seven or eight minutes. How the two vessels covered this distance is important.
216 EXCHEQUER COURT OF CANADA [1954] 1954 The St. Lawrence, for three or four minutes, was at full CANADA speed, till her course was changed to 310°, then at half STEAMSHIP LINES speed for two minutes or so and for the remaining time LIMITED before the collision her engines had been ordered at low THE S nip speed. Fog sounds were heard a few times by both yes-Maria Paolina G s els. In my mind she was proceeding fast at the moment AND HER of the impact. During all this time and up to the moment OWNERS the chief officer lost sight of the Maria Paolina G, she was Fournier J. seen on the radar screen on the port side of the St. Law-rence. The Maria Paolina G during the same time had her engines stopped and was moving with the tide and current on her course of 97° true. As to the other witnesses (Black and McCall) who were passengers on the Maria Paolina G, I have read their evidence carefully. They speak of what they saw two hours after the collision when the Maria Paolina G was laying at anchor at the end of 800 feet of chain and their evidence was given a year after the event. They give an estimate of the distance from the Maria Paolina G to certain rocks on the shore and they say that she was not in mid-channel but close to the shore. At the time of the collision her anchor was dropped and approximately 800 feet of her chain came out. Her length is over 450 feet and she swung around owing to the tide and current. If the collision had taken place where the plaintiff's witnesses contend, I am convinced that she would have grounded. I have given a lot of thought to their testimony without being able to convince myself that I should give it more weight than to the evidence of the witnesses called on behalf of the Maria Paolina G who claim that she was on her right side of the fairway. As to the witnesses that were on shore or in small craft and heard the. noise of the collision, they certainly could not judge the position of the vessels at the moment of the impact. Very little reliance can be placed on their evidence on account of the vagaries of sounds in fog. The others saw the Maria Paolina G after the fog lifted, at a distance of more than two miles. Their evidence in my mind should not carry very much weight, it being most difficult to establish the location of a body at that distance.
Ex. C.R. EXCHEQUER COURT OF CANADA 217 My assessors, basing their opinion on the evidence of the 1954 plaintiff's witnesses, who said that all her courses were CANADA magnetic, conclude that her course was on her wrong side STL eHZP of the channel. On the other hand, the course 97° true LIMITED followed by the Maria Paolina G would have kept her on THE SHIP her right side of the fairway even taking into consideration Mamma Paolina G the effect of the ebb tide and current on her course. I AND HER agree with these conclusions. o WNEEs Fournier J. As to the second question—Did the St. Lawrence contravene article 16 of the International Rules relating to navigation in a thick fog? The evidence is to the effect that the St. Lawrence approached the entrance of the Saguenay River at full speed and in a dense fog. She proceeded at full speed, though the lookout heard and reported a fog signal ahead, until the other vessel was seen on her radar screen at a distance of two miles. Then her engines were ordered half speed and then slow shortly before the collision. The Maria Paolina G was lost sight of on the radar screen when she was at about one half mile distant. According to the pilot's evidence, at that moment he was and had been for some time fearful of a collision because he could not ascertain the position of the Maria Paolina G. He was listening for a fog sound so as to locate her course and position. That is when he changed the St. Lawrence's 'course to 315°. A few moments afterwards the Maria Paolina G was seen by the lookout at a distance of approximately 100 feet and the collision occurred. According to the engine- room log, the order "slow" was given at 5.27 and opposite this entry, on the same line, is written the word "collision". I agree with the learned trial judge that the collision took place about one minute after the order slow. It would seem to me that the two vessels were nearly on the same course and that the collision of port to port would indicate that the Maria Paolina G, on hearing a fog signal right ahead, ordered her engines full speed astern and hard astarboard. Proceeding at full speed in a thick fog, having heard a fog sound ahead without knowing exactly the course followed by the Maria Paolina G, even apprehensive of• a collision after having lost the downbound vessel on her radar screen, was not in my mind good seamanship. I have 87575-5a
218 EXCHEQUER COURT OF CANADA [1954] 1954 the impression that they relied on their knowledge of the CANADA Saguenay River and proceeded on their journey as if there STEAMSHIP LINES were no fog. Even after the collision they continued on LIMITED their regular course without stopping or taking soundings V. THE SHIP or bearings or inquiring about the other ship. I believe Maria Paolina G they were negligent and careless by proceeding at full speed AND HER under the circumstances. OWNERS On the other hand, the Maria Paolina G at about 5.20 Fournier J. sent a lookout forward. A "stand by" order was given and fog signals were given at regular intervals because the weather was becoming misty. At Pointe Noire her course was set at 97° true and was not thereafter altered. At 5.27 her engines were ordered slow and immediately after stop, upon hearing a fog signal ahead. When her lookout reported a vessel ahead the engines were ordered full speed astern and the helmsman received the order hard astarboard. It is a general rule of navigation that in fog, when by one vessel the course of another within a danger zone is not yet ascertained, and hearing a fog signal apparently forward of her beam, she should slow down her engines. I believe that under the circumstances the moment the fog signal ahead was heard she should have slowed down her engines and navigated cautiously. The answer that it was impossible because of the danger to the passengers, crew and vessel and would not have been good seamanship is not a valid one. Those in charge knew this route well. If it was as dangerous as described they should have slowed or stopped when they were advised that a large vessel was downbound. Another vessel which came into the river a short time later stopped and awaited the lifting of the fog before proceeding. If the channel was not dangerous they could have stopped at any time and resumed their journey after satisfying themselves that no danger existed. This point is dealt with in the case of The Campania (1), where Barnes J. says (p. 154) : The 16th article is imperative, and I believe it would be most dangerous, having regard to the traffic to be met with everywhere, especially near to the coasts, in crowded waters, if this contention were to be upheld. It is based on the supposed necessity of the Campania to keep the speed at which she was going for the safety of her own navigation. But I am advised that this basis is unsound. (1) (1899-1904) 9 Aspinall's Rep., 151.
Ex. C.R. EXCHEQUER COURT OF CANADA 219 The fog was so dense that vessels could only be seen at 1954 100 or 200 feet. Actually they were seen •by each other at CANADA about those distances. True the St. Lawrence had the help STEAMSHIP. LINES of her radar, 'but radar is an aid to navigation an.d does not LIMITED V. override the principles of article 16. THE SHIP, Maria In Puget Sound Navigation Co. v. The Ship "Dagmar Paolina G Salem" (1) it was held: AND HER OWNERS That radar is an aid to navigation only and does not override the general principes applicable to navigation in fog, the first of which is Fournier J. moderate speed and the second, great care. I am not convinced that the radar apparatus was properly used. It is known that objects are lost sight of on the screen at quite a distance, as it happened in this instance. Knowing that fact, it would seem that good seamanship indicated that in those circumstances they should not have relied on the fact that they had those facilities to justify them of proceeding in thick fog at an excessive speed and not stopping her engines when the fog signal of the other vessel was heard. Though there may be some doubt as to the . application to this case of the "Regulations for the River St. Lawrence from Father Point to Victoria Bridge at Montreal", I am of the view that it is a good directive to those navigating the Saguenay River. It reads: 12. All vessels navigating against the current, or tide on each occasion, before •meeting another vessel at sharp turns, narrow passages, or where the navigation is intricate, shall stop, then, if necessary, come to a position of safety below or above the point of danger, and there remain until the channel is clear. It would seem that in a dense fog and knowing the difficulties of the navigation on the Saguenay River, one would as an ordinary prudent person conform to such wise counsel. This is what past decisions in similar cases would indicate. In re "The Oceanic" (2) the Lord Chancellor (Halsbury) at p. 380 says: . Now the rule appears to me to be a very intelligible and common sense one to avoid danger to vessels in the navigation of the seas and the question what is or is not a moderate speed in a fog must depend in a great measure whether the fog is slight or dense, and whether there is an opportunity of seeing the near approach of a ship so as to know what can be done or ought to be done by nautical skill to (1) [19501 Ex. CR., 284. (2) (1899-1904) Aspinall's Rep., 378. 87575-5ia
220 EXCHEQUER COURT OF CANADA [1954] 1954 avoid collision. Apart from any rule, one would think that where it was known that two bodies were approaching, and that there was no absolute CANADA STEAMSHIP means of knowing the direction in which they were coming and the LINES danger which was to be avoided, the common sense thing would be to LIMITED stop until the direction was ascertained, and also whether it was possible V. to avoid the serious danger which might arise .. . THE SHIP Maria Excessive speed in fog being a statutory fault, a vessel Paolina G AND HER violating this rule has to prove that her speed was not the OWNERS or one of the causes of the collision. Fournier J. In Griffin on Collision, pp. 312 et seq., it is stated: Since the obligation to go at moderate speed in fog is statutory, a vessel violating the rule has the burden of showing that her speed could not have contributed to the collision,—a burden which can rarely be sustained. Very little was said 'by the plaintiff concerning the speed of the S.S. St. Lawrence and no serious explanation is given of this way of proceeding in dangerous waters and in a dense fog. The only attempt made by the plaintiff was to try to establish that the Maria Paolina G was on her wrong side of the channel and that this was the only cause of the collision. In my view she failed on that point. On the other hand, the evidence is to the effect that she proceeded at full speed up to a minute or so before the impact. Even if her engines were ordered at half speed and then at low speed, her speed was reduced gradually and it is my opinion that she was going at an excessive speed at the time of the collision. It seems to me that the St. Lawrence did not know the position of the Maria Paolina G from the time she passed Prince Shoal Lightship No. 7 to the time of the collision. True, she had the help of a radar apparatus but she does not seem to have taken the bearings of the oncoming vessel. She saw it at all times on the port side but could not ascertain if both vessels could proceed without risk of collision. Her pilot admitted so much in his testimony. Her duty under the circumstances was to follow the dictates of article 16. In my view she failed to do so and those in charge were negligent in their seamanship. On the other hand I find that those in charge of the Maria Paolina G acted in conformity with the rules of good seamanship and committed no fault.
Ex. C.R. EXCHEQUER COURT OF CANADA 221 There is no doubt in my mind that had the ss. St. Law-1954 rence conformed to rule 16 the collision would have been CANADA avoided. In the circumstances I find that she was respon-STEAMSHIP LINES sible for the collision and the damages resulting therefrom. LIMITED v. Therefore the appeal is dismissed with costs. THE SHIP Maria Paolina Ç Judgment accordingly. AND HER OWNERS Fournier J. Reasons for judgment of Smith, tons and 4,312 tons net registered, D.J.A.:— 416 feet in length and 56.401 feet in This case relates to a collision beam equipped with triple expan-between the ss. St. Lawrence, owned Sion engines of 2,500 b.p. and man-by the plaintiff company, and the ned by a crew of 35 all told and ss. Maria Paolina G. which occurred owned by Sicieta 'Gestioni Esercizio in dense fog on the 10th of June G.E.N. Full speed for the Maria 1950, at approximately 5.30 p.m. Paolina G. was 10 or 10i knots; (Eastern Daylight Saving Time) in half speed 7 or 8 knots. the entrance to the Saguenay River. The case for the plaintiff is that (Plaintiff's Preliminary Act fixes the as. St. Lawrence in the course the time of the collision at about of a regular voyage from Montreal 529, while according to the de- to Bagotville via Tadoussac was in fendant's Preliminary Act it took the entrance of the Saguenay River place at 5.35 or 5.36). proceeding on her usual course from In the .plaintiff's Preliminary Act Prince Shoal Lightship No. 7 to the collision is stated to have the Harbour of Tadoussac. There occurred on the North side of the was little or no wind but the channel in the vicinity of Red Can weather was foggy and the tide was Buoy 94.1B, whereas according to ebb of a force of about 4 to 5 knots. the defendants' Preliminary Act it The engines of the as. St. Lawrence took place at a point South Easterly were on stand by and she was from Pointe Noire at a distance of sounding fog signals regularly at 1 and 14 miles from Pointe Noire, intervals of less than two minutes, whose approximate bearing was 271° a good lookout being kept. true. It is alleged that in these circum- stances, the ss. St. Lawrence o'b- The ss. St. Lawrence is a steel served in the radar a downbound twin screw passenger steamship of vessel which dater proved to be the thePort of Montreal of 6,328 tons Maria Paolina G. distant about two gross and 3,650 tons net registered, miles and bearing a little on the 329.8 feet in length and 68.1 feet port bow. The course of the es. in beam fitted with triple expansion St. Lawrence was thereupon altered engines of 4,500 'h.p. nominal and 5° to starboard to take her further manned 'by a crew of 195 all told. to her right side of the channel. At the time of the collision she Subsequently, the course of the ss. was carrying 400 passengers. Full St. Lawrence was twice altered an speed for the ss. St. Lawrence (128 additional 5° to starboard and she revolutions) was 14 knots; half was taken as close to her right side speed (63 revolutions) 7 or 8 knots, of the channel as it was possible for slow 3 or 4 knots. her to go and her engines were The Maria Paolina G, is a steel reduced to slow speed but the single crew steamship registered at Maria Paolina G. improperly came the Port of Genova of 7,166 gross across to the north side of the chan-
222 EXCHEQUER COURT OF CANADA [1954] 1954 nel and with her stem and port` of the Maria Paolina G. with her bow struck the port side of the own port side, the Maria Paolina G. S T C EA A M N S A H D IP A ss. St. Lawrence causing serious being then stopped in the water. LINES damage. Although other faults were alleged LIMITED On the other hand the case for against the defendants, the one THE v S . HIP the Maria Paolina, G. is that she upon which the plaintiff appeared to Maria was in the Saguenay River, with a rely and the only one which any Paolina G licenced pilot on board, in the seriousattempt was made to prove, AND HER course of a voyage from Port Alfred was that of having contravened OWNERS bound for Lisbon and Mediter- Rule 25. Smith D.J.A. ranean Ports with a general cargo Some attempt was made, it is of 9,964 tons, her draft being 27.07 true, to establish that the Maria feet forward and 28.03 feet aft, Paolina G. failed to give the regu- fresh water. At about 520 p.m. latim fog signals. The evidence while the Maria Paolina G. was of her own officers, however, is that approaching Pointe Noire the from the time she entered the fog weather became misty and although bank, almost immediately after visibility was still comparatively passing Pointe Noire, until the good, the Order "Stand , Bÿ" was time of the collision, fog signals given on the engines and a lookout were given at regular intervals of was sent forward and fog signals, of less than two minutes. It is true one prolonged blast were thereafter that several witnesses heard on given regularly at intervals of less behalf of the plaintiff testified than two minutes and a sharp look- respectively to having heard only out kept. The radar was ordered one, two, three and four fog signals into operation, but was reported from the Maria Paolina G. The not to be working properly. In evidence on this point has 'however fact, the screen •became blank and bee n carefully considered, and I am remained so, although the radar had satisfied • that the proof does not been repaired before the vessel left justify the conclusion that the de- Montreal. At 1725 Pointe Noire fendant vessel failed to comply Lower Range Light was abeam and with the rule as 'to fog signals. the distance off shore was approxi- That the Maria Paolina G. gave mately 200 feet: At this moment some fog signals is admitted by the the course of the vessel was set at plaintiff's own witnesses. The evi- Maria 95° by gyro compass to make 97° dence of those on board the Paolina G. is that they were given true, there being an error in the regularly and at intervals of one gyro compass of 2° low. It is minute. The vagaries which char- alleged that shortly afterwards the acterize the carriage of sound over fog became dense and the engines water and particularly in heavy fog were ordered to slow; at the same are well known and moreover were time a prolonged blast was heard testified to, and there is also—the forward' of the beam, whereupon the possibility that some of her fog sig-engines of the Maria Paolina G. nals synchronized with some given were stopped and the vessel nav- by the ss. St. Lawrence. The posi-gated with caution. About eight tive evidence of those in charge of the Maria Paolina G. that the statu minutes thereafter the look-out tory fog signals were given, cor-shouted there was a ship ahead and roborated by the testimony of the the engines were put full speed various witnesses heard on behalf astern and the helm ordered hard of the plaintiff to the effect that, at astarboard, but the ss. St. Lawrence least, some fog signals were heard was seen coming , forward at great from the Maria, Paolina G. must be speed and she struck the port bow accepted.
Ex. C.R. EXCHEQUER COURT OF CANADA 223 Moreover, even if the proof did or following the collision. The evi- 1954 establish the failure of the Maria dence is rather that no thought was' -̀ r Paolina G. to comply with the rule at the time given to the matter of ~ANAD.4 STEAMSHIP requiring fog signals at regular in- establishing the position of the col- LINES tervals, such failure would not have •lision, insofar as the ss. St. Lawrence LIMITED been a fault contributing to the is concerned. In fact, following-the v accident since it is admitted .that accident the ss. St. Lawrence pro- THE SHIP Maria the ss. St. Lawrence heard the first needed at full speed to the p i er at Paolina G fog signal of the Maria Paolina G. Tadoûssac. The record does • not AND HER while she was still at a distance of disclose any direct proof of the OWNERS two miles and thereafter the ss. St. statement of Captain Simard to thé Smith D.J.A. Lawrence was fully aware of her effect that the collision occurred at _ presence and followed her course the point marked on Exhibit P-10, superficially, at least, until she no and I . am 'completely in the dark as longer became visible in .the radar. to how this witness was able to The plaintiff's case can therefore be state that it 'did. properly 'said to rest upon the As to the plaintiff's attempt to allegation that the Maria Paolina G. establish that the ss. St. Lawrence contravened Rule 25 of the Inter- was -at all times on her side of the national Rules which reads as channel, plaintiff's position would follows: seem to be little better. Captain Article 25.—In narrow channels . Simard and the witness Savard, every steam vessel shall when it is who acted as pilot on the ss. St. safe and practicable, keep to that side of the fairway or mid-channel Lawrence, testified in detail as to which lies on ,the starboard side of the courses steered by the ss. St. such vessel. Lawrence after she rounded the The burden of proving this alle- Lightship and the respective times gation rested upon the plaintiff and during which she held to these var - it must first of all be determined ious courses. My assessors have whether it has been established that plotted the course of the ss. St. the Maria Paolina G. was on her Lawrence on the basis of the testi-wrong side of the channel when the mony of these witnesses, and I am collision occurred. advised that her said course would In an effort to discharge this have taken her slightly to her left burden the plaintiff: of the center of the channel and 10. Attempted to fix the point at that, on this course, it would have which the collision occurred a.-t a been impossible for her to be at or spot close to the north side; near the point which the plaintiff 2o. Sought to establish that the fixes as being the point where the ss. St. Lawrence was at all times on her right side of the channel; collision took place. 3o. Attempted to prove that after Finally, the plaintiff endeavoured the collision the Mario Paolina G. to establish that the -collision occur-was seen to be anchored close to red on the North side of the chan- t t h h e e n v o ic rt i h n i s t i y d e o f o f R t e h d e c C h a a n n n B e u l o in y n el bybringinga number of persons 94.B. who testified to having been on the The only direct evidence that the pier at Tadoussac and to having collision occurred at the point eon- seen the Maria Paolina G. upwards tended for by the Plaintiff and of an hour and a half 'after the col- marked on .the chart produced as lision when the fog had partially Exhibit P-10 is the testimony of lifted and while she was still at Captain Simard. - anchor.- The purport of this evi- There is however no proof that dence is that the Maria Paolina G. either bearings or soundings were appeared to be anchored North of taken by those on .board the ss. the center of the channel and in the St. Lawrence immediately prior to vicinity of Red Can Buoy 941 B.
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224 EXCHEQUER COURT OF CANADA [1954] 1954 The Court is satisfied, however, that more than 1,000 feet from rocks no great reliance can be placed which, it is claimed, were on the CANADA upon this evidence as proof of the North side of the channel. Here LINES pointat which the collision actually aag ain there was considerable uncer- LIMrrED occurred. These witnesses on the tainty and diversity in the testi- v pier at Tadoussac approximately mony of these witnesses as the dis- TH M E a r S ia H IP two miles distant from the said ves- tances testified to and moreover it Paolina G sel, the fog being only partially must again be borne in mind that AND HER lifted, were obviously not in the the Maria Paolina G. was at that OWNERS best position to determine exactly time riding at anchor with some Smith D.J.A.' how the vessels lay in relation to 800 feet of chain out and was prob-the center of the 'channel. The ably swinging towards the North Court is satisfied that looking at side of the center of the channel, the Maria Paolina G. at that dis- the tide not having yet turned. tance and from that angle, it would Moreover had the Maria Paolina G. have been almost impossible for come to anchor at the point where, these witnesses to determine according to the plaintiff the col-whether she was in the exact center lision occurred, with 800 feet of of the channel or 400 to 500 feet on chain out and had she been swing-either side of the center. More- ing to starboard, as the proof shows over, at the time the Maria she did for some time after com-Paolina G. was riding at anchor at ing to anchor, she would almost cer- the end of 800 feet of chain. tainly have gone ashore. Two fishermen who were in small So much for theattempt on the boats close to the North shore at part of the plaintiff to establish the time of the collision and dis- that the collision took place to the tant respectively and 4 of a mile North of the center of the channel from Red Can Buoy 94i B, testified and that it was caused by de-to having heard the collision. They, fendants' breach of Rule 25. of course, saw nothing. While these' On the other hand, there is posi- witnesses expressed the opinion that tive evidence that the Maria the collision took place near the Paolina G. was not on the wrong North side of the channel, their side of the channel. The testimony testimony on this point must also of those in charge of her navigation be considered with caution. The is that she passed Pointe Noire at fact that it is most difficult to judge a distance of approximately 200 feet of distance travelled by sound over and set a course of 97° true. The water, particularly in .a fog, is com- light-keeper at Pointe Noire esti- mon knowledge. mated that the vessel was nearer The channel at the point where mid-channel or approximately 1,000 these witnesses were is a little over feet off shore as she passed the 3,000 feet wide and I am convinced point. that they, under the conditions then In any event the testimony of prevailing, could not be relied upon the officers of the Maria Paolina G. to calculate with any degree of is that she kept on a course of 97° accuracy whether the collision true from the time she . passed occurred 1,000 or 1,500 distant from Pointe Noire to the moment of the the North side of the channel. collision, and the assessors advise The plaintiff also called as wit- me that on this bearing whether the nesses two persons who were pas- sengers on the Maria Paolina G. point of departure is taken as being Messrs. Black and McCall. These 200 or 1,000 feet from Point Noire young men testified that after the the vessel would have been to her fog had lifted and while the vessel right of the center of the channel was still anchored, she was not throughout its entire length.
Ex. C.R. EXCHEQUER COURT OF CANADA 225 Moreover, the proof, which on at the moment when said bearings 1954 this point is uncontradicted, is that were taken the tide had not yet at the moment of the impact the changed and the Maria Paolina G. CANADA MSHIP port anchor of the Maria Paolina G. was still heading towards Pointe LES was dislodged or broke loose and Noire. LIMITED went to the bottom with the result In the view which I take the V. that the vessel was brought upat THE S g plaintiff has failed to establish that Marlia the end of some 800 feet of chain the Maria Paolina G. was at any Paolina G and continued to ride at anchor time prior to the collision on the AND HER for approximately one hour and a wrong side of the channel. On the OwNEas half until the fog had sufficiently contrary, I find that the collision Smith •DJA. lifted to permit her to proceed. occurred close to the center of the It was doubtless the noise of the said channel and near the point anchor chain running out which was indicated on Exhibit D-6. It is described by the witness Hovington, approximately at this point that one of the fishermen above referred the course 97° which was being to. steered by the Maria Paolina G. There is furthermore the evidence meets the course on which, according of those in charge of the Maria to the evidence of Captain Simard, Paolina G. (and there is nothing to the ss. St. Lawrence was being discredit this testimony) that after steered. the fog had lifted and before the The • proof establishes that on anchor was hove up bearings were reaching the fog bank just after taken by which the position of the passing Pointe Noire, the engines Maria Paolina G. was established of the Maria Paolina G. were stop-as being that indicated by Captain ped and that they remained stopped Martinolli on the Chart Exhibit for a period of eight minutes and D-6. until the time the as. St. Lawrence It was argued on behalf of the was sighted when they were put plaintiff that the bearings taken by full astern. the Maria Paolina G. after the fog It appears that those in charge of had lifted tended to support the the Maria Paolina G. were fully plaintiff's contention that the col- aware of the danger of collision in lision occurred on the North side the dense fog and that they adopted of the channel because before the those measures which, in the cir-said bearings were taken, the Maria cumstances, were demanded by Paolina G. must have swung on the prudence and good seamanship as rising tide and been then riding at well as by the rules of navigation. the end of 800 feet of chain and Such is the advice of the assessors heading towards Tadoussac. This and with it I completely concur. is not the proof. According to the There was no other course of book of "Information concerning action which the Maria Paolina G. the River St. Lawrence Ship Chan- could have followed with safety. In nel" issued by the Department of view of the dangerous reefs to star-Transport for the year 1950, low board and the strong set of the water at Tadoussac on the evening current in that direction she could of June 10, 1950 came at 616 o'clock not have anchored. She stopped (D.S.T.) and the turn of the tide her engines and proceeded with the two hours later at 8.16 o'clock. The current holding her course of 97° proof is that bearings were taken by the Maria Paolina G. at 7.45 p.m. true. There is no proof that she The evidence is that the tide had came off this course. To the con-just commenced to change as the trary, there is the evidence of those anchor was heaved and Captain in charge of her navigation who Martinolli is definite in stating that continued to check her course and
226 EXCHEQUER COURT OF CANADA 1954 who say she did not. The proof fog signal was heard from this ves- indicates that the speed through ST C E A AM N S A HI D P A the water of the Maria Paolina G. Lawrence, LINES at the moment of the collision, mony of those navigating her, was LIMITED must have been low since otherwise about mid-channel between Buoys v. her anchor chain would almost cer- 94 B. and 95 B. (at the point marked TH M E ar i S a ale tainly have parted as soon as it X on Exhibit P-10). On hearing Paolina G caught and held. AND HER I accordingly conclude that the the course of the ss. OWNERS plaintiff has failed to establish that Smith D.J.A. that Maria Paolina G. was guilty of put 'her on course 305. She con-any fault or negligence contributing tinued on course 305 for two or to the collision. It remains to deal with the cross- action taken by the owners of the Maria Paolina G. charging the ss. St. Lawrence St. Lawrence, in particular, with the contravention of Art. 16 of the International Rule which reads as follows:— Art. 16—Every vessel shall, in a been on course 305 for a matter of fog, mist, falling snow, or heavy rain-storms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, appar- about two minutes when the mate ently forward of her beam, the fog reported that the vessel continued signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case s admit, stop 'her engines, and then navigate with caution until danger half speed; the time being 526 of collision is over. The proof is that the ss. St. Law- rence 'approached the entrance to the Saguenay River at full speed 5° to starboard which put her on and in a dense fog. According to her story she passed thereafter the mate reported that to her right of and about 1,000 feet both the other vessel and Red Can from Prince Shoal Lightship No. 7 Buoy 94-i B. which had been seen at 5.13 p.m., her engines being on "stand by" and steered a course at be visible in. the radar. At the 298° magnetic for about one minute same time the mate warned that after which her course was altered to. 300°. Shortly thereafter she received a radio-telephone message ss. from Pointe Noire warning that a slow and the collision appears to large vessel was downward bound have followed almost immediately. and was sounding fog signals infre-quently. had as to how long an interval there After the ss. St. Lawrence run for several minutes on course was between the time the order 300° the mate reported seeing a slow was given and the collision. boat in the radar slightly off the port 'bow and about 2 miles distant three minutes. According to the and well to the North side of the channel. About the same time a slow was given at 5.27 and opposite [1954] sel. At this moment the ss. St. according to the testi-the fog sig g n al of the other vessel St. Lawrence was altered 5° to starboard which three minutes when the mate re- ported that the other vessel was approaching the course of the ss. and was then about one mile distant. The course of the ss. St. Lawrence was thereupon altered another 5° to starboard to put her on course 310, she having about four minutes. The ss. St. Lawrence continued still at full speed on course 310 for to approach the course of the ss. S s t. . L S awrence. The engines of the t. Lawrence were then put at according to the engine room log. At the same time the course of the ss. St. Lawrence was altered another course 315 and almost immediately on the starboard bow, had ceased to the other vessel could not be far off. Upon this the engines of the St. Lawrence were ordered at The testimony is not satisfactory The estimates vary from one to. engine room log, however, the order
Ex. C.R. EXCHEQUER COURT OF CANADA this entry on the same line is writ-In. such circumstances, I have no ten the word "collision". Having doubt that those in. charge of the regard to the evidence as to the ss. speed at which the as. St. Lawrence gent in continuing at the speed and was going at the time of the col- in the manner they did in contra- LIMITED lision and to the entries in her vention of Article 16 which required engine room log, I accept the esti- them to navigate with caution if THE mate of one minute as beingthe not to stopand await the lifting approximate time which elapsed the fog. The conditions were surely AND HER between the signal for slow and the such as to bring her within the OWNERS collision. application of the well recognized The Maria Paolina G. was seen rule stated in Marsden's Collision for the first time by those on board at Sea. 9th Edit. page 347, as fol- the 'ss. St. Lawrence as she emerged lows:— "In a fog so dense that it from the fog at the distance of 75 is not possible for a ship to to 100 feet. Although some of the others in time to avoid them, she crew of the ss. St. Lawrence testi-is not justified in being under way fled that the Maria Paolina G. at all". appeared to come at the ss. St. Moreover there is rule .12 of the Lawrence at an angle of 30 to 40°, Regulations for the River St. I am satisfied that this is an error Lawrence from Father Point to which is understandable having Montreal which provides that: regard to the excitement of the 12.—All vessels navigating against moment and the fact that they had the current or tide on each occasion merely a glimpse of the Maria 'before meeting another vessel at sharp turns, narrow passages or Paolina G. • before the collision where the navigation is intricate, occurred. I find that just prior to shall stop, then if necessary, come the collision the vessels were to a position of safety below or approaching each other almost, if t a h b er not actually, head on. clear. While the evidence does not It was argued on behalf of the establish that the course of the plaintiff that this rule is without Maria Paolina G. was altered im- application, because the collision did mediately prior to the collision, I not take place in the St. Lawrence am inclined to 'believe that her- River. It is however unnecessary helm may have been put hard for the purposes of the recent case astarboard a matter of seconds to decide whether or not the col- before the ss. St. Lawrence was lision took place in the navigable actually sighted and this for the waters of St. Lawrence within the reason that there is evidence that meaning of the said regulations those on board the Maria Paolina G. since Counsel for plaintiff in their heard a fog signal ahead and very notes and 'authorities admit that close, just prior to sighting the the entrance to the Saguenay, at ss. St. Lawrence. least up to Buoy 94 B. on the I am, however, satisfied that the North side of the channel, does Maria Paolina G. had only started form part of the "navigable waters to swing to starboard when the col- of the River St. Lawrence lying lision took place and it was this between Victoria Bridge at Mon-light swing which accounts for the treal and Father Point". fact that the ss. St. Lawrence came It has already been noted that into only glancing contact with the prior to reaching Buoy 94 B. the curve of the port bow of the Maria ss. St. Lawrence Paolina G. with the fortunate result radio-telephone message warning that much greater and more disas- her that a large vessel was down trous loss or damage was averted. bound and had also heard the 227 1954 St. Lawrence were gravely negli- CANADA STEAMSHIP LINES V. M S a H nia I P g of Paolina G Smith D.J.A. see o e v r e e m th a e i n p o u i n n t t i l o t f h e d a c n h g an er n e a l n i d s had received a
228 EXCHEQUER COURT OF CANADA [1954] 1954 Maria Paolina's fog signal. The ss. This is the course which was adop- t/ St. Lawrence was at that time in ted by the Dominion Coal vessel ST C EA A M N S A HI D P A waters to which Rule extended and which entered the mouth of the LINES the nature of the channel and the River shortly after the ss. St. Law- LIMrrED conditions then prevailing made the v rule applicable. THE Marriia In this connection it is not out and by the dictates of prudence Paolina G of place to note that the ss. St. AND HER Lawrence was not carrying a OWNERS licenced pilot and that the plaintiff's circumstances were such as to re- SmithD.J.A. employee Savard, who was acting quire the ss. St. Lawrence as pilot, admitted at the hearing until such time as the fog had lifted, that he was completely ignorant she was guilty of grave fault in concerning Rule 12 as well as the proceeding at the speed she did. other regulations. It should also be noted that the the International Rules and by ss. St. Lawrence was being navi- ordinary prudence to first ascertain gated exclusively by her magnetic the position of the compass without reference to her and having done so to navigate gyro compass. In such circnm_ with extreme caution having regard stances, I have doubt as to the to the dense fog, the nature of the accuracy and reliability of much of 'channel, and the fact that she had the testimony of those who were warning of the approach of the in charge of the ss. St. Lawrence Maria Paolina G. as to the courses steered and the stances, I have no doubt that the positions testified to. It is common knowledge that the tamed" the position of the magnetic compass is subject to var-iation due to the influence of metal- could proceed without risk of collie objects in its vicinity and it is, lision within the meaning of at least, noteworthy that at the Article 16. time of the collision the ss. St. Lawrence had several automobiles 177: stowed on the freight deck immedi- ately below the navigating bridge vessel whose fog signal is heard by and there is no evidence that this another vessel may be "ascertained" was considered or that any attempt w was made to verify the correctness other vessel to be in such a position of the magnetic compass by check- that both vessels can proceed with-ing it with the gyro compass. In out risk of collision. An this connection it is noteworthy that, according to the chart, this is fog whistle was heard, the probable an area of magnetic disturbance. In any event, and regardless of probability of her crossing the fair- these considerations, there is no evidence to show that the ss. St. Lawrence, at the time she received the radio-telephone message warn- v. ing her that a large vessel was Ex. C.R. 507. down bound or even later when she heard the first fog signal of the to take reasonable steps to satisfy Maria Paolina G. would not have themselves that they could proceed stopped and come to a position of with safety but they ignored and safety below the point of danger. failed to act on clear notice of the rence, and it was the course which was made obligatory by Rule 12 and good seamanship. In any case whether or not the to stop She was required by Rule 16 of Maria Paolina G. In the circum-ss. St. Lawrence had not "ascer- Maria Paolina G. or established that she Nippon Yusen Kaisha [19351 A.C. In order that the position of a t i h th e i n v e th ss e e l m m e u a s n t i n b g e k o n f o A w r n ti c b l y e t 1 h 6 e , inference as to the vessel's position based upon the direction from which the course she is taking and the im- way in a fog is not an ascertain- ment justifying a disregard of the precautions enjoined by the Article. See also Rover Shipping Co. Ltd. The Ship Kaipaki et al [19481 Those in charge of the ss. St. Lawrence therefore not only failed
Ex. C.R. EXCHEQUER COURT OF CANADA 229 existence of risk of collision, a risk to that of the ss. St. Lawrence, and 1954 which Savard, who was acting as although at a given moment she `r pilot, admits hé realized for some ceased to be visible in the radar CA S N TE A AM D S A HI P time prior to sighting the Maria there is no proof that actual bear-LIN Es Paolina G. ings of the Maria Paolina G. were LIMITED Marden's Collisions at Sea, 9th taken and all that was done was to v Edit. page 351: alter her course 5° to starboard THE M S a H ria I P Risk of collision can, where tir-apparently on the chance that she Paolina G cumstances permit, be ascertained would thereby clear the Maria AND HER by watching the compass bearing of Paolina G. I find that this was a OWNERS an approaching vessel. If the bear- flagrant contravention of Rule 16 ing does not appreciable change, Smith D.J.A. such risk should be deemed to ex ist. and that it was the failure of the In this connection the following ss. St. Lawrence to comply with the excerpt from the testimony of requirements of this rule which Savard, who acted as pilot on the alone brought about the collision. ss. St. Lawrence is noteworthy: If the speed of the as. St. Lawrence D. Par conséquence, vous saviez had even been reduced to a speed parfaitement qu'il y avait un navire not exceeding that required to give qui descendait?—R. Oui, monsieur. her steerage way, it is probable D. Aviez-vous eu des moments that, with the Maria Paolina G. d'anxiété en aucun temps, avez- vous pensé qu'il pouvait y avoir proceeding slowly as she was, it danger d'abordage? —R. Non, je n'y would have been possible for the ai pas pensé. J'ai pensé qu'il pou.. vessels to avert the collision not-vait y avoir danger d'abordage withstanding the fact the visibility quand le bâtiment est venu assez proche. was almost zero. As it was, neither those in charge of the Maria D. Est-ce à dire quand vous Pavez vu?—R. Avant de le voir. Paolina G., who had acted with D. Vous avez cru qu'il y avait Prudence and good seamanship, nor danger dabordage. Qu'est-ce qui those navigating the ss. St. Lawrence vous a fait penser qu'il y avait were able to take any effective danger d'abordage? —R. Parce qu'on steps to avoid the collision because avait le rapport par le radar que le bâtiment ne changeait pas de of the excessive speed of the ss. position. Alors il fallait naviguer St. Lawrence, which I am satisfied en conséquence pour clairer le bâti- was from 8 to 10 knots, if not more, ment. C'est ce que j'ai fait. at the moment of the collision. In D. Savez-vous si on vous a rap- so finding I not only take into con -porté à un moment donné qu'on avait vue navire?— sideration the testimony of those perdu de le R. Oui, ils m'ont rapporté qu'on on board the Maria Paolina G. but l'avait perdu. also the fact that, according to her D. C'est à ce moment là que own engine room log, she continued vous avez cru qu'il pouvait y avoir at full speed up to within a minute danger d'abordage?—R. Là, j'ai cru qu'il y avait danger et j'ai crains of the collision. avant cela. From the testimony of Captain It appears therefore not only that Simard I derive the impression that the relative positions of the vessels those in charge of the se. St. Law-and the courses which they were rente were lulled into a false sense following indicated risk of collision, of security by the mere fact that but that although its risk was the vessel was equipped with radar. reali ss. S z t e . d L a b w y r t e h n o c s e e navigating the There is some evidence, however, to they took no reasonable steps to avert the indicate that the reliability and danger. Although the Maria Pao- usefulness of radar in such narrow lina G. was seen in the radar to be waters are subject to limitation. following a converging course which Moreover of what value is such was bringing her closer and closer equipment unless an efficient and
230 EXCHEQUER COURT OF CANADA 1954 intelligent use of it is made. Ref-erence to the following excerpt CANADA from the judgment rendered by the thick fog at a speed which, but for STEAMSHIP LINES Honourable Mr. Justice Pilcher in would have been highly excessive. LIMITED The- Southport, 82 L.L.L.R. 862 at v. page 871 would seem to be pert- THE SHIP inent: Maria Paolina G The point raised by Mr. Hay- suiting therefrom for the reason AND HER ward, namely, that a speed in fog that she failed to comply with the OWNERS which would in ordinary circum- requirements of Art. 16. stances be regarded as excessive Smith D.J.A. may still be a moderate speed under Art. 16 of the Regulations ings upon matters on which it was for a vessel fitted with radar, will, no doubt, have to be decided in some future case. The proposition seems to me to involve at least an assumption .that a vessel fitted with radar in fact makes proper use of the apparatus with which she is fitted. I am satisfied in the present case that those on board The Southport who were concerned with the radar apparatus made no proper use of Registrar to fix same. their instrument, and are conse- quently not entitled to rely upon the fact that they had facilities, of [1954] which they made no intelligent use, to excuse them for proceeding in the existence of such facilities, In the result I find the ss. St. Lawrence solely responsible for the said collision and the damages re- The assessors concur in all find- within their province to advise. There will therefore be judgment dismissing plaintiff's action and maintaining defendant's cross- action, the whole with costs and in the event that the parties fail to reach an agreement as to the amount of defendant's damages there will be a reference to the D.J.A. Montreal, 5th May 1952.
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.