Ex. C.R. EXCHEQUER COURT OF CANADA 209 ON APPEAL FROM THE NOVA SCOTIA ADMIRALTY DISTRICT 1925 BET W LEN :— Oct. 14. WENTWORTH N. MACDONALD (PLAIN- APPELLANT ; TIFF) AND THE ATLANTIC SALVAGE CO. LTD RESPONDENTS. ET AL (DEFENDANTS) } Shipping and Seamen-Collision—Passing vessel—Rule 24—Damages— Negligence The L.E. had been aground on the northern entrance of the Strait of Canso and the C. having been successful in pulling her off shore was engaged in towing her at a distance of some three miles from shore, when the plaintiff's tug, the A. came to assist in the operations. The A. passed the C. and her tow port to port some distance away; she then pursued a circuitous course and coming about on a parallel course with the tug and tow, placed herself in a direct line between them and stopped, when she was struck on the stern by the tow and damaged so that she subsequently sank. Both the tug and tow were displaying all proper lights indicating they were under way. Held (affirming the judgment of the Local Judge in Admiralty for the Nova Scotia Admiralty District) that the A. was an overtaking vessel and was bound, under the Rules, to keep clear of the overtaken vessel, and that the collision was entirely due to ber blundering and unseamasllike conduct in misconceiving instead of properly appreciating the dangerous position into which she had wrongly placed herself. (1) [1923] Ex. C.R. 56. 9814-2a
210 EXCHEQUER COURT OF CANADA [1925] 1925 APPEAL from the judgment of the Local Judge in Ad- MACDONALD miralty for the Nova Scotia Admiralty District (1). Tv. Halifax, 17th September, 1925. ATLANTIC Appeal now heard before the Honourable Mr. Justice SA o L ., V L AG rE Co., LTD. Audette. C. J. Burchell K.C. for the appellant. W. C. Macdonald K.C. for the respondents. The facts are stated in the reasons for judgment. AUDETTE J., now this 14th September, 1924, delivered judgment. I have read with great satisfaction the succinct but convincing reasons for judgment of the learned trial judge and (1) The following are the reasons for judgment of Mellish L.J.A.: (December 30, 1924.) This is (they were not admitted) that the an action for damages from tow must be held in some measure collision. The SS. Lake Elms- at least responsible for the accident. dale had been ashore at the I cannot come to that conclusion. northern entrance to the Strait of Neither of the other ships had I Canso, near Cape Jack on the think any reason to suspect that western side. The SS. Canadienne the Alert would do what she did, had been successful in pulling her viz: stop in front of the tow, and off shore and was engaged in tow- I cannot find either of defendants ing her off, when the plaintiff's tug guilty of negligence under the cir-boat, the Alert came presumably cumstances. The accident occurred to assist the operation. The Alert near midnight. And even if the came north out of the Strait and Alert had been watched by the passed La Canadienne and her tow other ships in the closest and port to port some distance away. minutest way I am not at all satis-The Alert then came about on a fled that anything would have been parallel course with the tug and her discovered which would have made tow and placing herself in a direct it the reasonable duty of either of line between them stopped, when the other vessels to have avoided she was struck on the stern by or minimized the accident, or that the tow and damaged so that she they would then on such discovery subsequently sank. The tow was have had the power to do so. And then proceeding very slowly and it is to be remembered that " it is the Alert if alive, as she should ,not in the " mouth of those who have been, to the situation would ,have created the danger of the have had no difficulty in keeping situation to be " minutely critical clear of the tow. The Alert, how- of the conduct of those whom they ever, had not paid proper atten- have, by their own fault involved ,tion to the lights of the other tug in the danger." U.S. Shipping and her tow but wrongly con- Board v. Laird Line Ltd. (93 L.J. eluded that the Lake Elmsdale was P.C. 123.) still fast on the ground. In my opinion therefore the It is contended on behalf of the plaintiff's action must be dis Alert that notwithstanding these missed with costs. facts and even admitting them
Ex. C.R. EXCHEQUER COURT OF CANADA 211 I have much pleasure in concurring in every word he says 1925 in his determination of the case. MACDONALD v. The facts of the case are indeed so clear that it appears THE to me quite obvious that there is no excuse or justification ATLANTIC SALVAGE on behalf of the plaintiff's ship (The Alert) for placing Co., LTD, herself in the position of peril which she did. Indeed, she Audette J. left port under instruction to assist the tug in floating the Elmsdale which was aground on the shore; but when she arrived or met at about 10.30 hrs. p.m., the Elmsdale, which had been pulled off the shore at about 4.45 hrs., was being towed and the tug and the tow were three miles away from the shore with all nautical display from their lights indicating they were under way. After the Alert passed them port to port she circuited around, steamed in the same direction in a parallel course at a speed of about 22 miles through the water, when she suddenly starboarded her helm, proceeded ahead and placed herself between the tug and the tow which were travelling at about 12 miles through the water. The Alert then stopped her engines and thereby inevitably collided with the bow of the tow. She was also, under Rule 24, an overtaking vessel manoeuvring ahead on a parallel course, and she should therefore have kept clear of the overtaken vessel. The Elmsdale was not under power, she had stripped off all the blades of her propeller on a big bolder when she had grounded. Counsel at bar on behalf of the appellant contended that the tow should have noticed when the Alert had stopped her engine and she should have steered clear of her. A doubtful manoeuvre, indeed, under the circumstances. Inman v. Reck (1). Moreover, the bow of the tow was about 30 feet above the water line and obstructed the view below. Why did not the Alert herself notice that the engine of the tug was all the time going? Why did she not govern herself accordingly? The Alert had no excuse to place herself in such an unusually dangerous position and, as was held in The Cape Breton (2) if a steamer is following a course which may possibly appear unusual to other steamers, even when jus- (1) [1868] L.R. 2 P.C. 25, at p. (2) [1904] 9 Ex. C.R. 67 at 116; 34. 36 S.C.R. 564 at 579; [1907] A.C. 112. 9814-27îa
212 EXCHEQUER COURT OF CANADA [1925] 1925 tilled by special reasons (and there were none here) she MACDONALD does so at her own risk and peril and ought to signal her v. intention, for the others have the right to assume that she T ATLANTIC will conform her course to the ordinary rules. See also The SALVAGE CO., LTD. Lancashire (1) . Having manoeuvred in such reckless posi-Audette J. tion she had at her own risk and with proper signals to right herself back into the fairway. The Glengarif, (2). It is quite obvious that the collision was caused by the blundering navigation and unseamanlike conduct of the Alert, the appellant vessel, in misconceiving, instead of promptly appreciating, the dangerous position into which she had placed herself,—notwithstanding the proper lights which were displayed by both the tug and the tow indicating clearly they were under way,—and in not taking the proper steps to avoid the collision, such as sheering off sufficiently or otherwise as circumstances required, instead of persisting in her unseamanlike conduct which eventually brought her in collision with the respondent's vessel. The appeal is accordingly dismissed with costs. Judgment accordingly.
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