Ex. C.R. EXCHEQUER COURT OF CANADA 109 ON APPEAL FROM THE TORONTO ADMIRALTY DISTRICT 1924 THE SHIP ROBERT L. FRYER DEFEND-1 1 A PPELLANT; April 8. ANT AND THE STEAMER WESTMOUNT A ND} AND1 RESPONDENTS. OWNERS (PLAINTIFFS) Shipping—Collision—Harbour—Narrow channels—Negligence. On the 17th November, a little after 5.40 p.m. a collision occurred between the W. and the F. in Port Arthur harbour, at the entrance to a slip, 1,100 feet long and 175 feet wide, which is narrowed on the south side of the entrance by 20 feet, due to a wreck. In the south wall of the slip there are two recesses, and in one was the said wreck and in the other the J. Another steamer, 48 feet beam, lay at the north wall (Government dock) 450 feet from its end. Directly outward, 2,400 feet, is a breakwater forming the harbour between it and the shore. From the harbour proper is a slip channel leading into the slip. The W. a steel steamer, 550 feet long and 58 feet beam lay on the south side of the slip, and when the F. a wooden steamer 280 feet long, was not more than 300 feet from the end of the north wall, to which she was destined, the W. began to back out, swinging stern first across the slip, with considerable speed, intending to work along the north wall. The F., unable to make her berth, signalled she was going to port, and in so attempting, the collision occurred. The visibility was low and the W's stern lights were out; she knew of the F's approach and gave no signal that she was to leave her dock. Held, (reversing the judgment appealed from) that no fault should be attributed to the F. for not pursuing her efforts to make her dock; nor because she had got in too far into the slip channel to make a passage to port; that the W. by failing to signal her intention to leave dock, by her speed in swinging across channel and her general manoeuvring was guilty of negligence, which was the proximate cause of the collision, and the W. was wholly to blame.
110 EXCHEQUER COURT OF CANADA [1924] 1924 APPEAL by steamer Robert L. Fryer from a judgment THE SHIP of the Local Judge in Admiralty of the Toronto Admiralty ROBERT L. FRYER District (1) declaring that both ships were equally to THE'SS. blame for the collision in question. WEST- February 1, 1924. MOUNT & OWNERS. Appeal now heard before the Honourable The President. The The owner of the Robert L. Fryer in person. President R. I. Towers, K.C. for the respondent. The facts are stated in the reasons of judgment. THE PRESIDENT, this 8th day of April, 1924, delivered judgment. This is an appeal asserted by the steamer Robert L. Fryer and owners from a judgment of Honourable Mr. Justice Hodgins, Local Judge in Admiralty, for the Toronto Admiralty District, given in an action for damages for collision brought against the steamer Robert L. Fryer, the appellant, by the steamer Westmount and owners, wherein it was pronounced that both ships were equally to blame for the collision. The appellant asks that it be declared that the steamer Westmount was alone to blame. The appeal was heard by me with two nautical assessors, Capt.' L. A. Demers, Wrecks Commissioner, and Capt. L. G. Dixon, Marine Superintendent of the Department of Marine and Fisheries. The slip so-called, or basin, wherein the collision occurred is located in the harbour of Port Arthur. With slight variations the slip is rectangular in shape. The southern side of the slip is known as the Davidson & Smith elevator dock, and is about 1,100 feet in length. The northern side or wall of the slip is known as the Government elevator dock, and is of the same length as the south side of the slip. The width of the slip is 175 feet, narrowed at one point near the entrance on the south side, by reason of the wrecked steamer Ritchie projecting into the slip about 20 feet, thus narrowing the slip at this point to about 155 feet, and near which the collision occurred. The steamer Jedd ` lay also on the south side of the slip, but further in, than the Ritchie, but apparently was not projected into the slip proper. The south wall of the slip is not straight through- (1) [1923] Ex. C.R. 161.
Ex. C.R. EXCHEQUER COURT OF CANADA 111 out, there being two recessions southerly, and towards the 1924 outer end, and it was in either of these recessions the Jedd THE SHIP and Ritchie lay. At the time of the collision the steamer R FRYER F. B. Squires, of 48 feet of beam lay at the Government TH E ' s s. dock, and about 450 feet from its end. WEST- MOUNT Directly outward from the slip 2,400 feet, is a lengthy & OWNERS. breakwater running north and south, and about at right The angles to the slip, forming a harbour between it and the President. shore line. The harbour extends very much north and south of the north and south lines of the slip if projected outwards to the harbour and breakwater. In the breakwater almost in line with the slip, is a gap through which ships enter the harbour, and from there the slip in question. The further statement should be made, however, that there is a channel leading into the slip from the shore limits of the harbour, this channel being of the same width as the slip. This point may perhaps be more clearly and accurately expressed by saying, that if the southern and northern sides of the slip were projected outwards 1,000 feet and 200 feet respectively, they would mark the channel from the navigable harbour proper into the mouth of the slip, and this may be designated as the slip channel. It would not be incorrect to describe the slip and the slip channel, as a narrow channel navigable for ships drawing a certain depth of water. On the day in question, November 17, 1922, the West-mount, a steel freight steamer of 7,932 tons, and being 550 feet in length and 58 feet width of beam, was loading grain at the Davidson and Smith elevator on the south side of the slip. At 5.40 p.m. of that day the Westmount finished loading and proceeded to back out from her dock in the slip with a view to proceeding to another place for additional cargo, and about the same time the Fryer, a wooden steamship of 1,157 tons and 280 feet in length, was entering or approaching the slip. I have restated chiefly the facts disclosed at the trial which are descriptive of the locus where the collision occurred, because, in my opinion the issue involved in the appeal relates entirely to the manner in which an incoming and an outgoing ship, to and from a common slip, which is connected with a harbour by a narrow navigable channel, 77031-2a
112 EXCHEQUER COURT OF CANADA [ 1924] 1924 were respectively navigated. All other relevant facts are THE SHIP fully stated in the judgment appealed from. ROBERT L. FRYER I have considered this appeal with my assessors with TR *ss. great care and at considerable length. They were very WEST- strongly of the opinion that the Westmount was alone to MOUNT & OWNERS, blame and I am of that view. The I think the evidence clearly and abundantly indicates President. that the Fryer had proceeded up the channel leading from the harbour into the slip, on her starboard side, to a point not more than 300 feet from the end of the Government dock, to which dock she was destined, before the West-mount commenced to move from her dock, and the trial judge so finds. That is to say, the Fryer had approached within a little more than her own length of the dock at which she was to lay, before she had any notice of the intention of the Westmount to move from her dock. That the Fryer was approaching the slip was known to the West-mount. The visibility was low, in fact it must have been after sundown before the Westmount commenced to move and her stern lights were not lighted. The mate of the Westmount states that he first observed the Fryer 300 feet out from the Government dock, and that it was then dusk, and so much so, that he did not recognize the approaching steamer as the Fryer, although she must have been well known to him owing to certain peculiarities of her superstructure. The Fryer was shewing her lights. The appellant urged on her own behalf but casually, the absence of lights on the Westmount, at the trial and on the appeal, and consequently I shall not allow this apparent neglect to enter into my consideration of the appeal, although my assessors were very strongly of the opinion that in this respect the Westmount was negligent. I think, however, that the Westmount did not show proper consideration of the fact that the visibility was low, and further, I am of the opinion that the lack of lights on the Westmount might very naturally lead the Fryer to conclude that the West-mount was not likely to soon move from her dock, and this view was urged at the trial. Thus with the Fryer only her own length and a little more, from the end of the dock at which she intended to lay, the Westmount without the prescribed signal, with
Ex. C.R. EXCHEQUER COURT OF CANADA 113 the knowledge that the Fryer was approaching the slip, 1924 commenced to move from her dock in the manner described THE snip by the trial judge, swung stern first across the slip with R FRr~x very considerable speed, as the trial judge finds, towards THB SS the side of the slip directly opposite from where she was WEsT-moored, and soon her stern was close to the Government & Ôw ERs. dock, intending to work out along the Government dock The wall, and indeed the witnesses of the Westmount say that President. at a certain stage of this movement she had lines fast to the Government dock. This is denied by the Fryer, but at all event it establishes the manoeuvre contemplated by the Westmount. The Fryer finding it impossible to make this dock, signalled she was to go to port, the Westmount's position making it unsafe or impossible to attempt to go further ahead and on her starboard along towards the Gov- ernment dock, at least the Fryer deemed it inadvisable to attempt to do so. In attempting to go to port a collision occurred as narrated in the judgment appealed from, the Fryer striking the port quarter of the Westmount a glancing blow. Upon this set of facts it appears to me that the West- mount is wholly to blame. Her failure to give the signal that she was to depart from her dock, the speed with which she swung across the channel, and generally her method of manoeuvring to get out of the slip, to the apparent ex- clusion or danger of other ships seeking entry to the slip, were each acts of negligence, the proximate causes of the collision. The trial judge found the Fryer at fault for not pursuing her efforts to make the Government dock, and making fast there. My assessors advise me that nothing would have justified such an attempt, and that it would in the circum- stances be challenging disaster. The counsel for the West- mount on the appeal admitted that such a movement would not be justified on the part of the Fryer. I am clearly of that opinion and cannot reach the conclusion that in this respect the Fryer was to blame. The Fryer was held also to blame in that she allowed herself to get in too far in the ship channel to safely make a passage to port. It is true in fact that the Fryer was un- able to make a safe entry to port and a slight collision 77031-3a
114 EXCHEQUER COURT OF CANADA [1924] 1924 occurred. Nothing remained for the Fryer to do but THE attempt the passage to port, or go astern. I do not think ROBERT L. FRYER it reasonable to say that the Fryer should earlier have an- v ticipated the actual movement of the Westmount in swing- THE SS. WEST- ing across the slip. Even after first observing the W est- MOUNT owNERS. mount in this movement, the Fryer mi g h t well have ex- pected the Westmount, when her stern was in mid-channel, President. to straighten herself up by various ahead and astern revolutions of her propellor so that she might go astern if necessary in the centre of the slip. She not only did not do this, but had even failed in any way to indicate her intention of leaving her dock. With very little action at the proper time on the part of the Westmount, by going ahead, the collision could have been avoided. I do not think that the Fryer was to blame for being too far in to make a safe voyage to port. I adopt the appellant's contention, and my assessors concur, that it was dangerous, if at all possible, for the Fryer to go astern with a view of reaching the navigable waters on the north side of the slip channel, owing to the fact that this movement would throw the stern of the Fryer into the bank on the south side of the channel. In fact had she gone astern her bow would probably have swung to starboard, and struck the stern of the Westmount, with probably more serious consequences than followed from the collision which did occur. It appears to me she adopted the only course open to her and just barely failed to accomplish successfully her movement to port. The trial judge finds that the Fryer, like the Westmount, failed to give the signal required by Rule 27 applicable to the Great Lakes, and there remains to be considered the question, if this constitutes contributory negligence on the part of the Fryer. Regardless of this rule, I think that the Westmount, in view of her contemplated and executed manoeuvre, and in view of all the circumstances, was negligent in not giving earlier a danger signal, and this is the opinion of my assessors. A greater burden in this respect rested upon the Westmount. She was aware before moving of the close approach of the Fryer. The Westmount at her dock was visible to the Fryer, but her intention to move was not indicated, until the Fryer was well up the slip channel and quite close to her destined dock. I do not
Ex. C.R. EXCHEQUER COURT OF CANADA think this failure constitutes contributory negligence on the part of the Fryer. It seems to me that the reasoning of Viscount Birken- head in his elaborate and comprehensive exposition upon the law of contributory negligence in sioners v. SS. Volute (1), excludes the inference that this&OW ERS. and other matters complained of on the part of the Fryer, were such acts of default or commission, contemporaneous, or subsequent and several, which constitute contributdry negligence on the part of the Fryer. rather the case where the prior negligence of the mount could not by any appropriate measures be success- fully avoided, or where even if mistaken measures were adopted by the Fryer she is not blameable for the conse- quences. Therefore with great respect I allow the appeal with costs, together with the costs of trial. (1) [19221 1 A.C. 129. 115 1924 THE SHIP R FR x THE'Ss. Admiralty Commis- WEST-Tie President. The facts suggest West- Judgment accordingly,
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