Digests

Porto Seguro Companhia De Seguros Gerais v. Federal Danube (The)

T-2057-85

Lemieux J.

31/1/01

68 pp.

Action for damages following collision between two vessels--On December 11, 1984, two large ocean-going bulk carriers, M/V Beograd, M/V Federal Danube collided in Pointe Fortier anchorage in Lac St. Louis, west of Montréal, adjacent to lower Beauharnois lock, part of St. Lawrence Seaway--At 21:40, Federal Danube, at anchor in 50 feet of water in Pointe Fortier anchorage area south of navigation channel awaiting turn to move towards lock, began to draw in port anchor lying on river bed at 90 degrees of center line--Beograd, loaded with cargo of pinto beans whose destination Brazil, exited lock, passed vessel at lock's tie-up wall awaiting entry--At 21:45, Beograd's heading changed to 63 degrees--At 21:48, port bow of Federal Danube came into contact with holds 6, 7 on Beograd's port side--Two issues arising in new trial of cargo action: (1) plaintiff's standing to sue; (2) liability for collision--Plaintiff entitled to bring action in own name--Action framed in negligence both at common law in maritime matters, statute law whose principles in maritime matters flow from Canada Shipping Act, Collision Regulations made thereunder--Vessel underway must steer clear, avoid vessel properly at anchor--Only defence where collision occurs one of unavoidable accident which no human skill, precaution could have avoided--Proof of breach of Rules in Collision Regulations not giving rise to presumption of fault unless plaintiff can establish causal connection between infringement of Rule, collision--Risk of collision not to be scanned under microscope--Whether any faults could be attributed to manner, way two ships operated, contributed to collision--Beograd negligently operated when collided with Federal Danube on night of December 11, 1984--Had no business being anywhere near Federal Danube--Good seamanship dictating Beograd navigate in channel reserved for that purpose rather than going through southern anchorage area at Pointe Fortier unless exceptional circumstances such as ascertained blockage of channel--Before setting out on course which would take her outside navigation channel, Beograd, as matter of good seamanship, should have verified by radar, with Seaway Control at Beauharnois (BOH) whether, in fact, channel encroached upon, to what degree--Speed of Beograd, about 9 knots at time of collision, not safe speed as required by Collision Regulations, Rule 6--Beograd breached Collision Regulations, Rule 16 which directed it to keep out of way of anchored vessel and, as far as possible, take early, substantial action to keep "well clear"--Whether actions of Federal Danube gave rise to liability on her part--No liability arising from failure to report anchorage position as not contributing to collision--Assuming Federal Danube required to obtain BOH's permission to commence heaving operations, such permission given, navigators of Beograd knew, should have known Federal Danube in process--Federal Danube had not resumed voyage by navigating to lock's tie-up wall at or immediately before collision--Had not, at time of collision, changed status from anchored vessel to one underway--Plaintiff not establishing Federal Danube under way for purposes of Collision Regulations--Federal Danube's inoperable bow thruster not contributing to collision, would not have impaired ability to take effective collision avoidance measures through use of engines, Kort nozzle if time sufficient--Defendants not failing to appreciate risk of collision, to avoid it--Main cause of collision fact Beograd simply miscalculated safe passing distance in front of Federal Danube--No fault with Federal Danube's limited manoeuvres at critical time--Beograd solely liable for collision--Plaintiff's action dismissed--Canada Shipping Act, R.S.C., 1985, c. S-9--Collision Regulations, C.R.C., c. 1416, RR. 6, 16.