Hamilton Marine & Engineering Ltd. v. Hon. Paul Martin ( The )
T-162-89
Nadon J.
3/5/95
36 pp.
Action for damages following capsize of plaintiffs' tug while assisting defendants' ship out of fit-out berth at Port Weller Dry Docks -- Plaintiffs alleging tug capsized by reason of negligence, breach of duty by those on board ship-Incompetence, inexperience of officers and crew of ship said to have contributed directly to capsize of tug -- Defendants alleging capsize of tug resulted from incompetence, inexperience of those in charge of tug -- Capt. Raymond Robert master of tug on date of capsize -- Two captains aboard ship on day of capsize, Capts. Knoester and Robinson -- Capt. Robinson responsible for ship's conduct on day of capsize, acting as pilot and having command over movements of ship -- Although no evidence of written contract between parties, contract of towage formed -- Weather good, not materially affecting behaviour of vessels on day of capsize -- Case turning on legal relationship between tugboat and vessel towed-Case law on tug and tow reviewed -- General presumption tow in control of tug -- Tug must ensure tow more or less ready to be towed-Tow having clear duty to carefully evaluate actions and to ensure not to cause damage to tug or to any other vessels in area around it -- Proper skill and diligence, appropriate seamanship must be exercised in performance of contract -- Capt. Robinson and those on board ship not acting negligently in not allowing tug sufficient time to proceed to starboard position before commencing final manoeuvre -- Ship could not foresee tug would be leaving stern position -- Master of tug at fault -- Capt. Robert and crew members acting in total disregard of ship's wash and danger posed for vessel -- When tug capsized, no lookout standing watch, as there should have been -- Those on board tug negligent in not looking out for wash of ship's propeller, which Capt. Robert had fully anticipated -- Tug capsized because girded itself -- Ship's propeller race not strong enough to overturn tug -- Lateral forces required to turn tug to starboard and to capsize it -- Ship's propeller wash not excessive -- In order to succeed against tow, owner of tug must establish negligence or fault on part of tow -- Capsize of plaintiffs' tug not occurring by reason of fault or negligence on part of those on board ship -- Action dismissed.