Marjorie Hexter Stein, for herself and as the
widow of Charles Simmon Stein, deceased, and as
a co-executor of the estate of the said deceased,
and Maurice Schwarz and William I. Stein, co-
executors of the said estate (Plaintiffs)
v.
The Ships Kathy K (also known as Storm Point),
and S.N. No. 1, Egmont Towing & Sorting Ltd.,
Shields Navigation Ltd., Leonard David Helsing
and James Iverson (Defendants)
Trial Division, Heald J.—Vancouver, B.C.,
April 4, 5, 6, 7, 8, 9, 10, 11 and 12; Ottawa,
May 2, 1972.
Maritime law—Limitation of liability of owner—Ship col-
lision—Insufficient crew—No whistle control—Knowledge
of owner's president and manager—Canada Shipping Act,
R.S.C. 1970, c. S-9, s. 647.
Stein was drowned as a result of a collision between his
sailboat and an unmanned barge in tow of a tug in English
Bay, Vancouver. The tug and barge were owned by the
Egmont Towing Co. and operated by Shields Navigation
Ltd.; Mr. Shields was president and manager of both com
panies. In an action brought by Stein's widow for damages,
the Court found the crews of both tug and sailboat to be
negligent and apportioned fault 75% to the tug and 25% to
the sailboat. The two defendant companies counterclaimed
to limit their liability under section 647 of the Canada
Shipping Act on the ground that the collision occurred
without the actual fault or privity of the tug's owner. The
Court found that the owner was negligent in permitting the
tug to sail with fewer than the minimal crew of three and
without a whistle control, and that his negligence contribut
ed to the accident.
Held, the two defendant companies were not entitled to
limit their liability.
ACTION and counter-claim.
J. Cunningham and P. Bernard for plaintiffs.
D. Brander Smith and J. A. Hargrave for
defendants.
HEALD J.—This is an action under Part XVII
of the Canada Shipping Act (R.S.C. 1970, c.
S-9) brought on behalf of the widow and chil
dren of Charles Simmon Stein, deceased, who
was killed as a result of a collision between a
sailboat and the unmanned barge S.N. No. 1 in
tow of the tug Storm Point on June 27, 1970, in
the waters of English Bay, Vancouver.
The defendant Helsing was acting as master
of the tug and he had with him a deckhand,
James Iverson, who has died since the collision
as a result of injuries received in an automobile
accident in November of 1970.
The action as against Iverson has been
discontinued.
The sailboat was a 5-0-5 sailboat (161 feet in
length) and at all material times, Ross Stein, the
son of the deceased was skipper and the
deceased was crew.
At all material times, both the tug and barge
were owned by the defendant Egmont Towing
and Sorting Ltd. and operated by the defendant
Shields Navigation Ltd.
Counsel for all parties agreed at the trial that
the trial evidence be restricted to the issues as
to (1) liability for the collision and (2) as to
whether the defendants are entitled to limit
liability under the Canada Shipping Act. Coun
sel also agreed that it should be left for a
subsequent hearing to (1) assess the damages to
which the plaintiffs are entitled and, if a decree
limiting liability is granted, (2) to decide the
equivalent value in Canadian funds of a "gold
franc" as defined in the Canada Shipping Act.
The collision occurred at approximately 3.35
(15.35) hours on a Saturday afternoon in condi
tions of clear visibility and light variable winds.
The sun was shining and the atmosphere was
clear. Defendant's preliminary act stipulated
visibility of about 10 miles.
The tidal condition is described as ebbing
with little tidal force, being about one hour after
high water. Captain Helsing described the con
dition as follows: "There was lots of water in
English Bay at that time".
The deceased and his son, Ross Stein, had
come to Vancouver from their home in Beverly
Hills, California, on June 26, 1970, for the
purpose of competing in an International 5-0-5
class sailboat racing competition which was to
begin on June 28, 1970. Said competition was
hosted by the Kitsilano Yacht Club of Vancou-
ver and was to take place in English Bay.
On June 27, in the afternoon, the two Steins
had put their 5-0-5 in the water and participated
in an informal practice race organized by the
Yacht Club. After said practice race, the Steins
continued sailing for additional practice in Eng-
lish Bay and it was in the course of this sailing
that the collision in question occurred.
The tug Storm Point had, since June 23, been
some one hundred miles or so up the coast from
Vancouver engaged in a cable laying operation.
On June 27, it returned to Vancouver, entering
False Creek with the barge S.N. No. I loaded
and berthing at Johnston Terminals which is
located on the south side of False Creek
between the Granville Street Bridge and the
Cambie Street Bridge (just immediately west of
the Cambie Street Bridge).
The berthing took place at 13.30 hours. The
cargo was then discharged from the barge.
During all of the period up coast, the master of
the tug had been Captain Greenfield. During the
period of unloading at Johnston Terminals, Cap
tain Greenfield contacted the President of the
defendant, Shields Navigation Ltd., Mr. Peter
Shields and obtained his approval to stay ashore
and to leave the tug and barge in the control of
the defendant Helsing and the now deceased
deckhand Iverson who were to take the tug and
unloaded barge in tow back out through English
Bay around Stanley Park and through the First
Narrows to Bel-Aire shipyard in North Vancou-
ver. With Helsing aboard as Captain and Iver-
son aboard as the only crew, the tug with the
unloaded barge in tow left Johnston Terminals
outbound at 15.15 hours.
The Storm Point was a single deck, single
screw coastal tugboat of wooden construction
and was 49 feet in length. The barge S.N. No. I
was at all relevant times, about 80 feet long and
had a width of 40 feet. The tug was approxi
mately 15 feet wide, powered by a 300-350 h.p.
engine.
The evidence establishes that when the tug
and tow departed Johnston Terminals, the barge
was close-hauled on the stern of the tug, that is
to say, the bow of the barge was within 5 or 6
feet of the stern of the tug. This was normal
practice when navigating in False Creek. The
tug left Johnston Terminals and proceeded at a
slow speed of approximately 3 to 4 knots.
On reaching a point slightly west of Burrard
Bridge, Iverson, the deckhand, on the instruc
tions of Captain Helsing, let out the tow-line to
a distance of approximately 150 feet. This task
was completed by the deckhand at a point just
west of Kitsilano Spit at which time the deck
hand rejoined Captain Helsing in the
wheelhouse.
The evidence is that it is necessary to speed
up when letting out the tow-line which Helsing
did on this occasion. Helsing also gave evidence
that before the tow-line was let out, his speed
was about 4 knots. He also testified that from
the time he passed under the "trestle bridge"
(indicated on Exhibit 53 as the "Kitsilano Rail
way Bridge") continuing on under the Burrard
Bridge and on out to the "Spit" (also marked on
Exhibit 53) there was a large number of small
craft in False Creek. This traffic was going in
every direction. Helsing also gave evidence
(question 289—examination for discovery) that
shortly after passing under Burrard Bridge he
observed a concentration of sailboats on his
starboard bow approximately 51 to 7 cables
away.
Helsing testified further that at the Spit, the
traffic cleared considerably and that there was
not much traffic on his course and that it was
very ,blear to port thereof (question 331 of
Helsing's discovery).
He testified that the sailboats were about 45
degrees off his starboard bow from time of
sighting until the collision. He says that one of
the sailboats appeared to veer off and to pro
ceed in his general diréction when it was about
4/10 mile away. When this sailboat was about
1,000 feet away off his starboard bow, he made
an alteration to port of 15 degrees. This altera
tion was not signalled in any way.
At about this time, Helsing became con
cerned at the possibility of a collision where
upon he left the wheelhouse and went to the
flying bridge where, he says, he had a better
view of the situation. At the same time, Iverson,
on Helsing's instructions also left the wheel-
house and went back to the winch to let some
slack into the tow-line. Helsing's purpose in this
was to make it possible for the sailboat to pass
astern of the tug and between the tug and barge
and make less of an obstruction in the event of
a collision. Helsing also reduced speed gradual
ly from the throttle control on the flying bridge,
gradually, to prevent his tow from sheering or
going out of control.
When the two Steins first sighted the tug,
they were in the process of starting to take the
spinnaker down. Ross Stein immediately altered
course to port to pass clear down the starboard
side of the tug, and having made that turn, they
were confronted with the barge directly in front
of them. Ross Stein, by sculling with the rudder,
tried to alter further to port and bring the sail
boat clear of the barge, but the barge still came
on at a speed hitting the sailboat hard. The
sailboat was hit by the front of the barge at a
point to starboard of the centre of the front of
the barge.
The collision occurred at approximately
15.35 hours. The evidence establishes that the
point of collision was in an area about half-way
between the Kitsilano Swimming Pool and the
Second Beach Swimming Pool as same are
shown on Exhibit 53. Another way of describ
ing the approximate point of collision is to say
that it is in the position where the words "White
sector, red sector, green sector" occur together
on Exhibit 53. Prior to the collision, the sailboat
was proceeding toward that area from the
waters off Second Beach and the tug and tow
were proceeding from the mouth of False Creek
toward that area.
I proceed now to enumerate the acts of negli
gence which, in my view, were causal factors in
this collision.
FAULTS OF THE STORM POINT
1. Captain Helsing was negligent in letting
out his tow-line too soon and was also negligent
in letting out too much tow-line under the cir
cumstances at that time (heavy sailboat conges
tion) and these two negligent acts contributed in
large measure to the collision.
Captain Greenfield testified that the areas of
False Creek and English Bay were very con
gested on summer weekends. Captain Helsing
also acknowledged that it was not unusual on a
Saturday afternoon in June to have consider
able sailboat traffic. Captain Greenfield said "It
can get rather hair-raising." He said further that
if traffic was really congested, his practice was
to keep his tow close-hauled with a slow speed
of approximately 3 knots. The reason for this is
that you could stop the barge if it were close-
hauled at a speed of 2 or 3 knots. He said "With
150 feet out, there is no way you could stop."
There are apparently three ways of towing a
barge. There is the close-haul method with
about 5 to 6 feet of tow-line out between the
stern of the tug and the barge. This is the
method Captain Greenfield says he usually
adopted and this the method Captain Helsing
used when he left Johnston Terminals. There is
another method used sometimes of lashing the
tug alongside the barge. The third method is to
let some tow-line out. The evidence establishes
that most tugboats with tows switch from the
first method to the third method once they are
away from all congested areas and in open
water.
However, in this case, Helsing knew there
was likely to be a congestion of sailboats in
English Bay, that this was the rule rather than
the exception, and yet in the face of this knowl
edge, he ran out 150 feet of tow-line before
clearing the Spit. He was asked to mark the
spot on Exhibit 52 where the deckhand left the
winch, indicating that the tow-line had been let
out and he marked this spot as being just west
of Burrard Bridge, well before the Spit. Captain
Greenfield said the normal practice was to let
out the 150 feet after clearing the Spit, and then
only if traffic conditions warranted it.
If Captain Helsing had held off letting out his
tow-line until he cleared the Spit as he should
have done, he probably would have refrained
from doing so altogether because by that time,
he had seen the sailboat congestion off his
starboard bow. The evidence is that he saw the
sailboats shortly after he passed under Burrard
Bridge and well before he got to the Spit.
I am also advised by the assessors that 150
feet of tow-line even after the Spit was an
unreasonably long amount of tow-line at that
point in English Bay, in circumstances like this
where there was heavy sailboat traffic, that 40
or 50 or 60 feet would have been more reason
able. The more tow-line let out, the less control
there is of the barge. With 150 feet of tow-line,
Helsing increased the hazard to other traffic
because of his lack of control.
2. Captain Helsing operated the tug and tow
at an excessive rate of speed having regard to
all the circumstances, from the time he let out
the tow-line until the time of the collision.
There is some conflict in the evidence of
speed. Ross Stein estimated the Storm Point's
speed at about 6 to 8 knots. He said that he was
accustomed to seeing water traffic proceeding
in Los Angeles Harbor, both at 5 knots and 8
knots because said harbor has areas where that
is the speed limit. On the basis of that experi-
ence, he made the above estimate of the speed
of the Storm Point. Helsing himself estimated
the tug's speed at no more than 5 knots but this
is only a rough estimate because he did not
know the r.p.m.-speed ratio and he simply
advanced the throttles.
Looking at all of the evidence, I have the
opinion that Helsing's estimate is on the low
side. He testified that before the tow-line was
out, his speed was 4 knots. He also agreed that
he speeded up as he was letting the tow-line
out. From Johnston Terminals to the point of
collision is a distance of about 1.8 miles which
was traversed in twenty minutes. This repre
sents an average speed over the entire distance
of 5.4 knots. When it is considered that from
Johnston Terminals out to where the tow-line
was let out, the speed was from 3 to 4 knots, it
is clear that from there on out, the tug had to
speed up considerably to achieve an average
over the full course of nearly 51 knots. The
evidence establishes that the tug was proceed
ing at approximately double the speed of the
sailboat from the time of first sighting to the
point of collision. The sailboat's speed was
established at 3 to 31 knots.
Looking at all of the evidence, it is my opin
ion that the tug was proceeding at 7 to 71 knots
until he slowed down just prior to the collision.
Helsing speeded up too soon, particularly in
view of the congestion of sailboats ahead of
him. I refer to Captain Greenfield's evidence
that if the traffic was congested, his procedure
was to keep his tow close-hauled and to pro
ceed at 3 knots. In proceeding at 7 or 71 knots,
in congested waters, Helsing was travelling at
an excessive rate of speed which contributed to
the collision through his inability to stop his
tow. His rate of speed affected the speed at
which the barge hit the sailboat, thus contribut
ing to the serious results of the accident as well.
3. Captain Helsing was negligent in not
making an alteration to port sooner than he did
and in not making a substantially greater altera-
tion than he did and such negligence contribut
ed in large measure to the accident.
Exhibit 50 shows that the position marked 1
thereon abeam of Chrystal Pool is about where
Helsing says he first saw the sailboats about 5
to 7 cables away.
Position 5 marks the approximate collision
point. The distance from position 1 to position 5
is about 4 cables. The marked chart of this area
shows that he could have altered to port 30
degrees at position 1, that he could have altered
even more as he progressed further out. The
fact is that he waited until he was about 1,000
feet from the Stein sailboat to alter at all and
then, he only altered 15 degrees to port. His
explanation for not making a greater alteration
was that he wanted to be sure that he did not
alter into foul ground. I do not accept this
explanation as being reasonable. He should
have known from his knowledge of English Bay
that a much larger alteration was feasible. If he
did not know this from past experience, he
should have consulted his charts which would
have clearly told him that he could have altered
at least 30 degrees any time after position 1.
The evidence also establishes that it was clear
of traffic ahead and to port (question 331, dis
covery). Then, he was even more negligent in
not altering soon enough. He could have altered
at position 1. He did not alter until position 4.
The distance between position 1 and position 4
is about 22 cables or 1,500 feet. If he had
altered any time between position 1 and posi
tion 4, he could have altered 30 degrees or more
and been completely clear of the sailboat with
both the tug and tow. As a matter of fact, at
position 4, the assessors advise me he could
have altered 90 degrees to port without endan
gering his own vessel. His vessel was drawing a
maximum depth of 7'6". It was also at the top
of a high water of over 11 feet which would
have allowed him further leeway. In my view,
Helsing was guilty of improper navigation
procedures which contributed in a very direct
and substantial way to the collision. He knew
the sailboats were there. They were at 45
degrees off his starboard bow from the sighting
until the collision. The Stein boat remained on
the same bearing as it came in toward him
(questions 347-350, discovery) and yet he did
absolutely nothing about it, even though they
were on a collision course with him, until they
were about 1,000 feet away. Then, his action
was clearly "too little and too late".
4. Captain Helsing was negligent in failing to
comply with Rule 20(a) of the Regulations for
Preventing Collisions at Sea (hereafter the Col
lision Regulations)'. Defendants submitted that
Rule 20(a) does not apply in this case but that
Rule 20(b) does because this collision occurred
in a "narrow channel".
The relevant portions of Rule 20 read as
follows:
(a) When a power-driven vessel and a sailing vessel are
iproceeding in such directions as to involve risk of collision,
except as provided for in Rules 24 and 26, the power-driven
vessel shall keep out of the way of the sailing vessel.
(b) This Rule shall not give to a sailing vessel the right to
hamper, in a narrow channel, the safe passage of a power-
driven vessel which can navigate only inside such channel.
It is therefore necessary to determine wheth
er the tug Storm Point and her tow were navi
gating in a "narrow channel" at and immediate
ly prior to this collision. The authorities are
clear that a "narrow channel" is that which by
the practice of seamen is treated, and necessari
ly treated, as a narrow channel or, the way in
which seamen in fact regard it and behave in it 2 .
Counsel for both parties acknowledged that I
was entitled to seek and follow the advice of
the assessors concerning this practice. The
assessors advise me that in the instant case,
False Creek is considered a narrow channel but
that from a point abeam of the Chrystal Pool on
Exhibit 50, this body of water is no longer
considered a narrow channel. That is to say,
from about point 1 on Exhibit 50 on out, the tug
was no longer in a narrow channel. Helsing
estimated point 1 as being about 51 cables away
from the sailboats when he first saw them. Thus
it is clear that in these circumstances, the sail
boats had the right of way under Rule 20, that
the tug had an obligation to keep out of the way
of the Stein sailboat which it failed to do. This
failure and neglect on the part of the tug was
clearly causative of the collision.
5. Captain Helsing and the deckhand, Iver-
son, failed to keep a proper lookout contrary to
Rule 29 of the Collision Regulations and this
breach of Regulation was to some degree causa
tive of the collision.
Rule 29 provides as follows:
Negligence.
Nothing in these Rules shall exonerate any vessel, or the
owner, master or crew thereof, from the consequence of
any neglect to carry lights or signals, or of any neglect to
keep a proper look-out, or of the neglect of any precaution
which may be required by the ordinary practice of seamen,
or by the special circumstances of the case.
One of the puzzling features of this case is
the lack of earlier action by Helsing. He knew
that he could expect a concentration of sail
boats in English Bay, he knew that such a
concentration would present hazards for him,
he saw a sailboat concentration soon after he
passed under Burrard Bridge, when he was still
more than 2 mile from them. He and Iverson
discussed the presence of the sailboats, he saw
the sailboats proceeding toward him on a steady
45 degree course and yet he took no action
whatsoever until the Stein boat was 900 to
1,000 feet away. Surely such lack of action
compels the inference that Helsing and Iverson
were not keeping a proper lookout, that their
minds must have been on other matters and that
this unmistakable negligence on their part was
causative of the collision.
6. The Storm Point was in breach of Colli
sion Regulation 28(a) which reads as follows:
(a) When vessels are in sight of one another, a power-
driven vessel under way, in taking any course authorized or
required by these Rules, shall indicate that course by the
following signals on her whistle, namely:—
One short blast to mean "I am altering my course to
starboard".
Two short blasts to mean "I am altering my course to
port".
Three short blasts to mean "My engines are going
astern".
The evidence is that Helsing made one altera
tion of 15 degrees to port when the Stein boat
was 900 to 1,000 feet away and that he did not
signal by whistle or otherwise said alteration. It
is arguable whether this violation, per se, was
causative of the collision but it is certainly
revealing of Helsing's casual attitude to the
whole situation in which he found himself. As a
matter of fact, he admitted on the witness stand
that he did not even know where the whistle
button was so that he could not have blown the
whistle if he had wanted to—without first look
ing around and locating it. He had been first
mate on the tug for several days when it was up
coast engaged in cable laying operations, and on
this occasion, he was its Master on a 21 hour
voyage through congested waters. Surely mini
mal prudence on his part would have suggested
that he familiarize himself with all the controls
and their location before commencing the
voyage.
How would a reasonably prudent and reason
ably competent Master have conducted himself
after he first saw the sailboats? At position 1 on
Exhibit 50, he would have altered 30 degrees to
port, he would have reduced speed and he
would have whistled 2 short blasts pursuant to
Rule 28(a). He did none of these and his failure
to do so is certainly causative.
Then, later on, after he had altered course 15
degrees to port, after the Stein sailboat had
altered to port and was running approximately
parallel to and abeam of the tug, the tug being
only 50 to 100 feet away, he should have given
5 short blasts to alert the sailboat of the pres-
ence of the tug and barge. He could also have
shouted at that short distance to warn the sail
boat about the barge in tow. He did none of
these things and thus was guilty of a breach of
Rule 12 of the Collision Regulations which
reads as follows:
Every vessel or seaplane on the water may, if necessary
in order to attract attention, in addition to the lights which
she is by these Rules required to carry, show a flare-up light
or use a detonating or other efficient sound signal that
cannot be mistaken for any signal authorized elsewhere
under these Rules.
The Storm Point was also in breach of the
following additional Collision Regulations:
A. Part D—Prelimirtary.
1. In obeying and construing these Rules, any action
taken should be positive, in ample time, and with due regard
to the observance of good seamanship.
2. Risk of collision can, when circumstances permit, be
ascertained by carefully watching the compass bearing of an
approaching vessel. If the bearing does not apreciably
change, such risk should be deemed to exist.
B. Rule 22.
Every vessel which is directed by these Rules to keep out
of the way of another vessel shall, so far as possible, take
positive early action to comply with this obligation, and
shall, if the circumstances of the case admit, avoid crossing
ahead of the other.
C. Rule 23.
Every power-driven vessel which is directed by these
Rules to keep out ôf the way of another vessel shall, on
approaching her, if necessary, slacken her speed or stop or
reverse.
Helsing was also in breach of the following
National Harbours Board Regulations'.
35. (1) No vessel shall move in the harbour at a speed
that may endanger life or property.
37. (1) Every vessel towing another vessel shall have
sufficient power to perform such service properly and shall,
at all times, keep as complete control as possible of the
vessel in tow.
FAULTS OF THE SAILBOAT
L The crew of the Stein 5-0-5 sailboat were
negligent in that they failed to keep a proper
lookout. The evidence is that Ross Stein, the
skipper, and his father, his crew, were concen
trating on tuning their boat to the two other
sailboats that were sailing along with them. I
think they were concentrating too much on their
sailing and not enough on other traffic in the
Bay. They had the right of way over motor-
driven traffic in the Bay but this does not give
them the right to completely ignore all other
traffic. They should have seen the tugboat
sooner than they did. What is even more baf
fling is why they did not see the barge until just
seconds before it hit them. The barge was only
150 feet behind the tug. Surely, a reasonable
lookout would have spotted the barge sooner.
In my view, the sailboat breached Collision
Regulation No. 29 (supra) which imposes on all
vessels and their crews, the duty to keep a
proper lookout.
2. The crew of the Stein sailboat had never
sailed in the waters of English Bay before the
day of the collision. They were from California.
They were not familiar with the traffic reason
ably to be expected in English Bay nor with the
customs of seamen in these waters. It was
incumbent on them to familiarize themselves
with local rules and local customs. This they did
not do, nor did they take the trouble to observe
the traffic in English Bay. Had they done this
for any reasonable length of time, they would,
in all likelihood, have observed tugs with barges
in tow with varying lengths of tow-line. The
evidence was that in California harbors where
they were accustomed to sailing, tugs did not
tow barges in this fashion. Therefore, they did
not expect to see a barge behind the tug and this
may account to some extent, for the fact that
they did not see the barge earlier. However, this
does not excuse them. They were sailing in an
area that was new to them. They should have
known local customs and procedures and their
failure to acquaint themselves with same was
negligence on their part.
The legal principles to be followed in cases of
this kind are stated in Marsden's British Ship
ping Laws, Volume 4, Collisions at Sea on
pages 2 and 3 thereof as follows:
The essential elements of actionable negligence were
stated in 1823 by Lord Stowell in The Dundee, ((1823) 1
Hag. Ad. 109 at p. 120) a case of collision between two
vessels, to be "a want of that attention and vigilance which
is due to the security of other vessels that are navigating on
the same seas, and which, if so far neglected as to become,
however unintentionally, the cause of damage of any extent
to such other vessels, the maritime law considers as a
dereliction of bounden duty, entitling the sufferer to repara
tion in damages."
It is the duty of seamen to take reasonable care and to
use reasonable skill to prevent the ship from doing injury,
(The Voorwaarts and the Khedive (1880) 5 App. Cas. 876,
890, per Lord Blackburn) and what is reasonable must be
tested by the circumstances of each case....
The negligence usually relied on is a failure to exercise
the skill, care and nerve which are ordinarily to be found in
a competent seaman, amounting to a breach of the duty of
good seamanship, or a breach of the international or local
regulations for preventing collisions. "We are not to expect
extraordinary skill or extraordinary diligence, but that
degree of skill and that degree of diligence which is general
ly to be found in persons who discharge their duty. (Per Dr.
Lushington, The Thomas Powell and the Cuba (1866) 14
L.T. 603.)
In the case of The Billings Victory (1949) 82
Ll. L. Rep. 877 at 883, Willmer J. said:
... It appears to me that the most important thing to give
effect to in considering degrees of blame is the question
which of the two vessels created the position of difficulty.
The "position of difficulty" in the case at bar
was, to a large extent, created by the tug and its
negligent acts enumerated supra.
The negligence of the sailboat was in not
keeping a proper lookout and in not seeing the
tug and barge sooner. This negligence was
causative, but to a lesser degree than that of the
tug.
I have therefore concluded that liability
should be apportioned on the basis of 75% to
the tugboat Storm Point and 25% to the 5-0-5
sailboat skippered by Ross Stein.
LIMITATION OF LIABILITY
The defendants filed a counter-claim in this
action under which they seek to limit their
liability pursuant to the provisions of s. 647 of
the Canada Shipping Act, R.S.C. 1970, c. S-9.
The relevant portions of said section are as
follows:
647. (2) The owner of a ship, whether registered in
Canada or not, is not, where any of the following events
occur without his actual fault or privity, namely,
(c) where any loss of life or personal injury is caused to
any person not on board that ship through
(ii) any other act or omission of any person on board
that ship; ...
Said section 647 provides further that in such
event the liability for loss of life or personal
injury, either alone or together with any loss
and damage to or any infringement of any rights
is limited to 3,100 gold francs for each ton of
the ship's tonnage to be distributed 21/31 to the
claimants for loss of life or personal injuries
and 10/31 to claims for damage to property or
infringement of rights. In the case at bar, no
claim for property damage is made. According
ly, the above-stated statutory apportionment
has no application.
The onus is upon the owner of the ship to
bring himself within the above-noted section of
the Act. The real issue turns upon the words
"without his actual fault or privity" as they
appear in s. 647(2) (supra). (The Chugaway
[1969] 2 Ll. L. Rep. 526, Sheppard D.J.)
The words "actual fault or privity" infer
something personal to the owner, something
blameworthy in him, as distinguished from con
structive fault or privity such as the fault or
privity of his servants or agents. (Per Buckley
L.J.—Asiatic Petroleum Co. v. Lennard's Carry
ing Co. [1914] 1 K.B. 419 at p. 432.)
Thus, in the case of a company "... It must
be ... the fault or privity of somebody who is
not merely a servant or agent for whom the
company is liable upon the footing respondeat
superior, but somebody for whom the company
is liable because his action is the very action of
the company itself. ..." (Per Lord Haldane
L.C.—Lennard's Carrying Co. v. Asiatic
Petroleum Co. [191 5] A.C. 705 at p. 713.)
A number of cases through the years have
discussed the duties of the owner. Thus the
case of Northern Fishing Co. v. Eddom (The
Norman) [1960] 1 Ll. L. Rep. 1, held that one
of the clear duties of an owner is to provide the
ship with navigational aids reasonable for and
appropriate to the nature and purpose of the
voyage and that up-to-date charts would be one
of the most obvious of such navigational aids.
In the Lady Gwendolen [1965] 1 LI. L. Rep.
335 at p. 339, Lord Justice Sellers said:
In their capacity as shipowners they must be judged by
the standard of conduct of the ordinary reasonable ship-
owner in the management and control of a vessel or of a
fleet of vessels. A primary concern of a shipowner must be
safety of life at sea. That involves a seaworthy ship, proper
ly manned, but it also requires safe navigation.
In the case of The Anonity [1961] 1 LI. L.
Rep. 203, the point in issue was whether ade
quate instructions had been given by shipown-
ers to their servants as to extinguishing galley
fires when the ship was lying alongside an oil
jetty. The court held that the owners had not
given adequate instructions, and that according
ly the resultant fire and damage did not occur
without the shipowner's actual fault or privity
and limitation of liability was therefore denied.
To summarize the authorities, the onus is on
the defendant here (plaintiff by counterclaim) to
prove:
(1) The person whose very action is the
action of the company.
(2) That such person has not been guilty of a
fault or privity as previously defined.
(3) If there be a fault, it did not contribute to
the accident.
It is thus necessary to consider the relevant
facts in the case at bar in the light of these
principles.
Peter Shields is the President, a director and
the manager of both the defendant Egmont
Towing and the defendant Shields Navigation.
Mr. Shields has a degree in Civil Engineering.
Upon graduation from University he was in the
construction business for seven years. He has
been in the towboat business since 1966 but
acknowledges that he is not "a towboat man".
At all relevant times the tugboat Storm Point
was owned by the defendant Egmont Towing
and operated by the defendant Shields Naviga
tion under a verbal charterparty. Shields Navi
gation managed and operated said tugboat for
Egmont Towing.
The evidence discloses that the operation of
this tugboat business was, to say the least,
performed in a loose and somewhat casual fash
ion. There were no Masters' meetings; there
were no discussions on the length of tow-lines
to be used in Vancouver Harbour; there were
no standing orders for Masters. It was not
established in evidence that there were even
copies of either the Collision Regulations or the
National Harbours Board Regulations aboard
the vessel. As a matter of fact, Captain Green-
field said that Shields Navigation did not even
maintain a current copy of the National Har
bours Board Regulations in its office to his
knowledge.
The evidence establishes that the minimal
crew required was three for the Storm Point. A
copy of the last inspection certificate issued for
the Storm Point was received in evidence as
Exhibit 64. The certificate is dated December
19, 1968 and is valid until September 3, 1972.
The pertinent portions of said certificate are as
follows:
This is to Certify:
1. That the above mentioned ship has been duly inspect
ed in accordance with the provisions of the Canada Ship
ping Act, that the provisions of that Act respecting the
inspection of steamships that are applicable to such ship
have been complied with and that the ship is, subject to
such limitations as may be specified herein, fit to ply as a
tug. The number of persons, including the master, compris
ing the crew, is ... "3 persons for periods not in excess of
12 hours operation in 24 hour period; and 4 persons for
periods of operation in excess of 12 hours.
Thus, said certificate shows that a minimum
crew for the Storm Point was three, and yet
when the tug and barge left Johnston Terminals
outbound for Bel-Aire shipyards in North Van-
couver on the day of the accident, the total
crew was only two—Helsing as Captain and the
deckhand Iverson as crew. Peter Shields admit
ted in evidence that the size of the crew was his
responsibility and that the number of men on
the tug for this portion of the voyage was his
decision. When the Storm Point docked at John-
ston Terminals and commenced unloading the
barge, Captain Greenfield went ashore and
phoned Peter Shields who was at that time on
Vancouver Island. Peter Shields at that time
authorized Helsing and Iverson to resume the
voyage as a total crew of two.
In taking such action, Peter Shields was, in
my view, guilty of negligence. He knew or
should have known that Helsing had never
taken a tug and tow out of False Creek as
Master before. He knew or should have known
that Helsing had only sailed as Master of the
Storm Point once before and that was on June
23, 1970 when he brought the tug and tow
across from Sidney on Vancouver Island. He
knew that there would be considerable sailboat
traffic in English Bay; he was a sailboat
enthusiast himself. He admits knowing there
was no legal authority to operate the Storm
Point with a crew of two; he admits that this
lack of legal authority crossed his mind; he
acknowledges now that he was probably send-
ing Helsing, an inexperienced Master, into a
potentially difficult situation. His exact words
were "You have to be ready for anything in
English Bay."
I have the firm view that the negligence of
Shields as set out supra contributed to the acci
dent. Peter Shields explained his decision by
saying that the trip to North Vancouver was
only a two-hour trip, and that since it was an
off-watch for Captain Greenfield, he would be
sleeping anyway and thus, he did not see much
point in his remaining aboard. However, Cap
tain Greenfield testified that once they proceed
ed out to Burrard Bridge, (italics mine) he
would have been taking a nap. The important
point here is that Helsing's negligent handling of
the tug and tow began before they were out to
Burrard Bridge. I found supra that Helsing was
negligent in letting his tow-line out too soon and
that this action was completed by the time the
tug was just west of Burrard Bridge. I also
found supra that Helsing was negligent in pro
ceeding at an excessive rate of speed. He also
embarked on this course of conduct at or just
shortly after Burrard Bridge. I think it likely
that if Captain Greenfield had been aboard, this
collision would never have occurred. He would
have been in a position to advise Helsing as to
proper normal navigating procedures before he
went to take a sleep and this would probably
have prevented the accident.
Peter Shields, as President and Manager of
the two defendant corporations, was guilty of
further negligence in allowing the Storm Point
to operate without a whistle control of any kind
on the flying bridge. The evidence is that the
purpose of the flying bridge is that it can be
used by the Master in close quarters situations
for docking and loading, etc., because of the
improved ability to see in all directions, as
compared to the wheelhouse, where the visibili
ty is to some extent restricted. The evidence
was also that the flying bridge is generally not
intended for use in outside waters. However,
Peter Shields acknowledged that there would be
times coming out of False Creek with the
Master on the flying bridge when the whistle
should be blown from the flying bridge. The
only controls on the flying bridge were the
throttle, gear and wheel.
Helsing testified that he had been on the
flying bridge some of the time after leaving
Johnston Terminals, but that he was in the
wheelhouse conversing with the deckhand Iver-
son as they were leaving False Creek and pro
ceeding into English Bay. When they were
about 900 to 1,000 feet from the Stein sailboat,
he became concerned about a collision and then
went to the flying bridge. Even at that late point
in time, a whistle control on the flying bridge
would have been useful. I am advised by the
assessors that it is normal practice to have
duplicate controls on the flying bridge, that is,
the same controls as are in the wheelhouse, and
that includes a whistle control. This view is
confirmed to some extent by the affidavit of
Robert K. Dalgleish, the marine superintendent
of Georgia Towing Company who deposed that
his Company in 1970 had 14 tugs fitted with
flying bridges and in all 14 tugs the flying
bridges were fitted with whistle controls.
I have the view that this failure to equip the
flying bridge with a whistle control was to some
extent causative.
Helsing said that he left the wheelhouse to go
to the flying bridge because of his concern
about a possible collision. He also admitted that
he had no possible way of knowing at that time
whether or not those on the sailboat were aware
of the barge (questions 426 to 428 inclusive,
discovery). Had he been able to blow the whis
tle from the flying bridge, he might well have
taken this means of alerting the sailboat. He
should have blown his whistle earlier from the
wheelhouse but even at the later time from the
flying bridge, any signal of alarm or alert may
well have been productive.
Management was guilty of further negligence
in not having an alternative means of activating
the whistle—that is an alternative to the electri
cal button in the wheelhouse. On this vessel, if
the electrical system failed, there was no
mechanical or manual means of blowing the
whistle. One of the assessors advises me that in
all of his years of experience, he has never been
on a vessel where there was not an alternate
method of activating the whistle. His experi
ence was that there was usually a manual means
as well as a mechanical or electrical means. The
other assessor's experience was similar except
ing that he had sailed on some vessels where
there were not two means of blowing the whis
tle but on all such vessels, the means of activat
ing was manual. This would eliminate the possi
bility of not being able to blow the whistle
through electrical or mechanical failure. This
negligence was not causative of the collision in
this case but it is further indication of the rather
casual and careless manner in which this Com
pany and its vessels were being operated.
In conclusion, I find that Peter Shields, the
President and manager of the two corporate
defendants was guilty of the faults and negli
gence herein set out and that at least some of
these faults contributed to the accident.
In proceedings such as this, the onus is on the
owner to show that he had nothing to do with
the cause of the accident—to show that he did
not contribute in any way to what happened.
(Hamilton L.J.—Lennard's case (supra) [1914]
1 K.B. 419 at p. 436.)
In the case at bar, the owner has not dis
charged that onus.
There will therefore be judgment as follows:
(a) Liability for the collision is apportioned
on the basis of 75% to the tugboat Storm Point
and 25% to the Stein sailboat.
(b) The counter-claim is dismissed in so far
as Egmont Towing and Sorting Ltd., and
Shields Navigation Ltd., are concerned. They
will not be allowed to limit their liability. Under
the provisions of s. 649(1) of the Canada Ship-
ping Act, the defendant Helsing as Master of
the tug is entitled to limit his liability. For the
purposes of calculating the limitation of liability
in Helsing's case, I hold that the calculation
should be on a tonnage of 600 tons. Under s.
651(1) of the Canada Shipping Act since the
tonnage of both the tug and tow are under 300
tons, they are deemed to be 300 tons.
I hold also that plaintiffs are entitled to calcu
late on the basis of the combined tonnage of tug
and tow. Liability must be calculated on the
aggregate tonnage of the wrong-doing mass.
(Pacific Express v. The Salvage Princess [1949]
Ex.C.R. 230 at p. 234. See also: Monarch
Towing v. B.C. Cement Co. [1957] S.C.R. 816.)
(c) The plaintiffs will have judgment against
both corporate defendants and the defendant
Helsing for damages to be assessed by a Judge
of this Court.
(d) Costs—The costs of both the action and
the counter-claim will be apportioned on the
same basis as liability has been apportioned in
accordance with (a) hereof.
Pursuant to Rule 337(2)(b), counsel for the
plaintiffs may prepare a draft of an appropriate
judgment to implement the Court's conclusions
and move for judgment accordingly.
The invaluable assistance of the assessors
Captain R. W. Draney and Captain J. A. Mc-
Leish is gratefully acknowledged.
The Canada Gazette, September 8, 1965, P.C.
1965-1552.
2 Marsden, 11th ed., pages 576 and 577.
3 The Canada Gazette, 1955 Consol., p. 2252, P.C. 1954-
1981 dated December 16, 1954.
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.