T-1107-73
Irish Shipping Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J. Vancouver, February 3;
Ottawa, March 11, 1976.
Maritime law—Whether grounding of vessel caused by neg
ligence of Crown servants in implementing and recommending
use of unsafe and dangerous traffic separation scheme—Role
of pilots Crown Liability Act, R.S.C. 1970, c. C-38, s. 3—
Pilotage Act, 1913 (Great Britain), c. 31, s. 15—Pilotage Act,
S.C. 1970-71-72, c. 52, s. 31.
Plaintiff's vessel grounded while passing through the traffic
separation scheme at Haddington Island in Broughton Strait
off the British Columbia coast. Plaintiff claimed that by imple
menting and recommending the scheme, the Department of
Transport owed a duty to vessel owners navigating the strait;
that having been told by pilots that the passage was dangerous
and navigational aids inadequate, the Department should have
reasonably foreseen a possible grounding; that the Department
breached its duty by failing to exercise the standard of care
expected from it; that the grounding probably resulted from
inadequate lighting of the passage; that the cost of removing
the danger by providing a sector light was not unreasonable.
Defendant countered that there is a presumption of fault when
a moveable object collides with a stationary one and that
plaintiff has not explained why the ship grounded. Further,
defendant claims that the island was charted, and visible on
radar; that there were no currents strong enough to ground the
vessel; that the tide was ebbing; that visibility was good; that
the lights should have been easily located and identified; and
that many other ships had passed through. The Crown denies
having created a menace to navigation, claiming that naviga
tors must take waterways as they find them, that modern ships
are equipped with the necessary navigational equipment, and
that the sole cause of grounding was the negligence of those in
control of the ship, more specifically, the pilot.
Held, the action is dismissed. The navigators were never
misled by a navigational aid. While entitled to rely on all such
aids in place and duly published, plaintiff was not entitled to
look for aids that were not there, and which it knew were not
there. Plaintiff has not established negligence; the mere sugges
tion that an extra light might have prevented the accident is not
enough. The ship was not ambushed by a man-made danger.
She travelled a charted waterway and her pilot, aware of
navigational difficulties, voluntarily exposed himself to an exer
cise for which he was trained. Nor is plaintiff exempt from
liability due to the pilot's negligence. The role of the pilot is to
provide local knowledge about areas foreign to the ship's
master. He does not relieve the master of responsibility.
Nord-Deutsche v. The Queen [1969] 1 Ex.C.R. 117;
varied [1971] S.C.R. 849, distinguished. Hendricks v. The
Queen [1970] S.C.R. 237 and Thompson v. North Eastern
Railway Company [1862] 2 B. & S. 106, applied. Work-
ington Harbour & Dock Board v. Towerfield (Owners)
[1951] A.C. 112 and Owners of S.S. "Alexander Shuk-
off'v. S.S. "Gothland" [1921] A.C. 216, discussed.
ACTION.
COUNSEL:
P. D. Lowry for plaintiff.
P. Troop, Q.C., for defendant.
SOLICITORS:
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
DUBÉ J.: This is an action against the Crown to
recover damages sustained by the vessel Irish
Stardust (hereinafter "the vessel") when she
grounded while passing through the traffic separa
tion scheme at Haddington Island in Broughton
Strait on the west coast of British Columbia on the
24th day of January, 1973 at approximately 23:30
during a voyage from Kitimat to Port Mellon. The
plaintiff, owner of the vessel, claims the grounding
was caused by the negligence of the servants of the
Crown, namely officials of the Department of
Transport, in implementing and recommending the
use of a traffic separation scheme which was dan
gerous and unsafe for navigation. The defendant
denies the recommended scheme was dangerous
and unsafe and alleges the grounding of the vessel
was caused solely by the negligence of the plain
tiff, its officers and more specifically the pilot,
Captain Leslie Arthur David Jones who was pilot
ing the vessel through the Strait at the time of
grounding.
The Irish Stardust was built in Cork, Ireland, in
1970 and was designed and equipped specifically
to carry pulp and lumber products from British
Columbia ports to Japan and Europe, with a
length overall of 564 feet and a gross tonnage of
19,191 tons. She is an open hold bulk carrier with
side tanks and double bottom cargo being carried
in four main holds plus one similar cargo hold
forward. She is fitted with a wide transom stern, a
horn rudder, an open stern frame and a Kamewa
controllable pitch propeller which is controlled by
combinator settings on the bridge. It is admitted
that she is an excellent conventional, modern type
vessel possessing good steering and control charac
teristics. On the morning of January 24, 1973
when she sailed from Kitimat at 07:30 bound for
Port Mellon, B.C., a voyage of twenty-eight hours
via the inside passage (between Vancouver Island
and the West Coast) her draft forward was 23'9"
and aft 27'6" with a mean draft of 25'7 1 / 2 " and her
cruising speed was about sixteen knots.
On sailing, the vessel's personnel consisted of
her master, Captain James Caird, fifteen officers,
a crew of sixteen and two pilots to have the
conduct of the vessel through compulsory pilotage
waters: Captain Arthur Joseph Warren and Cap
tain Jones. It is also admitted that at approximate
ly 23:30 on the night of grounding Captain Jones
was the pilot on duty, third officer Patrick
McNulty was on the bridge, quartermaster John
Spack was steering and a cadet was also on watch.
The vessel came in contact with land on the west
side of Haddington Island while passing through
the traffic separation scheme in compulsory pilot-
age waters: the point of grounding is not in
dispute.
It is also agreed that by a notice to mariners
dated February 26, 1971, the Department of
Transport published the implementation of the
traffic separation scheme at Haddington Island
which became effective on May 1, 1971. The
implementation of the traffic separation scheme
involved three officers of the Department of
Transport, at Victoria, Vancouver and Ottawa.
One of plaintiff's main contentions is that because
of the insufficiency of information flowing from
the British Columbia offices to the head office in
Ottawa one very important navigational aid, the
proposed Hyde Creek sector light on Vancouver
Island, was not installed before the implementa
tion date, and indeed before the grounding and
thus caused or at least contributed to the
grounding.
The plaintiff admitted before the trial that all
the aids to navigation shown on Canadian Hydro-
graphic Service Chart 3569, in the Canadian List
of Lights and in the British Columbia Pilot,
Volume 1, all corrected to January 24, 1973 were
in their charted position and functioning as
described thereon at the time of grounding with
the exception of Haddington Island South Light,
the exact location of which was agreed to during
the trial.
I will not attempt the impossible task of con
densing in a few pages all the evidence adduced
and the arguments advanced during the four-week
trial. I will rather outline the case as viewed by
each side then draw my own legal conclusions
based on relevant factual and expert evidence.
The case for the plaintiff goes back to March
15, 1968 when Captain Cyril Edward Burrill, the
Regional Superintendent of Nautical Services in
Vancouver was appointed by letter from the
Department of Transport to coordinate the de
velopment of traffic separation schemes on the
West Coast by meeting with members of the
marine industry having the requisite local knowl
edge and reporting to Ottawa. Captain Burrill did
form and chair a special committee called "Safe
Fishing and Navigation in British Columbia
Coastal Waters" which met and discussed the
proposed scheme. The proposed scheme recom
mended that vessels coming down (in the easterly
direction toward Vancouver) Broughton Strait
would travel south of Haddington Island and that
vessels going up (in the westerly direction toward
Kitimat) would travel north of the Island, thus
creating a two-lane sea highway.
During the summer of 1970, the British
Columbia coast pilots met and objected to the
scheme on the ground that it would be dangerous,
mainly because ships going down the southern
passage have to re-enter into the oncoming traffic
east of the island. Captain R. W. Burnett, a
dynamic spokesman for the pilots, spearheaded the
objections to the implementation of the scheme
before the Burrill Committee and also at the trial.
Captain Burnett presented a submission to the
Burrill Committee which included an alternative.
The alternative was to install several navigational
aids to make the scheme less dangerous, including
a sector light at Hyde Creek on the Vancouver
Island shore. A sector light projects three colours
to oncoming ships, a central white beam to indi
cate the correct approach with a green beam on
one side to indicate that a vessel is too far to
starboard and a red beam to show the vessel is too
much to port.
The second alternative favoured by Captain
Burnett on behalf of the pilots reads as follows':
ALTERNATIVE # 2
If this scheme is to be adopted then it is my opinion that it
should be marked no less plainly than the Helmecken (sic) Is.
scheme. The establishment of the following Aids would, I
believe, achieve the desired results:
(1) The proposed lighted buoy off Neill Rk.
(2) The proposed movement N. Eastward of Neill Ledge Buoy.
(3) The proposed lighted beacon on the south side of Hadding-
ton Is.
(4) The establishment of a lighted range in position 50 35 00
N. 127 01 17 W. and centred on a range of 161 degrees 15
min., showing, narrow red sectors on each side of mid channel
(if a sectored (sic) type lantern is used).
(5) The establishment of a range lantern south of Yellow Bluff
in position 50 35 11 N.-126 27 00 W. on a dolphin and
showing Red from 093 to 098, White from 098 to 104 and Red
from 104 to 119. This surmounted by a Flashing White light
showing Red from 241 to 299.
(6) The establishment of a lighted beacon to mark the shoal
south of Gordon Bluff on a dolphin in position 50 34 24 N.-
126 54 45 W.
' Exhibit P-1, tab #6.
It is my personal opinion that separation is not the answer in
this particular location but rather that shipping should be
encouraged to maintain a straight course from Gordon Bluff
past Yellow Bluff and through Haddington Passage by marking
the Charts clearly with colored lines along the boundaries of
the channel and along the centre line and arranging Aids that
will make the navigation and pilotage of this channel as simple
and as straight forward as possible.
The proposed Hyde Creek sector light is the one
referred to undèr (4). It should be noted at this
point that a chart of the Helmcken Island scheme
referred to in Captain Burnett's second alternative
was filed at the trial and includes two sector lights.
It is also opportune to underline at this time the
fact that the Department of Transport did eventu
ally install such a sector light, but some two years
after the grounding. And it should be pointed out
that there was no evidence that the pilots' alterna
tive proposal was ever sent to Ottawa. However
the majority of the interested parties attending
Captain Burrill's Committee favoured the Cap
tain's traffic separation scheme as implemented.
On February 26, 1971, the Department of
Transport announced the implementation of the
Haddington Island traffic separation scheme in the
weekly edition No. 9 of Canadian Notices to
Mariners. The relevant section 290(P) 2 should be
set out in toto:
290. (P) BRITISH COLUMBIA—BROUGHTON STRAIT—HAD-
DINGTON ISLAND—Traffic Separation Scheme.
1. The scheme is recommended for use by all vessels. Sepa
ration of traffic is achieved by using Haddington Island to
divide eastbound from westbound traffic and by separation
zones to the east and northwest of Haddington Island, east
bound traffic passing south of Haddington Island and west
bound traffic passing north of Haddington Island using
Haddington Passage. No inshore traffic zones are provided.
The Haddington Island traffic separation scheme consists of
the following three parts:
Part I To the northwest of Haddington Island, a separa
tion zone one cable in width centred on position:
(i) 50°36'18"N., 127°01'24"W., and
(ii) 50°37'07"N., 127°02'42"W.
Part II Separation of traffic by Haddington Island.
2 Exhibit P-1, tab #9.
Part 11I To the east of Haddington Island, a separation
zone one cable in width centred on positions:
(i) 50°36'00"N., 127°00'55" W., and
(ii) 50°35'47"N., 127°00'00"W.
2. Direction of Traffic Flow
It is recommended that eastbound traffic pass to the south of
the separation zones and Haddington Island and that west
bound traffic pass to the north of the separation zones and
Haddington Island using Haddington Passage.
It is also recommended that mariners use the radiotelephone
to provide information of their presence and warning to other
ships.
CAUTION
In some instances large vessels and tugs with long tows
proceeding eastbound may have difficulty in making the turn
to starboard to pass south of Haddington Island. Under such
circumstances the master may decide to proceed against the
traffic flow through Haddington Passage but should make
every effort to warn other traffic in the area.
3. Effective Date
The scheme is to come into effect on 1st May 1971, at 1200
hrs. (PST).
4. Chart and Publications
Large scale charts of the area will be amended so as to show
full details of the scheme.
Smaller scale charts will be amended to warn mariners of the
existence of the scheme. Full details of the scheme will also
be given in the Sailing Directions.
5. Traffic Separation Diagram
The accompanying diagram illustrates the above Traffic
Separation Scheme.*
(DOT)(8400-10)
Charts (Which will be affected)-3561-3569-3596.
On September 1, 1972, Captain Jones was, after
successful examinations before a Board of Exam
iners which included a Department of Transport
official, issued a probationary pilot's licence
authorizing him to pilot deep sea ships up to
25,000 gross tons anywhere in the compulsory
pilotage waters of British Columbia. When the
Haddington Island scheme was published before
May 1971 Captain Jones updated his personal
chart of the area and his own pilot course book.
The relevant extract from his course book 3 reads
as follows:
* [The diagram is omitted—Ed.]
3 Exhibit P-9.
DIST
OFF TRUE MAG DIST
Clark Pt. 1M 194 169 224.5 miles
3.3
Dugout Rk. 2.7M 150 155 228.1 miles
7.8
Egg Is. 1.6M 164 139 235.9 miles
5.9
Cape Caution 1.9M 164 139 241.8 miles
11.5
Pine Is. 8 1 / 2 C 134 114 253.3 miles
8.3
Scarlett Pt. 1-2M 120 096 261.6 miles
3.3
Crane Is. 5C 128 104 264.9 miles
3.3
Doyle Is. 7C 137 113 268.2 miles
3.1
Masterman Is. 1.6M 137 113 271.3 miles
2.9
Round Is. 1.3M 137 113 274.2 miles
9.7
Pulteney Pt. 51C 100 076 283.9 miles
4.4
Neill Rk. 2C 129 105 288.3 miles
.8
Neill Ledge IC 151 127 289.1 miles
162 .5
Haddington Is. 2C 103 079 289.6 miles
2.7
[My underlining.]
When the vessel approached Broughton Strait
the night of grounding, Captain Jones' natural
inclinations were to take the traditional route
north of the island, but he decided to follow the
separation scheme for two reasons: firstly, being a
new pilot he felt he should comply with the recom
mendation of the Department of Transport and
secondly he was advised by radio of an oncoming
ship, the Island Princess, a British Columbia ferry,
heading for Alert Bay.
In his evidence Captain Jones stated he steered
the courses in his book "because this is the only
thing I had to go on. I knew these courses were
good if I was in the position". He said he
approached Pulteney Point "on a course of about
137° open to pass off Pulteney Point 5' cables".
When he reached Pulteney Point, "I checked with
radar, I was about a cable south of my position".
He had intended on rounding the Point at 100°
but being south of his intended position he steered
95° "for a short time" then altered back to 100°.
At the time, "looking down Broughton Strait he
could see the lights from the buoys of Neill Rock,
Neill Ledge and north of Haddington Island, all to
starboard".
Captain Jones stated that the third mate was
standing alongside the helmsman by the engine
combinator and checking the man's steering. The
cadet was outside on lookout. Captain Jones was
on the starboard wing watching Neill Rock buoy.
"I wanted to be as close as possible to this buoy so
I was watching this buoy all the way down". He
said the vessel came as close as a cable to a cable
and a half from the buoy. Just before she came
abeam of it he ordered the quarter master "to
bring her around to 129°". "The only thing I could
see then is the Neill Ledge Buoy flashing ...
Everything on the portside of Haddington Island
was black, Vancouver Island was black". [My
underlining.]
He took a quick look at the radar and saw that
his position was "all right". In order not to lose his
night vision, not to be mesmerized by the radar, he
then opted to navigate visually. Half way down to
Neill Ledge he detected that the vessel was start
ing to set. "I was not getting close to the buoy so I
altered course to 140°. I watched it for a minute,
still wasn't pulling us back towards this buoy so I
altered to 150°. The ship was still setting sideways,
still not closing to the buoy". The transcript 4 of
the evidence of Captain Jones in his examination
in chief best describes his interpretation of the last
moments before grounding:
4 Proceedings at trial, Volume II, 146-147.
Q. What did you do?
A. I told him to bring her around to 160. At this time, I was
getting very worried because I couldn't see anything, I
knew we had set quite a ways, so I walked through the
bridge out to the port wing of the ship.
Q. When you say out to the port wing, you mean outside?
A. Right, right outside. When I got outside there, the wake
of the ship lit up the shore and the vessel touched. I yelled
to the third mate to stop the engine, which he did.
Q. You say the vessel touched, how did it feel to you,
standing out there on the wing of the bridge?
A. She just kind of lurched against it and off, that was all.
Q. What did the ship's head do?
A. The head swung to starboard, stern was swinging to port,
but she didn't lose her headway, she still continued
headway.
Plaintiff claims: (1) that the Department of
Transport by implementing a traffic separation
scheme at Haddington Island owed a duty to the
owners of vessels navigating Broughton Strait; (2)
that having been told by pilots that the passage
was dangerous and that the navigational aids were
inadequate, the Department of Transport should
have reasonably foreseen a possible grounding; (3)
that the Department of Transport breached its
duty by failing to exercise the standard of care
expected from it; (4) that the grounding was a
probable result of the passage being inadequately
lit; and (5) that the cost of removing the danger by
providing a sector light at Hyde Creek was not
unreasonable.
On the other hand, defendant argues that "there
is a presumption of fault when a moveable object
collides with a stationary one" and that plaintiff
has never explained why the vessel struck the
rocks. It states that the island is on the chart and
visible on radar. It claims that there were no
currents strong enough to carry the vessel on to the
island; that the tide was ebbing, only at one knot,
and against the ship; that the visibility was good
and clear (more than ten miles); that the various
navigational lights should have been easily located
and identified from the chart and the pilot's course
book. It points out that many other ships have
gone through, before the navigational aids were
put in and after, without grounding.
The Crown further alleges that it has not creat
ed any menace to navigation; that navigators must
take waterways as they find them; that modern
ships, including the Irish Stardust, are fully
equipped with the necessary navigational instru
ments, such as gyro compass, radar, echo sounders,
along with charts, List of Lights, British Columbia
Pilot, Canadian Tide and Current Tables and that
therefore the sole cause of the grounding must
have been the failure of those in charge, the
master of the ship, his officers and crew on duty,
and the pilot, to so navigate the vessel as to ensure
she was on a safe course.
Whereas the plaintiff adduced evidence to show
that the traffic scheme was dangerous, the defend
ant brought forth testimony to establish that the
scheme was recommendable; but no one said that
the southern passage was impassable and the
scheme impossible. Obviously the passage is made
easier at night with the assistance of a sector light
at Hyde Creek and one was so installed some two
years after the grounding.
In the absence of heavy winds, or swift currents,
or tides strong enough to carry the vessel off its
projected course on to the island, and the evidence
is crystal clear that no such factors were present,
then the best explanation as to why the Irish
Stardust grounded on the shores of Haddington
Island is the one demonstrated by Dr. Corlett from
his expert analysis of the course recorder of the
vessel: the ship was not on the course that Captain
Jones assumed she was.
Dr. E. C. B. Corlett proved to be a competent
and impressive witness. A graduate in engineering
from Oxford and a doctor of philosophy in naval
architecture from the University of Durham, he is
presently managing director of Burness, Corlett
and Partners Limited, vice-president of the Royal
Institute of Naval Architects and marine consult
ant for various governments and shipping firms
throughout the world. He has given expert evi
dence in many high courts, including the British
Admiralty Court, the United States Federal Court
and the former Exchequer Court of Canada. He
considered the course or heading recorder trace of
the Irish Stardust for the relevant period before
grounding, made allocations for a one degree misa
lignment of the recording pen and for a one degree
error on the gyro compass and established the
following probable course for the vessel which
takes her directly to the agreed point of grounding.
His preferred interpretation appears at page 55,
volume XII of the proceedings:
A. My interpretation of the course recorder is that the ship
made an approach to Pulteney Point on a course rather
less than 137 although before she reached Pulteney Point,
she was on about 137 according to the course recorder.
Might I have my report back please.
She then made a very easy turn around Pulteney Point
using little helm as shown in my track plots, the curve so
slow that it must be a little helm irrespective of the
calculations one makes.
She straightened out from that turn for one or two
minutes according to the course recorder on about 097.5
for some purpose and then, having fulfulled (sic) that
purpose presumably, she altered on to her base course
down Broughton Strait. That base course was achieved
cleanly and was steered very cleanly with little variation
right down Broughton Strait for approximately twelve
minutes and was 092.5 true.
THE COURT: What degree?
A. 092.5 degrees, my lord, true. When she was approximate
ly abreast off the Neill Rock buoy, but some four and a
half cables north of it, the track shown by the course
recorder shows her initiating a turn to starboard.
THE COURT: That's four and a half cables north of—
A. Neill Rock buoy.
THE COURT: Neill Rock buoy.
A. She initiated her turn to starboard. This turn was also
easy but not nearly as easy as the one around Pulteney
Point and I am of the opinion that whereas only one or
two degrees of helm were used around Pulteney Point,
probably something between five and ten degrees was
used—
THE COURT: By an easy turn, you mean a rather wide turn?
A. A gentle turn, my lord, yes. Somewhere between five and
ten degrees or as has been suggested to me that I said
yesterday, between 6 and 10 degrees. Somewhere be
tween five and ten —1 consider embraces 6 and 10.
I can give the precise figures if they are wanted. The ship
then steadied again on a course which the course recorder
shows to be 125 degrees true. At this point, the track plot
shows her pointing straight down Haddington Passage.
She continued on this course of 125 degrees for about a
minute, which took her somewhere around two and a half
cables along her track on a straight line. She then started
another turn, as shown by the course recorder, to star
board. This turn was of the same nature as the first part
of the turn in the vicinity of Haddington Island but
slightly slacker caused by perhaps one or two degrees less
helm than the first part.
This turn continued until the track plot contacts the
northwest corner of the island. Thereafter, the track plot
continues to starboard, but of course, I must point out
that, as the speed of the ship is now totally indeterminate,
having contacted the ground and the engines having been,
in fact, by now altered after the grounding, it is correct
for direction against time but not for position after the
grounding.
However, it is clear the ship did continue after the
grounding for some time turning to starboard, but at
what speed I, of course, cannot say.
Thus the course recorder places the vessel much
to the north of the course envisaged by Captain
Jones. His course book calls for the vessel to be
only two cables off Neill Rock Buoy. In his evi
dence he said she was one to one and a half cable
off the buoy, whereas the recorder places her at
four and a half cables. That location further north
is corroborated by Captain Albert Stanley Fike of
the Island Princess, the oncoming ferry, who saw
the Irish Stardust north of Haddington Island
before it disappeared behind it. It also explains
why Captain Jones could not see the Haddington
south light before grounding. Moreover the
damage to the hull of the ship was on the port side;
this would occur as she sideswept the shore rocks
of the island in her starboard turn. In any event,
Captain Jones most certainly did not intentionally
follow a course that would put his vessel on the
rocks: I conclude that he was off his course.
If Captain Jones apprehended any difficulty he
still had the option to take the northern passage
and to advise the oncoming Island Princess of his
intention. The scheme was merely recommended
and not compulsory. The notice to mariners
(supra) announcing the implementation of the
scheme included a "caution" to the effect that
large vessels may have difficulty in making the
turn to starboard to pass south of Haddington
Island. "Under such circumstances the master
may decide to proceed against the traffic flow
through Haddington Passage but should make
every effort to warn other traffic in the area".
There is also evidence from a letter (filed as part
of plaintiff's case) dated April 3, 1973 from Cap
tain Morrison, Superintendent, Marine Crews and
Navigation Safety, Department of Transport, to C.
K. Kennedy, Assistant Counsel, that the Hadding-
ton Island separation scheme had perhaps received
international approval. I refer to the second para
graph of the letter: 5
Under the IMCO régime, IMCO is recognized as the only
body responsible for establishing and recommending measures
on an international level concerning routing and areas to be
avoided by ships or certain classes of ships. The IMCO princi
ples further provide that a government proposing a routing
system, any part of which lies within international waters,
should consult with IMCO, etc. In collaboration with IMCO,
the International Hydrographic Bureau recommended the
marking of routing elements on charts by standardized sym
bols. These are specified on page 6 of the attached publication.
Notices to Mariners No. 22 contained in the annual edition of
Canadian Notices to Mariners reflects the provisions of IMCO
and IHO with respect to voluntary routing systems. The traffic
separation scheme at Haddington Island was designed and
marked on the appropriate charts in accordance with the
principles and recommendations of IMCO and IHO. The sepa
ration of traffic by natural obstacles such as Haddington Island
is a method of separating traffic recognized by IMCO in
paragraph 1(b) on page 8 of their publication and illustrated by
figure 2 on page 9. In the case of Haddington Island, a
separation zone was introduced at each approach to the island
so as to complete the separation of traffic in the immediate
approaches.
I hasten to add that the Crown did not call
Captain Morrison or anyone else to testify to the
effect that the scheme had in fact received IMCO
approval. Counsel for plaintiff made the point that
he was not bound by every statement in the above
5 Exhibit P-1, tab #12.
letter, although he had filed it along with many
other documents as part of Exhibit P-1.
Under section 3 of the Crown Liability Act 6 , the
Crown is liable in tort for the damages for which it
would be liable as a private person in respect of a
tort committed by its servants. Plaintiff claims
that officials of the Department of Transport com
mitted a tort by implementing and recommending
a scheme which was dangerous for navigation and
dangerous mostly because of the insufficiency of
navigational aids, in particular the failure to install
a sector light at Hyde Creek on the shore of
Vancouver Island.
The duty of the Crown with reference to naviga
tional aids is discussed in the Hermes decision of
the Exchequer Court' which was varied by the
Supreme Court of Canada 8 . In 1965, the Hermes
with pilot aboard was proceeding down the St.
Lawrence River and collided with an upbound ship
because a range light had been displaced by the ice
and not replaced by officials of the Department of
Transport.
Noël J. held that the Crown was liable in tort
under section 3 of the Crown Liability Act because
Department of Transport officials failed in their
obligation to take the action necessary to ensure
that the pier had not been displaced by ice or to
give warning of the misalignment of the lights. He
said this at pages 171 and 172:
I believe it can be said that navigators of all countries are
welcome to use our navigational rivers and lakes and although
they do benefit from such a use the commercial operations of
all navigators, Canadian and foreign, benefit also the com
merce and industry of Canada. Without the links created by
canals, channels and railways, it is, I believe, doubtful that
Canada as a nation would have known the industrial and
commercial expansion it has now attained. We may, therefore,
take it that all ships plying our waterways are invited and
encouraged to do so and are entitled to rely on the means
supplied to navigate such waters in safety and I would think
that the same would apply to our Canadian ships navigating in
foreign waters who also should be entitled to rely on the means
given to navigate safely in such waters. If this is the situation,
the Crown would owe an unqualified duty to see that such
means are fulfilling their intended purpose to those using our
6 S.C. 1952-53, c. 30.
Nord-Deutsche v. The Queen [1969] 1 Ex.C.R. 117.
8 [1971] S.C.R. 849.
waterways including the channel which leads them to and from
the chief port of this country, Montreal.
I am of the view that there is a fundamental
distinction between the facts of the Hermes case
and the case at bar. The Hermes was misled by a
displaced light which caused her to sheer and
collide. There was a duty placed upon responsible
officials to relocate that light which they did not
carry out. The navigators of the Irish Stardust
were never misled by a navigational aid: it is
admitted that the aids were in place and their
locations duly published on notices, charts and lists
of lights which the pilot had, or should have had,
in his possession, or present in his mind. I do agree
with Noël J. that "all ships plying our water
ways ... are entitled to rely on the means supplied
to navigate such waters in safety", and the Irish
Stardust was entitled to rely on all the navigation
al aids in place and duly published. If any of these
aids as published had been removed, or displaced,
or malfunctioning, one would have looked for
unfulfilled responsibilities. But such was not the
case.
In my view the navigators of the Irish Stardust
were not entitled to look for navigational aids that
were not there and knew were not there. Like
modern highways, waterways are improved and
made safer with time as additional resources are
made available and more and better aids are pro
vided, but ships navigating down the difficult pas
sages of today cannot rely on the improvements of
tomorrow.
In Hendricks v. The Queen', plaintiff's motor
boat swept over a waterfall and his wife drowned.
The Supreme Court of Canada held the Crown
liable because its servants failed to replace warn
ing signs. The Chief Justice said this at page 239:
In my opinion, there was no adequate reason or excuse for
the failure on the part of the employees of the respondent to
replace the warning sign reading "Danger—Falls Ahead", this
failure was negligent and was an effective cause of the disaster
that occurred.
9 [1970] S.C.R. 237.
The plaintiff succeeded because he proved negli
gence on the part of the servants and successfully
established that the negligence caused the acci
dent. In my opinion these two ingredients are
missing in the unfortunate grounding of the Irish
Stardust. The burden of proof is on the plaintiff to
establish the cause of the accident and merely
suggesting that an additional light might have
prevented the accident is not sufficient.
In Thompson v. North Eastern Railway
Company 10 , the pilot knew about the danger lying
ahead and yet his knowledge was held not to be a
bar to his recovery of the claim. Cockburn C.J.
commented as follows at pages 114 and 115:
Clayards v. Dethwick is a direct authority that where danger
has been created by the wrongful or negligent act of another, if
a man, in the performance of a lawful act, voluntarily exposes
himself to that danger, he is not precluded from recovering for
injury resulting from it, unless the circumstances are such that
the jury are of opinion that the exposing himself to that danger
was a want of common or ordinary prudence on his part.
The Irish Stardust was not ambushed by a
man-made danger, she travelled down a charted
waterway. Her pilot's knowledge of the navigation
al difficulties lying ahead merely shows that he
voluntarily exposed himself, not to an unsurmount-
able danger, but to an exercise for which he was
trained and properly equipped.
Over the objection of counsel for the defendant,
learned counsel for the plaintiff raised in his argu
ment the issue of the non-liability of plaintiff for
the negligence of the pilot; the allegation had not
been made in the statement of claim.
Section 31 of the Pilotage Act" makes it quite
clear that the employment of a pilot does not
exempt the owner from liability:
31. Nothing in this Act exempts the owner or master of any
ship from liability for any damage or loss occasioned by his ship
to any person or property on the ground that
(a) the ship was under the conduct of a licensed pilot; or
(b) the damage or loss was occasioned by the fault, neglect,
want of skill or wilful and wrongful act of a licensed pilot.
10 [1862] 2 B. & S. 106.
" S.C. 1970-71-72, c. 52.
Learned counsel suggested that the word exempt
should be interpreted in the same way as its coun
terpart in section 15 of the Pilotage Act, 1913 (2
& 3 Geo. 5, c. 31):
15.—(1) Notwithstanding anything in any public or local
Act, the owner or master of a vessel navigating under circum
stances in which pilotage is compulsory shall be answerable for
any loss or damage caused by the vessel or by any fault of the
navigation of the vessel in the same manner as he would if
pilotage were not compulsory. [My underlining.]
In Workington Harbour & Dock Board v. Tow-
erfield (Owners) 12 , the House of Lords held that
the wording of said section 15 was not happy. Lord
Normand said at page 145:
The wording of s. 15 is not happy. The word "answerable" is
not the cause of the difficulty, and it is merely the equivalent of
"responsible". But the words "answerable for any loss or
damage caused by the vessel", though apt when the claim is
against the owner of a ship, are incapable of applying when the
claim is by the owner for damage done to his ship. The words
"answerable for any loss or damage caused . .. by any fault of
the navigation of the vessel" are ill chosen and clumsy, but they
are capable of applying to the shipowner's claim.
Prior to the Pilotage Act, the Master voluntarily
employed the pilot and the owner was liable for his
negligence. The first paragraph of chapter 10,
"Liability for Negligence of Pilot", Marsden, Col
lision at Sea, volume 4, page 217, reads as follows:
A pilot whom the owner or master of a ship voluntarily
employs to navigate the ship being the servant for that purpose
of the owner, the owner is answerable for a collision caused by
his fault or negligence, and the ship is liable in Admiralty; and
it is provided by the Pilotage Act, 1913, that where pilotage is
compulsory the owner shall also be answerable.
Section 31 of the Pilotage Act does not take
away the owner's liability but makes it statutory.
The House of Lords' decision in Workington
Harbour & Dock Board v. Towerfield (Owners)
(supra) establishes that the word "answerable" in
section 15 of the Pilotage Act, 1913, means
"responsible" and the liability of the owner exists
where the damage is sustained by his own ship as
well as where the damage is done to other
property.
12 [1951] A.C. 112.
At first blush it does appear to be harsh for
owners of a ship to be liable for damage occurring
to their ship while she is being navigated by a pilot
who has been imposed upon them and who is not
one of their servants. But the role of the pilot is to
provide local knowledge about areas foreign to the
master of the ship; he does not relieve the master
of his responsibilities. The officers and crew on the
bridge are there for a purpose, to be on guard,
alert and ready to provide quick assistance. That
rule is well illustrated in a House of Lords' deci
sion, Owners of S.S. "Alexander Shukoff' v. S.S.
"Gothland" 13 at page 223:
The second is that this rule, which is intended as a measure of
security, does not mean, and must not be taken to mean, that a
pilot when once he is in charge of a vessel is so circumstanced
that the master and crew owe him no duty to inform him of
circumstances which, whether he has noticed them himself or
not, are material for him to know in directing the navigation of
the vessel. The master and crew are not mere passengers when
a pilot is on board by compulsion of law. The pilot is entitled to
their assistance, and to apply the defence of compulsory pilot-
age to a case where the accident would have been averted if
such assistance had been given, though in fact it was not, would
defeat the policy which has created the defence, and so far from
increasing the safety of navigation would actually increase its
risks.
And Lord Birkenhead goes on at page 224 to
quote Lord Alverstone:
In The Tactician [1907] P. 244, 250 Lord Alverstone C.J.
stated the rule in these terms: "The cardinal principle to be
borne in mind in these pilotage cases ... is that the pilot is in
sole charge of the ship ..." and he expressed his agreement
"with the opinions of the very learned judges, from Dr. Lush-
ington downwards ... as to the danger of a divided command,
and the danger of interference with the conduct of the pilot;
and that if anything of that kind amounts to an interference or
a divided command serious risk is run of the ship losing the
benefit of the compulsory pilotage. ... But side by side with
that principle is the other principle that the pilot is entitled to
the fullest assistance of a competent master and crew, of a
competent look-out, and a well-found ship."
I am of the view therefore that plaintiff is not
entitled to the relief sought in the statement of
claim. The action is dismissed. Counsel for the
defendant requested that argument on costs be
deferred until after judgment. I invite submissions
in writing on that matter.
13 [1921] 1 A.C. 216.
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.