A-261-76
Irish Shipping Limited (Appellant)(Plaintiff)
v.
The Queen (Respondent)(Defendant)
Court of Appeal, Pratte, Hugessen and Stone
JJ.—Vancouver, November 29 and 30, 1983;
Ottawa, January 5, 1984.
Maritime law — Crown liability — Ship running aground
while inexperienced pilot following route recommended by
federal department pursuant to traffic separation scheme —
No rule Crown enjoys "ownership, occupation, possession or
control" as per Crown Liability Act s. 3(1)(b) if passage
rendered safe for navigation — Natural rather than developed
passage — Evidence not establishing factual elements of neg
ligence allegedly committed by Crown servants as per s. 3(1)(a)
— Appellant arguing scheme dangerous without beacon and
grounding caused primarily by recommendation of use —
Operation of vessel on waterway not readily equated with
operation of motor vehicle on highway — No man-made
danger — Scheme not inherently dangerous — Pilot lacking in
ordinary prudence — Absence of possibly helpful beacon not
contributing to grounding — Whether Pilotage Act s. 31
makes appellant responsible for damage — Crown Liability
Act, R.S.C. 1970, c. C-38, ss. 3(1)(a),(b), 4(2) — Pilotage Act,
S.C. 1970-71-72, c. 52, s. 31.
Crown — Torts — Ship running aground while following
route recommended by federal department pursuant to traffic
separation scheme — No rule Crown enjoys "ownership, occu
pation, possession or control" as per s. 3(1)(b) if passage
rendered safe for navigation — Evidence not establishing
factual elements of negligence allegedly committed by Crown
servants as per s. 3(1)(a) — Appellant arguing scheme danger
ous without beacon and grounding caused primarily by recom
mendation of use — No man-made danger — Scheme not
inherently dangerous — Pilot lacking in ordinary prudence —
Absence of possibly helpful beacon not contributing to ground
ing — Whether Crown liable in negligence for unreasonably
delaying implementation of policy decision — Crown Liability
Act, R.S.C. 1970, c. C-38, ss. 3(1)(a),(b), 4(2).
Under the auspices of the federal Department of Transport, a
scheme was proposed with a view to separating eastbound and
westbound shipping in the vicinity of Haddington Island, in
Broughton Strait, off the British Columbia coast. According to
this scheme, eastbound vessels were to adopt a new route
around the island—a route which entailed a series of substan
tial alterations in course. Westbound ships were to continue
using the more direct route traditionally followed by all traffic.
Implementation of the scheme was preceded by consultation
between the Department and local pilots. The pilots expressed
reservations about the scheme. One of the alternatives which
they put forth was that a light be installed at Hyde Creek, on
the shore of Vancouver Island, to assist ships navigating the
new eastward route. Nonetheless, in November 1970, at a
meeting which included pilots and departmental representa
tives, it was agreed that the scheme would be adopted for a
one-year trial period. In April 1971, the Department accepted
the suggestion that a Hyde Creek light be established. How
ever, no such light was installed prior to May 1971, at which
time the scheme was introduced, as previously scheduled. Use
of the new route was not compulsory for eastbound traffic, but
it was recommended by the Department.
On the expiration of the trial period, the scheme was con
tinued. It was therefore in effect on the night of January 24,
1973; but only subsequently did a light at Hyde Creek begin to
operate.
On the last-mentioned night, the appellant's ship was
approaching Haddington Island, heading east. It was piloted by
Captain Jones, who was inexperienced as a pilot and was
making his first trip through Broughton Strait on board a
deep-sea vessel. Partly because he felt that, as a new pilot, he
should respect the Department's recommendation, Jones decid
ed to follow the route designated in the separation scheme.
After various shifts in course, the ship ran aground on the shore
of Haddington Island.
The appellants sued in the Trial Division for the damages
that resulted. The Trial Judge found that the grounding
occurred because the pilot was off course, and dismissed the
action. An appeal was taken from this decision.
Held, the appeal should be dismissed.
In order to succeed, the appellant had to fix the Crown with
liability in tort by bringing the case within subsection 3(1) of
the Crown Liability Act.
Paragraph 3(1)(b) has no application here. Rivard v. The
Queen does not stand for the general proposition that if the
Crown has taken steps to render a passage safe for navigation,
the passage is then property in respect of which the Crown
enjoys "ownership, occupation, possession or control", within
the meaning of paragraph 3(1)(b). In the Rivard case, the
damages arose out of work done by the Crown on the bank of a
river, while the passage adjacent to Haddington Island that was
included in the scheme is a natural one. It was not within the
"ownership, occupation, possession or control" of the Crown.
It was also argued that liability attached under paragraph
3(1)(a), "in respect of a tort committed by a servant of the
Crown". The appellant alleged particular omissions or acts on
the part of certain Crown servants which, it argued, constituted
negligence. However, the evidence does not establish key facts
encompassed by those particulars.
The appellant maintained that, in the absence of a light at
Hyde Creek, implementation of the traffic separation scheme
created a situation dangerous to eastbound vessels, and that the
primary cause of the grounding was the Department's recom
mendation of adherence to the scheme in the light's absence.
According to the appellant, the significant consideration was
that the grounding would have been avoided if there had been
no implementation and recommendation without the light.
Therefore, it was contended, even if Jones was negligent the
appellant was still entitled to recover damages. Here, the
appellant was invoking the principle enunciated in the Thomp-
son case: namely, that one who voluntarily and lawfully exposes
himself to a danger created by the wrongful or negligent act of
another is not precluded from recovering for injury sustained as
a result, unless in exposing himself to the danger he was guilty
of a want of ordinary prudence. The appellant also relied upon
a series of cases, beginning with Rider y Rider, in which either
a municipal authority or the Crown was held liable in negli
gence for damages occasioned by the existence of dangerous
conditions on a highway.
The Rider line of cases is not applicable herein. For one
thing, it is difficult to accept that the operation of a vessel upon
a waterway can properly be equated with the operation of a
motor vehicle on a highway. The care and skill that are
reasonably required with respect to the former are much great
er than those which are demanded vis-Ã -vis the latter; and
while the principles developed in the highway cases might on
occasion be applied in relation to shipping casualties, great
caution would be required in so applying them. In any event,
though, each of the decisions in the Rider series is otherwise
distinguishable from the case at bar, inasmuch as each of them
dealt with a man-made danger, and with conditions that were
inherently dangerous. No man-made danger was present in the
instant case, nor was there anything that rendered the scheme
inherently dangerous.
Nor is there any indication in the record that the respondent
contributed to the grounding. Even though the presence of a
light at Hyde Creek might have helped the pilot to become
aware of his own errors sooner than he did, the light's absence
played no part in the mishap. The cause of the grounding lay in
the manner in which the ship was conducted. The grounding
was due to a want of ordinary prudence on the part of the pilot.
The appellant also sought to fix the Crown with liability in
negligence for unreasonably delaying the implementation of a
policy decision—specifically, the decision to install a light at
Hyde Creek. However, it is unnecessary to consider the merits
of this argument. As well, it is unnecessary to consider whether
section 31 of the Pilotage Act makes the appellant responsible
for the damage to the vessel.
CASES JUDICIALLY CONSIDERED
APPLIED:
Thompson v. North Eastern Railway Company (1862),
121 E.R. 1012; 2 B. & S. 106 (Exch. Chamber); Stoom-
vaart Maatschappy Nederland v. Peninsular and Orien
tal Steam Navigation Company (1880), 5 App. Cas. 876
(H.L.).
DISTINGUISHED:
Rivard v. The Queen, [ 1979] 2 F.C. 345 (T.D.); The
Queen v. Côté, et al., [ 1976] 1 S.C.R. 595; Wuerch v.
Hamilton (1980), 8 M.V.R. 262 (B.C.S.C.); Malat et al.
v. Bjornson et al. (1980), 114 D.L.R. (3d) 612
(B.C.C.A.); Rider v Rider, [1973] 1 All E.R. 294 (C.A.).
REFERRED TO:
We!bridge Holdings Ltd. v. Metropolitan Corporation of
Greater Winnipeg, [1971] S.C.R. 957.
COUNSEL:
David Roberts, Q.C. for appellant (plaintiff).
Derek H. Aylen, Q.C. and G. O. Eggertson for
respondent (defendant).
SOLICITORS:
Campney & Murphy, Vancouver, for appel
lant (plaintiff).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
STONE J.: On January 24, 1973, at 2330 hours
the Irish Stardust was damaged when she ground
ed near the northwestern shore of Haddington
Island in the Broughton Strait, which lies between
Malcolm Island and Vancouver Island. Her
owners, the appellant, brought this action to recov
er their losses both for the cost of repairing the
vessel and for loss of use during the period of
repair. The action came on for hearing before
Dubé J., at Vancouver and, in due course, on
March 11, 1976 he dismissed it.' The shipowners
now appeal from his decision alleging a number of
errors which are discussed later in these reasons.
' [1977] 1 F.C. 485 (T.D.).
Before dealing with the legal questions at issue,
it is necessary first to sketch in a general way the
factual background. The Irish Stardust is a con
ventional bulk carrier of 564 feet in length, 85 feet
of beam, and a gross tonnage of 19,191 tons. At
the time of departure on her voyage from Kitimat
to Port Mellon, she was drawing 23 feet 9 inches
forward, 27 feet 6 inches aft and she had a mean
draft of 25 feet 7 1/2 inches. Her bridge is located
aft. She was fitted with a variable-pitch propeller
which was controlled from the bridge. The learned
Trial Judge found [at page 487] that she possessed
"good steering and control characteristics".
As Broughton Strait is a compulsory pilotage
area, at the time of her grounding the vessel was
being conducted by a licensed British Columbia
coastal pilot, Captain L. A. D. Jones. On the
bridge with him was a second licensed B.C. coastal
pilot, the third officer of the vessel, her wheelsman
and a cadet. The master was in his quarters which
were located immediately below the bridge deck.
Though an experienced mariner, Captain Jones
was new to piloting, having received his probation
ary licence only in 1972 after serving his appren
ticeship and passing his pilotage examinations. On
the other hand, he had over thirty years of sea
experience and had obtained his Master's Certifi
cate of Competency from the Department of
Transport in 1956. Earlier, when the vessel sailed
north to Kitimat before proceeding to Port Mellon,
Captain Jones had served on board. However, the
passage in question was his first through Brough-
ton Strait on board a deep-sea vessel. Captain
Jones maintained an up-to-date set of coastal
charts from which he developed a course book for
use in carrying out his duties as a pilot in these
waters.
Vessels eastbound through Broughton Strait
enter it at Pulteney Point at the western end of
Malcolm Island. Their passage through these
waters takes them in a general easterly direction
past Haddington Island and Cormorant Island and
onward toward Johnstone Strait. On May 1, 1971,
a traffic separation scheme was introduced by the
Department of Transport in the area of Hadding-
ton Island for a one-year trial period. It was
continued after expiry of the trial period and was
in effect on the night of the grounding. This
scheme was not compulsory but the Department of
Transport had recommended its use by all vessels.
Prior to its introduction, vessels proceeding in
either direction through the Broughton Strait used
Haddington Passage, a well-marked natural chan
nel of approximately 1,500 feet in width, situated
between the northern end of Haddington Island
and Haddington Reefs. Under the traffic separa
tion scheme, a westbound vessel would continue to
use Haddington Passage, but an eastbound vessel
would need to alter her course to starboard as she
arrived in the vicinity of Haddington Island and
then proceed in a southerly direction so as to pass
through a natural passage of approximately 1,800
feet in width lying between the western side of that
island and the eastern edge of Neill Ledge. She
would then need to alter to port after passing the
southern end of Haddington Island and proceed
once more in an easterly direction so as to re-enter
the traditional traffic route running toward John-
stone Strait.
The pilot Jones took over the con of the Irish
Stardust some time before she reached Pulteney
Point. The night was clear but dark. There was no
moon. The vessel was travelling at approximately
16 knots, her full sea speed. There was a following
wind from the northwest. As she passed Pulteney
Point abeam, the pilot determined by radar that
the vessel was about one cable south of where he
had planned she should be and as he had recorded
in his course book. His plan had been to pass that
Point at a distance off of 5 1/2 cables. From that
Point his planned easterly course, as recorded in
his course book, was to have been 100°T so as to
take the vessel past Neill Rock, a distance off to
starboard of 2 cables. That rock lies at the north
ern edge of Neill Ledge and at a straight-line
distance from Pulteney Point of some 4.4 miles.
From Neill Rock light to Neill Ledge light, a
distance of 0.8 miles, his planned course of 139°T
would have taken the vessel to port of that light at
a distance off of 1 cable. In order to transit the
passage between the ledge and western shore of
Haddington Island, the pilot had planned to alter
course at Neill Ledge light to 127°T so that the
vessel would pass to starboard of Haddington
Island South light located on the south shore of
Haddington Island, at a distance off of 2 cables.
As the vessel entered Broughton Strait at Pul-
teney Point, the pilot could see the lights down as
far as Haddington Island, including the light on
Neill Rock, Neill Ledge and at the north end of
Haddington Island. Finding that his passage past
that Point was one cable farther south than he had
planned, the pilot made a correcting alteration to
92.5°T and proceeded. As a result, the vessel
passed Neill Rock light at a distance off to star
board of some 4 1/2 cables instead of 2 cables as
he had planned. The position of the Haddington
Island South light situate at the south end of the
island is such that it cannot be seen from an
eastbound vessel after passing a certain point. It
"shuts out". Captain Jones was aware that this
would occur with his vessel on a course of 100°T
when it arrived at a point that was bearing 124°T
from the light. At that point, the vessel would still
be a short distance west of Neill Rock light.
On the night in question, the Irish Stardust
proceeded eastward past Neill Rock light and well
to the north of it as already mentioned. As she
proceeded, the pilot noticed the Haddington Island
light shutting out. He consulted one of the vessel's
two radar sets from time to time until he reached
Neill Rock light but ceased doing so at that light
because of the radar's effect on his "night vision".
From that point onward he relied entirely on visual
observations unaided by radar. After the Hadding-
ton Island South light had shut out, the only
visible object in front of his vessel was the quick-
flashing light on Neill Ledge shoal. It lay approxi
mately 1,800 feet to the westward of the western
most part of Haddington Island. The island itself
was not visible to him. Nor was the shore of
Vancouver Island. The area was in total blackness
punctuated only by the flashing of the light on
Neill Ledge shoal.
As the vessel came into the vicinity of Neill
Rock light the third mate was standing alongside
the wheelsman by the engine combinator, the
cadet was outside on lookout, and Captain Jones
was on the starboard wing of the bridge watching
Neill Rock buoy as he wanted to pass by it as close
as possible. Just before the vessel arrived abeam of
that buoy, the pilot ordered the wheelsman "to
bring her around to 129°T". At that time the pilot
could see only the Neill Ledge light. He took a
quick look at the radar and saw that his position
was "all right". Halfway down to Neill Ledge
light, the pilot detected that the vessel was starting
to set to port. When she was not getting close to
the buoy, Captain Jones altered course first to
140°T and then to 150°T. Feeling that the vessel
was still setting sideways and not coming close to
the buoy he ordered another course alteration, this
time to 160°T. Notwithstanding these manoeuvres,
the port bottom of the Irish Stardust touched the
ground near the northwest shore of Haddington
Island. The shore of the island became visible to
the pilot from his position on the port wing of the
bridge which he had assumed shortly before the
grounding occurred.
The learned Trial Judge found that all aids to
navigation shown on the chart of these waters and
in the published "Lists of Lights" were in their
charted positions and functioning as described at
the time of the grounding with the exception of the
Haddington Island South light, the exact location
of which was agreed during the trial. As to the
cause of the grounding, the learned Trial Judge
had this to say in his reasons for judgment (at
page 495):
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
that] the ship was not on the course that Captain Jones
assumed she was.
The learned Trial Judge expressly found (at page
497) that the pilot "was off his course" at the time
the grounding occurred.
When the vessel approached Broughton Strait
on the night of the grounding, Captain Jones'
natural inclinations were to take the traditional
route north of Haddington Island but decided to
follow the separation scheme for two reasons.
Firstly, being a new pilot, he felt he should comply
with the recommendation of the Department of
Transport and, secondly, he was advised by radio
of an oncoming ship, the Island Princess, a British
Columbia ferry which was destined to Alert Bay.
The Department of Transport had included this
rather pointed reminder in its "Notices to
Mariners":
Mariners are reminded that it is dangerous to proceed
against the general direction of traffic flow indicated by chart
ed arrows or published as recommended courses. It should be
borne in mind that Admiralty Courts have held that where
traffic routes are established for the common safety of all ships
and delineated on the official charts, "it is negligent navigation
to leave them without reason".
Nevertheless, the learned Trial Judge concluded
(at pages 497-498) that if Captain Jones
apprehended any difficulty in using the scheme
"he still had the option to take the northern pas
sage and to advise the oncoming Island Princess of
his intention. The scheme was merely recommend
ed and not compulsory."
Compared with a transit eastbound through
Haddington Passage calling for but a slight star
board alteration in the vicinity of Haddington
Island, a transit eastbound through the scheme to
the west and south of Haddington Island called for
somewhat more manoeuvring in that the vessel
needed to make a substantial starboard alteration
at Neill Rock light, a second such alteration at
Neill Ledge light and finally a substantial port
alteration after passing the southern end of Had-
dington Island so as to re-enter the traditional
eastbound route leading to Johnstone Strait.
As the appellant contends that the primary
cause of the grounding was the recommendation
made by the respondent that the Irish Stardust
use the traffic separation scheme and that such
scheme had created a situation that was dangerous
to eastbound vessels, it becomes necessary to
review briefly the background which led up to the
implementation of that scheme on May 1, 1971.
That story began in 1968 when Captain Graves,
the Chief of the Nautical and Pilotage Division of
the Department of Transport in Ottawa, instructed
Captain C. E. Burrill, the Regional Superintend
ent of Nautical Services at Vancouver, to consider,
in conjunction with the west coast marine industry,
the separation of the traffic sailing in coastal
waters, particularly in so far as commercial ship
ping was affected by seasonal concentrations of
fishing vessels. In the sequel, the Haddington
Island traffic separation scheme was one of two
schemes implemented by the Department of
Transport on the coast of British Columbia, nei
ther of which separated commercial shipping from
fishing vessels, but rather were intended to sepa
rate vessels meeting from opposite directions at
two locations. It is clear that the decision to imple
ment the separation scheme at Haddington Island
was the responsibility of the Department of Trans
port officials in Ottawa and that neither Captain
Burrill nor any of the Department's personnel on
the west coast had any authority to do so. In fact,
the decision to implement the scheme was made by
the Superintendent of Marine Crews and Naviga
tion Safety in Ottawa, Captain A. Morrison, in
conjunction with Captain Graves. Clearly, they
relied heavily upon the local knowledge peculiar to
mariners having extensive experience on the west
coast.
After receiving this mandate, Captain Burrill
convened a meeting of interested persons in Van-
couver in June of 1968 and formed a committee
which included two west coast pilots. This commit
tee, chaired by Captain Burrill, became known as
the "Burrill Committee". It met on February 22,
and October 16, 1969. The two west coast pilots on
that committee were also members of the "Pilots'
Committee" which convened regularly to consider
matters of interest to pilots employed in the navi
gation of deep-sea vessels on the west coast. That
committee also served the function of com
municating to the Department of Transport the
views expressed by pilots concerning matters of
navigation. At the meeting of the Burrill Commit
tee held on Octrober 16, 1969, it was agreed that,
if the scheme was introduced whereby eastbound
traffic would pass south of Haddington Island and
westbound traffic would pass to the north along
the traditional route through Haddington Passage,
four changes in aids to navigation would be
required. These were: (1) the placement of a light
ed buoy on Neill Rock; (2) relocation of the Neill
Ledge light farther to the northeast; (3) installa
tion of a light on the south shore of Haddington
Island; and (4) replacement of a can buoy at Alert
Rock, opposite the westerly end of Cormorant
Island, with a lighted buoy.
By July of 1970, the office of the District
Manager of the Department of Transport at Vic-
toria, L. E. Slaght, had installed the lighted buoy
at Alert Rock. Captain Burrill prepared a chartlet
illustrating the scheme and sent it to Captain
Graves in Ottawa. He also sent a copy along with
a draft "Notice of Mariners" introducing the
scheme to the pilots and invited their comments
and suggestions. He advised the pilots that
although the scheme would not be compulsory, it
would be recommended that they follow it for their
own safety and that of other seafarers. The leading
spokesman for the pilots was Captain R. W. B.
Burnett, himself a British Columbia west coast
pilot and a member of the Pilots' Committee. By
October 1970, the comments of the marine indus
try had been received. They expressed reservations
about the scheme and proposed two alternatives
prepared by Captain Burnett and which Captain
Burrill circulated to the industry. The first alterna
tive proposed a two-lane corridor through Had-
dington Passage, one for eastbound and the other
for westbound traffic. The second alternative pro
posed, inter alia,
the establishment of a lighted range in position 50 35 00 N 127
01 17 W and centered on a range of 161 degrees 15 min.,
showing narrow red sectors on each side of mid-channel (if a
sectored type lantern is used).
A light installed at that position would have placed
it on the shore of Vancouver Island at Hyde
Creek. The learned Trial Judge found that there
was no evidence that this second alternative pro
posal was sent to Ottawa.
On November 5, 1970, a meeting of the marine
industry, including the pilots and representatives
of the Department of Transport, was convened in
Vancouver. It was chaired by Captain Burrill. The
pilots argued for the two-lane east-west corridor
through Haddington Passage. There was also
"considerable pressure" for the installation of a
sector light at Yellow Bluff on Cormorant Island
as an aid to westbound shipping. In the end, it was
agreed at this meeting that the separation scheme
be adopted for a trial period of one year provided
the sector light at Yellow Bluff be established. On
November 23, 1970, a "Notice to Shipping" was
issued announcing the proposed scheme.
On February 26, 1971, the Department of
Transport announced the implementation of the
Haddington Island traffic separation scheme in a
weekly "Notice to Mariners", which reads, in part:
1. The scheme is recommended for use by all vessels. Separa
tion 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, eastbound traffic
passing south of Haddington Island and westbound traffic
passing north of Haddington Island using Haddington Passage.
No inshore traffic zones are provided.
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 radio-telephone to
provide information of their presence and warning to other
ships.
CAUTION
In some instances large vessels and tugs with long tows pro
ceeding 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).
However, this does not end the story of the
pilots' opposition to the scheme. Captain Burnett
piloted a deep-sea vessel at night through the
proposed scheme some time prior to November
1970, although the precise date was not in evi
dence. The weather was sufficiently clear that the
lighted aids to navigation then in place were visible
to him as were Haddington Island and the shore of
Vancouver Island. Captain Burnett concluded that
the Hyde Creek light ought to be installed. In
consequence, a further meeting of the marine
industry and of Department of Transport repre
sentatives was convened at Vancouver on April 26,
1971, a few days before the trial period was to
commence. Captain Burnett was in attendance. It
is apparent that the installation of a light at Hyde
Creek was discussed, for in the minutes of that
meeting we find the following:
Vessels having trouble making the turn at the South End
without something to relate to on the South Shore. Suggest a
range light on South Shore.
It was agreed by counsel that the reference to
"South End" is to the south end of Haddington
Island, and that "South Shore" refers to the shore
of Vancouver Island in the vicinity of Hyde Creek.
It is also clear that the Department of Transport
accepted the suggestion for a light at Hyde Creek
for there is evidence that in the following month
the Department took action to consult with the
marine industry as to the type of light to be
installed. By July, the industry had suggested a
tricoloured range light. In November, the Depart
ment of Transport wrote to the owner of the land
on which the light would be installed. He resided
in Seattle, Washington. He was sent a chartlet and
was informed by the Department of Transport that
the light had been requested as an "aid to naviga
tion to safely lead marine vessels past the west end
of Haddington Island". In fact, a light at Hyde
Creek did not become operational until May of
1973, some four months after the grounding and
more than two years after the Department of
Transport had agreed to install it. It took the form
of a tricoloured sector light visible to eastbound
vessels after passing Neill Rock light, and consist
ed of a green westerly sector, a white middle
sector, and a red easterly sector.
It is in these circumstances that the appellant
seeks to fix the respondent with liability for the
damages sustained by the Irish Stardust as a
result of the grounding. Counsel for the appellant
conceded that in order to succeed he had first to
bring his case within the provisions of subsection
3(1) of the Crown Liability Act [R.S.C. 1970, c.
C-38]. He contended that both paragraphs (a) and
(b) of that provision were applicable. That subsec
tion and subsection 4(2) read as follows:
3. (1) The Crown is liable in tort for the damages for which,
if it were a private person of full age and capacity, it would be
liable
(a) in respect of a tort committed by a servant of the Crown,
or
(b) in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property.
4....
(2) No proceedings lie against the Crown by virtue of
paragraph 3(1)(a) in respect of any act or omission of a servant
of the Crown unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in tort
against that servant or his personal representative.
In support of its contention that the respondent
has incurred liability under paragraph 3(1)(b), the
appellant relied upon the case of Rivard v. The
Queen 2 in which Walsh J. held that the St. Law-
rence River as a navigable waterway was in the
"ownership, occupation, possession or control" of
the Crown in right of Canada within the meaning
of that provision. A review of that case satisfies me
that, in this view, the learned Judge was address
ing himself to the particular circumstances of that
case which was concerned with alleged damage to
the plaintiffs property by the Crown as a result of
the placement of rocks against the bank of the
river and in front of his property as an anti-erosion
measure. I do not think that the learned Judge
intended to lay down the general principle for
which the appellant now contends, namely, that
when the Crown has taken steps to render a navi
gable passage safe for navigation, such waters are
in the "ownership, occupation, possession or con
trol" of the Crown within the meaning of para
graph 3(1)(b). The St. Lawrence River is part of
the St. Lawrence Seaway system which is operated
by the Crown. The plaintiffs damages arose out of
work done by the Crown along the shore of the St.
Lawrence River to prevent erosion of land situated
on the river bank. In the present case, the passage
between Haddington Island and Neill Ledge shoal
is a natural one and while it was included in the
traffic separation scheme, I do think that it was in
the "ownership, occupation, possession or control"
of the Crown in right of Canada within the mean
ing of paragraph 3(1)(b).
2 [1979] 2 F.C. 345 (T.D.).
I pass next to consider arguments presented by
counsel for the appellant that the Crown has
incurred liability under paragraph 3(1)(a) of the
Crown Liability Act. In essence, he submitted that:
1. The Crown is liable because of alleged negli
gence on the part of Captain Burrill in not disclos
ing to Captain Morrison in November 1970 that
the B.C. coastal pilots were strongly opposed to
deep-sea vessels navigating south of Haddington
Island at all and that they considered the estab
lishment of a light at Hyde Creek necessary before
the implementation of the traffic separation
scheme.
2. Captain Burrill was negligent in doing noth
ing after being told by the B.C. coastal pilots on
April 26, 1971 that difficulty was being
experienced by those navigating south of Hadding-
ton Island and that a steering light on the shore of
Vancouver Island was needed to cure the difficulty
and make the passage safe for deep-sea navigation.
3. Mr. Slaght, as District Manager of the
Department of Transport, was negligent in failing,
without reasonable excuse or explanation, to install
a steering range light at Hyde Creek promptly
after being told on April 26, 1971 by the B.C.
coast pilots that such light was needed to make the
passage around the west end of Haddington Island
safe for deep-sea vessels.
4. Captain Burrill was negligent when he told
Captain Morrison before the latter decided to
continue the scheme after the expiry of the trial
period, that "no difficulties had been reported to
his office" with the result that the scheme which
took effect without a steering light at Hyde Creek
for a one-year trial period commencing May 1,
1971, was continued.
I shall deal with each of these points in its turn.
A review of the record has not convinced me
that the scheme came into effect on May 1, 1971
over the outright opposition of the pilots. While
the learned Trial Judge found [at page 489] that
the pilots had indeed objected to the scheme in the
summer of 1970, it was "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." There was
no finding to the effect that the scheme was inher
ently dangerous. Moreover, while the installation
of a light at Hyde Creek was discussed at the
November 5, 1970 meeting, I do not find in the
evidence that the pilots made their consent to the
implementation of the scheme contingent upon the
installation of that light. It is true that the pilots
were concerned that such light be installed and, in
fact, as late as April, 1971, they renewed their
request. But there is nothing in the record to
establish that the pilots had altered their previous
position a few days before the scheme was to take
effect by requesting the installation of that light in
advance of its implementation. It would appear
that at that meeting the Department of Transport
agreed to install the light, for by May of 1971 it
had begun the process by which its installation was
ultimately achieved in May of 1973. I am unable
to see how Captain Burrill was negligent as
charged when, it fact, the decision to proceed with
the scheme was taken only after it had been
approved in November, 1970 for a one-year trial
period by all concerned, including the pilots.
It is then charged that Captain Burrill was
negligent in doing nothing after being told by the
B.C. pilots on April 26, 1971, that difficulties were
being encountered by those navigating through the
scheme south of Haddington Island and that a
steering light was needed to cure such difficulties
and to make the passage safe. With respect, I do
not believe the evidence bears out this contention.
The minutes of the meeting at which these "dif-
ficulties" were discussed are referred to above. I
find nothing in those minutes to suggest that ves
sels were encountering difficulties in passing be
tween Haddington Island and Neill Ledge light,
but rather in "making the turn at the South End"
of Haddington Island "without something to relate
to on the South Shore." Admittedly, some confu
sion exists in the record as to the precise purpose
intended to be served by the Hyde Creek light. In
addition to the purpose described in the minutes of
the April 26, 1971 meeting, the District Engineer
of the Department of Transport stated in Novem-
ber, 1971, in a letter to the owner of the land on
which it was proposed to install the light, that its
purpose was "to safely lead marine vessels past the
west end of Haddington Island". On the other
hand, the marine-industry representative in his
own communication with Mr. Slaght approving a
tricoloured range lantern at Hyde Creek in July
1971, described the purpose of the light as to
provide "a clearance over the shoal which extends
to the Eastward of Neill Ledge". I am not satisfied
from the record that initially the pilots themselves
saw the installation of the Hyde Creek light as a
necessary aid for bringing vessels safely through
the passage between Haddington Island and Neill
Ledge light. Accordingly, I do not agree that the
record supports this charge of negligence against
Captain Burrill.
The appellant further contends that Mr. Slaght,
as a servant of the Crown, was negligent in not
promptly installing the Hyde Creek light once the
Department of Transport had decided to do so
following the meeting of April 26, 1971. This
argument was coupled with the contention that the
light was necessary in order to render "the passage
around the west end of Haddington Island safe for
deep-sea vessels." I have already dealt with this
latter contention and, as I have concluded that it is
not made out on the record, it is not necessary to
consider the further contention that Mr. Slaght
was negligent in not installing that light promptly.
I will discuss later the legal contention made by
the appellant that, having decided to install the
light at Hyde Creek, the Department of Transport
was under a duty to do so within a reasonable time
which, it was contended, it failed to do.
Finally, there is the allegation that Captain
Burrill was negligent in failing to inform Captain
Morrison "that no difficulties had been reported to
his office" with the result that Captain Morrison
decided to continue the traffic separation scheme
beyond the expiry of the one-year trial period in
May of 1972. Again, I can find no evidence in the
record that would support this contention and,
indeed, such evidence that exists, is to the con-
trary. I refer particularly to an internal memoran
dum written by Captain Morrison on April 3,
1973, some two and one-half months after the
accident occurred. This memorandum reads, in
part, as follows:
I do recall a telephone conversation with Captain Burrill in the
course of which I enquired as to whether any difficulties had
arisen with respect to any vessels actually having to go against
the traffic flow. He informed me that no difficulties had been
reported to his office. Since users appeared satisfied with the
scheme it was left in force after the "trial period".
I must agree with the respondent's interpretation
of this passage that the "difficulties" about which
Captain Morrison wrote were concerned with "ves-
sels actually having to go against the traffic flow",
that is to say with eastbound vessels finding it
necessary to pass to the north of Haddington
Island through Haddington Passage rather than
south of the island as recommended by the
scheme.
The appellant contended that the Crown's
recommendation for the use of the traffic separa
tion scheme by all vessels in the absence of the
Hyde Creek light had caused the grounding. Had
that light been in place, it is contended, the pilot
would have discovered in good time that his vessel
was dangerously out of position and the grounding
would have been avoided. The appellant did not
contend that Captain Jones was free of negligence
on his part but that, even if such negligence exist
ed, the appellant was nonetheless entitled to recov
er. The principle relied on here is to be found in
the case of Thompson v. North Eastern Railway
Company. 3 It was concerned with the liability of
the owner of a dock and tidal basin for damages
suffered by a ship through grounding on an
obstruction while exiting the basin in charge of a
pilot. Notwithstanding that the pilot had taken
another vessel out of the basin some time previous
ly and was therefore aware of the existence of the
obstruction, the Court found for the plaintiff. The
principle relied upon is found in these words of
Cockburn C.J. (at [page 1016 E.R.] pages 114-
115 B. & S.):
Clayards v. Dethwick (12 Q.B. 439) 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
3 (1862), 121 E.R. 1012; 2 B. & S. 106 (Exch. Chamber).
from recovering injury resulting from it, unless the circum
stances 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.
Counsel for the appellant contended that it mat
tered not that Captain Jones may have been him
self negligent in the manner he conducted the Irish
Stardust through the passage. What mattered, he
argued, was that the grounding would have been
avoided had the respondent not created a danger
by implementing the scheme without a light at
Hyde Creek and by recommending its use to the
injured vessel. In my view, for the reasons that
follow, the grounding was in fact due to "want of
common or ordinary prudence" on the part of the
pilot.
In this same connection reliance was placed by
the appellant upon a line of recent decisions in
which a municipal authority or the Crown has
been held liable in negligence for damages arising
out of collisions caused by the existence of danger
ous conditions on highways: Rider y Rider, 4 The
Queen v. Côté, et a1., 5 Wuerch v. Hamilton, 6
Malat et al. v. Bjornson et al.' The argument
presupposes that the operation of a motor vehicle
upon a highway can be equated to that of a vessel
upon a waterway. I would have difficulty in
accepting such a proposition. In both cases, as was
pointed out by Lord Blackburn in Stoomvaart
Maatschappy Nederland v. Peninsular and Orien
tal Steam Navigation Company, 8 each operator is
required "to take reasonable care and use reason
able skill ... yet ... the different nature of the two
things makes a great difference in the practical
application of the rule." As that learned Judge
observed (at page 891):
Much greater care is reasonably required from the crew of a
ship who ought to keep a look out for miles than from the
driver of a carriage who does enough if he looks ahead for
yards; much more skill is reasonably required from the person
who takes the command of a steamer than from one who drives
a carriage.
The impact of technological change upon the
design and construction of vessels and motor vehi
cles in this century has been very significant. Yet,
4 [1973] 1 All E.R. 294 (C.A.).
5 [1976] 1 S.C.R. 595.
6 (1980), 8 M.V.R. 262 (B.C.S.C.).
' (1980), 114 D.L.R. (3d) 612 (B.C.C.A.).
8 (1880), 5 App. Cas. 876 (H.L.), at pp. 890-891.
the two remain of "different nature", the one
designed for use upon land and the other designed,
equipped and manned for use upon water and, I
would add, under conditions that differ vastly from
those that exist on the land. While I do not suggest
that the principles which have emerged from these
highway cases can never be applied to shipping
casualties, I think the differences between motor
vehicles and vessels and the conditions under
which they are operated are such that great cau
tion would be required in their application.
In any event, each of the decisions relied upon
is, I think, distinguishable. Each was concerned
with the existence of a man-made danger, as well
as with conditions that were inherently dangerous
to users of the highway. In the Rider case, the
condition consisted of the exceptionally poor state
of a narrow, winding country highway and, in
particular, in the fact that its broken edges played
an important part in the collision. In the Côté case,
it consisted of a patch of ice which had to be
traversed by all motorists using the highway. In
the Wuerch case, it was the existence of a broken
line dividing the highway in such a manner that it
could be used by traffic proceeding in either direc
tion in deciding whether to pass vehicles proceed
ing in the same direction. And in the Malat case,
it was the presence of a median wall of such shape
that it allowed carelessly operated vehicles to be
propelled over it and into the path of vehicles
making use of the highway on the opposite side.
The learned Trial Judge specifically found (at
page 501) that there was not present in this case a
"man-made danger". With respect, I would agree.
I can find nothing in the nature of the traffic
separation scheme itself that rendered it inherently
dangerous. The evidence is clear that other users
of the scheme had done so previously and without
incident. The passage between the western shore of
Haddington Island and the shoal was broad. The
lights on Neill Ledge buoy and at the south end of
Haddington Island, if properly used, provided
ample aids to guide a prudently navigated vessel
through the passage in safety. In my view, the
cause of the grounding lay in the manner in which
the Irish Stardust was being conducted, rather
than in the nature of the scheme whose use had
been recommended by the Crown.
Nor can I find anything in the record for con
cluding that the respondent in some way contribut
ed to the occurrence. The passage was not such as
presented a danger to a properly navigated vessel.
I cannot see that the absence of the Hyde Creek
light played any part in the grounding, even
though its presence might have assisted the pilot in
becoming aware of his own errors sooner than he
did. Having succeeded in getting the Irish Star-
dust off her planned course at Pulteney Point, the
corrective action taken by the pilot put her more
than 1,500 feet farther north of Neill Rock light
than he had planned. This error he compounded by
proceeding too far to the eastward of Neill Rock
light and thereby leaving it too late before altering
course to starboard in order to bring the Irish
Stardust close to the Neill Ledge light, as he had
planned to do. Why he should have done so is even
more puzzling, given that the light at the south
end of Haddington Island had shut out from his
line of vision while he was still west of Neill Rock
light. Moreover, after that light was passed, no use
was made at all of the vessel's radar equipment. If
that equipment had been properly used by those on
board, in my view, it would have provided the pilot
with extremely valuable information with regard
to the position of his vessel in relation to the lights
being used as well as to the western shore of
Haddington Island.
The appellant contended that the Crown had
incurred liability by unreasonably delaying the
installation of the Hyde Creek light after deciding,
as a matter of policy, that it be installed. That
decision was taken in the spring of 1971, but it was
not until May of 1973, some two years later and
four months after the grounding occurred, that the
light became operational. The respondent sought
to explain the delay and contended that in the
circumstances it had not been unreasonable. In
support of its contention, the appellant relied upon
the decision of the British Columbia Court of
Appeal in the Malat case where it was stated
(page 619):
In my view, once the policy decision was made to undertake
the installation of the 30-inch barrier within the districts, a
duty arose and it was necessary that the district engineers, in
implementing that policy decision, do so with reasonable care
and within a reasonable period of time. The district engineer, in
doing so, or in failing to so do, was functioning at the `operat-
ing level".
As I have concluded that the absence of the Hyde
Creek light played no part in the grounding of the
Irish Stardust, it is unnecessary to consider the
merits of this argument. On surface, it seeks to fix
the Crown with liability in negligence for unrea
sonably delaying implementation of a policy deci
sion as distinct from the liability that arises from
the manner in which work authorized by such a
decision is executed: Welbridge Holdings Ltd. v.
Metropolitan Corporation of Greater Winnipeg. 9
Finally, the learned Trial Judge discussed the
relevance of section 31 of the Pilotage Act 10 to this
case and was of opinion that it rendered the appel
lant responsible for the damage sustained by the
vessel as a consequence of the pilot's negligence. In
view of my conclusion that the respondent has not
incurred liability for the grounding, it is not neces
sary to consider this point. The learned Trial
Judge founded his opinion upon the decided cases
in England interpreting the provisions of the Eng-
lish pilotage statute, whose language, though simi
lar, is not identical with that of the Canadian Act.
I would therefore dismiss this appeal with costs.
PRATTE J.: I agree.
HUGESSEN J.: I agree.
9 [1971] S.C.R. 957.
10 S.C. 1970-71-72, c. 52.
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.