Ex. C.R.] EXCHEQUER COURT OF CANADA 207 QUEBEC ADMIRALTY DISTRICT 1930 REDERIET ODFJELL A/S PLAINTIFF; Sept.26. vs. STEAMSHIP VESUVIO DEFENDANT. AND SOCIETA ANONIMA PER L'INDUS-TRIA E IL COMMERCIO MARI-PLAINTIFF; TIMO VS. STEAMSHIP OLDER DEFENDANT. Shipping and seamen—Collision—Negligence—Signals—Navigation—Harbour—Weight of evidence. A collision occurred between the O. and the V. on the 20th of Septem-ber, 1928, at 10.15 a.m., in the channel of the St. Lawrence River, in the Harbour of Montreal, 'a little below gas buoy 194M. The weather was fine and clear, with a light northeast breeze, and with a current of between 3 and 4 knots. The V. was proceeding up the channel, on the north side, and the O. was coming down on the south side. On reaching buoy 193M. the O. turned to cut across the current to her berth at the upstream side of Laurier Pier. The V. observing the O. turning around buoy 194M., her bow getting abreast buoy 195M. into the channel, gave a signal of five blasts, with the order to stand by, followed by order of slow astern on the engine. The O. held her course across the channel and shortly after gave a signal of two 'blasts. Thereupon the V. replied by three blasts and put her engines full speed astern. The collision occurred shortly after, both vessels being on the north side of the channel, about 200 feet below buoy 194M., the V. then having no way upon her. When the O. was between buoy 195M., and 193M., she saw the V. leaving her dock, and saw her coming up, before she (O.) made her turn of buoy 193M., and when the five-blast signal was given, the O. could have reversed in time to allow the V. to pass. The master was not on the bridge. Held, that, under the circumstances, the O. was guilty of negligence in not signalling before turning in to the channel at buoy 193M., and in attempting to cross the bow of the V. contrary to the rules of good seamanship, and was solely to blame for the collision. (2) That the five-blast signal does not necessarily mean that there is actual danger. It may mean a signal of attention, and the O. receiving this signal was bound by rules 21, 22 and 23 to avoid the V. and to go astern. (3) That as ships turning below buoy 193M. may be going to Laurier Pier or Tarte Pier, the V. was therefore justified in expecting the O. to pass astern and when the V. became uncertain of the 0's movements the five-blast signal was the proper signal to give.
208 EXCHEQUER COURT OF CANADA [1930 1930 (4) That the evidence of those on the ship who are responsible for its navigation, as to the signals given, is of greater weight with the court ODFJELL A/S v. than that of outsiders who had no special reason to note the signals STE inmate given. Vesuvio AND ACTION and counter action to recover damages due to SOOIETA ANONIMA collision between the Vesuvio and the Older. L'I DIITRIA The actions were tried before the Honourable Mr. Jus - EIL tice Demers, Local Judge i n Ad miraltyfor the Quebec Ad- COMMERCIO MARITIMo miralty District, at Montreal. v. STEAMSHIP Older. L ucien Beaureg 9 ard, K.C., for the SS. Vesuvio and her owners. R. C. Holden for the SS. Older and her owners. The facts are stated in the reasons for judgment. DEMERS L.J.A., now (September 26, 1930), delivered judgment. These cases have been united for proof, hearing and judgment, and byconsent have been submitted upon the evidence taken before the Wreck Commissioner, and also some evidence before the Court which will be referred to later on. It appears that the collision between the Older and the Vesuvio occurred on the 20th of September, 1928, at 10.15 a.m., in the channel of the River St. Lawrence, in the harbour of Montreal, a little below gas buoy 194M. There was a light northeast breeze. The weather was fine and clear. There was a current of about three to four knots. The contention of the Older is as follows: The Older was laden with grain and was proceeding down the Harbour towards a berth at the upstream side of the Laurier pier. As is customary for canal size vessels coming down and intending to cross to that berth, the Older came down outside and just to the southward of the line of buoys marking the south side of the channel, and on reaching buoy 193M her helm was put hard to starboard and she turned to cross the current and make her berth in the usual manner. The Vesuvio was manoeuvring off the end of the Laurier and Tarte piers, with the assistance of tugs, and after the Older had turned the Vesuvio got under way and started up the harbour. The Older gave a signal of two short blasts, and expected that the Vesuvio would answer with two blasts and would direct her course to port, but the Vesuvio, without giving any signal to indicate that she was doing so, put her helm to the right. Owing to the Older's position and the great strength of the current, which she was then partially stemming, there was nothing the Older could do except
Ex. C.R.] EXCHEQUER COURT OF CANADA 209 keep her helm hard to starboard and keep on at full speed, with a view 1930 to getting out of the way. The Vesuvio could and should have avoided the collision, but she came on and struck the Older. ODIUM A/S v. On the contrary, the collision is explained by the Vesuvio STEAMSHIP Vesuvio as follows: AND As the SS. Vesuvio was proceeding forward along the channel, and onSocm TA ams the north side, the SS. Older, which had been proceeding in the opposite Ap direction south of the channel, was observed turning around Buoy 194M, L'INDusmaIA and as her bow was getting abreast with Buoy 195M into the channel a E II. danger signal of five blasts was given by those on board the SS. Vesuvio, COMMExcio MAxI ..I MO and the order was given stand-by followed immediately by the order slow v astern on her engine and the helm to the right so as to keep the vessel STEAMSHIP heading in the current straight up the river on her course. The SS. Older Older. held her course towards and across the channel, and shortly after she gave a signal of two blasts. Immediately upon hearing the SS. Older's signal of Demers L.JA. two blasts the SS. Vesuvio immediately replied by three blasts and her engines were put full speed astern and her helm kept hard to the right to keep her straight. The SS. Older kept crossing the channel at right angles and crossing the SS. Vesuvio's bow, and shortly after the last signal had been given the collision occurred, both vessels being on the northern side of the channel and about 200 feet below Buoy 194M; the SS. Vesuvio having at the time of the collision no way upon her. I am of the opinion that the version of the Vesuvio as to the signals is the correct one. She gave the five-blast signal first and the Older replied by two blasts and immediately after the Vesuvio replied by three blasts. The Vesuvio on this point is corroborated by the Pilot of the Older who says that after his two blasts, he heard only the three-blast signal. It is true that some disinterested witness brought before me, more than a year after, bring evidence favourable to the Older's contention, but one must not forget that the first question as to the credibility of witnesses is—who was in a better position to know? Evidently those who had the responsibility of the ships, not those who came before the Court over a year after and who had no special reason to remark the signals. It is also to be noticed that the evidence of the Older's crew as to the signal is admittedly of no value. On the contrary, the evidence of the Vesuvio is quite satisfactory and it should be adopted. This five-blast signal, as it has been often decided, does not necessarily mean that there is actual danger. It may mean and it meant, in my opinion, a signal of attention. After that signal, the Vesuvio kept her course and her engines were checked to slow speed. At that time, the X5898—la
210 EXCHEQUER COURT OF CANADA [1930 1930 Older, receiving such a signal, was bound by Rules 21, 22 ODFJELL A/S and 23, to avoid the Vesuvio and to go astern of her. S,,,Ams$m Ships turning below buoy 193M may intend to go to Vesuvio Laurier pier or Tarte pier; so that the Vesuvio at first evi- AND SOOIETA dently expected the Older to pass astern, and the moment A E N R imA she became uncertain, she gave the five-blast signal, and L'INDUSTRIA it was the proper course to do. EIL COMMERo7O That was, in the opinion of the Assessor and in my opin- MARy. i on, the only thing to do. ST Older. Older . Marsden on Collisions ,page 303, sa Y y s: If a ship sees another in a position that may involve risk of collision, Demers but is unable to make out what course the other is on, she should keep her course, and not alter her helm, or take decisive step until she has ascertained the other ship's course. The Older, against all rules of good seamanship, undertook to cross in front of the ascending ship without any regard for the other. Instead of obeying the signal of the Vesuvio, she continued at full speed. She contends that it was the only thing she could do to avoid the collision. I quite agree that, after the three-blast signal of the Vesuvio, such was the position. At that moment, the accident was inevitable, but that was not the condition of affairs when the five-blast signal was given. It must be added also that the Older previously had been very negligent. She was between buoy 195M and 193M when she saw that the Vesuvio was leaving her dock, and she saw also that the Vesuvio was coming up before making the turn of buoy 193 and she should have signalled before. It is not to be denied that before starting to make the turn, she did not ascertain the position of the Vesuvio, that she recklessly attempted to cross in front of the ascending ship without any regard for direction. When she took particular notice of the Vesuvio, she kept on turning and later on crossing at full speed. There is no doubt that the ship was navigated carelessly. The Master was not on the bridge and the Pilot was not attending, and when she received the five-blast signal, she could have reversed in plenty of time to have allowed the Vesuvio to pass up the river; then she could have proceeded to the intended berth in safety.
Ex. C.R.] EXCHEQUER COURT OF CANADA 211 The faults of the Older cannot be denied. 1930 We have to examine now what was the conduct of the ODFJELL A/S v. Vesuvio. STEAMSHIP It has been argued that the Vesuvio violated Rule and Vesu D vio Regulation 11 for the River St. Lawrence, and at the argu- Soo 1E TA A PE$IMA ment it was pointed out that this accident occurred in St. Mary's current, then the Vesuvio was obliged to stop and L'INDIISTaIA E iz that the Older had the right of way. COMMERCIO rrIMo It is not proved that this accident occurred in St. Mary's MAs v. current. On the contrary, map 1 shows that St. Mary's STEAMSHIP current is above this place at a narrow passage opposite St. Demers Mary's Ward and Ile Ronde, but this collision occurred L.J.A. opposite Hochelaga wharf, and I see on the map also that the river is far wider at that place. By the evidence also it is clear that the Vesuvio was navigated with care and prudence after giving the five-blast signal, and checked to slow speed. Seeing that the Older proceeded on her course, she blew three blasts and her engines were put full astern; being a left-handed pro-pellor ship, if she had reversed sooner than she did after the attention signal was blown, she would have sheered slightly to the left and possibly have been nearer to the Older at the time of the collision. It is proved that the ship was stopped over the ground at the moment of the accident. The most serious reproach to be made to the Vesuvio is that she did not drop her anchor. It is not proved that by the dropping of the anchor the collision would have been avoided or minimized, and my Assessor is of the opinion that the dropping of the anchor of the Vesuvio could not have helped to avoid the collision, as the anchor would not have had the chance to lead in the proper direction to do any good, to either stop the Vesuvio or keep her head in one direction. Under the circumstances, the faults of the Older are clear; she having violated all rules of navigation. If there was a doubt, it was as to the dropping of the anchor, and the Vesuvio should have the benefit of the doubt. Bryde v. Canadian Pacific Ry. Co. (1) (1) (1913) Can. Rep. (A.C.) 472. 15898-1}a
212 EXCHEQUER COURT OF CANADA [1930 1930 For these reasons, the action of the Societa Anonima Per ODFJELL A,'S L'Industria E Il Commercio Maritimo against the steamship ELI., Older shall be maintained, and the action of the Rederiet Vesuvio Odfjell A/S against the steamship Vesuvio shall be dis- AND SDCIETA missed with costs against the Older, and the Rederiet ANONIMA PER Odfjell A/S, and the same shall be referred to the Registrar L'INDUSTRIA EIL for assessment of damages. COMMERCIO MARITIMO v. Judgment accordingly. STEAMSHIP Older. Demers L.JA.
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.