Ex. C.R.] EXCHEQUER COURT OF CANADA 181 ON APPEAL FROM THE QUEBEC ADMIRALTY DISTRICT 1934 BETWEEN : May 22, 23 THE STEAMER " PHILIP T. l June 20. } APPELLANT; DODGE " (DEFENDANT) AND DOMINION BRIDGE COMPANY, LIMITED, DUFRESNE CON- STRUCTION COMPANY, LIM- DU RESPONDENTS. ITED, AND LA COMPAGNIE PONT DE GASPE LIMITEE PLAINTIFFS) Shipping—Collt.sion—Excessive speed Improper navigation. Action by plaintiffs (respondents) to recover damages suffered by them by reason of defendant ship (appellant) coming into collision with a bridge being erected by plaintiffs (respondents) over the York River at Gaspe, P.Q. Held: (Affirming the judgment appealed from) that the speed of the Dodge in passing through the bridge opening was, in the circumstances, excessive. 2. That since the speed of the Dodge was excessive it cannot be maintained that the ship was navigated with reasonable care and that the accident was inevitable. APPEAL from the decision of the Local Judge in Admiralty for the Quebec Admiralty District, allowing plaintiffs' action.
182 EXCHEQUER COURT OF CANADA [ 1934 1934, The appeal was heard before the Honourable Mr. Jus- SS. D v o . d ge t i ce MacLean, President of the Court, at Ottawa. DOMINION BRIDGE Co. L. Beauregard, K.C. and J. St. Germain for appellant. Lm., DUFRESNE C. R. MacKenzie, K.C. and L. Faribault, K.C. for re- CO. LTD., AND L spondents. A COMPAGNIE DU PONT DE The facts and questions of law raised are stated in the GASPE LTEE. reasons for judgment. THE PRESIDENT, now (June 20, 1934) delivered the following judgment: This is an appeal from a judgment of Demers, L.J.A., for the Quebec Admiralty District, in which he held the plaintiffs severally entitled to the damages claimed. The cause was heard by the learned trial judge with an experienced assessor. The important facts, and the chief contentions of the respective parties are to be found in the following excerpt from the reasons for judgment of the learned trial judge. The Dominion Bridge Company Limited was erecting a bridge across the York River at Gaspe, P.Q., in virtue of a contract with the Dufresne Construction Company Limited, one of the plaintiffs. On the 6th of July, 1932, when the said bridge was in course of construction and before delivery thereof, the defendant, steamer Philip T. Dodge, while proceeding for the first time through the opening or gap in the said bridge, came into collision therewith, causing the north bascule, attachments and gear of the said bridge to be wrenched from their foundations and damaged almost beyond repair. The plaintiffs contend that these damages were caused by the fault and negligence of those on board the defendant steamer, and by their improper and negligent navigation, and they, in particular, allege: That the defendant steamer was proceeding at an excessive rate of speed; That no precautions were taken by those in charge of the said steamer to determine or ascertain local conditions as to proper navigation through the opening of said bridge; That the said steamer did not take proper or effective engine or helm action to prevent the occurrence of the said collision. The defendant pleads, in substance, that the said bridge is wrongfully constructed and designed; that it interferes with the navigation of the Harbour of Gaspe more than is necessary for the proper exercise of plaintiffs' statutory powers; that the said bridge was wrongfully and illegally erected and is a public nuisance; and by a second plea, alleges that no blame for the collision can be attributed to the defendant or to any of those on board of her. The appellant steamship Philip T. Dodge, hereinafter to be referred to as the Dodge, is a steel ship of slightly over 5,000 gross tons, her length being 400 feet, her
Ex. C.R. ] EXCHEQUER COURT OF CANADA 183 breadth being 57 feet 7 inches, and her speed nine and a 1934 half knots. On the occasion in question she was bound SS. Dodge for a wharf or pier belonging to the International Paper DOMINION Company, situated at the head of Gaspe Harbour, and in Bx mcs Co. LTD., order to reach this wharf she was obliged to pass through DIIFRESNs the draw of a bascule bridge being erected by the first ; " named respondent (plaintiff). The bridge was, as I under- c OMPAGNXE DII PONT DE stand it, about completed, except, that the south leaf of GespE LTEE. the bascule span had not yet been put in place when the Maclean J. accident in question occurred; the north bascule however was then in place and in a fully elevated position. The distance between the two piers upon which the bascules rested was 90 feet, so that if the Dodge when passing through the draw was directly in the centre thereof, there would be a free space of 20 feet on each side of her. Directly in front of the draw or opening in the bridge, in proceeding up the Harbour of Gaspe, and at a distance of 800 feet in front of the draw, was a wharf known as Davies wharf, so that when the Dodge had fully passed through the draw she would be but 400 feet distant from the Davies wharf, and which of course she had to avoid; the wharf to which she was bound was on her port side after passing through the bridge. She had passed through the draw to the extent of two-thirds of her length, when the overhang of the poop on the starboard side came in contact with the north bascule, which was seven inches inside the face of the pier on which it rested, with serious damage to this leaf of the bascule. On this aspect of the case the learned trial judge remarked:— I come down to the second point—was there any negligence to be imputed to the defendant? On this point, I agree entirely with the finding of the Assessor. As it was the first time that this ship had passed through this bridge, she should have taken great precaution. She had no experienced pilot. The fact is that the captain himself took care of the wheel. The master, seeing these new works, should have stopped his ship and made himself acquainted with every condition before entering the gap. If he had ascertained these conditions beforehand, he would not have navigated with such speed. I am of the opinion that he entered the gap in the middle, but for fear of striking Davies wharf, eight hundred feet ahead, he put his helm to starboard, and also to counteract the effect of the current to northward. The current, striking the bow of a ship to the northward, could not push the stern to the northward, but to the southward.
184 EXCHEQUER COURT OF CANADA [1934 1934 I summarize this to mean that the learned trial judge SS.Dodge found, in which finding his assessor concurred, that the v. DOMINION Dodge had not exercised sufficient caution in passing BRIDGE Co. through the bridge; that the master of the Dodge should LTD., DUFRESNE have stopped his ship and acquainted himself with the CO. LTD., ANDLA existing conditions before attempting to pass through the COMPAGNIE draw of the bridge; that he attempted to navigate the DU PONT DE GASPE LTEE. draw at an excessive speed and before fully passing Maclean J. through the draw he put his helm to starboard in order to escape contact with the Davies wharf and also to counteract a current to the northward, which would have the effect of putting his bow to port and his stern to starboard, the latter thus coming in contact with the north bascule; and that the Dodge had no experienced pilot. The learned trial judge seems to have been of the opinion that there was a current striking to the north and that the effect of this current on striking the port bow would be to move the stern of the Dodge to starboard, north, and not to the south, or port. I do not agree to the proposition that the master of the Dodge should have stopped his ship and examined the situation before attempting to pass through the draw, even on his first trip through the bridge. Neither do I think any blame is to be attached to the Dodge for not having on board an experienced pilot. No pilot was there available to the Dodge, although, She did take on board an experienced local fisherman who was supposed to know these waters intimately. I am not disposed, upon the evidence, to attach importance to the question as to whether or not there was a current, or that it in any way contributed to the accident. There was a slight current passing directly through the draw, but, even if it struck somewhat to the north I do not think, upon the evidence, that it was itself of such consequence as to create any serious or added difficulty in navigating a ship through the bridge. There is another point in the case which might conveniently be mentioned here. It was pleaded on behalf of the Dodge, and it was suggested on the appeal, that the bridge constituted a public nuisance. I must say it is difficult for me to comprehend why the owners of the bridge were permitted to locate the draw of the bridge precisely where it was located. It appears to be somewhat
Ex. C.R.] EXCHEQUER COURT OF CANADA 185 out of the course or track theretofore followed by ships 1934 in reaching the upper waters of Gaspe Harbour, and to ss. Dodge where the Dodge was on this occasion bound. In ap- DOMINION proaching the draw it was more or less necessary, except Co. BRL D perhaps to those well acquainted with the locus, to make DIIFRESNE the approach on a somewhat curved course, and not on AND LA' a straight course, and then, as I have already pointed out, COMPAGNIE DU P ,E T DE the draw was located but 800 feet in front of a wharf G ASPE L TE , E which was in line with the course through the centre of Rinfret J. the draw. The plan of the bridge was approved by the — Department of Public Works, and the Department of Marine, at Ottawa, but the plans and drawings do not show the Davies wharf on the upper side of the bridge, or the existence of a shoal on the lower side of the bridge. In any event, the issue as to whether the bridge consti- tutes a public nuisance was not, I think, tried out, and, in my opinion, no ground work was laid for the deter- mination of so important and serious an issue, and I there- fore express no opinion upon it. I understood Mr. Beau- regard so to agree, but he did contend, that the location of the draw was such as to render it difficult and some- times impossible for shipping to avoid contact with the bridge in passing through the draw, and that on the occa- sion in question the master of the Dodge did everything reasonably to be expected of him, that he was not negli- gent, and that the accident was unavoidable; and all this constitutes, I think, the real substance of the appellant's case. It is conceded by the appellant that in passing through the draw the Dodge was proceeding at the rate of four miles per hour. Witnesses called by the respondent (plain- tiff), at the trial, placed this speed at as much as six miles per hour. I prefer to accept the evidence adduced by the appellant upon this point, although it is possible the speed of the Dodge did exceed four miles. The first question for determination therefore is whether a speed of four miles, in passing through the draw, was excessive. The learned trial judge seems to have thought the speed was excessive, without any specific finding as to what the speed was, and it is to be assumed that in this his assessor concurred. In view of the fact that the Davies wharf was directly in front of the Dodge when she passed through the
186 EXCHEQUER COURT OF CANADA [1934 1934 draw, only 400 feet distant, the ship's length, it does seem SS. Dodge v. to me that a speed of 4 miles per hour was excessive, be-DOMINION cause, once passing through the draw the Dodge was BRIDGE Co. LTD., obl i ged to go to port not only in avoiding the Davies DUFRESNE CO. LTD., wharf, but also in reaching the wharf to which she was AND LA COMPAGNIE bound. In the same season, the Dodge made fifteen addi- DU PONT DE • GA6PE LTEE. tonal tripst hroug â h the bridge without anymishap,and Maclean J. her master stated that in such trips he exercised greater caution, particularly with his " engines," and in this I think he must have had in mind the speed of his ship. I think the speed of the Dodge in passing through the bridge opening was, in the circumstances, excessive. When the Dodge was two-thirds through the bridge opening, the master put his helm to starboard, which had the effect of putting the ship's stern to starboard, thus causing, I think, the collision and the damage complained of. This movement, I agree with the learned trial judge, was executed because of fear of coming into collision with the Davies wharf. One can quite understand such a movement, but it was an error, and was, I think, thought to be necessary because of fear, or the imminence, of colliding with the Davies wharf, but that fear or imminence arose, I think, because of the excessive speed of the ship in passing through the bridge draw. Had the speed been reasonably reduced I do not think the liability of contact with the Davies wharf would have been so apparent, and would not have occasioned the fatal order of "helm to starboard," and without this I think the Dodge would have passed through the draw without any mishap. And that conclusion as to the speed of the Dodge in passing through the bridge contains the answer to the contentions that the master of the Dodge navigated his ship with reasonable care, and that the accident was inevitable. I am of the opinion therefore that the judgment appealed from must stand, and that the appeal should be dismissed with costs. Judgment accordingly.
Ex. C.R.] EXCHEQUER COURT OF CANADA Reasons for judgment of Demers, J.: The Dominion Bridge Company plans" of the said bridge and of Limited was erecting a bridge its approaches, after their a across the York River at Gaspe, al by the Federal Government, P.Q., in virtue of a contract with "shall be submitted to the Minis-the Dufresne Construction Com- ter of Public Works and Labour DuFaESNE pany Limited, one of the plaintiffs. and approved by him." On the 6th of July, 1932, when the said bridge was in course of made without the app construction and before delivery Governor-in-Council of Canada. thereof, the defendant, steamer The Federal Government having Philip T. Dodge, while proceeding the control of navigation, I con- Demers for the first time through the sider that its approbation of the opening or gap in the said bridge, plan of a bridge settles the point came into collision therewith, taus- as to the proper construction of ing the north bascule, attachments this bridge. and gear of the said bridge to be wrenched from their foundations to the contrary, relies on the case and damaged almost beyond repair. of the SS. The plaintiffs contend that these cision of the Privy Council, re-damages were caused by the fault ported in 1931, A.C., pages 300 and and negligence of those on board 308; but in that case, the charter the defendant steamer, and by authorizing the building of those their improper and negligent navi- works granted by the Federal gation, and they, in particular, Government, stated that the per- allege: mission to build was granted, pro- That the defendant steamer was vided it would not obstruct navi-proceeding at an excessive rate of gation. The question decided by speed; the Privy Council was that statute That no precautions were taken was governing the case, and the by those in charge of said steamer Privy Council, page 309 of the to determine or ascertain local con- Reports, insisted that it was inter-ditions as to proper navigation ference with navigation amounting through the opening of said bridge; to a public nuisance for which the That the said steamer did not defendant had no authority. take proper or effective engine or helm action to prevent the occur- this case does not apply and that rence of the said collision. in the present case, the Federal The defendant pleads, in sub- authority was the proper authority stance, that the said bridge is to decide as to the form of con-wrongfully constructed and de- struction of those works. signed; that it interferes with the navigation of the Harbour of —was there any negligence to be Gaspe more than is necessary for imputed to the defendant? the proper exercise of plaintiffs' statutory powers; that the said with the finding of the Assessor. bridge was wrongfully and illegally As it was the first time that this erected and is a public nuisance; ship had passed through this bridge, and by a second plea, alleges that she should have taken great pre-no blame for the collision can be caution. She had no experienced attributed to the defendant or to pilot. The fact is that the captain any of those on board of her. himself took care of the wheel. On the first point, it appears that this bridge was erected by a corn- works, should have stopped his pany incorporated by the Provin- ship and made himself acquainted cial Statute of Quebec, 20 George with every condition before enter-V, Ch. 4, navigation being in the ing the gap. If he had ascertained province of the Federal Govern- these conditions beforehand, he ment, it was properly stated in the would not have navigated with Statute that the " construction such speed. 187 1934 SS'Dodge p p r ov-DOM v IN ' ION BRIDGE Co. LTD., Co. LTD., This construction could not be AND LA omPAsanE p r oval of the DU PONTT DE GASPE LTEE. — L.J.A. The defendant, in her contention Urana and on the de- I am, therefore, of opinion that I come down to the second point On this point, I agree entirely The master, seeing these new
188 EXCHEQUER COURT OF CANADA [1934 1934 I am of the opinion that he For these reasons, I arrive at the entered the gap in the middle, but conclusion that plaintiffs are sever- SS. Dodge for fear of striking Davies wharf, ally entitled to the damages V. D B O am M o IN a IO eight hundred feet ahead, he put prayed for; that the defendant BRIDGE CO . his helm to starboard, and also steamer Philip T. Dodge and her LTo., to counteract the effect of the cur- bail should be condemned to the DUFRESNE rent to northward. damages claimed, with interest and Co. LTD., The current, striking the bow of costs, which damages should be AND LA a ship to the northward, could not assessed by the Deputy Registrar COMPAGNIE DU PONT push the stern to the northward, of this Court, with the assistance GASPE LTE D E E . but to the southward. of merchants. D..mers L.J.A.
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.