230 EXCHEQUER COURT OF CANADA [1929 1929 ON APPEAL FROM THE QUEBEC ADMIRALTY DISTRICT June 26. Sept. 30. STANDARD OIL COMPANY OF NEW l JERSEY J PLAINTIFF; v. THE SS. IKALA DEFENDANT AND INDUSTRY STEAMSHIP COMPANY, } LIMITED PLAINTIFF r v. THE SS. JAMES McGEE DEFENDANT. Shipping—Collision—Narrow channel—Article 25—Rule 8 of Regulations for St. Lawrence River A collision occurred between the I., and the McG., soon after midnight, on May 12, 1927, in a narrow channel of the St. Lawrence River between buoys 23 and 24, south of the fairway, and close to buoy 23. The weather was fine and clear, somewhat overcast, but without haze, and visibility was good. Both ships were going at full speed. The McG. outbound, going with the stream and a tide of 3 knots an hour and the I. inbound. When the McG. was abreast of the buoy 24 she gave a one-blast signal which was answered by the I. when abreast of buoy 23, indicating that they would pass port to port. The I. always going at full speed, then directed her course to port instead of keeping to starboard, contrary to the signal given, and to Article 25, shoving the McG. to the south; and the collision occurred, the I. striking the McG. on the port side just amidships, with her port bow. Held: (Varying the judgment appealed from), that as the two vessels wen travelling port to port after exchanging signals indicating they would keep their course, the speed of the McG. in no way contributed to the collision, but that the collision was entirely due to the fault of the I. in not keeping to starboard of the channel and neglecting to slow up or stop as good seamanship required. 2. That the ship primarily at fault can only discharge her liability in that respect by very clear and plain evidence of the other's fault. 2. That the descending vessel coming with the current is entitled to consideration, and an up-coming vessel, in a narrow channel, where navi-
Ex. C.R.] EXCHEQUER COURT OF CANADA gation is intricate, seeing another vessel coming down stream, must stop, and if necessary come to a position of safety below the point of danger and there remain until the channel is clear. 4. That where in such channel a ship fails to keep to starboard she must, COMPANY at her own risk, right herself back to her proper position. 5. That where the court is assisted by a Nautical Assessor, his opinion on questions submitted to him as such may be filed of record with the TH judgment of the Court [SS. Melanie and followed]. Judicial observation, that the practice, in some districts, of filing the evi- Co., LTD. dence taken before the Wreck Commissioner as evidence before the trial judge is irregular and should be discouraged. APPEAL and cross-appeal by the parties herein from the decision of the Local Judge in Admiralty for the Que-bec Admiralty District. The appeal was heard before the Honourable Mr. Justice Audette at Ottawa. A. R. Holden, K.C., for Industry Steamship Co. and the Ikala. L. Beauregard, K.C., for Standard Oil Co. and the James McGee. The facts are stated in the reasons for judgment. AIIDETTE J., now (September 30, 1929), delivered judgment. This is an appeal by the SS. appeal by the SS. Ikala, from the judgment of the Local Judge of the Quebec Admiralty District, bearing date 19th April, 1929, in a collision case, wherein he found both vessels to blame in unequal proportions and gave judgment and pronounced in favour of the plaintiff's claim, Standard Oil Company of New Jersey, in the action bearing No. 682, and condemned the ship and her bail in four-fifths of the amount to be found due to the plaintiff, Standard Oil of New Jersey,—and pronounced in favour of the plaintiff's claim, Industry Steamship Company, Limited, in the action bearing No. 442 and condemned the ship James McGee amount to be found due to the plaintiff, Industry Steamship Company, Limited, each party to pay its costs, etc. The collision between the Ikala and the soon after midnight on the morning of the 12th of May, 231 1929 STANDARD SIL of NEW JERSEY v I E k a S la S . (1919) 36 T.L.R. 507 referred to INDUSTRY STEAMSHIP v. THE SS. James McGee. Audette J. James McGee and a cross-Ikala and her bail in one-fifth of the McGee occurred
232 EXCHEQUER COURT OF CANADA [ 1929 1929 1927. The weather was fine and clear, somewhat overcast; STANDARD but without haze, everything being quite visible. COMPANY With the exception of the evidence of Pilot de Villers, OF NEW JERSEY amounting to about 14 pages, who was recalled at trial, the v. whole of the evidence, of about 600 pages, submitted to the THE SS. Ikala trial j J u d g g e, was the evidence taken on the inqu i Y ry or in- vestigation before the Wreck Commissioner. Therefore ; as INDUSTRY STEAMSHIP regards pure questions of fact and the probative value of Co., LAD. the statements of witnesses, the trial judge was in no bet-THE SS. ter position than the judge sitting here on appeal. It is James McGee. high y ly important in cases where the evidence is conflict- ing, unfortunately a very common occurrence in Admir- Audette J. alty cases, that the trial judge should have the witnesses before him so that he may equate the credibility of their testimony to the measure of impartiality and reasonableness manifested by them while under examination. On the hearing of this appeal I had the advantage of the assistance, as nautical assessor, of Commodore W. Hose, C.P.C., R.C.N., whose experience greatly assisted me and I am pleased to say, his opinion coincides absolutely with mine. I have, following the observation made in the case of the SS. Melanie (1), filed in the record the opinion of the Commodore upon the case. The evidence adduced on behalf of both parties is absolutely conflicting in all respects. Indeed, as Wellman, on the " Art " of cross-examination, so truly says that one sees, perhaps the most marked instances of partisanship in Admiralty cases Which arise out of a collision between two ships. Almost invariably all the crew of one ship will testify in unison against the opposing crew. I fear, as I have had occasion to say so before, that this is a weakness in the make-up of human nature, and while such a witness is not deliberately committing perjury, he is unconsciously prone to dilute or colour the evidence to suit a particular purpose by adding a bit here and suppressing one there; but these bits will make all the difference in the meaning. Let us, therefore, endeavour to reconcile this conflict with the object of discerning the truth, bearing in mind that where the evidence on both sides is conflicting and nicely balanced, the court will be guided by the probabilities of the respective eases which are set up. (1) (1919) 35 T.L.R. 507.
Ex. C.R.] EXCHEQUER COURT OF CANADA 233 The Mary Stewart (1); The Ailsa (2). 1929 The evidence on behalf of the Ikala is inconsistent, un- STANDARD related and it is impossible to draw from it a consistent and COMPANY controlled conclusion. That evidence creates a curious of NEW puzzle of inconsistency when it establishes that the first JE1r blast of the McGee was given when she was abreast of THE ss. Ikala buoy No. 24, and that the Ikala answered the same by one blast when abreast of buoy No. 23. This fact is quite I r N DRY r illuminating, as it establishes beyond peradventure that it is Co., LTD. impossible,—both ships going full speed and the tide run-V. THE SS. ning down against the Ikala at about three knots an hour James —for the collision to have taken place quite close to buoy McGee. 24, as contended by the Ikala. The probabilities of the Audette J. case, consistent with common sense and surrounding circumstances, is that the collision took place, as contended by the McGee, southwest and close to buoy No. 23. I wish further to add that I absolutely concur with the trial judge with respect to the conduct of the crew of the respective vessels and, with him, accept without equivocation the version of the McGee,—the only point, however, upon which, I feel I must differ, is upon his decision with respect to the division of responsibility; I find that the Ikala was solely and entirely at fault and to blame for the accident. Indeed, the Ikala through some undisclosed reasons (her port steering, however, not being normal), in a narrow channel, in violation of Art. 25, unduly and through lub-berly manoeuvring, directed her course to port, gradually shoving the McGee south. After announcing a different course by the exchange of their respective blasts, she further kept going full speed in a meeting of this kind when both vessels were to pass inside or within the channel indicated by these respective buoys,—notwithstanding that the Ikala was proceeding against the tide. As found by the trial judge, and I agree with him, the river between buoys 24 and 23 must be taken to be a narrow channel (Art. 25)—with also comparatively shallow water south of buoy 23. An up-coming vessel, like the Ikala, in a narrow channel and when the navigation is intricate, must stop and, if necessary, come to a position of safety below the point of (1) (1844) 2 Win. Rob. 244. (2) (1860) 2 Stuart's Min. 38.
234 EXCHEQUER COURT OF CANADA [ 1929 1929 danger and there remain until the channel is clear. This, STANDARD the Ikala has absolutely failed to do, and had she complied OIL with this requirement, it is obvious the accident would not COMPANY OF NEW have happened. JERSEY The descending vessel, coming with the current, is en- v. THE SS. titled to consideration. Had the Ikala below buoy 23—or Ikala north of it—had she slackened to slow, as good seamanship INDUSTRY required under the circumstances, the accident would have STEAMSHIP Co., LTD. been avoided. The SS. Coniston (1) ; the Ezardian (2) ; THE v SS. the Talabot (3). The accident happened shortly after the James Ikala had resumed her course, after anchoring to make some McGee. repairs. Audette J. The Ikala, through lubberly manoeuvring, placed herself, at full speed, in a false position, thus displaying a glaring want of good seamanship care and prudence. In a narrow channel, it is the duty of the steamer navigating against the tide, to wait until the downward bound vessel has passed clear. Bonham v. Honoreva (4). Moreover, among the "Regulations for the River St. Law-rence from Father Point to Victoria Bridge," at Montreal, which are, among other places, to be found in the 1927 Tide Tables, etc., issued by the Department of Marine and Fisheries of Canada, the following rule appears, viz:— (8) All up-coming vessels, on each occasion, before meeting down-bound vessels at sharp turns, narrow passages, or where the navigation is intricate, shall stop, and, if necessary, come to a position of safety below the point of danger, and there remain until the channel is clear. This general rule is complete by itself ; but below the same we find the further enactment. These directions apply to the following points:— Cap Charles Cap it la Roche ,Grandmont Poulier, etc., etc. And I find that these latter directions do not, in any way, detract from the generality of; rule 8, which is applicable at large to all such cases therein provided; and I find the Ikala failed to observe the same and I further find that had she complied with it, the accident would have been avoided. The Ikala did not keep to the proper side of the narrow channel (Art. 25) and it is hardly in her mouth to say, when she was going full speed, that the collision would not (1) (1918) 19 Ex. C.R. 239, at p. (3) (1890) 6 Asp. (N.S.) 602. 249. (4) (1916) 54 S.C.R. M. (2) (1911) 11 Asp. 602.
Ex. C.R.] EXCHEQUER COURT OF CANADA have occurred had the McGee especially when the collision resulted exclusively from her own bad seamanship. The ship primarily at fault, the Ikala, could only discharge her liability in that respect by very clear and plain evidence which does not exist here, Bryde v. SS. Montcalm (1). Moreover, the fact that the collision took place south of the fairway, between the two buoys and near buoy 23, con- IND firms the finding that the Ikala did not, in compliance with Art. 25, keep to starboard, and that she had, at risk; to right herself back to her proper place in the nel. The Glengarif (2) ; The Union SS. Company v. The Wakena (3), reversed on appeal. Was the Ikala carried to the south, at the place where I find the accident occurred only through lubberly manoeuvring or was it the result of some defect in her rudder—perhaps matters very little. Indeed, it is not without some significance that the pilot of the ity of her wheel which was carrying port helm; to carry her steady on her course one had to give her port helm turns; she carried 11 turns to port all the time and the pilot declares he had never seen any ship requiring 16 turns from port to starboard helm in his experience (p. 208). Witness Hay, the classification surveyor, found the chains of the steering gear of the Ikala a little bit slack. wheelsman, Brown (341), testified also that crossing the Atlantic she would carry a port helm. Be all this as it may, it is not without some reason to suspect that with that defect the Ikala could not obey her helm on a port order as readily and effectively as if in perfect and normal order and condition. I am unable to acquiesce in the finding below, following the Europa and I disagree with it, when approving of the assessor's view, it is said: Had she reduced her speed (the McGee) that she would have avoided the collision at all events it would have minimized the damages. There was no apparent reason for the speed; the two vessels were travelling port to port after exchanging one blast indicating they would keep their course. (1) (1913) Can. Rep. (A.C.) 472; 14 D.L.R. 46. (3) (1917) 16 Ex. C.R. 397; 35 D.L.R. 644; 37 D.L.R. 579. 235 not gone full speed, 1929 STANDARD Cow ANY OF NEW J EREv Y THE SS. ikala ST u E s M T S H Y A HIP CO., LTD. her own THE Ss. chan- James McG ee. Audette J. Ikala admits the peculiartwo The at the red buoy, it is probable McGee to slacken (2) (1905) 10 Asp. 103; (1905) P. 106.
236 EXCHEQUER COURT OF CANADA [ 1929 1929 Had the Ikala kept her course, there would have been no STANDARD collision. The McGee was led or chased out of her course °IL to the south by the pursuit of the Ikala. COMPANY OF NEW I am unable to share that view suggested by the assessor. JERSEY v. One must not overlook the fact that the McGee was coming THE SS. down with a three knot tide and that a certain speed was Ikala therefore, absolutely necessary for her to keep good com- INDUSTRY mand of her steering,—the duty of stopping or reducing STEAMSHIP Co., LTD. speed, under the circumstances, was clearly upon the Ikala THS and not upon the McGee. Moreover, although it is hard James to surmise, yet had the McGee reduced speed instead of McGee. the Ikala striking the McGee with her port bow, on the port AudetteJ. side just amidship at a very slight angle, her anchor going through the side amidship,—the collision might have been either end on or bow to bow at right angle and the results would have been ever so much more disastrous. The By-well Castle (1) ; the Benares (2) ; Marsden's Collisions at Sea, 8 Ed., p. 465. The Ikala failed to keep her course to starboard, Art. 25; the Ikala failed to slacken or stop below buoy 23 as good seamanship required under the circumstances of the case. The speed of the McGee did not in any way contribute to the collision. In re Canadian Pacific Railway v. SS. Stor- stad (3), the learned judge observes:— We find that a manoeuvre is wrong if it creates a risk of collision. The test, therefore, is whether this manoeuvre created a risk of collision. A further test is again if it did create a risk of collision did it contribute to the disaster in question? If a given manoeuvre creates a risk of collision, it would be a breach of the rule, and if it creates a risk of collision which contributed to the collision or +caused it, then it would be a fault. As is well known, there is a difference between the English law and our law that used to exist and which has been but recently abolished. All the English jurisprudence is under the old law. In England, formerly, a breach of the rules was presumed to have contributed to the collision or caused it, unless the contrary was proved. Whilst, in our law, the plaintiff has to prove the breach of the rule, and also that it caused or contributed to the collision. As I have said before the speed of the McGee did not contribute to the accident, and, under the circumstances of the case, considering the false manoeuvring of the Ikala it contributed greatly to decrease the result of the collision. Under the general trend of the evidence, taking all the circumstances into consideration, I allow the appeal of the (1) (1879) 4 Asp. N.S. 207. (2) (1883) 5 Asp. N.S. 171. (3) (1915) 17 Ex. C.R. 160, at p. 170; 40 D.L.R. 600, at p. 607.
Ex. C.R.] EXCHEQUER COURT OF CANADA McGee and dismiss the cross-appeal of the Ikala and adjudge that the judgment appealed from be varied accordingly, the whole with costs in favour of the against the Ikala. I cannot close without calling attention to the chievous and most irregular practice which has of late crept into the practice before some of the local Courts of the Admiralty Districts and that is to accept as evidence in the case the evidence of the witnesses heard on the investiga- tion before the Wreck Commissioner. It is most unsuit-able; it involves an unnecessary mass of evidence respect- ing the conduct of the officers of the respective vessels (R.S.C., 1906, Ch. 113, sec. 782). Therefore, the object of proceedings before the Wreck Commissioner is quite dissimilar from that of proceeding in this court for damages arising out of a collision. This evidence is not adduced in a judicial proceeding. It is not a trial in its true sense and meaning. The evidence is not authentic, it being but testimony before an investigating commissioner. The King (1). The evidence before the court in the present case, taken upon such investigation, is 'adduced in a most unscientific manner and contrary to the well known rules in that respect. It is chaotic. The witnesses are questioned without the observance required at trial. Hearsay is allowed. The questions submitted both by the Commissioner and counsel are made at random and repeated in an unconceivable number of times, which tend to make the analysis of the same very difficult and cumbersome. The trial judge should have, if possible, the advantage of seeing the witnesses, observe their demeanour in the box and be enabled to put such question as his legal training and experience may suggest. If the trial judge is once thus deprived of these advantages and that he has to decide upon evidence so adduced in an extra-judicial inquiry— not a court of record—he is taken out of his ordinary function and position as contemplated in the true administration of justice. The stock argument for using such evidence is that it will make the trial less expensive, is without merit and not deserving consideration. The question of expense, in any (1) (1919) Q.O.R. 29 K.B. 420. 237 and order 1929 STAx RD McGee CoM nNY OF NEW mis- JEVEY THE SS. Ikala INDUSTRY STEAM SHIP Co., LTD. V. TH É SS. James McGee. AudetteJ. illenard v.
238 EXCHEQUER COURT OF CANADA [ 1929 1929 case, should not trammel a tribunal in the administration STAN DARD of justice between the parties. COMPANY Now does the acceptance of such evidence really consti- OF NEW tute a saving? I readily answer in the negative. Indeed, JERSEY in the present case where the evidence taken before a judi- THE SS • cial tribunal, instead of being spread upon about 600 pages, Ikala 250 to 300 would have been amply sufficient, and a saving INDII6TBY sTEnniaHrn of agood half been made. And were the parties going to CO., LTD. appeal before a tribunal exacting the printing of the evi-THE ss. dente, the saving of the printing expense is also self-. James evident. McGee. The further argument that the witnesses are difficult to Audette J. ass i gn does not either avail. What was being done before there was a Wreck Commissioner can also be done to-day. It is a most unsatisfactory practice and contrary to the well established procedure. It is quite irregular to accept such evidence in a Court of Justice, even if tendered by the consent of the respective counsel. It is unfair both to the judge and to the litigants to attempt to make it trial evidence. The practice of accepting such evidence should be discouraged as there is a tendency at the present day of resorting to it. Judgment accordingly.
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.