VOL. XIX.] .EXCHEQUER COURT REPORTS. 105 BRITISH COLUMBIA ADMIRALTY DISTRICT. 1919 • August 22. . PATTERSON; CHANDLER AND STEPHEN LIMITED, PLAINTIFF ; v. THE "SENATOR JANSEN," DEFENDANT. Towage—Responsibility of tug—Negligence—Contributory negligence. The tug "Senator Jansen", with a scow in tow, lashed diagonally to her port bow, was floating down Fraser River with the tide and while going through a drawbridge (85 feet in width) the scow struck a projecting boom stick, tearing off a stern plank. Scow and. cargo were lost. The "Senator Jansen" was properly navigated. Held.—That the master of the."Senator Jansen", being-thoroughly familiar with the situation, and the set of the tides and currents, and knowing that these would inevitably bring his port side against the bridge, creating a dangerous, if not a necessarily fatal situation, was guilty of negligence in not lashing the tow to the starbôard side and thus avoiding the possibility of accident. 2. Where, even if the scow in such a case had been wholly sound; the direct consequences of the accident could not have been avoided, the fact of the scow being unseaworthy, will not constitute contribu- , tary . negligence on her part, and will not relieve •the tug of any responsibility—for damage. due to her own negligence. TRIS is an action by the plaintiffs, owners of thé tow, to recover frôm the defendant the-value of the scow and cargo, alleged to have been lost by reason of the negligence of the master and crew of the tug defendant; (1) because she was unskillfully navigated—and (2) because she took the risk of lashing the . tow to her port side, when the other side would have offered no risks whatever. • The case was heard, at Vancouver, on June 21 and 22, 1919.
106 EXCHEQUER COURT REPORTS [VOL. XIX. 1919 The facts of the case are stated in the reasons for PATTERSON, CHANDLER AND judgment. • STEPHEN, LTD. THE `SENATOR W. E. Burns, and H. B. Robinson, for plaintiff. JANSEN.' C. B. Macneill, K.C., for defendant. Reasons for Judgment. • MARTIN, L. J. A. (August 22, 1919), delivered judgment. In this action the plaintiff company sues to recover the value of a scow, $2,000, and the loss of certain granite blocks laden thereon, and the cost of salving other blocks from the bed of the Fraser River. The claim arises out of the fact that on July 9, 1918, about 6.30 p.m., the said scow, laden with 225 tons of granite blocks, was being taken by the stern wheel steam tug "Senator Jansen" (reg. tons 93.27; length 125 ft.; R. B. Tipping, Master), through the north passage of the drawbridge across the Fraser River, connecting the City of Westminster with Lulu Island, and in so doing the scow, (length 66 ft. 8 in., width 26 ft., depth 6-7 ft.) which was lashed diagonally across the port bow of the tug, struck a corner boom stick of the west approach to the drawbridge and one of her stern planks was knocked out, which caused her to quickly filll with water and take such a list that the cargo slid overboard and the scow was with some difficulty beached, and eventually became a total loss. The said northern passage of the drawbridge is 85 ft. in width and there was formerly along the • whole of the south side of it a permanent approach structure of piles with planks, along which tugs with scows would slide with the drift of the tide, which method of going through the passage h the state of tide in question, 21/2 to 3 knots, is -clearly
VOL. XIX.] EXCHEQUER COURT REPORTS. open to no objection and no fault could be found with that course in ordinary pears, however, that at some time in the month pre- ceding the accident, the downstream, i.e., western portion of the said approach had been carried awa and a temporary arrangement provided of four boom sticks and three groups of piles ' as shown, Ex. 10, which gives a fair representation of the situation. Of these. boom sticks only. two need . be considered, one of them—the long. sheer-boom marked "A" on Ex. 10 being 40 td 50 ft. long and running out to the pile marked "X" and a shorter one marked "B" fastened to the end of "A" and connecting at an angle . with the second . group of piles at the apex of the boom structure. This short corner boom "B" which the bridge-keeper describ- ed as being from 14 to 16 ft. long and about the thickness of a 'telephone pole, (though the defend- ant's witness, the 'tug-master, described it . as heavier), projected out an appreciable distance be- yond the line of' sheer-boom "A", as well shown on Ex. 10, and ' the effect of this was that when the scow, after scraping along the sheer boom, came to the projecting corner boom, the end of it, (which the master of the tug described as being square) struck a stern plank (which I have reason. sound one) in the scow at its spiked end and knock- ed it out, causing the scow to quickly fill as afore- said. Two grounds of complaint are set forward against the tug;- the first being that she was badly navigated, but in the true sense of that expression I have no difficulty in finding that such was ' not the case, for no fault can be found in the matter in which she ap- 107 1919 It ap - PATTEus°N CH T AiŸDïES AHD S EP H H , E:. N , LTD. T HE SEN ATOR JANSEN." y Bstasonseir to doubt was a
108 EXCHEQUER COURT REPORTS. [VOL. XIX. ,1_" 9, proached the bridge or took advantage of the tide to SATTERErA I CHAN DLER A ND stop her engines and drift through the passage, and STEPHEN, LTD. v, i n ordinary circumstances all would have gone well. THE `SENATOR JANSEN . . But the second ground of complaint is that it was Jûaâgmé n01 negligent, in the circumstances of the projecting corner boom stick and set of the tide thereupon, for the master to have gone through the passage. with the scow on the port bow of the tug which was next to that corner boom which, it is submitted, obviously created a dangerous situation. It is clear from the evidence of the defence that at the season of the year, with freshets, tugs drifting as here with said tide would expect to hit the sheer-boom, and also that since the solid approach had been broken the tide sets more strongly towards and under the boom sticks; the tug's master says he knows the locality very well, having taken scows through it( the bridge) "a couple of hundred times," and he knew of the change since the damage to the approach "sometime before that" and, "weeks anyway" (as he expresses it), and the position of the temporary booms at the time as set out in Ex. 10, so he was, as he admits, "quite familiar" with the situation and the boom sticks, and their being fastenéd together by a five-eighths wire. He thus describes the accident:— "A. As I was passing through, the corner of the "scow hooked on to his boom stick that was stick-' "ing out there. "Q. Now which boom stick. Look at Exhibit 10, "that photograph, and state which boom stick? "A. That there one. "Q. That is the one marked B? A. Yes.
VOL. Xi ̀tes. f EXCHEQUER COURT REPORTS. 109 "Q. Well, what part of the scow? A. This point .19 .1 "+there. C PATTERSON, HANDLER AND "Q. Yes. What part of the scow hit the end of STEPHEN, LTD. ro. THE "SENATOR "that boom stick? A. The side of her touched it and JANSEN." . "went along it as she got to the stern of it, and she Reasons for dndgment. "pulled. a plank out of the stern, to the boom stick "B. which did the damage. , "Q. Have you looked at it since? A. Yes. "Q. What kind .of end is there on it? A. Square "end, cut off square. "Q. Cut off square? A..Yes. "Q. It is not tapered like? A. No. "Q. Like ordinary piles? A. No." And again :— "Q. This boom stick that is marked B always 'stuck out like that, did it? A. Sometimes it did and `sometimes it didn't. "Q. You knew that? A. Yes. "So that you knew that sometimes—at some times "the end of the boom stick was sticking out like "that? A. Yes. "Q. Sometimes not much, I suppose, all depending "upon the current? A.' Depending upon the way "the current hit it. "Q. Dependent on what? Speak up. A: Depénd-"ing the way the current hit it. "Q. It might change one way or * the other ? A. "Yes. "Q. But at any rate you knew it was quite possible "and probable for that to be out like that? . A. Yes." And "Q. You could see the boom stick perfectly plain `could you not? A. Yes. "Q. You saw it? A. Yes sir.
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110 EXCHEQUER COURT REPORTS. [VOL. XIX. 1919 " Q. Saw how it projected out? A. Well, I couldn't ŸANDLRER N,D CHANDLER AN "say that it just projected out then. The current STEPHEN LTD. "might have dragged it out. THE "SENATOR JANSEN." Q. Well, but you saw at the time? A. Yes. Judgment. _ "Q. How it . proj ected out? A. Yes, it projected "out. "Q. Did it not strike you at all that if you struck "it on edge it might do you some damage? A. Well, "it might have struck me that way, but I couldn't "very well help touching it. "Q. You couldn't very well help touching it? A. "Not very well, no, the tide pulls that way. "Q. And what happened, take this as the stern "board, what happened as I understand you is that "that boom stick B hit that just about there? A. "Yes sir. "Q. Just where it was nailed on or spiked on to "the sides? A. Yes. "Q. And the whole weight of the scow and its "cargo and that boat was centred or concentrated "at that point? A. Yes." He thus describes the corner boom stick B :— "Q. Yes, but that is a small pile,—a small boom "stick. A. I don't know it is so small, it is anywhere "between— "Q. Well, the evidence is to that effect. A. Well, "I say it is anywhere between 16 and 22 inches. "Q. In depth? A. Yes. "Q. Do you swear to that? A. Yes. "Q. Did you measure it? A. No, I never measured it, but I seen it was floating there, it was floating 8 inches out of the water at that time, and "there would be over half of it in the water, that "would make it 16 inches, then you have got to al-
VOL. XIX.] EXCHEQUER COURT REPORTS. ' , 111 "low for what you lose—the balance that was in the 9" "water, would be about 22 inches. PATTERSON, CHANDLER AND STEPHEN LTD, "Q. Well, the evidence here, .by Gregory, I think THE `SENATOR "it was, that it was a small boom stick. A. Well— . JANSEN." "Q. About like a telephone pole? A. Yes, well a 1e d ne r "telephone pole wouldn't hold nothing there. " , "Q. Well, but that' is the evidence. A. Yes, but I "seen-- "Q. And the only reason you would have for "denying that would be your inference. He has ``sworn it. A. I have seen it, seen the end of it "where it was swung in, and I figured it was alto- " "gether between 16 to 22 inches. 'Q. 16 to 22 inches? A. Yes.' "Q. Half of it is above the water? A. No, not "half "of it is above the water. "Q. Well, how much was above the water? A. "Well, it is just according to how much it was "waterlogged. It might have been three inches. "Q. Well I mean at the time you saw it. A. Well, "about .six inches." And he admits' that he knew of the opening between the ends of the two boom sticks and gives that as a reason why a fender could not have been used to protect the scow from contact with the projecting , stick B. So it really comes to this, that from his own evidence the master of the tug knew of the set of the tide which would inevitably bring the scow against the corner of the boom stick obviously. creating a situation of danger, because though he might be fortunate enough to slide by yet the probability of a contact between the end of it and the end of a plank in the scow could not prudently be left out of consideration, despite which he continued on his ,
112 EXCHEQUER COURT REPORTS. [VOL. XIX. 1919 course thereby courting danger which might easily PATTERSON, CHANDLER AND have been avoided by the simple expedient of lash-STEPHEN, LTD. v. ing the scow to the other, starboard, side away from TILE "SENATOR JANSEN. " the boom where it would be in a perfectly safe posi-Reasons for Judgment. tion. I am quite unable to see, after a lengthy and careful consideration of the whole matter, how the master can be exonerated from a lack of that degree of negligence which should be used by a reasonably prudent man. I find it indeed, difficult to account for his conduct which, the more one considers the case, appears to be rash. A number of authorities were cited, All of which I have carefully examined, and many others, and these which are of most service are the federal decisions in similar cases in the United States, where the general circumstances of navigation of this class more closely approach those in, our country than do those in England. I shall only refer to a few of them which are in point. Thus, in The T. J. Schuyler v. The Isaac H. Tillyer,1 it is said, at p. 478:--- "While the tug did not stipulate for the absolute "safety of the schooner, yet she was bound to meet "such requirements of her service as would enable . "her to render it with safety to the schooner. She "must know the depth of the water in the channel; "the obstructions which exist in it, the state of the "tides ; the proper time of entering upon her ser- vice ; and, generally, all conditions which are es- sential to the safe performance of her undertaking. "If she failed in any of these requirements, or in the " exercise of adequate skill or care, she is justly sub-"ject to an imputation of negligence. Was the tug "derelict in any of these respects? She might have 1 (1889), 41 Fed. Rep. 477
VOL. XIX.] EXCHEQUER COURT REPORTS. "started• when the • tide was at a higher stage than it "was when she beganher movement "and thus, with deep p er water, have insured the saf "ety of her tow. When she approached the pier of J "the bridge she might and rightly ought to have kept Itazigtr "further away from it, for which there was ample `room, and thus have avoided the risk of ' collision "with it, or with the obstruction under the surface "of the water." And in the Westerly,1 at p. 940, it "is said : . "The tug had the burden of excusing the failure in "performance of her undertaking to tow the canal "boat safely through a presumallly safe and well-"marked channel: Boston, Cape Cod, etc.,. "Staples,. etc.; Co.2 It would be a sufficient excuse "if the grounding was in fact caused, by an obstruc- tion in the channel over which there was not water "enough for the canal 'boat, because her master "would have been justified in believing that no such "obstruction was to be found there, but it was for "the tug to show the existence of such' an obstruc- tion, and therefore to show that she had the canal "boat in the middle .of the dredged channel when "she grounded, and not outside of it or on its edge." • And in the' Lake Drummond Canal Co.. v. John L. Roper Lumber Co.' a very' similar case to this, .respecting a vessel attached to a tug and passing along the side' of a' lock and a projecting snag, the Court said, at p. 799 : "It should be remembered, as we have stated, that "the captain of the tug saw, or could have seen, that 1 (1918), 249 Fed. Rep. 988. 2 (1917), 246 Fed. Rep. 549, 552, C. C. A. 3 (1918), 252. Fed. Rep. 796. 113 ,1 9 9 up 'the river, CH P A A N T D D L L E E R R N, ANA STEP 1iE ti . . L - TD. THE "SENATOR ANSEN." Co. v.
114 EXCHEQUER COURT REPORTS. [VOL. XIX. 1919 "the gate had not fully entered the recess prepared • PATTERSON, CHANDLER AND "for it, but that it was jutting out, so as to obstruct STEPHEN, LTD. V. "the passage intended for vessels entering the lock. THE "SENATOR JANSEN." "With this projection staring him in the face, the Reasons for Judgment. "captain of the tug did not take the precaution to "stop his engines until after the barge had come in . "violent contact with the gate." And on the question of presumption, in the case of the Allegheny' it was said, at p. 8: "This collision could not have occurred without "the fault of some one, and, the lighters being with-"out fault, it follows the fault is presumptively that "of the tug, which was in exclusive control, unless "she has shown the collision was the result of in- evitable accident, or was caused by some agency "other than the tug or tow. The W. G. Mason,2 and "cases there cited." • Applying the foregoing principles to the facts before me I can only come to the conclusion that a case of negligence has been established against the tug and therefore the plaintiff is entitled to judgment. From the evidence so far adduced on damages, the fair value of the scow would, 'I think, be $2,000, and the cost of the missing granite and of salving the balance could well be allowed at the sum claimed- $703.75, making a total of $2,703.75, and there is no reason why interest should not be charged from the date of damage at the legal rate, butbearing in mind that it is the established practice of this Court to refer questions of damage to the Registrar, assisted by merchants if necessary, I should be prepared to adopt that course if the defendants wish it, because, 1 (1918), 252 Fed. Rep. 6. 2 (1905), 142 Fed. Rep. 915, 74 C. C. A. 83.
VOL. XIX.' EXCHEQUER COURT REPORTS. relying upon that practice, they may have wished to produce more evidence of the amount of loss than was given before me, although their counsel did not so state. They will be given, therefore, one • week within which to apply for a reference if desired. A question, arose as to the unseaworthiness of the scow, but I am satisfied that she was in a fair condition tô perform the work undertaken, though it is not strictly necessary to pass upon this pôint be- • cause even if she had been wholly sound the ,direct consequences of the knocked-off plank could not have been avoided. Judgment accordingly. 115 "1 1-9 1 , PATETRSNO , CHANDLER AN D STEPHEN, LTD. v. THJ "SENATOR ANSEN:' JJaudsogmne fnotr
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.