Princess Adelaide, SS v. Fred Olsen & Company

Proudfoot and Stevenson have received the money and they Hm or their representatives must account to Harris who is entitled to recover from them $50,000 for his share. This -uifret was the conclusion of Galliher J.A., with whom we agree. The appeal should therefore be allowed to the extent indicated, with costs to the appellant before this court against the respondents Proudfoot and Stevenson.

The crossappeal of the latter is dismissed with costs and the appeal of Harris, so far as Andrew and Dan. Lindeborg are concerned, is also dismissed with costs.

J.-These two steamships collided in English Bay, the outer harbour of Vancouver, on the forenoon of 19th December, 1928, at about 11.141 o'clock by the Hampholm's time, or 11.16 by the Princess Adelaide's time, which appears to have been somewhat faster. There were cross actions to recover damages, and these were, by consent, consolidated and tried together at Vancouver, before the learned local judge of the Exchequer Court for the British Columbia Admiralty District, who found fault on both sides, and apportioned the liability according to his finding of the degree of fault, as provided by the Maritime Conventions Act, R.S.C., 1914, 1927, c. 126, viz:two-thirds on the part of the Princess Adelaide, and onethird on the part of the Hampholm, saying:

There was an appeal to the President of the Exchequer Court, and he, finding the Princess Adelaide alone to blame, exonerated the Hampholm, and remitted the case for the assessment and recovery of the damages sustained by the Hampholm.

The case now comes before this court upon appeal from the latter judgment. It was argued at unusual length, although it transpires that the material facts are not disputed in any important particular, and the controversy may, I think, be disposed of with full justice to the parties on the assumption that they are as found by the learned local judge.

On the morning in question, the Hampholm, a Norwegian steamship of 4,480 tons gross, 395 feet long, 52 feet beam and 10 knots speed, inward bound from the Orient to Vancouver, entered English Bay at 10.05 o'clock, passing Point Atkinson, which marks the entrance to the northward, about half a mile on her port hand. She evidently found it too thick to attempt the Narrows, and so proceeded cautiously, with the intention of anchoring at the usual anchorage in the southern part of the Bay. In doing this, she necessarily had to cross in a southeasterly direction the course of any outgoing vessel from the inner harbour which might attempt to navigate through the fog, which is described as " dense."

The Princess Adelaide is a single-screw steamship of Canadian registry, 3,060 tons gross, 290 feet long, 40 feet beam, and 16 knots speed. She plies daily between Vancouver and Victoria, carrying passengers for the Canadian Pacific Railway Company.

She left her berth at Vancouver in the fog at 10.43 a.m., passed through the Narrows, and, emerging into the Bay at Prospect Point at 11.01 o'clock by her time, developed a speed of 12 knots, which she maintained upon her usual outward course, with little diminution, if any, until the moment of the collision. The learned local judge, in his findings, states the matter thus:

says, and there is no sound reason to doubt that statement, that he didl SS. P not change that course till the collision became imminent.

He had. Adelaide stopped his engine about half a minute before the collision upon hearing the fog whistles from a tug to port, and then, again, from a ship to starboard that turned out to be the Hampholm, which he first saw emerging. & from the fog at a distance of about 300 feet between 2 and 3 points on A

.

his starboard bow, and tried to clear her by putting his helm hard astar- Newcombe J.board with full speed ahead, but it was too late to avoid the collision,. the stem of the Hampholm cutting into the Adelaide on her starboard side, a little forward amidships, as shown by the position of the models, on exhibit 4, which is admitted by both parties to be substantially correct. At the moment of impact the Adelaide was still swinging, with a, speed of about knots, at least, to avoid the Hampholm, which still had,. I am satisfied, upon the conflicting evidence on the point, a slight amount. of way on her when she sighted the Adelaide, but not exceeding 1+ knots; her preliminary acts admits she had "steerage way only."

* * * The Hampholm, inward bound to the Narrows, at 10.05 had passed and seen Point Atkinson, half a mile off, on a course E. by N., at a speed of about 4 knots, but shortly afterwards, in view of the density of the fog, had decided not to attempt to enter the Narrows, but to proceed cautiously, by " slow ahead " and " stop " alternately, to the usual anchorage in the southerly part of English Bay, which was in general the properaction to take in the circumstances, and to do so she altered her course at 1025 to E.N.E. and continued on it at a decreasing alternate speed down to about 3 and 2 knots, and finally, owing to the signals of other vessels, again changed her course, at 10.50, to E.S.E., giving the proper signals and taking soundings.

While on that course and at least as early as 11.12, she heard the signal of another vessel (which turned out to be the Adelaide) about 5-6points on the port bow, upon which she stopped her engines and blew her whistle, to which the Adelaide replied, and after another exchange of whistles and when the Adelaide was whistling for the third time (if not. the fourth, as the Hampholm's master gives it) she almost immediately emerged from the fog, at a distance of about 3-500 feet, and apparently heading almost directly for the Hampholm, or at least across her bow, upon which the Hampholm reversed her engines full speed and put her helm hard aport, but too late to avert the impact, as already noted. The master of the Hampholm says he was struck by the Adelaide less than "half a minute" after sighting her.

It is, I think, worth mentioning an additional fact, about which there is no dispute, which is thus stated by Capt. Hunter, master of the Adelaide, speaking of the last signal which he had from the Hampholm:

A. She just came in view then; I put the helm hard astarboard and put the engine full ahead.

Q. Yes. What was the effect on your ship of putting the helm hard astarboard?-A. Well, we swung to port about three-quarters of a point, and then I seen the Hampholm coming along and I thought that we might clear him by putting the helm hard aport and swinging the other way-swinging around him, but he was coming too fast and we were too close together then.

Q. Did the port helm order have any effect on the ship?-A. Yes, it stopped the swinging.

Q. Stopped the swing to port?-A. Yes.

Later on he says he went hard aport with a view to avoiding a collision, although it is difficult, upon his evidence, to understand the conjunction of these manoeuvres. He admits, however, that in the event the hard aport movement had no more effect than to stop the previous swing to port; but, if the captain thought that the hope of avoiding a collision could be realized only in this manner, it would seem to have been quite out of the reach of anticipation that he would allow so little time and space for the purpose:-about half a minute, or less as found at the trial, and about 300 feet, according to his own testimony. Now the Adelaide contends, and the local judge agrees, that in the special circumstances of the case the Hampholm should have reversed her engines when she heard the second whistle from the Adelaide, or, at latest, upon hearing the third whistle, and that therefore, the Hampholm did not navigate with the requisite caution, and is consequently responsible for a degree of fault. Article 16 of the Collision Regulations admittedly applied. It provides that This article is, of course, to be interpreted in connection with articles 27 and 29, which insist upon due regard to all dangers of navigation and collision, the practice of seamen and any special circumstances which may render a departure from the rules necessary in order to avoid immediate danger; moreover, articles 19, 21, 22 and 23 have their application especially to the navigation of the Adelaide, and she certainly broke every one of these rules. It is said that, by reason of the fog and consequent difficulty of locating the respective positions, the starboard side rule could not operate until the vessels came within sight of each other, and so it may be; but, after that, it would seem that the rule could not with safety have been disregarded, unless S.C.R.]

overborne by special dangers or circumstances, and that, in any case, the previous navigation of the Adelaide should have been conducted in a manner which would have allowed of the possibility of avoiding the collision by the application of the rules laid down for common guidance. There is abundant evidence to establish the cautious character of the Hampholm's navigation from the time she passed Point Atkinson.

Her witnesses and records have been produced; and, from 10.56 o'clock, when she was dead in the water, until 11.14- o'clock, when the collision occurred, it is shewn by her testimony and bell-book that her engine movements were as follows:

3 minutes stopped from 10.56 a.m. to 10.59 a.m. 1 minute slow ahead from 10.59 a.m. to 11 a.m. 1 minute stopped from 11 a.m. to 11.01 a.m.

4 minutes slow ahead from 11.01 to 11.05 a.m. 5 minutes stopped from 11.05 a.m. to 11.10 a.m. 2 minutes slow ahead from 11.10 a.m. to 11.12 a.m. 2 minutes stopped from 11.12 a.m. to 11.14 a.m. 4 minute full astern from 11.14 to 11.141 (collision). It was at 11.12 a.m. that the Hampholm heard, two or three points forward of her beam, on her port side, the whistle of a vessel which was the Adelaide, and her engines were thereupon immediately stopped and remained so until, when two minutes later the Adelaide came into view, put full astern under a hard aport helm.

Many cases have been cited; but, neither by any of these, nor by the practice of good seamanship, does it appear that the Hampholm, in the circumstances of this case, was required to reverse before the Adelaide became visible; and, in my view, the navigation of the Hampholm is free from blame. Upon the conceded facts, she could have come to a standstill within 30 feet, but I think her master did well to keep his ship in hand. It must be remembered, as said in Marsden on Collision, 8th edition, p. 8:

And the same learned author says, at p. 403:

the foghorn of a sailing ship close to her and forward) until the ships are in sight of each other, or until the coure of the ship, whose duty it is to keep her course, is clearly indicated to the other by the difAerent SS Preness directions in which her whistle is heard.

Upon the assumption that the Adelaide was proceeding

FRED & at moderate speed and obeying the injunctions of the COMPANY. articles to which I have referred, the Hampholm, NewembeJ. while the vessels were out of sight of each other in the fog, had no occasion to reverse the mere steerageway which she carried, while, on the other hand, it was a matter of prudence and good practice that the ship should not be put out of command. The advantage of maintaining steerageway is frequently recognized in the. cases, and the Supreme Court of the United States, in the Umbria

(1), says:

It is probably also true that, considering the great speed of the

Umbria, it were better that the Iberia should keep her steerageway rather than stop her engines and reverse, since she would respond to her wheel more readily, if her engines were kept in motion than if her headway were entirely stopped. The case presented is not one where if both vessels had stopped and reversed, the collision might have been avoided;

but whether, under the facts as they subsequently appeared to be, the

Iberia could be deemed in fault for a manoeuvre which would have tended to avoid the collision rather than bring it about, by aiding her in keeping out of the way of the Umbria.

Even the master of the Adelaide frankly testifies that he has no complaint. He says:

Q. Now, have you any complaint to make with the manoeuvringwith the navigation of the Hampholm?-A. No, sir.

Q. So that, so far as she was concerned the accident was, as you state in this accident report, unavoidable?-A. Unavoidable as far as I could see, yes.

I cannot avoid the conclusion that the cause, and the only effective cause, which brought about the collision of these two vessels was the excessive and reckless speed of the Adelaide in proceeding in the dense fog which prevailed, and in a harbour where ships were so likely to be met, at the immoderate rate of 12 knots, when the visibility, as realized by her master and the officers and members of her crew who testified, was only about 300 feet, and persisting in the maintenance of that speed when she was aware, by the signals of the Hampholm heard in the Adelaide's wheelhouse, that a steamship was approaching on her starboard bow, so as to involve risk of collision. Let the visibility be increased, as suggested by the learned

(1) (1897) 166 U.S. 404, at 418, 419.

S.C.R.]

local judge, to 500 feet, or to 600 feet, as estimated by the ss. Princess Elampholm's witnesses; even then, as the event shews, the Adelaide Adelaide entered the area of visibility with a speed which FREn made it impossible for her, as the giving-way ship under & article 19, or otherwise, by any action on her part, to keep Newco be out of the way, and for the Hampholm, notwithstanding the cautious character of her navigation, to resort to any manoeuvre which would successfully aid to avert the collision. See British Columbia Electric Railway Company Limited v. Loach (1).

The cause of this accident was not unlike that in The Rosalind v. The Senlac (2); and the following passage, from the judgment of Duff J., at pp. 69 and 70, may, in substance, be affirmed of the Adelaide, in place of the Senlac, and of the Hampholm, in place of the Rosalind. The most ordinary attention to the most obvious risks of the situation would have led the Senlac, at the time she gave the starboard signal, to take such measures as might be necessary to avoid a collision; and this could easily have been done by simply stopping her engines. The truth seems to be that, at the moment the ships were in a position involving risk of collision, but no actual peril if both ships should be navigated with the caution which such a situation required; but that, while the Rosalind was navigated with care, the Senlac was navigated with a reckless disregard of the safety of both ships. It was this recklessness that was the proximate cause of the collision.

An appeal de plano to the Judicial Committee was dismissed, 25th October, 1909; Lord Macnaghten saying that their Lordships agreed with the Supreme Court of Canada in thinking that the Senlac was navigated with a reckless disregard of her own safety and of the safety of any other vessel that might be approaching her. Their Lordships have had an opportunity of conferring with the Nautical Assessors, and that is their view also.

There are some observations in United States Shipping Board v. Laird Line (3), which, I think, have their application to the limit, in the special and unusual circumstances of this case. At page 291, Lord Dunedin said: Accordingly, the Rowan is hit by a consideration analogous to that which prevailed in the well-known case of the Bywell Castle (4), and many others-namely, that it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger. (1) [1916] A.C. 719.

(2) (1908) 41 Can. S.C.R. 54.

(3) [1924] A.C. 286.