There is some conflict of fact, and the learned counsel 88. Kingdoc for the respondent very judiciously bases his argument upon cVDA the passages which he maintains are not in dispute, realizing, no doubt, the " great and almost insuperable difficulty" with which an appellant is apt to encounter adverse NewcombeJ.findings of fact upon contradictory testimony.
(Per Lord Kingsdown in The Julia (1); per Lord Sumner in The The material facts may thus be stated in short space and I extract the narrative from the respondent's factum: The respondent Steamship Oxford had come down with the current through Lake St. Louis and when the Oxford reached the entrance of the Lachine Canal the appellant Steamship Kingdoc was still moored to the canal wall where she had remained since making fast there about an hour earlier. While the Oxford was coming down the narrow canal entrance between certain piers on the north side and the canal wall on the south side of the entrance, the Kingdoc cast off from her moorings and commenced to manoeuvre so as to get under way on her proposed voyage up the canal entrance to the lake. The wind was blowing from the southwest across the canal entrance and when the Oxford was trying to meet and pass the Kingdoc the latter's starboard side came into collision with the stem of the Oxford. The Kingdoc was light and the Oxford was fully loaded.
It should be observed that the navigation in this case is governed by the rules of the road for the Great Lakes, which include the St. Lawrence river as far east as the lower exit of the Lachine canal and the Victoria bridge at Montreal; they differ in several particulars from the international rules.
The learned Judge of Exchequer Court at the conclusion of his reasons for judgment, which are fully stated, propounds the following maxim, as governing his conclusion: Moored at the revetment wall of the Canal, the Kingdoc, a light ship of 250 feet in length, with a fresh breeze blowing strong enough to affect her, on a dark night, casting off and getting unnecessarily under way, in a canal of 275 feet in width, with the knowledge of a downbound vessel coming in at the time with the current, having thereby the right of way, (Rule 25) will be held at fault for a collision which would not have happened had she lain fast at her berth and delayed casting off but a few minutes.
Now while I agree that, in the circumstances of this case, the action of those in charge of the Kingdoc's navigation was inconsiderate, in leaving her moorings and proceeding outward in the face of the incoming Oxford, which was close at hand and exhibiting both side lights; nevertheless, the learned's judge's statement requires qualifica- (1) (1860) Moore's P.C. 210.
at tion, for the offending ship should not be held responsible for such an error unless it be the cause of the damage which ensued, and we have here another instance of the application of the rule which was laid down in the well-known case of Tuff v. Warman (1), and restated by the House of Lords in Radley v. London and Northwestern Railway Company (2).
It is an undisputed fact that when the Oxford, approaching the entrance to the canal, came into relations with the
Kingdoc, the weather had cleared so far as to enable the
Kingdoc safely, in the judgment of her master and pilot, to proceed upon her voyage; and, accordingly, her master gave the order to cast off. The following passage occurs in Captain Redfearn's cross-examination:
The Kingdoc then gave two blasts of her whistle, signalling her desire to pass on the starboard side of the Oxford, a signal which the latter promptly answered in like manner;
thus the two ships agreed that they should pass green to green. When this interchange of signals took place the
Oxford was, of course, aware that the Kingdoc was no longer moored, and was outward bound; the situation was perfectly apparent; neither ship anticipated any unavoidable danger or obstruction in making the passage for which they had mutually stipulated. The narrow channel rule applied, subject to the understanding that each ship should keep to the side which she had elected to take; and the ships were very close to each other. The Kingdoc was shouldering her way along the canal wall, at a distance from her stem of about 30 feet, and from her stern of about 60 feet;
the Oxford was coming down on the opposite side; when suddenly the Oxford gave an alarm or danger signal of five or six blasts and reversed her engine at full speed astern. The reason for this manoeuvre was not apparent to the Kingdoc; for, according to the findings, she was navias closely to the southern bank as she could safely go, and there was ample room, in canal navigation, between her starboard side and the blocks which mark the northern side of the channel, for the Oxford to pass.
The danger signal is explained by Mr. Austen, the first officer of the Oxford, who says:
The Oxford's stem struck the Kingdoc's starboard bow, at no. 2 hatch, 68 feet from the stem, forcing the Kingdoc against the south wall, where her stem struck. Evidently it was considered at the trial that the collision took place on the south side of the canal, and resulted from the faulty navigation of the Oxford, by an abrupt and inconsistent manoeuvre, after exchange of the passing signals. I am not convinced that the local judge reached an erroneous conclusion; certainly there was a cause intervening between the time when the Kingdoc got under way, and the collision; and if the accident was due to the cause found at the trial, it was not the untimely casting off of the Kingdoc, to which the collision can be attributed.
For these reasons, I think, with great respect, that the findings and judgment at the trial should be restored, and I would allow the appeal in each case with costs. The appellant should also have the costs of the appeal in the Exchequer Court.
Appeals allowed with costs.