Algoma Central and Hudson Bay Railway Co. v. Manitoba Pool Elevators Ltd.

to other charges but the sentences imposed in regard thereto were made concurrent with that on the charge of robbery.

THE By a letter addressed to the Registrar of the Court the Cartwright J. applicant stated that he wished to appear before the Court in person on this application. As the material, including the statements of the applicant, makes it clear that no relief could be afforded to him by this Court nothing would be gained by adjourning the matter to enable him to make the necessary arrangements to be brought before the Court.

The application for a writ of habeas corpus and certiorari is dismissed.

Application dismissed.

THE ALGOMA CENTRAL AND

HUDSON BAY RAILWAY COM- *Nov. 30 PANY and PARRISH HEIM- APPELLANTS;

BECKER LIMITED

J.:-This is an appeal from a judgment of Mr. Justice Dalton C. Wells sitting in his capacity as District ,ta,.

Judge in Admiralty for the Ontario Admiralty District of the Exchequer Court of Canada' whereby he dismissed a claim by The Algoma Central and Hudson Bay Railway Company (hereinafter called "Algoms") for damage sustained by its vessel Algoway through grounding whilst taking on a cargo of wheat at a dock and grain elevator known as Manitoba Pool No. 2 owned and operated by the respondent Manitoba Pool Elevators Limited (hereinafter called "Manitoba") and situate within the limits of the Lakehead Harbour as the same are defined in s. 4 of c. 34 of the the Statutes of Canada 1958, by which Act the respondent, Lakehead Harbour Commissioners (hereinafter called "Lakehead") was incorporated.

By the same judgment the learned District Judge dismissed the claim of the appellant Parrish & Heimbecker Limited (hereinafter referred to as "Parrish") the owner of the wheat cargo carried on board the Algoway at the time of its grounding which was damaged as the result of the incursion of water resulting therefrom.

On November 29, 1961, the Algoway having already loaded some 94,000 bushels of wheat at the Thunderbay elevator which is also within the Lakehead Harbour, was directed to a berth at Manitoba Pool No. 2 about miles to the northward, at which latter position the master and mate intended to load sufficient wheat to bring the Algoway to her mean winter draft of 19' 91". The master of the Algoway was unfamiliar with the berth to which he was directed but had on board for his guidance the official Canadian Hydrographic Survey Chart 4 2314 as well as a Great Lakes Pilot (U.S. Lake Survey) and a sketch of the harbour which was incorporated in a pamphlet entitled "Bylaws and General Information" issued by Lakehead. Chart 4 2314 shows a maximum depth of 19 ft. at the Manitoba Pool No. 2 berth, which, when adjusted to conform with the hydrographic survey gauge at Port Arthur, would read 18' 6" whereas information contained in the Lakehead pamphlet under the heading "Working data- Port Arthur Harbour" shows a mean water depth of 21.2 ft. at the same berth.

On reaching Pool No. 2, the Algoway was secured at the west side of the berth and loading was commenced in the forward hatches, but upon reaching the point where the ship was drawing 19' 8" forward and 18' aft it was decided that she should be shifted forward so as to load additional grain in the after hatches in order to trim the vessel to her winter marks. Before ordering the ship to be moved forward, the mate, who appears to have been in charge of loading on board the Algoway at the time, states that he called out to a man on the dock who turned out to be the superintendent of the Manitoba Pool Elevator No. 2, asking whether there was "lots of water" and received the reply that there was lots of water and that boats were loaded there at a draft of 21 and 21.6 ft. Upon receiving this assurance the Algoway was winched ahead by the use of its own winches and it was found that she had taken ground and that water was coming in No. 1 starboard tank. Subsequent examination revealed that, as might have been anticipated, when the heavily laden forward section of the ship was thus brought forcibly in contact with the rough bottom of the Lake, a hole was punctured in one of the starboard plates and five other plates were damaged. The chief negligence alleged against Lakehead by both appellants is that the pamphlet entitled "Bylaws and General Information" published by it was inaccurate and misleading and reflected a failure on the part of Lakehead to ascertain the actual depths of water at the various berths where ships were invited to dock, and it is further alleged that Lakehead, as the corporation having jurisdiction over the Harbour in question, was under a duty to warn those in charge of the Algoway of the actual condition of the berth to be used by it including the presence of any obstructions and the depth of the water to be expected therein.

I agree with the learned trial judge that there is no evidence as to any obstructions in the berth and that the nature of the lake bottom was such as to be anticipated in the area in question. Counsel for both appellants, however, rested their case against Lakehead primarily on the fact that those in charge of the Algoway were entitled to rely on the representations as to the depth of water in Manitoba Pool No. 2 made in the pamphlet which has been referred to above.

With respect to the contention that the damage was caused as the result of those in charge of the Algoway having relied on this pamphlet, the learned trial judge said:

I see no reason to question this finding of fact which is so clearly based on the credibility of the witnesses who testified at the trial.

The safety of the ship is primarily the concern of its captain who is charged with navigating safely at all times, and if those in charge of the Algoway had relied on the Lakehead pamphlet they would have been ignoring the information which was clearly indicated on the Canadian Hydrographic Survey Chart 9 2314 which, at the very least, should have put them on their guard against loading to the ship's winter marks at the berth to which they were directed.

The evidence is clear, however, that when the ship berthed at Manitoba Pool No. 2, the captain retired to his cabin and left the responsibility of loading to the mate who says that before moving the ship forward he relied, not on the Lakehead pamphlet, but upon the assurance of the superintendent of the Manitoba Pool No. 2 who happened to be on the dock, that there was enough water to load to the ship's winter draft.

The assurance so given to the mate is now relied on as forming the basis of the claim of both appellants against the respondent Manitoba and is alleged to have constituted an express warranty given by that Company as to the depth of water at its berth, and it is contended that Manitoba improperly invited or allowed the Algoway to come into and occupy a berth operated by it at a time when it knew or ought to have known that it was not safe for her to do so.

There was no danger in the berth in question until the ship rested on the bottom and I do not think that the short conversation between the mate speaking from the deck and the superintendent from the dock, can be treated as a warranty or that it constituted any assurance upon which the mate was entitled to rely in exposing the ship to the serious risk of grounding in these waters.

In reading the mate's evidence it occurs to me that he was not very much concerned as to whether the ship touched ground or not. In direct examination he was asked: Q. In the meantime, when you have been loading at the Lakehead, is it usual or unusual to touch ground from time to time?

Ritchie J. A. I have loaded at elevators where we have rubbed the bottom. And later in cross-examination he gave this evidence: Q. Were you at all anxious or apprehensive as to the depth of water you might find there?

A. I wasn't unduly concerned.

Q. You don't sound sure. You were somewhat concerned?

A. I was somewhat concerned.

And later:

Q. You had no difficulty getting the ship into that position where she could load?

A. She was rubbing the bottom and we didn't try to move her.

Q. Before you started completing your loading she was rubbing the bottom?

A. Yes.

Q. Where-forward or aft?

A. Forward.

Q. When you say the ship stopped herself, what do you mean by that?

A. She came to a stop herself because the winch was having too much power.

Q. You didn't have to use your engines after she had gone forward? A. No.

Q. Were you surprised she had gone aground forward?

A. Not necessarily.

On consideration of all the evidence I have reached the opinion that the motivating concern in the minds of those in charge of the Algoway was to load as much wheat as her winter draft would allow and that the possibility of the ship taking ground in the process was a secondary consideration.

As I agree with the learned trial judge that no reliance was placed on the inaccurate data supplied in the Lakehead pamphlet and as I am of opinion that the conversation between the mate and the superintendent was of too casual S.C.R.

a nature to justify moving the Algoway into a position where it should have been known to those in charge that she was likely to be resting on the rocky bottom of the lake, can find no negligence on the part of either of the et respondents which was causative of the grounding and consequent damage.

EVAOS

In view of the conclusion which I have reached on the evidence, I do not find it necessary to consider the question e l.

of whether Lakehead was an agency of the Crown to which J. the provisions of s. of the Public Authorities Protection Act, R.S.O. 1960, c. 318 apply and nothing herein contained is to be treated as adopting the reasoning of the learned trial judge in that regard.

I would accordingly dismiss this appeal with costs.

Appeal dismissed with costs.