Pacific Wind, Ship v. Johnson et al.

COUR SUPRtME DU CANADA

RrrcIam J.:-This is an appeal from a judgment rendered by Mr. Justice Gibson of the Exchequer Court of Canada, sitting with two nautical assessors in the British Columbia

S.C.R.

[19671

Admiralty District, whereby he apportioned liability equally between the appellant and the respondents in respect of P . v damage alleged to have been sustained by the respondents as the result of a collision which occurred in the coastal e a waters of British Columbia at 5:15 a.m. on a clear November morning between the fishing vessel Unimak and the tanker Pacific Wind. The learned trial judge found that the two ships collided in about mid-channel in a stretch of water known as Graham Reach at a point therein about 8 cables north of its juncture with another stretch of water called Tolmie Channel which runs into it from the south. The learned trial judge fixed the approximate point of collision as being about 3 cables south of Quarrie Point on the western shore of Graham Reach where the Department of Transport has installed a flashing green light as an aid to navigation. All these matters appear with greater clarity by reference to the Department of Mines and Technical Surveys Chart No. 3758 entitled "Sarah Island to Swanson Bay" and it is agreed between the parties that at the point where the collision took place Graham Reach constitutes a "narrow channel" within the meaning of Rule 25A of the Regulations for the Prevention of Collisions at Sea.

As the events developed which finally culminated in the collision, the Unimak, a fishing vessel about 58 feet in length, with a gross tonnage of 57.23 tons, was proceeding in a southerly direction in Graham Reach at about 8 knots loaded with a catch of fish on her way from her fishing grounds to Vancouver, whereas the Pacific Wind, an oil tanker about 230 feet in length with a gross tonnage 1560.56 tons, was proceeding down Tolmie Channel in a northerly direction at between 10 and 11 knots on a voyage from Shellburn to Kitimat, B.C., loaded with a full cargo of fuel oil. Both vessels were equipped with radar but it is apparent that the Unimak was making no effective use of this aid although radar 'fixes' taken aboard the Pacific Wind enabled the mate to determine the position of the Unimak when she was six miles away and at that time was showing her green light. As Pacific Wind proceeded down Tolmie Channel she held her course to 342 degrees magnetic and maintained her speed while the Unimak proceeding up Graham Reach was not steering by any compass course at all but was merely following the western shore line until it was thought to be too close whereupon an abrupt alteration was made to port and the vessel ran on its new course for about five minutes.

The 'learned trial judge has reviewed the contradictory evidence at some length and I do not propose to retrace the steps which he has taken with obvious care and with the expert assistance of the assessors who sat with him. I think it sufficient to say that he found that the crew in charge of the Unimak at all relevant times was incompetent, failed to keep an adequate lookout, took no adequate precautions to avoid collision when it became imminent and navigated just prior to the time of the collision in or about the center of the channel. This is a clear finding of negligence which contributed to the collision and subsequent damage and no appeal has been taken from it so that in my opinion the only question to be determined on this appeal is whether the Pacific Wind was also negligent and if so whether its negligence was such as to make it impossible to establish different degrees of fault between the vessels.

It is important to observe that if the course of 342 magnetic steered by the Pacific Wind had been maintained after entering Graham Reach from Tolmie Channel it would have brought the vessel well over to the west of mid-channel by the time it reached Quarrie Point. There is no doubt that an order to alter the course to starboard so as to bring the vessel to the eastward had been given very shortly before Pacific Wind entered Graham Reach but the learned trial judge found the evidence to be inconclusive "as to precisely when the first order was given to manoeuver the vessel Pacific Wind to starboard" and the fact of the matter is that she was in or about mid-channel at the time of collision so that, in my opinion, whenever the order was given it was not soon enough.

The actions of Pacific Wind are to be judged in light of the International Regulations for Preventing Collisions at Sea, Rule 25A of which reads as follows:

This rule, like the other "Steering and Sailing Rules" is required to be obeyed in accordance with the preliminary paragraphs of Part C of the Regulations, the first of which sIP provides that:

(The italics are my own).

It is to be remembered that Pacific Wind had first been alerted to the presence of an approaching vessel, which was then showing a green light, at a distance of 6 miles and it seems to me that it should have been possible to take steps to ensure that the Pacific Wind was well in its own waters in time for the two vessels to pass safely notwithstanding the erratic and unpredictable manner in which the Unimak was being navigated.

The learned trial judge also found that the failure of Pacific Wind to reduce speed earlier than she did was a factor which contributed to the collision and I see no reason to disturb his finding.

Section 648 of the Canada Shipping Act, R.S.C. 1952, c. 29, reads, in part, as follows:

In the present case, after having seen and heard the evidence of those who were aboard the respective vessels at the time of the collision and having had the advantage of the advice of two nautical assessors, the learned trial judge found it impossible to establish different degrees of fault, and although Mr. Bird, in his very able argument on behalf of the appellant, cast some doubt on the learned trial judge's findings as to credibility, I am nevertheless satisfied that this is not a case where a court of appeal should interfere with his conclusions.

The difficult problem of measuring the degrees of fault in the navigation of two ships is one which, as Lord Buckmaster said in the House of Lords in SS. Kitano Maru v. SS. Otranto':

The matter was put with perhaps greater force by Lord

Justice Scrutton in The Luso', where he said at page 165 with respect to a finding at trial which had established different degrees of fault between two vessels:

Both these last quoted cases are referred to with approval in this Court by Davis J. in S.S. Benmaple v. Ship

Lafayette , where he applied the same principle; saying of the trial judge in that case:

The decision of Lord Sumner in S.S. Hontestroom v.

S.S. Sagaporack, which was cited with approval by

Martland J. in Prudential Trust Co. Ltd. v. Forseth', is to the same effect.

Notwithstanding the doubts suggested by Mr. Bird as to the accuracy of the reconstruction by the learned trial judge of certain of the movements of the two vessels immediately before and at the time of the accident, I am not satisfied that in making the apportionment which he did he was in any way acting on a wrong ground of law or conclusion of fact and I would accordingly dismiss this appeal with costs.

Appeal dismissed with costs.

& Murphy, Vancouver.