The Ship "Cuba" v. McMillan

RONALD McMILLAN AND

RESPONDENTS. OTHERS (PLAINTIFFS).........

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA, (NOVA SCOTIA ADMIRALTY DISTRICT.)

J.-This is an appeal from a judgment of the Admiralty Court of the district of Nova Scotia, holding the steamship "Cuba"

to be wholly responsible for a collision with the steamship " Elliott." The collision took place in the channel leading to the inner harbour of Sydney, O.B., about half-past seven o'clock in the evening of September 25th, The night was clear and the lights distinctly visible. The " Elliott " from Charlottetown, P.E.I., J. for Sydney, arrived off Low Point at the mouth of the entrance and stopped for a pilot. When the pilot came aboard the vessel was headed up channel at the full speed of eight knots on a course west by south, which would also take her towards the opposite or northerly side of the channel. This was to comply with the article which requires that

The channel from Low Point to South-East Bar at the entrance of the inner harbour is about four miles in length with a mean width of about a mile and a quarter. It has been held to be a narrow channel within the meaning of the rule. The Santanderino (1). A much larger body of water-the Straits of Messinahas been also so held. The Rhondda (2).

When the " Elliott " had proceeded upon her course awhile the masthead light of a vessel was seen over -the south-east bar moving in a northerly direction across the mouth of the harbour. Presently it became stationary and then the green and red side lights became visible as well, moving down channel.

These lights continued to be seen on board the " Elliott " (according to the testimony of those on board of her) for about ten minutes, bearing about a point, or a point and a half, on the port bow.

The approaching vessel (which turned out to be the "Cuba" outward bound with a cargo of coal for Halifax) also saw the red light of the " Elliott " at a distance of a couple of miles and bearing (according to the witnesses for the " Cuba ") about a point, or a point and a half, her starboard bow. Each vessel was very soon able to make out the course of the other.

The mere discovery of strange light does not necessarily immediately bind the person in charge of a vessel to follow any particular rule, but as soon as he has an opportunity of ascertaining by reasonable care and skill what the strange vessel is, and what course she is pursuing, then the rule which is applicable to the circumstances at once becomes binding on him. Marsden on Collisions

And when once the above condition exists the rules applicable to the navigation of a vessel are those appropriate to such condition things and are to be consistently applied, and a vessel is not to be thrown from one rule to another by changes of condition.

Before considering what rule was applicable to the condition of things it may be convenient to follow the courses pursued by both vessels down to the time the collision.

When those in charge of the "Elliott" saw that the approaching ship remained upon the same bearing from her for a considerable length of time-one of the most usual indications of a risk of collision and especially. so as her two side lights continued always visiblethe " Elliott's " helm was still further ported.

The result that might have been expected was that the red light of the "Cuba" would alone be left in sight, but this did not follow, indicating that the Cuba was responding to the movement of the " Elliott " by a still further starboarding of the helm. The vessels were then about a quarter of a mile apart. The "Elliott" then put her helm hard to port and the "Cuba" turned sharply to port shutting out her red light, and at the same time or almost immediately afterwards, and when the vessels were about a couple of cable lengths apart, blew two blasts of her whistle indicating that she was directing her course to port. The " Elliott " then reversed her engines but perceiving almost immediately that the bow of the "Cuba" was turning to starboard K J instead of to port her engines were set going again at full speed with the hope of clearing the "Cuba" by crossing her bow. The vessels were, however, now too close together and in a few moments the " Cuba's " bow struck the "Elliott" obliquely on the port side a little abaft amidships.

It appears that the object of the pilot of the " Cuba"

throughout was to pass to starboard of the " Elliott." He conceived that the vessels were in the position of

"c rossing " ships with the obligation upon him as having the " Elliott " on his starboard bow, of keeping out of her way, but with the choice of means of accomplishing this resting with him. And the contention on the part of the "Cuba" is that the adopted would have proved sufficient if the "Elliott" had in turn complied with her co-ordinate obligation to keep her course, art. 22 providing that " when one of two ships is to keep out of the way, the other shall keep her course."

It was argued-and expressions in the judgment seem to favour the contention-that the rule as to steam vessels keeping to their starboard side of the channel overrides the general rule of navigation, but it is decided. otherwise in The Leverington

Then as to the rules applicable to the case. It is clear that the vessels were not " meeting " ships. They would have been so if the statement made by the pilot the "Elliott" is correct that the "Cuba" was right ahead, but on cross-examination he withdraws this and puts her on the port bow where the proved courses of both vessels, and the testimony of all the other witnesses, show her to have been. Upon the whole evidence for the " Elliott " it is clear that the position of the "Cuba" was a point or a point and a half on her port bow and of course in such position her red light could alone be visible to the "Cuba," and consequently the vessels were not end on or " meeting " vessels.

Then, in the next place, were they " crossing " ships as contended by the appellants ? In such a relative position the lights are red to green or green to red. According to the testimony of those on board the "Cuba" such was the case, for they say that the " Elliott's " red light was a point or a point and a half on their starboard bow which would, of course, make the " Cuba's " green light alone visible to the "Elliott;" and their testimony is corroborated by the pilot of the " Elliott " in a sworn statement made by him before the Board of Pilot Commissioners forming part of the evidence in this case. He there says that the "Elliott" showed her red light and the " Cuba " her green light, and says nothing at all about both side lights of the "Cuba" being visible to the " Elliott."

On the trial he says that his statement before the commissioners was not correct and agrees with the master of the " Elliott," and with her lookout and other witnesses, that both side lights of the "Cuba" were seen and so continued for some time. It is not necessary to decide between the conflicting testimony because the learned judge has adopted the account given by the master of the "Elliott" and other witnesses on board of her, who state explicitly that both lights of the " Cuba " were, at first and for a long time, seen by them.

Accepting this finding, in accordance with the practice, it follows that the vessels were not "crossing " ships, but rather were what are known as "passing " ships, one illustration of which, as given in the Board of Trade diagrams, is when the red (or green)

light of one vessel (the " Elliott") is dead ahead of the other (the " Cuba)."

In such cases no statutory rule is imposed because, unless there is a change in the course of one or both of the vessels, they will go clear of each other, and no statutory rule is made to meet the case but it is left to the operation of the rules of good seamanship.

The result is that in porting her helm the " Elliott"

violated no statutory rule, and acted consistently with good seamanship.

The " Cuba," on the contrary, appears to have been at fault in several respects.

In the first place in persisting, without good reason for it, in keeping on the wrong side of the fair-way or midchannel, and needlessly interfering with the navigation of a vessel in her proper water.

Secondly, in starboarding her helm instead of porting it when it was seen that the " Elliott's " helm was hard to port, and when the vessels were rapidly approaching each other.

The following is from the evidence of Capt. Svensden of the " Cuba " :- ?

? It seems to us, as it did to the learned Chief Justice sitting in Admiralty, and to the assessor, that the course of those in charge of the " Cuba " in starboarding her helm at this juncture was wholly wrong, and shows j.

a want of reasonable care and skill to prevent the ship from doing injury. And that it was an efficient cause of the collision that followed cannot be doubted. Then again, when the "Cuba " signalled that she was directing her course to port the rules made it obligatory that the ship's course should be in accordance with the signal. But instead of this her engines were reversed and under the effect of this her head turned to starboard, and according to the evidence of the master this was the known consequence of a reversing of her engine.

The effect of this change of manceuvre was to confuse the "Elliott" people. They had reversed their engines on hearing the "Cuba's" signal but, on perceiving that the "Cuba's " head was turning to starboard instead of to port, they started their engine again at full speed ahead.

Of course no blame can be imputed to the " Elliott " in this connection.

There was, then, a want of proper skill and care on the part of the "Cuba" directly conducing, as an efficient cause, to the collision unless, by the exercise of reasonable care and skill, those in charge of the "Elliott" could have avoided the mischief.

It is contended that the."Elliott" was guilty of a breach of art. which requires that every vessel under steam, when approaching another ship so as to involve risk collision, is to slacken her speed, or stop and reverse if necessary.

It is contended that the non-observance of this rule either wholly occasioned the collision, or so contributed to it as to render the " Elliott " subject to a moiety of the loss under the rules in Admiralty and the terms of the statute. Under the Imperial Act 36 & 37 Vic. ch. 85, sec. 17, a ship infringing any of the statutory regulations for preventing collisions is to be deemed in fault unless it is shown, to the satisfaction of the court, that the circumstances of the case made departure from the regulation necessary.

Under the prior Acts it had been held in Tuff v. Warman and other cases, that though the plaintiff had infringed the regulations, and by his negligence had brought the ships into danger, yet if the defendant could, by reasonable care, have avoided the collision the plaintiff could recover. Those prior Acts had made the circumstance that the collision was occasioned by non-observance of the rules a material ingredient in determining the blame. The changes in the law effected by the Act of 1873 are stated by Lords Blackburn and Watson in The Kledive (2).

The effect of that Act is to impose on a, vessel that has infringed a regulation which is primad facie applicable to the case the burden of proving, not only that such infringement did not contribute but that it could not by possibility have contributed, to the collision. Our Act uses the language of the earlier English Act 17 & 18 Vic. ch. 104, and enacts that:

Accordingly, it would still seem to be necessary, under our Act, to consider whether the non-observance of the rule complained of did, or did not, in fact contribute to the collision.

Apart from statutory definitions of blame or negligence there seems no difference between the rules of law and of admiralty as to what amounts to negligence causing collision.

Per Lord Blackburn in Cayzer v. Carron Co. (1); The Khedive (2). As applied to the case before us the principle is that a non-observance of a statutory rule by the " Elliott " is not to be considered as in fact occasioning the collision, provided that the " Cuba" could, with reasonable care exerted up to the time of the collision, have avoided it.

The Bernina

Assuming that the "Elliott" ought-to have slackened speed prior to the act of the " Cuba" in putting her helm hard to starboard, the omission to do so would have led to no injurious consequences if the " Cuba " had put her helm to port as she ought to have done instead to starboard. And the engines of the " Elliott " were reversed when once it was seen that the " Cuba" definitely intended to cross her bows.

Again, no means of preventing the collision were open to the " Elliott " after the " Cuba's " failure to carry out the mancuvre she had signalled. What was done then by the " Elliott " was done in what is called the agony of a collision brought about by the other vessel, and no blame is imputable for not continuing to keep her engine reversed. For these reasons we think that the .judgment appealed from is right and that the appeal should be dismissed with costs.

Appeal dismissed with costs.