ON m
APPEAL
DOMINION AND
PROVINCIAL COURTS THE SUPREME COURT OF THE NORTH-WEST TERRITORIES AND THE TERRITORIAL COURT OF THE YUKON TERRITORY. JAMES DAVIDSON
(DEFENDANT
INTERVENING) .....................
APPELLANT; *No 9,20. AND
*Dec. 9. THE GEORGIAN BAY NAVIGA- TION COMPANY (PLAINTIFFS)....
RESPONDENTS. THE "SHENANDOAH"
AND THE "CRETE." ON APPEAL FROM THE EXCHEQUERNCOURT OF. CANADA TORONTO ADMIRALTY DISTRICT.
DAVIES J.-This is an appeal from a judgment of the Exchequer Court of Canada, Toronto Admiralty District. The action is one in rem, brought by the Georgian Bay Navigation Company, Limited, owners of the steamer "Carmona"against the ships "Shenandoah"and "Crete," owned by JamesDavidson, the defendant intervening, for damages arising out of a collision between the " Carmona" and the " Shenandoah" and "Crete" on June 25th, 1899. The action was tried on January 17thu 18th and 20th, 1902, before the local judge in admiralty, who delivered his judgment on June 2nd, 1902, awarding the plaintiffs $2183.25 damages and costs and dismissing the defendant's counterclaim for his damages arising out of the said collision with costs.
defendant, James Davidson, appeals from this judgment.
The facts, so far as they are material to be stated are thus summarised by the learned trial judge:
river from about the Grand Trunk Railway docks for some distance .down the river. When the "Carmona" entered the river it was clear and she had no difficulty in getting the range-lights, but when she reached the Grand Trunk docks she encountered the fog. The "Shenandoah" had had clear weather up the river until a little below the waterworks dock on the American side, or about five hundred yards below Botsford's elevator, when she too entered the fog. The collision took place opposite Botsford's elevator, which, as nearly as may be, is about four or five hundred yards down the river from the Grand Trunk Railway docks; in other words, the fog bank Davies J. covered, approximately, a thousand yards of the river. The collision took place between the vessels about the centre of the fog.
The appellants contended that the "Shenandoah" with her tow, following a custom or practice which -has prevailed for over forty years in this river, was slowly steaming past Port Huron, hugging the United States shore, and that, in doing so, she was not violating any rule or regulation governing the navigation of the river, nor was she guilty of any neglect of duty which contributed to the collision.
The respondents contended that the proper construction of the rules shewed the "Shenandoah" to have been on the wrong side of the channel, and that the " Carmona" having the right of way and not having been guilty of any negligence or violation of the rules, was entitled to recover for all damages she sustained.
The waters where the collision occurred are within the United States and the regulations governing the navigation of these waters are what are known as the " White Law." Rule 24, upon the proper construction of which so much depends, is as follows:
Rule 24.
That in all narrow channels where there is a current, and in the rivers Saint Mary, Saint Clair, Detroit, Niagara and Saint Lawrence, when two steamers are meeting, the descending steamer shall have the right of way, and shall, before thevessels shall have arrived within the distance of one-half mile of each other, give the signal necessary to indicate which side she elects to take.
The English rule which requires that has not been incorporated in the White Law Rules and is not in force in the waters where the collision occurred.
A large amount of the evidence was given to show what had been the custom and practice with respect J. to the side of the channel up-stream tugs with their tows should take, and I think it is clear that the learned judge was of the opinion that but for rule the " Shenandoah " was not in fault in taking the side of the river she did. He says at one place:- And again.
Now if the statutory rule gave the " Carmona " the right to the side of the channel lying next the United States coast it is perfectly clear that no evidence of custom as to a contrary practice could operate to repeal the statutory rule. But with great deference we do not think rule 24 was designed to have or has any reference whatever to the side of the channel vessels going up or down the river must take. It has an entirely different object and is limited to determining, as between up and down vessels, which shall have the right of way and which shall have the right of election as to the side of the approaching vessel it will pass. These rights are perfectly consistent with an established custom on the part of up going steamers with tows to hug the United States shore, nor does the fact of such custom existing at all supersede or minimize the full effect of rule 24. The custom would show that the " Shenandoah" on the night in question was not in fault in taking her course close to the United States bank for she was in the customary track of upbound vessels. But she had not the exclusive right to J. that side of the river, and the " Carmona," in coming down might be justified in taking that side too, but if she did she was bound to exercise unusual care and precaution.
She would still, if she met up bound vessels and circumstances permitted it, be entitled to her right of way and her election to choose on which side of each other the vebsel should pass. But she was not in fault in using any part of the channel she saw fit provided always she observed the rules of navigation which prevailed there and exercised the prudence and caution which, in my opinion, the existence of the custom followed by up bound vessels cast upon her. It was, I venture to say, the wrong construction placed upon this rule that led the learned judge to pronounce the " Shenandoah" to be in the wrong and responsible for the collision. The vessels did not see each other far enough apart to enable the " Carmona" to exercise the election she undoubtedly had and for which the rule provided.
If it is assumed that neither vessel was at fault in being where they were respectively when they first discovered each other, then where lies the fault of the "Shenandoah"? Both vessels signalled.
The "Carmona"
gave the port signal, the " Shenandoah" the starboard.
As the judge finds, these signals were given practically simultaneously. The vessels were then within a few hundred yards of each other and almost opposite the elevator. As soon as the " Shenandoah" recognised that the. " Carmona" had elected to go to starboard and pass her port to port she accepted the election and at once signalled the port signal and placed her helm aport. Looking at the relative position of the two steamers at the time they sighted each other, and the close distance of the " Shenandoah" from the shore, I am unable to say that her first signal was not prudent one to give, nor am I able on the other hand to say that her accept- ...2 ance of the " Carmona's" signal in lieu of the one she J. herself had first given was wrongful or bad seamanship. She recognised the right of the " Carmona" to elect which side she should pass on and accepted it.
As a matter of fact the result proved that she did right. The two steamers were in the act of passing each other port to port when the " Carmona" fearing she had not room to pass, owing to the presence of another steamer lying at the end of the elevator dock, backed her engines and, as a consequence, slightly collided with the "Shenandoah."
No real harm was done to either steamer and the " Carmona" by giving a couple of turns ahead to her engine passed by.
Up to this moment of time I am unable to say that either vessel was seriously at fault. The signal at first given by the " Shenandoah" may have been accepted by her tow, the " Crete," and she may too have starboarded.
Her captain says she did not, but the judge did not believe him.
At any rate, it is asserted that the bow of the " Crete" was turned towards the shore at a few moments later when she collided with the " Carmona,"
which struck her on the starboard bow. The captain of the " Carmona" agrees that when he sighted the
"Shenandoah"
he saw her two white head-lights, indicating that the latter steamer had a tow. He was bound, therefore, to act with the knowledge that the fact of these two head-lights conveyed to him. Did he do so?
He says himself that he found himself jammed in between the " Shenandoah" on the one side and the steamer lying at the end of the elevator wharf on the other, and did not think there was room for him to pass between. The learned trial judge finds most strongly that, in his opinion, the " Carmona" was not guilty of any fault; I am not satisfied that I would have reached the same conclusion.
I incline to the opinion that he could have safely passed between the tow of the " Shenandoah" and the shore had he tried to do so.
But I cannot ignore the fact that, at this moment of time, he was in extreme peril and the absence of the cool and calm judgment and decision which, under ordinary circumstances, would have been required of him, may, under the circumstances of extreme danger, arising from the fog, the collision with the " Shenandoah " and the proximity of the shore on the other side, be excused.
At any rate, he did nothing.
The current running at the rate of obout five miles an hour speedily carried him towards the " Crete" approaching at the rate of about two miles an hour; his steamer got the tow-line under her guard and she swiftly met the " Crete" and collided, causing the damage to herself for which this action is brought. After getting clear of the " Crete" she drifted past her starboard side and then across her stern and between her and the " G-renada," avoiding further collision and damage.
Tnder these circumstances, we are of opinion that there is no ground for holding the " Shenandoah " liable for any damages.
The only question is as to the liability of the " Carmona" for the damages to the towline of the" Shenandoah" and the losses caused to the tow of that ship for delays and otherwise consequent upon the collision.
Whatever conclusion I might have reached had 1 been determining this question in the first instance, I do not, under all the circumstances, feel justified in reversing the finding of fact which the learned trial judge has reached as to the proper navigation of the "Carmona."
He had not only the advantage of hearing the witnesses and noting their demeanour, but, in a case where so much depends upon relative distances, the further great advantage, which we are denied, of having very many of their important statements explained and illustrated by the witnesses on the maps and charts of the river. Much of the evidence, without this advantage, is difficult to understand.
In addition to the judge's express finding of want fault on the " Carmona's " part, there is the extreme peril in which she was placed at the critical moment immediately after his collision with the " Shenandoah" when everything depended upon the correctness of the judgment her captain formed. The fact of his not seeming to have paid the proper attention to the notice given to him by the presence of the two headlights of the " Shenandoah" that she had a tow is strongly against him.
On the other hand, he undoubtedly thought himself jammed between the " Shenandoah" and the vessel lying at the wharf on his starboard beam. His attempt to extricate himself from the jam by backing had only resulted in his colliding with the " Shenandoah" and his lack of judgment, or inability to form a decision as to what he should do, may be pardoned, owing to the extreme peril and exceptional circumstances in which he found himself placed.
Under all the circumstances, therefore, we are opinion that, while the action should be dismissed, the counterclaim should not be allowed.
The appeal will be allowed with costs to the appellant in both courts and the counterclaim is also dismissed, but without costs.
MILLs J.-1 agree with the conclusions reached by my brother Davies, in this case.
The " Carmona " a paddle-wheel steamer of Canadian register, which was on her way from Sault Ste. Marie to Cleveland, had, under the rules which regulate the navigation of the river on the United States side, the right of way.
She chose the starboard side but, owing to the density of the fog, she was close upon J. the " Shenandoah" when her choice was made. The " Shenandoah" with her tow was very near the shore, too near to permit the " Carmona" to pass safely her voyage between the " Shenandoah" and the docks and shipping before Port Huron.
There can be no doubt that the position of the " Shenandoah" and her tow was one that she chose at her peril, for, while it was the custom of up-bound vessels, at this point, to keep near to the United States side of the river St. Clair, they must in doing so, not interfere with that freedom of choice which the descending vessels had a right to make.
Owing to the density of the fog, the " Carmona" was unable to make known her choice of way until she was close upon the " Shenandoah." When she undertook to pass the " Shenandoah," and the barges which she had in tow, she found herself too near the shore to pass safely on her voyage.
Not being able to direct her course in the dangerous position in which she was placed, she was carried by the current down the river at the rate of five miles an hour, while the " Shenandoah" with her tow was moving at half this rate of speed in the opposite direction. In this position, she ran upon the tow-line of the " Crete" and collided with her.
The vessels were in perilous position and I cannot say that, apart from the proximity of the " Shenandoah" to the United States shore, there was not, on the part of the officers in charge