Majority
of New Brunswick (1) sustaining the verdict at the trial in favour of the plaintiffs.
The plaintiffs' barges were registered as schooners and built on the model of schooners of over 400 tons. They were not rigged for sailing, but had masts on which were fitted sails which could be used for sailing purposes in favourable weather.
These barges were loaded with coal at Parsboro, N.S., and towed by steamers or tugs to St. John, N.B.
The question for decision was whether or not they are exempt from being compelled to pay pilotage dues at St. John as being propelled wholly or in part by steam under "The Pilotage Act," R.S.C. ch. 80, sec. 59 (R.S.C. (1906), sec. 477).
The trial judge held that they were exempt and his judgment was affirmed by the full court, Tuck C.J. dissenting.
Judgment of the Court
J.-At the close of the argument of the appellants' counsel we intimated that we did not desire to hear respondents' counsel, as we were unanimously of opinion that the appeal must be dismissed and the judgment of the court below confirmed.
The judges who delivered the majority judgment sIN below have, in their reasons, dealt at great length and quite satisfactorily with the questions at issue. In deference, however, to the dissenting judgment of the Chief Justice and to the vigorous and strenuous argument at bar in this court, we desire to re-state very shortly the grounds on which we think the judgment appealed from is correct.
The action was one brought by the respondents to recover back from the Saint John Pilot Commissioners certain sums of money which they had been compelled to pay and had paid under protest for years past as "compulsory pilotage" upon their laden barges which were towed by a steamer or tug between Parsboro and Saint John, in the Bay of Fundy.
The Pilot Commissioners contended that these barges were ships within the meaning of "The Pilotage Act," ch. 80 of the Revised Statutes of Canada, which, under the 58th section of the Act "navigated within the pilotage district of Saint John," and, as such were liable to pay the pilotage fees and that they were not within the exemption of sub-section of section 59, exempting from liability to pay such fees: McAlpine and Mr. Coster, for the appellants, contended that the plaintiffs' barges came clearly within the definition of ships contained in the interpretation clause of the Act and that the word "navigated" in the 58th section and on the true construction of which the liability for pilotage dues arose, means "navigated by any way or means whatsoever,"
whether in itself or outside of itself, and, so must include a barge or ship being towed.
think, however, that the true construction of the word, somewhat ambiguous in the place where used in the section, must be determined, not by its literal and technical meaning only, but by reading it in connection with its context, including the exemption section following.
To reach the true meaning of the word one must read, not alone the section imposing the liability, but also that creating and defining the exemptions.
But, reading section 58 by itself alone, and its own special exemption, it will be found that that liability only attaches to such ship on her inward voyage, in cases "where a licensed pilot offers his services as a pilot." In any case where such offer is not made liability does not attach. And so it might well be argued and maintained on the construction of this section alone, a section imposing a tax, that it clearly only contemplates such cases and ships as might require or could utilize a pilot's services, and did not apply to those cases where such services could not either be required or utilized. And so, in the case of one,.two or three barges being towed from any one of the specified points to Saint John, each barge being a "ship navigating within the pilotage district" and separately liable to pilotage dues as contended, it would seem absurd for as many licensed pilots as there were barges to tender their services as pilots, and unnecessary and unrequisite in the case of one barge.
TWhat would the two or three pilots do? Which would control and direct the tow, and which be responsible for wrongful orders and bad navigation?
These considerations would indicate that the ship navigating the pilotage district and so becoming liable for dues is a ship having independent practical moving or sailing powers which a pilot could direct and control, and not one or more barges towed by a tug and relying for its or their motion or propulsion J. practically and substantially, if not absolutely, upon the power generated and applied in the tug.
In point of fact, the barge, or ship if you like so to call her, when being so towed, either by a line behind the tug or lashed to the tug, is no different from a raft or congeries of logs or deals not coming within the statutory definition of a ship. Such a barge is not being "navigated" within the meaning of that word as used in this section.
But, if there were any doubts upon the point, they seem entirely to vanish in the light of section 59, the exempting clause.
Here, by sub-section "ships propelled wholly or in part by steam employed in trading" between any of the specified ports are exempt from liability to pilotage dues.
Now, these barges are admittedly ships, admittedly propelled in large part, if not altogether, by steam, and admittedly engaged in trading between the specified ports. They would seem, therefore, to come within the very letter as well as the spirit of the exempting section.
But, it is said by Mr. Coster, the propelling power which moves them must be a power within themselves and not in a steamer to which they may be lashed or which is towing them. Why? If Parliament desired to exclude barges being towed from the exemption, surely they would have used language shewing their desire. By what rule of construction could the courts put an artificial and arbitrary meaning upon the words "ships propelled wholly or in part by steam," and confine it to ships in which the steam is genercommsated and the power applied on board of itself? Thbarge or line of barges moves, navigates, is propelled, and except in certain favourable weather when they can use their small sails as auxiliary power, alone by steam generated and applied by the controlling tug which has them in tow or lashed to it, as the case may be.
The case seems to us a clear one, not admitting of reasonable doubt, and the fact so much relied upon that under certain favourable conditions of weather, wind and tide, the barges might, independently of a tug, move along at the rate of from three to five, and possibly, even six miles an hour cannot alter the conclusion we have reached.
If any such barge attempted to trade between any of the specified points independently and without a tug she, being a ship navigating the pilotage district and not moved or propelled by steam, would, of course, be liable, provided she successfully overcame the danger of navigation and reached Saint John.
But no such case occurred here or was suggested could reasonably occur.
The appeal must be dismissed with costs.
Appeal dismissed with costs.