The "A.L. Smith" and "Chinook" v. Ontario Gravel Freighting Co.

Per Davies and Anglin JJ.-As the collision occurred in the domestic waters of the foreign ship held at fault the extent of her liability must determined the lex loci commissi delicti, and the damages should limited to the value of the "Smith" immediately after the collision.

Held per Duff J. following the "Diclator" ([1892] P. 304) and the "Gemma" ([1899] P. 285), that as the owners appeared and contested the liability the ships they became parties to the action and subject to have personal judgment pronounced against them for the amount of damages properly recoverable for the negligence of their servants. The trial judge having held, on the sole issue of fact raised at the trial, that the "Smith," as between and the "Moyles," was solely to blame, the appellant owners were primd facie liable for the full amount damages suffered. Assuming, however, that if the "Chinook" was free from blame, they were entitled to the benefit the United States laws limiting their liability to the value of the offending res, then, as this issue was not raised or tried in the Exchequer Court, they could only succeed if the facts in evidence conclusively demonstrated the innocence of the "Chinook" or, in other words, that the "Smith" and "Chinook" were not identified for the purpose assigning liability, the question of identification being a question of fact depending upon the particular circumstances. APPEAL from the judgment of the Exchequer Court of Canada, Toronto Admiralty District(1), in favour of the plaintiffs.

The questions raised for decision on the appeal were - Whether or not the Exchequer Court was competent to try the case in view of proceedings previously taken in the United States where the defendant ships were registered; if there was jurisdiction whether or not the defendants were entitled to limitation of liability under the Canadian or British "Shipping Act"; and, the liability of the "A. L. Smith" not being disputed whether or not the "Chinook" was Ex. C.R.

JUSTICE.-Mr. Justice Anglin in his judgment deals so fully and learnedly with the facts and the law of this case that I shall be content to say briefly why, much to my regret, it is impossible for me to agree in his conclusions.

All the cases will be found conveniently collected in Ilalsbury, vol. 26, page 527, and following. It seems now to be accepted as settled law that for all purposes of their joint navigation a tug and tow are one ship in contemplation of law (Vide The "Niobe"(1)) and that in an ordinary contract of towage a tug is under the control of the tow and must usually obey the direction given her by those in charge of the tow (The "Robert Dixon," 1879(2) ), but no general rule can be laid down on the subject. Each case must be decided upon its own facts (The "Quickstep," 1890 (3), at page 200).

It would appear, however, that where the governing power and the navigation are wholly in the vessel towing, the tow is not responsible for the tug's negligence. Compare Steamer "Devonshire" v. Barge Leslie(4) ; The H. Xo. I and the "Knight Errant"(5).

There can be no doubt that the circumstances this case are quite exceptional.

This is not a case of towage for hire nor is it a salvage case. Both the defendant ships belong to the same owners and were at the time of the collision being jointly navigated for their benefit by the same crew.

The servants of the owners on board the tug bad possession and control of the tow by their authority. It is true that the governing power and the navigation were in the hands of the tug, but the carrying capacity upon which the profit of their joint exploitation depended was in the tow. For the purpose of economy or expediency the tow was fastened to the tug in such a way as to constitute both a danger to other vessels navigating the same waters. Upon what principle of law or reason can the owner of the tow escape liability in the case of a collision attributable immediately to the tug and mediately to the tow ?

The tug came directly into contact with the barge "Hustler" and caused the damage. And we are all agreed that she is liable. But I think it is very satisfactorily established on the evidencethat the collision is attributable to the defective steering of the "Smith" due (a) to the condition in which the barge was by reason of the absence of proper ballast; (b) the absence of a bridle and the short tow line used to keep the boats together. There was a steering gear on board the tow, but it was not in use and her movements were directed by the tug, hence the. necessity for the short tow line, which latter embarrassed the movements of the tug and caused the sheering which in part at least contributed to the collision. In those facts we have the defective steering of the tug-due to the tow-and the collision in the relation of cause and effect. Captain Allen, of the "Smith," explains that the steering apparatus of the "Chinook"' was not in use and that the short tow line was preferable to a bridle for steering purposes. He also admits that the tow would affect the steering of the tug, not to the extent proved by the witnesses on the other side, but sufficiently to cause her to sheer four or five feet. On the other hand the libellant's witnesses say (Heddrich) the sheer might be about twenty feet. Hunter says and he also says at other places in his examination and cross-examination that this was the result using the short line, and in that condition may be found the explanation, in part at least, of the collision. cannot on the facts come to any other conclusion than that the tug must be considered as being in the service of the tow and identified with her for many purposes. It is quite true that the trial judge finds the "Smith" solely to blame, but that finding must be read in connection with his previous statement, as to the way in which the sheering of the "Smith" was affected by the "Chinook."

I have not, of course, overlooked the observation made in The "American" and The "Syria"(1), that the question of liability is not affected because the tug and tow are the property of the same owners. But that case is on the facts so clearly distinguishable from this that I do not think undue importance should be attached to what their Lordships said in that connection. To create in a case of collision a maritime lien enforceable by a proceeding in rem the damage must be done mediately or immediately by the ship proceeded against; Currie v. JJ'Knight(2) ; otherwise the fact of mere physical connection or of joint ownership does not create or affect liability and that is all that is decided in The "American" and The "Syria"(1). In that case the master of the "American" appears to have undertaken to tow the "Syria" uder circumstances quite exceptional which are fully explained in the report at page 133.

Here we have two vessels necessarily connected for the purpose -of the particular business in which both were engaged for the benefit of their common owner and both in the possession and under the control of the same crew for all the purposes of their navigation. As a result of the way in which that navigation was carried on, a collision occurred to which both vessels contributed. I fail to see how we can -distinguish between the vessels.

A question arises out of the proceedings taken in the courts of the United States 'to limit liability which, in view of the conclusion to which I have come, I am relieved from the necessity of deciding.

I may, however, observe that the proceeding instituted in the foreign court was not a bar to the jurisdiction of the courts of this country, nor did it operate as a stay of the proceedings unless based on an admission of liability. It is not necessary, of course, in this country, that the owner should admit liability before beginning the limitation proceedings, but liability must be admitted before -a decree can be obtained (26 Halsbury, page 616, No. 971, and cases there cited).

Those who are interested in this branch of the case will find Jenkins v. Great Central Railway Co.(2) instructive (26 Halsbury, 614, note).

See also Albany Law Journal.

(dissenting).-I agree with the opinion stated by Anglin J. which I have had an opportunity of carefully reading and with his proposed disposition of this appeal.

I cannot, however, concur with him in his understanding of the decision of this court in the case of The "Wandrian" v. Hatfield(1).

That case was decided on its own special facts and the tow was held liable for the damage caused by the negligence of the tug because the evidence shewed the control to have been in the tow and failure on the part of its captain to exercise such control.

The Chief Justice, whose judgment was concurred in by Girouard and Duff JJ., said, at p. 440:- I was one of the court at the time and rested my opinion, in which Mr. Justice Maclennan concurred, upon the special circumstances of the case. At p. 446, I said that the rule to be deduced from the authorities was

I then stated (p. 449) that the circumstances of the case before us shewed the case not to be within the exceptions to the ordinary rule, but, on the contrary, shewed and so held the tow liable.

I am not able to see that this decision is at variance with the recent decision of the House of Lords in the case of S.S. "Devonshire" (Owners) v. Barge "Leslie" (Owners) (1).

As to the question whether the fact of the tow and the tug being owned by the same person makes in actions in rem any difference in the liability of the j. tow in cases where the sole control or the "governing power" was in the tug and her negligence alone caused the damages complained of I feel myself bound by the judgment of the Judicial Committee in the case of The "American" and The "Syria" (2).

The two ships in that case belonged to the same owner and the "American," which was towing the "Syria" home, was held to -blame for the collision. The "governing power" was wholly with the "American" and their Lordships held that

J.-The appellant tug "Smith" and tow "Chinook" both belonged to the same owners and by the fault of the "Smith" damage was done to the respondent.

Both were arrested at Windsor and released upon a bond to answer for one or either to the amount of $12,000, which if not paid by the owners would be paid by the guarantor.

The defence set up in the pleadings does not seem to have contemplated raising any other question than, first, that of the fact as to which of the two parties in litigation was to blame for the accident, and secondly, that the court by reason of the proceedings which had been taken in the American court (and are still pending) was ousted of its jurisdiction.

The latter contention seems in law quite untenable. And the former and only other question raised seems rightly disposed of by the judgment unless there6 is room for discriminating between the tug and tow.

But again, is that discrimination now open to the J. appellant ? As already pointed out no such question was raised at the trial. So little attention was paid to it that the mate of the tug in giving evidence said he did not know whether they had any steering apparatus on the "Chinook" or not.

Another witness, the chief engineer, refers to his having passed from the tug to the tow a few minutes before the collision, to do some work in the engine room of the "Chinook" where there evidently were a number of others.

The effect of the manner in which the tug and tow were connected and the possible bearing thereof on the navigation of either was referred to by more than one witness.

But as to the actual relations at the time in question of the crew on the tow or part of the crew on either vessel to the other or to the management (if there was any) of the navigation of the tug and tow the evidence presented gives us nothing tangible upon which to form any judgment whereby to discriminate in law between the vessels in relation to the liability for the collision. We find the mte of the tug seems to have been in charge till he called the captain from his bed just five seconds before the collision.

The truth would seem to be that the parties concerned for the defence, seemed to have made up their minds that unless the excuses furnished by the mate or blame sought to be imputed to the plaintiff relieved defendant from all liability, the inevitable consequences of meeting the damages must be faced. In such a case does the doctrine as expounded in The "Devonian" (1), for example, that tug and tow J. must be considered as one ship, apply ?

The principle that the towhas charge of the governing power would (primr facie as it were) in the absence of countervailing facts or circumstances seem to render that doctrine applicable and both liable as found by the learned trial judge.

There are numerous cases where the facts and circumstances have enabled the courts to see their way to set aside the operation of this principle or that doctrine and treat either vessel as solely to blame. I can, however, find no case where the tug and tow belonged to same parties and as here no facts or circumstances countervailing the operation of the said principles where collision took place with a third vessel.

The case of the "American" and The "'Syria" (2) relied upon is clearly distinguishable.

The case of The "Americau" and The "Syria" (2) was a case of salvage and rested upon the principle that must govern such a case, and besides the question of the salvage of the cargo so bore thereon as to prevent the identification.

In The "Quickstep"(3) the tug and tow were each respectively owned by different owners and otherwise distinguishable.

The mere act or neglect of duty which was primarily the cause of the collision no doubt was as clearly traceable here to the man in charge of the tug as it was in the case of the tug towing the "Sinquisi," which was held merely because a tow liable for the mistake made the tug.

That case seems a stronger application of the doctrine than this because the tow was in fact in that case in charge of a pilot.

Then in the case of The "Englishman" and The J. 'rAustralia"(1), the sole fault of the tow was negative in its neglect to assert its authority and insist on a reduction of the rate of speed in a fog which led to the accident.

That and other cases shew how on the trial, when tug or tow desire to sever the presumed joint responsibility, it is done by issues in the way of pleading, or otherwise raising the question, and evidence being directed thereby to enable the court to distinguish on the facts that which is thus presented from that which in principle must, at least prima facie, be presumed to render tug and tow identical.

* The '"Aiobe"(2) is another illustration of how this is brought about and shews that the want of a lookout on the tow was held a fault.

The case of the tow being an absolutely dead barge without men or machinery on board, or possibility thereof, any more than on a dead log, might be distinguishable from the general rule of presumed liability of the tow.

Even that must depend upon evidence if not pleading and evidence.

Here we have mere accidental glimpses of the condition of things which shew this tow was very far from being that -sort of thing whatever she was.

The albsence of the operative facts of hirer and hired upon which the principles I have adverted to were originally 'founded and acted upon may make the doctrine look here like a fiction of law. Yet I think it has so much more of common sense to support it than many 'such useful fictions of law that I must abide it.

And as to the measure of damages being limited by statute either of the United States or in force in this country I do not see 'how that question can be raised here without pleading or evidence to let it in and without having been raised in the court below.

It certainly seems a remarkably bold attempt. The evidence of the foreign law is all that was presented to the court Which gives the slightest indication of such a question being raised, and that does not, for it was very properly directed and confined to what would enable the question of jurisdiction raised in the pleadings to be tried out and disposed of. And curiously enough in light of present argument no evidence was directed as to- what the foreign law is as to the relation between tug and tow in reference to joint responsibility.

When it came to a question of what was to be the measure of damages or limitation thereof there was no evidence offered.

And as I conceive the situation that was quite proper.

When it comes to be a question under the formal judgment directing a reference of how much damages are to be assessed the rule of law, whatever it is, will possibly have to be observed.

It may be confined to the value of the res or it may be found that the form of bail bond, which is not to return the vessels, but to answer for damages which the owners are responsible for and the appearance of the owners thus ensured may have to be considered as en- ONIo larging the scope of the inquiry by engrafting upon the suit rem the possible liability of the owners at common law. In the latter case the view taken in The "Dictator" (1), where all the authorities are reviewed, may have to be considered.

As to all this I express no opinion beyond this that neither the course of the proceedings below nor the form of judgment of record permits of our interfering therewith.

I have looked into a great many cases besides these

I refer to and others that the counsel cited, but I am unable to find anything that would maintain a reversal of the judgment below, under the facts and said course of proceedings and record.

I, therefore, think the appeal should be dismissed with costs.

J.-I have come to the conclusion that this appeal should be dismissed.

In order to explain the reasons which have led me to that conclusion it is necessary to discuss the course of the proceedings in the court below. The collision took place in American territorial waters, that is to say, in the St. Clair River within American territory. The "A. L. Smith" and the "Chinook," the appellant ships, are both American ships. The action out of which this appeal arises was commenced on the 14th day of April, 1913, in the Exchequer Court of Canada (Toronto Admiralty District) by writ of summons, the Ontario Gravel Freightiig Company, Limited, being plaintiffs, and the ships L. Smith" and "Chinook" being defendants. On the 12th of May the ships were arrested in Canadian waters, and on the 13th of May, 1913, by order of the court the ships were released, on bail by the United J.

States Fidelity and Guaranty Company, the company in its bond submitting itself to the jurisdiction of the court, and consenting

The owners of the appellant ships appeared and defended the action denying liability and setting up the following special defence (in paragraph 9):- At the trial the parties directed their evidence to a single issue of fact, that namely, whether the collision was due to the fault of the officers of the "A. L. Smith" wholly or in part, who admittedly were also the officers in charge of the "Chinook" and admittedly were the servants of their owners for whose negligence, if any, the owners were responsible personally. That issue of fact was decided by the learned trial judge against the appellants, the collision having been found to have been wholly due to the fault of the 1ns officers in question.

It is important to note that the defendants did not by their pleadings allege that they were entitled by law to have their liability limited under any English or Canadian statute. Nor was any suggestion to such effect made at the trial. Neither was it suggested at the trial (and there is no sugges- Co. tion of this on the pleadings either), that they were Dif J. entitled in this action to have their liability limited by the putting into effect in these proceedings of certain provisions on the subject of limitation of liability in certain statutes of the United States of which evidence was given, and to which it will be necessary hereafter to refer. The defendants did, however, at the trial rely upon the defence set up in paragraph 9 of the statement of defence above quoted. At the opening of the trial counsel for the appellants addressed the court as follows:- Mr. Ellis: You will notice raise the question jurisdiction. The accident is alleged us to have happened entirely in American waters, and would undoubtedly wholly in the jurisdiction of the American courts. They have, as a matter of fact, taken it up over there, and the liability has been limited.

Two deaths occurred a result this accident.

Now, the amount may limited, and it has been fixed, believe, at and that is available for all American creditors, and it seems to me it is in direct contravention of the rights of the American courts for these parties to come here, and seize these boats and claim complete jurisdiction. It means these plaintiffs are claiming that these boats are liable here for a greater amount perhaps than has been fixed the American courts. Bonds were filed -in the American courts holding the boat liable to answer for these deaths and all damages, which would course an insufficient amount to meet the damages.

Now, under the comity of nations can these creditors step in and take away the assets which are insufficient for the American creditors, and say the boats may sold and disposed of to answer this damage to these Canadian boats, which when the accident happened e foreign boats?

The accident occurred in American waters, and they were American boats, and if they have jurisdiction to limit the amount and divide the funds that are available either the sale of the vessels or otherwise, then I submit that this court cannot deal with it, that it would interfere with the ad- DufflJ.

ministration over there.

Now, in order to shew it does interefere with the administration over there and that is law that should not be disregarded this friendly nation-if, as I say, the law over there would give these people only limited sum then they cannot take the very assets that are available to those people under the laws of that friendly nation, take that vessel away and distribute the funds amongst the foreign creditors. Now, that reason why the question of jurisdiction should be decided, and why should not attempt to take out of the other jurisdiction such an action as this. I reproduce these extracts from the record to make. it clear beyond dispute that not only in the statement of defence (see paragraph 9 quoted above), but orally at the trial the appellants put forward the proceedings in United States courts for the sole purpose of supporting an exception to the jurisdiction. To establish the plea to the jurisdiction evidence was given by a gentleman who is a proctor in Admiralty in the United States. In substance his testimony is to the effect that the owners of vessels involved in a collision may limit their liability or prospective lia'bility for the fault of those in charge of the navigation by surrendering the vessels in fault or by having the value of it ascertained in accordance with the proper procedure and paying the amount so ascertained into court or giving security for the payment of it as the court may order. At the trial no evidence was offered of any such proceedings in the American courts. But some time after the trial an exemplification was filed by leave of the learned trial judge which shews that certain proceedings had been taken. I will discuss those proceedings in a moment. It will be sufficient now to say that in my judgment an inspection of the record of them is enough in itself to dispose of the plea to the jurisdiction in support of which it was put forward.

As to the proceedings at the trial it should further be noted that on behalf of the appellants it does not seem to have been disputed that assuming the plea to jurisdiction to fail and the appellants' servants to be held to have been wholly in fault, full reparation for the damages suffered by reason of the collision was recoverable by the respondents. Having come to the conclusion as I have just mentioned that the plea to jurisdiction fails upon grounds which it would be more convenient to specify later and that the learned judge's conclusion that the collision is solely attributable to the fault of the officers in charge of the navigation of the appellant ships is the right conclusion (the learned judge stating in his judgment that the "A. L. Smith" was solely in fault means that, as between that ship and the tug "Moyles," the fault was solely that of the "A. L. Smith"), it follows that the case must, in my opinion, as regards all the issues and contentions presented at the trial, be decided against the appellants.

Mr. Bartlett, however, who appeared as counsel for the appellants, took up entirely fresh ground. And it is necessary to consider the questions which arise when the case is looked at from the point of view of his able and helpful argument. First, he argues the action being an action in rem and the owners having appeared solely for the purpose of contesting the liability of the vessels arrested the court could only pronounce judgment -against the blame-worthy ship, if one only was blame-worthy. Secondly, since as he contends, results from the facts appearing upon the record that the "Chinook" cannot be held to be in fault, lie argues that the proceeding being a proceeding in rem to enforce against the "A. L. Smith" a lien arising out of J.

the negligence of her officers and the consequent harm suffered by the respondents' vessel the proceedings in the American courts are a complete answer to the action on the ground that according to the law of the United States those proceedings had the effect of entirely discharging any such lien and substituting for the "A. L. Smith" the fund (or security) deposited by the owners.

As applicable to these contentions I observe first, that, in my opinion, the effect of the judgment of the Court of Appeal in The "Gemma"(1), and of Sir Francis Jeune in The "Dictator"(2), is that the owners of the appellant ships, by appearing and contesting -the liability of the vessels, became parties to the action and subject to have personal judgment pronounced against them in the action for the full amount of damages for which according to the principles of law appropriate for the decision of the case they are personally liable. I have read the comments upon these decisions in the introduction to Williams and Bruce, Admiralty Practice, but whatever view may be taken by a court competent to reconsider the principles laid down by the Admiralty Gourts of England as to Admiralty practice I think a proper deference to the opinions upon the points in question expressed by the eminent judges who were responsible for the decisions mentioned requires me to follow them. Prinm facie, therefore, the appellants are responsible.

2ndly. As to the American proceedings; the contentions of the appellant rest upon the hypothesis that on the facts before us the "Chinook" is free from fault. I do not think this contention is open to the appellants for the purpose of sustaining the contentions put forward, or rather it is only open in the form of the proposition that the facts proved are so conclusive in favour of the innocence of the "Chinook" that no further available evidence could rebut that conclusion.

The "A. L. Smith" and the "Chinook" admittedly had one set of officers, that is to say, the navigation of the

"Chinook" was entirely in charge of the officers of the

"A. L. Smith." In the pleadings they are referred to as "the officers of the 'Chinook.' "

(Paragraphs 1, and of the statement of defence.)

The question of the identity of the "Smith" and the "Chinook" for the purpose of assigning fault is primarily a question of fact (see the authorities discussed below), and if the defendants had intended to rely upon the contention now advanced that the "Smith" was alone to blame, that contention ought to have been put forward at the trial when all the facts bearing upon the question of identity could have been threshed out.

Not having done so the burden, on appeal, is that just indicated.

Inspection of the proceedings in the United States courts shews that the petition for limitation of liability does not refer to the fact that the "Chinook"

was in tow of the "Smith" at the time of the collision;

and that none of the special facts bearing distinctively upon the culpability of the "Chinook" was disclosed. is a petition to limit the liabilities of the owners of the "Smith" to the value of the "Smith" upon the hypothesis that the "Smith" alone was delinquent. It seems too clear for argument that such proceedings could be no answer to proceedings in the Exchequer Court against the "Chinook," or against the owners personally either as supporting a plea to the jurisdiction or otherwise, unless it now appeared that in fact the "Chinook" was not at fault. In point of fact in the paragraph quoted above from the statement of defence (paragraph 9), it is alleged that the proceedings in the American courts were proceedings taken to appraise both vessels, and the attention of the court below does not appear to have been called during the trial to the fact that this was an error. When some weeks after the trial the exemplification was filed the real facts were for the first time placed upon the record.

But in substance this contention now advanced by Mr. Bartlett for the first time fails in my view for the reason that the facts as disclosed at the trial favour the conclusion of "identity" rather than non-identity of the "Smith" and the "Chinook" for the purpose now in hand. This view is fatal not only to Mr. Bartlett's contention which was that the. American proceedings in themselves afford a defence, but it is also a conclusive answer to suggestions not advanced by him as, for instance, that in this court the damages should be limited to the value of the "Smith" or that there should be a stay of proceedings in the Exchequer Court pending the determination of the proceedings. in the United States courts or that the case should be referred back to the trial judge to give the appellant an opportunity to offer further evidence as to the effect of the American law.

I assume in favour of the appellants (without expressing an opinion as to the correctness of the assumptions) ;

That the personal obligation ex delicto of the owner of a ship held responsible for a collision is discharged according to the United States law by the surrender of the ship or payment of or deposit security for the amount of her value in limitation of liability proceedings, and that the inchoate lien the offending ship is thereby extinguished;

These assumptions made the respondents being for reasons already given entitled to judgment on the issues and contentions presented and investigated at the trial the appellant (now suggesting for the first time a defence based upon the allegation of fact that the "Chinook" is not implicated in the fault of the officers in charge) must fail unless it necessarily resilts that the evidence given at the trial is to exculpate the "Chinook"; and that question I proceed to consider.

I emphasize the special nature of the 'burden upon the appellants in this issue for the reason that if the issue had been raised at the proper time some circumstances not without relevancy to it would probably have been proved by explicit evidence which, in the actual state of the record, are matter of inference only. First, as to the relevant facts. The "A. L. Smith" and the "Chinook" were owned by the same owners and by them were employed in their business, the transport of gravel and 'sand as carriers on the St. Clair River and its tributary waters. The tug having no storage space and the barge neither means of propulsion nor apparatus for steering, each was the necessary complement of the other for performing the function of transport.

On the occasion of the collision as usual the barge, which was then light, was attached by a short line, ten or fifteen feet long, to the tug. The men employed on both tug and barge were under the control of the captain of the tug, who, with his crew, had charge of the navigation of both. They were in fact navigated as a single craft by one crew, who were the servants of the owners of both and expressly employed for that purpose.

The "Smith" appears to have been employed in navigating the "Chinook" for several seasons; and there seems no reason to doubt that while loading and unloading, as well as when she was in transit, the "Chinook" and her crew (she was equipped with a derrick and crew for loading and unloading) were, as is usual in such cases under the control of the officers who also were in charge of the "Smith." In a word, in the freight-earning service of this composite Suirrx" body both component parts tug and tow were for all the purposes of their service under the control and management of the same set of servants acting in the execution of their duties as servants of the common master.

As to the law. In these circumstances I think the tug and barge were according to the principles of law administered in the Court of Admiralty a single vessel in intendment of law for the purpose of assigning responsibility for negligent navigation.

The question of the test to be applied in determining whether in such circumstances there is constructive identity of tug and tow was discussed in the House of Lords in The "Devonshire"(1). Lord Ashbourne, at p. 648, and Lord Atkinson, at p. 656, stated that the question is a question of fact not of law to be determined in each case on its own circumstances. Lord Halsbury concurred with Lord Atkinson.

The Lord Chancellor adopted the rule which had been laid down by Mr. Justice Butt, in delivering the judgment of himself and Sir Jas. Hannan in The "Quickstep"(2), in which the principle was accepted that had been enunciated by Mr. Justice Clifford in the judgment of the Supreme Court of United States; Sturgis v. Boycr(3), at p. 122. The rule is thus stated by Butt J. at pp. 199 and 200:- If this could properly be regarded as a quite complete account of the effect of the authorities upon the subject there would be no difficulty in reaching a con- CluSion on the facts above stated that (to consider the matter from the point of view of Lord Halsbury, Lord Ashbourne and Lord Atkinson) the "Smith" and the "Chinook" were in fact one ship for the purpose of assigning responsibility; and there was indisputably. the relationship of master and servant which in the view of the Lord Chancellor appears to be the decisive factor.

It is necessary, however, to consider the decision of -the Privy Council in. The "American" and The "Syria"(1), a decision which was made the foundation of an argument that the liability of the tow only arises where the navigation in the course of which the negligence occurs is under the exclusive -control of the tow. I do not think that is the effect of their Lordships' decision. At page 133 Sir Robt. Collier, in delivering their Lordships' judgment, mentions the circumstances in which the master of the "American" undertook to tow the "Syria," both ships having the same owners.

His Lordship adds that their Lordships. did not think

Their Lordships do seem to decide that the fact of common ownership alone is not sufficient to establish identity by construction of law.

But, on the other . hand, their Lordships expressly leave outside of the scope of their ruling the case in which there being a common owner the actual control is in the towing vessel, and the master of the latter has been hired by the master of the tow for a service which is not a salvage but a towage service.

Their Lordships appear to have treated the "American's" service as a salvage rather than as a towage service.

No opinion is expressed as to the responsibility of the tow where as in the case before us the master of the tug and his crew have entire and exclusive control of both vessels for all purposes and are, as regards the whole operation, acting exclusively in execution of their legal obligations as servants of the common owners, and I think no principle can be deduced from the judgment such case.

The service undertaken by the master of the "American" was a casual service which he was under no legal duty to perform; the captain of the "Smith" Nas charged with the duty of managing the "Smith" and the "Chinook" for all the purposes of transport; both, I repeat, being under his control as the essential parts of what was in fact a single composite freightearning body.

These circumstances seem to distinguish this case from The "American" and "Syria"(1). To summarize these reasons for the sake of clearness.

The appellants by appearing and defending the action became parties, and as such subject to have judgment pronounced against them personally for such damages as the respondent should be entitled to recover for the negligence of the appellants' servants, the officers in charge of both the "Smith" and "Chinook."

The sole issue of fact to which the evidence at the trial was directed was whether the collision was ascribable to the fault in whole or in part of these officers.

The defence was not raised at the trial that J.

the damages should be limited to the value of the "Smith" on the ground that she alone was in fault and that under the lex loci delicti commissi the obligation ex delicto could be discharged by paying the value of the ship in fault. The question whether or not the "Chinook" was involved in the fault of the officers in charge of both vessels is a question of fact and could only be decided now adversely to respondents if it appeared that all the facts necessary to a decision it were before us, or, in other words, that from the facts proved the necessary conclusion is that the vessels are not identified for the purposes of legal liability.

In my opinion that is not the proper conclusion from the facts bronght-out at the trial.

The plea to the jurisdiction based upon the limitation of liability proceedings in the United States Courts necessarily fails if for no other reason on the ground that in those proceedings none of the facts bearing on the question of the culpability of the "Chinook" was disclosed and the whole proceedings are on the assumption that the "Smith" was admittedly alone to blame, on which ground also must be rejected the argument that those proceedings in themselves constitute an answer to the action.

As to a stay of proceedings or reference back for further evidence that has never been suggested by any of the parties; and it is self-evident that in the view above expressed neither of those courses is now admissible.

J. (dissenting).-The evidence fully supmo ports the findings of fact made by the learned trial judge, and the facts so found warranted his conclusion Her tow, the "Chinook," and the down-going tug and tow were acquitted of blame. The actual collision was between the "Smith" and the down-going tug, which was sunk. There was nobody steering the "Chinook," the entire control of her navigation being in the hands of the men navigating the "Smith."

These facts are not in dispute, and the finding, that the negligent navigation of the "Smith" was the sole cause of the collision, was not seriously contested.

Ilut the appellants maintain that, upon the facts found, the "Ghinook"

should not have been condemned; that judgment should not have been given against the "Smith," because the collision occurred in American waters and the "Smith" is an American ship and had already been the subject of proceedings in an American court in respect of it; and that, if she is answerable in the present proceedings, her liability should be limited under the Canadian "Merchant Shipping Act."

has been suggested that under the bond given for the release of the "Smith" and the "Chinook," which were both arrested at Walkerville, the plaintiffs are entitled to judgment for the amount of their loss up to $12,000 (which will fully cover it) if either ship, or its owners, should be held liable, and that it is, therefore, unnecessary to deterifiine the liability of the "Chinook."

The form of the bond is relied upon to support this position. By it the sureties 'became responsible for payment by the owners of the "Smith" .and the "Chinook" of

I am unable to accede to this view.

We are not for the moment concerned with the question whether in this proceeding in rem the plaintiffs may have judgment in personam against the owners for such part of their loss as cannot be recovered out of the defendant ships, as was held in The "Dictator" (But see the discussion of this question in the introduction to the third edition of Williams and Bruce on Admiralty Jurisdiction, at p. 18 et seq.) It may be that if the plaintiffs have that right and if the owners are not entitled to the benefit of any of the provisions of British, Canadian or American law invoked by them to limit their liability, their sureties may be responsible for the entire loss of the plaintiffs up to $12,000. But only to the extent to which the plaintiffs are entitled to recover in this action against the vessels under arrest, or.their owners, can they hold the sureties. This is the true intent and substance of the security, of which the sole object was to procure the release of the ships from seizure. We are not now concerned with ascertaining the extent of the responsibility of the sureties. That may have to be considered further should it be determined that the owners are liable in this action for an amount beyond the value of both or either of the vessels which may be j. held to be responsible. The question under immediate consideration is the liability of the defendant ships, and that the form of the bond taken for their release from arrest cannot affect.

As between tug and tow, where a collision with a third vessel is due to the fault of those in charge the tug 'and the tow is herself free from blame, according to the modern authorities the tow is jointly liable with the tug for the resulting damage only where the relation of master and servant exists between them and the principle of the decision in Quarman v. Burnett(1), applies. As put by Butt J. in The "Quickstep"(2), at p. 199:- This decision has been approved of by the House of Lords in S.S. "Devonshire" v. Barge "Leslie"(3), where Lord Chancellor Haldane, at p. 645, restates the proposition of Butt J. in these words:ship the question whether the owners of the latter can recover damages agamst the owners of the tow depends whether the relation master and servant obtains between the owners of the tow and those of the tug.

Unless this relation is established, he said, that there was no liability the part of the tow.

The Lord Chancellor continued:think that, as the doctrine of identification, as enunciated Thorogood Bryan (1) has now been swept away, the principle Anglin J. laid down was right, and that it is simple application the rule established in the well-known case of Quarman Burnett(2). Lord Ashbourne said:- There is nothing in the facts this case to make the tow responsible for the navigation the tug. This is not a question law, but a question of fact, to determined each case on its circumstances.

In his judgment, concurred in by Lord Halsbury, Lord Atkinson reviews the authorities, and, accepting the proposition formulated in The "Quickstep"(3), concludes at p. 656, that it must now taken as conclusively established that the question of the identity of the tow with the tug that tows her is one of fact, not law, to determined upon the particular facts and circumstances each case.

The contrary view, enunciated in some earlier cases see The "Ticonderog" (4) that whenever a tug is hired by the master of a vessel for the purpose of towing it, the tug is, as a matter of law, to be deemed to be in the service of the tow, cannot now be regarded as law. In many of the cases in which that proposition is supposed to have been laid down, however, it will be found upon examination that the governing or controlling power was as a matter of fact in the tow. (1) at

0 31. & 499.

Hatield(1), where this court would appear to have accepted the proposition that although Mr. Justice Davies points out (p. 449) that the ship in tow in fact exercised at least some control of the navigation. Upon examination it will be found, J. however, that in The "En ergy"(2), on which the decision of the case of the "Wandrian" is rested, the ship in tow was in charge of a licensed pilot, and the headnote states that the tug was bound to obey his orders, and it was his duty to give the tug proper directions and to superintend her navigation.

Observations somewhat similar may be made as to the facts in The "Deronian" which are cited in the judgments in The Ship With respect, so far as it was there laid down that the tow is as a matter of law and of course responsible for the consequences of negligence of the crew of her tug, and that such responsibility does not depend upon whether or not the particular facts and circumstances establish the existence of the relation of master and servant, the $hip "i Wandrian " v. Hutfield(1) cannot, in my opinion, he supported since the decision of the House of Lords in the S.S "Deconshire" The Barge It most frequently occurs that the owner of the tug and the owner 6f the tow are not the same persons. Where they are identical the master of the tug, if he is not the owner himself, is, of course, the servant of the owner of the tow, but it does not follow that in such a case the tow is liable in a proceeding in rem for the result of the negligence of those in charge of the tow. Holding that because the "governing power" J. lay wholly with the "American," the "Syria," her tow, was not liable for a collision with a third vessel caused by the negligent navigation of the "American," Sir R. P. Collier, delivering the judgment of the Judicial Committee, said:- In such a case the question of the responsibility of the tow must apparently be dealt with as if she and the tug were owned by different persons. It was perhaps to meet such a situation that in re-stating the proposition formulated by Butt J., in The "Quickstep" (1), the Lord Chancellor enunciated it in the "Devonshire" Case (2) in the slightly modified -terms above quoted.

In determining when the relation of master and servant exists between tug and tow, as put by Butt J.: Third parties are not affected by the mere contractual relation between the tug and the tow. The "W. H. No. 1" and The "Knzight Errant" (3).

The consensus of modern opinion seems to establish that where, as here, those in charge of a suitable tug, properly manned and equipped, have the entire control, she must be held responsible for the proper navigation of her tow as well as herself, and the tow is not liable. Sturgis Boyer(l), adopted in The

"Quickstep"(2), at p. 201.

The facts of the present case are more favourable to the tow than were those in the "It.

H. Xo. and The "Knight J. Errant"(3), the dumb barge in tow being there held not liable, although she had a man at the rudder.

There was nobody steering the "Chinook."

There was nothing in the present case to suggest the existence of the relation of master and servant except the fact that the tow and tug had the same owners and that circumstance has been held by the Judicial

Committee to be devoid of significance in considering the question of the responsibility of the tow for the negligent navigation of the tug.

I am, for these reasons, with respect, of the opinion that the judgment condemning the "Chinook" cannot be sustained.

It, therefore, becomes necessary to consider to what limitation of liability, if any, the "Smith" is entitled, and what effect should be given in this suit to the proceedings taken in the American courts so far as they have been produced in evidence.

The "Smith" being an American ship and the collision having occurred in territorial waters of the

United States, secs. 920 et seq. of the Canadian "Shipping Act" (R.S.C. 1906, ch. 113) cannot be invoked, their application being confined to "the navigation of

Canadian waters" (see the heading of Part XIV.).

Although the "Merchaiit Shipping Act" (57 & 58 Vict. (Imp.), ch. 60, sec. 503) applies -to foreign vessels when before British courts in respect of collisions which occur either in British territorial waters or on the high seas, it does not determine the liability of a foreign vessel for a wrong committed by her within the territorial limits of the country to which she be- J. longs. The presence of a foreign ship within Canadian Awaters undoubtedly confers jurisdiction on the Exchequer Court of Canada to arrest and hold her answerable for such claims against her by the owner of an injured British vessel ("Merchant Shipping Act," siupra, sec. 688; The "Franconia" (1) ; The Ship "D. Whitney" St. Clair Navigation Co. (2) ), and the submission to the jurisdictionin the bond filed in the present case puts that question out of consideration. But it does not follow that the provisions of our law are alone to be taken account of in considering the existence or the extent of the defendant's liability. the contrary, an act done in a foreign country is not actionable as a tort in our courts unless it is a wrong by the law of the country where it occurred. Machado v. Fontes(3) ; Phillips v. Eyre(4) ; Dobree v. Napier The statutory limitation of a shipowner's liability is not ler fori. Cope v. Doherty(6) ; Westlake's International Law, 5th ed., sec. 202; and, where the collision occurs in the domestic waters of the foreign ship held to be at fault, the lex loci comnmissi delicti deterimines the extent of her liability. Marsden on Collisions ed.), pp. 203-4, and cases there cited; Foote's Private International Jurisprudence ed.), pp. 459, 461; Consequa Willin9^, in 1816(1); Story Conflict of Laws, sec. 307; Wharton on Conflict of Laws (2 ed.), sec. 512. In dealing with either the ship or her owners, when subject to their jurisdiction, the courts of this country, while they will not condemn for a cause not actionable here, will not, on the other hand, subject her or them to a greater liability than is imposed by the law of the ship's own flag as proved.ride M*chado v. Fontcs(2).) Of course, it would be quite otherwise if the collision had occurred on the high seas. The "11ild Hel ger- (3).

If, therefore, the defendant is content that the reference directed by the judgment a quo should proceed on the basis which I have indicated, namely, that the recovery should be limited to the value of the "Smith" immediately after the collision and her then pending freight, proved by Mr. Harvey to be her right under United States law, that course may be taken, unless, indeed, in the light of this judgment, the parties interested should see the advisability of a settlement of their differences.

On that reference, however, unless by consent, the plaintiffs should not be bound by the appraisal of the value of the "Smith" and her pending freight which appears to have been made e.r parte in the American court; and it should be open to them to shew, if they can, that she is not entitled to the benefit of the United States statute because the collision occurred with the privity or knowledge of her owners. No evidence, however, to that effect has been given, nor has any such suggestion been made. Should the defendant now elect to proceed under the judgment, the costs of the reference should be reserved to be disposed of by the learned local judge of the Exchequer Court after it is concluded.

But if the defendant, the "Smith," still insists upon being given in this suit whatever benefit she may be entitled to from the proceedings in the American courts, the extent of any such right that she may have must be further considered.

The exemplification of those proceedings produced shews nothing after the 13th March, 1913, although it was put in some time after the trial of this action, which began on the 14th of April, 1914.

The last order of the United States court which is before us was pronounced on the 16th December, 1912. The proceedings are obviously incomplete and it would almost appear that they had been suspended awaiting the outcome of this action.

If that be the case, however, it has not been shewn.

So far as they are in evidence these proceedings appear to consist of a petition, presented under an American statute, praying for the limitation of the liability of the owners of the "Smith" for damages arising out of the collision in question. An ex parte appraisal of the value of the ship was directed and made and a bond for the amount thereof filed.

The order directing the giving of this security, or stipulation, as it is called, contains this passage:- By an order of the same date approving the bond the issue of a monition citing all persons to appear and make claims is directed, service to be made by publication in a Detroit newspaper

The petition merely alleged that the petitioners were "not informed as to the ownership of the said barge 'Hustler.' " This was the sole material on which the J. order for substitutional service was based. Although the present plaintiffs received no formal notice them, they would appear to have had some knowledge, gleaned from newspapers, that the limitation proceedings were pending in Detroit.

(Robinson v. Fenner (1), at pp. 842-3-4; Pemberton v. Hughes (2).) Neither an order staying any proceedings in other American courts (although the petition asked for it), nor an order extinguishing the maritime liens upon the "Smith" of persons who had sustained damages by the collision, or declaring such lieiis to be thereafter unenforceable except against the moneys secured by the stipulation filed in court, appears to have been made. Nor is there anything before us to shew that the proceedings -had reached a stage at which such an order would properly be made in the United States District Court. The only evidence as to the American law or as to the effect of the proceedings, given by Mr. Harvey, a proctor in Admiralty practising at Detroit, is very meagre and unsatisfactory. He states the extent of the limitation under the American law (presumably United States Compiled Statutes, 1901, sec. 4283), and that the owners petitioning for limitation may give a bond for the appraised value of the ship (presumably under Admiralty rule, No. 54), in lieu of conveying her to a trustee (presuinably under section 4285 of the same statute) and he adds that "the bond then stands in place of the ship and her freight pend- -beyond this he says nothing as to the effect of the proceedings which the exemplication produced shews to have been actually taken.

He adds that persons j.. having claims may appear before a Commissioner within a fixed time and prove them; the question of the liability of the ship may -be determined; and, if she is found to be at fault, a decree may be entered that the amount of the bond be distributed amongst' the claimants wh6 have proved claims.

The only formal plea in this action .based on these foreign proceedings is in denial of the jurisdiction, the Canadian Exchequer Court.

As already stated there is no ground for that contention.

There is no plea of res judicata and at the stage to which the proceedings had advanced it seems highly probable that they would not have warranted such a plea. Nor is it alleged that the present action is vexatious or contrary to good faith and it is perhaps questionable whether such an allegation, if made, could be sustained. The "Reinbeck"(1). It may be that if lis alibi pendens had been formally pleaded that defence too could have been met. The "City of Norwich"(2); The "Bold Buccleuch"(3) ; but see Re lorrison(4) ; The "MIali Ivo"(5) ; Law v. Hansen"(6).

At the outset of the trial, however, counsel called attention to what had taken place in the American court and suggested that the Exchequer Court should not proceed further in this action. But the learned trial judge said that he would "take evidence and con- Srriu" sider that as raised in the pleadings." At the conclusion of his judgment disposing of the action, after stating the substance of the proceedings as shewn by the exemplification, he treats the question first as one of jurisdiction and holds that it is concluded against the defendant by her arrest in Canadian waters and by her submission to the jurisdiction contained in the bond given to secure her release. He adds:- But, with respect, it is at least questionable how far the plaintiffs can set up want of formal notice of proceedings of the pendency of which they had some actual knowledge.

See cases noted in Piggott on Foreign Judgments, 3rd ed., pp. 407-411; Re Morrison (1), and see Williams & Bruce Admiralty Jur. (1902)., p. 86.

I am far from being satisfied that, if applied for at an earlier stage of the proceedings and upon proper material shewing that the plaintiffs' interest could be fairly dealt with in the foreign proceedings, a stay of this action, pending the outcome of such proceedings, would not have been granted by the Exchequer Court on grounds analogous to those on which a British court in which a similar proceeding is instituted is empowered by section 504 of the "Merchant Shipping Act" to stay any proceedings in any other court. The "Christiansborg" (2) ; The "Lanarkshire" (1); The "Griefswald"(2) ; The "Catterina Chiazzare" (3); The "Peshawur" (4).

In these cases the foreign proceedings had been instituted by the same plaintiffs who subsequently. invoked, the jurisdiction of the English courts. I do not, however, understand the decisions to rest on that fact, but upon the undesirability of entertaining a second litigation while proceedings are pending in a competent tribunal in which the plaintiffs have the right and opportunity to have their claim adjudicated, although, where that tribunal is a court of a foreign country, concurrent proceedings in this country may not be prima facie vexatious. McHenry Lewis(5), at pages 408-9; Co.i v. Mitchell(6). But the reasons for withholding the exercise of jurisdiction are very formidable where the foreign proceeding partakes of the nature of a proceeding in rem in which all parties interested are cited to prefer their claims and the res is at home in the foreign jurisdiction and the cause of action is a wrong which was committed there. The giving of a stipulation in proceedings for limitation of liability under the United States statute seems to be deemed the equivalent of conveying the ship to a trustee under section 4285 (The "City of Norwich" (7)), and where such a surrender is made the proceedings appear to be regarded as in rem. Re Morrison (8), at pages 34; The "M-ali Ivo"(9), at pages 358-9. To grant such a stay now, however, would involve serious considerations which would not have been a source of anxiety and trouble had the application been made earlier. Heavy costs have been incurred and the defendant has had a full trial of the question of her liability, which it would still be open to her to contest in the United States court.

We do not know what has transpired in that court since the 13th March, 1913; we are unaware whether it is still open to the plaintiffs to present their claim there and to j. have it duly considered; we do not even know that the security put in is still available or whether the amount of the appraisal of the ship's value or the sufficiency of the stipulation may be questioned and further security ordered on cause being shewn, or whether. it is open to the present plaintiffs to contest the right of the owners of the "Smith" to limitation of liability. These and other questions as to the nature and effect of proceedings under the United States statute have been considered by the Supreme Oourt of the United States in Re Morrison (1), but as to the effect of the proceedings in an American court and as to American law we are, of course, dependent upon the evidence before us. These questions must be dealt with by us as questions of fact. We may not ourselves examine American statutes and authorities to determine them. In short, the necessary material is not before us to enable us to decide whether it would be equitable now to order a stay of proceedings in this action. For that the defendant is chiefly to blame. It is due to her failure to put in proper evidence that we find ourselves in this manifestly unsatisfactory position. Under these circumstances, I am of the opinion that if a settlement cannot be reached and if the defendant is unwilling to proceed with the reference under the judgment of the Exchequer Court, qualified as above suggested, and should elect to take an order for a further hearing before that court as to the exact nature of the foreign proceedings and the stage which they have reached, and as to what effect, if any, should be given to them in this action, such an order may issue. Of course it should be open to the plaintiffs to resist the defence based on the American proceedings on any ground that they may be advised to raise.

Appeal dismissed with costs.