British Columbia Telephone Company and Others v. Marpole Towing Ltd.

British Columbia Telephone Company and Others v. Marpole Towing Ltd.
Collection
Supreme Court Judgments
Date
1970-12-21
Report
[1971] SCR 321
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
British Columbia Telephone Company and Others v. Marpole Towing Ltd., [1971] S.C.R. 321
Date: 1970-12-21
British Columbia Telephone Company and other persons (Defendants) Appellants;
and
Marpole Towing Limited (Plaintiff) Respondent.
1970: June 22, 23; 1970: December 21.
Present: Martland, Ritchie, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Shipping—Collision with bridge, property of provincial Crown—Negligence of master—Limitation of liability—Without actual fault or privity of owner—Canada Shipping Act, R.S.C. 1952, c. 29, s. 657.
The upper part of a box of an empty chip barge which was being towed on the Fraser River by the plaintiff’s tug, struck the Fraser Street bridge at approximately 9 a.m. The bridge is the property of the Crown in the right of the province of British Columbia. The bridge was damaged and many vehicles with passengers in them which were crossing the bridge at the time were thrown into the water. The plaintiff in an action to limit liability admitted that the collision was caused by the negligence of its employee, the master of the tug, in failing to make a correct estimation of the vertical clearance beneath the bridge. The master had followed the common practice for those using the Fraser River to gauge the clearance under the Fraser River bridge by counting the number of planks visible above water at the preceding bridge. The plaintiff settled all claims for personal injuries and then took action to limit its liability as to the property damage pursuant to s. 657 of the Canada Shipping Act, R.S.C. 1952, c. 29. The Exchequer Court held that it was so entitled. The defendants appealed to this Court.
Held (Spence and Laskin JJ. dissenting): The appeal should be dismissed.
Per Martland, Ritchie and Pigeon JJ.: The damage was caused without the actual fault or privity of the plaintiff. The only conclusion that can be properly drawn from the evidence in this case is that the method of counting the number of planks at the preceding bridge was not only an accurate method of measurement but the only method that was accurate and that it was the standard practice. Whether the master miscounted the planks or failed to count altogether, he was negligent; but such negligence was not reasonably foreseeable by the owner, which was depending on a master of great experience in the navigation of that part of the river and which was satisfied that the masters of its tugs should abide by the standard practice adopted by all companies using that part of the river to determine the clearance under the bridge. It was reasonable for the plaintiff to have adopted the universal practice of using the south channel, commonly known as the “main drag”, unless its masters were uncertain as to whether or not there was sufficient clearance at Fraser Street. The plaintiff should not be deprived of the protection of the statute because in the circumstances of this case—the collision happened during rush hour traffic—negligent navigation by the master might result in unusually great damage being done. If this were the test it would serve in great measure to defeat the whole intent and purpose of the statute. The contention that limitation of liability sections of the Canada Shipping Act did not apply so as to entitle the plaintiff to limit its liability in respect of damage to Her Majesty in the right of the province of British Columbia, must be rejected. Per Spence J., dissenting: The plaintiff cannot bring itself within the provisions of s. 657 of the Canada Shipping Act. In the light of all the circumstances, it has not discharged the heavy burden upon it to demonstrate that the accident did not occur through actual fault on its part. That fault consisted of the paucity of the instructions given by the plaintiff to its master, particularly in the failure to insist that the tide tables must always be used to check the accuracy of visual observations, that care must always be taken to avoid a collision with the Fraser Street bridge when it was crowded with traffic, and finally that in circumstances where the calculations were at all close the inconvenient but safe north channel must be used.
Per Laskin J., dissenting: In the circumstances of this case, actual fault resulting in the loss complained of, within the meaning of s. 657 of the Canada Shipping Act, has not been negated by the plaintiff. Having regard to the plaintiff’s knowledge of the master’s practice of relying solely on his ability to count accurately the planks at the preceding bridge, and having regard to the risks of loss or damage which a faulty count would create, it appears to be quite reasonable to charge it with a duty to instruct the master that in such conditions as prevailed at the material time herein he should either check his count of planks by reference to the charts and other such aids, or should use the north channel, however inconvenient it might be in comparison with the south channel. No such duty was discharged in the present case.
APPEAL from a judgment of Sheppard J., Deputy Judge of the Admiralty District of British Columbia[1], in an action for limitation of liability under the Canada Shipping Act. Appeal dismissed, Spence and Laskin JJ. dissenting.
John I. Bird, Q.C., for the defendants, appellants.
John R. Cunningham, for the plaintiff, respondent.
The judgment of Martland, Ritchie and Pigeon JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of Mr. Justice Sheppard acting in his capacity as deputy Judge in Admiralty for the British Columbia Admiralty District, whereby it was decreed that the respondent, Marpole Towing Limited, is entitled to limit its liability pursuant to the Canada Shipping Act, R.S.C. 1952, c. 29, ss, 657 to 663 inclusive and amendments thereto, in respect of damage done to property of the Crown in the right of the Province of British Columbia, when the upper part of the box of an empty chip barge “V.T. 145”, which was being towed by the respondent’s tug, Chugaway II, struck a bridge which is commonly known as the Fraser Street Bridge and which stretches over that portion of the north arm of the Fraser River lying between Mitchell Island and Lulu Island. This bridge is a single span and is used by traffic travelling to Vancouver by “No. 5 Road”; after crossing the bridge those using this route drive across the centre of Mitchell Island and must then cross a swing bridge over the north channel of the river in order to reach the mainland. There is another bridge two miles down river which is also a single span and affords direct passage across the north arm of the river. This is known as the Oak Street Bridge and reference to Chart No. 3489 of the Canadian Hydrographic Service indicates that it is a main traffic artery to Vancouver and that it clears the river by 66 feet above high water, whereas the clearance of the Fraser Street bridge is similarly indicated as 24 feet above high water.
The collision occurred on June 23, 1966, at approximately 9:05 a.m. and resulted in the main span of the bridge being carried away and personal injuries being suffered by individuals who were in cars crossing the bridge and by pedestrians. There was no loss of life.
Marpole Towing Limited admitted that the collision was caused by the negligence of its employee, Captain P.D. Forsyth, the master of the Chugaway II, in failing to make a correct estimation of the vertical clearance beneath the bridge so that he attempted to tow the barge V.T. 145, which had a box of a height of 26 feet above the water, when the tide was such that there was only approximately 24 feet of clearance under the bridge. In claiming to limit its liability, the respondent invokes the provisions of s. 657 of the Canada Shipping Act. The relevant portions of s. 657(2) read as follows:
657. (2) The owner of a ship, whether registered in Canada or not, is not, where any of the following events occur without his actual fault or privity, namely:
* * *
(b) where any damage or loss is caused to any goods, merchandise or other things whatsoever on board that ship;
(d) where any loss or damage is caused to any property, other than property described in paragraph (b), or any rights are infringed through
* * *
(i) the act or omission of any person, whether on board that ship or not, in the navigation or management of the ship, in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or
(ii) any other act or omission of any person on board that ship;
liable for damages beyond the following amounts, namely:
(e) in respect of any loss of life or personal injury, either alone or together with any loss or damage to property or any infringement of any rights mentioned in paragraph (d), an aggregate amount equivalent to 3,100 gold francs for each ton of that ship’s
(f) in respect of any loss or damage to property or any infringement of any rights mentioned in paragraph (d), an aggregate amount equivalent to 1,000 gold francs for each ton of that ship’s tonnage.
The gross tonnage of the Chugaway II is 9.87 tons and it is provided by s. 661(1) that for the purpose of s. 657 “the tonnage of any ship that is less than 300 tons shall be deemed to be 300 tons”.
It does not appear to me to be necessary to make any detailed review of the damage sustained as a result of the collision; it is sufficient to say that the appellant in this action is the Crown in the right of the Province of British Columbia claiming for the damage done to the bridge span in the amount of $178,003.22 and that the learned trial judge held that the respondent was entitled to limit its liability in accordance with s. 657(2) of the Canada Shipping Act to the amount of $24,000.
The negligence of the tugmaster gave rise to the liability of the owner in accordance with the doctrine of respondeat superior but the question of whether that liability can be limited in accordance with the statute has nothing to do with that negligence or that doctrine; it is to be answered exclusively by deciding whether or not it has been shown that the damage was caused to the bridge without the actual fault or privity of the owner.
It is, I think, generally accepted that the meaning of the words “without his actual fault or privity” as they are used in s. 657(2) was accurately explained by Lord Roche speaking for the Judicial Committee of the Privy Council in Robin Hood Mills v. Patterson Steamship Limited[2], where he said:
The meaning of fault and privity in s. 502 of the Act, which in that respect is identical with s. 503, has been authoritatively declared by the Court of Appeal and the House of Lords in the case of Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (1914) 1 K.B. 419 and (1915) A.C. 705. The words “actual fault or privity” … infer something personal to the owner, something blameworthy in him, as distinguished from constructive fault or privity such as fault or privity of his servants or agents (per Buckley, L.J., (1914) 1 K.B., at p. 432). Actual fault negatives that liability which arises solely from the rule respondeat superior (per Hamilton, L.J. p. 436). So in the case of a company “it must be… the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondeat superior, but somebody for whom the company is liable because his action is the very action of the company itself” (per Viscount Haldane, L.C., (1915) A.C, at pp. 713-4). The burden of showing that no such fault or privity subsisted was said in Lennard’s case to rest upon the shipowners and the respondents here did not seek to question that proposition as applying to the present case. But another and very important principle is to be derived from a consideration of the section, namely, that the fault or privity of the owners must be fault or privity in respect of that which causes the loss or damage in question, a proposition which was acted upon and illustrated in Lennard’s case.
In the present case the respondent does not question the fact that Captain Lowry was a person whose actions were the very actions of Marpole Towing Limited itself. It was not, however, Captain Lowry, sitting in the company’s office, but his tugmaster, Captain Forsyth, whose negligence in the navigation of the tug and tow caused the property damage to the bridge, and what is to be decided here is whether it has been shown that there was no fault personally of Captain Lowry and nothing “blameworthy in him” or his management of the affairs of the respondent company which caused or contributed to the property damage.
Mr. Justice Sheppard traced the facts of this case with great care and I do not think that anything would be gained by repeating all that he said, but I think it would be helpful to state some essential facts as they were found at the trial, and in this regard the following finding appears to me to afford a helpful background for discussion of the facts. The learned trial judge found:
Captain Lowry, being the President and General Manager, has been throughout the supervisor for the Plaintiff. He had issued no written standing orders but had from time to time issued oral instructions to the various masters as to the use of life jackets, bridles, travelling at reasonable speed, authority to the masters to employ help if needed and instructed to navigate at safe speed. Within these limits the master was to have discretion in navigation.
The master and crew of the tug were competent. Captain Forsyth as the master was experienced in river navigation. He had twenty-one years’ experience on tugs sailing the Fraser River and he was master thereof for eighteen years. During that period he had navigated the river continuously and this was the only accident during that period. The mate, Mr. Taylor, had ample experience on the river as he had sailed thereon for five or six years and he had been nine months with the Plaintiff. At the time of the trial, Mr. Taylor owned and operated his own towing business which was engaged in towing on the river… The tug, Chugaway II was well found. The mate, Mr. Taylor, gave evidence that the navigation equipment was very good and the navigation aids were also good. This included chart, radar, compass, and everything required.
I think it is useful to add that the tugmaster stated that he had travelled under the Fraser Street Bridge hundreds of times before and that he had, as will hereafter appear, in fact personally measured the clearance there on four or five occasions.
As I have said, the Hydrographic Service chart of the north arm of the Fraser River shows the bridge in question to have a clearance of “24 feet above H.W.” (It is generally accepted that these initials stand for “high water”.) The existence of this notation on the chart was known to Captain Lowry and I am prepared to assume that it was also known to Forsyth, who had travelled the river for 18 years. It was the only information on the chart which was in any way relevant to the question of whether it was safe to take the V.T. 145 underneath the Fraser Street bridge, but the failure to specify what was meant by “high water” had the result of making this information virtually useless.
The first and I think the main submission made by the appellant is that the respondent was guilty of actual fault because it knew that its tugmasters did not use the chart in order to determine the clearance under the Fraser Street bridge and that it failed to instruct them to do so, but the danger and difficulty of relying on the chart in conjunction with the tide tables seems to me to be at once apparent when the two are considered together.
The tide tables indicated the expected height of the tide at certain hours of each day at Port Atkinson, which, under normal conditions and in calm water, does not vary appreciably from the tide level at the Fraser Street bridge, but when “freshet” tides are running, as they were on the day in question, the level at the Fraser Street bridge may be from five to ten inches higher than that at Port Atkinson, and when the wind has been blowing “it may be lifted as much as a foot and a half higher than it is at Port Atkinson.” On the day of the accident (June 23, 1966) the highest tide indicated at Port Atkinson was 14.3 feet at 11.25 p.m. (ail times mentioned are daylight saving time), but the accident occurred at 9.05 a.m. and the nearest indicated tide was 10.8 feet at 8.26 a.m., after which it appears to have been on the ebb, at least until a low tide of 1.0 feet at 3.42 p.m.
As I have said, the box on the V.T. 145 was 26 feet high and as it struck the bridge at a point about 18 inches from the top, it would appear that at 9.05 a.m. on the morning of June 23, the clearance was about 24½ feet but this fact could not have been ascertained by studying the chart or the tide table.
The whole question of the use of chart and tide table in conjunction has, in my opinion, been confused by the fact that the appellants’ counsel not only proceeded on the assumption that the 10.8 foot tide reading at 8.26 a.m. “would be just about high water mark” for June 23, but he further appears to have assumed that this was “the high water mark” to which the chart datum related and that anyone glancing at the chart and the tide table together would have known that there was only about 24 feet of clearance at 9.05 a.m. This appears to me to be a clear error which coloured much of the cross‑examination of the tugmaster and of Captain Lowry.
The tide table itself shows that the maximum “high water” was 16.7 feet and, as I have indicated, the highest tide on June 23 was 14.3 feet, while high tide a week before was 12.7 feet and on June 11 the highest water was 8.3 feet. With these wide differences, it appears to me that the notation of “24 feet above H.W.” which appears on the chart can only have any significance if it is intended to refer to “mean high water”, and the tide table indicates that this was 13 feet.
In my view it follows from the above that on the basis of the chart and tide table the master would have been justified in concluding that at a tide of 10.8 feet he had a clearance of more than 26 feet, but the fact of the matter was that the clearance was at most 24½ feet, and that indicates to me that with the freshets running and other conditions, the water at Fraser Street must have been a great deal higher than 10.8 feet. There was, however, another source of information carried on the Chugaway II in the shape of a table of “Bridge Clearances and Signals, North Arm Fraser River.” This document was issued by the North Fraser Harbour Commission and although it carries the caution that the clearances given “are indications only”, it is interesting to note that the clearance given at the Fraser Street bridge at a 12 foot tide was 24.2 feet.
It was exactly because of the difficulties and uncertainties of determining the height of the river from the chart and tide tables that it had become common practice for those using the Fraser River to gauge the clearance under the Fraser Street bridge by counting the number of planks visible above water at the Oak Street bridge, allowing one foot for each plank and adding 19 feet so as to give the number of feet of clearance at the Fraser Street bridge. This system had been widely adopted over the years by those navigating the Fraser River and Captain Forsyth had, in the past, actually verified its accuracy by his own measurements. In any event the evidence is uncontradicted that the result of employing this method was “positive for height” at the Fraser Street bridge and that it was the only accurate measurement available for users of the river and that it is the “standard practice”.
In this regard the learned trial judge made the following finding:
Amongst those familiar with the navigation of the Fraser River it was common practice to determine the clearance of the Fraser Street Bridge by counting the visible planks of the Oak Street Bridge, allowing approximately one foot for each plank and adding 19 feet as indicating the height of the Fraser Street Bridge above the current level of the water.
In this latter regard, Captain Forsyth testified as follows:
Q. How long have you been going to sea on tugs, Captain Forsyth?
A. 21 years.
Q. And how long ago did you first serve as a master on tugs?
A. 18 years ago. Q. Now, what was your method of determining the height of the clearance of the Fraser Street fixed span bridge in the Fraser River?
A. By counting the planks showing above the water at the Oak Street pier and adding 19 feet to get your clearance for the Fraser Avenue span which is two miles up river.
THE COURT:
Q. And adding 19 feet?
A. Correct, to the planks showing on the Oak Street pier.
THE COURT: Yes.
MR. CUNNINGHAM:
Q. Now, was that Oak Street pier prior to this accident, from your experience, the one that you are referring to, generally free of damage to it as far as your planks were concerned?
A. Generally, yes.
Q. And had you had occasion at any time to measure actually measure the clearance of the Fraser Street fixed span before the accident on June 23rd, 1966, yourself?
A. Yes, sir, I have.
Q. And what was the method that was used?
A. Taking a pole, one boat standby at Fraser Avenue fixed span, measuring the clearance and then reverse course with the boat counting the planks at the Oak Street span.
Q. And can you recall, what were the circumstances under which you had done that before the accident on June 23rd, 1966?
A. Would you repeat that question, please?
Q. Under what circumstances did you have occasion to do it? What was the occasion?
A. Well, usually if you have a new crew come aboard they are curious as to how we come to our clearance, how we come to the figure, and this is standard practice with all tow boats in the river. Many companies have done it, many boats.
Q. And how many times can you recall doing it before this accident?
A. Four or five times.
Q. And this practice of using the planks, what is your knowledge and your observation as to other companies using it, tug boat companies, in the Fraser River?
A. Yes, it is standard practice with all companies in the river. THE COURT:
Q. That is, by counting the planks on Oak Street and adding 19 feet in addition?
A. Right.
Counsel for the appellants submitted that this was a rudimentary method of determining the clearance at Fraser Street and contended that the evidence of the accident itself proved it to be fallacious, but I think that the only conclusion which can be properly drawn from the evidence in this case is that it was not only an accurate method of measurement but the only method that was accurate. The evidence is, as I have said, uncontradicted in this regard and the criticism that this method was subject to human error is one that applies to all methods of calculation from simple addition to the computer and it applies with particular force, as I have attempted to illustrate, to the use of the chart in conjunction with the tide tables, as this latter method is not only subject to human error but to the vagaries of wind and weather and the fundamental uncertainty as to the height of water to which the chart datum “24 feet at H.W.” refers.
I do not think that actual fault can be attributed to the respondent on the ground that Lowry failed to foresee that there was any probability of an experienced master, who had taken tugs under the Fraser Street bridge “hundreds of limes” in reliance on the plank-count method, being so unpredictably careless as to count nine planks when there must in truth have only been five and a half visible at the Oak Street bridge.
It appears to be assumed by the appellants that Forsyth in fact made the mistake of counting nine instead of five and a half planks but although this statement was finally elicited from him in cross-examination at the trial, which was held more than three years after the event, it is to be remembered that in his affidavit made less than a year after the collision, the master had said nothing about counting planks and merely stated that “on approaching the Oak Street bridge I decided from my observation of the level of the river at the base of the Oak Street bridge that there was sufficient clearance for the tug and her tow to be navigated under the fixed span of the Fraser Street bridge”. When he was first asked at the trial how many planks he had counted, Forsyth’s reply was “I don’t remember exactly” and he later said “I believe it was nine but I could be wrong. I made one estimate” and it was only when further pressed that he stated that he had in fact counted nine planks.
It is difficult for me to believe that Forsyth actually counted nine planks when there were only five and a half visible, but I am satisfied that such an experienced tugmaster might well simply take a glance at the water level at Oak Street and make an estimate in his own mind without counting at all.
Whether the master miscounted the planks or whether he failed to count altogether does not appear to me to be decisive of the question raised on this appeal. Whichever he did, he was negligent and it seems to me to be equally true that such negligence was not reasonably foreseeable by the owner, which was depending on a master of great experience in the navigation of that part of the river and which was satisfied that the masters of its tugs should abide by the “standard practice” adopted by all companies using that part of the river to determine the clearance under the bridge.
It was contended also that Captain Lowry, acting on behalf of the respondent, was at fault in not instructing his masters to use the alternate channel to the north of Mitchell Island whenever there was any risk that the height of the water under the Fraser Street Bridge might not afford adequate clearance.
No evidence whatever was adduced as to what instructions Captain Lowry could have given to his masters in order to assist them in determining the clearance under the Bridge except the use of the “plank count” or the chart and tide table and I think I have indicated that I am satisfied that the chart and tide table could have afforded no assistance and that it would in fact have been dangerous for Captain Lowry to instruct his masters to rely on the information derived from them. It is perhaps desirable to indicate that the northern channel was a highly inconvenient one and this is made plain in the evidence of Captain Lowry where he says:
Q. Mr. Bird asked you about navigating a barge in tow through the two swing bridges that are involved in a tow through the north side of Mitchell Island. What are the conditions that exist in towing through those swing bridges?
A. It is a narrow channel with approximately maybe six sawmills in the slough, as we call it.
Q. You call that area north of Mitchell Island a slough, do you?
A. That is a slough. This is a secondary channel. On a flood tide or bucking tide when a tug is going up there with one of these chip scows you have got half speed, slow speed, crawl up there. You don’t know when the Fraser Avenue Bridge is going to open, you have got booms across your navigable channel.
Q. What kind of booms are you talking about?
A. They are yard booms for these mills from one side to the other.
Q. And most of these swing bridges have to be opened particularly?
A. At times.
Q. Specifically?
A. One all the time, the tar bridge.
Q. And you find a considerable amount of local traffic in that area?
A. Yes.
Q. In what you call the slough?
A. Very much so.
It seems to me to have been reasonable for the respondent company to have adopted the universal practice of using the south channel, which was commonly known as the “main drag”, unless its masters were uncertain as to whether or not there was sufficient clearance at Fraser Street and, as I view it, it would have been a surprising indication of lack of confidence in the tugmasters if Captain Lowry had found it necessary to call them into his office and say “Do not go under the Fraser Street bridge with a barge carrying a 26 foot box unless you are satisfied that there are 26 feet of clearance.”
It is further contended, however, that on the morning in question the Chugaway II was approaching Fraser Street Bridge at the rush-hour when it would bear heavy traffic and that more than ordinary care and prudence was required of the tugmaster in accordance with the principles which have long been applied to inherently dangerous substances, e.g., “That the degree of care… must be proportionate to the degree of risk involved if the duty should not be fulfilled.” This quotation is taken from the judgment of Lord Wright in North Western Utilities Limited v. London Guarantee and Accident Company Limited[3]. In that case the respondent’s hotel had been destroyed by fire caused by the escape and ignition of natural gas carried by the appellant underground at high pressure which percolated through the soil and penetrated into the hotel basement from a fractured welded joint. The cause of the break in the welded joint through which the gas leaked was found to be the operations of the City of Edmonton in constructing a storm sewer involving underground work immediately beneath the appellant’s gas main.
It was found that the appellants were at fault in failing to have watched and guarded against the construction being conducted by the City from causing any break in its gas main.
The decision of the House of Lords was rendered by Lord Wright who expressed the following view of the duty and conduct of the appellant at page 127:
In truth, the gravamen of the charge against the appellants in this matter is that though they had the tremendous responsibility of carrying this highly inflammable gas under the streets of a city, they did nothing at all in all the facts of this case. If they did not know of the City works, their system of inspection must have been very deficient. If they did know they should have been on their guard: they might have ascertained what work was being done and carefully investigated the position, or they might have examined the pipes likely to be affected so as to satisfy themselves that the bed on which they lay was not being disturbed. Their duty to the respondents was at the lowest to be on the watch and to be vigilant: they do not even pretend to have done as much as that. In fact, so far as appears, they gave no thought to the matter. They left it all to chance. I find it difficult to equate the operation of a fleet of tugs in the Fraser River with the carrying of a highly inflammable gas under city streets, but the case, in any event, appears to me to be clearly distinguishable from the present one on the ground that, here, the respondent company had not “left all to chance” as to whether there was sufficient clearance under the Fraser Street Bridge but rather, having given thought to the matter, was content to have its tugmasters follow the standard practice employed by all those who used the River which was also, in my opinion, based on the evidence, the only effective way in which to determine the clearance under the bridge in question.
Reference was also made to the case of Paris v. Stepney Borough Council[4], in which a garage hand who to the knowledge of his employers, had only one good eye, was not wearing goggles when his good eye was injured in the course of his work. The claim here was obviously one involving the common law duty which an employer owes to his employee, and under the particular circumstances of the case, it was held that the special risk of injury involved in a one-eyed man losing his sight entirely was a relevant consideration in determining the precautions which the employer should have taken in discharging his duty towards him, and the workman was successful.
In the Court of Appeal in the Paris case, where the judgment at trial was reversed, Asquith L.J. had said:
The risk is no greater although the damage may be greater to a man with only one good eye than to a man with two good eyes. But the quantum of damage is one thing and the scope of the duty is another. A greater risk of injury is not the same thing as a risk of greater injury; the first alone is relevant to liability.
In allowing the appeal from this decision and restoring the judgment at trial, Lord Normand, whose reasons were adopted by the majority, having first pointed out that the duty resting on the employer was a duty to its employees as individuals, went on to hold that the trial judge had been right in finding the employers liable under the particular circumstances of that case. In this regard Lord Normand said at page 383:
The facts on which the judge founded his conclusion, the known risk of metal flying when this sort of work was being done, the position of the workman with his eyes close to the bolt he was hammering and on the same level with it or below it, and the disastrous consequences if a particle of metal flew into his one good eye, taken in isolation, seem to me to justify his conclusion.
It is now suggested on behalf of the appellants that the decision of Lord Normand, based as it was on the particular facts before him, should be so applied to the facts of the present case as to constitute authority for the proposition that the risk of greater injury to members of the public represented by a crowded bridge gave rise to a higher duty of care than there would have been if the bridge had only had a few or no people on it. I am unable to accept any such extension of what was said in the Paris case. It appears to me that the duty of care resting upon the tug master was to act as a reasonable, prudent and careful tug operator and that it would constitute a fundamental change in the concept of duty in the law of negligence to hold that this duty varied according to the number of vehicles or pedestrians on the bridge.
This appeal is concerned with a claim for damages to the structure of the bridge itself and in my view the duty to take reasonable steps to guard against causing such damage was a constant factor which required the same degree of care whether the bridge was congested or empty. In the present case the master was clearly in breach of this duty and his negligence attracted liability to the respondent in accordance with the doctrine of respondeat superior.
It seems to me, however, that what is involved here is the contention that the risk of greater injury and therefore greater damage represented by the rush hour traffic gave rise to a duty in the tug owner to be responsible for the navigation of its tugs when approaching and passing under the Fraser Street Bridge so that the negligence of the tug master in failing to gauge accurately the clearance under the Bridge was attributable to the alleged fault of the owner in not exercising closer supervision and direction of the navigation of the tug.
As I understand the contention urged on behalf of the appellants, it is that the tug owner is disentitled to the protection of the limitation of liability provisions of the Canada Shipping Act, supra, because the greater potential damage involved in negligent navigation of a tug during the rush hour involves the tug owner itself in a responsibility for navigation. I am, however, of the opinion that any such further extension of the Paris case would nullify the effect of the limitation of liability provisions which find their origin in the earliest days of maritime law and are expressly designed for the purpose of encouraging shipping and affording protection to ship owners against bearing the full impact of heavy and perhaps crippling pecuniary damage sustained by reason of the negligent navigation of their ships on the part of their servants or agents. (See Marsden’s Collisions at Sea, 11th ed., page 170 et seq.)
The statute provides that the owner is entitled to limit its liability whenever the loss or damage is caused by the act or omission of any person in the navigation of the ship and there can be little doubt that if an experienced master like Forsyth had made an error which resulted in a collision with another ship or with a pier, the owner would have been entitled to benefit by the statutory provisions. I fail to see why the owner should be deprived of the protection of this statute because in the circumstances of this case, negligent navigation by the master might result in unusually great damage being done. If this were the test it would in my view serve in great measure to defeat the whole intent and purpose of the statute.
The Paris case, is however, clearly distinguishable on another ground. In that case it had not been the practice of the employers to supply goggles for those employed on the maintenance and repair of vehicles and it appears that the weight of evidence was to the effect that it was not usual for other employers to supply goggles under these circumstances. In the course of his reasons for judgment Lord Normand said, at page 382:
The kind of evidence necessary to establish neglect of a proper precaution was considered in Morton v. William Dixon Ld. 1909 S.C. 807 by Lord President Dunedin. That was an action by a miner against his employers alleging negligence in failing to take precautions against the fall of coal from the top of the shaft into the space between the side of the shaft and the edge of the cage. It was, of course, a Scotch case, but in my opinion there is no difference between the law of Scotland and the law of England on this point. The Lord President said:
Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.
The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.
Here there was no proof that other tug owners ever took the precaution of using the northern channel when their tugmasters were satisfied by using the “plank count” method that there was sufficient clearance at the Fraser Street Bridge, and there is, in my opinion, nothing in the evidence to indicate that under such circumstances the precaution was one which “the reasonable and prudent man would think so obvious that it was folly to omit it.” In this regard I adopt as applicable to the circumstances here disclosed the language used by Lord Normand when he char- acterized Lord Dunedin’s decision in the Morton case, supra, as containing “an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances.”
It should be mentioned that the appellant also contended that the limitation of liability sections of the Canada Shipping Act d