R. v. Nord-Deutsche Versicherungs-Gesellschaft

R. v. Nord-Deutsche Versicherungs-Gesellschaft
Collection
Supreme Court Judgments
Date
1971-04-27
Report
[1971] SCR 849
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Ritchie, Roland Almon; Hall, Emmett Matthew; Pigeon, Louis-Philippe
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
R. v. Nord-Deutsche Versicherungs-Gesellschaft, [1971] S.C.R. 849
Date: 1971-04-27
Her Majesty The Queen (Respondent) Appellant;
and
Nord-Deutsche Versicherungs-Gesellschaft, United Kingdom Mutual Steam Ship Assurance Limited and Fischer Bearings Manufacturing Limited (Suppliants) Respondents;
and
Koninklijke Nederlandsche Stoomboot-Maatschappij N.V. (The Royal Netherlands Steamship Company) (Third Party Defendant) Respondent.
1970: May 5, 6, 7, 8, 11; 1971: April 27.
Present: Fauteux C.J. and Abbott, Ritchie, Hall and Pigeon JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Shipping—Crown—Collision—Displacement of range light—Misalignment—Liability of Crown—Bank suction—Speed—Contributory negligence—Joint and several liability—Apportionment of damages—Claim by ship owner’s assignee—Claim by cargo owners—Limitation of liability—Allowance of interest—Crown Liability Act, 1952-53 (Can.), c. 30—Canada Shipping Act, R.S.C. 1952, c. 29—Civil Code, art. 1056, 1106, 1112, 1117.
As a result of a collision at the Yamachiche bend in Lake St. Peter between the upbound Transatlantic and the downbound Hermes on April 10, 1965, the Transatlantic caught fire and sank. Immediately before the collision, both ships were proceeding at full manoeuvering speed, the Hermes at 15 knots and the Transatlantic at 12. As a downbound ship approaches the anchorage area at the Yamachiche bend, it has available as an aid to navigation the range lights which are known as the Rivière du Loup lights astern, but after entering the broader waters, the ship comes to a point where the Pointe du Lac range lights are visible ahead, and it is the accepted practice to negotiate the bend by changing course so as to line up with these latter lights. It was just after the Hermes had made this turn and was lined up on the Pointe du Lac range lights that the collision occurred. The lower range light of Pointe du Lac had shifted over the years so that at the time in question it was some 40 feet to the south of its original position, with the result that the line indicated by the lights was some 230 feet south of mid-channel. This factor exposed down-bound ships to the risk of coming dangerously close to the south bank of the channel. Due to bank suction, the Hermes sheered to port. The trial judge was of the opinion that the reason for the Hermes being brought so far to the south as to be subject to bank suction was the fact that her pilot relied, as he was entitled to, upon the position of the Pointe du Lac range lights as indicating a safe passage through the narrow area of deep water as he entered the cut at the east end of the anchorage. It was held that the misalignment of these lights was therefore the sole cause of the collision. The Crown contended that the pilot of the Hermes should have known that the range lights which had to his knowledge been out of line in 1964 could not be relied upon to ensure a safe passing of the approaching vessel.
Held (Pigeon J. dissenting in part): The appeal should be allowed. The liability should be apportioned 50 per cent against the Crown, 30 per cent against those responsible for the Hermes and 20 per cent for those responsible for the Transatlantic.
Per Fauteux C.J. and Abbott, Ritchie and Hall JJ.: A reasonably careful and cautious pilot faced with the conditions which confronted the pilot of the Hermes before he left the anchorage area would have reduced speed or stopped so as to ensure that he would meet the upbound vessel in the wide part of the channel. He was guilty of negligence which contributed to the collision in continuing at full speed into the narrower waters without being sure of the accuracy of the range lights or the position of the Transatlantic in the channel.
The pilot of the Transatlantic was also negligent. To travel under the conditions existing on the day in question through comparatively narrow waters at full manoeuvering speed when it was apparent that there was an approaching ship already in difficulty, was a breach of the duty which a careful and prudent pilot owes to others who are using the waters in which he is navigating. A major share of the blame for the collision should be borne by the Crown because there was a breach of duty on the part of the servants of the Crown responsible for the care and maintenance of the range lights at Pointe du Lac and Rivière du Loup upon which lights mariners were entitled to place reliance. The Crown is not entitled to limit its liability under the provisions of the Canada Shipping Act.
Per Pigeon J., dissenting in part: In view of the fact that the seriously defective condition of the range lights persisted throughout the preceding year, without anything being done about it, the trial judge was fully justified in finding as he did that there had been a failure in the performance of duties owed to the public by a servant of the Crown, and that this was a cause of the accident. However, some other faults contributing to the accident were committed by those on board the two ships. The fact that the Transatlantic was not on her side of the channel was, of itself, prima facie evidence of a fault in navigation because it was a breach of a clear duty which was not excused by the defective condition of the range lights. Navigators are not entitled to rely on these lights exclusively. The evidence was quite decisive as to the imprudence of the Hermes in attempting to meet at full speed an incoming ship in the channel, close to the end of the anchorage, without any means of ascertaining the location of the submerged bank other than distant range lights that were known to be to a certain extent inaccurate. The Crown’s counterclaim for limitation of liability was properly dismissed.
The contention that if this Court found common fault chargeable to the Crown and to the Hermes, the suppliants should not be entitled to recover from the Crown for the Hermes share of responsibility because that share is subject to the possibility of limitation of liability, should be rejected. The limitation of liability is a purely personal exception within the meaning of art. 1112 of the Civil Code, Therefore, the limitation of liability which the owner of the Hermes may be entitled to cannot be invoked by the Crown against the suppliants. Under art. 1117 of the Civil Code, the Crown in entitled to claim from the Hermes an amount equal to the latter’s share of their joint and several obligation.
Because this is a claim governed by the Civil Code the admiralty rule of s. 648 of the Canada Shipping Act is not applicable to the claim of the cargo owners. They are entitled to recover in full from the Crown. However the Crown is entitled by reason of the fault for which the Transatlantic is liable, to set off against the share of the ship owner in the total damages recoverable by its assignees, 20 per cent of the whole damages including the loss of the cargo. For this reason, the recovery from the Hermes ought to be defined as three eighths of the condemnation including interest and cost, subject to limitation of liability.
Interest of 5 per cent on the amount recoverable should be allowed from the date of the filing of the petition of right. Article 1056c of the Civil Code is properly applicable to a claim against the Crown by virtue of the Crown Liability Act.
APPEAL from a judgment of Noël J. of the Exchequer Court of Canada[1], in which the Crown was held liable for a collision between two ships in the St. Lawrence River. Appeal allowed, Pigeon J. dissenting in part.
Jules Deschênes, Q.C., P.M. Ollivier, Q.C., P.M. Troop, Q.C., and B.M. Deschênes, Q.C., for the appelant.
F.O. Gerity, Q.C., A.S. Hyndman, Q.C., Jean Brisset, Q.C., and P.C. Cathcart, for the respondents.
The judgment of Fauteux C.J. and of Abbott, Ritchie and Hall JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Exchequer Court of Canada1 whereby it was found that the displacement of the Pointe du Lac front range light plus the misalignment of the Riviere du Loup range lights was the sole cause of a collision which took place at the Yamachiche Bend in Lake St. Peter between the upbound M/V Transatlantic and the downbound M/V Hermes in the early morning of April 10, 1965, as a result of which the Transatlantic caught fire and sank. The reasons for judgment of the Exchequer Court, rendered by Mr. Justice Noël, are reported in [1969] 1 Ex. C.R. at pages 117 to 240, and I would adopt the following findings of fact which are to be found in those reasons:
1. That at the time of the collision it was a fine day with maximum visibility, little or no wind and virtually no ice of any consequence in Lake St. Peter (page 123).
2. There were a few winter buoys on the north side of the channel between Riviere du Loup and Yamachiche Bend. There were no buoys on the south side of the channel. (page 123).
3. The collision occurred at 0628 hours and about two cables down River from the eastern end of Yamachiche Bend. (page 126).
4. The southerly displacement of the Pointe du Lac front light had reached 25 to 30 feet by the year 1964 and it is not unreasonable to assume that the actual movement by the time of the accident was some 40 feet. (page 135).
5. The pilot of the Hermes knew that in 1964 the line up of the lights of Point du Lac did not take a vessel along the center of the channel but somewhat south thereof. (p. 149).
6. Immediately before the collision both vessels were proceeding at full manoeuvring speed, the Hermes at 15 knots and the Transatlantic at some 12 knots. (page 125).
The stretch of water known as Lake St. Peter is a portion of the St. Lawrence River 6 miles in width, running from southwest to northeast for a distance of some 14 miles through which a ship channel has been dredged to a minimum depth of 35 feet. This channel is 550 feet in width but at the Yamachiche Bend there is an anchorage area where the minimum depth of 35 feet extends over a width of 2000 feet. As a downbound ship approaches the anchorage area it has available as an aid to navigation the range lights which are known as the Riviere du Loup lights astern, but after entering the broader waters, such a ship comes to a point where the Pointe du Lac range lights are visible ahead, and it is the accepted practice to negotiate the Bend by changing course so as to line up with these latter lights. As the Bend is negotiated, the channel reverts to a width of 550 feet and the Pointe du Lac range lights are intended to indicate the center line of this channel. Although in the summer time there is a buoy placed on the southward side of the channel so as to indicate this turning point, there were no buoys on the southern side of the channel at the time of this accident. It was just after the Hermes had made this turn and was lined up on the Point du Lac range lights that the collision occurred.
The two ships came together at 0628 hours of the early morning of the 10th of April, 1965, in broad daylight when the weather was clear, and it is conceded that the lower range light of Pointe du Lac had shifted over the years so that at the time in question it was some 40 feet to the south of its original position, with the result that the line indicated by the lights was some 230 feet south of mid-channel. I agree with the learned trial judge that this factor exposed downbound vessels to the risk of coming dangerously close to the south bank of the channel, and that the collision would probably not have occurred if the light had been in place. This, however, is far from saying that the misalignment of the range light was the sole cause of the accident.
I think it desirable at this stage to indicate the various interests represented in this litigation and in so doing I am greatly assisted by the synopsis prepared by the learned trial judge at pages 119 to 123 of his judgment.
The suppliant, Nord-Deutsche Versicherungs-Gesellschaft, is a hull and machinery underwriter acting herein on its own behalf and also on behalf of all those underwriters concerned or having an interest in certain policies of insurance covering hull and machinery, crew’s personal effects and radar and wireless equipment. The United Kingdom Mutual Steam Ship Assurance Association Limited is the protection and indemnity club in which the Transatlantic was entered at the time of the accident. The third suppliant, Fischer Bearings Manufacturing Limited, is acting on its own behalf as a consignee of cargo on board the Transatlantic and also on behalf of all those interested in the cargo. The respondent, Her Majesty the Queen, contested the petition and instituted third party proceedings against the Royal Netherland Steamship Company, the owner of the Hermes, in which latter proceedings the statement of claim alleged that the collision between the two vessels had been caused by the fault and negligence of the third party and its servants, officers and pilot aboard the Hermes. By this proceeding the Crown asks that the third party be condemned to indemnify it for any damage it might be condemned to pay by the judgment to be rendered in the action between it and those representing the Transatlantic interests.
The Crown and the Royal Netherlands Steamship Company both claim to be entitled to limit their liability pursuant to different sections of the Canada Shipping Act.
The Hermes had spent the previous night at Sorel and had left at approximately 5:16 a.m. bound for the open sea, whereas the Transatlantic, having berthed at Trois Rivieres on the previous night, had left at about 5:05 a.m. on its route up the River to Montreal. The two ships were of much the same size. The Hermes was 420 feet in length, 57.6 feet in width with a gross tonnage of 5,708 tons and a net tonnage of 3,154 tons. She was partly laden with a general cargo of 2,500 tons and was drawing 16.7 feet forward and 20 feet aft.
The Transatlantic was 407 feet in length with a mean draft of 19 feet and a width of 54 feet. Her tonnage was 5,521 tons gross and 3,215 tons net.
The course followed by the Hermes while in Lake St. Peter is described by the learned trial judge in the following summary at page 124:
At 0535 hours, the lower light of the Ile de Grace leading lights was brought abeam on the port hand and shortly thereafter the HERMES entered Lake St. Peter; at 0610 hours, the light pier in the centre of no. 2 curve in Lake St. Peter was brought abeam on the port hand, the bearing being taken on the centre light. The HERMES had up to this point guided herself along this course by means of the leading lights known as Riviere du Loup range lights, situated at curve no. 2. …These ranges were used to lead the HERMES down to curve no. 2 by keep- ing the vessel in line with them and once these ranges were reached, the same front range lights with a different back light, however, were used to guide it further down and beyond this point (by keeping them in line directly astern of the vessel) towards a point in the channel called Yamachiche bend where, at some point in the middle of the bend, other range lights, the Pointe du Lac lights, were available and made use of. Immediately after reaching the curve and whilst steering on the Riviere du Loup downbound ranges, the HERMES successively met and passed three inward bound vessels (the MONTCALM, the LUNDEFJELL and the THORSRIVER) about half a mile to two miles apart from each other without incident; there was no reduction of speed and the ships were passed port to port at a normal and safe meeting distance.
The learned trial judge proceeded to trace the course followed by the Hermes after lining up with the Pointe du Lac leading beacons and he stated, at pages 124 and 125, as follows:
…when the vessel had been steadied on her new course, she then made use of what the pilot and her officers considered as the only reliable aid to navigation at that point, namely, the range lights at the lower end of the course known as the Pointe du Lac range lights situated some five miles from Yamachiche bend. The chart on board the HERMES at the time …showed that when the Pointe du Lac range lights came in line, they were intended to show a bearing of 056 degrees 13 minutes and indicate the centre line of the channel.
Having brought herself into position with the two range lights, the HERMES proceeded down-stream with the M/V TRANSATLANTIC coming upstream some short distance away. Both vessels were proceeding at full manoeuvring speed, the HERMES at 15 knots and the TRANSATLANTIC at some 12 knots. The M/V TRANSATLANTIC at this time was also making use of the Pointe du Lac range lights but had them astern instead of having them in front as the HERMES.
Both vessels were anticipating a normal port to port meeting, but as the learned trial judge further explains at page 125:
Very shortly after, and at a time when the vessels were about three ship lengths apart and still shaping courses to pass safely and all clear port to port, the head of the HERMES swung to port and despite instant corrective starboard helm actions, as observed by the position of the indicators and the fact that the engine was put full speed astern, the head of the HERMES still continued to swing rapidly to port. To those on the TRANSATLANTIC, this turn to port became increasingly fast until it became obvious that the HERMES was out of control and was sheering across the channel and that a collision was inevitable.
A great deal of evidence was called to prove that the violent sheer to port by the Hermes which was the immediate cause of the collision was occasioned by her having been brought too close to the south shore of the channel and having thus been exposed to a phenomenon described as bank suction which occurs when, because of a ship’s proximity to a channel bank, its stern is drawn closer to the bank and the bow thus moves away from it. The force of this suction is described by Captain Goulet, who has had long experience on the St. Lawrence River, as being proportionate to the speed of the vessel and the proximity of the bank so that the closer the ship is to the bank and the greater her speed, the more suction is felt and the more difficult the vessel is to control. In my opinion the Hermes was brought so close to the south shore of the channel that she did become a prey to the forces induced by bank suction which caused her bow to be thrust to port out of control of her rudder and engines and it was the sheer to port so induced which was the immediate cause of the collision with the upbound Transatlantic.
The learned trial judge was of opinion that the reason for the Hermes being brought so far to the south as to be subject to bank suction was the fact that her pilot was entitled to rely and did rely upon the position of the Pointe du Lac range lights as giving him a safe passage through the narrow area of deep water as he entered the cut at the east end of the anchorage and that the misalignment of these lights was therefore the sole cause of the collision.
The appellant, however, contends that the pilot of the Hermes should have known that the range lights which had to his knowledge been out of line in 1964 could not be relied upon to ensure a safe passing of the approaching vessel.
As I have indicated, the fact was that in 1964 the lower light of the Pointe du Lac range lights had shifted from 25 to 35 feet to the southward and in this regard pilot Belisle of the Hermes testified:
[TRANSLATION] It was known that the lights were a little to the south of the center of that area.
After having made the turn so as to line up with the Pointe du Lac lights, pilot Belisle, who had just negotiated a difficult bend, was faced with an upbound ocean going vessel almost immediately ahead of him which was also travelling at its full speed (12 knots). The situation at this time was that the pilot knew that by following the range lights he would be put somewhat to the south of the center line of the channel and he appears to have taken it for granted that the approaching vessel was on the northern side. As a matter of fact, as will hereafter appear, the Transatlantic was slightly to the south of the center line, but this was not appreciated on board the Hermes. I think that it must be accepted that pilot Belisle did not know where his ship was in the channel when he entered the cut at the east end of the anchorage, and it is also apparent that he did not know where the Transatlantic was in relation to the banks of the channel. Under these circumstances pilot Belisle does not appear to have sought any means of determining the position with more accuracy but was content to rely upon the range lights without reducing speed.
As I have indicated, at the time of the accident there were spar buoys placed on the northern side of the channel and according to the evidence of the pilot Vallee of the Transatlantic, he had inquired from the signal service and been advised that these buoys had been checked the day before. In my opinion, having regard to the provisions of s. 10(4) of the Pilotage Regulations, pilot Belisle should have been in the possession of the same information. The section in question reads:
10. (4) Every pilot shall, before his departure to pilot any vessel, comply with any standing orders made by the Supervisor and shall obtain from the pilotage office information as to the state of the buoys, beacons and channels in the District.
Belisle did not make any inquiries but acted on the assumption that the buoys were not a reliable guide in winter time. The learned trial judge expressed the view that neither of the vessels would have been justified in placing any reliance on the spar buoys having regard to the notice to mariners issued by the Director of Marine Works of the Department of Transport on the 13th of November 1964 and numbered 932 which reads:
Commercial shipping using the St. Lawrence River Ship Channel between Montreal and Quebec is hereby warned that floating aids to navigation cannot be depended upon after November 30 owing to possible ice conditions
and Mr. Justice Noël, speaking of the fact that the Transatlantic was in a better position to use the northerly buoys than the Hermes, said at page 162:
…they were also subject to the admonition of November 13, 1965, (this should obviously read 1964) issued by respondent that they should not rely on them during winter navigation, but use instead fixed aids, such as the range lights of Pointe du Lac. Having regard to this advice, the use of these lights in the same manner as they had been using them in 1964 and without any reason to anticipate that circumstances had changed in the meantime, was not, in my opinion, negligence, and cannot be regarded as a cause of the collision.
With the greatest respect, it appears to me that the learned trial judge has very substantially overstated the terms of the notice to mariners (No. 932) which is reproduced at page 127 of his judgment in the form in which it appears in paragraph 14 of the suppliants’ petition. The notice makes no reference to the use of the range lights of Pointe du Lac and in my opinion, in the present case, as the northern spar buoys were in place, it would have been prudent to make use of them.
In my opinion a reasonably careful and cautious pilot faced with the conditions which confronted Belisle before he left the anchorage area would have reduced speed or stopped so as to ensure that he would meet the upbound vessel in the wider part of the channel and I think that he was guilty of negligence which contributed to the collision in continuing at full speed into the narrower waters without being sure of the accuracy of the range lights or the position of the Transatlantic in the channel. In this regard, pilot Belisle gave the following somewhat extraordinary evidence:
[TRANSLATION] Q. On April tenth (10th), did you consider the possibility of meeting the TRANSATLANTIC in the anchorage, when you saw it some distance away?
A. Oh yes, if I were going to meet it, it would be in the anchorage, I was the down bound ship, “le bateau descendant”.
Q. Did you consider this possibility, of meeting it in the anchorage?
A. No, perhaps I might have done so, but I did not consider the danger that might be involved.
It appears to me to be obvious that pilot Belisle must have known that he was going to have to meet the Transatlantic and his answers appear to indicate that he appreciated the desirability of waiting in the anchorage.
It is said on behalf of the Hermes that on her way down from Sorel to the anchorage area she had passed three vessels in safety and that she had passed other vessels below the anchorage in reliance on the Pointe du Lac range lights as they existed in 1964. I do not think that any of these arguments is sufficient to justify the course taken by the Hermes in advancing towards a position of potential danger at full speed and without having ascertained with certainty its position in the channel. The finding of the learned trial judge that there was no negligence on the part of the Hermes is expressed in his reasons for judgment at page 154 in the following terms:
The navigators of the HERMES (and in particular the master and officers) however, had no way of knowing at the time, and there is no reason why they should have apprehended that they were being led astray by the range lights into an area in proximity to the bank (the latter being covered with water and not perceptible in any manner) where there was danger of bank effect. Under these circumstances, it is difficult to see how they can be faulted for the speed at which their vessel was operated at the time (15 knots) even if such speed would increase the unforseeable bank effect on their vessel. Had the HERMES been on the course on which the lights would have guided her in 1964, as the pilot was entitled to assume that she was, with the ranges in line, there was no imprudence in entering the cut at the east end of the anchorage at full manoeuvering speed and there would have been no accident had this been the case.
In my view the actions of the Hermes is not to be judged in terms of the knowledge of her master and officers. Belisle, a pilot with long experience in the St. Lawrence River, was operating in broad daylight under conditions of perfect visibility and could have made use of the spar buoys on the north side of the channel in order to assist him in determining how far south of the center line his ship was heading. After careful consideration of all the circumstances, I am satisfied for the reasons which I have indicated, that the actions taken and the course followed by pilot Belisle amounted to negligence and that this negligence contributed to the collision.
The learned trial judge notes that the experienced assessor who sat with him at the trial agrees that “there was no imprudence in entering the cut… at full manoeuvring speed…” but it is worth observing the trial judge’s comment on the assessor’s opinion where he reports at page 154 that:
He added, however, that after listening to the evidence in this case, he thought it would be a good thing for the authorities to regulate the speed of vessels during winter navigation in this channel.
In my view it would not only be “a good thing for the authorities to regulate the speed of vessels” under the circumstances here disclosed, but it would have been the prudent thing for pilot Belisle to so regulate the speed of the Hermes as he left the Yamachiche anchorage on the day in question.
The pilot of the M/V Transatlantic stated that at a distance of 3 miles he noticed that the Hermes was acting strangely. At this time the Hermes was still in the anchorage and the learned trial judge found that she had been led somewhat to the south of her proper course because of the displacement of the Riviere du Loup lights. He did not, however, think that her movements had been as strange as those described by the Transatlantic pilot. In any event, the Transatlantic did nothing to reduce speed or otherwise prepare for potential difficulty and by the time she was 1/2 to 3/4 of a mile away it was apparent that the Hermes was in real difficulty and that she was making her turn into the cut more suddenly than she should have done. This pilot stated that he was being guided by the northerly buoys which he knew to be in place, but I am nevertheless in agreement with the learned trial judge that as the two vessels approached each other, the Transatlantic was not on the northern side of the channel but probably on the center part or even somewhat to the south thereof and it follows that I agree with the finding that she was not as close to the north buoys as her pilot said she was. The learned trial judge attributes her position to the misalignment of the range lights, but it seems to me to be clear from the pilots’ own evidence, that he had ample opportunity to rely upon the buoys which he knew to be in place.
To travel under the conditions existing on the day in question through comparatively narrow waters at full manoeuvring speed when it was apparent that there was an approaching ship which was already in difficulty, appears to me to have been a breach of the duty which a careful and prudent pilot owes to others who are using the waters in which he is navigating. In this regard, it appears to me to be helpful to refer to s. 12 of the St. Lawrence River Regulations which stipulates that:
A vessel navigating against the current or tide shall before meeting another vessel at any sharp turn or narrow passage, or where the navigation is intricate, stop, and if necessary, come to a position of safety below or above the point of danger and there remain until the channel is clear.
The pilot of the Transatlantic was navigating against the current and should have realized before the Hermes left the anchorage area that he was going to be faced with a situation where navigation would be intricate. If he had complied with section 12 of the Regulations when he first saw the difficulties of the Hermes, it is quite possible that the accident would never have taken place. As I have indicated, the initial cause of this collision was the misplacement of the Point du Lac range light, but the collision, in my opinion, became inevitable when the two ships continued to approach each other at full speed under the circumstances which I have outlined. There is considerable evidence concerning the action taken by both ships after the Hermes entered the narrower waters and started to be affected by bank suction. In my view at this stage the collision was inevitable and if it was an error in judgment of the Hermes to put her engines full astern, it was an error made in the most stringent circumstances and in the hope of avoiding imminent disaster.
In my opinion a major share of the blame for this collision should be borne by the appellant because, for the reasons stated by the learned trial judge, I am of opinion that there was a breach of duty on the part of servants of the Crown responsible for the care and maintenance of the range lights at Pointe du Lac and Riviere du Loup upon which lights mariners were entitled to place reliance. I agree with the learned trial judge that the evidence supports the finding of liability on the part of the Crown such as was found to exist in the case of Grossman v. The King[2], and I further agree that for the reasons which he has stated, the Crown is not entitled to limit its liability under the provisions of the Canada Shipping Act, R.S.C. 1952, c. 29, s. 660.
The liability to make good the damage occasioned by this collision should be borne 50 per cent by the appellant, 30 per cent by those responsible for the navigation of the M/V Hermes, and 20 per cent by those responsible for the M/V Transatlantic.
As I see no reason to disturb the findings of fact made by the learned trial judge to the effect that the capsizing of the Transatlantic on the evening of the 10th of April was not a natural and direct consequence of the collision which had taken place 12 hours earlier, I would dismiss the cross appeal of the respondent United Kingdom Mutual Steam Ship Assurance Limited.
No blame attaches to those interested in the cargo who are entitled to recover 100 per cent of their damages. As the obligation to the cargo owners’ representatives arises from the common fault of the appellant and the two ships concerned, the provisions of art. 1106 C.C. must govern. That article reads:
1106. The obligation arising from the common offence or quasi-offence of two or more persons is joint and several.
In the result, the suppliants, other than Fischer Bearings Manufacturing Limited, which represents the cargo interests, will recover 80 per cent of their damages from the appellant. Fischer Bearings Manufacturing Limited, however, recovers 100 per cent of its damages from the appellant, but the appellant is entitled to recover 20 per cent of such amount from the representatives of the owners of the Transatlantic.
Subject to the disposition which may hereafter be made of the third party’s counter-claim for limitation of liability, the appellant is entitled to recover from the third party 30 per cent of the total damages sustained by those on whose behalf claim has been made by the suppliants.
The damages should bear interest at the rate of 5 per cent from the day of the deposit of the Petition of Right in accordance with the provisions of art. 1056c C.C., s. 3(1)(a) and 2(d) of the Crown Liability Act, 1952-53 (Can.), c. 30 and s. 3 of the Interest Act, R.S.C. 1952, c. 156. In this regard I agree with the careful reasoning of the learned trial judge at pages 232 to 240 of his reasons for judgment.
The appeal should be allowed and the judgment of the Exchequer Court varied by replacing para. 1 and 2 by the following:
1. The suppliant’s Petition of Right is maintained with costs and the suppliants, other than Fischer Bearings Manufacturing Limited, declared entitled to 80 per cent of whatever damages may be assessed from the respondent; the suppliant Fischer Bearings Manufacturing Limited is entitled to the full amount of its damages from the respondent and the latter is entitled to deduct 20 per cent of such amount from the other suppliants, representing the owners of the Transatlantic, with interest on the net amounts at the rate of 5 per cent per annum from the date of the deposit of the Petition of Right.
2. The third party proceedings taken by respondent against the third party defendant are maintained with costs and the respondent is entitled to recover from the defendant thirty per cent of the total damages sustained by those on whose behalf claim has been made by the suppliants, including a proper proportion of interest and costs, subject to whatever order may be made on the third party defendant’s counter-claim for limitation of liability.
The case should be referred back to the Exchequer Court for the disposition of the counterclaim by the third party defendant and the assessment of the suppliants’ damages.
The appellant having achieved substantial success in this appeal will have its costs in this Court against the respondents other than Fischer Bearings Manufacturing Limited which is entitled to its costs throughout and I would not disturb the order as to costs in the Exchequer Court in respect of the other suppliants. The Crown will have its costs against the third party throughout.
PIGEON J. (dissenting in part)—On April 10, 1965, shortly after 5.00 a.m., the M.V. Transatlantic and the M.V. Hermes went on their way in the St. Lawrence River. The ice was not completely gone and, under the rules governing winter navigation, sailing was not permitted in the darkness. The Transatlantic upbound had put in at Trois-Rivières, the Hermes downbound, at Sorel. The two ships were therefore due to meet in Lake St. Peter. It was a fine day with perfect visibility, practically no wind and virtually no ice floes in the lake.
The two ships were of almost equal size. The Transatlantic was 407 feet long, 54 feet wide, drawing 19 feet and bearing 5,521 tons gross. The Hermes was 420 feet long, 57.7 wide, drawing as partly loaded 16.7 feet forward and 20 feet aft, her gross tonnage was 5,708 tons. Both were proceeding at full manoeuvering speed i.e. about 12 knots for the Transatlantic, 15 knots for the Hermes.
Lake St. Peter is a stretch of the River St. Lawrence some 6 miles wide and 14 miles long, running from south-west to north-east. The natural depth is only about 10 feet but a ship channel has been dredged to a minimum of 35 feet. There are several bends one of which, a little below the middle of the lake, is known as the Yamachiche bend. The channel was at the time 550 feet wide, but, on the south side of the Yamachiche bend, a wide anchorage had been dredged extending the width to some 2,000 feet over something like a mile. At that point, a down bound ship comes guided by what is known as the Rivière du Loup Range from curve no. 2 above until she reaches, more than half way down the wide anchorage, the intersection of the Point du Lac Range. This is a very long range that was then marked by a rear light on shore and a front light on a crib built for that purpose in the lake outside the channel more than a mile off shore. There were some winter buoys, spar buoys, marking the north side of the channel. The southern side was unmarked.
The Hermes went past the lower end of the anchorage while the Transatlantic was getting close. It was soon apparent when the latter was only three ship lengths away, that the Hermes was sheering to port. It is not now disputed that this was due to bank suction. The sheering could not be counteracted by helm action. The engine was reversed while the Transatlantic was veering to starboard. A collision occurred about three ship lengths below the end of the anchorage. As a re- sult, the Transatlantic took fire. This could not be extinguished, the ship was abandoned and ultimately capsized and sank a little lower down in the channel.
Proceedings were instituted by petition of right under the Crown Liability Act in the Exchequer Court[3]. The three suppliants were:
1. Nord-Deutsche Versicherungs-Gesellschaft (“Nord-Deutsche”), a hull and machinery insurer representing all the underwriters or others interested in various policies covering the Transatlantic;
2. United Kingdom Mutual Steam Ship Assurance Association Limited (“United Kingdom Association”), the Protection and Indemnity Club in which the Transatlantic was entered;
3. Fischer Bearings Manufacturing Limited (“Fischer Bearings”), a consignee of cargo on board the Transatlantic representing all those interested in the cargo.
The basis of the claim against the Crown is that the crib on which the lower light of the Pointe du Lac range stood had shifted from its original position to such an extent that, at the date of the collision, the range, instead of leading ships in mid-channel, led them dangerously close to the submerged south bank of the channel at the lower end of the anchorage area. On behalf of the Crown, it was contended that the collision was due to the fault of both ships involved and, in addition to a statement of defence giving particulars of such faults, third party proceedings were instituted claiming indemnity from the owner of the Hermes, Koninklijke Nederlandsche Stoomboot-Maatschappij N.V. (The Royal Netherlands Steamship Co.). The latter filed, in addition to a defence, a counter-claim for limitation of liability. Subsequently, a counter-claim for limitation of liability was also filed on behalf of