Doman Forest Products Ltd. v. Arctic Hooper (Ship)

Doman Forest Products Ltd. v. Arctic Hooper (Ship)
Court (s) Database
Federal Court Decisions
Date
2003-06-13
Neutral citation
2003 FCT 712
File numbers
T-1949-99
Decision Content
ADMIRALTY ACTION IN REM
Date: 20030613
Docket: T-1949-99
Citation: 2003 FCT 712
Ottawa, Ontario, this 13th day of June, 2003
BEFORE: The Honourable Madam Justice Heneghan
BETWEEN:
SEA-LINK MARINE SERVICES LTD.
UNION TUG AND BARGE LTD. and
The owners and all others interested in the ships
"ARCTIC HOOPER" & "SEA-LINK YARDER"
Plaintiffs by Counterclaim
and
DOMAN FOREST PRODUCTS LIMITED
Defendant by Counterclaim
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] In the early hours of November 14, 1998, the tug "ARCTIC HOOPER", together with the barge "SEA-LINK YARDER", departed Tahsis, British Columbia, enroute for Nanaimo. The barge was laden with approximately 1.9 million foot board measure ("FBM") of lumber in 1441 packages. Between 0200 and 0315 hours on November 15, 1998, the cargo shifted. A quantity of cargo was lost and damaged and damage resulted to the barge. This action relates only to the damage to the barge, that is, the counterclaim. A notice of discontinuance was filed on November 28, 2002, relative to the main action commenced by Doman.
FACTS
i) The Parties
[2] Sea-Link Marine Services Ltd. ("Sea-Link"), the Plaintiff by counterclaim, is a corporation carrying on business at New Westminster, British Columbia. At all material times, it was the owner and operator of the barge "SEA-LINK YARDER" and the charterer of the tug "ARCTIC HOOPER".
[3] The Plaintiff by counterclaim Union Tug and Barge Ltd. ("Union") is a corporation carrying on business at New Westminster, British Columbia and at all material times, was the owner of the "ARCTIC HOOPER".
[4] The "SEA-LINK YARDER" is a barge of 285.29 feet in length and 2390.099 gross tons. It is registered under the Canada Shipping Act, R.S.C. 1985, c. S-9, at the Port of Vancouver, official number 189999.
[5] The "ARCTIC HOOPER" is a tug of 102.1 feet in length and 394.489 gross tons. It is registered under the Canada Shipping Act, at the Port of Edmonton, official number 368382.
[6] The Defendant by counterclaim, Doman Forest Products Limited ("Doman") is a corporation carrying on business as a manufacturer and vendor of lumber products. Through an associated company it owns a lumber mill at Tahsis, British Columbia.
ii) Background
[7] In the summer and early fall of 1998, Doman and Sea-Link entered into discussions about the transportation of lumber products by Sea-Link from Tahsis to Nanaimo. These discussions resulted in an agreement between the parties, as set out in a facsimile letter dated October 29, 1998 from Sea-Link to Doman. Pursuant to that agreement, the first load carried by Sea-Link was loaded on board the barge "SEA-LINK YARDER" on November 5 and 6, 1998. That cargo was discharged at Tahsis on November 8 and 9, 1998, without incident. This first load consisted of 1.78 million FBM of lumber in 1440 packages.
[8] The second cargo, consisting of 1.9 million FBM in 1441 packages, was loaded at Tahsis on November 12 and 13, 1998. The cargo consisted of green hemlock and douglas fir. The tug and tow departed Tahsis at 0022 hours on the morning of November 14, 1998.
[9] The cargo shifted some time between 0200 and 0315 hours on November 15, 1998, and the barge was damaged. Following the cargo shift, the tug and tow put into Port Renfrew where the tipping tanks of the barge were flooded to correct the starboard list. The tug and tow then proceeded to Nanaimo, arriving at 0853 hours on November 16, 1998. A survey conducted after arrival found that approximately 130 packages of lumber had been lost.
[10] The parties have agreed on the damages claimed by Sea-Link in the following amounts, in Canadian dollars:
a) Employee expenses $ 5,809.87
b) Materials and rentals 17,840.20
c) Repairs 101,014.66
d) Survey fees 8,076.50
TOTAL $132,741.23
The parties have also agreed that pre-judgment interest should accrue at 4% per annum.
[11] The parties have not agreed on the claim in the amount of $16,000.00 for loss of use of the barge while it was undergoing repairs.
iii) The Witnesses
[12] Sea-Link called Captain Kenneth Hemeon, Master of the tug, Mr. Peter Brown, a principal in the Sea-Link Group of Companies that includes both Sea-Link Marine Services Ltd. and Union Tug and Barge and Mr. Paul Hilder, Operations Manager for Sea-Link. As well, Sea-Link adopted as part of its evidence, pursuant to the Federal Court Rules, 1998, SOR/98-106, certain questions and answers from the evidence of Mr. Chris Calverley and Mr. Orval Forgaard given at discovery examinations conducted on September 29, 2001 and June 27, 2001, respectively. Mr. Michael Fothergill, a Master Mariner and Mr. Jim Lindsay, Marine Surveyor, were called to provide expert opinion evidence as to the cause of the cargo loss and barge damage.
[13] Doman, the Defendant by Counterclaim, adduced evidence from its employees Mr. Chris Calverley, Lumber and Shipping Coordinator and Mr. Orval Forgaard, Yard Foreman and Shiploading Supervisor, as well as expert opinion evidence from Captain Geoffrey Vale.
iv) The Evidence
[14] Mr. Brown testified about the different tugs owned and operated by the Sea-Link Group of companies. The "SEA-LINK YARDER" was originally built as a self-unloading log barge. It was purchased by Sea-Link in 1992 and used for several years as a log barge. In late 1996, early 1997, he decided to use it as a general cargo barge and modifications were made.
[15] Sidewalls were added in late 1997. These walls were heavy steel girders with very heavy flanges. These were well suited for the installation of pad eyes, made of steel, that were the lashing points. As well, the deck was paved with asphalt; that work was done in August-September 1998.
[16] Mr. Brown testified that he did not receive any information about the stability of the barge when it was purchased. He expressed unperturbed about that, saying that frequently the stability booklets would be lost over the years, when barges changed hands. He did not engage a naval architect to perform stability testing after the barge was modified by the addition of the sidewalls and asphalt paving. He was satisfied that the barge was sufficiently stable and pointed out that it did not tip over during the trip in issue over the period of November 14 and 15, 1998.
[17] The "SEA-LINK YARDER" was originally built as a log barge and was converted, by Sea-Link, to a multi-purpose barge with sidewalls and an asphalt covered deck. Mr. Brown testified generally about the different kinds of tugs owned and operated by the Sea-Link Group of Companies, as well as his own experience and background in the marine industry. He gave evidence about the "SEA-LINK YARDER" and the modifications that were made to this barge. The sidewalls were installed and finished in late 1997. The deck was paved in August - September 1998. The walls were very heavy steel girders with heavy flanges, wider than usual. They were well-suited for the installation of the pad-eyes that were made of steel.
[18] Mr. Brown also gave evidence about the background to the agreement that was reached with Doman. By August 1998, Mr. Brown had met Mr. Chris Calverley of Doman who was looking into the possibility of changing its towing services for the carriage of lumber products, specifically hemlock and douglas fir. Mr. Calverley was aware of the capacity of the "SEA-LINK YARDER" and knew that it would "pull" 4600 to 4700 metric tons a range of 1.8 to 2 million board feet.
[19] Mr. Brown said that the terms discussed required the towing company to provide lashing chains, according to Doman's specifications, within its rate. According to him, Doman wanted to operate in the same way it had with previous towing companies, that is with Doman looking after the loading and lashing of the cargo. Sea-Link was to provide the lashings according to Doman's specification and the lashings would be included in the rate but Sea-Link would not install the lashings.
[20] Ultimately, there was an agreement reached between the parties and reduced to writing in a letter dated October 29, 1998, a copy of which is found at Exhibit 2. Mr. Brown signed that letter. This agreement provided, in part, the following:
Cargo - minimum 2.0 million fbm- lumber
Rate - Cdn $18.00 per mfbm
Rate includes - lashing gear
- 36 hr load time- over 36 hr- $175hr demurrage
- 36 hr unload time- over 36 hr- $25/hr demurrage (barge only)
Rate does not include
- loading
- unloading
- lashing or unlashing
[21] Mr. Brown testified that the letter was sent by facsimile to Doman. He understood that initially, only one page of the letter was sent. He later wondered, when he was away from the office and possibly attending a conference in South Africa, if the company's usual terms and conditions had been sent. Upon inquiry, he was told that they had not been sent, so he requested his office staff to retransmit the letter agreement, together with the terms and conditions. That was done but Mr. Brown did not say when. No evidence was produced either by way of a facsimile transmission report or a telephone bill, to show that the second page was sent. Mr. Calverley could not recall whether he, personally, had received page two of the letter dated October 29, 1998, containing certain terms and conditions of carriage, sent by Sea-Link.
[22] Mr. Hilder, the Operations Manager with Sea-Link, who was involved with the Doman contract after it was negotiated, testified that his role was to find out what lashings would be required by Doman. He testified that Mr. Brown told him to contact Chris Calverley at Doman. He did so and said that Mr. Calverley discussed scheduling and matters such as the arrival of the barge. According to Mr. Hilder, Mr. Calverley was not familiar with the operational matters in Tahsis and referred Mr. Hilder to Mr. Forgaard, the loading supervisor for Doman, in Tahsis.
[23] Mr. Hilder contacted Mr. Forgaard who inquired what kind of barge would be sent out. Mr. Hilder sent Mr. Forgaard, by facsimile, an outline of the barge together with its dimensions. Mr. Forgaard for Doman, then sent the specifications for the chains that would be required by facsimile, dated October 29, 1998. Mr. Forgaard admitted to having received the dimensions of the barge when he placed this order for the lashings.
[24] Mr. Hilder said that he had never been involved with the loading of lumber before this contract with Doman. He relied on Mr. Forgaard to advise what would be required for lashings. He did not seek advice from anyone concerning loading or the configuration of the chains. However, Mr. Hilder advised Mr. Forgaard that the lashing points were at 10- foot intervals and explained that the "make up" on the sidewalls was for lashing.
[25] Mr. Hilder said that he had many conversations with Mr. Forgaard. Mr. Forgaard provided him with a list of the required lashings and Mr. Hilder sent the specifications out to two main supply companies for quotations. Ultimately, Sea-Link rented the lashing chains from Obert Marine Supply. Sea-Link purchased corner caps to be placed on the chains to avoid damage to the cargo.
[26] Mr. Hilder also testified about the ability to add extra pad-eyes, at lashing points, if they were required. It was a fairly simple matter to weld more pad-eyes, made of steel, to the tops of the sidewalls. Mr. Hilder said that the lashing gear was put on the barge and sent to Tahsis. At no time did Mr. Forgaard express dissatisfaction with the lashing gear or the pad-eyes. He had ordered what Mr. Forgaard requested. He did not provide any information about loading this barge and he did not receive any information, including a stow plan, from Mr. Forgaard.
[27] Mr. Chris Calverley, Lumber and Shipping Coordinator for Doman, testified on behalf of Doman. His duties include negotiating contracts for coastal barging and the timely production of cargo for transportation to a location for distribution to Doman's customers.
[28] Mr. Calverley's evidence mainly dealt with carrying out the contract, although he was not involved with the actual loading or any other operational aspects. It is clear from his evidence that negotiating the terms of the agreement followed an initial inquiry from Mr. Jim Lane, a former tug-master who was employed with Sea-Link both as a tug-master and when necessary, a liaison person to seek new business. Mr. Lane was looking for business and Mr. Calverley invited him to submit a quote. A proposal was sent by facsimile on August 20, 1998.
[29] According to Mr. Calverley, Doman wanted to move approximately 2 million feet of board lumber at a time, to maximize loading time. That was the target in negotiating the contract with Sea-Link. A rate of $18 per thousand fbm was ultimately agreed and that rate was to include the cost of lashing materials. According to the proposal of August 20, 1998, this rate was to exclude loading, unloading, lashing and unlashing. Mr. Calverley testified that employees of Doman would load and unload the barges; this was the practice in relation to other barges hired by Doman. The same applied to lashing and unlashing. That work was done by Doman employees or in the case of Nanaimo, by longshoremen who would ultimately send a bill to Doman.
[30] Mr. Calverley was not provided with any particular information about the "SEA-LINK YARDER". His knowledge about the barge was based on its description in the proposal sent by Sea-Link on August 20, 1998. He was familiar with Jim Lane and knew that he had many years' experience in the transportation of lumber. The issue of Sea-Link's experience in that business did not arise for Mr. Calverley. As far as he knew, no one from Doman inspected the "SEA-LINK YARDER" prior to the first shipment and there were no discussions about the suitability of the barge to perform the required services. Mr. Calverley was involved in the contractual arrangements for the voyage and not with the physical aspects of ensuring the loading and lashing of the cargo.
[31] Mr. Calverley was questioned about a meeting with Mr. Brown in August 1998 and his telephone conversations with Mr. Hilder and Mr. Forgaard, about the contemplated voyages. However, he had a hazy recollection of the meeting and the conversations. He was able to say that he would have spoken with Mr. Forgaard and that he would have suggested that Mr. Forgaard speak with someone at Sea-Link. He said that he would have provided Mr. Forgaard with the dimensions of the barge. He testified that he may have asked Mr. Forgaard to provide Sea-Link with the cargo line-up at the same time. He said that the cargo line-up may not have been established prior to the departure of the barge. He said that a preliminary cargo line-up would be prepared by the main office in Vancouver and that would be used by the people planning the stow to reach a final line-up.
[32] Although Mr. Calverley had been employed with Doman as the Lumber and Shipping Coordinator since 1993 and dealt with Mr. Forgaard from that time up to the incident in November 1998, he did not meet Mr. Forgaard until the time of the trial. He had no personal knowledge of Mr. Forgaard's background or experience.
[33] Doman also called Mr. Orval Forgaard, a yard foreman and shiploading supervisor of Doman. He has been employed in those positions since 1997, and his duties involved the supervision of the loading of ships and barges for the transportation of lumber products from Tahsis. His training for this work was provided by former supervisors at the Tahsis operations. His employment with Doman began in 1992.
[34] Mr. Forgaard had some prior experience in loading lumber products on barges, that is with Seaspan and Pacific Towing. The Seaspan barges had high sidewalls, to a height of some 15 to 18 feet. The Pacific Towing barge had short walls, measuring approximately 6 feet. That barge was similar to the "SEA-LINK YARDER".
[35] Mr. Forgaard acknowledged receipt of a diagram with the dimensions of the barge, prior to the first trip in November 1998. He received it from either Joe Moric, his direct supervisor at the time, or from Chris Calverley. He required this in order to plan the load. Otherwise, he understood his job to be the loading of the barge. He did not make any inquiries about the load- line or stability features of the barge. He did speak, however, with Mr. Jim Lane of Sea-Link about loading. This conversation took place before he prepared the stow plan for the first trip. He asked Mr. Lane to attend for the loading for that trip because he had not loaded a barge like the "SEA-LINK YARDER" before.
[36] Mr. Lane went to Tahsis after the barge arrived, but he did not give any advice. According to Mr. Forgaard, Mr. Lane had broken his leg and although he went to Tahsis he did not stay longer than an hour. During that time, he visited with the tug's crew. He did not help with the loading.
[37] Mr. Forgaard had some discussions with Mr. Hilder of Sea-Link but was unable to recall the specifics of those conversations or to say whether they occurred before or after the arrival of the barge. He said that he had sent Mr. Lane the details of what he considered to be the necessary lashings, including shackles and turnbuckles. He said that no one at Sea-Link advised him of any restrictions as to what could be loaded on the barge.
[38] Mr. Forgaard prepared an initial stow plan prior to the arrival of the barge. A copy of this stow plan was not available as evidence as Mr. Forgaard stated he had deleted it from his computer at some, unspecified time.
[39] Mr. Forgaard stated that he had to revise the plan after he saw the barge when he discovered that the interior width of the barge was less than he had anticipated, on the basis of the barge dimensions. In order to accommodate the reduced space, he revised the plan, as he was then required to use spacers. He said that he discussed his original stow plan with the tug crew. He also said that he discussed with them the changes that would be required in the stow plan. He said that he showed the crew members the stow plan. He identified one of the crew members as "Danny" and could not recall the name of the other crew member.
[40] Mr. Forgaard recalled that this conversation took place after the first loading of cargo, that is in the first week of November. He said that after that first cargo was loaded, the tug crew members said that it was "light" and more could be carried on the next trip.
[41] Mr. Forgaard went on to testify that when the barge returned for the second trip, he met again with the tug crew and showed them the stow plan he had prepared. He said that he was planning to go to a height of eight feet and otherwise, proceeded to load as he had done for the first trip. He described the reaction of the tug crew to his advice about the height as "happy". According to him, the crew said "you'll never sink this barge" and that in the summer he could load to nine feet.
[42] Mr. Forgaard said that the loading for the second trip proceeded uneventfully. Members of the tug crew were present during the loading, normally two men. They pointed out things like broken straps and the Doman employees would replace those, as requested. When it was time to hook the chains, the tug crew fastened them on the sides. Mr. Forgaard said that if the tug crew wanted chains moved, his men would do so.
[43] When asked about the use of the longitudinal chains, Mr. Forgaard said that he recommended that they would not be needed in view of the way the cargo was to be loaded, forward to aft, in a step-down position. He said that the crew members spoke to the Captain and came back to say that the Captain wanted the long chains put on. Mr. Forgaard said this was due to the "heavy seas" that would be encountered and that the Captain "was scared they may lose cargo off the back end".
[44] Mr. Forgaard also testified that he spoke to the two crew members about the weather and said there was a forecast of gale force winds. He went on to say that the previous towing company, Seaspan, would not sail in such weather but wait it out, either at the dock or in Barclay Sound. According to Mr. Forgaard, the crew assured him that they had been towing log barges for many years on the west coast of Vancouver Island and "knew what they were doing".
[45] Captain Hemeon gave evidence on behalf of Sea-Link about his experience in the marine industry, his involvement with the loading and stowage of the cargo, and the progress of the tow. Captain Hemeon has been employed with Sea-Link as a tug master since 1996. He has worked in the marine industry since 1969 and obtained his Master's ticket in 1982. He is familiar with the barge "SEA-LINK YARDER". He had worked on that barge when it was used to carry gravel.
[46] Captain Hemeon said that neither he nor his crew were involved with the cargo on either the first or second trip. However, he had never been in command of the "SEA-LINK YARDER" to carry lumber until November 1998. The lashings required for the cargo were transported to Tahsis where employees of Doman loaded and stowed the cargo of lumber products. He was not given any instructions about loading nor advised to go below the loadlines. The barge carried loadlines for international, not domestic, trade and although Captain Hemeon was aware that different loadlines were used for lumber, than for other cargos, he did not know what they were. Further, Captain Hemeon had no knowledge about the stability characteristics of the barge. He was not provided with stability information by Sea-Link.
[47] He said that he followed the instructions of the customer as to the amount of cargo to be carried. In this case, he was simply told that the barge and tug were proceeding to Tahsis to take delivery of a cargo of lumber that would be loaded and lashed by employees of Doman. He was not provided, for any trips, with a stow plan. That was done by Mr. Forgaard without any discussion with him.
[48] Captain Hemeon said that he once saw the Doman people drawing out a plan on a piece of paper; however, that apparently occurred in preparation for the first trip, after the Doman people took the inside measurements of the sidewalls. He was unaware that the barge was overloaded until after the incident.
[49] He was not involved with the loading and lashing, but he and the mate, Danny Peel, looked over the work done by the Doman employees. When he found something that he did not like, for example too much space between the packages, he instructed those employees to tighten up the stow. He said that although there was some "grumbling", the Doman employees did as he asked.
[50] Captain Hemeon also said that he and the mate tested the tautness of the lashing lines by kicking and jumping on them. When he found loose chains, he required the Doman workers to tighten them. The tug crew also shackled the chains to the pad-eyes on the sidewalls because the Doman people were wary of doing so. He said that he insisted on the use of the longitudinal chains to go over the cargo and would not have sailed without them, in spite of the advice from Mr. Forgaard that they were unnecessary.
[51] Captain Hemeon assured the Doman workers that more cargo could be loaded for the second November trip than was carried on the first voyage. He said once loading began on the bow, with "stepping" back to the stern, the Doman work crew was committed to its stow plan and the amount that would be loaded. He said that he could not remember if he had any discussion with Mr. Forgaard as to the amount that would be carried on the second trip but that Doman wanted to load more on this trip.
[52] Prior to departure, Captain Hemeon was satisfied that the cargo was securely loaded and lashed. He described the tug and tow as "riding well". The barge was rolling but not unduly and in any event, everything rolls at sea. He had positioned the barge so that it was trimmed by the stern, with a 2 to 3 foot rake. He said this was optimal for towing.
[53] Also prior to departing, Captain Hemeon was aware of the weather forecast and was satisfied that he could safely proceed. He described the forecast as "reasonable" for November. The Captain had access, on board the tug, to continuing forecasts. The latest weather forecast before his departure was on November 13, 1998 at 9:30 p.m.
[54] That forecast was modified on Saturday, November 14, 1998 at 0400, after his departure at 0022 hrs. This early forecast called for rising winds "near noon". This was a change from the earlier forecast which called for rising winds in the afternoon. The seas were 3 - 4 metres and the Captain said these were not bad conditions for that time of year.
[55] The voyage from Tahsis to the mouth of Nootka Sound, along the south coast of Vancouver Island, was in fairly sheltered waters. The coast is exposed after Nootka Sound. The Captain expected to be inside the Straits of Juan de Fuca by 4:00 a.m. on Sunday, November 15th. However, at 2100 hours on Saturday he was at Cape Beale. The normal running time to the Straits would have been usually about three hours from that point, but on that night, it took five hours. The gale warning continued and the tow's progress was reduced.
[56] The Captain altered course only once, that is, just off Barkley Sound, an area colloquially called the "Barkley bounce" because of certain currents and tides mixing in that area off the coast. He altered course there, around 1800 hrs, to make for a "better ride" while the crew was eating dinner.
[57] Sometime between 1800-2100 hours, the brake on the towing drum slipped. The Captain reduced speed and sent a deckhand to tighten it.
[58] The Captain was roused from sleep at 0315 hours on November 15 by the mate. The mate had seen that the tow-line was leading off to starboard. That indicated a problem. The tow-line had to be shortened and the main engine was cut back to reduce power. This incident is recorded in the logbook at 0330. According to the Captain, he called Paul Hilder at Sea-Link. The tow proceeded to Port San Juan, the nearest port. The Captain could see that lumber was being washed off the barge.
[59] In Port San Juan, the barge was anchored and the two tow lines shortened up. The barge was lying broad side to the swell and rolling back and forth. The Captain manoeuvred the tug and barge to bring the bow of the barge heading into the swell to reduce its roll and minimize the loss of lumber packages.
[60] He then got permission from Sea-Link to flood the tipping tanks in the hull, in an attempt to correct the starboard list. That effort worked, and the tug, with the barge, proceeded to Nanaimo, arriving at 0853 on Monday, November 16, 1998.
[61] Upon the arrival of the tug and barge in Nanaimo, various people attended to inspect the damage to both the cargo and the barge. Mr. James Lindsay and Captain Vale surveyed the damage and provided reports including opinions as to the cause of the damage. Captain Fothergill took photographs and provided his opinion about the loss.
[62] The barge sustained damage. The sidewall on the starboard side was partially collapsed and bent outboard. The whole upper portion of the wall had to be replaced. The steel on the deck of the barge was also torn loose. According to Mr. Brown, the repairs were completed and the barge was ready for service by mid-January 1999.
[63] Mr. Jim Lindsay is a professional marine surveyor with many years of experience in the marine industry. He was engaged to inspect the barge and cargo on behalf of Sea-Link's insurers and further, to provide technical assistance to its lawyers. He subsequently prepared an expert opinion and testified at trial.
[64] Mr. Lindsay expressed the opinion that the accident was caused by improper loading and stowage of the lumber, and that the cargo had insufficient lashings on the outboard longitudinal packages. He did not refer to weather as a contributing factor.
[65] Captain Fothergill is a Master Mariner. On November 16, 1998, he saw the barge and tug at port in Nanaimo. He observed damage to the barge and the condition of the cargo, including the lashings. Although he had not been retained by either party at the time, he prepared a preliminary report which was sent by facsimile on November 16, 1998 to Mr. Chris Calverley, at Doman. That letter, entered as Exhibit D-6, expressed the opinion that the loss was attributable to Sea-Link, but no particular aspect of negligence was identified and Captain Fothergill observed that the cause of the loss "is still to be determined".
[66] Captain Fothergill was never engaged by Doman. In July 2002, he was engaged by Sea-Link to provide an expert opinion on its behalf. A statement of his proposed evidence was prepared for the purpose of his opinion evidence at trial. In his evidence, Captain Fothergill attributed the damage to defective stowage and insufficient lashing. He did not address the factor of weather as a cause of the damage.
[67] Captain Vale, a Master Mariner and Marine Surveyor, wrote two expert reports, dated June 14, 1999 and October 22, 2002, on behalf of Doman. He also testified at trial. Captain Vale was of the opinion that the cargo shift was caused by too great a space between the lashing points, inappropriate stacking of the cargo because it was not interlocked, the weather conditions at the time the cargo shifted and the rolling period of the barge based on its high "GM" (Metacentric Height). On this last point, Captain Vale acknowledged in his first report that he had to rely on certain assumptions, as he did not have the SEA-LINK YARDER's stability information before him.
[68] In the second report, he commented upon the reports of Mr. Lindsay and Captain Fothergill. He concluded in his second report and testified at trial that if the cargo had been properly secured, through lashing points at five foot intervals and with the lumber packages loaded in an interlocked manner, then the cargo could have safely been loaded up to eight tiers. Captain Vale was also of the opinion that to load the desired volume of cargo onto the barge, a crane should have been used.
v) The Loading of the Cargo
[69] Captain Hemeon said that he was not provided with any particular or special instructions about the carriage of the lumber products from either his employer, Sea-Link, or from any employee of Doman. He was instructed to proceed to Tahsis where the cargo would be loaded by employees of Doman. The barge was supplied with lashing chains by Sea-Link according to particulars provided by Doman. He was not engaged in the loading and storage operations but conducted an overview. When he found spaces between the packages he required the Doman employees to tighten up the spaces, to reduce the potential for movement.
[70] The cargo was loaded from forklift by Doman employees, in a forward to aft arrangement beginning with packages two tiers high, rising to 8 tiers. Packages were loaded fore and aft for two rows down each side and the athwartship in the remaining space. The packages were stacked on top of each other, rather than interlocked in a "bricklayed" fashion.
[71] According to undated notes made by Mr. Forgaard, the athwartship stow was stepped up gradually from the forward end of the barge from two packages high progressively to eight high, then gradually down again to four high at the aft end. The forward stepped section had vertical 2" by 6" shoring pieces between each successive height to prevent the packages from tipping forward during heavy pitching. The forward and aft tiers were seven packs high against the sidewalls on the outer tier and eight high on the inner tier.
[72] In his notes, Mr. Forgaard also remarked on the development of a sudden list to port when the barge was about two-thirds loaded. He attributed that to slack water in the barge. According to his evidence he mentioned this to a member of the tug crew. The list was offset by loading four rows with an 18" offset to starboard and by adding two packs to the height on the starboard side which brought the list back to 6".
[73] The cargo was secured with twenty-two sets of lashing chains, ½ inch in diameter, placed at 10 foot intervals attached by shackles to pad eyes welded on top of the barge sidewalls. The chains passed over the top of the cargo meeting approximately on the centre line of the barge. One chain was shackled to one end of a turnbuckle, the other chain with a large oval link has the hooked end of the turnbuckle passed through it. This hook portion is then brought back against the standing part and an oval link slipped over the hook end.
[74] The chains were shackled to the sidewalls by the tug crew since the Doman employees were wary of standing on the tops of the sidewalls of the barge. The cargo was further secured by the use of three longitudinal chains running from forward to aft. To make these three longitudinal chains, two chains were joined in the middle to make one long chain. They ran over the cargo and were attached to a chain running across the stern of the barge. There were no lashing points at the stern. Mr. Forgaard said it was a "bit of a spider's web".
SUBMISSIONS OF SEA-LINK
[75] Sea-Link submits that the contract, although brief, is clear concerning the obligations of loading, unloading, lashing and unlashing. These responsibilities expressly rested with Doman and Doman received a reduced rate on this basis.
[76] Sea-Link says that if the contractual wording is in doubt, then looking to the actions of Doman, as an expression of its understanding of the contract, supports a finding that Doman was indeed responsible for loading and stowing the cargo. Doman planned the load and stow, specified the lashing chains that were to be used and then loaded and lashed the cargo onto the barge without any real input from Sea-Link.
[77] Sea-Link submits that the evidence of Mr. Brown and Mr. Hilder is more reliable than the evidence of Mr. Calverley and Mr. Forgaard, relative to the conversations that occurred leading up to performance of the contract. Sea-Link points to the examination for discovery of Mr. Calverley, for Doman, where Calverley agreed that he knew that Doman would be the one to load, stow and put the lashing on the cargo. Mr. Brown testified that Mr. Calverley advised him that Mr. Forgaard would advise Sea-Link as to what lashing was required.
[78] Sea-Link argues that Mr. Brown's testimony regarding these conversations should be preferred to the recollections of Mr. Calverley who admitted on cross-examination that his memory of these communications was "shaky at best". Furthermore, Sea-Link argues that the testimony of Mr. Hilder as to conversations he had with Mr. Forgaard should be preferred, as Mr. Forgaard could not recall such conversations.
[79] Sea-Link submits that the master of the ship has a right, not a duty, to supervise the loading and lashing of cargo and the right, but not an obligation, to intervene, unless intervention is required to protect the cargo from damaging the structure of the ship or if the stowage was affecting the ship's stability. Further, the liability of the master will be limited to the extent of his intervention and only to the extent that such intervention actually causes the loss. To support these arguments, Sea-Link relies on the House of Lords case of Court Line Limited v. Canadian Transport Company Ltd. (1940), 67 Lloyd's L.R. 161 (H.L.) and Transocean Liners Reederei GmbH v. Euxine Shipping Co. Ltd. (The "Imvros"), [1999] 1 All E.R. 724 (Q.B. Comm.).
[80] Sea-Link described its supervision and intervention in the loading and lashing process. Its crew put the shackles through the pad-eyes, as the stevedores for Doman did not want to climb the sidewalls. The Master pointed out gaps in the cargo, to ensure a more compact and tighter stow, and required the tightening of lashing chains and the use of three, fore and aft "longitudinal" chains over the cargo stretching the length of the ship.
[81] Sea-Link argues that such interventions did not cause the loss and in all probability improved the situation. Sea-Link says that these interventions do not result in any shift of liability from Doman to Sea-Link. Further, if it is found that Mr. Forgaard did show his stow plan to Captain Hemeon, then this cannot be interpreted as "approval" of the stow plan.
[82] Sea-Link says that the "SEA-LINK YARDER" was not overloaded. Sea-Link refers to the evidence of Doman's expert, Mr. Vale, who confirmed that eight tiers of lumber could safely be loaded on the "SEA-LINK YARDER".
[83] Sea-Link submits that Doman's arguments regarding alleged problems that make the barge unseaworthy should be rejected. It says that there is no evidence that general cargo barges should have lashing points at certain intervals and that Mr. Forgaard recognized that lashing points could have been easily manufactured and added to the barge on an ad hoc basis, if he or other persons at Doman thought it was necessary.
[84] Since Doman was responsible for planning and executing the loading and lashing, Sea-Link says the experience of its master in such matters is not an issue in this action. The barge was not unstable when she was loaded and Captain Hemeon, in respect of stability, made no error. The Master cannot be faulted for not redesigning the stow planned by Doman, a company that had extensive experience in loading lumber cargo.
[85] Sea-Link relies on Ismail v. Polish Oceans Lines (The "Ciechocinek"), [1976] 1 Q.B. 893 (C.A.), N.M. Paterson and Sons Ltd. v. Mannix Ltd., [1966] S.C.R. 180 and Trident Freight v. Meyer's Sheet Metal Ltd., [2002] B.C.J. No. 1064 (B.C.S.C.), for the proposition that a shipper who takes an active interest in the stowage and insists that it be stowed in a particular manner, cannot later complain if the goods are damaged as a result of the manner in which they were stowed.
[86] Sea-Link also relies on cases where carriers were not found liable for damaged cargo because the cargo was negligently packed by the shipper: D.M. Duncan Machinery Company Limited v. Canadian National Railway Company et al., [1951] O.R. 578 (High C.J.)and Guadano v. Hamburg Chicago Line, G.m.b.H, [1973] F.C. 726 (T.D.).
[87] Further, Sea-Link submits that the Hague-Visby Rules (the "Rules") are applicable by virtue of the Marine Liability Act, S.C. 2001, c. 6 (the "MLA"). Article 4(2)(i) of the Rules applies to limit its liability.
SUBMISSIONS OF DOMAN
[88] Doman's main argument is that Sea-Link is liable for the damage to its barge because it had a duty to ensure the seaworthiness of the ship, which includes "cargo-worthiness", and Sea-Link failed to discharge that duty. Doman submits that seaworthiness varies relative to the particular cargo that is subject to a contract of carriage and is also relative to the particular voyage contracted for. The barge in this case was not seaworthy for the particular cargo and voyage undertaken.
[89] As a secondary argument, Doman submits that it was the negligence of the Master, Captain Hemeon, in not seeking shelter from the weather during the course of the tow which contributed to the loss.
[90] Doman submits several alternative arguments concerning liability. First, Doman argues that if it had the contractual responsibility to stow and lash, then Sea-Link is not entitled to complain of the stowage and lashing since its crew took an active interest in the stowage and lashing, pointing out some defects and not others. In support of this argument, Doman relies on Upper Egypt Produce Importers et al. v. The "Santamana" (1923), 14 Lloyd's L.R. 159 and N.M. Paterson & Sons, supra. Further, Doman notes that the mate, Danny Peel, was not called to testify and invites the Court to draw a negative inference from his absence.
[91] Next, Doman submi