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

The "A.L. Smith" and "Chinook" v. Ontario Gravel Freighting Co.
Collection
Supreme Court Judgments
Date
1915-02-02
Report
(1915) 51 SCR 39
Judges
Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Maritime law
Decision Content
Supreme Court of Canada
The "A.L. Smith" and "Chinook" v. Ontario Gravel Freighting Co., (1915) 51 S.C.R. 39
Date: 1915-02-02
The Ships “A. L. Smith” and “Chinook” (Defendants) Appellants;
and
The Ontario Gravel Freighting Company (Plaintiffs) Respondents.
1914: December 21; 1915: February 2.
Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA, TORONTO ADMIRALTY DIVISION.
Maritime law—Tug and tow—Contract of navigation—Collision of tug—Liability of tow—Foreign ship—Proceedings in foreign court—Jurisdiction in Canada.
The American tug “A. L. Smith” was ascending the River St. Clair having in tow the barge “Chinook,” the two being engaged in the business of their common owner. The “Chinook” having no propelling power nor steering apparatus the navigation was controlled by the officers and crew of the tug, the tow being attached by a line fifteen feet long. They kept on the American side and the “Smith” sheered and collided with a barge being towed down, causing it to sink.
Held, affirming the judgment of the Exchequer Court (15 Ex C.R. 111), Davies and Anglin JJ. dissenting, that the tug and tow must be regarded as one ship and each was liable for the consequences of the collision. The “American” and the “Syria” (L.R. 6 P.C. 127) discussed and distinguished.
Per Davies and Anglin JJ. dissenting, that as the “Chinook” took no part in the navigation, and there being no master and servant relationship between her and the “Smith,” she should not be held liable.
Shortly after the collision the owner brought action in a United States court to limit the liability of the “Smith” and the extent of her liability was fixed at $1,500. Later the two ships were seized in Canadian waters, taken into a Canadian port and released on receipt of a bond by a guarantee company conditioned to pay any amount awarded against either or both. The action in rem was then proceeded with, resulting in both ships being condemned. Held, that the proceedings in the United States did not oust the Canadian court of jurisdiction.
Held, per Idington J.—The defendants are not entitled to limitation of the damages under United States or Canadian statutes, the same not having been pleaded nor any evidence of it produced.
Per Davies and Anglin JJ.—As the collision occurred in the domestic waters of the foreign ship held at fault the extent of her liability must be determined by the lex loci commissi delicti, and the damages should be limited to the value of the “Smith” immediately after the collision.
Held per Duff J. following the “Dictator” ([1892] P. 304) and the “Gemma” ([1899] P. 285), that as the owners appeared and contested the liability of the ships they became parties to the action and subject to have personal judgment pronounced against them for the amount of damages properly recoverable for the negligence of their servants. The trial judge having held, on the sole issue of fact raised at the trial, that the “Smith,” as between her and the “Moyles,” was solely to blame, the appellant owners were primâ facie liable for the full amount of damages suffered. Assuming, however, that if the “Chinook” was free from blame, they were entitled to the benefit of the United States laws limiting their liability to the value of the offending res, then, as this issue was not raised or tried in the Exchequer Court, they could only succeed if the facts in evidence conclusively demonstrated the innocence of the “Chinook” or, in other words, that the “Smith” and “Chinook” were not identified for the purpose of assigning liability, the question of identification being a question of fact depending upon the particular circumstances.
APPEAL from the judgment of the Exchequer Court of Canada, Toronto Admiralty District[1], in favour of the plaintiffs.
The questions raised for decision on the appeal were—Whether or not the Exchequer Court was competent to try the case in view of proceedings previously taken in the United States where the defendant ships were registered; if there was jurisdiction whether or not the defendants were entitled to limitation of liability under the Canadian or British “Shipping Act”; and, the liability of the “A. L. Smith” not being disputed whether or not the “Chinook” was also liable. The facts on which the decision of these several questions depend are stated in the head-note.
A. R. Bartlett for the appellants.
Rodd for the respondents.
The Chief Justice.—Mr. Justice Anglin in his judgment deals so fully and learnedly with the facts and the law of this case that I shall be content to say briefly why, much to my regret, it is impossible for me to agree in his conclusions.
All the cases will be found conveniently collected in Halsbury, vol. 26, page 527, and following.
It seems now to be accepted as settled law that for all purposes of their joint navigation a tug and tow are one ship in contemplation of law (Vide The “Niobe”[2]) and that in an ordinary contract of towage a tug is under the control of the tow and must usually obey the direction given her by those in charge of the tow (The “Robert Dixon,” 1879[3]), but no general rule can be laid down on the subject. Each case must be decided upon its own facts (The “Quickstep,” 1890[4], at page 200). It would appear, however, that where the governing power and the navigation are wholly in the vessel towing, the tow is not responsible for the tug’s negligence. Compare Steamer “Devonshire” v. Barge Leslie[5]; The W. H. No. 1 and the “Knight Errant”[6].
There can be no doubt that the circumstances of this case are quite exceptional. This is not a case of towage for hire nor is it a salvage case. Both the defendant ships belong to the same owners and were at the time of the collision being jointly navigated for their benefit by the same crew. The servants of the owners on board the tug had possession and control of
the tow by their authority. It is true that the governing power and the navigation were in the hands of the tug, but the carrying capacity upon which the profit of their joint exploitation depended was in the tow.
For the purpose of economy or expediency the tow was fastened to the tug in such a way as to constitute both a danger to other vessels navigating the same waters. Upon what principle of law or reason can the owner of the tow escape liability in the case of a collision attributable immediately to the tug and mediately to the tow? The tug came directly into contact with the barge “Hustler” and caused the damage. And we are all agreed that she is liable. But I think it is very satisfactorily established on the evidence that the collision is attributable to the defective steering of the “Smith” due (a) to the condition in which the barge was by reason of the absence of proper ballast; (b) the absence of a bridle and the short tow line used to keep the boats together. There was a steering gear on board the tow, but it was not in use and her movements were directed by the tug, hence the necessity for the short tow line, which latter embarrassed the movements of the tug and caused the sheering which in part at least contributed to the collision. In those facts we have the defective steering of the tug—due to the tow—and the collision in the relation of cause and effect. Captain Allen, of the “Smith,” explains that the steering apparatus of the “Chinook” was not in use and that the short tow line was preferable to a bridle for steering purposes. He also admits that the tow would affect the steering of the tug, not to the extent proved by the witnesses on the other side, but sufficiently to cause her to sheer four or five feet. On the other hand the libellant’s witnesses say (Heddrich) the sheer might be about twenty feet. Hunter says
that the tug was tripped with the scow, that the bow of the scow was holding the stern of the tug,
and he also says at other places in his examination and cross-examination that this was the result of using the short line, and in that condition may be found the explanation, in part at least, of the collision. I cannot on the facts come to any other conclusion than that the tug must be considered as being in the service of the tow and identified with her for many purposes. It is quite true that the trial judge finds the “Smith” solely to blame, but that finding must be read in connection with his previous statement, as to the way in which the sheering of the “Smith” was affected by the “Chinook.”
I have not, of course, overlooked the observation made in The “American” and, The “Syria”[7], that the question of liability is not affected because the tug and tow are the property of the same owners. But that case is on the facts so clearly distinguishable from this that I do not think undue importance should be attached to what their Lordships said in that connection. To create in a case of collision a maritime lien enforceable by a proceeding in rem the damage must be done mediately or immediately by the ship proceeded against; Currie v. M’Knight[8]; otherwise the fact of mere physical connection or of joint ownership does not create or affect liability and that is all that is decided in The “American” and The “Syria”[9]. In that case the master of the “American” appears to have undertaken to tow the “Syria” under circum-stances quite exceptional which are fully explained in the report at page 133. Here we have two vessels necessarily connected for the purpose of the particular business in which both were engaged for the benefit of their common owner and both in the possession and under the control of the same crew for all the purposes of their navigation. As a result of the way in which that navigation was carried on, a collision occurred to which both vessels contributed. I fail to see how we can distinguish between the vessels.
A question arises out of the proceedings taken in the courts of the United States to limit liability which, in view of the conclusion to which I have come, I am relieved from the necessity of deciding. I may, however, observe that the proceeding instituted in the foreign court was not a bar to the jurisdiction of the courts of this country, nor did it operate as a stay of the proceedings unless based on an admission of liability. It is not necessary, of course, in this country, that the owner should admit liability before beginning the limitation proceedings, but liability must be admitted before a decree can be obtained (26 Halsbury, page 616, No. 971, and cases there cited). Those who are interested in this branch of the case will find Jenkins v. Great Central Railway Co.[10] instructive (26 Halsbury, 614, note). See also Albany Law Journal. Davies J. (dissenting).—I agree with the opinion stated by Anglin J. which I have had an opportunity of carefully reading and with his proposed disposition of this appeal.
I cannot, however, concur with him in his understanding of the decision of this court in the case of The “Wandrian” v. Hatfleld[11]. That case was decided on its own special facts and the tow was held liable for the damage caused by the negligence of the tug because the evidence shewed the control to have been in the tow and failure on the part of its captain to exercise such control.
The Chief Justice, whose judgment was concurred in by Girouard and Duff JJ., said, at p. 440:—
There is no evidence to shew that the manœuvre which resulted in the collision was adopted without the concurrence of the tow. The contrary would appear to be the case.
I was one of the court at the time and rested my opinion, in which Mr. Justice Maclennan concurred, upon the special circumstances of the case. At p. 446, I said that the rule to be deduced from the authorities was
that under an ordinary contract of towage, the tow has control over the tug and the latter is bound to accept the directions and orders of the former. There are exceptions to this rule, notably in the cases of dumb barges and canal boats having little or no control over their own movements and where by custom, contract or necessity the control of the tow is in the tug.
I then stated (p. 449) that the circumstances of the case before us shewed the case not to be within the exceptions to the ordinary rule, but, on the contrary, shewed
the exercise of the control by the tow to have been both practical and possible and to some extent, at least, to have been exercised,
and so held the tow liable. I am not able to see that this decision is at variance with the recent decision of the House of Lords in the case of S.S. “Devonshire” (Owners) v. Barge “Leslie” (Owners)[12].
As to the question whether the fact of the tow and the tug being owned by the same person makes in actions in rem any difference in the liability of the tow in cases where the sole control or the “governing power” was in the tug and her negligence alone caused the damages complained of I feel myself bound by the judgment of the Judicial Committee in the case of The “American” and The “Syria”[13].
The two ships in that case belonged to the same owner and the “American,” which was towing the “Syria” home, was held to blame for the collision. The “governing power” was wholly with the “American” and their Lordships held that
the “Syria” could not be deemed in intendment of law one vessel with the “American” or liable for her negligence. Nor do they think that the fact of the “American” and “Syria” belonging to the same owners affects the question whether or not the “Syria” was to blame.
Idington J.—The appellant tug “Smith” and tow “Chinook” both belonged to the same owners and by the fault of the “Smith” damage was done to the respondent. Both were arrested at Windsor and released upon a bond to answer for one or either to the amount of $12,000, which if not paid by the owners would be paid by the guarantor.
The defence set up in the pleadings does not seem to have contemplated raising any other question than, first, that of the fact as to which of the two parties in litigation was to blame for the accident, and secondly, that the court by reason of the proceedings which had been taken in the American court (and are still pending) was ousted of its jurisdiction.
The latter contention seems in law quite untenable. And the former and only other question raised seems rightly disposed of by the judgment unless there is room for discriminating between the tug and tow.
But again, is that discrimination now open to the appellant? As already pointed out no such question was raised at the trial. So little attention was paid to it that the mate of the tug in giving evidence said he did not know whether they had any steering apparatus on the “Chinook” or not.
Another witness, the chief engineer, refers to his having passed from the tug to the tow a few minutes before the collision, to do some work in the engine room of the “Chinook” where there evidently were a number of others.
The effect of the manner in which the tug and tow were connected and the possible bearing thereof on the navigation of either was referred to by more than one witness.
But as to the actual relations at the time in question of the crew on the tow or part of the crew on either vessel to the other or to the management (if there was any) of the navigation of the tug and tow the evidence presented gives us nothing tangible upon which to form any judgment whereby to discriminate in law between the vessels in relation to the liability for the collision. We find the mate of the tug seems to have been in charge till he called the captain from his bed just five seconds before the collision.
The truth would seem to be that the parties concerned for the defence, seemed to have made up their minds that unless the excuses furnished by the mate or blame sought to be imputed to the plaintiff relieved defendant from all liability, the inevitable consequences of meeting the damages must be faced.
In such a case does the doctrine as expounded in The “Devonian”[14], for example, that tug and tow must be considered as one ship, apply?
The principle that the tow has charge of the governing power would (primâ facie as it were) in the absence of countervailing facts or circumstances seem to render that doctrine applicable and both liable as found by the learned trial judge.
There are numerous oases where the facts and circumstances have enabled the courts to see their way to set aside the operation of this principle or that doctrine and treat either vessel as solely to blame.
I can, however, find no case where the tug and tow belonged to same parties and as here no facts or circumstances countervailing the operation of the said principles where a collision took place with a third vessel. The case of the “American” and The “Syria”[15] relied upon is clearly distinguishable.
The case of The “American” and The “Syria”15 was a case of salvage and rested upon the principle that must govern such a case, and besides the question of the salvage of the cargo so bore thereon as to prevent the identification. In The “Quickstep”[16] the tug and tow were each respectively owned by different owners and otherwise distinguishable.
The mere act or neglect of duty which was primarily the cause of the collision no doubt was as clearly traceable here to the man in charge of the tug as it was in the case of the tug towing the “Sinquisi,” which was held merely because a tow liable for the mistake made by the tug.
That case seems a stronger application of the doctrine than this because the tow was in fact in that case in charge of a pilot.
Then in the case of The “Englishman” and The “Australia”[17], the sole fault of the tow was negative in its neglect to assert its authority and insist on a reduction of the rate of speed in a fog which led to the accident.
That and other cases shew how on the trial, when tug or tow desire to sever the presumed joint responsibility, it is done by issues in the way of pleading, or otherwise raising the question, and evidence being directed thereby to enable the court to distinguish on the facts that which is thus presented from that which in principle must, at least primâ facie, be presumed to render tug and tow identical.
The “Niobe”[18] is another illustration of how this is brought about and shews that the want of a lookout on the tow was held a fault.
The case of the tow being an absolutely dead barge without men or machinery on board, or possibility thereof, any more than on a dead log, might be distinguishable from the general rule of presumed liability of the tow.
Even that must depend upon evidence if not pleading and evidence. Here we have mere accidental glimpses of the condition of things which shew this tow was very far from being that sort of thing whatever she was.
The absence of the operative facts of hirer and hired upon which the principles I have adverted to were originally founded and acted upon may make the doctrine look here like a fiction of law. Yet I think it has so much more of common sense to support it than many such useful fictions of law that I must abide by it.
And as to the measure of damages being limited by statute either of the United States or in force in this country I do not see how that question can be raised here without pleading or evidence to let it in and without having been raised in the court below.
It certainly seems a remarkably bold attempt.
The evidence of the foreign law is all that was presented to the court which gives the slightest indication of such a question being raised, and that does not, for it was very properly directed and confined to what would enable the question of jurisdiction raised in the pleadings to be tried out and disposed of.
And curiously enough in light of present argument no evidence was directed as to what the foreign law is as to the relation between tug and tow in reference to joint responsibility.
When it came to a question of what was to be the measure of damages or limitation thereof there was no evidence offered.
And as I conceive the situation that was quite proper.
When it comes to be a question under the formal judgment directing a reference of how much damages are to be assessed the rule of law, whatever it is, will possibly have to be observed. It may be confined to the value of the res or it may be found that the form of ball bond, which is not to return the vessels, but to answer for damages which the owners are responsible for and the appearance of the owners thus ensured may have to be considered as enlarging the scope of the inquiry by engrafting upon the suit in rem the possible liability of the owners at common law. In the latter case the view taken in The “Dictator”[19], where all the authorities are reviewed, may have to be considered.
As to all this I express no opinion beyond this that neither the course of the proceedings below nor the form of judgment of record permits of our interfering therewith.
I have looked into a great many cases besides these I refer to and others that the counsel cited, but I am unable to find anything that would maintain a reversal of the judgment below, under the facts and said course of proceedings and record.
I, therefore, think the appeal should be dismissed with costs.
Duff J.—I have come to the conclusion that this appeal should be dismissed. In order to explain the reasons which have led me to that conclusion it is necessary to discuss the course of the proceedings in the court below. The collision took place in American territorial waters, that is to say, in the St. Clair River within American territory. The “A. L. Smith” and the “Chinook,” the appellant ships, are both American ships. The action out of which this appeal arises was commenced on the 14th day of April, 1913, in the Exchequer Court of Canada (Toronto Admiralty District) by writ of summons, the Ontario Gravel Freighting Company, Limited, being plaintiffs, and the ships “A. L. Smith” and “Chinook” being defendants. On the 12th of May the ships were arrested in Canadian waters, and on the 13th of May, 1913, by order of the court the ships were released, on bail by the United States Fidelity and Guaranty Company, the company in its bond submitting itself to the jurisdiction of the court, and consenting
that if Jacques and Son, owners of the vessels “A. L. Smith” and “Chinook,” seized by the sheriff in the County of Essex, in this action, and for whom bail is to be given, shall not pay what may be adjudged against them or said vessels or either of said vessels in the above named action with costs, execution may issue against us, the said United States Fidelity and Guaranty Company its goods and chattels, for a sum not exceeding $12,000.
The owners of the appellant ships appeared and defended the action denying liability and setting up the following special defence (in paragraph 9):—
It is submitted that the defendant vessels being American vessels and the accident having occurred wholly in American waters and proper steps having been taken to appraise defendant vessels and fix the amount of liability attaching to them in the District Court of the United States for the Eastern District of Michigan, Southern Division in Admiralty, this honourable court has no jurisdiction to entertain or try this action.
At the trial the parties directed their evidence to a single issue of fact, that namely, whether the collision was due to the fault of the officers of the “A. L. Smith” wholly or in part, who admittedly were also the officers in charge of the “Chinook” and admittedly were the servants of their owners for whose negligence, if any, the owners were responsible personally. That issue of fact was decided by the learned trial judge against the appellants, the collision having been found to have been wholly due to the fault of the officers in question. It is important to note that the defendants did not by their pleadings allege that they were entitled by law to have their liability limited under any English or Canadian statute. Nor was any suggestion to such effect made at the trial. Neither was it suggested at the trial (and there is no suggestion of this on the pleadings either), that they were entitled in this action to have their liability limited by the putting into effect in these proceedings of certain provisions on the subject of limitation of liability in certain statutes of the United States of which evidence was given, and to which it will be necessary hereafter to refer. The defendants did, however, at the trial rely upon the defence set up in paragraph 9 of the statement of defence above quoted. At the opening of the trial counsel for the appellants addressed the court as follows:—
Mr. Ellis: You will notice we raise the question of jurisdiction. The accident is alleged by us to have happened entirely in American waters, and would undoubtedly be wholly in the jurisdiction of the American courts. They have, as a matter of fact, taken it up over there, and the liability has been limited. Two deaths occurred as a result of this accident. Now, the amount may be limited, and it has been fixed, I believe, at $1,500, and that is available for all American creditors, and it seems to me it is in direct contravention of the rights of the American courts for these parties to come in here, and seize these boats and claim complete jurisdiction. It means these plaintiffs are claiming that these boats are liable here for a greater amount perhaps than has been fixed by the American courts. Bonds were filed in the American courts holding the boat liable for $1,500 to answer for these deaths, and all damages, which would of course be an insufficient amount to meet the damages. Now, under the comity of nations can these creditors step in and take away the assets which are insufficient for the American creditors, and say the boats may be sold and disposed, of to answer this damage to these Canadian boats, which when the accident happened were foreign boats? Later counsel for the appellants put the point more specifically:—
Mr. Ellis: I submit that it does, for this reason, that if the law is administered over there it will be administered according to the limitation of the vessels in that action. The accident occurred in American waters, and they were American boats, and if they have jurisdiction to limit the amount and divide the funds that are available either by the sale of the vessels or otherwise, then I submit that this court cannot deal with it, that it would interfere with the administration over there. Now, in order to shew it does interefere with the administration over there and that is a law that should not be disregarded by this friendly nation—if, as I say, the law over there would give these people only a limited sum then they cannot take the very assets that are available to those people under the laws of that friendly nation, take that vessel away and distribute the funds amongst the foreign creditors. Now, that is a reason why the question of jurisdiction should be decided, and why we should not attempt, to take out of the other jurisdiction such an action as this.
I reproduce these extracts from the record to make it clear beyond dispute that not only in the statement of defence (see paragraph 9 quoted above), hut orally at the trial the appellants put forward the proceedings in United States courts for the sole purpose of supporting an exception to the jurisdiction. To establish the plea to the jurisdiction evidence was given by a gentleman who is a proctor in Admiralty in the United States. In substance his testimony is to the effect that the owners of vessels involved in a collision may limit their liability or prospective liability for the fault of those in charge of the navigation by surrendering the vessels in fault or by having the value of it ascertained in accordance with the proper procedure and paying the amount so ascertained into court or giving security for the payment of it as the court may order. At the trial no evidence was offered of any such proceedings in the American courts. But some time after the trial an exemplification was filed by leave of the learned trial judge which shews that certain proceedings had been taken. I will discuss those proceedings in a moment. It will be sufficient now to say that in my judgment an inspection of the record of them is enough in itself to dispose of the plea to the jurisdiction in support of which it was put forward.
As to the proceedings at the trial it should further be noted that on behalf of the appellants it does not seem to have been disputed that assuming the plea to jurisdiction to fail and the appellants’ servants to be held to have been wholly in fault, full reparation for the damages suffered by reason of the collision was recoverable by the respondents. Having come to the conclusion as I have just mentioned that the plea to jurisdiction fails upon grounds which it would be more convenient to specify later and that the learned judge’s conclusion that the collision is solely attributable to the fault of the officers in charge of the navigation of the appellant ships is the right conclusion (the learned judge stating in his judgment that the “A. L. Smith” was solely in fault means that, as between that ship and the tug “Moyles,” the fault was solely that of the “A. L. Smith”), it follows that the case must, in my opinion, as regards all the issues and contentions presented at the trial, be decided against the appellants.
Mr. Bartlett, however, who appeared as counsel for the appellants, took up entirely fresh ground. And it is necessary to consider the questions which arise when the case is looked at from the point of view of his able and helpful argument. First, he argues, the action being an action in rem and the owners having appeared solely for the purpose of contesting the liability of the vessels arrested the court could only pronounce judgment against the blame worthy ship, if one only was blame-worthy. Secondly, since as he contends, it results from the facts appearing upon the record that the “Chinook” cannot be held to be in fault, he argues that the proceeding being a proceeding in rem to enforce against the “A. L. Smith” a lien arising out of the negligence of her officers and the consequent harm suffered by the respondents’ vessel the proceedings in the American courts are a complete answer to the action on the ground that according to the law of the United States those proceedings had the effect of entirely discharging any such lien and substituting for the “A. L. Smith” the fund (or security) deposited by the owners.
As applicable to these contentions I observe first, that, in my opinion, the effect of the judgment of the Court of Appeal in The “Gemma”[20], and of Sir Francis Jeune in The “Dictator”[21], is that the owners of the appellant ships, by appearing and contesting the liability of the vessels, became parties to the action and subject to have personal judgment pronounced against them in the action for the full amount of damages for which according to the principles of law appropriate for the decision of the case they are personally liable. I have read the comments upon these decisions in the introduction to Williams and Bruce, Admiralty Practice, but whatever view may be taken by a court competent to reconsider the principles laid down by the Admiralty Courts of England as to Admiralty practice I think a proper deference to the opinions upon the points in question expressed by the eminent judges who were responsible for the decisions mentioned requires me to follow them. Primâ facie, therefore, the appellants are responsible.
2ndly. “As to the American proceedings; the contentions of the appellant rest upon the hypothesis that on the facts before us the “Chinook” is free from fault. I do not think this contention is open to the appellants for the purpose of sustaining the contentions put forward, or rather it is only open in the form of the proposition that the facts proved are so conclusive in favour of the innocence of the “Chinook” that no further available evidence could rebut that conclusion. The “A. L. Smith” and the “Chinook” admittedly had one set of officers, that is to say, the navigation of the “Chinook” was entirely in charge of the officers of the “A. L. Smith.” In the pleadings they are referred to as “the officers of the ‘Chinook.’” (Paragraphs 1, 6, and 7 of the statement of defence.) The question of the identity of the “Smith” and the “Chinook” for the purpose of assigning fault is primarily a question of fact (see the authorities discussed below), and if the defendants had intended to rely upon the contention now advanced that the “Smith” was alone to blame, that contention ought to have been put forward at the trial when all the facts bearing upon the question of identity could have been threshed out. Not having done so the burden, on appeal, is that just indicated.
Inspection of the proceedings in the United States courts shews that the petition for limitation of liability does not refer to the fact that the “Chinook” was in tow of the “Smith”, at the time of the collision; and that none of the special facts bearing distinctively upon the culpability of the “Chinook” was disclosed. It is a petition to limit the liabilities of the owners of the “Smith” to the value of the “Smith” upon the hypothesis that the “Smith” alone was delinquent. It seems too clear for argument that such proceedings could be no answer to proceedings in the Exchequer Court against the “Chinook,” or against the owners personally either as supporting a plea to the jurisdiction or otherwise, unless it now appeared that in fact the “Chinook” was not at fault. In point of fact in the paragraph quoted above from the statement of defence (paragraph 9), it is alleged that the proceedings in the American courts were proceedings taken to appraise both vessels, and the attention of the court below does not appear to have been called during the trial to the fact that this was an error. When some weeks after the trial the exemplification was filed the real facts were for the first time placed upon the record.
But in substance this contention now advanced by Mr. Bartlett for the first time fails in my view for the reason that the facts as disclosed at the trial favour the conclusion of “identity” rather than non-identity of the “Smith” and the “Chinook” for the purpose now in hand. This view is fatal not only to Mr. Bartlett’s contention which was that the American proceedings in themselves afford a defence, but it is also a conclusive answer to suggestions not advanced by him as, for instance, that in this court the damages should be limited to the value of the “Smith” or that there should be a stay of proceedings in the Exchequer Court pending the determination of the proceedings in the United States courts or that the case should be referred back to the trial judge to give the appellant an opportunity to offer further evidence as to the effect of the American law.
I assume in favour of the appellants (without expressing an opinion as to the correctness of the assumptions);
1. That the personal obligation ex delicto of the owner of a ship held responsible for a collision is discharged according to the United States law by the surrender of the ship or payment of or deposit of security for the amount of her value in limitation of liability proceedings, and that the inchoate lien on the offending ship is thereby extinguished;
2. That such surrender or payment or deposit in such proceedings in the United States courts would be an answer to this action on the ground that such a discharge would according to the doctrine of Phillips v. Eyre[22] destroy the obligation springing from the delict under the lex loci delicti commissi, as well as the lien based upon that obligation; and
3. If the proceedings in the United States courts had not the effect of discharging the personal obligation—that the obligation ex delicto being in substance limited by the law of the locus delicti commissi to the payment of the value of the offending res the amount of damages recoverable in the Exchequer Court is also limited by that value.
These assumptions made—the respondents being for reasons already given entitled to judgment on the issues and contentions presented and investigated at the trial—the appellant (now suggesting for the first time a defence based upon the allegation of fact that the “Chinook” is not implicated in the fault of the officers in charge) must fail unless it necessarily results that the evidence given at the trial is to exculpate the “Chinook”; and that question I proceed to consider.
I emphasize the special nature of the burden upon the appellants in this issue for the reason that if the issue had been raised at the proper time some circumstances not without relevancy to it would probably have been proved by explicit evidence which, in the actual state of the record, are matter of inference only.
First, as to the relevant facts. The “A. L. Smith” and the “Chinook” were owned by the same owners and by them were employed in their business, the transport of gravel and sand as carriers on the St. Clair River and its tributary waters. The tug having no storage space and the barge neither means of propulsion nor apparatus for steering, each was the necessary complement of the other for performing the function of transport. On the occasion of the collision as usual the barge, which was then light, was attached by a short line, ten or fifteen feet long, to the tug. The men employed on both tug and barge were under the control of the captain of the tug, who, with his crew, had charge of the navigation of both. They were in fact navigated as a single craft by one crew, who were the servants of the owners of both and expressly employed for that purpose.
The “Smith” appears to have been employed in navigating the “Chinook” for several seasons; and there seems no reason to doubt that while loading and unloading, as well as when she was in transit, the “Chinook” and her crew (she was equipped with a derrick and crew for loading and unloading) were, as is usual in such cases under the control of the officers who also were in charge of the “Smith.” In a word, in the freight-earning service of this composite body both component parts tug and tow were for all the purposes of their service under the control and management of the same set of servants acting in the execution of their duties as servants of the common master.
As to the law. In these circumstances I think the tug and barge were according to the principles of law administered in the Court of Admiralty a single vessel in intendment of law for the purpose of assigning responsibility for negligent navigation.
The question of the test to be applied in determining whether in such circumstances there is constructive identity of tug and tow was discussed in the House of Lords in The “Devonshire”[23]. Lord Ashbourne, at p. 648, and Lord Atkinson, at p. 656, stated that the question is a question of fact not of law to be determined in each case on its own circumstances. Lord Halsbury concurred with Lord Atkinson. The Lord Chancellor adopted the rule which had been laid down by Mr. Justice Butt, in delivering the judgment of himself and Sir Jas, Hannan in The “Quickstep”[24], in which the principle was accepted that had been enunciated by Mr. Justice Clifford in the judgment of the Supreme Court of United States; Sturgis v. Boyer[25], at p. 122. The rule is thus stated by Butt J. at pp. 199 and 200:—
In all such cases, however, the real question is whether or not the relation of master, and servant exist