Fanad Head v. Adams

Fanad Head v. Adams
Collection
Supreme Court Judgments
Date
1949-03-18
Report
[1949] SCR 407
Judges
Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Fanad Head v. Adams, [1949] S.C.R. 407
Date: 1949-03-18
S.S. Fanad Head (Defendant) Appellant;
and
Henry W. Adams Et Al (Plaintiffs) Respondents.
1948: November 2, 3, 4, 5; 1949: March 18.
Present: Taschereau, Rand, Kellock, Estey and Locke JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA, NOVA SCOTIA ADMIRALTY DISTRICT.
Shipping—Collision at sea in dense fog between fishing schooner and steamer in convoy—In situation of danger convoy orders re speed and position subject to each ship taking independent action in exercise of good seamanship. International Rules of the Road, article 16, (P.C. 259, 1897).
The steamer Fanad Head and the auxiliary fishing schooner Flora Alberta collided in a dense fog on the Western Bank fishing grounds off the Nova Scotia coast. The schooner sank with a loss of twenty-one of her crew of twenty-eight. The Fanad Head was one of a convoy of eight ships in command of a commodore. The convoy was formed in three columns, the commodore's ship led the centre column, the Fanad Head the port column of two ships, separated from the nearest ships by three cables abreast and two astern. Under Admiralty orders, transmitted by the commodore each ship was required to keep in convoy order both as to speed and course. For some time prior to the collision the ships were running at eight knots an hour without lights, except for a cluster of white lights at the stern as a guide for the following ships, and fog signals were blown every ten minutes by the leading ship of each column. On hearing a high pitched whistle ahead and to port, the Fanad Head sounded her column number independently and showed navigation lights, and hearing no reply, sounded again some few minutes later, but did not reduce speed. Three to four minutes later she again heard a high pitched whistle to port and a few minutes later saw lights 300 to 400 feet from the bow whereupon she put her helm hard to starboard, her engines full speed astern and blew three short blasts. The Flora Alberta was preceding through the fog at nine knots an hour and blowing her fog whistle at regular intervals and her survivors said they heard no other fog signals until a steamer's whistle was heard at about the same time as her lights were sighted a ship's length away bearing down on them. Efforts of both ships to avert the collision were unsuccessful.
International Rides of the Road, article 16, (P.C. 259, 1897), provide that every vessel shall, in a fog go at a moderate speed, having careful regard to the existing circumstances and. conditions and that a steam vessel hearing, apparently forward of her beam, the fog signal of a vessel, the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.
Held: Admiralty Orders to ships in convoy both as to speed and course are subject to the responsibility of the master of each ship in any situation of danger taking such independent action as good seamanship may require. Larchbank v. British Petrol [1943] A.C. 299 followed.
Held: also, Taschereau J. dissenting, that the negligence of both ships contributed to the collision and the blame should be apportioned to the extent of two thirds to the Fanad Head and one third to the Flora Alberta.
Per Taschereau J., dissenting, the speed of the Fanad Head was the determining cause of the accident. It was the duty of her Master, when he heard the fog signals of the Flora Alberta to reduce to moderate speed, and if the latter's position could not be ascertained, to stop the engines and navigate carefully. It seems clear he only inferred her position but this is not sufficient, he must ascertain it. Nippon Yusen Kaisha v. China Navigation Co. [1935] A.C. 177. The finding of the trial judge that the Flora Alberta some time prior to the collision had reduced to a moderate speed, was right.
APPEAL from the judgment of Carroll J., Local Judge in Admiralty for the Nova Scotia Admiralty District of the Exchequer Court of Canada 1.
H. P. MacKeen K.C. and Gordon Dunnet for the appellant.
W. P. Potter K.C. and Donald McInnis K.C. for the respondent. Taschereau J. (dissenting):—The owners of the ship Flora Alberta, a fishing schooner, claim $100,000 from the British ship Fanad Head owned by the Ulster Steamship Company, Limited, as the result of a collision which occurred on the 21st of April, 1943, on the High Seas on the Western Bank Fishing Grounds, and at a distance of approximately 90 miles southeast of Halifax.
The Fanad Head has a length of 420 feet, a breadth of 59 feet, and a net registered tonnage of 3002 tons. She is powered by triple expansion engines and her maximum speed is 11½ knots. She was mastered by Captain Thos. Heddles, and left Halifax on April 20, 1943, with a general cargo, forming part of a convoy, destined for the United Kingdom. There were eight ships in the convoy, and the Fanad Head was leading the port column, the Commodore's ship ss. Telapa with Captain Hugh Roberts, was leading the centre column and was in charge of the convoy. The third column on the starboard side, was led by the ss. Tetela. There were three ships in this last column, three in the centre column, and two in the port column, separated by three cables abreast and two cables in line. The convoy was steering a course of 132 degrees, with an ordered speed of 10 knots.
The Flora Alberta was a vessel of about 140 feet long, had a breadth of 26.4 feet, with a registered tonnage of 93 tons. She left Lunenburg, N.S. on the 17th of April, 1943, bound for the Western Bank Fishing Grounds, west of Sable Island. She reached these grounds on the 18th of April where she stayed on the 18th, 19th and 20th of April. In the course of her operations, she drifted eastward, but on the 21st of April, a course was made to return to the bank, due west magnetic. It was while returning to the Fishing Grounds that on the 21st of April, in the midst of a very dense fog, a collision occurred and the Flora Alberta sank within a few minutes). Of a crew of twenty-eight members, only seven were saved.
The Honourable Mr. Justice Carroll, L.J.A. with the assistance of a nautical assessor, found against the Fanad Head, and gave judgment for the owners of the Flora Alberta. The appellant now appeals from that judgment. The main facts as revealed by the evidence, may be summarized as follows:—
At 2 a.m. Standard Time, on April 21st, the fog was very dense and the visibility was poor. The convoy was running in a northwest-southeast direction at a speed of 8 knots. Previously, this speed had been 10 knots, but it had been reduced, not on account of the fog, but because the convoy would otherwise have arrived too early at a planned rendezvous with ships which were to join the convoy. Under orders, the eight ships were running without lights, the only exception being a white cluster at the stern as a guide for the following ships. The Fanad Head had starboard lights, and the Commodore's ship was equipped with starboard and port lights, while the leader of the starboard column had port lights as a guide for the leaders. Every ten minutes fog signals were blown, consisting of various blasts indicating the leaders' numbers, beginning on the Commodore's ship' and then on the leader on starboard, the Tetela, and then by the port leader, the Fanad Head. These fog signals were the signals ordered for the convoy, but were not the ordinary fog signals required by the regulations.
The Flora Alberta was heading in a westerly direction with her starboard side towards the oncoming convoy. The suggestion that she had turned around in an easterly direction, has been rightly discarded by the learned trial judge. She had been running at a speed of about 9 knots, but some time before the collision, the Master noting the depth of the water, and realizing that he was nearing the fishing area, reduced the speed to approximately 4½ knots. The fog whistle was blown at regular intervals.
It is also in evidence that at 4:10 the officers on the bridge and the lookout of the Fanad Head, heard the sound of a high pitched whistle, and a second one at 4:17, both on the port bow. Captain Roberts of the Telapa says:—
I heard some time afterwards a definite sound signal a little forward of our port beam, one long blast, and close to the convoy. I formed the opinion at that time that this signal had some connection with the previous one that I thought I heard. I was suspicious and I was on the alert, and I knew definitely then that there was a ship in the vicinity.
After the first blast, Captain Heddles of the Fanad Head immediately ordered the navigation lights switched on his ship, blew his column number independently, and on hear- ing the second whistle sounded his column number again, but did not reduce his speed. A few minutes later, he saw a white light and a green light at about 300 or 400 feet from his bow. He then ordered "Hard astarboard" and "full astern", and blew three short blasts. On the Flora Alberta some members of the crew heard only one blast a few seconds before the accident. At the same moment they saw the lights of the Fanad Head, but it was obviously too late to avoid the collision.
I have come to the conclusion that the Master of the Fanad Head cannot be exonerated. His speed of 8 knots in this dense fog was clearly in violation of Article 16 of the International Rules which reads as follows:—
Art. 16: Every vessel shall, in a fog, 'mist, falling snow, or heavy rain storms, go at a moderate speed, having careful regard to the existing circumstances and conditions.
A steam vessel hearing, apparently forward of 'her beam, the fog signal of a vessel, the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.
It was obviously the duty of the Master of the Fanad Head when he heard the fog signals of the Flora Alberta to reduce to a moderate speed, and if the position of the Flora Alberta could not be ascertained, his only alternative was to stop the engines and navigate carefully. From the blasts that 'he heard, it seems clear that he only inferred the position of the Flora Alberta, but this is not sufficient. He must ascertain it. In Nippon Yusen Kaisha v. China Navigation Co.2, it was held:—
In order that the position of a vessel whose fog-signal is heard by another vessel may be "ascertained" within the meaning of art. 16 of the Regulations for the Prevention of Collisions at Sea, the vessel must be known by the other vessel to be in such a position that both vessels can safely proceed without risk of collision. An inference as to the vessel's position, based upon the direction from which the fog-signal was heard, the probable course which she is taking, and the improbability of her crossing the fairway in a fog, is not an ascertainment justifying a disregard of the precautions enjoined by the above article. Implicit obedience to the Regulations, upon which navigators are entitled to rely, is of great importance.
In his judgment Lord MacMillan made the following statement:—
The position of the Toyooka Maru was not in their Lordships' opinion ascertained within the meaning of the Regulations. It was inferred, "not ascertained, and as it turned out the inference was wrong." In re Aras 3 Sir Gorell Barnes said:—
I think it is exactly the same because it is so well known—so absolutely well known—that it is impossible to rely upon the direction of whistles in a fog, that I do not think any man is justified in relying with certainty upon what he hears when the whistle is fine on the bow, and is not justified in thinking that it is broadening * * * unless he can make sure of it.
The failure of the Master of the Fanad Head to go at a moderate speed and to stop his engines was, in my view, negligence in the circumstances, and the determining cause of this unfortunate accident. Moreover, the Master of the Fanad Head knew that in that particular region of the Atlantic, many fishing schooners were in the vicinity, and he should therefore have exercised a more vigilant look-out.
The speed of the Flora Alberta was moderate. She blew her whistle which was admittedly heard by the Fanad Head, and the moment she heard what is now proved to be the second blast of the Fanad Head, it was too late to avoid the accident. Her failure to hear the first blast, does not appear to be the result of any negligence, but must be attributed to the vagaries of sound signals, transmitted through the air, and which are caused by the lack of uniformity in the density of the fog or the atmosphere.
It is argued on behalf of the appellant that the Fanad Head forming part of the convoy, was subject to the orders of the Commodore, and that the precise orders were that the speed was to be 8 knots. It is said that the Commodore had a legal authority to give such an order as to speed, and that the Fanad Head was under a legal compulsion to obey the order of 8 knots while in convoy, and while subject to those orders.
On this point the law seems to be well settled.
In Larchbank v. British Petrol, 4, it was held that an "emergency" had arisen, not by reason of the mere fact of the fog, but because the Master of the British Petrol had good reason to think that the Larchbank might be approaching, even though he could not hear her, and that accordingly he should have sounded fog signals. The Larchbank was under orders to join a convoy, and although the British Admiralty had forbidden fog signals, it was held that in such an "emergency" the ordinary rules of the sea should be followed, and that fog signals should have been given.
In the Scottish Musician 5 it had been previously decided:—
A vessel enclosed in convoy has the same duty as every other vessel on the sea to take every possible means to avoid a collision. She is not to regard hereself, because she is in convoy as a vessel which is excused from keeping a lookout outside the convoy * * * On the contrary she has to take every possible means of avoiding a collision which she can take without danger, that is to say without creating more imminent danger still to her consorts in the convoy. She has a duty to the convoy to keep her station, but she must not press that duty to the point of never taking measures to keep out of the way of some other vessel which is threatening her with collision.
If any further authority is needed on that point, vide the Vernon City 6, and on Appeal 7. Nowhere will it be seen that a ship in a convoy must not take "individual action" when necessary, to avoid a collision, particularly as in the present case, where it is clear that an "emergency" arose.
Such also were the orders of the Commodore who clearly states in his evidence, that if a ship is in danger, she has to take individual action. The instructions of the Admiralty are that the Master of a ship, although in convoy, is responsible for the safety of his ship, and that if she is in any position of danger, it is for him to take whatever action he thinks fit. He says quite frankly that if, in his opinion, there is any danger, after hearing a whistle of a ship coming near him, he would naturally take some action irrespective of any ship astern or on either side of his own ship, and forming part of a convoy.
For these reasons I think that the trial judge was right, and that the appeal should be dismissed with costs.
Rand J.:—This is a case of collision. The fishing vessel Flora Alberta, between four and five o'clock Atlantic Daylight Time on the morning of April 21, 1943, was running on a west by north course in a dense fog approaching fishing banks lying about 90 miles to the south-east of Halifax. She had been hove to during the night and had drifted some distance to the east of the banks. The final speed is in dispute, but it is admitted that she had for some time been making at least eight knots an hour. The contention is that the speed had been reduced to 4½ knots, and the trial judge has found the order for this to have been given about 15 minutes before the crash. Tanner, the captain, is contradictory. At one place he says he rang for reduced speed while in the pilot house, and in another while on his way to examine the key-sounding device in his cabin; in each case just before going to breakfast. He estimated the time between the signal and the impact at two or three minutes. On board the Fanad Head he spoke of ten knots as his speed. After making every allowance for the circumstance that he was then nearing the fishing grounds, I can find nothing to justify the finding of a 15-minute interval or an actual speed of 4½ knots. I take the fact to be that some few minutes before the collision an order was given to reduce speed, but that the actual final speed was several knots greater than 4½ and on that footing, having regard to the dense fog and the surrounding circumstances, I am unable to agree that the speed was not excessive. So far, therefore, the vessel was proceeding in violation of the rules of the sea.
Was the Fanad Head at fault? She was one of a convoy of seven or eight vessels sailing in a generally south-easterly direction from Halifax in three columns a distance of three cables apart with the ships following each other at two cables or 1200 feet. The Fanad Head was the leading ship on the port side. In the center was the commodore's ship Tilapa and on the starboard the Tetela. In the port column one ship followed the Fanad Head. From 2 a.m. until 'after the accident, the convoy had been moving at eight knots an hour in the fog and from that time until about 4:06 standard time convoy signals had been given at intervals of ten minutes or thereabouts. These would be initiated by the commodore's vessel and would consist of five blasts, the first one two or three, short, to indicate the column, and they would be sounded only by the leading vessel of each line.
About 4:10 a high pitched whistle was heard on the Fanad Head which appeared to come from slightly to port of the vessel's bow. At that time the master, Heddles, the first officer, Rea, an apprentice of twenty years, Stark, and the helmsman, were on the bridge and either then or shortly afterwards the second officer, Davey. The first three agree in their statements of what took place.
Heddles describes the whistle as "one blast of a high pitched whistle ahead on the port bow;" "we waited to see what would happen to see if they would blow again. Then the Chief Officer blew." It was the convoy signal, and was given independently of the commodore. It was blown a second time, likewise without regard to the commodore. After three or four minutes, the whistle was heard again three points on the port bow. He puts the time between two whistles at seven or eight minutes.
It is beyond doubt that the apparent shift from stem to three points port indicated to him a single vessel crossing from starboard to port and that she was out of danger; but "a few minutes later" they saw the loom of a white and a green light "about 3½ points on the port bow" and at about two ships' length or 800 feet away. On the bearing of the first whistle the master was adamant; the second whistle made it obvious to him that the vessel was going clear; and "I assumed she was clear."
As admittedly the Alberta was on a westerly or north of westerly course when the two met, some explanation had to be given of the change, and the master insisted that between the time of the first 'whistle and the collision she had about turned. "She turned around. She could not possibly have come against me if she had not." This leaves no room for doubt of the effect upon his mind of the second whistle. Later on: "I considered the danger was over when she altered her course." Asked "And you say you sounded it again when you heard the whistle the second time?"—he answered: "We blew our column number twice between his blasts to attract his attention"; and later on, "I did not consider an emergency had arisen until I sighted the Flora Alberta three points on the port bow." This evidence excludes the suggestion that after hearing the second whistle, any signal was given before the fishing vessel hove in sight when three short blasts were sounded.
Rea is to the same effect. He says: "At about ten past four we heard a medium length blast of a high note on ahead. I immediately sounded my column number in reply, one short and four long": "we took independent action when we heard the whistle": "I waited then for about two or three minutes and then sounded the column number again. There was still no reply." Later: "A couple of minutes after I sounded my column number the second time, we heard this same note about three points to the port bow. Just after that, about a minute, I saw a white light and the starboard green light and they appeared to me to be about a couple of ships' length away." The vessel was "closing on us very rapidly." "Thereupon the master ordered hard to starboard and rang the engines full astern." "As he did that, I sounded three short blasts on our steam whistle." He agreed that he signalled "twice when you blew your column number and then you blew three short blasts when you went astern." Asked, "Did you take any steps after hearing that whistle (the second)" he answered "We had no time to take any step's, not at that time"; "Until I saw the green light, I thought it had gone from ahead to the port side going clear of me" and "We (meaning the master, Mr. Davey and the witness) all assumed it had gone clear." Questioned: "You blew your column number twice you say;" his answer was: "Yes, between the two blasts we heard we blew once and then waited two or three minutes and then blew it again."
Stark is to the same effect. After the first whistle "We immediately sounded our column number, and at the same time switched on the navigation lights, full brilliancy;" "About two minutes later we again blew our column number." Still later, "We heard the same whistle again. We heard it broad on our port bow", and "Just about a minute after that we saw the lights—a green side light and white masthead light." The vessel seemed to be coming across "our bow at about 90 or 100 degrees." Asked "What happened after 'the first whistle fine on the port bow", he answered, "We sounded our whistle independently of the commodore." Then: "Did you hear the commodore sound his whistle after this deep-toned whistle (the first)?" "No, I never heard the commodore sound his whistle again." He gave the times of the three column signals sounded while he was on the bridge prior to the collision as: 4:06, 4:10 and about 4:12. The first had been a regular signal led by the commodore; and the witness means that after that sounding, the commodore's whistle was not heard again before the accident.
Now, against this very clear and positive evidence by the persons most interested, there is, first, that of the commodore himself. Shortly after four o'clock he heard a faint whistle; it appeared to come "fine on the port side of the convoy." He says: "As a precaution, I sounded my column number" and, asked whether he heard an answer, replied, "I could definitely say that whenever I sounded my column number the leaders of the other two columns sounded theirs." Some minutes later he heard "a definite sound signal a little forward of our port beam." "About two or three points forward of our port beam and apparently close to the convoy." "We immediately blew our column numbers, but I am not sure whether it was the Fanad Head who blew hers first. If she did, we would wait until she had finished sounding before we sounded so as not to have a confusion of signals. But there was definitely plenty of noise at that time." "Did you do anything else on your vessel? No. This other ship being on that bearing, I knew my ship was clear, and it was too late to take any action for the convoy as a whole." Then: "Did you sound any further column signals before you heard the three short blasts of which you have spoken"; "I cannot remember that, because we blew our whistles so often; knowing that there was a ship close to, we would blow our whistle as frequently as possible until all danger was past."
This testimony is vague and general compared with what, I have just considered. He is clearly confused about the initiation of the signals and I cannot accept it as going specifically to the sounding of a convoy signal after the second whistle. I draw the inference that he was satisfied, in the situation of the convoy, to leave to the Fanad Head the responsibility for dealing with the unknown craft ahead.
Then there is Davey. He is asked at once, "What did you hear?" "I heard a high sounding whistle on the port bow." And, "having heard that whistle signal, did you hear any other signals?"; "We all sounded our column signals." But later: "I heard it (the whistle) a couple of times. I do not know whether the chief officer heard it or how many times he heard it." "I do not know whether her first whistle was reported. We may or may not have heard it all together." On re-examination: "Do you remember where you were on the first occasion that you heard her first signal?"; "I am not sure about that, but I believe I was in the chart room when I heard her whistle the first time:" "It may have been" in that room. This likewise cannot be taken to qualify the statements of the others. He is hazy about the circumstances of both whistles and not being on duty after four o'clock, although at times actually on the bridge, it would be but natural that the particular incidents affecting the navigation of the vessel would be more vividly impressed upon the minds of those on whom the immediate responsibility rested.
Then Ward on the lookout is asked: "After you had heard that (the second whistle) did you hear anything more from your own ship"; "Yes, she blew again." And, "In about a minute—it might have been a little more or less— I saw a white light bearing down on the port bow." Previously in speaking of the convoy signals: "I could not say exactly how many times I heard them, but I heard them a few times—twice or something like that—" Describing the signals given after the first whistle, he says: "Yes, our own ship then blew some shorts and longs." Asked "How many times had she blown that signal (the convoy signal) before you heard this other whistle signal?" "I don't know; I didn't pay any attention to our whistle blown." This evidence, too, lacks precision, and I am unable to treat it as affecting in any degree that of those on the bridge.
The vessels of the convoy, being under Admiralty orders as given to them by the commodore, were required generally to keep in convoy order both as to speed and position. This duty, however, was admittedly subject to the responsibility of each vessel to meet any situation of danger in which she might find herself. When, therefore, the second whistle was heard two or three points off the port bow at a distance which the commodore took to be not far from the convoy, did a situation of danger present itself to the Fanad Head which called for the independent exercise of good seamanship? I think the case comes directly within Larchbank v. British Petrol 8. The word "emergency" in the Admiralty direction there is the equivalent of "danger" here. The assumption by the master and officers of the Fanad Head that the Alberta was on a starboard-to-port course and had got clear was quite unwarranted. They could not justifiably act on the view that the same vessel had given both signals or upon the apparent quarter from which the first whistle came. Both signals indicated a vessel in motion forward of the beam and the situation called imperatively for at least such action on the part of the Fanad Head as could be taken without danger to or serious dislocation of the ships of the convoy. Nothing of that sort would have resulted from sound signals at the moment of the second whistle. Although it is difficult to be precise, yet it is I think unquestionable that at least from two to three minutes elapsed between the second whistle and the sighting of the lights of the Alberta. The three blasts were clearly heard by the Alberta and there is the strongest probability that had a signal been sounded at 4:17 it would have been heard on the Alberta. The failure to hear the signals given four or five minutes before when both vessels were making eight knots is, in the conditions of fog, quite consistent with that conclusion. It is evident, too, that with that additional two or more minutes there would have been sufficient time to manoeuvre the Alberta out of collision.
Against this neglect, Mr. McKeen urges both the failure of the Alberta to hear the earlier signals sent out by the Fanad Head and to have seen the latter much sooner than it did. In the weather conditions then prevailing, swell, heavy fog and wind, the vagaries of sound are notorious: and counsel was driven to say that those who should have been on deck duty were either asleep or below: but their fog signals were being given and heard; and considering the circumstances and the ordinary apprehension of a fishing vessel for fog-shrouded dangers, I find it impossible to treat their evidence in this respect as deliberately false. It is a corroborating circumstance that the master of the Tetela, 1800 feet approximately south-westerly of the com- modore, did not hear the second whistle although he did hear the crash of the vessels coming together; and the distance between the Tetela and the Alberta at say 4:17 was considerably less than between the Fanad Head and the Alberta at say 4:13.
Nor can I conclude that the Alberta should have seen the Fanad Head in time to swing out of danger. The vessels were coming together at a rate of between 20 and 25 feet a second: and as the first officer, Rea, says, the final events crowded rapidly. Even if the Fanad Head had been seen at the moment of the emergency signal, the evidence would not justify us in saying that reasonable action by the Alberta would have been sufficient.
In these circumstances the question remains whether the Alberta by her violation of Article XVI contributed to the collision. Those on board the schooner could reasonably expect a reply from any vessel hearing their signal and the Fanad Head should have given it: the failure to do so misled the Alberta and influenced in fact both her course and speed: and that had the answer been given, the schooner, notwithstanding her speed, could have avoided the collision, is virtually conceded. Mr. McKeen's strenuous contention was that even after the three blasts there was time to have taken avoiding action; and to add two or three minutes longer is to conclude the question.
But rules of the road accumulate precautions in the general interest of safety; lookout, speed and sound signals anticipate not only accidental and unavoidable circumstances and situations, but the careless and the misjudged as well; and it is not sufficient for the respondent to say that the reply signal would have enabled him to nullify his own delinquency. What we are determining is liability and not abstract causation and it has not been shown that the collision would have taken place regardless of the speed of the Alberta.
Although there is no order of precedence in these measures for safety, yet their actual interrelation is to be taken into account in determining degrees of responsibility. Sound signals are clearly dominant in fog and the error on the part of the Fanad Head was far more serious in its consequences than the excessive speed. I would, therefore, attribute to the fishing vessel one-third and to the Fanad Head two-thirds of responsibility.
The appeal should be allowed in part with costs in this Court and the judgment below varied accordingly. The respondent will be entitled to two-thirds of its costs in the Court below.
Kellock J.:—It is not necessary to repeat an outline of the main facts appearing in evidence. With respect to the speed of the Flora Alberta when the Fanad Head was sighted, I think the learned trial judge was in error in his finding that it had been reduced to approximately four and one-half knots almost fifteen minutes before the collision. I find no evidence to support that finding. Nor do I think that attention should not be paid to the statement admittedly made by Captain Tanner aboard the Fanad Head the afternoon of the day of the collision. The learned trial judge did not hear any of the evidence of this witness and I see no reason why the statement most nearly related in time to the event here in question should not be taken as more reliable than statements made on much later occasions when the evidence of the witness, taken as a whole, appears to have been given without due care to be accurate. Tanner gives no reason why the statement should not be taken as representing the fact.
Rea, the first officer of the Fanad Head says that Tanner, on being asked as to the speed of the Flora Alberta, said that he was making ten knots. This evidence does not stand by itself. Captain Heddles, of the Fanad Head, said that in his opinion the speed of the Flora Alberta, when he observed her come out of the fog, was at least nine knots. Rea says the Flora Alberta was, at the same time, "cruising rapidly". In my opinion, therefore, it should be found that the speed of the Flora Alberta at the time of the collision and at all relevant times before that event was at least nine knots. That this was excessive in the circumstances, I have no doubt.
None of the witnesses called for the respondent would admit having heard any of the whistling of the Fanad Head or of any of the other convoy leaders. The reason given, in argument, was the existence of fog and the well known vagaries of sound in fog. If, however, one were to have regard to the evidence of Captain Tanner alone, he said, in answer to his own counsel, that under the conditions prevailing on that particular morning, the whistle of an ordinary steamer could be heard at a distance of seven or eight miles. There is also the fact that the whistling of the convoy leaders was heard in both directions, i.e., the whistling of the Telapa and the Tetela was heard by the Fanad Head and that of the latter by the Telapa. No witness was called from the Tetela, the leader of the starboard column.
The recklessness of speeding through the fog at nine knots in an area where, as Tanner knew, a convoy might be met with, does not add to the acceptability of the evidence on behalf of the respondents on this point. That such evidence is not to receive automatic acceptance is of course clear; The Curran 9, is an illustration, if one be needed. But I am, however, not prepared to find that the convoy signals were heard or should have been heard had a proper lookout been kept on the Flora Alberta. Negligence, however, in the matter of speed is to be charged to that vessel.
As to the visibility at the place and time immediately, preceding the collision, the only witnesses for the respondents who were able to speak, were the lookout, Knickle, and the helmsman, John Reinhardt, The others, with the exception of Best, who was drowned, were below when the Fanad Head was sighted. Knickle says he heard the Fanad Head's whistle and saw her lights at the same time. He says he did not see the form of the other ship at any time. He estimates the distance between the two ships as "100 feet or so", or about a ship's length, i.e., 140 feet, but he says, what is of course obvious, that he cannot be sure. As to the time interval between sighting the lights and the collision, he says he just had "time enough to go aft and time enough to get back". This is not very helpful.
John Reinhardt also saw the steamer's lights at the same time as he heard the last whistle blown by her. He estimates the distance then separating the vessels at two shiplengths, which would be about two hundred and eighty feet, but he says he could not say how far she was away. It was the whistle which attracted the attention of both these witnesses.
Captain Heddles, of the Fanad Head, estimates the visibility at eight to nine hundred feet. When he saw the Flora Alberta he says she was about that distance away. Rea, the Chief Officer of the Fanad Head, says the same thing. Captain Roberts, the Commodore, estimated the visibility of lights at the time at about the same distance. Davey, the second officer of the Fanad Head, says the white light of the Flora Alberta was over a ship's length away when he saw it, but he cannot be more definite than more than a ship's length and less than three cables.
Stark, the apprentice on the Fanad Head, estimates the distance at not more than a ship's length. The Fanad Head is 420 feet long. Dennis Ward, the lookout on the Fanad Head, says he "could just about make the bridge out and no more; just the outline of the bridge I could make out"; i.e., the bridge of his own ship. He says further, however, , that when he saw the white light of the Flora Alberta he could not say whether it was at a greater or less distance than that between him and the bridge. He could not "estimate the distance of light in fog".
When the helmsman on the Flora Alberta saw the appellant ship he turned his vessel to port and when Captain Tanner heard Knickle's call he came up on deck and gave Reinhardt the order to stop. The latter then rang for the stopping of the engine. The Fanad Head had reversed her engines when she whistled the last time and had also starboarded her helm.
As to the Fanad Head, it is admitted that she was subject to binding orders which required her to keep in the convoy, on its course, and at its speed. This does not mean, however, that she had to continue blindly no matter what eventuated. She was also obligated, if occasion arose, to observe the rules of good seamanship, having regard to the fact that there was a vessel behind her, which might as well as other vessels in the convoy on her starboard be out of position. I do not find fault with the Fanad Head because she did not stop her engines when she heard the whistle of the Flora Alberta on either the first or second occasion, having regard to her being in convoy and to the presence of the other vessels I have mentioned. I think, however, that her officers erred in assuming that the ship whose whistle was heard on two occasions, if it were in fact the same ship, had gone out of danger. No doubt they assumed that ship would have heard the whistling of their ship and that of the other convoy leaders just as the Fanad Head had heard the whistle of the Flora Alberta, but they erred in assuming that they had ascertained either her course or position. I think the Fanad Head ought to have sounded on hearing the Flora Alberta not only as she did the first time, but the second time as well when the latter was much closer, and failure to do so constituted negligence directly contributing to the collision.
I think, however, that the excessive speed of the Flora Alberta was negligence of the same character. She was struck almost amidships. Therefore, as little as 100 feet would have made all the difference. Kerr, the engineer on the Fanad Head says that from the time he had got the engines of his ship going astern until he felt the bump of the collision was from one to one and a half minutes. There is a considerable body of evidence to the same effect. In one minute the Flora Alberta would travel 900 feet at nine knots and the Fanad Head 800 at eight knots.
In The Campania 10, Gorell