I. Introduction and
Background
[1]
In
this action the Plaintiff, Grieg Shipping A/S (Grieg Shipping) sues the ship
Dubai Fortune (Dubai Fortune) and its owner Fortune Maritime Ltd. (Fortune
Maritime) on the basis they are vicariously liable for the negligence of a tug
assisting in the berthing of the Dubai Fortune, at the time under compulsory
pilots having conduct of that ship. On the morning of June 22, 2007, at
about 10:14 a.m., the tug Tiger Shark 2 (Shark) struck the propeller of the
M.V. “Star Hansa” (Star Hansa), also an ocean going bulk carrier, at the time
safely moored at the Lynnterm Berth #1. The owner of the Star Hansa, Grieg
Shipping, commenced an action claiming damages of $2,700,000, plus interest.
In addition to suing the Dubai Fortune and Fortune Maritime it also sued Smit
Harbour Towage Vancouver Inc. (Smit), the owner of the Shark and of two other
tugs, namely, the Tiger Spirit (Spirit) and the Tiger Sun (Sun) who also
assisted in the berthing of the Dubai Fortune at Neptune Berth #3 located
directly opposite the Lynnterm Berth.
[2]
This
Court is concerned only with the question of liability; the damage claim is to
be determined at a later date, if necessary. Only two issues were raised as to
liability:
i.
Is
Fortune Maritime., the owner of the Dubai Fortune, vicariously liable to the
Plaintiff for the damage caused by the Shark to its vessel the Star Hansa; and
ii.
If
so, is the liability of the Dubai Maritime according to the tonnage of that
ship, (27,000 tons) or to the tonnage of the Shark which is less than 100 tons.
[3]
The
determination of liability issue at the trial was simplified for the following
reasons:
i.
First,
in December 2011, Smit and Fortune reached an agreement to settle the issues
between themselves. Smit admitted the damage to the Star Hansa was caused
by the negligent manoeuvring of the Shark and agreed its owner Smit was
entitled to limit its liability on the basis of the Shark’s tonnage pursuant to
the Marine Liability Act (SC 2001, c 6) (MLA) which, in its
Schedule 1, incorporated into Canadian maritime law the Convention on
Limitation of Liability for Maritime Claims (the 1976 Convention). According
to section 29 of the MLA, Smit’s maximum liability was $500,000 because
the Shark was less than 300 tons in gross tonnage.
ii.
Second,
the Plaintiff, Grieg Shipping accepted Smit’s tender of the $500,000 on the
express understanding it could press its claim against Fortune Maritime on the
basis it was vicariously liable for the negligence of the Shark’s Master.
Claims against the other tugs were discontinued. Smit did not participate in
the trial of the remaining issues which concerned only Grieg Shipping and
Fortune Maritime and the Dubai Fortune.
iii.
Third,
in closing arguments, counsel for Grieg Shipping conceded there had been no
negligence on the part of the two pilots or any other person on the Dubai
Fortune in berthing it. That concession left only the issue of vicarious
liability alive in terms of liability.
iv.
Fourth,
the parties agreed Fortune Maritime was entitled to limit its liability with
the only question to be dealt with on that point was the size of its monetary
limit, which as noted, depends on which tonnage applies: the tonnage of the
vessel being berthed or that of the Shark, the tug causing the damage. Fortune
Maritime says the relevant tonnage to calculate its maximum liability is the
tonnage of the offending tug, the Shark and therefore $500,000 together with
interest and costs to December 16, 2011. Fortune Maritime further argues the MLA
and the Convention contemplates only one limitation fund for each distinct
occurrence with the result that any liability it is obligated to pay is already
subsumed by the $500,000 payment Grieg Shipping received from Smit. On the
other hand, Grieg Shipping says the relevant tonnage to fix Fortune Maritime’s
maximum liability is the tonnage of the vessel being berthed. If that is the
case, the limitation fund would be sufficient to cover the damages suffered to
the Star Hansa.
v.
Fifth,
counsel for the Plaintiff and for the Defendants, the only remaining parties
before me, submit the foundation for a finding of vicarious liability is
grounded in the law of tug and tow which turns on the legal relationship
between a tug and the vessel being towed or berthed, such legal relationship
being predicated on the determination of whether, at the relevant time, the tug
was the servant of the vessel being towed or berthed, a question decided by
applying the test of who was in control of the damage causing manoeuvre of the
Shark so as to make that person responsible at law for the Shark’s negligence.
[4]
Counsel
for Grieg Shipping placed substantial reliance on the Federal Court’s decision
in Canada v Delta Pride (The), 2003 FCT 11 (the Delta Pride) while
counsel for Fortune Maritime stressed the importance of the U.K. decision in
the “M.S.C. Panther” and the Ericbank, Vol 1, 1957, p 57, Lloyd’s List Law
Reports (the Panther) (MSC Panther).
II. The berthing of the Dubai Fortune
[5]
The
berthing of the Dubai Fortune at Neptune Berth #3 situated in the confined
waters of the basin in which are located both the Neptune and Lynnterm Berths
took place, as noted, under compulsory pilotage governed by the Pilotage Act
(RSC, 1985, c P-14). Its section 25, provides that subject to exemptions
provided in the General Pilotage Regulations which have no application in this
case, “no person shall have the conduct of a ship within a compulsory
pilotage area (here the Port of Vancouver) unless the person is a licensed
pilot.” Three tugs were necessary for the berthing of the Dubai Fortune: the
Shark, the Spirit and the Sun, all owned and supplied by Smit. They had the
following tasks:
i.
The
Shark was designated as the line tug. It was not made fast to
the Dubai Fortune by a line and thus could move freely. The Shark had a number
of duties in relation to the berthing. It was to provide relevant ongoing
information to the pilots on the progress of the berthing as the Dubai Fortune
is a very large ship and the pilots, who worked in its stern area, could not
assess what is happening in the bow area as the ship moves into its berth. In
short, the Shark is to act as the eyes of the pilots as the Dubai Fortune
advances into its slim berth at Neptune Berth #3 which has been described as a
“finger berth” located next to the Lynnterm Berth #1 occupied by the Star
Hansa, leaving only a narrow channel between the two ocean going bulk carriers
for any movement of vessels or tugs.
ii.
The
Shark had a second function. Once the Dubai Fortune was in about final position
in its berth, the Shark was to take the ship’s bowlines dropped from the Dubai
Fortune’s bowdeck and run them to the Neptune dock where waiting longshoremen
would tie them to bollards in order to secure the Dubai Fortune in place. Once
the bowlines run and tight, the Shark was to depart from the Dubai Fortune’s
bow, travel down the narrow channel between the Dubai Fortune and the Star
Hansa, passing behind the sterns of the Spirit and the Sun in order to run the
Dubai Fortune’s stern lines to the Neptune dock to secure the ship’s stern.
iii.
The
Spirit and the Sun operated as bow and stern assist tugs respectively. The
Spirit’s location was on the Dubai Fortune’s starboard side bow area while the
Sun was in the ship’s starboard stern area. Both of these assist tugs were
fastened by tug lines to the Dubai Fortune. The basic function of these two
tugs was to respond to orders of the pilots to provide needed pushing or
holding power in combination, if need be, with the Dubai Fortune’s engines in
order to place and hold the ship in its proper final position in the berth
until the ship was securely moored.
iv.
The
berthing operation was complicated by the appearance of another Smit tug, the
Pacific Tyee (the Tyee); the Tyee was to replace the Shark as line tug since
the Shark’s Master was close to the end of his 12-hour shift which began the
previous night at 10:00 p.m.
III. The Case put forward
by the Parties
1. For the
Plaintiff Grieg Shipping A/S
a. On
Vicarious Liability
[6]
Counsel
for the Plaintiff states the Fortune Maritime is responsible for the negligence
of the Shark, the sole cause of the damage suffered by its vessel the Star
Hansa. He argues vicarious liability exists, as a matter of law, in
connection with a berthing operation under conduct of compulsory pilots. He
also submits this case is indistinguishable from that of the Delta Pride and
also relies on other authorities, such as Hamilton Marine & Engineering Ltd. v
CSL Group Inc. [1995] FCJ No 739 (Hamilton Marine).
He further submits vicarious liability has also been made out even on the
“narrow” test where the conduct of the Shark’s Master must be analysed in its
constituent parts in order to determine whether the specific negligent conduct
fell within the jurisdiction or province of the Pilot or was a matter which was
within the scope of the tug Master’s purview, beyond the pilot’s control.
[7]
He
submits, on the evidence before me, the Master of the Shark was negligent in
departing the berthing operation early, without the permission of the pilots,
and this; (1) before the bowlines had been run, (2) while the Dubai Fortune was
still not in her final berth position, and (3) while the Spirit and the Sun
were pushing to hold the Dubai Fortune against the Neptune dock creating
turbulent water wash from their sterns. The evidence shows, he states, if the
Master of the Shark had requested permission to depart early, the pilots would
not have granted that authorization because of the very risk which eventually
materialized; the fact it was unsafe to have a tug transiting the narrow
channel between the Dubai Fortune and the Star Hansa when the berthing of the
Dubai Fortune was not completed.
b. On
the Limitation of Liability
[8]
As
noted, the only issue related to this question is the calculation of the Dubai
Fortune’s limitation – is the limitation based on the tonnage of the Shark in
which case the Plaintiff’s claim in vicarious liability, if successful, is
limited to $500,000 or is the limitation, as counsel for the Plaintiff argues,
based on the tonnage of the Dubai Fortune which would cover the damages to the
Star Hansa.
[9]
Counsel
for Grieg Shipping relies on the Convention in 1976 as amended by the Protocol
of 1996. As stated, the Convention was given force of law as Schedule 1 to the
MLA. He cites:
i.
Chapter
I of Schedule 1 headed “The Right to Limitation”, its Article 1 dealing with
persons entitled to limit liability, and its Article 2 concerning claims
subject to limitation;
ii.
Chapter
II headed “Limits of Liability”, its Article 6 entitled “The General Limits”,
and its Article 9 concerning the Aggregation of Claims.
[10]
He
notes the Convention contemplated the possibility signatories could enact an
additional limits for owners of small ships and that Canada did so by enacting
section 29 of the MLA which provides as follows:
|
Other claims
29. The maximum liability
for maritime claims that arise on any distinct occasion involving a ship of
less than 300 gross tonnage, other than claims referred to in section 28,
is
(a) $1,000,000 in
respect of claims for loss of life or personal injury; and
(b) $500,000 in
respect of any other claims.
[Emphasis added]
|
Autres créances
29. La limite de
responsabilité pour les créances maritimes — autres que celles mentionnées à
l’article 28 — nées d’un même événement impliquant un navire d’une jauge brute
inférieure à 300 est fixée à :
a) 1 000 000 $ pour les
créances pour décès ou blessures corporelles;
b) 500 000 $ pour les
autres créances.
[Notre soulignement]
|
[11]
He
submits the Plaintiff’s position on limitation is straightforward: (1) The
berthing operation was governed from the Dubai Fortune under the charge
of two pilots in control of the berthing operation and the tugs assigned to
assist in that operation; (2) that fact gives rise to liability on the part
of the owner of the Dubai Fortune; and (3) if Fortune Maritime is liable, there
is simply no basis on the words of the Convention, in policy or case law to
apply a limitation based on tonnage of a vessel other than that of the Dubai
Fortune. Fortune Maritime is clearly a shipowner as defined in the
Convention. Grieg Shipping’s claim is an eligible claim referred to in Article
2 thus qualifying it to avail itself of the limitation of liability provided
for in the Convention and the limitation is calculated according to the tonnage
of “the ship” which can only be the Dubai Fortune. He notes that Article 2 of
the Convention applies to all claims in the categories referred to “whatever
the basis of liability may be…” i.e. a claim based on vicarious liability.
Counsel further relies on academic publications to support his argument.
2. For the
Defendant Fortune Maritime, the owner of the Dubai Fortune
a. On
Vicarious Liability
[12]
Counsel
for Fortune Maritime argues his client is not vicariously liable for the
admitted negligent manoeuvring of the Shark’s Master, which caused the damage
to the Star Hansa. His argument is based on the nature of the act which
caused the damage i.e. the negligent manoeuvre of the Shark - in his view
the question is whether that act fell within the province of the pilots’ on
board, or as he claims, within the province of the Master of the Shark? He
quotes the following extract, from the Panther, where Mr. Justice Willmer, the
presiding judge, applied the principles which the House of Lords had enunciated
in Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool)
Ltd. [1947] AC 1 (Mersey Docks):
a) but, as against a third
party who is injured by the act of a servant, the question which of two
possible masters is liable (the regular employer or the temporary employer to
whom the servant is loaned) does not depend on the terms of the contract
made between the respective employers: it depends upon which employer has
the right to control the servant, not only as to what he is to do, but as to
the way in which he is to do it. Moreover, it has been held that where the
servant of one employer is temporarily loaned to another, it requires cogent
evidence to prove that the latter has acquired such a degree of control over
the servant as to render him, rather than the regular employer, liable in the
event of negligence on the part of the servant.
b) But it is not enough that
the task to be performed should be under his control, he must also
control the method of performing it. It is true that in most cases no
orders as to how a job should be done are given or required: the man is
left to do his own work in his own way. But the ultimate question is not
what specific orders, or whether any specific orders, were given but who is
entitled to give the orders as to how the work should be done. Where a man
driving a mechanical device, such as a crane, is sent to perform a task, it
is easier to infer that the general employer continues to control the method of
performance since it is his crane and the driver remains responsible to him for
its safe keeping.
c) It has been argued for the
plaintiffs that the defendants, the owners of the Ericbank, are liable
for that fault, firstly, because, in law, the crew of the tug are to be
regarded as the servants of the owners of the tow, and secondly,
because on the facts it is contended that it was within the province
of the pilot on board the Ericbank to order the tug’s engines to be
stopped. So far as the latter point is concerned, it is, I think, unarguable.
No pilot can possibly be expected to control the individual manoeuvres of his
two tugs. The evidence shows that, in practice, the detailed manoeuvres of the
tug are, and must be, left to the discretion of the tug-master, the duty of the
pilot being confined to giving general directions, such as to start or stop
towing, or to tow in this or that direction. I do not see how a pilot on the
bridge of a large ship can possibly be expected to direct the engine movements
of a stern tug, operating some three or four hundred feet behind his back, and
mostly out of sight, or even to know who the engines of the tug are working at
any particular moment.
d) It seems to me that what
applies to a crane and its driver should apply equally to a tug and its master
or officer in charge. Accordingly, applying the principles there stated to
the facts of this case I find myself quite unable to hold that the crew of
the M.S.C. Panther became in law the servants of the owners of the Ericbank,
so as to render the latter, and not the former, liable for a faulty manoeuvre
within the province of the man in charge of the tug. The position would, I
apprehend, be different if the faulty manoeuvre were one within the province of
the pilot or officer in charge of the tow, e.g., if the tug failed to carry out
an order, or negligently executed without orders a manoeuvre which it was
within the province of those in charge of the tow to order. Here, however, the
faulty manoeuvre of failing to stop the port propeller in time was a matter
which concerned the tug alone and not the tow, and in such circumstances I hold
that the liability for the negligence of the mate of the M.S.C. Panther
rests with his regular employers, the owners f the M.S.C. Panther.
[Emphasis added]
[13]
Counsel
for Fortune Maritime argues the evidence in this case is clear. Immediately before
striking the Star Hansa, the Shark bumped the stern of the Sun which was tied
to the starboard stern quarter of the Dubai Fortune. This bumping of the Sun
caused the Shark to veer sharply across the narrow channel separating the two
ocean bulk carriers. He quotes the Master of the Shark as testifying that “if
I had not contacted the Sun, I would have been on my proper line-up and
probably gotten out.” In counsel’s view, but for that collision
between the Shark and the Sun, the damage to the Star Hansa would not have
happened. In sum, it was this negligent manoeuvring of the Shark which was the
ultimate cause of the damage; a manoeuvre which could not be possibly
controlled by the pilots on board the Dubai Fortune. Manoeuvring a tug is
within the province of the operator of the tug.
b. On
the limit of liability
[14]
Counsel
for Fortune Maritime argues his client is able to rely on Smit’s limitation
fund. He relies on the Supreme Court of Canada’s decision in Rhône (The) v
Peter A.B. Widener (The), [1993] 1 S.C.R. 497 (Rhône) which interpreted
the limitation of liability provisions then contained in the Canada Shipping
Act (RSC, 1970, c S-9), particularly in sections 647 and 649. The Rhône
suffered damage when moored; it was struck by the Widener a dumb barge with a
captain on board and was being towed by four tugs owned by three different
companies. The cause of the accident was the result of navigation errors by
the captain of the lead tug described as the “de facto master of the flotilla.”
[15]
Counsel
quotes paragraph 66 of the Rhône decision as indicating the intent of
subsection 647(2) of the Canada Shipping Act was to:
… limit liability
for navigational errors according only to the tonnage of those vessels causing
the alleged damage. Apart from the vessel responsible for the overall
navigation of a flotilla, only those vessels of the same shipowner which
physically caused or contributed to the resulting damage form the unit for
which liability is limited.
[Emphasis added]
[16]
Counsel
in the Rhône decision had argued liability should be calculated based on
the tonnage of the lead tug alone “as it would be counter to the intent of
these limitation of liability provisions to include within the unit of
limitation a helper tug not committing a fault of it own or otherwise
physically causing the impugned damage.” That is the circumstance of the
innocent Dubai Fortune submits counsel for Fortune Maritime. He relies on a
number of decisions of this Court which followed the Rhône.
IV. The Evidence at Trial
[17]
The
following witnesses were called by counsel for Grieg Shipping: (1) the Shark’s
Master, Captain Duesterdiek, (2) the Spirit’s Master, Captain O’Brien, (3) the
two pilots on board the Dubai Fortune, Captains Roman and Rayner. Counsel for
the Defendant Fortune Maritime called Captain Broderick, the Sun’s Master. Neither
party called the captain of the Tyee as a witness.
[18]
I
also mention counsel for Grieg Shipping proposed to advance the testimony of an
expert witness. After reading his proposed testimony, hearing a summary of his
proposed evidence, followed by his cross-examination on that summary and
hearing both counsels’ submissions, I declined to accept his need as an expert
witness on the sole grounds his testimony had been overtaken by direct evidence
at trial presented by the tug masters and by the pilots. Had I not received
this direct evidence from previous witnesses I would have heard him.
[19]
I
now to briefly summarize the viva voce evidence noting an agreed
statement of facts is in the record.
[20]
It
is appropriate to first summarize the pilots’ evidence noting Captain Rayner
was in charge of the berthing. Because he was an apprentice pilot (very close
to completing his apprenticeship), he was under the supervision of Captain
Roman who testified Captain Rayner had conducted the berthing of the Dubai
Fortune very well.
1. The
testimony of Captain Roman
[21]
Captain
Roman was the senior pilot supervising Captain Rayner. He stated the following
on direct examination: (1) with a ship docked at the opposite berth, he
considered the berthing at Neptune 3 or Lynnterm 1 “one of the two most
difficult berths to deal with on a day to day basis in Vancouver Harbour”
(Transcript p. 281), (2) the significance of a confined berth in the berthing
process arises from the fact a large ship displaces water as it advances into a
berth; that water has to go somewhere usually running ahead of the ship and
must dissipate “so it has to run between you and the ships or inside the
berth creating a “flushing effect” (Transcript p. 282), (3) the time it
took to berth the Dubai Fortune was normal but what was unusual it was having a
bit of a problem because it kept sliding back in the berth which he attributed
probably to the water displacement. The ship’s engine was used to kick the
ship ahead (Transcript p. 283), (4) it was then he heard over the radio
channel one of the assist tugs was powering down or reducing its RPM to let the
Shark go by, which he thought unusual, because the headlines still had not been
run; the Shark, being the line tug, was needed as the eyes of the pilots since
they could not see beyond the ship’s bow it being so high; although the ship
was alongside and the spring lines had been run but not made fast (Transcript
p. 311), the Dubai Fortune was still shifting back and Captain Rayner had not
dismissed the Shark or talked to it (Transcript pp. 283-284), (5) usually in
a case where a tug has to leave or depart, the line tug stays to run the headlines,
the arriving tug does the stern lines in order to avoid the interaction of
tugs departing and passing especially at a confined basin. He stated the
pilot really needed the line tug there all the time until the ship is safely
secured (Transcript pp. 284-285), (6) a finger berth is one which has a dead
end; the Neptune berth faces north/south and when entering it there is actually
no place to go if anything goes wrong; the ship is more subject to change and
shift as compared to a standard berth where manoeuvrability is greater or where
it can ride with the current (Transcript p. 287), (7) from a safety viewpoint,
it would not be prudent for tugs to be going back and forth through the wash,
i.e. the transit of a departing line tug passing the ship being berthed in the
confined space when another ship is berthed at Lynnterm 1 and this before the
bowlines are run (Transcript p. 293), (8) with the Dubai Fortune still moving
into final position and the bowlines not run, if the Shark had called him for
permission to depart, he would ask why it needed to depart and probably would
have refused permission unless the Shark provided him with an urgent reason
related to safety. (Transcript p. 295), (9) he reiterated the line tug was
important being the eyes in the berthing process and the ship would not have
been secured until the bow and stern lines were on the dock and tight; in other
words, the job was not yet completed (Transcript p. 295), (10) having two tugs
running back and forth was an unnecessary risk because something may go wrong
(Transcript pp 296-297), (11) after he found out the Shark had departed he
called the tug but received no reply, (12) he called the Shark because he was
upset since the Shark had departed from the berthing operation without asking
permission and Captain Rayner had not dismissed him from performing his duties
(Transcript p. 298); he had previously said that subsequently he had spoken to
other tug captains who indicated they had never heard of a line tug leaving
operations without advising or asking for permission to leave (Transcript p.
291).
[22]
On
cross-examination, Captain Roman; (1) acknowledged the
Shark had not been used in the berthing that day (Transcript p. 302), (2) the
pilots had not issued any instructions to the Shark “in so far as the berthing
was concerned” (Transcript p 302), (3) the Dubai Fortune was in final position
in its berth i.e. when the ship’s gangway is positioned on the dock (Transcript
p. 308), (4) generally after finishing the bow lines, the line tug automatically
goes to do the stern lines, (5) a pilot does not manage or direct how a
line boat would transit from bow to stern (Transcript p. 310), (6) the Tyee
finished the job of running bow and stern lines and that created no problem
(Transcript p. 312), (7) the Tyee was able to transit without issue south to
the north (Transcript p. 313), (8) it was usual for a line boat to do the stern
lines after running the bow lines even with two vessels in the basin; it is
standard procedure adding “with the headlines tight there is no issue with the
tugs powering down” but without the headlines up, the assist tug must (upon
direction) push to hold but how much power they apply to hold is up to them,
which varies depending on the size of the tug. It is in their control. (Transcript
pp. 313-314), (9) the line tug does not ask the pilot for permission to head to
stern because he knows his job and how to do it but it is standard procedure to
advise that the headlines were done (Transcript pp. 314-315), (10) the pilot
cannot control how a tug master undertakes his job (Transcript p. 315), (11) a
pilot provides general orders or requests to the assist tugs (Transcript p.
315), (12) the tug captain manoeuvres his vessel to carry out those general
directions (Transcript p. 315), (13) and he would do that in a manner he or she
saw fit (Transcript p.315), (14) a pilot does not provide instructions to a tug
captain on how to run their tugs (Transcript p. 315), (15) a pilot cannot
control how a captain of a tug actually controls his tug except the only way he
could is if he said push half and it is more than he wanted them he would order
to drop it down to easy. Captain Roman said “So I will direct him on the
amount of push that he has” (Transcript p.
316), (16) that is a general direction and the tug captain would then use his
discretion to determine how best to carry out that command (Transcript p. 316),
(17) the line tug is somewhat secondary to a berthing operation
(Transcript p. 317), (18) line tugs do their job without a lot of communicating
with the pilot in respect of running his lines but the other side of the
equation the pilot is communicating with him on the distance ahead, how close
are the ship is to the derrick barge – the line tug is their eyes especially in
this berth (Transcript pp. 317-318), (19) they control their tug in the way
they do their job; in handling the lines; how to deal with the current or wash;
how to manoeuvre his tug between the bow and the stern of a vessel; a pilot
can’t control how a tug captain actually manoeuvres his vessel (Transcript p.
319), (20) “Sometimes the headlines get jammed on an anchor and the line boat
will have departed before the lines are tight in which case I will say go
back, we have a problem, we have a hang up with a line” [Emphasis added]
(Transcript p. 320), (21) he acknowledged a line tug can depart before
the headlines are tight “It does happen yes” (Transcript p. 230), (22) the
assignment of an assist tug to the bow (the Spirit) or the stern (the Sun) with
the Shark off berth is up to the pilot (Transcript pp. 321), (23) on
questioning by the Court, Captain Roman conceded the Tiger Shark was engaged in
berthing because he had the job of running the bow and stern lines and bringing
them to the dock but the Shark left before doing that and Captain Roman is mad
about that.
2. The
testimony of Captain Rayner
[23]
As
noted, Captain Rayner was in command of the berthing of the Dubai Fortune on June
22, 2007; he was an apprentice pilot who became a pilot on July 9, 2007
(Transcript p. 330); he had berthed 113 ships in the course of his
apprenticeship and was under the supervision of Captain Roman.
[24]
On
direct examination Captain Rayner testified: (1) during
the course of the berthing he heard from the working channel the Shark was
either proposing to depart or departing and the Spirit was powering down to let
the Shark pass (Transcript p. 333), (2) “at the same time or shortly thereafter
the pilots heard the Tyee, another line boat, coming into the conversation on
the working channel” (Transcript p. 333), (3) he had not received any prior
call from the Shark concerning its departure and it seemed strange what was
going on (Transcript p. 336), (4) he had no knowledge the Tyee was coming
(Transcript p. 337), (5) the bow lines had not been run, (6) it was not an
appropriate time for it to depart for a number of reasons, namely, it was a
tight spot to get into; as the berthing vessel moves into the berth, the line
tug moves ahead of the ship since there is virtually no room to get by so he
stays forward to take the headlines with the additional fact the bow assist
tug, secured to the ship’s starboard bow, is a blocker which the line tug
generally cannot get by without manoeuvring quite carefully. He is also
the pilots’ eyes – a safety check for issues in the bow area (Transcript pp
337-338), (7) if he had received a call from the Shark requesting to leave
prior to the headlines being run he would have deferred to the senior pilot,
but if alone, would have asked him why he needed to leave and if he answered “a
shift change” he would have refused him permission to depart (Transcript
pp 338-339).
[25]
On
cross-examination, Captain Rayner testified; (1) the
pilots chose the tugs that they felt were required for the job (Transcript pp
342-343), (2) the tide was not significant, it was not of concern that day but
still had to be accounted for on the approach to the berth (Transcript p. 345),
(3) the visibility was good; the weather was pleasant (Transcript p. 346), (4)
he did not use the assist tugs on the approach to berth; there was no wind and
the current minimal; he used the ship’s engine and rudders to manoeuvre into
the entrance of the berth (Transcript p. 351), (5) he was aware of the presence
of the Star Hansa, (6) the Dubai Fortune lined up well; it was not setting much
at all (Transcript p. 354); he did not have any concern with the Star Hansa
given the width of the Dubai Fortune its parallel position advancing into the
berth, the small amount of current and tide, and his ship was close to the side
of the Neptune 3 dock (Transcript pp. 354-355), (7) as the Dubai Fortune was
moved in final position he used the assist tugs a few times either to back or
to push in order to keep the Dubai Fortune parallel to the dock; he also
confirmed he used the Dubai Fortune engines to kick it astern alongside the
berth to ensure a perfect fit with the gangplank and he had to make a further
adjustment by ordering at 10.13.5 the Dubai Fortune to kick forward a few metres.
(Transcript pp. 358-366), (8) he did not give the Shark any instructions at
this stage of the process since his remaining task was to run the headlines and
the Shark was not taking part in what the Dubai Fortune was doing at that stage
(Transcript p. 366), (9) he agreed, at this stage of the Dubai Fortune’s
berthing, the Sun was at idle; it was a powerful tug and anything more than
idle would have been unnecessary (Transcript pp. 367-368), (10) he did not have
any communication with the Shark before its departure (Transcript p. 368), (11)
he had no knowledge with respect to the Tyee at that time but acknowledged
the Tyee was present at the bow of the Dubai Fortune to run the lines at the
appropriate time, that is, after the gangway was all set up. The timing of
the Tyee’s positioning was just fine. His only duties were to run the
headlines (Transcript p. 369), (12) after the Tyee came into the basin the
pilots told its Master where matters stood; the Tyee went in, did the job and
then went to do the after lines; he did not tell the Tyee to do the lines; its
Master knew his job; he did not need the pilot to direct him and he did not
control the Tyee in any way adding because Neptune 3 is a tight spot “we had
set the headlines to make sure they were tight and secure; the Tyee had to get
by the Spirit (Transcript pp. 370-371), (13) he assumed the Tyee, once the
headlines were on shore, would have waited for the Spirit to power down for him
to get past; the Spirit would have been pushing at that time (Transcript p.
371), (14) tug captains are experienced and competent; the pilot does not
direct a tug engine’s movement; a tug captain is master of his own vessel “so
generally they will judge if it is safe to go behind another tug in that tight
spot” but he acknowledged if a tug had been tasked to push a ship alongside and
felt it might affect the ship’s position he may or should contact the pilot for
permission to power down to let the other tug boat behind him by, (15) he did
not give any directions to the Shark or the Tyee and would not tell the
skippers of any of those tugs how to operate their vessels and would not have
the expertise to do so and do not control his tug (Transcript pp. 374-375),
(16) “we give them orders how to manoeuvre our ship” [Emphasis added]
and if he feels such order will jeopardize the safety of his tug he will say
so. “How they accomplish our orders is their responsibility” and within their
own skill and judgment (Transcript p. 376), (17) on a question from the Court,
Captain Rayner admitted he knew the Shark had departed; he saw the Tyee, a line
boat, coming in and knowing the Dubai Fortune was already safely alongside
the switch by the Tyee with the Shark was okay because he had his two docking
tugs and being safely alongside he could sit there for half an hour waiting for
a line tug replacement. (Transcript pp. 377-379).
[26]
On
re-examination, Captain Rayner testified: (1) at the time of the
Shark’s departure his direction to the Spirit and the Sun was to push to hold
the ship in the berth (Transcript p. 380); (2) did not recall instructing the
Spirit to give the Dubai Fortune a little push up the berth; (3) it was
standard practice for the line tug to advise the pilot the headlines were
ashore; (4) if the headlines were slack he would instruct the line tug to wait
at the bow of the ship until they had tightened up so as to enable the bow
assist tug to ease off and even be let go (Transcript pp. 380-382).
3. The
testimony of Captain Duesterdiek, the Master of the Shark
[27]
The
Master of the Shark was called under the adverse witness rule with the consent
of both parties as provided for in the Canada Evidence Act (RSC, 1985, c
C-5). He is a qualified and experienced Tug Master in Smit’s employ since
2002. He was the skipper of the Shark on July 22, 2007 having staring his
12-hour shift at 10:00 p.m. the previous evening and was due to be relieved at
10:00 a.m. the day of the incident.
[28]
In
his direct examination (Transcript p. 141) he testified:
i.
The
three tugs were necessary to berth at Neptune an ocean carrier such as the
Dubai Fortune.
ii.
The
pilot is in charge of berthing the vessel and issues commands as appropriate.
iii.
As
the line tug, the Shark’s duties were to act as the eyes of the pilot providing
him with all relevant information such as the ship’s distance to the end of the
berth; after the ship is alongside the dock (in final position or virtually so)
to take the headlines from the bow of the ship to the dock then move to the
stern of the ship to do the stern lines (Transcript pp. 151, 153).
iv.
The
Neptune 3 berth was a confined finger berth with the Shark backing in the basin
rather than being alongside the Dubai Fortune because there was not a lot of space
up there with the Dubai Fortune, the Star Hansa and a derrick barge present
(Transcript p. 162).
v.
He
departed his position at the bow on the starboard side of the Dubai Fortune
after that ship was in position (Transcript p. 163); however, shortly before
leaving to get out in order to let the Tyee take his place he told the crew of
the ship to stop lowering the headlines from the Dubai Fortune’s bow deck into
the water. He did so because the Spirit was pushing (and would be until the
headlines were on the dock) creating a wash and a risk the lines could get into
the Spirit’s wheel. The spot to bring the Dubai Fortune headlines on board the
deck of the Shark was not a good one and, in any event, he was not
taking the lines and was leaving because the Tyee was to replace him and
there was no room for three tugs and the derrick barge in that area of
operation. When he departed his position off the starboard side of the Dubai
Fortune, the Tyee was in the channel between the Dubai Fortune and the Star
Hansa, halfway between the position of the Sun and Spirit (Transcript pp.
167-171).
vi.
He
acknowledged the Tyee was not just sitting at that point before the Shark
passed her stern on its way out of the basin because, as it was coming towards
the bow of the Dubai Fortune there was a constant flow of water from the two
assist tugs pushing the Dubai Fortune which meant the Tyee would have to be
dealing with turbulent water (Transcript p. 171).
vii.
After
departing, he went past the Spirit and had to deal with its wash adding that
was normal in the sense there will always be a degree of wash from tugs
(Transcript p. 171); it was a matter of steering the tug (Transcript p.
174).
viii.
He
confirmed, on a normal day as opposed to June 22, 2007, he would not exit the
bow area until he had completed running the headlines to the dock. The assist
tugs would push until the pilot told them to stop pushing which would not be
until the ship was fully secure (Transcript p. 172).
ix.
H
confirmed, after passing the stern of the Spirit, he was in the vicinity of the
Tyee, which, at the time was between the Spirit and the Sun. At that spot, he
said the Shark was influenced by the outflow of water displaced by the Dubai
Fortune advancing into the berth and from the wash from the tugs (Transcript p.
175). The presence of the Tyee caused him to change his line-up for exiting
the basin (Transcript p. 176). After passing the Tyee, he was within a matter
of seconds of approaching the Sun.
x.
Counsel
for Grieg Shipping suggested to him that, after passing the Tyee he had limited
control of the Shark (Transcript p. 176) to which the Master replied:
Well, my position was not where it would normally be
if there wasn’t a tug there. My line-up would have been different. I had to
manoeuvre around the Tyee and past the Tyee. So my position wasn’t perfect to
exit out, but you are committed in that scenario because the sheer turbulence
is kind of let you go out and you are already going, and there is delays on
throttles on the tug and so I caught the side of the Sun on the way out.
[Emphasis added]
xi.
He
agreed he was nosing out with the current (Transcript p. 177).
xii.
It
was suggested to him he had less control when nosing out of a current to which
his response was:
A. Well, there’s not
a steady current. It’s turbulent.
Q. Yes.
A. So it’s not like
a constant steady. You still have wheel wash from the Sun bouncing off the
Star Hansa as well.
Q. And you had to --
did you have to change your course somewhat from normal because of the location
of the Tyee?
A. In that space you’re
adjusting your throttles and steering accordingly. You work by feel.
[Emphasis added]
xiii.
It
was suggested to him there were differences on June 22, 2007 notably the
presence of the Tyee, a fourth tug sitting between the two assist tugs to which
the Shark’s Master answered “correct” (Transcript p. 178).
xiv.
It
was suggested to the Shark’s Master that prior to contacting the Sun “you were
essentially spinning or losing control to some extent of the Shark” to which he
responded that he was always in control of the Shark (Transcript p. 182).
xv.
In
the dialogue between Grieg Shipping’s counsel and the Master of the Shark about
his manoeuvres to pass the stern of the Sun (Transcript p. 191) Captain
Duesterdiek said (1) after passing the Tyee “I was turning back to get on my
line-up to get out” (Transcript p. 182); (2) “normally when you are passing a
tug that is pushing you try to pass as close as you can to the stern because
the wheel wash is not as strong right at the stern… so the tighter you pass the
stern, the less effect you are going to have” (Transcript p. 183); (3) passing
the stern of a pushing tug he would be kicked portside but would steer to
counteract; (4) he did not have a good line alongside the Sun’s stern in part
due to the Tyee and the volume of water (Transcript p. 184); (5) that striking
the Sun actually helped him just slightly which prevented the Shark from
hitting the Star Hansa at 90° (Transcript p. 184); (6) if he had not contacted
the Sun “I would have been on my proper line-up and probably gotten out”
[Emphasis added] adding he was not properly lined up leaving (at a bit of an
angle) and being on a boat moving through the water he contacted the Sun stern
to stern (Transcript p. 185); (7) in normal circumstances passing a stern
tug he would “be blown some distance” across the water of the basin in this
area (Transcript p. 186) which in discovery he acknowledged would be ten feet
depending on the horsepower of the Sun. If it was a 5000 horsepower he would
have been blown 40 feet; (8) in any event he could not stop the Shark from
moving towards the Star Hansa but, in control of his tug, attempted to steer
right to lessen the damage (Transcript p. 188); (9) he had berthed many
ships at Neptune 3 and never struck a vessel (Transcript p. 189); (10) he
did not recall, at Neptune 3, ever departing the bow before running the
headlines (Transcript p. 191); (11) he left the bow of the Dubai Fortune
without asking the pilot but added he let the pilot knew that a crew change was
coming, and upon further questioning on this point, the Shark’s Master
admitted there was no discussion with the pilot that he might be departing
before the bow lines had been run (Transcript p. 197-198); (12) asked by
counsel for Grieg Shipping whether there was nothing he could have done
differently that day that would have made a difference to the outcome he
responded the controls were working fine and upon a further question said “I
could have not left he bow” [Emphasis added] (Transcript p. 199-200); (13)
in terms of actual manoeuvring or handling the Shark he responded “I’ve done
the same manoeuvre many times before and since and I haven’t had that result
(Transcript p. 200); (14) after the accident, Smit held a safety meeting; there
was no criticism of his handling of the Shark. The focus of that meeting was
in respect of confined berths in Vancouver Harbour. The result was a change in
procedure. The Tyee was to be the line tug because it was smaller. The line
tug would be required to run the bow lines; wait until they were secured tight;
have the bow assist tug stop pushing before departing to the stern and no crew
changes could take place in confined berths (Transcript pp. 2002-2004).
[29]
On
cross-examination, Captain Duesterdiek gave the following
answers: (1) in the ordinary course he would have taken the lines the ship’s
crew had lowered in order to run them to the dock without any direction from
the pilot because it was known he was there to take the headlines (Transcript
p. 216); (2) in normal circumstances, at the stage of running the lines, the
assist tugs would continue to push to hold the vessel to the degree
directed by the pilot (Transcript p. 217) and to the extent ordered by the
pilot would stay in that position while the line tug proceeded to the stern
(Transcript p. 219); (3) As the time of his departure he believed the
Spirit and the Sun were at idle or at easy which created significantly less
wash than having it at half or full (Transcript p. 219); (4) in the
ordinary course, he would have done the stern lines without instructions;
nobody need tell him to do it or how to do it; he knows his job (Transcript p.
220); (5) he drives his tug in accordance to his own judgment and skill as a
tug master; he controls the driving of his tug; (6) if he operated his tug badly,
his employer Smit would take action not the pilot (Transcript p. 221); (7) the
timing of his departure to do the stern line is his decision but typically
he would wait for the lines to tighten up (Transcript p. 222); (8) when he
departed his bow position he was aware of the fact the Tyee was between the
Spirit and the Sun and he controlled his vessel as it passed that tug
(Transcript pp. 222-223); (9) he confirmed in the Dubai Fortune berthing
operation he was not tied to that vessel (Transcript p. 225); that the tide was
not of consequence; the Dubai Fortune’s, line entering the basin, was
excellent: by the time the ship’s gangway is in a position where it can go
on the pad the task of being the eyes of the vessel is well over “because
you have given him his distances and counted down, he’s aware” (Transcript pp.
226-227); (10) at that stage, the Dubai Fortune is safe from the Star Hansa;
the ship is essentially in a fixed position with two tugs holding her and the
spring lines are ashore (Transcript p. 227); (11) he confirmed his discovery
answer, that for a line boat, the pilot does not issue specific commands unless
the job is going wrong which was not the case on June 22, 2007; it was going
well (Transcript pp.228-229); (12) he was not asked by the pilot to do anything
(Transcript p. 232); nor given any directions or orders throughout (Transcript
p. 233); essentially he was on his own; he knew what he had to do and used his
own judgment in doing it (Transcript p. 233); (13) the Tyee’s crew was going to
do the lines (Transcript p. 235); (14) he told Captain Rayner sometime before
the Dubai Fortune entered the basin the Shark was going to be relieved by the
day shift crew if they arrived in time but he never told the pilot he would be
leaving before the bowlines had been run (Transcript p. 237); (15) he
admitted he got into a situation where he was a little bit too close to the Sun
and the two tugs bumped (Transcript p. 244); the striking of the Sun and
the wash changed the whole situation; if it was just a wash he would likely
have been moved 5 to 10 feet towards the Star Hansa, the space in the channel
at that point being approximately 53 feet, he would have made a small
correction in his steering to make sure he stayed starboard [as opposed to
going to port transiting a considerable distance towards the Star Hansa]
(Transcript pp. 245-246); he confirmed that a combination of the bump and
what happened after that because of the Sun’s wash which he knew how
to deal with took him all the way across into the Star Hansa which was not a
long distance adding the presence of the Tyee (affecting his line-up) was an
additional factor (Transcript p. 246); (16) when asked the question there is
nothing that the pilot said or did or did not do that caused what happened, he
answered “that is correct” (Transcript p. 247); (17) he confirmed or
re-confirmed that pilots do not tell him or try to tell him how to run his tug
and if they did he would not take their direction (Transcript p. 252).
[30]
Counsel
for Grieg Shipping did not re-examine the Shark’s Master.
4. The
testimony of Captain O’Brien, the Master of the Spirit
[31]
Captain
O’Brien was the Master of the Spirit on June 22, 2007. He has a wealth of
experience on tugs, line, stern assist and bow assist tugs engaged in berthing
in confined berths such as at Lynnterm /Neptune (Transcript p. 255).
[32]
The
main aspects of his direct evidence were: (1) the Lynnterm/Neptune basin is
quite confined at the north end, a relevant consideration in terms of berthing
ships in terms of safety of the operation (Transcript p. 256); (2) he has
never left his station at the bow of a ship being berthed before running
the lines at any berth in the Port of Vancouver unless the pilot told him to
(Transcript pp. 256-257) which happened when he was instructed by a pilot to do
the stern lines first; (3) he would not necessarily communicate with the pilot
once the bow lines had been run; he would naturally go to the stern (Transcript
p. 258); (4) after running both the bow and stern lines, he would say to the
pilot that the lines had been run and the pilot would relieve him (Transcript
p. 258); (5) he would only push against the Dubai Fortune if instructed to do
so by the pilot in accordance with the power the pilot wanted from the tug’s
engines (Transcript pp. 259-260); the pilot instructed him to push ahead and
was pushing ahead when the Shark departed after its headlines had been dropped
by the crew of the Dubai Fortune and taken back again (Transcript p. 263); (6)
it was unusual for a line tug to depart from the bow before the headlines had
been run and for the assist tugs to be pushing the ship ahead (Transcript p.
263).
[33]
On
cross-examination Captain O’Brien made the following points: (1)
he would not necessarily wait for a pilot’s order to run the lines (Transcript
p. 266); (2) the crew of the Dubai Fortune dropped the bow lines to the
Shark when the vessel was in position but not necessarily in position for her
final mooring (Transcript p. 266); (3) the pilot does not tell him how to
operate or drive the tug or run the lines (Transcript p. 268); (4) manoeuvring
the tug when travelling from bow to stern to run the stern lines is not
difficult in terms of the wash they create when the assist tugs are pushing to hold
at easy or at idle (Transcript p. 268); (5) a line tug passing behind the
stern of the stern assist tug such as the Sun would experience some wash and
push him 5 to 10 feet but cause no problem because he was trained to manage the
situation (Transcript p. 269).
5. The
testimony of Captain Broderick, the Master of the Sun
[34]
Captain
Broderick was the Master of the Sun, the stern assist tug which the Shark
bumped into on June 22, 2007. He has been an employee of Smit since 1994 and
has substantial tugboat berthing experience. He provided the following answers
in direct examination: (1) he confirmed that a pilot would give a
command he wanted to be followed but not how to do it; (2) the tug master
manoeuvres the tug the way he thinks will do it best; (3) the pilot does not
tell the tug master how to manoeuvre the tug; (4) that is a matter for his
skill and judgment (Transcript p. 462); (5) prior to entering the Neptune 3
berth the pilot would instruct the tugs what he wanted from them at their
assigned positions which in his case was as the stern tug secured to the Dubai
Fortune by the Sun’s line (Transcript p. 463); (6) once that occurred he would
wait for the pilot’s instructions (Transcript p. 464); (7) he could not recall
specific orders from the pilot but they would be to push or pull, whatever was
needed; (8) it was up to the tugmaster to use his throttles in order to develop
the power the pilot was requesting (Transcript p. 465); (9) the main task of
the assist tugs was to keep the Dubai Fortune parallel to the berth (Transcript
p. 466); (10) he saw the Tyee pass his stern after coming into the basin at a
time when he was probably more than idle; (11) the last time he saw the Tyee
she was approximately half way up the channel between the Dubai Fortune and the
Star Hansa on the side closest to the ship being berthed and the Tyee was
between the Sun and the Spirit (Transcript pp. 466 – 468); (12) he felt a bump
and looked behind, the Shark had bumped into his starboard stern, he was in the
wheelhouse, 30-40 feet away he then saw the Shark heading straight towards the
Star Hansa then saw it turning to starboard (Transcript pp. 470-471); (13) he
confirmed that at the time the Shark struck him he was at idle which meant the
Sun’s wash was minimal (Transcript p. 472).
[35]
On
cross-examination Captain Broderick testified: (1) the
first direction he received from the pilot was his place as stern assist tug;
(2) he was under the pilot’s direction during the berthing and at the end of
the berthing process the pilot will give some direction to release him
(Transcript p. 473); (3) the Sun was the largest tug in the Smit fleet at the
time and when operating puts out substantial wash (Transcript p. 476); (4) he
was idle on both propellers pushing in towards the Dubai Fortune so that his
wash was all coming out towards the Star Hansa (Transcript p. 479); (5) as a
line tug he would not depart the job without communicating with the pilots and
he has never done so (Transcript p. 479); (6) on a question from the Court
Captain Broderick confirmed the pilot does not tell him how to execute his
command but tells him what operation to perform, he obeys the pilot’s commands
and if the pilot wants a correction he will so advise him (Transcript p. 481).
V. Some Principles
[36]
Before
embarking on the analysis, it is useful to set out certain principles
underpinning this action.
[37]
First,
vicarious liability is a liability applied by the Courts, usually in tort
actions, to various parties such as an employer even though that person is not
personally at fault. Vicarious liability is also known as strict or no
fault liability (See, Bazley v Curry [1999] 2 S.C.R. 534 Reasons for
Judgment by the Chief Justice at paragraph 1; see also Viasystems (Tyneside)
Ltd. v Thermal Transfer (Northern) Ltd & Ors [2005] EWCA Civ 1151, a
recent decision of the U.K. Court of Appeal at paragraphs 45 and 54 (Viasystems).
[38]
Second,
the imposition of vicarious liability requires justification. In the case of
the negligence of an employee placing the responsibility for that fault on the
shoulders of the employer is justified on the basis the employer has the right
to control the manner in which the employee does his work. As explained by the
House of Lords in the Mersey Docks case where Lord Uthwatt wrote the
following at page 21 of the reported case:
To establish the power of control requisite to
fasten responsibility
upon him, the hirer must in some reasonable sense have authority
to control the manner in which the workman does his work, the
reason being that it is the manner in which a particular operation
(assumed for this purpose to be in itself a proper operation) is
carried out that determines its lawful or wrongful character. Un-
less there be that authority the workman is not serving the hirer,
but merely serving the interests of the hirer, and service under
the hirer in the sense I have stated is essential. Whether there is
or is not such service in any particular case is a question of fact,
the object being to ascertain the broad effect of the arrangement
made.
[Emphasis added]
[39]
In
that same case Lord Porter, at page 18, wrote:
In the case before your Lordships the negligence
of the work-
man lay not in the performance of any act which the respondents
could and did direct and for which, because they procured it, they
would be responsible, but in the manner in which that act was
performed, a matter in which they could give no direction and
for which they can have no responsibility.
The doctrine of the vicarious responsibility of the
" superior,"
whatever its origin, is today justified by social necessity, but, if
the question is where that responsibility should lie, the answer
should surely point to that master in whose act some degree of
fault, though remote, may be found. Here the fault, if any, lay
with the appellants who, though they were not present to dictate
how directions given by another should be carried out, yet had
vested in their servant a discretion in the manner of carrying out
such directions. If an accident then occurred through his negligence, that
was because they had chosen him for the task, and they cannot escape liability
by saying that they were careful in their choice. Suppose that the negligence
of the craneman had resulted in direct damage to the respondents, I do not see
how the appellants could escape liability.
[Emphasis added]
[40]
Third,
the control test applies in maritime law to tug and tow cases in order to
determine the liability of a blameless tow in respect of the tug who was towing
her. In 1912, the House of Lords in the case of the S.S. Devonshire and the
Owners of the Barge Leslie (H.L. (E) 1912) Lord Atkinson wrote, at page 654
of the reported case that the question:
[…] is whether or not the relation of master and
servant existed between the owners of the tow and the persons in charge of the
tug, that no general rule can be laid down, that the question whether the crew of
the tug are the servants of the owners of the tow must depend upon the facts of
each case. In that particular case it was clear that “although there were
men on board the barge, the navigation was in the hands of the master of the
tug, and the bargemen could do nothing to avoid collision.” They accordingly
held that both on reason and authority the owners of the barge were exempt from
liability for the negligence of the tug.
[Emphasis added]
[41]
Fourth,
Justice Nadon, then of the Federal Court Trial Division, commented on the Law
of Tug and Tow in the case of Hamilton Marine & Engineering Ltd. v CSL Group Inc. [1995] FCJ No 739 (Hamilton Marine).
In that case, the plaintiffs were the owners of the tug James E. McGrath which capsized and sank while assisting the defendants’
ship the Hon. Paul Martin out of a fit out berth at the Port Weller Dry Docks.
The plaintiff sued the owners of the Hon. Paul Martin in negligence alleging
the ship’s captain and pilot failed to allow the tug to get to a place
of safety prior to putting the ship’s engines ahead, thereby creating an
excessive propeller wash. Justice Nadon dismissed the plaintiff’s action
having failed to prove negligence on the part of the tow but rather ruling the
tug’s capsize resulted from the negligence of the tug’s captain and his crew
members in that they failed to keep a proper look out and to advise the ship of
their movements and whereabouts.
[42]
In
Hamilton Marine, Justice Nadon stated the case before him turned on the
legal relationship between a tug and the vessel towed. He acknowledged the
majority of the jurisprudence in this area of the law was developed in the United Kingdom. Citing various UK cases, he distilled the following propositions:
i.
In
determining the duties and obligations between a tug boat and the vessel being
towed “it is important to determine which has the control at the time of the
incident”.
ii.
Generally a
tow has control over a tug and is thus responsible for the negligent acts of
the tug.
iii.
Citing
the S.S. Devonshire case he stated “that the determination of which
vessel is in control is a question of fact to be determined in every case”.
iv.
He
wrote: “As the rule now stands, there is a general presumption that it is the
tow which is in control of the tug” and “given that a tug is ordinarily under
the direction of a tow, the former must obey the instructions of the latter.”
[43]
Fifth,
the UK cases stress the importance of focussing the inquiry, for vicarious
liability purposes, on the relevant negligent act and then ask whose
responsibility it was to prevent it, i.e. who was entitled to giver orders as
to how the work should be done in order to prevent the negligent act causative
of injury (See Viasystems at pp 515, 518-519; Mersey Docks at p
10: “what is the negligent act that causes the accident” and at p 11: “control
the doing of the act would mean to control the way in which the act involving
negligence was done”.
[44]
Sixth;
i.
Counsel
for the Defendants placed heavy reliance on the Admiralty Court’s decision of
1957 in MSC Panther p 571).
ii.
As
noted, that case was decided by Mr. Justice Willmer. It is evident, upon
reading his reasons for judgment, Mr. Justice Willmer synthesized the governing
law as it stood.
iii.
The
tug, the Panther, was acting as stern tug to the steamship Ericbank with a pilot
on board. Tug and tow collided with the Trishna which sank upon being holed by
the Panther’s propeller. The Trishna was found negligent of bad seamanship in
passing the Ericbank in such a way and at such a speed that she was unable to
bring her ship up; the Ericbank was found guilty of bad seamanship in failing
to warn the Panther she was about to pass the Trishna and the Panther was
negligent in keeping her port propeller turning after the collision occurred.
iv.
As
previously noted, Justice Willmer applied to the law of tug and tow the
principle of the House of Lords’ decision in Mersey Dock on vicarious
liability; since I have already quoted in these reasons several extracts from
Justice Willmer’s decision (See paragraphs a) to d), pages 9 – 11), I summarise
below their main elements:
a) Detailed
manoeuvres of tugs are very much left to the discretion of the tug masters so
long as they carry out the general orders given by the pilots.
b) The
argument that the owners of the Ericbank were liable at law for the fault of
the master of the Panther in not switching off the tug’s engines more
promptly was not sustainable because no pilot can possibly be expected to
direct the engine movements of a stern tug; the duty of a pilot is confined to
giving general orders as the evidence shows. The master’s faulty action was
not within the province of the pilot but within the province of the Panther.
c) In
any event, the evidence at trial established that the crew of the Panther
did not become at law the servant of the owners of the Ericbank since the right
to control the faulty action of not shutting off the Panther’s engines did not
reside with the pilot and as a result, the Ericbank’s owners could not be made
liable for such negligence. He added the outcome would have been different
if the faulty manoeuvre had been one within the province of the pilot or the
officer of the tow, for example, if the tug failed to carry out an order, or
negligently executed, without orders, a manoeuvre which was within the
province of the person in charge of the tow to give.
[45]
As
noted, counsel for Grieg relied heavily on the decision of my colleague the
late Madame Justice Layden-Stevenson (the trial judge) in Canada v Delta Pride. It is appropriate to draw out the main features of her
decision:
i.
The
Delta Price is an ocean going bulk carrier who had been berthed at Pacific
Coast Terminals (PCT) in the Port of Vancouver for the purpose of taking on a
load of sulphur. It is owned by the defendant Tristar Shipping Lines Ltd.
(Tristar). On January 10, 1995, at 13:54 hours, loading complete, she was
exiting her berth with a compulsory pilot on board; she was also assisted by
two tugs: the Falcon and the Hawk. The pilot gave instructions to back the
Delta Pride away from its berth to a position on the range lights in the
designated deep water preferred channel since turning the ship close to the
berth was not feasible because (1) the tide was falling; and (2) the ship was
fully loaded. After the ship stopped moving backwards, the pilot instructed the
Falcon to push on her starboard bow and the Hawk to push on the port quarter so
that the Delta Pride’s bow faced north. The pilot noticed her stern was moving
in the direction of a breakwater owned by Canada located next to PCT and a
marina. The pilot instructed the ship’s crew to engage the vessel’s engines
first at slow, then half and briefly to full ahead. The Delta Pride moved
forward and away from the breakwater not coming into contact with the floating
breakwater protecting the marina but the evidence accepted by my late colleague
showed, one of the assist tugs came into contact with it causing damage which
its owner Canada sued the Delta Price in rem and its owners Tristar
claiming as the Delta Price departed from its berth at PCT it was operated in
an improper manner by the pilot on board which made the defendants responsible
for the damage caused.
ii.
Justice
Layden-Stevenson made the following critical findings:
a)
What
might have been a simple case became a complex one largely due to the
evidence which was missing (See paragraphs 47 – 52).
b)
Accepted
the evidence established the stern tug had made contact with the breakwater
(See paragraph 62), noting however that its captain had not been called to
testify (See paragraph 53).
c)
Found
the pilot on board the Delta Price not negligent in making a turn to starboard
once out of the berth and therefore its owners not negligent, adding that her
finding, because there was contact, gives rise to a presumption of fact against
the moving object (the tug) that collides with an immovable one (the floating
breakwater) (See paragraph 57).
d) Considered
the issue of liability for contact citing Justice Nadon’s decision in Hamilton
Marine and UK learned authors on the law of tug and tow in terms of
vicarious liability (see paragraphs 63 – 66). In particular, she quoted an
extract from Robert Grime, Shipping Law, 2nd ed. (London: Street and Maxwell,
1991) on the fact there were many varieties of towage, his stating the maxims
“The tug is the servant of the tow” and “Tug and tow are one ship” which he
said described for a common type of towage i.e. “a vessel navigated in confined
water with the help of tugs, the operation being under single command with that
command placed on the vessel in tow which would justify the placing of
vicarious liability in the event of negligence on board the tug (See paragraph
65).
e)
Found
the tugs were in the control of the Delta Pride for three reasons; (1)
there was no evidence to support the notion that the tugs were not under the
control of the vessel referring to the evidence of the pilot having issued
directions to the tugs and that the presumption the Delta price was not in
control of the tug had not been rebutted (See paragraph 69); (2) the Delta
Price was under the command of the pilot who, on cross-examination,
acknowledged he had the de facto control of the Delta Price; and (3)
stated the evidence before her did not support a finding of anything other than
a common type of towage (See paragraph 68).
f)
Concluded
at paragraph 71 of her reasons: “Having found that contact between the tug and
the breakwater did occur and having found that the tug was in the control of
the tow, it follows that the defendants were negligent.
[46]
In
the balance of her reasons, Justice Layden-Stevenson tackled the issue of causation
on the basis that the general, but not conclusive, test for causation is the
“but for” test finding that but for the tug’s contact and the wash from the tug
and vessel played a minor role with the primary cause of the damage being the
condition of the breakwater (See paragraph 94).
VI. Conclusions
[47]
The first question to be
answered is whether the owner of the Dubai Fortune, who is without fault, is
vicariously liable (or responsible) for the damages suffered by the owners of
the Star Hansa (equally faultless) caused by the negligent manoeuvre of the
master of the Shark during the berthing of the Dubai Fortune.
[48]
In
these circumstances, the law of vicarious liability is settled law. In order
for a person to be vicariously liable requires justification. In negligence
cases, that justification resides in the concept of control, the giving of
orders or direction, at the time of incident, over how or manner the relevant
negligent act was to be performed.
[49]
The
question of control, in the law of tug and tow, is expressed in employment
terms such as the tug is the servant of the tow. The law is also clear the
question of which vessel is in control is a question of fact to be determined
in every case. In other words, the focus of the inquiry is on the relevant
negligent act in question, who was entitled to give orders to prevent the
negligent act causative of the injury, i.e. control the doing the act; the way
in which the act involving the negligence was done.
[50]
In
this case, we have had the benefit of several witnesses to the berthing of the
Dubai Fortune and from read-ins on the discovery of others. In my view the
testimony of all of those witnesses is credible although the Plaintiff argued
that in respect of some elements there may have been exaggeration, a matter
going to weight. Appreciating the evidence as a whole, the evidence of the
pilots and all of the tug masters involved in the berthing of the Dubai Fortune
was unanimous on one point. The pilots did not give the tug masters engaged in
the berthing anything but general orders to the assist tugs and none to the
line tug, the Shark. The pilots conceded they do not control how a tug
master manoeuvres or drives his tug; it is within the prerogative of the tug
masters to implement the pilots general orders. The evidence is overwhelming
the control test was not made out by the Plaintiff.
[51]
The
reliance placed by counsel for the Plaintiff on the Delta Pride is to a large
extent misplaced for several reasons:
i.
Justice
Laydon-Stevenson did not rule simply because there was a compulsory pilot on
board who had conduct of the Delta Pride that the two tugs involved in the
deberthing of the Delta Price were automatically the servants of the Delta Pride
making that ship vicariously liable for the tug who damaged the breakwater. To
the contrary, she applied the traditional control test for vicarious liability
and criticised the parties for not calling any evidence from the master of the
tug involved (see her paragraphs 66 to 74 of her reasons).
[52]
The
evidence is also clear on another point. The captain of the Shark admitted one
of his tasks was to run the bowlines from the Dubai Fortune to the dock so when
tied to the bollards the ship was secure. He admits not having asked the pilots
for permission to depart before having run the headlines.
[53]
In
his closing argument, counsel for Grieg Shipping argues that captain
Duesterdiek’s negligence in this case was departing early without
authorization. That departure caused a series of events to occur such that
the “bump” on the stern of the Sun was unavoidable.
[54]
In
my view, the evidence relied upon by counsel for the Plaintiff ignores other
critical evidence which points to the negligent act being the manner in which
he manoeuvred his tug causing the Shark to bump the stern of the Sun and then
being propelled across the narrow channel. That evidence shows:
i.
The
Shark did not abandon the Dubai Fortune when it departed. It had the presence of
the Tyee whose mandate it was to replace the Shark and complete the Shark's
remaining tasks which the pilots testified was done by the Tyee in a timely and
satisfactory way.
ii.
While
it is true the pilots had not been forewarned of the Tyee being the Shark's
replacement they saw the Shark after it left its position on the starboard side
of the Dubai Fortune and did not intervene to order the Shark back to its
original position which they could have done and in different circumstances in
other cases had so ordered. Captain Rayner's view was the switch was okay
because the Dubai Fortune was safely alongside the dock and had the assistance
of the Spirit and the Sun.
iii.
While
it is correct to say the presence of the Tyee caused the Shark not to have a
proper line when passing the Tyee, Captain Duesterdiek testified he never
lost control of his tug, and testified if he had not contacted the Sun he would
have been on his proper line and probably gotten out. He admitted he manoeuvred
the Shark close to the stern of the Sun in order to minimize the Sun's wash and
got in a situation where he was a little bit too close to the Sun and the two
tugs bumped.
[55]
This
evidence convinces me that the cause of the damage to the Star Hansa was the
way in which the captain of the Shark manoeuvred his tug after it passed the
Tyee. That manoeuvre was negligent and there is no evidence which would
reasonably support any other conclusion.
[56]
I
therefore conclude the Plaintiff has not established the foundation to support
a finding of vicarious liability against the remaining defendants. In the
circumstances the Plaintiff's action must be dismissed. Not having made out a
case for liability any finding in this case as to what the Dubai Fortune limit
of liability is, is moot.
JUDGMENT
THIS
COURT’S JUDGMENT is that the Plaintiff’s action is dismissed
with costs to be assessed in accordance with the maximum units in Column IV of
the Court’s Tariff B.
“François Lemieux”
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