Supreme Court of Canada
Goodwin Johnson Ltd. v. A.T. & B. No. 28
(Ship), [1954] S.C.R. 513
Date: 1954-06-21
Goodwin Johnson Limited (Plaintiff) Appellant;
and
The Ship (Scow) At & B No. 28 The Ship
(Scow) E S M No .X The Ship (Scow) Marpole II Defendants.
1953: November 17, 18; 1954: June 21.
Present: Rinfret C.J. and Rand, Locke, Cartwright and Fauteux
JJ.
ON APPEAL FROM THE EXCHEQUER COURT OP CANADA BRITISH COLUMBIA
ADMIRALTY DISTRICT
Shipping—Action in rem—Tug and tow—Liability of res
where negligence that of charterer—Where negligence that of an independent
contractor.
In a day of rough weather three unmanned scows, possessing
neither motive nor steering power, drifted into and damaged the appellant's
booming ground in Vancouver Harbour. In an action in rem, brought
against each of the respondent vessels, it was established that the scow AT
& B No. 28 was under a charter which placed her in the charterer's sole
control but no evidence was given as to how she had drifted into the booming
ground. The scow ESM No. X had been unmoored by the crew of a tug, an
independent contractor, who was employed to tow her elsewhere but abandoned her
to pick up other scows that had gone adrift whereupon she drifted into the
booming ground. The action brought against the Marpole II was taken in error as
the damage alleged to have been done by her was done by the Marpole XII, a scow
belonging to the same owners.
Held: 1. There was a prima facie case of negligence
against the charterers of the AT & B No. 38 which was unanswered
and, since negligence in the navigation of a ship for which the charterer is
liable subjects the ship itself to a maritime lien for the damages caused
thereby, she was therefore liable. The Bold Buccleugh 7 Moo. P.C. 267
approved in Currie v. McKnight [1897] A.C. 97, applied.
2. That as the negligence causing the damage done by the ESM
No. X was solely that of the independent contractor no liability attached
to her.
Per: The Chief Justice and Locke JJ.: If the claim was
in nuisance, it would fail since the nuisance, if any, resulted from the act of
an independent contractor and there was no evidence upon which it could be
found that the owner had become aware of it or should have become aware of it
and thereafter failed to abate it. Sedleigh Denfield v. O'Callaghan [1940]
A.C. 880 at 904 applied. .3. That the action against the Marpole II was
not maintainable. She could not be held responsible for damages done by another
ship even if the property of the same owners.
Judgment of Smith J., District Judge in Admiralty [1952] Ex.
C.R. 226, varied,
[Page 514]
APPEAL by the plaintiff from the judgment of Smith J.,
District Judge in Admiralty of the Exchequer Court of Canada , dismissing proceedings in rem
taken by the plaintiff to enforce a maritime lien against each of the
respondent vessels.
H. R. Bray, Q.C. for the appellant.
J. I. Bird for the respondent.
The judgment of Rinfret C.J. and of Locke J. was delivered
by:—
Locke J.:—It
is clear that the action against The Scow Marpole II fails since the
evidence shows that she was not at the place in question at the time the damage
complained of was occasioned.
The E S M No. X is a flat deck lumber scow owned by
Canadian Forest Products Limited and had been towed to the pool by a tug of the
Gulf of Georgia Towing Co. Ltd. prior to December 2. On that date, the tug
"Goblin" owned by the latter company went to the scow mooring grounds
about 8 o'clock with instructions to tow the scow to a new location. On
arrival, Ludgate, a member of the crew of the tug, boarded the scow and let go
the lines by which she was tied to another scow moored there. Before a tow line
from the tug was made fast, those in charge of the tug seeing some other scows
which were breaking adrift, or were adrift, went to attempt to pick them up,
and while it was so engaged the scow drifted into the booming grounds of the
plaintiff, causing considerable damage before it could be removed. While I
think the evidence is not entirely clear on the point, I think this scow was
only in the booming ground on one occasion that morning.
It was shown that the Gulf of Georgia Towing Co. Ltd. was
employed by the owners of this scow to tow their lumber barges from their mill
to the harbour, for which they were paid by the trip, the manner in which the
tow was carried out being decided upon by the tug company.
Different considerations affect the claim against the Scow AT
& B No. 28. This, like the other scows, had neither motive power,
steering power or crew. It was
[Page 515]
owned by James Aitken, Jr. and for a number of years had
been chartered on a bare boat charter basis to the Vancouver Towing Boat Co.
Ltd. and was entirely under the control and direction of that company. The
charter was not produced but it was referred to by the trial Judge as a charter
by demise.
According to Ludgate, when the Goblin arrived at the
mooring grounds shortly after 8 o'clock, an "AT & B" scow was
adrift in the plaintiff's booming grounds, and I think it is clear that this
was the scow in question. No evidence was given as to how the scow broke loose,
or indeed to show that she had been moored on the mooring grounds. The
plaintiff's case against this scow must, therefore, be put upon the footing
that the fact that she was adrift within the mooring ground unattended raises a
prima facie case of negligence or nuisance against the scow, since the
proceedings taken are in rem only.
The learned trial Judge dismissed the action against the E
S M No. X on the ground that, as it was shown that the cause of her going
adrift was the negligence of the Gulf of Georgia Towing Co. Ltd., an
independent contractor under whose control she was at the time she broke loose,
there was no liability in proceedings in rem. Unless there is some
distinction to be made between a case such as this, where the tug had not
actually commenced the tow, and the case of a dumb barge such as this, cast
adrift during the course of a tow or striking some vessel owing to negligent
navigation on the part of those in charge of the tug, the appeal in respect of
this scow should fail, in my opinion.
The cases to which we have been referred do not directly
decide the question to be determined. In Union Steamship Co. v. The
Aracan ,
the American, a screw steamship was towing the S.S. Syria in the
English Channel and, while so doing, came into collision with the Aracan, a
sailing ship. Damages were claimed against both of the steam vessels and the American
was found wholly to blame. The claim that the Syria was also liable
for the loss, which succeeded in the High Court of Admiralty, failed before the
Judicial Committee. For the Aracan, reliance was
[Page 516]
placed upon a portion of the judgment of the House of Lords
in The Cleadon ,
where upon the facts of that case Lord Chelmsford has said that the Cleadon being
in tow of the tug it was admitted that she and the tug must be considered to be
one ship, the motive power being in the tug and the governing power in the Cleadon,
the ship that was being towed. As to this, however, Sir Robert P. Collier,
delivering the judgment of the Court, said that in the case before them the
governing power was wholly with the American, the movements of that
vessel not being under the direction or control of the Syria, and that
the reasoning upon which the decision in the Cleadon was based was
therefore inapplicable. This principle is reaffirmed in the judgment in the
House of Lords in S.S. Devonshire (Owners) v. Barge
Leslie (Owners) .
These cases and The Quickstep , were cases of faulty navigation
on the part of those in charge of the tug during the course of the tow. Here,
however, the tow had not commenced, since no line had been made fast to the tug
when she temporarily abandoned the work for which she was employed and went to
attempt to rescue the other scows. The owners of the tug are not parties to
this action, the proceedings being in rem alone against the scow and
nothing should be said, in their absence, to determine the question of their
liability to the present appellant. However, upon the evidence before us, it
would appear that it was the negligent act of those in charge of the tug which
caused the E S M No. X to become adrift and to injure the appellant's
property and, in so far as the claim may be based upon negligence, I agree with
the learned trial Judge that, as the tug owners were independent contractors,
the scow is not liable.
It may, however, be contended that there is some liability
in the scow on a claim in nuisance. It is undoubted that a scow of the size of
the E S M No. X adrift in the Harbour of Vancouver would constitute a
menace to booming grounds or other adjacent property, and it may be contended
that such nuisance was created by the failure of the owner of the scow to see
that she was properly moored. As pointed out by Lord Wright in his judgment in
[Page 517]
Sedleigh Denfield v. O'Callaghan , negligence is not a necessary
condition of a claim for nuisance. Here, however, assuming the scow adrift in
the harbour constituted a nuisance, I think what was said further by him at p.
904 in the Sedleigh Denfield case applies. He there said in part:—
Though the rule has not been laid down by this House, it has
I think been rightly established in the Court of Appeal that an occupier is not
prima facie responsible for a nuisance created without his knowledge and
consent. If he is to be liable a further condition is necessary, namely, that
he had knowledge or means of knowledge, that he knew or should have known of
the nuisance in time to correct it and obviate its mischievous effects. The
liability for a nuisance is not, at least in modern law, a strict or absolute
liability. If the defendant by himself or those for whom he is responsible has
created what constitutes a nuisance and if it causes damage, the difficulty now
being considered does not arise. But he may have taken over the nuisance, ready
made as it were, when he acquired the property, or the nuisance may be due to a
latent defect or to the act of a trespasser, or stranger. Then he is not liable
unless he continued or adopted the nuisance, or, more accurately, did not
without undue delay remedy it when he became aware of it, or with ordinary and
reasonable care should have become aware of it.
The nuisance referred to in this passage was one created by
the act of a stranger, but what was said by Lord Wright is of wider application
and, in my opinion, should be applied where it results from the act of an
independent contractor, as in the present case, whether, as here, the action is
in rem or in personam against the owner on this footing.
As to the claim against the Scow AT & B No. 28, the
position taken by the respondent is that, in order to impose liability in
rem for the damage caused by it when it was adrift in the booming ground,
it is necessary to show that the owners were personally liable and that since
there was a charter by demise in favour of the Vancouver Towing Boat Company
Limited and the scow was under the control of that company no lien attached.
The question is one of great importance. It is necessary at
the outset to consider the nature of the maritime lien which may attach to a
ship which, through the negligent management of those in charge of it, has
occasioned damage to others.
[Page 518]
In the case of Harmer v. Bell , which arose over damage caused
by The Bold Buccleugh and which is commonly referred to by that name,
the Judicial Committee, on appeal from the High Court of Admiralty, stated the
nature of such a lien in the following terms (pp. 284-5) :—
A maritime lien does not include or require possession. The
word is used in Maritime Law not in the strict legal sense in which we
understand it in Courts of Common Law, in which case there could be no lien
where there was no possession, actual or constructive; but to express, as if by
analogy, the nature of claims which neither presuppose nor originate in
possession. This was well understood in the Civil Law, by which there might be
a pledge with possession, and a hypothecation without possession, and by which
in either case the right travelled with the thing into whosesoever possession
it came. Having its origin in this rule of the Civil Law, a maritime lien is
well defined by Lord Tenterden, to mean a claim or privilege upon a thing to be
carried into effect by legal process; and Mr. Justice Story (1 Sumner, 78)
explains that process to be a proceeding in rem, and adds, that wherever
a lien or claim is given upon the thing, then the Admiralty enforces it by a
proceeding in rem, and indeed is the only Court competent to enforce it.
A maritime lien is the foundation of the proceeding in rem, a process to
make perfect a right inchoate from the moment the lien attaches; and whilst it
must be admitted that where such a lien exists, a proceeding in rem may
be had, it will be found to be equally true, that in all cases where a
proceeding in rem is the proper course, there a maritime lien exists,
which gives a privilege or claim upon the thing, to be carried into effect by
legal process. This claim or privilege travels with the thing, into whosesoever
possession it may come. It is inchoate from the moment the claim or privilege
attaches, and when carried into effect by legal process, by a proceeding in
rem, relates back to the period when it first attached. This simple rule,
which, in our opinion, must govern this case, and which is deduced from the
Civil Law, cannot be better illustrated than by reference to the circumstances
of The Aline (1 W. Rob. 111), referred to in the argument, and decided
in conformity with this rule, though apparently upon other grounds. In that
case, there was a bottomry bond before and after the collision, and the Court
held, that the claim for damage in a proceeding in rem, must be
preferred to the first bond-holder, but was not entitled against the second
bond-holder to the increased value of the vessel by reason of repairs effected
at his cost. The interest of the first bond-holder taking effect from the
period when his lien attached, he was, so to speak, a part owner in interest at
the date of the collision, and the ship in which he and others were interested
was liable to its value at that date for the injury done, without reference to
his claim. So by the collision the interest of the claimant attached, and
dating from that event, the ship in which he was interested having been
repaired, was put in bottomry by the master acting for all parties, and he
would be bound by that transaction.
[Page 519]
In Currie v. McKnight , the decision in The Bold
Buccleugh was approved and adopted. Lord Halsbury L.C., referring to the
circumstances under which the lien attaches, said in part (p. 101):—
… the phrase that it must be the fault of the ship itself is
not a mere figurative expression, but it imports, in my opinion, that the ship
against which a maritime lien for damages is claimed is the instrument of
mischief, and that in order to establish the liability of the ship itself to
the maritime lien claimed some act of navigation of the ship itself should
either mediately or immediately be the cause of the damage.
Lord Watson said in part (p. 105):—
The Bold Buccleugh, which was decided by the Judicial
Committee of the Privy Council affirming the judgment of Dr. Lushington, is the
earliest English authority which distinctly establishes the doctrine that in a
case of actual collision between two ships, if one of them only is to blame,
she must bear a maritime lien for the amount of the damage sustained by the
other, which has priority, not only to the interest of her owner, but of her
mortgagees. The principle of that decision has been adopted in the American
Courts; and in the Admiralty Court of England it has for nearly forty years
been followed in a variety of cases in which lien for damage done by the ship
has been preferred to claims for salvage and seamen's wages, and upon bottomry
bonds.
Continuing, Lord Watson, after saying that The Bold
Buccleugh was, in his opinion, properly decided, said (p. 106):—
And in my opinion it is a reasonable and salutary rule that
when a ship is so carelessly navigated as to occasion injury to other vessels
which are free from blame, the owners of the injured craft should have a remedy
against the corpus of the offending ship, and should not be restricted to. a
personal claim against her owners, who may have no substantial interest in her
and may be without the means of making due compensation.
The other point as to which the learned judges of the Second
Division were unanimous relates to the limits of the shipping rule which was
followed in the case of The Bold Buccleugh. I think it is of the essence
of the rule that the damage in respect of which a maritime lien is admitted
must be either the direct result or the natural consequence of a wrongful act
or manoeuvre of the ship to which it attaches. Such an act or manoeuvre is
necessarily due to the want of skill or negligence of the persons by whom the
vessel is navigated; but it is, in the language of maritime law, attributed to
the ship because the ship in their negligent or unskilful hands is the
instrument which causes the damage.
In The Ticonderoga ,
Dr. Lushington, while not referring to the decision in The Bold Buccleugh said
that, if a vessel was chartered so that the owners have divested themselves of
all authority over the vessel and that vessel does damage, those injured had by
the maritime law of
[Page 520]
nations a remedy against the ship itself. He said further
that, so far as he was aware, there was only one exception to this, that is,
where a pilot was taken on board by compulsion, being required by the
provisions of an Act of Parliament.
In The Lemington , Sir
R. Phillimore, after hearing a lengthy argument in which the effect of The
Bold Buccleugh was fully discussed, adopted the statement of the law by Dr.
Lushington in The Ticonderoga.
In The Ripon City ,
Gorell Barnes J. reviewed the authorities, including The Parlement Belge
, The Castlegate and The Utopia , which are those principally relied
upon in support of the contention of the respondent in the present case and
distinguished them. His conclusion in the matter reads as follows (p. 244):—
As maritime liens are recognized by law, persons who are
allowed by those interested in a vessel to have possession of her for the
purpose of using or employing her in the ordinary manner, must be deemed to
have received authority from those interested in her to subject the vessel to
claims in respect of which maritime liens may attach to her arising out of
matters occurring in the ordinary course of her use or employment, unless the
parties have so acted towards each other that the party asserting the lien is
not entitled to rely on such presumed authority.
In my opinion, this statement expresses the true principle
to be deduced from The Bold Buccleugh and Currie v. M'Knight and
should be applied in determining the present question. Upon the evidence in
this case there was a prima facie case of negligence against the
charterers of the Scow AT & B No. 28 which was unanswered and she is
liable for such damage as she occasioned when adrift in the booming ground.
I would accordingly dismiss the appeal as to the Scows Marpole
II and E S M No. X, with costs, and allow the appeal as to the Scow AT
& B No. 28 and direct a reference to the proper officer of the
Exchequer Court to assess the damages. The appellant' should have its costs
throughout in respect of the claim against the AT & B No. 28, including
the costs of the reference.
[Page 521]
Rand J.:—A
question of importance is raised by this appeal. The action arises out of
damage done to a booming ground of the appellant by three "dumb
barges". These are rectangular in form without motive power, without
steering power and without crew. They are towed by tugs from place to place. In
a day of rough weather they broke or were let loose from their moorings in
Vancouver harbour and drifting into the booming ground did the damage
complained of. One of the barges was under the supervision and control of a
towing company for all uses of navigation. Another was under a charter which
placed the charterers in complete charge and responsibility. In the case of the
third, the barge actually arrested was not that which did any mischief; there
was a mistake in reading the name and although the ownership is the same it is
not seriously contended that the action in rem can be maintained. In the
other cases, the question is whether such an action lies where the owner of the
scows cannot be fixed with personal liability.
As a preliminary to that question, I think it desirable to
review briefly the broad principles and rules of maritime law from which the
rule applicable to the circumstances must be deduced. That law, constituting
the customs of the sea enforced generally by the maritime states of Europe,
conceived a voyaging ship to be a venture in which all interests, ownership,
bond or other liens, cargo, wages and material, under the superintendence of
the master, in many cases a part owner, were committed to the risks of the
voyage. Among them was that of collision and from the earliest times damage
caused by negligent navigation resulting in collision gave rise to a lien
against the offending vessel that took precedence over all existing interests.
The lien was enforceable in an action in rem. Through that procedure the
Court of Admiralty exercised a jurisdiction which dealt with ownership in an
absolute sense and by its decree bound all persons and interests, foreign or
domestic. The jurisdiction was limited obviously to the value of the res before
the court and in the earlier proceedings, at least, even though the owner
appeared, the limit of his responsibility was that of the interest which he
intervened to protect. There was always a jurisdiction exercised in personam
but its basis was an assumed disciplinary
[Page 522]
authority. Later on this jurisdiction was extended until in
the Dictator , Sir
F. Jeune held that the court could make an order against the owner based on his
personal liability for the amount of damages beyond the value of the res. The
action in rem was essentially different from that in personam even
when the vessel was seized by way of collateral attachment, and a judgment in
personam did not preclude an action in rem, though there could be
only one satisfaction for the total damages. That seizure to enforce the lien
was not analogous to the foreign attachment followed by the courts of the City
of London seems self-evident when we consider the effect of the decree in the
one case and of the judgment in the other: the courts of London had no
jurisdiction in rem and what they exercised their authority against were
the interests in the property attached of the persons over whom they possessed
personal jurisdiction.
Since the ship and the freight were the assets to which all
interests looked for recoupment, they were bound to those interests and the
interests were bound to the assets. So we had and still have the lien, among
others, for seamen's wages, of bottomry bonds, for salvage and for collision,
and their order of precedence is well established.
The commercial conditions out of which these accepted
customs grew are not difficult to visualize. Ships from the most remote times
have ploughed the known and the unknown seas. They were engaged in a commerce
of what were then great distances and with peoples of foreign lands. There were
no means of communication such as we now have and the risks which produced
unexpected situations or emergencies were many. It can be seen to have been
necessary by the nature of the ventures that the fullest authority be
exercisable by the master for the benefit of the interests in his safekeeping.
This emphasized the notion of the ship as a self-controlled agency, itself
responsible for obligations bound up with its actions.
But not all the maritime nations accepted and in their
courts enforced all of these customs according to their general formulation.
For instance, neither England nor the United States recognized the rule that
the owner was
[Page 523]
liable only to the extent of the value of his ship and upon
abandoning it discharged himself of liability; they enforced, though not at
first in the Admiralty Court, in addition to the lien, the collateral personal
responsibility arising from the rule of respondeat superior which the
civil law had long before settled. But the proceedings in rem in the
Court of Admiralty did not differ in character or underlying basis from those
of other national courts enforcing maritime law. Then again, England did not
recognize the lien of the material man, nor that for the wages of the master
nor for his disbursements. These were modifications in the general maritime law
made not because of any incompatibility with municipal law but because of their
supposed inconsistency with the general principles of the law merchant: The
Henrich Björn ,
Lord Watson, at 279. In a number of instances Parliament has intervened to
restore in whole or part the maritime law, as in the cases of limitation of
liability and of liens for wages and disbursements of the master. But these
qualifications and subsequent modifications were of rules which clustered
around the general idea of a vessel and its embodiment of interests and cargo
as a subject of rights, duties and liabilities.
This basic conception is, in large measure, implied in the
judgment of the Judicial Committee in the Bold Buccleuch . In that case there had been a collision
between two vessels in the river Humber. The offending vessel sailed before a
warrant of arrest could be executed. An action in personam was commenced
in Scotland and the vessel there arrested on attachment. Subsequently she was
taken in England under proceedings in rem. It was held, first, that the
plea of lis alibi pendens was bad since the two actions were essentially
different, and secondly, that upon the damage occurring from the collision a
lien arose which was good against a subsequent purchaser in good faith. The
Committee, speaking through Sir John Jervis, used language which is too precise
to admit of any doubt
[Page 524]
in meaning. Dealing with the argument that the arrest of a
vessel in Admiralty is only a means of compelling the appearance of the owner
he said:—
It is admitted that the Court of Admiralty has jurisdiction
in a case of collision by a proceeding in rem against the ship itself;
but it is said that the arrest of the vessel is only a means of compelling the
appearance of the owners … In the Johann Friederich (1 W. Rob. 37) Dr.
Lushington is reported to have said that proceedings in rem in the Court
of Admiralty were analogous to those by foreign attachment in the courts of the
City of London. For the purpose for which that allusion was made, viz., the
liability of the property of foreigners to be arrested by process out of the
Court of Admiralty and the courts of the City of London, the two proceedings
may be analogous, but in other respects they are altogether different. The
foreign attachment is founded upon a plaint against the principal debtor, and
must be returned nihil before any step can be taken against the garnishee;
the proceeding in rem, whether for wages, salvage, collision, or on
bottomry, goes against the ship in the first instance. In the former case, the
proceedings are in personam, in the latter they are in rem. … A
maritime lien is the foundation of the proceeding in rem, a process to
make perfect a right inchoate from the moment the lien attaches; and. whilst it
must be admitted that where such a lien exists, a proceeding in rem may
be had, it will be found to be equally true that in all cases where a proceeding
in rem is the proper course, there a maritime lien exists which gives a
privilege or claim upon the thing to be carried into effect by legal process.
Speaking of the case of The Aline , in which there was a bottomry bond
before and after the collision, and in which the court had held that the lien
for damage is to be preferred to the first bondholder, he observed:—
The interest of the first bondholder taking effect from the
period when his lien attached, he was, so to speak, a part owner in interest at
the date of the collision, and the ship in which he and others were interested
was liable to its value at that date for the injury done, without reference to
his claim. So by the collision the interest of the claimant attached, and
dating from that event, the ship in which he was interested having been
repaired, was put in bottomry by the master acting for all parties, and he
would be bound by that transaction.
This judgment was approved and followed by the House of
Lords in Currie v. M'Knight .
The general statement is to be deduced also from two
judgments of Ware J. of the United States District Court. In The Brig
Spartan , in
which it was held that seamen have a lien for wages against freight, assuming
that the
[Page 525]
lien extended to the vessel, and in The Rebecca , in which a lien against the vessel
for supplies was maintained, full references are made to the early law.
Elaborating the conception of the total interests being responsible for the incidents
of the venture, and after observing,
In the jurisprudence of The Consulate, in addition to the
direct liability of the master himself, the vessel was tacitly hypothecated for
the obligations contracted by him, both ex contractu and ex delicto, but
there resulted from either no personal liability on the owners.
he quotes, in The Rebecca, at p. 195, from Consulate
de la Mer (Boucher's Translation) cap. 72.
In all damages which are here and shall be mentioned in the
chapters of the sea, the master supports his part of what the ship pays, and
each part owner his part, for the ship pays the whole.
The rule of abandonment of the ship by the owners was
recognized in Sweden, Hamburg and generally throughout northern Europe, but not
in England: there, under the rule of respondeat superior, the liability in
personam ran parallel to the lien, although, as I have already remarked, it
was not originally enforced in the Admiralty Court. The Ordonnance de la
Marine provided that:—
The proprietors of vessels shall be responsible for the acts
of the master, but they shall be discharged by abandoning the ship and freight.
to which Ware J. adds:—
And this article is merely a confirmance of the pre-existing
law (p. 196).
The same statement is said to appear in Pardessus,
Collection des Lois Maritimes, Vol. 2, p. 235 and in The Phebe , at p. 272 he remarks:—
He (the master) was the agent or representative of the other
owners, only so far as they had confided their capital to his administration.
If the vessel was lost before the creditors were paid, they had no remedy
except against the master. The other part owners were discharged from all
responsibility … The master could not, therefore, in the proper sense of the
word, bind the owners, personally, at all, because they could always withdraw
themselves from their personal responsibility by abandoning the ship and
freight.
Further on at p. 272 he says:—
It was for this reason that Emerigon, whose mind was deeply
imbued with the' maritime traditions of the middle ages, says that the
liability of the owners to answer for the acts of the master is rather real than
personal. The legal power of the captain, says he, does not extend
[Page 526]
beyond the limits of the vessel of which he is master, that
is, administrator. He cannot bind the other property of the owner,
unless he have a special power for that purpose.
and finally:—
Thus we find, when the principle is traced back to its
source, that it is by no means correct to say that the liability of the vessel
is merely collateral or accessory to that of the owner. On the contrary, in the
origin of the custom the primary liability was upon the vessel, and that of the
owner was not personal but merely incidental to his ownership, from which he
was discharged either by the loss of the vessel or by abandoning it to the
creditor.
The law administered in the Admiralty court is the law of
the sea unless municipal legislation expressly applicable, or the limitations
placed upon the Court of Admiralty in the early days by the common law courts,
or the general principles of the law merchant conflict with it. In Nostra
Signora de los Dolores ,
where it was held that an Act of Parliament requiring the name of the owner of
a vessel to appear on the register did not apply to a claim by a foreigner for
wrongful seizure under letters of marque against an owner whose name did not so
appear, Lord Stowell said:—
But I am yet to learn that this rule of law is applicable to
foreigners, who are not bound by the municipal regulations of this country.
This is a question of the law of nations; and the party complainant, being a
foreigner, comes to a court which has to administer that law.
Similarly in the case of the Carl Johan mentioned in
the judgment of Sir John Nicholl in the Girolamo . In a claim against the vessel for
collision, she was condemned and the amount referred to the registrar for
determination. There was an objection to the registrar's report on the ground
that the amount of the damage exceeded the value of the ship and freight
contrary to 53 Geo. III, c. 159, s. 1 which provided for the limitation of
damages. On this question, Lord Stowell held:—
That the new rule introduced by the 52 Geo. III was one of
domestic policy and that with reference to foreign vessels, it only applied in
cases where the advantages and disadvantages of such a rule were common to them
and to British vessels; that if all states adopted the same rule, there would
be no difficulty, but that no such general mutuality was alleged; that if the
law of Sweden adopted such a rule it would apply to both countries, but that
Sweden could not claim the protection of that statute without affording a
similar protection to British subjects in similar cases.
[Page 527]
In this background, then, the question here lends itself to
a more confident determination. In three English decisions it has been held
that the lien arises when the damage occurs while the ship is under charter or
its equivalent. There is, first, The Ticonderoga . In that case, decided in 1857, an
American ship was under a demise charter to the government of France during the
Crimean war; in course of being towed by a steamer which she was directed to
employ, across the hawse of H.M.S. "Melampus", considerable damage
was done the latter, and Dr. Lushington held the fact of being chartered to be
no defence by the owner. In the course of the judgment he says:—
We must recollect that this is a proceeding in rem. I
am not aware, where there has been any proceeding in rem, and the vessel
so proceeded against has been clearly guilty of damage, that any attempt has
been made in this court to deprive the party complaining of the right he has by
the maritime law of the world of proceeding against the property itself. … Let
us see what cases there are in which the Court does not hold a vessel
responsible for the damage done. There is one case and one only that I am aware
of, and that is where a pilot is taken on board by compulsion … What species of
compulsion is it which is averred on behalf of this American vessel that is to
relieve her from the responsibility which the maritime law of the world
attaches to the wrongdoer?—Entering into a stipulation with the French
government. It is impossible to contend that because a person has entered into
a voluntary contract by which he is finally led into mischief, that that can
relieve him from making good the damage he has done.
In The Ruby Queen , the
same judge held the ship liable though its control had been handed over to
agents for sale who had left it improperly moored. These persons, it was
contended by the defendant, were independent contractors; but that question
with its consequences was not argued because the ground was not taken in the
plea; and the reference to the merits is so cursory that its authority is, at
least, doubtful.
In the Lemington , the
defendant owner pleaded a charter by demise. A motion to reject the plea was,
after a most elaborate argument, allowed by Sir Robert Phillimore, who, in the
course of his reasons and after quoting the foregoing passage from the Ticonderoga
says:—
It is true that in The Druid Dr. Lushington said,
"The liability of the ship and the responsibility of the owners are
convertible terms, the ship is not liable if the owners are not responsible.
And vice versa no
[Page 528]
responsibility can attach upon the owners if the ship is
exempt and not liable to be proceeded against"; in that case, however, it
should be remembered that the learned judge was dealing with damage done by the
ship through the act of a mere servant or agent acting not only without
authority but unlawfully. And moreover the true interpretation of the general
proposition of law there laid down depends very much upon the sense in which the
word "Owners" is used. A vessel placed by its real owners wholly in
the control of charterers or hirers, and employed by the latter for the lawful
purposes of the hiring, is held by the charterers as pro hac vice owners …
Vessels suffering damage from a chartered ship are entitled prima facie to a
maritime lien upon that ship and look to the res as security for restitution. I
cannot see how the owners of the res can take away that security by having
temporarily transferred the possession to third parties.
In the Tasmania , a
tow was damaged by its tug. The latter was chartered on terms that the
charterer would be liable for all damages. The contract of towage provided that
the tug would not be liable for damage to the tow caused by negligence. On
these facts, Sir J. Hannen held that no lien attached. After repeating the
passage from the Ticonderoga, already mentioned, he adds:—
There is nothing in this judgment which leads to the
conclusion that Dr. Lushington intended to retract what he had said in The
Druid. It amounts only to this, that he thought that whatever might be the
case at common law, by the maritime law of nations, charterers to whom the
government of the ship is voluntarily handed over, represent the owners so as
to bind the ship in cases of collision, and the generality of his remarks must
be controlled by the particular circumstances of the case before him … The
result of the authorities cited appears to me to be this, that the maritime
lien resulting from collision is not absolute. It is a prima facie liability of
the ship, which may be rebutted by showing that the injury was done by the act
of some one navigating the ship not deriving his authority from the owners; and
that, by the maritime law, charterers, in whom the control of the ship has been
vested by the owners, are deemed to have derived their authority from the
owners so as to make the ship liable for the negligence of the charterers who
are pro hac vice owners.
Against these authorities are dicta in three cases,
the Parlement Belge , the
Castlegate , and
the Utopia . The
first decided that a public vessel belonging to the Belgian Souvereign was not
subject to the jurisdiction of the English Court of Admiralty, but in the
course of dealing with the contention that the owner in that case was not
directly or indirectly implicated by proceedings in rem against the ship
Brett L. J. said:—
In a claim made in respect of a collision, the property is
not treated as the delinquent per se. Though the ship has been in collision and
has
[Page 529]
caused injury by reason of the negligence or want of skill
of those in charge of her, yet she cannot be made the means of compensation if
those in charge of her were not the servants of her then owner, as if she was
in charge of a compulsory pilot. This is conclusive to show that the liability
to compensate must be fixed not merely on the property but also on the owner
through the property. If so, the owner is at least indirectly impleaded to
answer to, that is to say, to be affected by, the judgment of the Court.
In the Castlegate the question was whether a lien
arose under the Merchant Shipping Act of 1889 for disbursements for which the
master had no authority to pledge the owners' credit, and it was held that it
did not. In the course of his speech, Lord Watson, alluding to the argument
that the case of lien for damages by collision furnished another exception to
the general rule that a maritime lien must have its root in the personal
liability of the owner, refers to the judgment of Dr. Lushington in the Druid
and to what was said in the Parlement Belge. As has been seen, the
language of Dr. Lushington in the Druid had already been explained by
Sir J. Hannen in the Tasmania, and it lends itself certainly without
difficulty to the interpretation there given.
In the Utopia the Judicial Committee dealt with the
case of a wreck in the harbour of Gibraltar which had been taken over by the
port authority but which, owing to inadequate lighting, had been the cause of
damage to a ship navigating in its vicinity. It was held that neither the wreck
nor the owners were liable for the collision. The control and management had
been legitimately transferred by the owners to the port authority, acting
within the apparent scope of its powers, and in the absence of negligence by
the owners no maritime lien arose. Answering the contention that as the action
was in rem the ship might be held liable without liability of the
owners, Sir Frances Jeune said:—
Such a contention appears to their Lordships to be contrary
to principles of maritime law now well recognized … But the foundation of the
lien is the negligence of the owners or their servants at the time of the
collision and if that be not proved no lien comes into existence, and the ship
is no more liable than any property which the owners at the time of collision
may have possessed.
and he adds a reference to the dictum in the Castlegate
which I have mentioned. But I think it clear that his observations, so far
as they may be extended to the question before us, were obiter. That the entire
control and
[Page 530]
management had been delivered out of the hands of the owners
is assumed; the port authority was acting in its public capacity, given by law,
in accordance with its regulations and in the performance of its public duty.
To this scope of action the owner was a stranger: there was no commitment of
his interest to a person upon whom he could place contractual obligations: when
the wreck was handed over, a new control, not derived through him, arose.
It is undoubtedly the case that in the generality of
collisions the guilty persons are servants of the owner, and it is clear that
the remarks of the judges whom I have quoted were addressed to that ordinary
situation. The very distinction drawn by Brett L. J. in citing the case of the
compulsory pilot indicates that he had not in mind the situation where the
control of the vessel is by agreement entrusted to another for services from
which the owner as well as the charterer is to benefit, a means of profiting
from the operations of the vessel preferred by the owner to that of engaging in
those operations himself. Neither the Ticonderoga nor the Lemington is
mentioned in the Castlegate or the Utopia judgments, a
circumstance which it is difficult to assume would have happened if the
intention to dissent from them had been intended.
The settled scope of the collision lien confirms this view.
In the Elin , the
lien, in the case of a foreign ship, was held to be superior to all other
existing liens, as well as those of seamen's wages earned after the collision;
and the statement of 30 Halsbury, 956, of the law on this point is to the same
effect.
Concluding this consideration of the English authorities,
one decision remains: The Ripon City . The
question involved was the right to a statutory lien by the master for
disbursements on account of the ship where the vessel was under a demise
charter which provided that the particular supplies involved were to be
furnished by the charterers. The case came before Gorell Barnes J., whose
competence in matters of this nature was universally acknowledged. After a
review of the cases mentioned, at p. 239 he states his view of the law in this
language:—
That maritime liens arise in certain well-known classes of
claims is now firmly established. Though none of the texts of the Roman law
[Page 531]
appear to confer, upon the classes who now possess it, what
we call a maritime lien, yet the principles of maritime law in relation thereto
have possibly been developed to a large extent from the rules of the civil law:
see the learned judgment of Curtis J. in The Young Mechanic, . So far as I can trace the origin of
the modern doctrines on the subject of maritime liens, it is not so difficult
to follow this development in cases arising out of contractual relations
between the parties as it is in cases of injuries done to vessels.
After mentioning the theory of Holmes J. which traces the
source of lien to the ancient law of deodand, and the views expressed by Mr.
Marsden that liens had sprung from a practice of arrest to compel appearance
and security, which the Bold Buccleuch (supra) had rejected, and
reviewing the exhaustive judgment of Sir Francis Jeune in the Dictator
(supra), he proceeds to his conclusion:—
The law now recognizes maritime liens in certain classes of
claims, the principal being bottomry, salvage, wages, masters' wages,
disbursements and liabilities, and damage. … It is a right acquired by one over
a thing belonging to another, a jus in re aliena. It is, so to speak, a
subtraction from the absolute property of the owner in the thing. This right
must, therefore, in some way have been derived from the owner either directly
or through the acts of persons deriving their authority from the owner. The
person who has acquired the right cannot be deprived of it by alienation of the
thing by the owner. It does not follow that a right to a personal claim against
the owner of the res always exists with a right against the res. The right
against the res may be conferred on such terms or in such circumstances that a
person acquiring that right obtains the security of the res alone, and no
rights against the owner thereof personally. A simple illustration of this is
the case of bottomry.
After referring to the Ticonderoga, supra, the Lemington, supra,
and the Ruby Queen, supra, he says:—
Again, a mortgagee of a vessel is the owner of an interest
in the vessel, and if he leaves the mortgagor in possession, his interest will
become subjected to maritime liens arising in the course of the employment of
the vessel, although he is not personally liable for the claims in respect of
which the liens arise.
Finally, he states the principle:—
The principle upon which owners have handed over the
possession and control of a vessel to charterers, and upon which mortgagees
and. others interested in her who have allowed the owners to remain in possession
are liable to have their property taken to satisfy claims in. respect of matters
which give rise to maritime liens, may, in my opinion, be deduced from the
general principles I have above stated and thus expressed. As maritime liens
are recognized by law, persons who are allowed by those interested in a vessel
to have possession of her for the purpose of using or employing her in the
ordinary manner, must be
[Page 532]
deemed to have received authority from those interested in
her to subject the vessel to claims in respect of which maritime liens may
attach to her arising out of matters occurring in the ordinary course of her
use or employment, unless the parties have so acted toward each other, that the
party asserting the lien is not entitled to rely on such presumed authority.
This presumed authority is the converse expression of the
view of venture in which all interests were put at the common risks under
commitment to the administration of the master.
From the beginning that 'has been the accepted principle in
the Supreme Court of the United States. In the Barnstable , Brown J., delivering the opinion of
the court, says at p. 467:—
Whatever may be the English rule with respect to the
liability of a vessel for damages occasioned by the neglect of the charterer,
as to which there appears to be some doubt, … the law in this country is
entirely well settled, that the ship itself is to be treated in some sense as a
principal, and as personally liable for the negligence of any one who is
lawfully in possession of her, whether as owner or charterer.
In the Eugene F. Moran , the court, speaking through Holmes
J., held that where two tugs and two scows in tow of one of them were all at
fault in a collision, each was liable for an equal share of the damage although
both scows were owned by one person, on the principle that each vessel must
contribute regardless of ownership.
From all of this I see no reason to reject the considered
judgments of such eminent Admiralty judges as Dr. Lushington and Sir Robert
Phillimore. The dicta to the contrary, as in most cases of dicta, are contained
in general statements employed in the determination of the other questions of
law or statutory interpretation to which they are relevant but in the
application of which the special instances of the general proposition are not
significant. The actual decisions place the risks of the solvency of the
charterer on the owner; the dicta would place them on the victims of the
charterer and' the owner goes free. As a consideration or principle of maritime
commercial law, keeping in mind the degree to which it is in large measure a
law concerned with a commerce between peoples of foreign states, I am unable to
appreciate the legal propriety of a rule that would bring about such a result.
[Page 533]
But for the conclusion at which I have arrived, I cannot see
the necessity for any such conception as that of the ship's being deemed to be
a legal person. The oldest understanding of the position of the ship, adverted
to in the cases mentioned, is, in my opinion, the soundest because, certainly
in the early days and to a great extent even today, there is present the idea
of venture and risk and that all of the interests in the vessel face them under
the administration of the master. His absolute authority on board ship derives
from that conception. So long as there is the voluntary entrustment of
interests to the administrator or person in complete control of the vessel,
what that vessel does through its fault to damage another is chargeable against
those interests, and only when there is a breach in authority from the owner
can they claim exemption.
There remains the third case in which the barge was unmoored
and then left unattended by a towing company acting as an independent
contractor. It is clearly established that where such a barge is in tow of a
tug and is brought into collision, the tug alone is liable. This is on the
ground that the barge is a wholly passive instrument in the hands of the tug
and that the collision is solely the act of the latter. When the barge, negligently
left unmoored, drifts into collision is it likewise such an act of the tug? The
work of towing is an ordinary marine operation with no special risk or danger
to others such as would create a continuing duty in the owner toward anyone who
might be damaged in the course of it. That operation here included the
unmooring of the barge and once it was undertaken, the liability for damage
done in the course of it became that of the contractor only. The barge does not
cease to be passive when allowed to drift, and I am unable in principle to
distinguish between such a situation and that of damage done in the course of
towage. In each case the negligent direction to the barge is the work of the
towing contractor. The distinction between the charterers and the contractor in
its result may appear to be a bit unreal; but the law of the independent
contractor, though it has been whittled away in a substantial degree by the
conception of duty running from the owner to the victim, retains a residue of
validity in the taking of
[Page 534]
ordinary measures or services which toward the person
damaged are indifferent as to the actor in them, and in relation to which the
balance of policy would appear to be against extending the liability of the
owner. In addition there is here both the special character of the
"dumb" barge which gives added weight to the general considerations,
and the fact that there is no such commitment of interest as is present in the
case of the charterer.
I would accordingly dismiss the appeal as to the Scows Marpole
II and E S M No. X, with costs, and allow the appeal as to the Scow AT
& B No. 28 and direct a reference to the proper officer of the
Exchequer Court to assess the damages. The appellant should have its costs
throughout in respect of the claim against the AT & B No. 28, including
the costs of the reference.
The judgment of Cartwright and Fauteux JJ. was delivered by:
Cartwright J.:—On
December 2, 1949, damage was done to the booming ground of the appellant in
Vancouver Harbour by three dumb barges. On November 28, 1951 the appellant took
proceedings in rem in the British Columbia Admiralty Division to enforce
a maritime lien against each of the respondent vessels. The action was tried
before the Honourable Mr. Justice Sydney Smith, District Judge in Admiralty,
and was dismissed with costs.
It is necessary to consider each claim separately.
The proceedings against the respondent Marpole II were
taken in error. Damage was done not by Marpole II but by Marpole XI another
barge belonging to the same owners. For the reasons given by the learned trial
judge I agree with his conclusion that the action against Marpole II fails.
The E S M No. X was owned by Canadian Forest Products
Ltd. who had a contract with Gulf of Georgia Towing Co. Ltd. to perform towage
services as required. On the morning of December 2, 1949 the tug Goblin, owned
by the last mentioned company, proceeded to a scow pool in Vancouver Harbour at
which the E S M No. X was moored to tow her, pursuant to her owners'
instructions, to another location. The finding of the learned trial judge that
the Towing Company was acting as an independent contractor
[Page 535]
and that the relationship of master and servant did not
exist between the owners of the barge and the Towing Company is fully supported
by the evidence and indeed was not questioned before us. The engineer of the Goblin
cast off the mooring lines of the E S M No. X and was about to make
fast the tug's towing hawser when the Master of the tug abandoned the E S M
No. X for the purpose of towing another scow which was loaded with ties and
which he saw drifting in the harbour. So abandoned, the E S M No. X, having
no motive power and no means of steering, drifted into the appellant's booming
ground with the Goblin's engineer on board. It is clear from this brief
summary of the facts that the negligence causing the damage done by the E S
M No. X was solely that of the Master of the tug and the servants of the
tug's owners. The barge was thus in the position of an innocent tow which is
the instrument of damage caused by the negligence of the vessel towing her. The
judgment in The Quickstep , a
decision of Sir James Hannen and Butt J., delivered by the latter, appears to
be conclusive against the appellant. This judgment was approved in The
Seacombe, The Devonshire ,
affirmed sub nom s.s. Devonshire (Owners) v. Barge Leslie (Owners)
. In the last mentioned case Fletcher
Moulton L. J., referring to the towing of barges or other craft of like kind,
said, at pages 49 and 50:—
… In such cases the tow has no control over those navigating
the tug. The tug is in the position of an independent contractor who performs
the service of towing the barge to its destination, and who chooses for himself
how he shall perform that service. I can see no reason why the misconduct of
such an independent contractor should be imputed to the innocent tow, who is,
in fact, no party to the wrongful act. So to impute it would be inconsistent
with the general principles of our common law, and I should decline to do so
unless I found a well-settled principle of admiralty jurisprudence evidenced by
a course of consistent decisions which required me to do so. When the decisions
are examined, the contrary is found to be the case.
This statement was quoted with approval in this Court in The
Ship Robert J. Paisley v. Canada Steamship Lines Ltd. (reversed on the facts sub nom
Richardson v. Robert J. Paisley) .
[Page 536]
The fact that the barge E S M No. X was not actually
being towed at the moment of doing the damage cannot, I think, have any effect
on the question of liability. She was in the control of the tug and, in
principle, I find no difference, relevant to the question of responsibility,
between towing her negligently and negligently setting her adrift in the course
of carrying out the contract to tow her across the harbour.
I agree with the learned trial judge that the claim against
the E S M No. X fails.
The AT & B No. 28 was, at all relevant times,
owned by one Aitkin and chartered by way of demise to Vancouver Tug Boat Co.
Ltd. I agree with the learned trial judge that her owner Aitkin was not
personally liable for the damage done by her. In my opinion the proper finding
on the somewhat scanty evidence is that the charterer, Vancouver Tug Boat Co.
Ltd., was guilty of negligence causing the damage done to the appellant's
booming ground by this barge. At a time when she was under the charterer's sole
control she drifted unattended into the booming-ground and it has offered no
explanation of this; res ipsa loquitur.
The question is whether the appellant has a maritime lien on
the barge AT & B for the damage done by her when the personal
liability for the negligence causing such damage rests not 'upon her owner but
upon her charterer by way of demise. I agree with my brothers Rand and Locke
that the answer to this question should be in the affirmative and I am in
general agreement with the reasons which bring them to that conclusion.
In my view the conflict between the statement of Brett L.J.
in The Parlement Belge ,
quoted by my brother Rand, and which was approved by Lord Watson in The
Castlegate and
by Sir Francis Jeune in The Utopia , on
the one hand, and the statements of Dr. Lushington in The Ticonderoga , of Sir Robert Phillimore in The
Lemington and
of Gorell Barnes J. in The Ripon City , all
also quoted by my brother Rand, on the other
[Page 537]
hand is apparent rather than real. The statements mentioned,
when sought to be related to a claim for a maritime lien on a vessel causing
damage, can be reconciled by reading the expression "owner" as used
in such phrases as, "the liability to compensate must be fixed, not merely
on the property, but also on the owner through the property", as including
"charterer by way of demise". To so construe it would be in accordance
with the judgment of the House of Lords delivered by Lord Tenterden in Colvin
v. Newberry and Benson in
which he speaks of "the person to whom the absolute owner has chartered
the ship, and who is considered the owner pro tempore, during the voyage
for which the ship is chartered". It may be observed also that in Jackson
(Sir John) Ltd. v. Blanche (owners) , the House of Lords decided that the
charterer of a ship by way of demise who has control over her and navigates her
by his own Master and crew is "owner" of the ship within ss. 503 and
504 of the Merchant Shipping Act, 1894, and entitled to the limitation
of liability to damages conferred upon "owners" by those sections. In
The Utopia no question arose as to whether the charterer of a ship by
way of demise is to be regarded as owner pro tempore or owner pro hac
vice so that negligence in the navigation of such ship for which the
charterer is liable will subject the ship to a maritime lien for damage caused
by such negligence.
I would dismiss the appeal as to Barges Marpole II and
E S M No. X with costs. I would allow the appeal as to Barge AT &
B No. 28 and direct a reference to the proper officer of the Exchequer
Court to assess the damages. Such damages will, of course, be limited to the
damage done by the AT & B No. 28 herself. The appellant will be
entitled to its costs of such reference and to its costs in this Court and in
the Exchequer Court in so far as the claim against the AT & B No. 28 is
concerned.
Appeal dismissed as to Scow Marpole II and Scow
E S M No. X and allowed as to Scow AT & B No. 28.
Solicitor for the appellant: H. R. Bray.
Solicitor for the respondents: J.I. Bird.
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