The Ship Arthur Stove v. The Ship Stonefax, [1971] SCR 943

Supreme Court of Canada

The Ship Arthur Stove v. The Ship Stonefax, [1971] S.C.R. 943

Date: 1970-12-21

The Ship Arthur Stove and Her Owners (Defendants) Appellants;

and

The Algonquin Corporation Limited Owner of the Ship Stonefax et al. (Plaintiffs) Respondents.

1970: October 29, 30; 1970: December 21.

Present: Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF

Shipping—Collision in canal—Speed—Bank suction—Liability of both ships.

Some 14 minutes before the collision, the down-bound ship Stonefax had agreed to meet the upbound ship Arthur Stove above bridge 12 on the Welland canal. At that time the Stonefax was in the broad waters of the turning basin. The collision occurred some 1,400 feet from the bridge entrance in the narrow water in the bend immediately above the bridge. The trial judge held that the Arthur Stove was wholly responsible, that it had been moving too fast and too close to the bank on her starboard side with the result that bank suction caused her to veer to port and hit the Stonefax. The Arthur Stove and her owners appealed to this Court.

Held (Pigeon J. dissenting): The appeal should be allowed.

Per Ritchie, Hall, Spence and Laskin JJ.: The Arthur Stove was in great measure responsible for the collision but the Stonefax was not entirely free from any fault which contributed to it. The latter, by failing to hold back in the turning basin, changed

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a position of safety into one of potential hazard and thus created the dangerous situation which resulted in the collision. If the Stonefax had never left the turning basin, the Arthur Stove would not have taken the action which she did. The fault should be divided 80 per cent against the Arthur Stove and 20 per cent against the Stonefax.

Per Pigeon J., dissenting: Because the Stonefax was hit when she was well on her side of the canal, the trial judge was justified in holding that the Arthur Stove had the burden of showing that she was not guilty of negligence or that the collision was due to negligence on the part of the Stonefax. He was also correct in finding that neither had been proved. It was not shown that the Arthur Stove could not be navigated so as to avoid bank suction. As to the Stonefax, there is nothing in the record that would establish that it was negligence on the part of its master to navigate her as he did under the circumstances. There is no evidence that proper seamanship required the master of the Stonefax to act otherwise than he did.

APPEAL from a judgment of Gibson J. of the Exchequer Court of Canada, in an action arising out of a collision between two ships in the Welland canal. Appeal allowed, Pigeon J. dissenting.

Jean Brisset, Q.C., for the defendants, appellants.

A. Stuart Hyndman, Q.C., for the plaintiffs, respondents.

The judgment of Ritchie, Hall, Spence and Laskin JJ. was delivered by

RITCHIE J.—I have had the considerable advantage of reading the reasons for judgment of my brother Pigeon and while I agree with his analysis of the events which occurred prior to and at the time of the collision here in question, and accordingly agree that the ship Arthur Stove was in great measure responsible for the damage occasioned to the Stonefax, I am nevertheless unable to draw the conclusion that the Stonefax was entirely free from any fault which contributed to the collision and as will hereafter appear, I would therefore apportion the degrees of fault in the ratio of 80 percent against the Arthur Stove and 20 per cent against Stonefax.

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Some fourteen minutes before the collision (i.e. at 0502 hrs.) the downbound vessel Stonefax had agreed to meet the upbound Arthur Stove above bridge 12 on the Welland Canal so that during this period those in charge of Stonefax were, in my opinion, in a position to control the place of meeting. It is true, as my brother Pigeon has pointed out, that they may well have been misled by inaccurate information being transmitted from the Arthur Stove as to its position from time to time, but at 0511 hrs. they must have thought that the Arthur Stove was just coming into bridge 12 because a message to his effect had been transmitted at that hour, although in fact the upbound ship was still about one ship’s length away. At this time the Stonefax was in the broad waters of the turning basin, having passed the Whistle sign and not yet reached the Limit of Approach sign. The Limit of Approach sign is 2100 feet above the bridge and the Whistle sign is a further 1750 feet away. There is no doubt about the fact that the two ships would have been able to pass with complete safety within this area, but once the downbound vessel passed the Limit of Approach sign it entered more confined waters where the Canal turns in a southerly direction before straightening out in the immediate area of the bridge entrance.

The situation at 0512 hours (four minutes before the collision) was that the Stonefax was still in the turning basin and the Captain, who knew that he would have to meet the Arthur Stove above bridge 12 and who agreed that there was nothing to prevent him from holding back further at that time, proceeded into the narrower water just above the bridge where the collision occurred between 1300 and 1400 feet from the bridge entrance.

In the latter part of his re-examination, Captain MacDonald of the Stonefax was further questioned as to his ship’s capacity to hold back in the turning basin and he said:

Q. Captain you testified that at or about the vicinity of the whistle sign approaching Bridge 12 speed was reduced to dead slow. Can your engine go any slower than that? Can your vessel proceed or be checked down any more than dead slow?

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A. Anything under seven revolutions of the engine would probably stop.

Q. And what might happen, if you had stopped your engine coming down there for any length of time?

A. I would have no steerage way.

Q. Is that a wise situation?

A. No it is not.

Unlike my brother Pigeon, I do not treat this evidence as inconsistent with the Captain having agreed that there was nothing to prevent him from holding back further before he entered the narrower waters.

No written record was kept in the Stonefax of her engine movements and the Captain’s evidence as to the engine revolutions at dead slow was as follows:

Q. Do you know what revolutions your engines would turn at dead slow?

A. 7 revolutions—7 to 10 revolutions.

If the engines were turning anything over seven revolutions while the Stonefax was passing through the turning basin, it would appear that the Captain’s evidence on re-examination was not inconsistent with his statement that he believed that he could have held back further.

I accept the findings of the learned trial judge with respect to the negligence of the Arthur Stove but in my opinion the Stonefax, by failing to hold back in the turning basin, changed a position of safety into one of potential hazard and thus created the dangerous situation which resulted in the collision.

The Arthur Stove no doubt was navigated too close to the bank and thus invited the risk of being subjected to bank suction, but I am satisfied that if the Stonefax had never left the turning basin, the Arthur Stove would not have taken the action which she did.

Under all the circumstances I do not think that the Stonefax was entirely free from liability and I would, as I have indicated, divide the fault 20 per cent against the Stonefax and 80 per cent against the Arthur Stove.

The appellants will have the costs of this appeal.

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PIGEON J. (dissenting)—This case arises out of a ship collision that occurred in the Welland Canal on October 14, 1966, in the early morning before daybreak. The Arthur Stove, upbound, a modern diesel-powered ocean-going ship with a high bow and a bulbous stem reinforced for navigation in ice, hit the Stonefax, an old steam-powered laker, downbound, in the bend immediately above Bridge 12. Although the impact was not severe and the Arthur Stove suffered no damage to speak of, a wide opening was made in the hull of the Stonefax extending below the water line and she sank in the Canal some distance below Bridge 12. Her cargo of potash was completely lost and she was raised and repaired at considerable expense.

The action was brought before the Exchequer Court by her owners and the other persons interested in the loss against the Arthur Stove and her owners. It was heard by Gibson J. with two assessors on the question of liability only. The judgment dated August 15, 1969, was wholly in favour of the plaintiffs, hence this appeal.

With respect to the speeds of both ships at various settings, the trial judge made the following finding that is not challenged.

The evidence is that the respective speed capabilities of these two ships at their various manoeuvring speeds from full speed ahead to dead slow ahead with proper additions and deductions for the current at the material time in this Canal at the material places and also in shallow water was as follows:

for the “STONEFAX”—10½ miles per hour at full speed ahead, 6 miles per hour at half speed ahead, 3½ miles per hour at slow ahead and 2 miles per hour at dead slow ahead; and

for the “ARTHUR STOVE”—10 miles per hour over the ground at half speed ahead, 6.5 at slow ahead and 4.18 at dead slow ahead.

Radiotelephone communications from both ships were recorded by the Seaway administration on a tape on which the time was also recorded every minute. A transcript of this tape is in the record. There is also a translation of

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both the bridge bell book and the engine bell book on the Arthur Stove in which every order given was recorded. As the expert witness Sinclair noted, the distance travelled from Bridge 11 to Bridge 12 computed on the basis of the “speed capability” by reference to the time entered in those books is in “reasonable” agreement with the actual distance. No such log book was kept on the Stonefax and evidence of her speed except at the last moment before the collision rests almost exclusively on her master’s recollection.

At 4.48 the Arthur Stove made a “security call” reporting herself “about at Bridge 11”. This is also precisely the time at which the Arthur Stove was recorded by the bridge master as having “cleared” Bridge 11. It can therefore be taken as accurate to the minute and completely reliable. The following calls were subsequently recorded:

Time	Station calling	Station called	Transmission
0455 hrs	Stonefax	Arthur Stove	Stonefax calling the ship between Bridges 11 and 12 up-bound.
	Arthur Stove	Stonefax	Arthur Stove, Stonefax.
	Stonefax	Arthur Stove	How far up are you now Cap?
0456 hrs	Arthur Stove	Stonefax	About half ways up now, how far are you down?
	Stonefax	Arthur Stove	Just coming to the old turning bassin here below Bridge 13.
	Arthur Stove	Stonefax	We are at Whistle Sign there and most likely we'll meet below Bridge 12.
	Stonefax	Arthur Stove	I see—O.K.

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When asked what he had understood from the other ship’s last message, the master of the Stone-fax said: “the whistle sign approaching Bridge 12”. It is now perfectly obvious that this cannot be what was meant. The distance between Bridge 11 and the whistle sign approaching Bridge 12 is 9,462 feet and the ship speed was “slow”. In seven minutes at that speed the distance travelled would be around 4,000 feet only. Pilot Millar, who was on board the Arthur Stove, gave all the orders and made all the radio telephone calls, suggested by way of explanation that this was not properly recorded and testified that the words should be:

“We will let you know when we are at the whistle sign for Bridge 12.”

In my view, this explanation must be rejected. Much stronger evidence would be required to contradict such reliable evidence as a transcript of the recording made by the responsible government agency. Furthermore, Pilot Millar’s evidence is far from convincing. His deposition is replete with erroneous estimates of distances and, being the person responsible for the navigation of the defendant ship, he certainly was not a disinterested witness. The proper explanation is in my view fairly obvious. “Whistle sign there” means the whistle sign above Bridge 11. This is approximately where the Arthur Stove must have been at the time because that sign is 3,850 feet above Bridge 11 and the word “there” must have been used to indicate that. Of course, this does not agree with the previous statement about “half-ways up now” seeing that the distance between the two bridges is 2.56 miles but that other statement is clearly erroneous being irreconcilable with the time at Bridge 11 and the speed data. It is unfortunately clear that Pilot Millar has more than once erroneously estimated his ship’s position.

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The next calls recorded are as follows:

Time	Station calling	Station called	Transmission
0502 hrs	Arthur Stove	Stonefax	How far down are you now Cap?
	Stonefax	Arthur Stove	Just at the new dredging area here.
	Arthur Stove	Stonefax	I'm just a length from the Whistle Sign here, possibly I can get through the bridge.
0503	Stonefax	Arthur Stove	Yea, I’ll check her down here.

The Arthur Stove having cleared Bridge 11 at 4.48 could not possibly be just a length from the whistle sign below Bridge 12 at 5.02 that is some 14 minutes later. Her log books show that for the first half of that time her engine was running at slow and for the second half at dead slow. At those speeds in these times the distance travelled would be about 6,500 feet only when the exact distance from Bridge 11 to one length below the whistle sign is 9,462 feet. Furthermore, her next call shows her at the limit of approach sign at 5.09 although the distance between the two points is but 2,670 feet. The log books show that during four of those seven minutes, her speed was increased to one half. At such speeds in that time the Arthur Stove must have made approximately 5,220 feet which is just about double the distance between the two points.

It must be stressed that the theoretical distance travelled as computed from the log book speeds comes to a total of 11,720 feet, a figure in reasonable agreement with the total distance of 12,132 feet between Bridge 11 and the limit of approach sign below Bridge 12. There is therefore a double check on the accuracy of the data derived from

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the log books and the inescapable conclusion must be that at 5.02 the Arthur Stove was not just a length but more than half a mile from the whistle sign.

This was a matter of no small consequence for the Stonefax. Until Pilot Millar gave her master that inaccurate information, it had been agreed that they would meet below Bridge 12. When that agreement was made, at 4.56, the Stonefax was approximately half-way between Bridges 12 and 13, that is about two miles above Bridge 12. The Arthur Stove, as we have seen, was near the whistle sign above Bridge 11 and, therefore, a little less than two miles below Bridge 12. In order to meet below that bridge, it was obviously necessary to reduce her speed and this is what Pilot Millar did, going from slow to dead slow at 4.55i according to the engine room log book.

This shows that Pilot Millar was in error at the trial when he said that he had understood from the Stonefax that she was, not at the old turning basin some two miles above Bridge 12, but at the new turning basin that is only about half a mile above that bridge. If such had been the case he would have had no reason to reduce the speed of his own ship from slow to dead slow as he did. It is also clear that if he had not incorrectly estimated his position at 5.02, he would have had no reason to suggest meeting above Bridge 12 instead of below.

That suggestion having been agreed to by the master of the Stonefax, the latter was certainly entitled to assume that from the indicated point the Arthur Stove would proceed at something like the maximum permissible speed of seven miles per hour. As a matter of fact, the log-book shows that Pilot Millar promptly had the speed increased from dead slow to slow and then to half.

The master of the Stonefax testified that he reduced the speed of his ship to slow and intended to meet the Arthur Stove in the area between the whistle sign and the limit of approach sign above Bridge 12. In cross-examination, he stated that he expected to meet the Arthur Stove

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“around the LA sign”, that is at the lower limit of the area that he considered “preferable”. From the speed and distance data, it seems clear that his speed reduction would have been sufficient for that purpose if the Arthur Stove had actually been “just a length from the whistle sign” at 5.02. However, as we have seen, such was not the case. When, at 5.09, the Stonefax made a security call at the whistle sign above Bridge 12, the Arthur Stove reported being “at the limit of approach sign before Bridge 12”. This did not make it easy for the two ships to meet above the limit of approach sign because there are only about 1800 feet between the whistle sign and the limit of approach sign while there was about twice that distance between the two limit of approach signs.

However, the Stonefax master’s reply to the Arthur Stove call was “OK—keep her coming”. He says that at that point he reduced his ship’s speed to dead slow. Two minutes later the following exchange between the two ships was recorded:

Time	Station calling	Station called	Transmission
0511 hrs	Stonefax	Arthur Stove	Stonefax to the ship approaching Bridge 12.
	Arthur Stove	Stonefax	Yes, just coming into the bridge now Cap.
	Stonefax	Arthur Stove	Are you loaded or light?
	Arthur Stove	Stonefax	We're just half loaded.
0512 hrs	Stonefax	Arthur Stove	Yes I see, we're coming along here fairly lively, we're checked right down.

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In cross-examination on the purpose of that call, the master of the Stonefax said:

A. Well, to give us some idea on how he would be coming around that bend and whether I should hold back further or not. I think probably this was the reason, when he said he was only partly loaded that I assumed I would have plenty of room down in that area to meet him.

Q. Now Captain, if he told you that he was loaded, what would you have done?

A. I believe that I would have held back further.

Q. In other words,—?

A. If there had been a deep draft.

Q. In other words, there was nothing that prevented you from holding back further, if you had wanted to?

A. No.

In re-examination, the master of the Stonefax said that her speed was then down to what he described as steerage-way, that the engine was at dead slow and it would have stopped if any further reduction in speed had been attempted. He also said that it would not have been wise to lose steerage way and this statement remained unchallenged and no other possible course of action was suggested in the evidence.

On the starboard side of the Stonefax there was a concrete retaining wall on the canal bank and there were pole lights about every 500 feet. The evidence of those on board was that she was steered close to the bank, at a distance estimated as 50 feet from her side. The trial judge’s finding that she was well on her side of the Canal was not challenged.

The attack was largely directed to the finding that the point of collision was “somewhere around 1,400 to 2,000 feet south of Bridge 12”. In my view, the most reliable estimate of the point of impact is that of the witness Ektvedt who was the first officer on the Arthur Stove and was stationed at the bow when the collision occurred. He said “twelve, thirteen hundred feet (1200-1300)—something like that”. This is so close to the lower limit of the trial judge’s estimate that it can be taken as a confirmation. The bridge keeper’s

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estimate is clearly wrong and the trial judge was fully justified in considering that witness unreliable despite his sincerity. On that point, it is unfortunately impossible to rely on the theoretical distance travelled at recorded engine speeds due to the fact that in relation to such a short distance, the uncertainty inherent in times recorded in minutes only makes such computation meaningless. There is, in my view, no basis for disturbing the finding concerning the point of impact.

As to the cause of the collision, the trial judge found that it was due to the Arthur Stove moving too fast, too close to the bank on her starboard side with the result that bank suction caused her to lose helm control and her bow swung to port although the wheel was put hard astarboard. When this happened the master suggested ordering the engine full speed ahead but instead of that, the pilot’s advice to order full astern prevailed. The trial judge made no finding that this was negligence. However, he said:

In any event, the “ARTHUR STOVE”, in evidence has given no explanation consistent with no negligence on her part, or any explanation consistent with negligence on the part of the “STONEFAX”, which I accept, as to why she was navigated so that she sheered to port coming into collision with the “STONEFAX” on the latter’s side of the channel, resulting in damage.

The submission on behalf of the “ARTHUR STOVE” that there was in effect an emergency as soon as her stern was clear of Bridge 12 because the “STONEFAX” had come along too fast and was too close to her which necessitated her to be moved to starboard, I specifically find is not borne out by the evidence.

Because there is no doubt that the Stonefax was hit when she was well on her side of the canal, the trial judge was, in my view, fully justified in holding as he did that the Arthur Stove had the burden of showing that she was not guilty of negligence or that the collision was due to negligence on the part of the Stonefax. In my

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view, he was also correct in finding that neither had been proved. It was not shown that at the place where the collision occurred the Arthur Stove could not be navigated so as to avoid bank suction. The trial judge was sitting with two assessors and while he did not record the advice he was given by them, it should not be presumed that he failed to inform himself of the possibility of a safe meeting at the place of collision.

With respect to the Stonefax, what is urged against her by the appellants is that she should not have gone so near Bridge 12 due to the bend in the Canal. I have already indicated how this came about and have done so on a review of the evidence which I considered necessary on account of some errors in the computations made by the trial judge, also bearing in mind that in this case this Court is the first Court of Appeal. I can find nothing in the record that would establish that it was negligence on the part of the master of the Stonefax to navigate her as he did under the circumstances. Any such finding would have to be made on the basis of my own views on proper navigation in such circumstances as against those of the trial judge who was sitting with assessors. It cannot be presumed that when he declined to make any such finding he omitted to inform himself properly.

It is true that the master of the Stonefax admitted that it is “preferable” for vessels of such size to meet in the area between the two signs above the bridge and, also, that he could have held back further to that end. However, I can find no evidence that he was wrong in considering that this was not necessary after ascertaining that the Arthur Stove was only partly loaded. It would no doubt have been safer to hold back so as to meet in the broad water above the bend, but the standard of care required is the same for seamen as for others, it is not perfection nor the safest possible course of action; it is reasonable care. I can find no evidence that proper seamanship required the master of the Stonefax to act otherwise than he did. The fact of the accident is no

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evidence that he was wrong in judging that the two ships could safely meet at the place where the collision occurred if both had been properly navigated. If it was unsafe I would expect to find some proof of that in the record or some advice to that effect from the assessors to the trial judge.

For those reasons, I am of the opinion that the appeal fails and should be dismissed with costs.

Appeal allowed with costs, PIGEON J. dissenting.

Solicitors for the defendants, appellants: Beauregard, Brisset & Reycraft, Montreal.

Solicitors for the plaintiffs, respondents: McMaster, Meighen, Minnion, Patch & Cordeau, Montreal