British Columbia Telephone Company and Others v. Marpole Towing Ltd., [1971] SCR 321

Supreme Court of Canada

British Columbia Telephone Company and Others v. Marpole Towing Ltd., [1971] S.C.R. 321

Date: 1970-12-21

British Columbia Telephone Company and other persons (Defendants) Appellants;

and

Marpole Towing Limited (Plaintiff) Respondent.

1970: June 22, 23; 1970: December 21.

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

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Shipping—Collision with bridge, property of provincial Crown—Negligence of master—Limitation of liability—Without actual fault or privity of owner—Canada Shipping Act, R.S.C. 1952, c. 29, s. 657.

The upper part of a box of an empty chip barge which was being towed on the Fraser River by the plaintiff’s tug, struck the Fraser Street bridge at approximately 9 a.m. The bridge is the property of the Crown in the right of the province of British Columbia. The bridge was damaged and many vehicles with passengers in them which were crossing

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the bridge at the time were thrown into the water. The plaintiff in an action to limit liability admitted that the collision was caused by the negligence of its employee, the master of the tug, in failing to make a correct estimation of the vertical clearance beneath the bridge. The master had followed the common practice for those using the Fraser River to gauge the clearance under the Fraser River bridge by counting the number of planks visible above water at the preceding bridge. The plaintiff settled all claims for personal injuries and then took action to limit its liability as to the property damage pursuant to s. 657 of the Canada Shipping Act, R.S.C. 1952, c. 29. The Exchequer Court held that it was so entitled. The defendants appealed to this Court.

Held (Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Martland, Ritchie and Pigeon JJ.: The damage was caused without the actual fault or privity of the plaintiff. The only conclusion that can be properly drawn from the evidence in this case is that the method of counting the number of planks at the preceding bridge was not only an accurate method of measurement but the only method that was accurate and that it was the standard practice. Whether the master miscounted the planks or failed to count altogether, he was negligent; but such negligence was not reasonably foreseeable by the owner, which was depending on a master of great experience in the navigation of that part of the river and which was satisfied that the masters of its tugs should abide by the standard practice adopted by all companies using that part of the river to determine the clearance under the bridge. It was reasonable for the plaintiff to have adopted the universal practice of using the south channel, commonly known as the “main drag”, unless its masters were uncertain as to whether or not there was sufficient clearance at Fraser Street. The plaintiff should not be deprived of the protection of the statute because in the circumstances of this case—the collision happened during rush hour traffic—negligent navigation by the master might result in unusually great damage being done. If this were the test it would serve in great measure to defeat the whole intent and purpose of the statute. The contention that limitation of liability sections of the Canada Shipping Act did not apply so as to entitle the plaintiff to limit its liability in respect of damage to Her Majesty in the right of the province of British Columbia, must be rejected.

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Per Spence J., dissenting: The plaintiff cannot bring itself within the provisions of s. 657 of the Canada Shipping Act. In the light of all the circumstances, it has not discharged the heavy burden upon it to demonstrate that the accident did not occur through actual fault on its part. That fault consisted of the paucity of the instructions given by the plaintiff to its master, particularly in the failure to insist that the tide tables must always be used to check the accuracy of visual observations, that care must always be taken to avoid a collision with the Fraser Street bridge when it was crowded with traffic, and finally that in circumstances where the calculations were at all close the inconvenient but safe north channel must be used.

Per Laskin J., dissenting: In the circumstances of this case, actual fault resulting in the loss complained of, within the meaning of s. 657 of the Canada Shipping Act, has not been negated by the plaintiff. Having regard to the plaintiff’s knowledge of the master’s practice of relying solely on his ability to count accurately the planks at the preceding bridge, and having regard to the risks of loss or damage which a faulty count would create, it appears to be quite reasonable to charge it with a duty to instruct the master that in such conditions as prevailed at the material time herein he should either check his count of planks by reference to the charts and other such aids, or should use the north channel, however inconvenient it might be in comparison with the south channel. No such duty was discharged in the present case.

APPEAL from a judgment of Sheppard J., Deputy Judge of the Admiralty District of British Columbia[1], in an action for limitation of liability under the Canada Shipping Act. Appeal dismissed, Spence and Laskin JJ. dissenting.

John I. Bird, Q.C., for the defendants, appellants.

John R. Cunningham, for the plaintiff, respondent.

The judgment of Martland, Ritchie and Pigeon JJ. was delivered by

RITCHIE J.—This is an appeal from a judgment of Mr. Justice Sheppard acting in his

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capacity as deputy Judge in Admiralty for the British Columbia Admiralty District, whereby it was decreed that the respondent, Marpole Towing Limited, is entitled to limit its liability pursuant to the Canada Shipping Act, R.S.C. 1952, c. 29, ss, 657 to 663 inclusive and amendments thereto, in respect of damage done to property of the Crown in the right of the Province of British Columbia, when the upper part of the box of an empty chip barge “V.T. 145”, which was being towed by the respondent’s tug, Chugaway II, struck a bridge which is commonly known as the Fraser Street Bridge and which stretches over that portion of the north arm of the Fraser River lying between Mitchell Island and Lulu Island. This bridge is a single span and is used by traffic travelling to Vancouver by “No. 5 Road”; after crossing the bridge those using this route drive across the centre of Mitchell Island and must then cross a swing bridge over the north channel of the river in order to reach the mainland. There is another bridge two miles down river which is also a single span and affords direct passage across the north arm of the river. This is known as the Oak Street Bridge and reference to Chart No. 3489 of the Canadian Hydrographic Service indicates that it is a main traffic artery to Vancouver and that it clears the river by 66 feet above high water, whereas the clearance of the Fraser Street bridge is similarly indicated as 24 feet above high water.

The collision occurred on June 23, 1966, at approximately 9:05 a.m. and resulted in the main span of the bridge being carried away and personal injuries being suffered by individuals who were in cars crossing the bridge and by pedestrians. There was no loss of life.

Marpole Towing Limited admitted that the collision was caused by the negligence of its employee, Captain P.D. Forsyth, the master of the Chugaway II, in failing to make a correct estimation of the vertical clearance beneath the bridge so that he attempted to tow the barge V.T. 145, which had a box of a height of 26 feet above the water, when the tide was such that there was only approximately 24 feet of clearance under the bridge.

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In claiming to limit its liability, the respondent invokes the provisions of s. 657 of the Canada Shipping Act. The relevant portions of s. 657(2) read as follows:

657. (2) The owner of a ship, whether registered in Canada or not, is not, where any of the following events occur without his actual fault or privity, namely:

* * *

(b) where any damage or loss is caused to any goods, merchandise or other things whatsoever on board that ship;

(d) where any loss or damage is caused to any property, other than property described in paragraph (b), or any rights are infringed through

* * *

(i) the act or omission of any person, whether on board that ship or not, in the navigation or management of the ship, in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or

(ii) any other act or omission of any person on board that ship;

liable for damages beyond the following amounts, namely:

(e) in respect of any loss of life or personal injury, either alone or together with any loss or damage to property or any infringement of any rights mentioned in paragraph (d), an aggregate amount equivalent to 3,100 gold francs for each ton of that ship’s

(f) in respect of any loss or damage to property or any infringement of any rights mentioned in paragraph (d), an aggregate amount equivalent to 1,000 gold francs for each ton of that ship’s tonnage.

The gross tonnage of the Chugaway II is 9.87 tons and it is provided by s. 661(1) that for the purpose of s. 657 “the tonnage of any ship that is less than 300 tons shall be deemed to be 300 tons”.

It does not appear to me to be necessary to make any detailed review of the damage sustained as a result of the collision; it is sufficient to say that the appellant in this action is the Crown in the right of the Province of British Columbia claiming for the damage done to the

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bridge span in the amount of $178,003.22 and that the learned trial judge held that the respondent was entitled to limit its liability in accordance with s. 657(2) of the Canada Shipping Act to the amount of $24,000.

The negligence of the tugmaster gave rise to the liability of the owner in accordance with the doctrine of respondeat superior but the question of whether that liability can be limited in accordance with the statute has nothing to do with that negligence or that doctrine; it is to be answered exclusively by deciding whether or not it has been shown that the damage was caused to the bridge without the actual fault or privity of the owner.

It is, I think, generally accepted that the meaning of the words “without his actual fault or privity” as they are used in s. 657(2) was accurately explained by Lord Roche speaking for the Judicial Committee of the Privy Council in Robin Hood Mills v. Patterson Steamship Limited^[2], where he said:

The meaning of fault and privity in s. 502 of the Act, which in that respect is identical with s. 503, has been authoritatively declared by the Court of Appeal and the House of Lords in the case of Lennard’s Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (1914) 1 K.B. 419 and (1915) A.C. 705. The words “actual fault or privity” … infer something personal to the owner, something blameworthy in him, as distinguished from constructive fault or privity such as fault or privity of his servants or agents (per Buckley, L.J., (1914) 1 K.B., at p. 432). Actual fault negatives that liability which arises solely from the rule respondeat superior (per Hamilton, L.J. p. 436). So in the case of a company “it must be… the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondeat superior, but somebody for whom the company is liable because his action is the very action of the company itself” (per Viscount Haldane, L.C., (1915) A.C, at pp. 713-4). The burden of showing that no such fault or privity subsisted was said in Lennard’s case to rest upon the shipowners and the respondents here did not seek to question that proposition as applying to the present case. But another and very important principle is to be derived from a consideration of the section, namely, that the fault or privity of the owners must be fault or privity in

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respect of that which causes the loss or damage in question, a proposition which was acted upon and illustrated in Lennard’s case.

In the present case the respondent does not question the fact that Captain Lowry was a person whose actions were the very actions of Marpole Towing Limited itself. It was not, however, Captain Lowry, sitting in the company’s office, but his tugmaster, Captain Forsyth, whose negligence in the navigation of the tug and tow caused the property damage to the bridge, and what is to be decided here is whether it has been shown that there was no fault personally of Captain Lowry and nothing “blameworthy in him” or his management of the affairs of the respondent company which caused or contributed to the property damage.

Mr. Justice Sheppard traced the facts of this case with great care and I do not think that anything would be gained by repeating all that he said, but I think it would be helpful to state some essential facts as they were found at the trial, and in this regard the following finding appears to me to afford a helpful background for discussion of the facts. The learned trial judge found:

Captain Lowry, being the President and General Manager, has been throughout the supervisor for the Plaintiff. He had issued no written standing orders but had from time to time issued oral instructions to the various masters as to the use of life jackets, bridles, travelling at reasonable speed, authority to the masters to employ help if needed and instructed to navigate at safe speed. Within these limits the master was to have discretion in navigation.

The master and crew of the tug were competent. Captain Forsyth as the master was experienced in river navigation. He had twenty-one years’ experience on tugs sailing the Fraser River and he was master thereof for eighteen years. During that period he had navigated the river continuously and this was the only accident during that period. The mate, Mr. Taylor, had ample experience on the river as he had sailed thereon for five or six years and he had been nine months with the Plaintiff. At the time of the trial, Mr. Taylor owned and operated his own towing business which was engaged in towing on the river…

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The tug, Chugaway II was well found. The mate, Mr. Taylor, gave evidence that the navigation equipment was very good and the navigation aids were also good. This included chart, radar, compass, and everything required.

I think it is useful to add that the tugmaster stated that he had travelled under the Fraser Street Bridge hundreds of times before and that he had, as will hereafter appear, in fact personally measured the clearance there on four or five occasions.

As I have said, the Hydrographic Service chart of the north arm of the Fraser River shows the bridge in question to have a clearance of “24 feet above H.W.” (It is generally accepted that these initials stand for “high water”.) The existence of this notation on the chart was known to Captain Lowry and I am prepared to assume that it was also known to Forsyth, who had travelled the river for 18 years. It was the only information on the chart which was in any way relevant to the question of whether it was safe to take the V.T. 145 underneath the Fraser Street bridge, but the failure to specify what was meant by “high water” had the result of making this information virtually useless.

The first and I think the main submission made by the appellant is that the respondent was guilty of actual fault because it knew that its tugmasters did not use the chart in order to determine the clearance under the Fraser Street bridge and that it failed to instruct them to do so, but the danger and difficulty of relying on the chart in conjunction with the tide tables seems to me to be at once apparent when the two are considered together.

The tide tables indicated the expected height of the tide at certain hours of each day at Port Atkinson, which, under normal conditions and in calm water, does not vary appreciably from the tide level at the Fraser Street bridge, but when “freshet” tides are running, as they were on the day in question, the level at the Fraser Street bridge may be from five to ten inches higher than that at Port Atkinson, and when the wind has been blowing “it may be lifted as much as a foot and a half higher than it is at Port Atkinson.”

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On the day of the accident (June 23, 1966) the highest tide indicated at Port Atkinson was 14.3 feet at 11.25 p.m. (ail times mentioned are daylight saving time), but the accident occurred at 9.05 a.m. and the nearest indicated tide was 10.8 feet at 8.26 a.m., after which it appears to have been on the ebb, at least until a low tide of 1.0 feet at 3.42 p.m.

As I have said, the box on the V.T. 145 was 26 feet high and as it struck the bridge at a point about 18 inches from the top, it would appear that at 9.05 a.m. on the morning of June 23, the clearance was about 24½ feet but this fact could not have been ascertained by studying the chart or the tide table.

The whole question of the use of chart and tide table in conjunction has, in my opinion, been confused by the fact that the appellants’ counsel not only proceeded on the assumption that the 10.8 foot tide reading at 8.26 a.m. “would be just about high water mark” for June 23, but he further appears to have assumed that this was “the high water mark” to which the chart datum related and that anyone glancing at the chart and the tide table together would have known that there was only about 24 feet of clearance at 9.05 a.m. This appears to me to be a clear error which coloured much of the cross‑examination of the tugmaster and of Captain Lowry.

The tide table itself shows that the maximum “high water” was 16.7 feet and, as I have indicated, the highest tide on June 23 was 14.3 feet, while high tide a week before was 12.7 feet and on June 11 the highest water was 8.3 feet. With these wide differences, it appears to me that the notation of “24 feet above H.W.” which appears on the chart can only have any significance if it is intended to refer to “mean high water”, and the tide table indicates that this was 13 feet.

In my view it follows from the above that on the basis of the chart and tide table the master would have been justified in concluding that at a tide of 10.8 feet he had a clearance of more than 26 feet, but the fact of the matter was that the clearance was at most 24½ feet, and that indicates to me that with the freshets running and other conditions, the water at Fraser Street must have been a great deal higher than 10.8 feet.

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There was, however, another source of information carried on the Chugaway II in the shape of a table of “Bridge Clearances and Signals, North Arm Fraser River.” This document was issued by the North Fraser Harbour Commission and although it carries the caution that the clearances given “are indications only”, it is interesting to note that the clearance given at the Fraser Street bridge at a 12 foot tide was 24.2 feet.

It was exactly because of the difficulties and uncertainties of determining the height of the river from the chart and tide tables that it had become common practice for those using the Fraser River to gauge the clearance under the Fraser Street bridge by counting the number of planks visible above water at the Oak Street bridge, allowing one foot for each plank and adding 19 feet so as to give the number of feet of clearance at the Fraser Street bridge. This system had been widely adopted over the years by those navigating the Fraser River and Captain Forsyth had, in the past, actually verified its accuracy by his own measurements. In any event the evidence is uncontradicted that the result of employing this method was “positive for height” at the Fraser Street bridge and that it was the only accurate measurement available for users of the river and that it is the “standard practice”.

In this regard the learned trial judge made the following finding:

Amongst those familiar with the navigation of the Fraser River it was common practice to determine the clearance of the Fraser Street Bridge by counting the visible planks of the Oak Street Bridge, allowing approximately one foot for each plank and adding 19 feet as indicating the height of the Fraser Street Bridge above the current level of the water.

In this latter regard, Captain Forsyth testified as follows:

Q. How long have you been going to sea on tugs, Captain Forsyth?

A. 21 years.

Q. And how long ago did you first serve as a master on tugs?

A. 18 years ago.

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Q. Now, what was your method of determining the height of the clearance of the Fraser Street fixed span bridge in the Fraser River?

A. By counting the planks showing above the water at the Oak Street pier and adding 19 feet to get your clearance for the Fraser Avenue span which is two miles up river.

THE COURT:

Q. And adding 19 feet?

A. Correct, to the planks showing on the Oak Street pier.

THE COURT: Yes.

MR. CUNNINGHAM:

Q. Now, was that Oak Street pier prior to this accident, from your experience, the one that you are referring to, generally free of damage to it as far as your planks were concerned?

A. Generally, yes.

Q. And had you had occasion at any time to measure actually measure the clearance of the Fraser Street fixed span before the accident on June 23rd, 1966, yourself?

A. Yes, sir, I have.

Q. And what was the method that was used?

A. Taking a pole, one boat standby at Fraser Avenue fixed span, measuring the clearance and then reverse course with the boat counting the planks at the Oak Street span.

Q. And can you recall, what were the circumstances under which you had done that before the accident on June 23rd, 1966?

A. Would you repeat that question, please?

Q. Under what circumstances did you have occasion to do it? What was the occasion?

A. Well, usually if you have a new crew come aboard they are curious as to how we come to our clearance, how we come to the figure, and this is standard practice with all tow boats in the river. Many companies have done it, many boats.

Q. And how many times can you recall doing it before this accident?

A. Four or five times.

Q. And this practice of using the planks, what is your knowledge and your observation as to other companies using it, tug boat companies, in the Fraser River?

A. Yes, it is standard practice with all companies in the river.

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THE COURT:

Q. That is, by counting the planks on Oak Street and adding 19 feet in addition?

A. Right.

Counsel for the appellants submitted that this was a rudimentary method of determining the clearance at Fraser Street and contended that the evidence of the accident itself proved it to be fallacious, but I think that the only conclusion which can be properly drawn from the evidence in this case is that it was not only an accurate method of measurement but the only method that was accurate. The evidence is, as I have said, uncontradicted in this regard and the criticism that this method was subject to human error is one that applies to all methods of calculation from simple addition to the computer and it applies with particular force, as I have attempted to illustrate, to the use of the chart in conjunction with the tide tables, as this latter method is not only subject to human error but to the vagaries of wind and weather and the fundamental uncertainty as to the height of water to which the chart datum “24 feet at H.W.” refers.

I do not think that actual fault can be attributed to the respondent on the ground that Lowry failed to foresee that there was any probability of an experienced master, who had taken tugs under the Fraser Street bridge “hundreds of limes” in reliance on the plank-count method, being so unpredictably careless as to count nine planks when there must in truth have only been five and a half visible at the Oak Street bridge.

It appears to be assumed by the appellants that Forsyth in fact made the mistake of counting nine instead of five and a half planks but although this statement was finally elicited from him in cross-examination at the trial, which was held more than three years after the event, it is to be remembered that in his affidavit made less than a year after the collision, the master had said nothing about counting planks and merely stated that “on approaching the Oak Street bridge I decided from my observation of the level of the river at the base of the Oak Street bridge that there was sufficient clearance for the tug and her tow to be navigated under the fixed span of the Fraser Street bridge”.

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When he was first asked at the trial how many planks he had counted, Forsyth’s reply was “I don’t remember exactly” and he later said “I believe it was nine but I could be wrong. I made one estimate” and it was only when further pressed that he stated that he had in fact counted nine planks.

It is difficult for me to believe that Forsyth actually counted nine planks when there were only five and a half visible, but I am satisfied that such an experienced tugmaster might well simply take a glance at the water level at Oak Street and make an estimate in his own mind without counting at all.

Whether the master miscounted the planks or whether he failed to count altogether does not appear to me to be decisive of the question raised on this appeal. Whichever he did, he was negligent and it seems to me to be equally true that such negligence was not reasonably foreseeable by the owner, which was depending on a master of great experience in the navigation of that part of the river and which was satisfied that the masters of its tugs should abide by the “standard practice” adopted by all companies using that part of the river to determine the clearance under the bridge.

It was contended also that Captain Lowry, acting on behalf of the respondent, was at fault in not instructing his masters to use the alternate channel to the north of Mitchell Island whenever there was any risk that the height of the water under the Fraser Street Bridge might not afford adequate clearance.

No evidence whatever was adduced as to what instructions Captain Lowry could have given to his masters in order to assist them in determining the clearance under the Bridge except the use of the “plank count” or the chart and tide table and I think I have indicated that I am satisfied that the chart and tide table could have afforded no assistance and that it would in fact have been dangerous for Captain Lowry to instruct his masters to rely on the information derived from them.

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It is perhaps desirable to indicate that the northern channel was a highly inconvenient one and this is made plain in the evidence of Captain Lowry where he says:

Q. Mr. Bird asked you about navigating a barge in tow through the two swing bridges that are involved in a tow through the north side of Mitchell Island. What are the conditions that exist in towing through those swing bridges?

A. It is a narrow channel with approximately maybe six sawmills in the slough, as we call it.

Q. You call that area north of Mitchell Island a slough, do you?

A. That is a slough. This is a secondary channel. On a flood tide or bucking tide when a tug is going up there with one of these chip scows you have got half speed, slow speed, crawl up there. You don’t know when the Fraser Avenue Bridge is going to open, you have got booms across your navigable channel.

Q. What kind of booms are you talking about?

A. They are yard booms for these mills from one side to the other.

Q. And most of these swing bridges have to be opened particularly?

A. At times.

Q. Specifically?

A. One all the time, the tar bridge.

Q. And you find a considerable amount of local traffic in that area?

A. Yes.

Q. In what you call the slough?

A. Very much so.

It seems to me to have been reasonable for the respondent company to have adopted the universal practice of using the south channel, which was commonly known as the “main drag”, unless its masters were uncertain as to whether or not there was sufficient clearance at Fraser Street and, as I view it, it would have been a surprising indication of lack of confidence in the tugmasters if Captain Lowry had found it necessary to call them into his office and say “Do not go under the Fraser Street bridge with a barge carrying a 26 foot box unless you are satisfied that there are 26 feet of clearance.”

It is further contended, however, that on the morning in question the Chugaway II was approaching Fraser Street Bridge at the rush-hour

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when it would bear heavy traffic and that more than ordinary care and prudence was required of the tugmaster in accordance with the principles which have long been applied to inherently dangerous substances, e.g., “That the degree of care… must be proportionate to the degree of risk involved if the duty should not be fulfilled.” This quotation is taken from the judgment of Lord Wright in North Western Utilities Limited v. London Guarantee and Accident Company Limited[3]. In that case the respondent’s hotel had been destroyed by fire caused by the escape and ignition of natural gas carried by the appellant underground at high pressure which percolated through the soil and penetrated into the hotel basement from a fractured welded joint. The cause of the break in the welded joint through which the gas leaked was found to be the operations of the City of Edmonton in constructing a storm sewer involving underground work immediately beneath the appellant’s gas main.

It was found that the appellants were at fault in failing to have watched and guarded against the construction being conducted by the City from causing any break in its gas main.

The decision of the House of Lords was rendered by Lord Wright who expressed the following view of the duty and conduct of the appellant at page 127:

In truth, the gravamen of the charge against the appellants in this matter is that though they had the tremendous responsibility of carrying this highly inflammable gas under the streets of a city, they did nothing at all in all the facts of this case. If they did not know of the City works, their system of inspection must have been very deficient. If they did know they should have been on their guard: they might have ascertained what work was being done and carefully investigated the position, or they might have examined the pipes likely to be affected so as to satisfy themselves that the bed on which they lay was not being disturbed. Their duty to the respondents was at the lowest to be on the watch and to be vigilant: they do not even pretend to have done as much as that. In fact, so far as appears, they gave no thought to the matter. They left it all to chance.

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I find it difficult to equate the operation of a fleet of tugs in the Fraser River with the carrying of a highly inflammable gas under city streets, but the case, in any event, appears to me to be clearly distinguishable from the present one on the ground that, here, the respondent company had not “left all to chance” as to whether there was sufficient clearance under the Fraser Street Bridge but rather, having given thought to the matter, was content to have its tugmasters follow the standard practice employed by all those who used the River which was also, in my opinion, based on the evidence, the only effective way in which to determine the clearance under the bridge in question.

Reference was also made to the case of Paris v. Stepney Borough Council[4], in which a garage hand who to the knowledge of his employers, had only one good eye, was not wearing goggles when his good eye was injured in the course of his work. The claim here was obviously one involving the common law duty which an employer owes to his employee, and under the particular circumstances of the case, it was held that the special risk of injury involved in a one-eyed man losing his sight entirely was a relevant consideration in determining the precautions which the employer should have taken in discharging his duty towards him, and the workman was successful.

In the Court of Appeal in the Paris case, where the judgment at trial was reversed, Asquith L.J. had said:

The risk is no greater although the damage may be greater to a man with only one good eye than to a man with two good eyes. But the quantum of damage is one thing and the scope of the duty is another. A greater risk of injury is not the same thing as a risk of greater injury; the first alone is relevant to liability.

In allowing the appeal from this decision and restoring the judgment at trial, Lord Normand, whose reasons were adopted by the majority, having first pointed out that the duty resting on the employer was a duty to its employees as individuals, went on to hold that the trial judge had

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been right in finding the employers liable under the particular circumstances of that case. In this regard Lord Normand said at page 383:

The facts on which the judge founded his conclusion, the known risk of metal flying when this sort of work was being done, the position of the workman with his eyes close to the bolt he was hammering and on the same level with it or below it, and the disastrous consequences if a particle of metal flew into his one good eye, taken in isolation, seem to me to justify his conclusion.

It is now suggested on behalf of the appellants that the decision of Lord Normand, based as it was on the particular facts before him, should be so applied to the facts of the present case as to constitute authority for the proposition that the risk of greater injury to members of the public represented by a crowded bridge gave rise to a higher duty of care than there would have been if the bridge had only had a few or no people on it. I am unable to accept any such extension of what was said in the Paris case. It appears to me that the duty of care resting upon the tug master was to act as a reasonable, prudent and careful tug operator and that it would constitute a fundamental change in the concept of duty in the law of negligence to hold that this duty varied according to the number of vehicles or pedestrians on the bridge.

This appeal is concerned with a claim for damages to the structure of the bridge itself and in my view the duty to take reasonable steps to guard against causing such damage was a constant factor which required the same degree of care whether the bridge was congested or empty. In the present case the master was clearly in breach of this duty and his negligence attracted liability to the respondent in accordance with the doctrine of respondeat superior.

It seems to me, however, that what is involved here is the contention that the risk of greater injury and therefore greater damage represented by the rush hour traffic gave rise to a duty in the tug owner to be responsible for the navigation of its tugs when approaching and passing under the Fraser Street Bridge so that the negligence

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of the tug master in failing to gauge accurately the clearance under the Bridge was attributable to the alleged fault of the owner in not exercising closer supervision and direction of the navigation of the tug.

As I understand the contention urged on behalf of the appellants, it is that the tug owner is disentitled to the protection of the limitation of liability provisions of the Canada Shipping Act, supra, because the greater potential damage involved in negligent navigation of a tug during the rush hour involves the tug owner itself in a responsibility for navigation. I am, however, of the opinion that any such further extension of the Paris case would nullify the effect of the limitation of liability provisions which find their origin in the earliest days of maritime law and are expressly designed for the purpose of encouraging shipping and affording protection to ship owners against bearing the full impact of heavy and perhaps crippling pecuniary damage sustained by reason of the negligent navigation of their ships on the part of their servants or agents. (See Marsden’s Collisions at Sea, 11th ed., page 170 et seq.)

The statute provides that the owner is entitled to limit its liability whenever the loss or damage is caused by the act or omission of any person in the navigation of the ship and there can be little doubt that if an experienced master like Forsyth had made an error which resulted in a collision with another ship or with a pier, the owner would have been entitled to benefit by the statutory provisions. I fail to see why the owner should be deprived of the protection of this statute because in the circumstances of this case, negligent navigation by the master might result in unusually great damage being done. If this were the test it would in my view serve in great measure to defeat the whole intent and purpose of the statute.

The Paris case, is however, clearly distinguishable on another ground. In that case it had not been the practice of the employers to supply goggles for those employed on the maintenance and repair of vehicles and it appears that the weight of evidence was to the effect that it was not usual for other employers to supply goggles

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under these circumstances. In the course of his reasons for judgment Lord Normand said, at page 382:

The kind of evidence necessary to establish neglect of a proper precaution was considered in Morton v. William Dixon Ld. 1909 S.C. 807 by Lord President Dunedin. That was an action by a miner against his employers alleging negligence in failing to take precautions against the fall of coal from the top of the shaft into the space between the side of the shaft and the edge of the cage. It was, of course, a Scotch case, but in my opinion there is no difference between the law of Scotland and the law of England on this point. The Lord President said:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.

The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.

Here there was no proof that other tug owners ever took the precaution of using the northern channel when their tugmasters were satisfied by using the “plank count” method that there was sufficient clearance at the Fraser Street Bridge, and there is, in my opinion, nothing in the evidence to indicate that under such circumstances the precaution was one which “the reasonable and prudent man would think so obvious that it was folly to omit it.” In this regard I adopt as applicable to the circumstances here disclosed the language used by Lord Normand when he char-

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acterized Lord Dunedin’s decision in the Morton case, supra, as containing “an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances.”

It should be mentioned that the appellant also contended that the limitation of liability sections of the Canada Shipping Act did not apply so as to entitle the respondent to limit its liability in respect of damage to Her Majesty in the right of the Province of British Columbia. In this regard I am content to adopt the reasons for judgment of Mr. Justice Sheppard, based as they are on the reasoning of this Court in Gartland Steamship Company v. The Queen[5], where it was held that these sections did not take away any cause of action from the Crown so as to effect the prerogative, but rather such sections merely define the extent of the liability of the ship owner.

As I have indicated, I am of opinion that the damage to the Fraser Street Bridge was occasioned by the faulty navigation of the Chugaway II on the part of Captain Forsyth and I adopt one succinct statement to be found in the judgment of Mr. Justice Judson, who was then sitting at trial as a Judge of the Supreme Court of Ontario, in the case of Fort William v. McNamara Construction Co.[6], where he said:

If, therefore, what happened in this case was navigation of a ship, the law is that the limited company owner is entitled to limit its liability for the damage caused by the negligent navigation of its ship by the master.

This case is clearly distinguishable from that of The Lady Gwendolen[7], where the owners knew that the ship’s master was accustomed to sailing at excessive speeds in fog in reliance on his radar and, seized with this knowledge, they neglected to forbid him to continue the practice. In the case at bar, as Mr. Justice Sheppard has said, the error of the master was an isolated one and could not have been foreseen by the owner.

For all these reasons I would dismiss this appeal with costs.

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SPENCE J. (dissenting)—This is an appeal from the judgment of Sheppard J., Deputy Judge of the Exchequer Court of Canada[8], delivered on October 1, 1969. By that judgment, the learned trial judge ordered that upon payment into court of the sum of $24,000 with interest, the plaintiff’s liability with respect to the loss or damage to property of the defendant should be fully paid and satisfied.

The action was by the respondents to limit liability under the provisions of ss. 657 to 663 of the Canada Shipping Act, R.S.C. 1952, c. 29. The action arose under these circumstances.

The respondent Marpole Towing Ltd. was a small company operating three tugs in the business of towing barges and other craft in the Vancouver area and particularly on the Fraser River. Captain John Munro Lowry, in 1953, as one of the principals, incorporated the respondent Marpole Towing Ltd., it having carried on as a partnership for two or three years prior thereto. Captain Lowry owned two-thirds of the shares of the company and his son owned the remaining one-third thereof. Captain Lowry was the President and General Manager of the respondent Marpole Towing Ltd. He was a qualified master of many years’ experience and had 15 or 16 years of towing experience on the Fraser River. On June 23, 1966, the staff of the respondent Marpole Towing Ltd. consisted of Captain Lowry, a dispatcher, and billing clerk or stenographer.

On June 23, 1966, the tug Chugaway II owned by the respondent and of a gross tonnage of 9.87 tons took in tow a chip barge, VT. 145, owned by the Vancouver Tug Boat Company Ltd. The barge was taken in tow at the Musqueam scow berth on the Fraser River and the instructions were to tow her to New Westminster. The tug was commanded by Captain Forsyth, the master, who was at the wheel, and had aboard J.S. Taylor as mate, and a deckhand. The barge VT. 145 was 21½ feet in height from the top of the box to the bottom of the barge. Since the box was empty, the craft only drew one and

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a-half feet of water and, therefore, from the top of the barge to the water line was 26 feet. Those exact dimensions were known to the master Captain Forsyth and, in fact, were posted on a list in the wheelhouse of the tug.

The tug, with its barge in tow, proceeded easterly on the Fraser River passing beneath the railway bridge, also called the Marpole Bridge, the Oak Street Bridge, and up to the Fraser Street bridge. The railway or Marpole bridge was a swing bridge and therefore presented no problem. The Oak Street bridge had a clearance above high water level of 66 feet and again presented no problem. The Fraser Street bridge is the bridge crossing the southerly channel around Mitchell Island. There is also a channel running along the north side of Mitchell Island crossed by two bridges. Both of those bridges were of the swing type and therefore when open presented no problem due to the height of the craft passing through them. The Fraser Street bridge across the southerly channel was a fixed bridge and is marked on the chart “Fraser Street Bridge, clearance 24 feet above h.w.”.

Although much of the examination during trial and the submissions during this appeal were in reference to the use of the chart to determine the clearance under the Oak Street bridge at high water, I am of the opinion that nothing turns upon that element of the case. Both the master and Captain Lowry knew that the clearance beneath the Oak Street bridge was only 24 feet above high water and, in fact, in the wheelhouse of the tug Chugaway II there was posted a list of the bridges with the clearance beneath each of them at the high water mark. To have had reference to the chart would not have given Captain Forsyth any more knowledge of the extent of the clearance at high water than he had already, and had firmly in his mind.

Captain Forsyth, on the other hand, was more concerned with just how high the water was at the time he attempted to tow this barge with its high box beneath the Fraser Street bridge. Captain Forsyth, and evidently all other masters of towing craft on the Fraser River, had made this assessment by scrutinizing the Oak Street bridge as their craft passed beneath it.

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The Oak Street bridge is about one mile west of the Fraser Street bridge and on the northerly abutment of the bridge there was a series of planks each roughly one foot in width. It was the practice of the masters to count the planks above the water level on the face of this abutment and add thereto the figure 19 and the result totalled was supposed to represent the level of the water below the floor of the Fraser Street bridge.

Although the tug Chugaway II and the other tugs in the respondent’s fleet were provided with what has been called in the evidence the “Tide Book”, which was a series of tide tables, no master, for the purpose of determining the level of the water below the Fraser Street bridge, seems to have made any reference to the tide tables contained in the book. Indeed, it was Captain Lowry’s evidence that those tide tables provided an unreliable guide to the level of the water beneath the floor of the Fraser Street bridge for two reasons: firstly, the course of the Fraser River at this point was roughly east to west and a west wind of any proportion could pile up the water in the river to a depth of even 18 inches above the tide level and, secondly, in the spring freshets caused by melting as well as spring rains increased the level in the river by about six inches. Neither of those factors, of course, would be shown in a tide table. It is probably for this reason that the masters for a long time had depended on this device of counting the planks on the face of the abutment of the Oak Street bridge in order to determine the level of the water beneath the Fraser Street bridge.

On June 23, 1966, having picked up its tow at the Musqueam scow berth at 7:00 a.m., Pacific Daylight Time, and proceeding up the Fraser River, the tug Chugaway II arrived at the Fraser Street bridge at about 9:05 a.m. Instead of passing safely beneath the bridge, the box of the barge struck the floor of the Fraser Street bridge about 18 inches below the top of the box. The bridge was very heavily damaged and many vehicles with passengers in them which were crossing the bridge at the time were thrown into the water. Very fortunately, no loss of life occurred but there were personal injuries to those on the span. The respondent settled all claims for

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personal injuries of which it had notice and then took this action to limit its liability as to the property damage.

The Master Forsyth testified that on this particular morning he had assessed the level of the water beneath the Fraser Street bridge by counting the planks on the face of the abutment of the Oak Street bridge in accordance with his usual practice and adding 19 to that count and that, in fact, he had on various occasions prior thereto, particularly when instructing new hands, actually measured the water level beneath the Fraser Street bridge and then checked that measurement against this calculation by counting planks on the face of the abutment of the Oak Street bridge. It was only in cross-examination that the Master was questioned in detail as to his actual count on that particular day and then he testified that he did not remember exactly the number of planks he had counted. His testimony, in part, was:

Q. You don’t know. I take it your evidence is here today you don’t remember?

A. I made—I counted nine planks.

THE COURT: Q: You counted how many?

MR. BIRD: He says he counted nine planks, my Lord.

Q. Well, I want to be clear on this, Mr. Forsyth. Do you say you counted nine planks.

A. Yes, sir.

Q. On the day of this accident at the Oak Street bridge, that were visible at the Oak Street Bridge?

A. Yes, sir.

J.S. Taylor, the mate of the tug, also testified that he did not know what the exact count was that morning.

It would appear, therefore, that the Master Forsyth, in his evidence, is not giving his actual memory and is simply reconstructing what he thinks occurred. I am, with respect, therefore, in agreement with the learned trial judge when he said:

This accident was due to Captain Forsyth failing to count accurately the number of planks or failing to remember the actual count.

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I have, however, grave doubts that I could accept the next statement in the reasons of the learned trial judge:

The failure was not in any sense due to the method employed by the master for deciding the clearance of the Fraser Street Bridge.

Some additional facts are of importance. The tugs operated by the respondent were provided with proper navigational aids. Among those navigational aids were the appropriate charts and also the tide book which contained the various tide tables. It was very evident, however, upon the testimony of Captain Lowry, that the masters of the tugs, including Captain Forsyth, the master of the tug involved in this accident, were never instructed to use either the charts or the tide book in their navigation of the river. Captain Lowry was fully aware of the plank counting method of determining the level of the water used by Captain Forsyth and the other masters and approved of that method. In fact, as I have said, in his testimony he emphasized the unreliable nature of the tide tables due to the action of west winds and freshets. Therefore, on the morning in question Captain Forsyth made no reference whatsoever to the tide tables and he had never been instructed to do so. Captain Lowry testified as follows:

Q. Can you recall, Captain Lowry, whether you have ever given instructions to the boat Masters not to attempt to pass beneath or through this particular bridge on the Fraser River?

A. No.

Q. You have never done so?

A. No.

Captain Lowry further testified.

Q. Do I understand from that, Captain Lowry, that you do not consider that your responsibility went any further than to engage someone whom you believed to be competent and then to leave the navigation of the tugs in the river to him?

A. I would answer that yes.

The Fraser River passed at each side of Mitchell Island. The south channel was the one which was bridged by the Fraser Street bridge and which

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I have pointed out was a fixed bridge. The north channel was bridged by two swing bridges which opened at the request of the approaching craft. Despite the safety features resulting from these swing bridges, Captain Lowry regarded the north channel as a secondary channel and testified that the tug had to proceed at half speed, slow speed, or even crawl, and one did not know when the Fraser street swing bridge was going to open or when log booms were across the navigable channel. Moreover, there was considerable local traffic in the water in that north channel. Captain Lowry admitted that neither he nor the dispatcher had instructed Captain Forsyth to use the safe, north channel at any time.

The negligence of the master of the tug, Captain Forsyth, is self-evident and in opening, counsel for the respondent stated:

When the master of the tug made an error in judging the clearance beneath the Fraser Street Bridge, which resulted in the barge knocking the bridge span into the river.

However, the respondent may still succeed in its action to limit its liability to about $24,000 if it brings itself within the provisions of s. 657 of the Canada Shipping Act, R.S.C. 1952, c. 29. Section 657(2) (d) of that statute provides:

657. (2) The owner of a ship, whether registered in Canada or not, is not, where any of the following events occur without his actual fault or privity, namely:

(d) where any loss or damage is caused to any property, other than property described in paragraph (b), or any rights are infringed through

(i) the act or omission of any person whether on board that ship or not, in the navigation or management of the ship, in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers, or

(ii) any other act or omission of any person on board that ship;

liable for damages beyond the following amounts, namely:

The result of the present litigation must depend on whether the respondent has succeeded in

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demonstrating that the accident occurred without any actual fault or privity on its part. In short, the respondent although liable under the law of respondeat superior may limit its liability if the application of that maxim is the only ground upon which it is liable. The burden of proving that no actual fault or privity of the owner is involved, however, is upon the respondent and the burden is a heavy one. In dealing with a similar section Rinfret J., as he then was, said in Paterson Steamships Limited v. The Canadian Co-operative Wheat Producers Limited et al[9]:

But it should not be forgotten that, in proceedings under section 503 of the Merchant Shipping Act or 903 of the Canada Shipping Act, the owner is claiming a limitation of his liability; and it is for him to show affirmatively that the damage or loss happened without his actual fault or privity. It is for him so to speak, to exculpate himself (as distinguished from his servants or employees) from the responsibility for the loss or damage in respect of which he claims the limitation. The onus is upon him to show that there was no fault or privity of his own. He must bring himself within the exception.

(The underlining is my own.)

In the same case, Rinfret J. said:

In the case of a corporation such as the appellant, the fault or privity must be that (in the words of Viscount Haldane L.C. in Lennard’s Carrying Company Limited v. Asiatic Petroleum Company Limited, [1915] A.C. 705):

somebody for whom the company is liable because his action is the very action of the company itself.

The problem of corporate responsibility does not present itself in the present case. Captain Lowry was a majority shareholder, the President and General Manager of the respondent, and certainly his acts were the acts of the company itself. The problem therefore left for decision is whether

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Captain Lowry’s decision to merely take care in hiring his masters and then provide his masters, and particularly Captain Forsyth, the master of the tug Chugaway II, with the proper aids to navigation including the charts and tide tables and to refrain from giving any instructions whatsoever, except to take care, was a sufficient discharge of his duty. This problem must be decided in the light of the facts recited above and particularly these facts: firstly, the method of determining the water level under the Fraser Street bridge by counting the planks on the face of the abutment on the Oak Street bridge and adding thereto 19 was an efficient method of determining that level and had an advantage over the use of tide tables in that it automatically took into account increased water level due to both the action of the wind and freshets. It did, however, have the very serious defect that it was subject to human frailty. The master making the count of the planks could count them incorrectly or, having counted them correctly, he could forget the count and add an incorrect figure to the figure 19, or he could merely glance at the planks and assume that they were of some number rather than making an accurate count. If the plank counting method had been the only method available for determining the water level under the Fraser Street bridge then the respondent’s careful choice of a competent master with instructions to the master to take care might have been the taking of all action reasonable to take under the circumstances.

Those were not, however, all the circumstances. There was available a tide table and the tide table showed that at approximately 9:05 a.m. Pacific Daylight Time, on June 23, 1966, there was a tide of 10.8 feet at Point Atkinson, some distance to the west on the Fraser River. Captain Lowry admitted that to have instructed the master to make reference to the tide table would have caused the master to be aware of that tide level. He testified:

A. It would have been a big assistance if they didn’t miscalculate in reading the Tide Book.

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Q. Reading the Tide Book?

A. Well, if the same mistake was made on that as counting the piers it would add the same problem.

This implies that the tug master would have first made a mistake in counting the planks and then looking at the tide table would have made another mistake in reading a figure. That tide table for the day in question was as follows:

and it is stretching coincidence too far to say that the master would have made two successive errors within seconds. At any rate, had he received instructions to make that check by reference to the tide book and then had committed those two errors, apart from what I shall say hereafter, the owner, i.e., the respondent, would have taken all steps reasonable under the circumstances. Captain Lowry admitted that a reference to the tide table would have shown there was a tide level at Port Atkinson of ten feet and that under such circumstances there would not have been enough clearance at the Fraser Street bridge to enable the barge VT.145 to pass beneath it. Such an admission, in my opinion, is an admission that if he, Captain Lowry, representing the owner, had instructed his master to check the visual assessment by reference to the tide table and the master had carried out that check in accordance with such instructions the accident would not have occurred.

The second circumstance under which the owner’s right to limit liability in this case must be considered is the existence of the safe alternative channel. It is true that that channel did present some inconvenience but surely any such inconvenience was outweighed by its safety. There are occasions when to adopt an alternative would have prevented an accident but the alternative is such a drastic one that to require it to be adopted in a situation where there is slight risk only entailed in the usual method would be putting too much of a burden on the person charged with negligence.

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In Latimer v. A.E.C. Ltd.[10], the Court of Appeal was concerned with a situation where a downpour of rain of unprecedented character had flooded a factory. Oil had become mixed with the flood water and as the water receded the floor was left in an oily condition and could not be entirely cleared at once. In the course of his duty a workman slipped on the floor and was injured. It was held that it would not have been reasonable for the occupiers to have closed the factory on account of the danger and therefore they had not been negligent in permitting the plaintiff to work in the factory. Denning L.J. said at p. 1305:

It is always necessary to consider what measures the defendants could have taken and to say whether they could reasonably be expected of them. Let me give a converse case. A man tries to stop a runaway horse. It is a known and serious risk, but no one would suggest that he could reasonably be expected to stand idly by. It is not negligence on his part to run the risk. So here the employers knew that the floor was slippery and that there was some risk in letting the men work on it, but, still, they could not reasonably be expected to shut down the whole works and send all the men home. In every case of foreseeable risk it is a matter of balancing the risk against the measures necessary to eliminate it. It is only negligence if, on balance, the defendants did something which they ought not to have done or omitted to do something which they ought to have done. In the circumstances of this case it is clear that the defendants did everything they could reasonably be expected to do. It would be quite unreasonable to expect them to send all the men home.

(The underlining is my own.)

I quote that decision as an example. If the situation could have been cured or bettered by simply spreading sand or sawdust on the floor then, in my view, it would not have been unreasonable to require the employer to take that slight step. So, in the present case, if there was any danger to be incurred by towing this high

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barge beneath the Fraser Street bridge then to have required the owner to instruct the master to take the slightly less convenient course in towing the barge up the north channel was a reasonable thing to do, and, in my view, therefore, Captain Lowry should have instructed his masters, and particularly Captain Forsyth, that when, even apart from any positive evidence by reference to the tide table, the tide seemed rather high under the Fraser Street bridge, they should not use the south channel but proceed along the north channel through the swing bridge.

The third circumstance which should be considered, particularly in deciding this situation, is that the tug was approaching the Fraser Street bridge at about 9:00 o’clock on a Thursday morning; the actual impact occurred at 9:05 a.m. It was inevitable that a bridge on a street in Vancouver at that rush hour in the morning would bear heavy traffic both pedestrian and vehicular. Therefore, any collision between the towed barge and the bridge would be one in which there would be grave danger of not only property damage but loss of life or personal injury. In the present case, there was by great fortune no loss of life. There was, however, personal injury. It was not every morning that high tide occurred at approximately the rush hour. On June 20th, high tide was at a little after midnight and at 8:21 p.m. On the 21st of June, high tide was at 5:24 a.m. and at 9:03 p.m., with similar variations throughout the week. On this particular morning, however, high tide at Port Atkinson was at 8:26 a.m. Port Atkinson was some distance west of the Fraser Street bridge so that the master, by reference to the tide tables, could see that it was inevitable that high tide would be occurring almost at the time his tug and tow would be passing beneath the Fraser Street bridge.

In Paris v. Stepney Borough Council[11], the House of Lords considered the case of a workman who had, to the knowledge of his employers,

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only one good eye, and who was working as a garage mechanic using a hammer to remove a rusted bolt. He was not wearing goggles. A metal chip flew off seriously injuring his good eye. It was held that in the case of a workman suffering, to the knowledge of the employer, from a disability which though it did not increase the risk of an accident occurring did increase the risk of serious injury if an accident should befall him, the special risk of injury was a relevant consideration in determining the precautions which the employer should take in the performance of the duty of care which he owed to his workmen. In the Court of Appeal, Asquith L.J. said:

The plaintiff’s disability could only be relevant to the stringency of the duty owed to him if it increased the risk to which he was exposed. A one-eyed man is no more likely to get a splinter or a chip in his eye than is a two-eyed man. The risk is no greater although the damage may be to a man with only one good eye than to a man with two good eyes. But the quantum of damage is one thing and the scope of duty is another. A greater risk of injury is not the same thing as a risk of greater injury; the first alone is relevant to liability.

Lord Normand, in his reasons at p. 381, quoted Lord Neaves in Mackintosh v. Mackintosh[12]:

It must be observed that in all cases the amount of care which a prudent man will take must vary infinitely according to circumstances. No prudent man in carrying a lighted candle through a powder magazine would fail to take more care than if he was going through a damp cellar. The amount of care will be proportionate to the degree of risk run and to the magnitude of the mischief that may be occasioned.

He also cited Lord Wright in Northwestern Utilities Ltd, v. London Guarantee and Accident Co, Ltd.[13], where he said:

The degree of care which that duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled.

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and Winfield on Torts, 5th ed., at p. 412, where the learned author said:

No reasonable man handles a stick of dynamite and a walking-stick in the same way.

Lord Normand adopted these statements. The appeal was allowed and the judgment at trial in favour of the plaintiff was restored.

Lord Simonds and Lord Morton did not disagree with the proposition but simply held that the risk of injury whether to a one-eyed man or a two-eyed man did not, on all the evidence, demand additional precautions by the employers.

Salmond on Torts, in the 15th edition at page 288, cites Paris v. Stepney Borough Council, supra, as the ruling authority under the circumstances.

Applying these authorities, therefore, to the present situation when the Fraser Street bridge would be filled with rush-hour traffic, then the danger of damage which would result from a collision between the barge and the bridge was much greater and therefore precautions which perhaps on other occasions would not be required would be required on such an occasion. Therefore, in my view, it was the duty of the owner to instruct the master that he must take the utmost care to avoid a collision with the bridge when such collision would be the occasion of grave danger to the public using the bridge and that the master should do this by either double-checking the level of the water through the use of tide tables or by taking a safe route through the north channel.

In the light of all these circumstances, I am of the opinion that the respondent has not discharged the heavy burden upon it to demonstrate that the accident did not occur through actual fault on its part. In my view, that fault did exist in the paucity of the instructions given by Captain Lowry to his master Captain Forsyth, particularly in the failure to insist that the tide tables must always be used to check the accuracy of visual observations, that care must always be taken to avoid a collision with the Fraser Street bridge when it was crowded

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with traffic, and finally that in circumstances where the calculations were at all close the inconvenient but safe north channel must be used.

For these reasons, I would allow the appeal and dismiss the action. The appellants are entitled to their costs throughout.

LASKIN J. (dissenting)—Like my brother Spence, who has set out the facts fully in his reasons, I would allow this appeal on the ground that the respondent has not proved that the loss suffered by the appellant was without the actual fault of Captain Lowry, who is, admittedly, the directing voice as well as being the owner of the respondent. I adopt as the applicable guide line what Lord Haldane said in Lennard’s Carrying Co. Lid. v. Asiatic Petroleum Co. Ltd.[14]: “It is not enough that the fault should be the fault of a servant to exonerate the owner; the fault must also be one which is not the fault of the owner or a fault to which the owner is privy.” I am satisfied that Captain Lowry was not privy to the negligence of the master of the respondent’s tug and would affirm the finding of the trial judge as to the nature of that negligence. But I cannot agree that, in the circumstances of this case, actual fault resulting in the loss complained of, within the meaning of s. 657(2) (d) of the Canada Shipping Act, R.S.C. 1952, c. 29, as amended, has been negated by the respondent.

This issue relates to an independent duty of care resting upon Captain Lowry apart from any negligence of the master for which the respondent may be liable qua employer. The tug carried all relevant navigation charts, tide books and other hydrographic information, and these were available to the master to use independently of the plank-counting method of determining the clearance at the Fraser Street bridge. Equally, these materials were available to use for confirmatory purposes. I see no basis for attributing any actual fault to Captain Lowry merely because the master

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did not resort to any of this information. But the evidence showed that the master relied solely on the plank-counting method of determining bridge clearance and that Captain Lowry was aware of this. It is in this connection that, in my opinion, there is supportable ground for charging Captain Lowry with actual fault.

The dangers or risks of loss or damage that may reasonably be apprehended as a result of the barge-towing activities of the respondent’s tugs are relevant to the nature of the duty or duties that the respondent should assume in respect of those activities. The Fraser Street bridge is a traffic artery. It spans tidal waters, and an additional element affecting the clearance of vessels passing under the bridge is the action of the wind. The tide at the bridge was at a high (and the clearance correspondingly at a low) during the morning traffic rush between 8 a.m. and 9 a.m. daylight saving time on the day of the accident. In these circumstances, it does not seem to me to be enough to allow the master of a tug to rely exclusively on a count of the planks above the water level at the Oak Street bridge, two miles down river from the Fraser Street bridge, to determine in a period of rising tide the clearance under the Fraser Street bridge.

Practical though that method be (as the evidence clearly established), it is vulnerable to error against which other precautions could easily be taken and ought reasonably to be required by the respondent in the light of the risks of injury or damage which would result from such error. It is one thing to say that additional precautions lay in the various charts and aids to navigation carried on the tug, if it be the case that the master was under instructions to use them (albeit in his discretion), or if it could be found that they were in fact used. It is a different thing to say that, although such aids were provided, they were never used, and Captain Lowry knew this. Moreover, it is in evidence that he never gave any general instructions to the master on safety measures when towing barges with high boxes, whether it

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be to use the charts and allied information as a check, or to use the alternate north channel with its two swing bridges which would open at the tug’s request so that any clearance problem would disappear.

Having regard to Captain Lowry’s knowledge of the master’s practice of relying solely on his ability to count accurately the planks at the Oak Street bridge, and having regard to the risks of loss or damage which a faulty count would create, it appears to me to be quite reasonable to charge Captain Lowry with a duty to instruct the master that in such conditions as prevailed at the material time herein he should either check his count of planks by reference to the charts and other such aids, or should use the north channel, however inconvenient it might be in comparison with the south channel under the Fraser Street bridge. No such duty was discharged in the present case. Since I am of the opinion that the loss that occurred may have been avoided if the duty in question had been carried out, the respondent must fail in its claim of entitlement to a limitation of liability unless it can establish on the evidence that there was no causal relation between the breach of duty and the loss that occurred. I do not think that proof of this kind exists here.

It is for these reasons that I would allow the appeal.

Appeal dismissed with costs, SPENCE and LASKIN JJ. dissenting.

Solicitors for the defendants, appellants: Owen, Bird & McDonald, Vancouver.

Solicitors for the plaintiff, respondent: Macrae, Montgomery, Hill & Cunningham, Vancouver.