The Ship Lionel v. The Ship Manchester Merchant, [1970] SCR 538

Supreme Court of Canada

The Ship Lionel v. The Ship Manchester Merchant, [1970] S.C.R. 538

Date: 1970: 01-27

The Owners of the Ship Lionel, D/S A/S Ostlandet (Alf Mohn, Manager) (Plaintiffs) Appellants;

and

The Ship Manchester Merchant and Her Owners (Defendants) Respondents.

1969: May 14, 15, 16; 1970: January 27.

Present: Fauteux, Abbott, Ritchie, Hall and Pigeon JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Shipping—Collision in Montreal Harbour well to east of mid-channel—Special circumstances rendering departure from Narrow Channel Rule necessary.

As a result of a collision in Montreal Harbour between the plaintiffs’ motor vessel Lionel and the defendants’ steamship Manchester Merchant, the Lionel caught fire and became a constructive total loss. The Lionel, after leaving the St. Lawrence Seaway and rounding the Seaway Buoy, had entered the St Lawrence ship channel and was proceeding therein under orders of the National Harbours Board representative “to follow the Donnacona upbound”. At the same time the Manchester Merchant was proceeding downstream from the Upper Harbour, and the collision between the two ships took place in the ship channel well to the east of mid-channel. The plaintiffs’ action for damages having been dismissed by the trial judge, who found that the Lionel was exclusively responsible for the collision, the plaintiffs appealed to this Court.

Held: The appeal should be allowed.

The Lionel was under no duty to hold up in the Seaway until she had ascertained where the Manchester Merchant was and had satisfied herself that it was safe to proceed out of the Seaway. The Lionel had orders to follow the Donnacona and was making a course up the eastern side of the ship channel. The Manchester Merchant was well aware that the Lionel was coming around “hard to port” at the Seaway Buoy and she should have known that that vessel was under orders to follow the Donnacona.

Instead of taking advantage of the safe water available to her on her port side, the Manchester

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Merchant elected to go to the eastward which took her into the very waters in which she must have known that the Lionel was navigating. The Manchester Merchant failed to pay regard to the special circumstances which rendered a departure from the Narrow Channel Rule “necessary in order to avoid immediate danger”. This was the negligence which caused the collision.

APPEAL from a judgment of President Jackett of the Exchequer Court of Canada, sitting in the Quebec Admiralty District. Appeal allowed.

A.S. Hyndman, for the plaintiffs, appellants.

J. Brisset, Q.C., for the defendants, respondents.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal by the owners of the motor vessel Lionel from a judgment of President Jackett of the Exchequer Court of Canada sitting in the Quebec Admiralty District, whereby he found that the Lionel was exclusively responsible for a collision which occurred between that vessel and the steamship Manchester Merchant in Montreal Harbour in the early hours of December 3, 1963, causing a serious fire as a result of which the Lionel became a constructive total loss.

At the time of and immediately preceding the collision the weather was clear and fine and the Lionel, a single screw motor vessel 320.7 feet in length and 44.35 feet in the beam, had entered the St. Lawrence River Channel from the St. Lawrence Seaway and had proceeded therein a distance of approximately 2,100 feet bound, subject to the orders of the Harbours Board representative, for her berth at shed 29 which is on the western side of the Montreal Harbour and is the first shed north of the Jacques Cartier Bridge.

At the same time the Manchester Merchant, a larger vessel, being 569 feet in length overall and 59.2 feet in breadth, was proceeding outbound from Jacques Cartier Pier which is much higher up the harbour than shed 29 and where

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the Manchester Merchant had been delayed for nearly an hour after her intended time of departure.

The stretch of river running seaward from the Upper Harbour of Montreal and including the area in which this collision took place, is well described by the learned trial judge in the following passage from his reasons for judgment:

First, I must endeavour to describe the scene, as it was in December, 1963, of the events leading to the collision, being that part of the St. Lawrence River for some mile and a half to two miles below and above Jacques Cartier Bridge. Along the east[1] shore of this part of the St. Lawrence River was that part of the St. Lawrence Seaway consisting of the St. Lambert Lock and the Channel—about two and one-half sea miles in length—leading from that lock into the St. Lawrence Ship Channel. The latter channel was separated, throughout most of the stretch of the river in question, from the Seaway, by the islands and relatively shallow waters which were being used at that time for the construction of the site for the forthcoming world fair that is known as “Expo 67”. The St. Lawrence Ship Channel was bounded on the west side by the various sheds, wharfs, docks, basins and similar installations for the servicing of harbour traffic that were situated on the west shore of the river. The area of interest in the St. Lawrence Ship Channel commenced at one of such installations, Jacques Cartier Pier, which was about 5,000 feet above (south of) Jacques Cartier Bridge and which was in the Upper Harbour at a point where it was separated from the main river by the north end of a structure known as the McKay Jetty. As a ship went from off Jacques Cartier Pier, it passed through a part of the Ship Channel that was bounded on the west side by Victoria Pier, at the north end of which was a well-known land mark called the “Clock Tower”, and that was bounded on the east side by an imaginary line marked by two buoys, Buoy 203M at the end of McKay Jetty and Buoy 201M, which is opposite the “Clock Tower”. From the end of Victoria Pier to Jacques Cartier Bridge—a distance of some 3,600 feet—the channel was bounded on the west side by Sheds 25, 26, 27 and 28, and on the east side by an imaginary line that was marked by Buoy 199M and a light on the Jacques Cartier Bridge. From the end of McKay Jetty to the bridge, where the channel became quite narrow, a very rapid current—

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known as St. Mary’s Rapids—developed. On the north side of Jacques Cartier Bridge for some 1,300 feet, bounded by Shed 29 and other installations on the west side, and marked by a light on the bridge and Buoy 195M on the east side, the channel continued at the same width as it was on the St. Mary’s Rapids side. From Buoy 195M, as it proceeded in a northerly direction, the channel got steadily wider almost to the entrance to the Seaway which was approximately 5,000 feet below Jacques Cartier Bridge. The west side of this part of the channel was bounded by sheds and similar installations, and on the east side the boundary was marked by Buoy 195M at the one end and, at the other end, by Buoy 193M, which also marked the point where the boundary of the Ship Channel met the Seaway and, in addition to being called “Buoy 193M”, was known also as the “Seaway Buoy”, or the “Fairway Buoy”. Halfway between Buoy 193M and Buoy 195M, which were each equipped with flashing lights, was a buoy—Buoy 193½M—which had no light and was variously described as a “stake” or “black” buoy.

All vessels in the Montreal Harbour are subject to the provisions of the National Harbours Board By-Law A-1 as amended by P.C. 1961/ 1449 of October 5, 1961.

In my view, the overriding section of that By-Law is s. 31 which reads as follows:

Every vessel in the Harbour of Montreal shall be under the control and subject to the orders of the Board in respect of its movement and location.

The provisions of s. 42 are, however, particularly relevant to the circumstances of the present case. That section reads:

42. (1) This section applies to the harbour of Montreal.

(2) No vessel shall enter the harbour from the Lachine Canal or the St. Lawrence Seaway except at the time permitted by the Board.

(3) Every vessel that is proceeding downstream in the St. Lawrence Ship Channel shall have the right of way over any vessel entering or leaving the St. Lawrence Seaway.

(4) No vessel shall move from any berth or anchorage in the harbour at any time without first having obtained permission from the Harbour Master within fifteen minutes of the actual time of moving.

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(5) Where any vessel is delayed in moving from a berth or anchorage after permission to move has been obtained, that vessel shall notify the Harbour Master immediately and permission to leave the berth or anchorage must again be obtained when the vessel is ready to proceed.

In the present case the Manchester Merchant obtained permission to leave Jacques Cartier Pier at about 2335 hours on the 2nd of December from J.P. Bourque, the Traffic Officer who was on duty at the Harbour Master’s office until midnight. In giving this permission Bourque at the same time told the Manchester Merchant to proceed with care as three vessels would be making their way up the harbour, Bayshell, which was already in the harbour, Donnacona, a larger freighter which was about to come out of the Seaway, and Lionel which was still in the Seaway Lock on her way down. At this time the Manchester Merchant was told to proceed with care as Donnacona was coming out of the Seaway and would wait below Jacques Cartier Bridge for her to pass. As the event turned out, the Manchester Merchant was delayed at her mooring and did not cast off her last tug until 0027. Until shortly before this the Donnacona remained stationary to the north of the Seaway entrance and during the whole period until shortly before her final departure, it appears that the Manchester Merchant was out of radio contact with the other ships and with the Harbour Master’s office. The first that was heard of her was a message which she passed to the Bayshell at 0015 saying that she had committed herself to leaving.

The point of collision between the two ships is not fixed with absolute accuracy, but I am satisfied that it took place in the St. Lawrence ship channel well to the east of mid-channel. I am confirmed in this view in the first place by the pleadings where the plaintiff (Lionel) describes the point of collision as:

In the Harbour of Montreal about ½ mile down stream from Jacques Cartier Bridge on the eastern limit of the channel

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and the defendants place it

In the Harbour of Montreal well to the east of mid-Channel in the vicinity of the position of Spar Buoy 193½M.

The position of the collision well to the east of mid-channel is also confirmed by the following finding of the learned trial judge:

At three minutes past midnight, the morning of December 3, 1963, the Lionel left St. Lambert Lock, went down the Seaway to the entrance to the Ship Channel, turned around Buoy 193M, entered the Ship Channel, and proceeded to some point near Buoy 193½M. At twenty-seven minutes past midnight, the same morning, the Manchester Merchant, having been assisted from her berth at Jacques Cartier Pier by two tugs and being in the Upper Harbour just off Jacques Cartier Pier, dropped her second tug and proceeded downriver through St. Mary’s Rapids, under Jacques Cartier Bridge and through the St. Lawrence Ship Channel below that bridge, until she reached the same point near Buoy 193½M. At that point, the two vessels came into collision at approximately thirty-eight minutes past midnight.

The learned trial judge proceeded to consider at very considerable length the evidence given by the pilots and masters of both the Lionel and the Manchester Merchant and having already stated that he had not gained any impression as to the truthfulness of these witnesses based on their behaviour in the witness box, he went on to make certain findings against the Lionel, the most outstanding of which reads as follows:

Finally, the Lionel was at fault, even if she would otherwise have been justified in leaving the Seaway without knowing that the Manchester Merchant was so situated as to make it safe to do so, in committing herself to a course on the eastern side of the St. Lawrence Ship Channel without having made a prior arrangement with the downbound vessel, the Manchester Merchant that she do so. …In this case it seems clear that, although the Lionel was, in the state of its knowledge when it emerged from the Seaway, taking a chance in doing so, if it had followed the ordinary rule of the road and crossed over to the west side of the channel to proceed up to its berth, it would have been able to do so with perfect safety. I find, therefore, that the Lionel was

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guilty of a breach of the applicable regulations and of good seamanship in going to the east side of the channel instead of the west side and that that was a proximate cause of the accident.

The italics are my own.

The learned trial judge, after a very elaborate reconstruction of the evidence concerning the movements of the two vessels in the St. Lawrence channel, proceeded to find that the Lionel was not at all relevant times on the eastern edge of the channel. Notwithstanding this last finding, I am satisfied that after rounding Buoy 193M the Lionel remained on the far eastern side of the channel following the Donnacona which passed the Manchester Merchant starboard to starboard. The real issue in this case is whether under the circumstances the Manchester Merchant, which had a wide reach of the river on its port side, was justified in coming across the mid-channel line and occupying waters through which it knew, or ought to have known, the Lionel was passing or was about to pass.

The learned trial judge obviously thought that the Manchester Merchant was bound to the strict observation of Rule 25(a) of the International Regulations for Preventing Collisions at Sea which is applicable in Canada by virtue of the Canada Shipping Act, R.S.C. 1952, c. 29, and which reads as follows:

In a narrow channel every power-driven vessel when proceeding along the course of the channel shall, when it is safe and practicable, keep to that side of the fairway or mid‑channel which lies on the starboard side of such vessel.

It is obvious that the pilot and the master of the Manchester Merchant had decided to force a passing in accordance with this Rule irrespective of the circumstances and they appear’ to have paid scant heed to the provisions of Rules 27, 29 and 30 of the Regulations. Rule 27 reads:

In obeying and construing these Rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances, including

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the limitations of the craft involved, which may render a departure from the above Rules necessary in order to avoid immediate danger.

Rule 29 reads:

Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

The italics are my own.

Rule 30 reads:

Nothing in these Rules shall interfere with the operation of a special rule duly made by local authority relative to the navigation of any harbour, river, lake, or inland water, including a reserved seaplane area.

The effect of Rule 27 is, in my view, accurately described in Marsden’s The Law of Collissions at Sea, 11th ed., at para. 867, where it is said:

Rule 27, in fact, merely states the general principle, which, it is submitted, would prevail in the absence of such a rule. The principle was thus stated by Best C.J.: (in Handaysyde v. Wilson (1828)3 Car. & P. 528)

Although there may be a rule of the sea, yet a man who has the management of one ship is not to be allowed to follow that rule to the injury of a vessel of another, where he could avoid the injury by pursuing a different course.

The “special circumstances” which in my opinion governed this case and which were apparently not appreciated by the Manchester Merchant were:

(i) that the two vessels were operating in the Harbour of Montreal subject to the National Harbours Board Act operating Regulations which, in my opinion, constitute special rules “duly made by local authority relative to the navigation of” Montreal “harbour…”;

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(ii) that the pilot and master of the Manchester Merchant were aware just after they had left their tugs to get underway down the harbour from Jetty No. 2 that the Lionel would be at the Seaway entrance in five minutes where it would make a turn hard to port and follow the Donnacona upbound.

In commenting on the effect given to the “Narrow Channel Rule” in the Harbour of Montreal, the learned trial judge observes:

An important fact in connection with navigation in Montreal Harbour, in so far as the present matter is concerned, is that, by reason of the nature of the current in St. Mary’s Rapids above Jacques Cartier Bridge and in the Ship Channel from Jacques Cartier Bridge to Buoy 195M, a downbound vessel would have had such difficulty in negotiating a meeting with an upbound vessel, if each vessel followed the ordinary rule of keeping to that side of the channel that lies on the starboard side of the vessel, that it was a universally accepted rule that upbound vessels in this area kept to the east side of the channel and left the balance of the channel free for the vessel that was riding the current downstream. While the evidence is that such was the invariable practice in the Ship Channel in St. Mary’s Rapids above Jacques Cartier Bridge, and from that bridge down to Buoy 195M, that practice did not apply from Buoy 195M to Buoy 193M. With reference to that part of the Ship Channel, there is a substantial body of evidence that it was not uncommon for vessels coming out of the Seaway to meet downbound vessels starboard to starboard, but all of this evidence, including the evidence of the pilot on the Lionel, leads me to the conclusion that this was always done at the choice of the down‑bound vessel and after prior arrangement with that vessel.

The fact that there is some evidence from which the learned trial judge appears to have inferred that whenever there was a starboard to starboard passing between Buoy 195M and 193M it was “always done at the choice of the down-bound vessel and after prior arrangement with that vessel” seems to me to lose its force when considering a vessel such as the Lionel which was proceeding into and up the channel under orders from the representative of the Nationals Harbours Board “to follow the Donnacona up-

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bound”. In my opinion this latter order was tantamount to an order to proceed up the eastern side of the channel, which was the course that the Donnacona followed and that the Harbours Board representative expected it to follow.

At the time and place in question all vessels concerned were operating subject to the control and orders of the Harbours Board as required by s. 31 of By-law A-l to which I have hereinbefore referred.

Traffic Officer Bourque, who was on duty until midnight and who gave the first order to the Lionel “to follow the Donnacona…” was asked:

Q. But you had in mind that the Donnacona would be on her way and you were referring to the south side, were you?

A. Well, yes.

Q. Or what has been referred to in this case as the east side?

A. The east side, yes…

Q. And do you have in mind where the Lionel was likely to go, what side of the river?

A. Yes, I would think that the Lionel, myself, having come out, would go to the south side—having come out in the river. I do not say the ship should have done that but you asked me for my own idea.

It is, I think, significant that Mr. Bourque’s tour of duty ended at midnight and that almost his last message on the night in question was a «call from the Lionel to tell him that this vessel had been released from the Seaway Lock and was on her way down the Seaway. In his direct examination Mr. Bourque stated he advised the Lionel to proceed slowly to give a chance to the Manchester Merchant to clear the Seaway entrance and his message continued:

The ship will be passing the Clock Tower at any minute now. The Donnacona is waiting below the Bridge for the Manchester Merchant so follow the Donnacona as it is going to Berth 7 West.

Bourque’s evidence must be viewed in light of the fact that from the time he gave the Man-

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Chester Merchant permission to leave her berth at 2340 until he went off duty he was under the impression that that vessel had left her berth and was on her way down the river, whereas she did not leave until after he had gone off duty.

At 12 o’clock Mr. Dénommé relieved Mr. Bourque in the Harbour Master’s office and remained there during all the times relevant to this accident. Mr. Dénommé’s instructions to the Lionel are the only ones which were given after it was known that the Manchester Merchant had been held up. He said of these instructions:

…I called the ship Lionel and let her know about the Manchester Merchant coming down from the Upper Harbour, to keep an eye and watch for her and to follow the Donnacona, behind the Donnacona, to follow the Donnacona upbound.

In answer to questions by the Court, Mr. Bourque explained that his use of the word “FOLLOW”, when he told the Lionel to “follow the Donnacona…”, was intended to convey nothing more than that the Lionel was to let the Donnacona proceed before she started up the river and he agreed with a statement made by the learned trial judge that he did not have in mind that he was telling the Lionel to follow whatever course the Donnacona followed. Even if this qualification of his evidence were accepted, it does not apply, to the evidence of Mr. Dénommé who made no such equivocation, and who was the only traffic officer whose orders were given after the Manchester Merchant left her berth.

In assigning negligence to the Lionel before she made her turn at the Seaway Buoy, the learned judge and his assessors found that from 0015 hours the Lionel should have known that the Manchester Merchant was in the ship channel

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and should also have known, or could readily have ascertained, that that vessel would be coming down from Jacques Cartier Bridge in the period from 0035 to 0040 hours. The learned judge reaches this conclusion because there was a message from the Harbour Master’s office to the Bayshell at 0015 hours saying that the Man-Chester Merchant had committed herself to leaving and he also appears to find that the Lionel should have called the Harbour Master’s office for information. This finding is made against a background of the Manchester Merchant having been completely out of radio contact with all ships and with the Harbour Master’s office for nearly an hour and having given no indication to any of the ships concerned, except the Bay-shell that she was leaving.

As I have said, I consider that it is also highly significant that both the pilot and the master of the Manchester Merchant were aware just after they had left their tugs to get underway down the harbour from Jetty No. 2 that the Lionel was then passing Jacques Cartier Bridge in the Seaway and would be at the Seaway Buoy in five minutes where it would make a turn hard to port to follow the Donnacona upbound. The evidence of the Manchester Merchant’s pilot in this regard reads as follows:

Q. And did you know where the Lionel was calling from at that time?

A. Well, he said he was passing Jacques Cartier Bridge.

Q. And would that be Jacques Cartier Bridge downbound?

A. That is right, in the Seaway.

Q. Right; so you are telling us now that, when you were at Jetty No. 2, the Lionel was in the vicinity of the Jacques Cartier Bridge?

A. So I heard; so I heard the fellow say.

Q. That is what you heard?

A. Yes.

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Q. And what was that message again that you heard, pilot?

A. Well, the Lionel called the Harbour Master; and the Harbour Master told him to go on Channel 12, to switch over to Channel 12. And I switched over to Channel 12 and the Lionel requested permission or was reporting himself as a matter of fact to be passing Jacques Cartier Bridge.

Q. Yes.

A. And he would be at the Seaway buoy in five (5) minutes, turning around up to 29.

Q. Yes? And I think you used the expression this morning “on the port wheel”?

A. Yes, on the port wheel, that is right?

Q. And is it common practice for pilots, either Harbour Pilots or River Pilots, to say whether they are going to go on the port wheel or the starboard wheel or anything else?

A. Oh, yes, very common.

Q. Why should they do that?

A. (Shrugs his shoulders).

Q. What did it mean to you when he stated that?

A. Turn hard to port.

Q. Turn hard to port on the buoy?

A. Yes.

Even if it be assumed that the Lionel knew that the Manchester Merchant was on its way down the river, I do not, with all respect, agree with the learned trial judge and his assessors that it follows that the Lionel should have held up at the Seaway entrance until the Manchester Merchant had passed. It is true that s. 42(3) of the relevant National Harbours Board By-law provides that:

Every vessel which is proceeding downstream in the St. Lawrence Ship Channel shall have the right of way over any vessel entering or leaving the St. Lawrence Seaway.

This section, however, does not, in my opinion, take precedence over the controlling effect of orders issued by the representative of the National Harbours Board, and in any event it

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does not appear to me to be accurate to describe the Lionel as a “vessel entering or leaving the St. Lawrence Seaway”. Some time before the collision the Lionel had left the Seaway, rounded Buoy 193M and travelled approximately 2,100 feet on the eastern side of the channel.

For these reasons I am of opinion that the Lionel was under no duty to hold up in the Seaway until she had ascertained where the Manchester Merchant was and had satisfied herself that it was safe to proceed out of the Seaway. The Lionel had orders to follow the Donnacona and was making a course up the eastern side of the ship channel. She was entitled to assume that these emanated from a source which was familiar with the traffic situation in the Channel and what is more she was bound to follow these orders. On the other hand, the Manchester Merchant was well aware that the Lionel was coming around “hard to port” at the Seaway Buoy and she should have known that the smaller vessel was under orders to follow the Donnacona.

I am satisfied that the Lionel was on the far eastern side of the ship channel and that as the Manchester Merchant approached that vessel had almost the whole reach of the river clear on her port side. Instead of taking advantage of the safe water available to her, she elected to go to the eastward which took her into the very waters in which she must have known that the Lionel was navigating. The Manchester Merchant in my opinion failed to pay regard to the special circumstances which rendered a departure from the Narrow Channel Rule “necessary in order to avoid immediate danger”. (See Rule 27). This in my opinion was the negligence which caused the collision and I do not consider it necessary to examine the details of the period immediately preceding the collision in order to determine where the fault lies. Liability for this collision depends, in my opinion, upon the answer to the same question which was posed by Willmer J.

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in The Billings Victory[2], i.e., “Which of the two vessels created the position of difficulty?” In my opinion the difficulty in this case was solely occasioned by the Manchester Merchant moving to the eastern side of the river.

For these reasons I am of opinion that the Manchester Merchant was solely to blame for the collision and for the consequent loss of the motor vessel Lionel I would accordingly allow this appeal, set aside the judgment of the Exchequer Court of Canada and maintain the appellant’s action for damages and direct that, failing agreement between the parties as to the amount of such damages, there shall be a reference to the proper officer of the Exchequer Court to assess the same.

The appellants will have their costs in this Court and in the Exchequer Court of Canada and in respect of any reference taken in accordance herewith.

Appeal allowed with costs.

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

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