Date: 20060410
Docket: T-2207-03
Citation: 2006 FC 464
Ottawa, Ontario, April 10, 2006
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
MERCURY LAUNCH & TUG LTD.
Plaintiff
and
TEXADA QUARRYING LTD.
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] On December 15, 2002, the barge "MLT HWY" (the Barge), broke her moorings, grounded on nearby rocks and was heavily damaged.
[2] The weather was very bad that day. One witness described it as the worst he had seen in 29 years. Among other things, the plaintiff says that the berth was unsafe but it is not clear if negligence on the part of the defendant caused or contributed to the accident. As often occurs in such cases, the determination of who bears the burden of proof will also determine the final outcome of the action.
[3] This explains to some extent why the plaintiff alleged that the defendant was the bailee of the Barge.
[4] But before getting any further into the issues to be determined, it is important to note that the parties agreed that the trial would only deal with liability issues and that the damages, if necessary, would be later determined by reference.
[5] The parties also filed an extensive statement of agreed facts. Most of the documentary evidence was filed by consent. Each side presented five factual witnesses and two expert witnesses.
CONTEXT
[6] The facts to which I will refer in this brief summary are not contested.
[7] Texada Quarrying Ltd. (Texada) is a crushed stone quarry operation located on Texada Island, one hundred kilometres northwest of Vancouver. A company by the name of Holnam West Materials Ltd. (Holnam) and its predecessor, Ideal Cement Company (Ideal Cement), had been actively quarrying on this property since 1957. Aggregates from the quarry are barged to the B.C. lower mainland and to the west coast of the United States.
[8] In 1998, Holnam sold the quarry and its equipment to Lafarge Canada Inc. who then formed the operating company called Texada.
[9] Prior to this sale and more particularly on April 1, 1994, Holnam entered into a "Limestone Agreement" with Chemical Lime Company of Canada Inc. (CLC) which deals with the purchase of limestone by CLC for its facility in Langley, British Columbia. The agreed price set in this contract is F.O.B. barge. It includes the loading into the barge designated by CLC (clause 4c).
[10] For the present purpose, the only other relevant provision of this agreement is the following:
10. The limestone shall be loaded by Holnam on barges to be furnished by CLC at Holnam's loading points at Texada Island. Such barges shall come equipped with suitable side boards and wear deck, and shall be in seaworthy condition properly moored at Holnam's loading points.
Holnam shall load such barges at an average rate of 750 tons per hour and loading shall be continuous. Scheduling shall be arranged to conform as closely as possible to the normal hours of operation on Texada Island. No loading shall be scheduled for Saturdays, Sundays or Holidays unless mutually agreed upon by the parties hereto.
Holnam agrees to cooperate with CLC or its agent in the prompt loading and dispatching of barges. Holnam's responsibility for loaded barges shall cease when CLC or its agent has been notified that loading has been completed and Bills of Lading have been executed by both parties or their agents. Risk of loss, liability and title to the limestone shall thereupon pass from Holnam to CLC.
Freight, duty and other charges shall be CLC's responsibility. CLC shall request that the barge operator name Holnam as Additional Assured on marine policies issued for Hull, Protection and Indemnity on said barges.
CLC shall indemnify and hold harmless Holnam from damages or injuries to Holnam's facilities, invitees, agents and personnel caused by CLC or its agents.
Holnam shall indemnify and hold harmless CLC from damages or injuries to CLC's facilities, invitees, agents and personnel caused by Holnam.
(My emphasis)
[11] Prior to the grounding on December 15, 2002, Texada had become party to this agreement.
[12] Texada also operates a barge loading facility which is located on the west side of its quarry site at Beale Cove and which was built in 1973 for Ideal Cement. The facility consists of three concrete dolphins joined by catwalks. A barge loader consisting of a conveyor belt supported by steel framework is mounted on wheels, on rails and on a quadrant. The loader can be swung east and west along the rails and outboard and inboard to allow the loading of a barge without having to move it.
[13] This barge loading facility is depicted in an engineering drawing entitled "Barge Berth Arrangement" which bears the following notation in the bottom right corner:
Berth design criteria :
1) design barge
a) barge loaded 12,300 tons (short)----- 0.5 ft. per sec.
b) barge empty 2, 400 tons (short) ----- 1.0 ft. per sec.
2) wind
barges to be removed from the berth when the wind gusts to 45 M.P.H.
3) waves
barges to be removed from the berth when:
a) beams seas, waves reach a height of 4 feet.
b) head seas, waves reach a height of 6 feet.
[14] On the fateful day, Texada personnel had no specific knowledge of this notation or of the berth design criteria even if the drawing was in the possession of Mr. Diggon, the manager of the quarrying operations.
[15] The Barge is 76.08 meters long (± 260 feet), her breadth is 21.94 meters (± 72 feet) and her depth 4.88 meters (16 feet). Her carrying capacity is 6,000 metric tonnes. The Barge is owned by Mercury Launch & Tug Ltd. (Mercury) which also owns the Ocean Monarch, a tug with 1300 horsepower, with twin screw and Kort nozzles.
[16] Because it took advantage of the regulations in force at the time it was built, the tug has a gross registered tonnage of only 9.81 tons and is what will be later described as an "under tonnage tug". It is thus not subject to the various regulations including those requiring that all vessels over 10 gross registered tons be manned by a certificated master.
[17] At all relevant times, the "Ocean Monarch" was used in a continuous operation and was manned by a three man crew consisting of a master (Alan Milcak), a mate (Gerrit Keizer) and a deckhand (Paul Williams).
[18] On July 18, 2001, CLC entered into an agreement with Mercury to transport its limestone rocks from the barge loading facility at Texada to CLC's facility at Langley on the Fraser River.
[19] The parties all agreed that the only relevant portions of this agreement are:
4. c. Barges capable of transporting a minimum of 4000 MT of limestone, and equipped with side panels, concrete or asphalt deck, and ropes for securing the barge.
5. The Tower shall have the care, custody and control of the barge at all time, including during the loading operation, but excluding the time while at the Customer's facility in Langley from the time the barge is secured by the Tower's tug crew, until such time as the Tower's tug crew causes a line to be placed on the barge with the intention of taking the barge in tow.
(My emphasis)
[20] Despite clause 10 of their agreement with Texada, CLC never actually requested that Mercury name Texada as an additional assured under the marine insurance policy covering the Barge.
[21] On December 15, 2002, pursuant to Mercury's agreement with CLC, the Ocean Monarch brought the Barge alongside the barge loading facility at Beale Cove to be loaded with her bow to the east dolphin and her stern to the west dolphin. The Barge was initially secured at approximately 06:30 by the crew of the Ocean Monarch with 5 polylines and 2 steel wires provided by Texada for that purpose.
[22] Prior to the Ocean Monarch's arrival, that is at 04:00 on December 15, 2002, the Pacific Weather Center for Environment Canada issued the following forecast for the strait of Georgia where Texada Island (Beale Cove) is located:
STRAIT OF GEORGIA.
STORM WARNING CONTINUED.
WINDS SOUTHEASTERLY 15 TO 25 KNOTS RISING TO 25 TO GALES 35 LATER THIS MORNING AND TO GALES 40 TO STORM FORCE 50 THIS AFTERNOON. WINDS SHIFTING TO SOUTHERLY 25 TO GALES 35 OVERNIGHT. PERIODS OF RAIN. OUTLOOK. WINDS BACKING TO LIGHT TO MODERATE EAST TO SOUTHEAST.
[23] After securing the Barge, the Ocean Monarch and her crew went to anchor at a buoy located approximately three quarters of a mile away from the barge loading facility. Then, the master and the mate went to sleep leaving the deckhand on watch.
[24] At 10:30, the marine forecast issued earlier was again confirmed and reissued. Updated forecasts were issued at 16:00 and 20:30.
[25] Actual weather reports were also broadcasted on a continuous basis from various Environment Canada weather stations in the region. The most relevant were the following ones issued at Chrome Island, Sister's Island and Ballenas Island:
Chrome Island Sunday, December 15, 2002
06:40 18 knots from the southeast 3 foot moderate to low easterly swell
12:39 30 knots from the southeast with a 5 foot moderate to low easterly swell
15:40 35 knots from the southeast with a 6 foot sea - moderate easterly swell
Sister's Island, Sunday, December 15, 2002
06:00 22 knots from 120 ° last peak at 05:24 29 knots from 120 °
09:00 22 knots from 120 ° last peak at 08:11 27 knots from 120 °
10:00 33 knots from 120 ° gusting to 39 knots last peak at 09:54 39 knots from 130 °
12:00 37 knots from 120 ° gusting to 42 knots last peak at 11:56 42 knots from 120 °
13:00 37 knots from 120 ° gusting to 43 knots last peak at 12:31 43 knots from 120 °
14:00 38 knots from 120 ° gusting to 47 knots last peak at 13:55 47 knots from 120 °
15:00 45 knots from 110 ° gusting to 58 knots last peak at 14:53 58 knots from 110 °
16:00 48 knots from 120 ° gusting to 55 knots last peak at 15:16 58 knots from 120 °
Ballenas Island Sunday, December 15, 2002
06:00 12 knots from 120 ° last peak at 05:03 19 knots from 130 °
09:00 23 knots from 140 ° gusting to 28 knots last peak at 08:56 28 knots from 140 °
10:00 24 knots from 140 ° last peak at 09:34 33 knots from 130 °
12:00 27 knots from 130 ° gusting to 32 knots last peak at 11:42 35 knots from 140 °
13:00 30 knots from 130 ° gusting to 35 knots last peak at 12:48 37 knots from 120 °
14:00 32 knots from 130 ° gusting to 41 knots last peak at 13:50 41 knots from 130 °
15:00 38 knots from 120 ° gusting to 45 knots last peak at 14:55 45 knots from 120 °
16:00 40 knots from 140 ° gusting to 48 knots last peak at 15:55 48 knots from 130 °
[26] On his arrival at the loading facility around 07:15, Mr. Staaf, the loader operator employed by Texada, adjusted the 2½" spring line to give it approximately the same tension as the bow spring. Loading of the limestone actually commenced between 07:30 and 08:00 and continued until approximately 14:00 when the conveyor system was stopped due to a problem with a bearing. The lines were again adjusted in the afternoon as the tide changed and the draft of the Barge increased during loading.
[27] After the conveyor belt was shut down, Mr. Staaf called the Ocean Monarch on the VHF
(Channel 6) to advise that there would be a couple of hours of downtime for the repairs and a
couple of hours of loading still to be done after the repairs. There is some dispute as to what else was said during the conversation. This will be discussed later in these reasons. Thereafter, Mr. Staaf and Mr. Schroeder, a wheel loader operator employed by Texada, secured two additional polylines to the Barge.
[28] At approximately 17:30 after the bow line broke, the tug was again contacted. It proceeded to the Barge but the crew could not get onboard the Barge because of the high sea and the winds. The mate and deckhand were dropped further down on shore and then proceeded to the loading facility to help put additional lines belonging to Texada on the Barge. The lines onboard the Ocean Monarch were not used. The crew then remained at the facility while two Texada employees went looking for additional lines at the warehouse.
[29] Between 20:00 and 20:10, all lines to the Barge broke (except the stern line) and as mentioned, the Barge drifted on the rocks and was heavily damaged.
[30] It is agreed that the damage to the port quarter resulted from contact with the west dolphin and that the damage to the port board side of the Barge was the result of the grounding.
ISSUES
[31] At the hearing, plaintiff summarized the issues to be determined as follows:
a) is Texada a bailee of the Barge and if so, has it established that the Barge was lost without its fault (reverse burden of proof)?
b) did Texada owe a duty of care to Mercury as alleged at paragraph 9 of the Statement of claim and if so, has Mercury established a breach of such duty?
c) more particularly, has Texada breached its duty to provide a safe berth to which the Barge could be secured?
[32] Texada obviously denies that a bailment was created when the Ocean Monarch brought the Barge to Texada's loading facility.
[33] It also submits that the plaintiff has failed to establish that its berth was unsafe for any reason and that therefore, it owed no duty to warn Mercury.
[34] It also says that in any event, it has established that the incident occurred as a result of the negligence of the crew of the Ocean Monarch.
[35] In that respect, Texada argues that Captain Milcak's negligent acts include the following:
(a) allowing himself and his crew to become tired to the point where it was necessary for him and the mate to rest in the morning and possibly in the afternoon of December 15, 2005;
(b) failing to properly advise the deckhand concerning keeping a proper weather watch and communicating with the terminal;
(c) deciding to commit the Barge for a ten hour load despite the five hour weather window disclosed in the forecast issued by Environment Canada;
(d) failing to monitor or appreciate the weather that was developing and was readily apparent in the local weather forecasts, particularly the weather reports from the Sisters Island which was nearby to the Texada Facility;
(e) failing to gain the information necessary from the terminal in order to make appropriate decisions as to when the Barge should be removed;
(f) failing to properly assess the wind and sea states in the area of the can buoy which was knowingly in a partially protected situation or, alternatively, ignoring same;
(g) considering the extraordinary weather forecasts, failing to take some action to assess the condition of the Barge at the barge loading facility.
ANALYSIS
[36] Although it argues that as a bailee, Texada has the burden of establishing that the damage did not result from negligence or lack of care on its part, Mercury lists at paragraph 8 of the Statement of claim a number of specific breaches allegedly committed by Texada as bailee. The same acts of negligence are listed at paragraph 9 of the Statement of claim as breaches of the general duty of care of Texada.
[37] They are:
(a) failing to take care of the Barge while in its possession;
(b) failing to provide a safe berth;
(c) failing to use proper lines to secure the Barge;
(d) failing to properly design the loading berth so that the Barge could remain there during inclement weather;
(e) failing to provide proper fendering system to protect the Barge while secured to the loading berth;
(f) failing to properly monitor weather and sea conditions at the berth, and;
(g) failing to warn it of a developing hazardous condition at the berth in sufficient time or at all.
[38] For reasons that I will explain when reviewing the evidence with respect to the above mentioned breaches, I am not satisfied that Mercury has succeeded in establishing by preponderance of proof any actionable negligence of Texada. On the other hand, I find that in the particular circumstances of the case and considering the information available to him, the master of the Ocean Monarch should have inquired about the actual conditions (winds and waves) at the berth and should have known that he had to take the Barge out of her berth well before 17:30 when the Barge suffered damages on the portside. This means that it is indeed necessary to look at Mercury's allegations with respect to bailment and the reverse burden of proof, which in its opinion falls on Texada, to determine if Texada should also be held liable for the accident or for part of the damages.
A) Bailment
[39] The parties are agreed that the content of the duty of Texada as a dock owner would not be materially different in this case whether one qualifies the relationship between the two parties as a licence or as a bailment. The Court understands that the only advantage of determining that this relationship is one of bailment is the reverse burden of proof.
[40] The Court agrees with Mercury that the lack of contractual relationship between the parties and the fact that no consideration was directly paid by Mercury to Texada does not preclude a finding that Texada was a bailee of the Barge.
[41] Mercury made it clear that in this case nothing turns on the determination of whether Texada was a gratuitous bailee or a bailee for reward.
[42] The essence of bailment is possession, for without possession there can be no bailment.
[43] The determination of whether or not Texada had sufficient possession of the Barge to become its bailee is a question of fact. Mercury has the burden of proof in that respect.
[44] There is no comprehensive definition of the possession required to create a bailment. It normally involves proof of physical control necessary to maintain possession. It is often difficult to distinguish between various relationships such as bailments and licences especially when the licence is accompanied by additional undertakings from the licensor.
[45] The intention of the parties is relevant.
[46] It is also generally recognized that in order to come into possession of a chattel, it may be necessary to prove not only a delivery, or some permitted access thereto, but also that this has resulted in a high degree of physical control over the chattel in question to the exclusion of the bailor. There are obviously exceptions to this principle and the Court will discuss the decision in The "Ruapehu" (1925), 21 L1. L. Rep. 310 later on in these reasons.
[47] Because it had agreed to load the Barge for CLC, Texada accepted the Barge at its berth and assumed the responsibility of providing the lines to tie her up and of adjusting those lines during the loading to account for the changes in the draft (weight of cargo loaded) and the changes in the tide. They also agreed to trim the vessel in accordance with instructions received from Mercury when it started its contract with CLC.
[48] Mercury argues that there are sufficient elements of possession by the defendant for the Court to conclude that it was a bailee.
[49] At paragraphs 5 (a) to (s) of its written argument, Mercury listed the elements which in its view are relevant. Most of those relate to the fact that Texada provided the mooring lines, adjusted them throughout the loading and after it had stopped, approved the position of the Barge alongside its facility, determined after the Barge was moored in the morning by the crew of the Ocean Monarch and before the crew returned at the end of the afternoon, the number of lines that would be used to secure the Barge as well as the slack to be left on those lines, and kept the barge loader at the berth to keep an eye on the Barge after the loading operation had stopped. Mercury also says that Texada undertook pursuant to its contract with CLC the responsibility for the loaded Barge until loading was completed.
[50] Furthermore, Mercury relies on the fact that it had no representative onboard the Barge during the events and that it was known and agreed that during the loading, its tug would wait at the can buoy. Mercury argues that the presence of the tug at the can buoy did not have the effect of taking the Barge out of the physical possession of the defendant.
[51] Relying on the decision of the Supreme Court of Canada in Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108, Texada argues that it should be entitled to rely on clause 5 of the contract between Mercury and CLC which clearly states that the custody and control of the Barge remains with Mercury while the Barge is at Texada's facility.
[52] In Fraser River Pile & Dredge Ltd., the respondent was allowed to rely as a third party beneficiary on a waiver of subrogation clause incorporated in Fraser River Pile & Dredge Ltd.'s insurance policy and this even though it had no knowledge of the existence of that waiver until after the accident. The insurance policy expressly stated that the waiver applied to a charterer. The respondent was a charterer.
[53] The Court does not believe that this exception to the doctrine of privity of contract applies here. The situations in Fraser River Pile & Dredge Ltd., above, as well as in London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299, are clearly distinguishable. The Court is not satisfied that this clause was intended as a "stipulation pour autrui" or a stipulation in favour of Texada and that it creates a right that Texada can enforce in defence to this action
[54] The terms of the contract between Mercury and CLC are nonetheless relevant. There is no doubt that it is part of the general context that the Court can take into account in ascertaining the intention of Mercury with respect to the alleged bailment. It also explains why the Ocean Monarch remained on standby at all times during the loading of the Barge with her crew on duty while the same crew would have been off duty or the tug would have taken other employment during the 18 to 24 hours required for the discharge at Langley where the Barge was in the care, custody and control of CLC.
[55] Although he was not aware of the terms of this contract, the master of the Ocean Monarch knew very well that the crew was not off duty while the tug was at the can buoy and the Barge was being loaded.
[56] I find that he also knew that he had the responsibility of deciding whether or not the Barge should get in or out of the berth because of the weather conditions. This is the one issue on which the witnesses on both sides all agree. The master of the tug always has control as to when he gets his barge in and when it must get out, whether or not loading is completed.
[57] It is also clear that Texada had no other tug at its disposal. It was well understood by all that Texada could not move the Barge out of the berth without the Ocean Monarch and without her master's agreement.
[58] Obviously, the Court must also consider the nature of the chattel and the nature of the services performed by Texada which were very different from those of the ship repairer in the Ruapehu (cited above and further discussed below).
[59] As owner of the cargo until the loading was completed, Texada had a direct interest in the safety of the cargo and indirectly of the Barge.
[60] If the Barge had been a manned vessel, I would have no difficulty finding that there was no bailment to Texada. I would also have easily reached the same conclusion if the Ocean Monarch had remained at the berth with the dumb barge.
[61] Should the conclusion be different because the Ocean Monarch tied up at the can buoy?
[62] The Court understands that it was convenient for the tugs visiting the site to moor at this buoy because of the dust and the pieces of limestone that sometimes fall into the water during the loading. It also appears that when the sea is choppy, the tug could have some difficulty remaining near the barge without hitting it or hitting the loading facility. However, tugs are not required to use the buoy and the Court concludes from Captain Rose's opinion that the master of a tug can always choose to remain at the berth.
[63] If the buoy had been just further in front of the berth where the crew could keep an eye on the Barge at all times, I would also have concluded that Texada was not a bailee of the Barge.
[64] Should my conclusion differ because the buoy was 0.75 mile away and the crew did not have a clear view of the Barge from there?
[65] I do not believe so because Mercury expected its master to monitor the weather at the berth and to remain in control of the decision as to when the Barge should get out to avoid damage at the berth, whether or not Texada had completed the loading of the cargo.
[66] To paraphrase the words of Justice Mahoney in Northland Navigation Co. v. Finning Tractor & Equipment Co., [1976] F.C.J. No. 407 (T.D.) (QL), at paragraph 24, I find that " the keys to the Barge where not delivered to Texada". This is particularly important when one considers the location and characteristic of the berth.
[67] The overall situation here is somewhere between the situation before the Supreme Court of Canada in [1974] S.C.R. 920">Seaspan International Ltd. v. "Kostis Prois" (The), [1974] S.C.R. 920 and the situation before the English Court of Appeal in Ruapehu, above. In the Kostis, above, the Court found that there was no bailment relationship between the owners of a loaded barge and of the ship to which it was tied up and into which the cargo was to be loaded by the time charterer. In that case, the tug originally towing the barge had departed after putting a line on the ship. In the Ruapehu, above, the ship was in the dry dock of the ship repairer but the ship owner had left a few crew members onboard during the repairs. Lord Atkin concluded after much hesitation that despite the presence of the crew, the ship repairer was a bailee.
[68] Having considered all the elements raised by the parties, the Court finds that Texada did not have sufficient possession and control to create a bailment.
[69] Moreover, even if I had considered Texada's possession sufficient to create a bailment, I would have concluded that Texada still would not bear the burden of proving that the damage to the Barge occurred without its fault.
[70] In the Ruapehu, above, Lord Atkin said that even if there was a bailment in his case, it was not a "pure bailment" and the rule with respect to the reverse burden of proof could not be applied without some modification. In that case, this meant that the ship repairer had the burden of proving that the fire occurred without its fault only if the ship owner (bailor) first established that the fire originated during the working hours during which the ship repairer's crew had the required level of possession of the vessel.
[71] The same approach was adopted by President Thorson in The Queen v. Halifax Shipyards Ltd., [1956] 4 D.L.R. (2d) 566.
[72] In [1969] S.C.R. 481">Taylor Estate v. Wong Aviation Ltd., [1969] S.C.R. 481, the Supreme Court of Canada reviewed the case law with respect to the burden of proof applicable to a bailee. At page 6, it quoted Justice Laidlaw of the Ontario Court of Appeal, in McCreary v. Therrien Construction Co. Ltd. and Therrien, [1951] O.R. 735, and said:
Mr. Justice Laidlaw said:
Lord Justice Atkin explains the grounds upon which the principle is founded, and I quote his language as follows: "The bailee knows all about it; he must explain. He and his servants are the persons in charge; the bailor has no opportunity of knowing what happened. These considerations, coupled with the duty to take care, result in the obligation on the bailee to show that that duty has been discharged."
Although Mr. Justice Laidlaw and Lord Atkin referred to this as "a principle" it might, in my view, be more accurately described as a rule of evidence and as it is one which has the practical effect of placing on the bailee the heavy onus of proving a negative (i.e. that he was not negligent) it should, in my opinion, only be invoked in cases where all the considerations stipulated by Lord Atkin can be found to be present.
[73] Although the Court, in Taylor, above, was concerned with a situation where the pilot (bailee) had perished during the crash that destroyed the aircraft (bailed chattel), its findings were clearly meant to apply to other situations. The Court also said at page 7:
I do not think it desirable, except in the clearest of cases, for a question of liability to be determined on the sole ground that the strict rules of evidence regarding the shifting of the onus of proof have not been complied with. In my view, in cases such as this, what is to be looked to is the evidence as a whole [...].
[74] In the present case, the damage to the Barge occurred well after the loading operation had stopped and after the master failed to take the Barge out because of the incoming storm.
[75] With respect to the damage to the starboard side of the ship, this damage occurred after the Barge broke her moorings at 20:00 at which time the Barge was no longer under the sole possession and control of Texada given that the crew of the Ocean Monarch had been actively involved in securing it to the dock. Accordingly, not only is it not clear that the damage occurred during the period the chattel could have been bailed but it would be unfair to say that only the bailee knows what happened to the chattel.
[76] I will thus proceed to examine the evidence to determine if Mercury has established the specific breaches of duty listed in paragraph 9 of its Statement of claim (see paragraph 37 above). I will then look at the allegations of negligence made by Texada and will thereafter reach my decision having looked at the evidence as a whole, as to the cause or causes of the accident and the damage.
B) Negligence of Texada
[77] As I mentioned earlier, even if there is no bailment, Texada had clearly assumed in addition to its duty as owner of the berth, the duty of providing proper lines to tie the Barge up and of adjusting those lines during the loading.
[78] There is a dispute as to whether or not Texada had the duty or had assumed the duty of keeping the Barge properly tied up at the berth even when it was not being loaded. Having considered all the evidence in this respect, I find that Texada assumed the responsibility of adding lines as it became necessary throughout the day particularly after 14:00 until the crew of the Ocean Monarch arrived at the site.
[79] That is not to say that it guaranteed or represented to Mercury in anyway that the Barge could safely remained tied up at this very exposed location under any weather condition.
[80] In fact, Mr. Errington, the owner and manager of Mercury, Captain Rose and Captain Stirling, the two expert mariners who testified for Texada and Mercury respectively, all recognized that the use of this loading facility as well as any other loading facility on a lee shore necessarily involves getting out of the berth in certain weather conditions.
[81] Mr. Errington testified that he expected Captain Milcak to monitor the weather and assess whether the Barge should be taken away from the facility because of the weather. This witness had visited the Texada site on two occasions to familiarize himself with it and he said that he knew very well that it did not offer much protection and "was in a sense open to the Gulf as it were". He also acknowledged that when the Barge is tied up, he would expect a prudent mariner in his employ to have knowledge of how much wind and waves that barge could take before it could reasonably be expected to incur damage.
[82] As to the berth limitations noted on the general arrangement plan of the loading facility, the Court understands that these limitations were set out by the designer of the facility whose main concern is potential damage to the structure itself. Damage to the barges visiting the facility would be a secondary consideration and might not have been considered.
[83] Even Mr. Johansen , which the Court accepts as an expert in the design of loading facilities, could not easily calculate what the berth limitations would be with respect to a barge of 6,000 tons (loaded) as opposed to the barge of 12,300 tons (loaded) referred to in the drawing. However, the Court understands from the testimony of that expert (and it makes good sense) that for a smaller barge, one should expect that the force of the wind and the height of the waves would be higher than those described in the notation.
[84] Based on the evidence of Captain Stirling and Mr. Johansen, the Court finds that a prudent mariner would not have been able to convert the information in the notation and understand what it meant exactly for the Barge.
[85] In any event, Captain Milcak testified that his own comfort zone for taking the Barge out of this berth was conditions up to winds of 40 to 45 mph with 6 foot waves.
[86] During his cross-examination, Captain Milcak also acknowledged that in this case, his comfort zone happens to coincide with the forces shown on the berth limitations notation.
[87] Captain Stirling agreed during his cross-examination that the notation with respect to berth limitations is only pertinent or useful if those limits are lower than those set by the master of the tug.
[88] The Court agrees with Texada that in the circumstances, whether or not Texada should have formally advised the master of the berth limitations noted on the drawing and whether in any event he could understand what they meant for this Barge becomes irrelevant for he was already aware that when southeast winds of 50 knots were expected, the Barge had to get out before his comfort zone was exceeded.
[89] I also conclude from the evidence of Mr. Errington, Captain Milcak, Captain Stirling and Captain Rose that even if the Barge was properly tied up to the loading facility, it would still have to be removed from the berth in certain weather conditions and that this was not a hidden defect or hazard. It was not a limitation or hazard imposed by the fact that the loading facility was not properly maintained by Texada. It was a well know fact to all those concerned and was based on the characteristics of the berth and its location.
[90] It is also clear from the testimony of Captain Milcak that if he had known that there were 6 foot waves at the berth, he would have been concerned. In its written argument, Mercury wrote that "the master would have been concerned because there may be a problem with surging lines and the Barge slamming into the dolphins".
[91] The Court finds that the only reason Captain Milcak did not get the Barge out of the berth before he was called at 17:30, is that he assumed that the actual winds and waves at the loading facility were the same as those he was experiencing at the can buoy, which according to his evidence and the evidence of his mate and deckhand, were less severe than at the berth at least until 16:00.
[92] Captain Milcak admitted that he knew that winds well in excess of his comfort zone were forecasted by Environment Canada for that afternoon and that the actual reports from the relevant weather reporting stations confirmed that the weather was developing as forecasted. He also said that he did not assume that Texada kept a weather watch.
[93] The Court accepts the opinion of Captain Rose, which was not contradicted by Captain Stirling on this point, that a prudent mariner would have known that he could not leave the Barge at this berth in the conditions forecasted. The real dispute between these experts is whether a prudent mariner would have brought the Barge in for loading that morning and whether the tug should have remained with the Barge at the berth.
[94] The Court concludes that Captain Milcak did not rely on any representations made by Texada that the Barge would be safe at its berth during a storm of the magnitude that was forecasted and which effectively developed that day.
[95] The Court does not accept that Texada had a duty to design a loading berth where the barge could remain in inclement weather (see paragraph 37 c) above). Mr. Johansen indicated in his report that at an exposed location, consideration should be given to providing an artificial shelter such as a breakwater or a different mooring system. In his opinion, mooring points set back from the berth instead of on the dolphins would have been better.
[96] It makes little sense for Mercury to bring the Barge to a location that is obviously not protected by a breakwater and then claim that its Barge was damaged by a failure to provide such protection. The same applies to the allegation that the mooring system was inadequate because of where the mooring points are located. The location of the mooring points at Texada had to be obvious to Mercury.
[97] The proper securing or mooring of the Barge is an essential component of good seamanship. There is no doubt that Mercury was in a position to assess the appropriateness or the shortcomings, if any, of the system at Texada.
[98] Moreover, whether one looks at the common law duty of a dock owner in the context of a licence or a bailment, the safety of the berth has to be assessed "in respect of a vessel properly manned and equipped, and navigated and handled without negligence and in accordance with good seamanship".
[99] Although this principle was stated by the English Court of Appeal in the The Eastern City, [1957] 2 Lloyd's Rep. 153, in a different context (unsafe berth case between a ship owner and a charterer), it is in my view eminently applicable in all cases involving allegations of "unsafe berth or port". The duty of a berth or dock owner is not an absolute one, and Mercury cannot close its eyes to what was obvious to it and to any competent mariner.
[100] There is no doubt that Texada was used to loading barges of that size during the winter when one typically experiences strong winds and seas. There is evidence that Texada never had to stop loading because of the weather conditions except when a master decided to get his barge out because of concerns for the safety of the barge. Also, in all the years this facility has been in use, no barge had previously broken her moorings. Texada has been loading more than 400 barges per year since 1980. However, one must remember that this was the worst storm Mr. Staaf and Mr. Poulin had seen in all their years at Texada.
[101] Mr. Poulin, the other barge loader who worked at Texada, testified that he uses "a stormy-day mooring configuration". My understanding of such arrangement (six polylines (4 spring lines, one stern line, one bow line) and two steel wires) is that it is no different or no better than the arrangement used for the Barge after Mr. Staaf added two lines (one spring line and one additional bow line) at 14:00 with the help of Mr. Schroeder. The Barge was then secured by seven polylines and two steel wires. The Court is satisfied that this is exactly what Mr. Staaf meant when he said that they normally "double the lines" in bad weather.
[102] None of the witnesses testified that this particular configuration was unsatisfactory. In fact, Captain Milcak was satisfied with the mooring arrangements adopted by his crew when he arrived in the morning and this despite the weather forecast issued at 04:00 that morning and the fact that only five polylines were used with the two steel wires. There is no evidence that he knew that Texada would be adding more lines if the weather worsened.
[103] The mate of the Ocean Monarch was also satisfied that nothing more could be done after two bow lines where added by his deckhand to replace those that broke at 17:30.
[104] There is no evidence that any of the lines used by Texada were not in good condition. In fact, the evidence is that they were all new or fairly new and in good order.
[105] Mercury did not produce any expert evidence to establish that if two 3" ropes had been used instead of the 2½" ropes described by Mr. Staaf, those lines would not have broken during the storm. However, in oral argument, Mercury's counsel made the point that at least two 3" ropes were available on the catwalk that day and that Mr. Staaf failed to use them. At that stage, the Court noted that the evidence in respect to those 3" lines was not very clear.
[106] Since then, the Court has had the opportunity to examine the evidence including the extracts from the examination for discovery filed by Mercury (P-6) and the written statements of the various witnesses. In answer to question 229, it appears that Mr. Schroeder indicated that the orange spring line was a 3" line as was one of the bow lines.
[107] Finally, Mr. Poulin in his statement (tab 2 of P-12) indicates that there was a 3" line stretched on the catwalk. This may well be the spring line that Mr. Leclerc and Mr. Staaf were trying to put on before the arrival of Mr. Poulin at the dock. It is not clear if this is the line that Mr. Staaf passed on to Mr. Poulin and that he secured to the Barge between 18:00 and 18:30.
[108] Mr. Staaf said that he had never personally ordered 3" lines and that if there were any, they may have been older lines. It may well be that it was Mr. Poulin who ordered the 3" lines that Mr. Schroeder said he brought to the dock a short time before the incident.
[109] The parties did not clarify these issues during the testimony of Mr. Poulin and the Court is not willing to find on the basis of such evidentiary record that any 3" lines that might have been available were not used on the day of the accident. Moreover, the Court is not prepared to infer that if there were any 3" lines left on the dock, their use would have prevented the Barge from breaking away from the berth. One must consider that the 2½" polylines added after the crew of the tug arrived at the site broke within less than one hour and the storm continued well after that.
[110] Mercury also presented some evidence to establish that the mooring lines had too much slack and that, according to Captain Stirling, this puts additional strain on them.
[111] In his report, Captain Stirling's says that had the lines been kept relatively snug, the forces on them would have been lessened. This expert did not however go as far as to say that if there had been no or less slack in the lines, the Barge would or should have been able to remain at that berth during this storm.
[112] Considering Captain Stirling's testimony in cross-examination, it appears that this statement was made on the basis of certain assumptions. He also admitted that with the bad weather developing and the severe drop of the tide in the afternoon, one may not have been in a position to maintain the delicate balance required to achieve the level of tension he was referring to in his report.
[113] Also and more importantly, it is the deckhand of the Ocean Monarch with the help of the mate and Mr. Staaf that retied the two bow lines on the Barge after they snapped. Captain Stirling indicated that he would expect the mate and the deckhand to know how to tie these lines properly in the circumstances.
[114] Mr. Staaf testified that in his view, if the slack on the lines had been shortened, they might have snapped. His evidence was not directly challenged on this point.
[115] The court is not satisfied that Mercury has establish negligence on the part of Texada with respect to the adjustment of the lines and that such negligence, if any, contributed to the accident which occurred well after the crew of the Ocean Monarch arrived at the site and got involved in the securing of the Barge.
[116] Mercury also argued that the fendering system at the barge loading facility was inadequate (paragraph 9(e) of the Statement of claim). This would be the direct cause of the damage to the portside of the Barge.
[117] The evidence in that respect was provided by Mr. Johansen who indicated that originally, the loading facility was designed with overlapping tires protecting the dolphins. In this expert's opinion, this system was not very efficient and the rubber fenders now used by Texada are somewhat better even if the protection they offer is minimal.
[118] Mr. Diggon, the manager at Texada, testified that as a matter of fact, the overlapping tires did require too much maintenance and they kept getting out of place. This is why the decision was taken to replace them with the system of rubber fenders in 1988-1989.
[119] There is no evidence that the rubber fenders also had to be replaced often. No question was put to that witness during his cross-examination to confirm whether as suggested by Mr. Johansen, those fenders easily became displaced. There is no evidence that there were any problem with this system since 1989.
[120] It is true that on the day of the accident, one of the fenders became displaced when its chain broke and two slipped down their chains on the west dolphin. There is no evidence exactly when this happened. We know that the damage to the Barge only occurred after 17:30 when the winds and waves were well in excess of the comfort zone of a prudent mariner.
[121] Mr. Errington testified that he had seen the fendering system and found it satisfactory. Captain Milcak came to the same conclusion as did Captain Stirling. There was never any complaint by the crews of Mercury on previous voyages about those rubber fenders.
[122] Captain Rose testified that a mariner would know that in the conditions forecasted, the Barge would not be better protected at the berth than if it was hitting the island itself.
[123] The Court finds that it cannot conclude that this fender system was inadequate for the conditions in which it was intended to be used or that its limitations constituted a hidden danger that would be unknown to a competent mariner.
[124] Having considered the whole of the evidence including Mr. Johansen's evidence, the Court also concludes that the loading facility at Texada was typical of facilities constructed at the time it was built. It was low cost, relatively unsophisticated given the nature of the cargo it loaded, but practical. There is no evidence that it was improperly maintained and I am not satisfied that Mercury established that there were any hidden danger in its design and condition.
[125] In any event, by the time the Barge was damaged on the port board side, the Court finds that for reasons that will be explained later, it should not have been at the berth.
[126] The Court also finds that there is insufficient evidence to establish that Texada was negligent as alleged at paragraphs 9(c), (d) and (e) of the Statement of claim and that such negligence contributed or caused damage to the Barge.
[127] Finally as to the allegations in paragraphs 9(f) and (g), it is admitted that Mercury, as well as any competent mariner, knew that the berth provided no shelter from southeast winds. The comfort zone of a prudent mariner has been established to be less than the berth limitations set out in the drawing.
[128] As mentioned, the bad weather experienced on December 15 was not unexpected. It was properly forecasted and it developed over several hours in accordance with the forecasts both at the berth and at the local weather reporting stations in the area. Also, Captain Milcak testified that he did not have any discussion with Texada about the weather watch they were keeping and that he did not make any assumption in that respect.
[129] The fact that Captain Stirling did not testify that a prudent mariner would have expected the dock operator to actually keep him advised of the conditions developing at the berth is telling.
[130] Having considered the evidence provided by the various mariners who testified, the testimony of the three barge loaderswho all indicated that masters of tugs waiting at a buoy while their barges were being loaded regularly called them to inquire about the actual conditions at the berth, and the fact that in my view there was no reason for Texada to suspect that the master of the Ocean Monarch was not fully aware of those conditions,I find that Texada was not negligent in not volunteering information to the Ocean Monarch about the conditions at the berth in the absence of an inquiry by the master.
[131] There are two different types of cases where the concept of safety of a berth or a port becomes an issue. One is in the context of the contractual obligation of a charterer to nominate a safe port/berth. The other involves the general common law duty of dock owners vis-à-vis vessels coming to their facilities.
[132] The comments made in respect of the concept of a safe port in charterer/owner cases are often as relevant as those made in cases involving the common law duty of dock owners.
[133] For example, with respect to the safety of a port in relation to the weather, Lord Denning in the Islander Shipping Enterprises S.A. v. Empresa Maritima Del Estado S.A. (The "Khian Sea"), [1979] 1 Lloyds's Rep. 545, (a charterer/owner case) reviewed a number of relevant cases and said at page 557:
Those cases all show that it is not necessarily an unsafe port or berth because a vessel may have to leave it in the event and onset of bad weather. Mr. Justice Pearson made that clear in The Eastern City at p. 172. He said:
. . . I think theoretically it is possible for a port to be safe even though ships have to leave it in certain states of the weather, provided that all the operations of entering it, going out of it, re-entering it, loading and going out again, can be safely performed, and provided also that there is no appreciable danger of a ship being trapped by the sudden onset of bad weater. [- He said further on the same page -] The proposition involved in the decision of the present case is simply this: Be it supposed that a port can be safe for a ship even though the ship may have to leave it when certain weather conditions are imminent, nevertheless such a port is not safe for the ship unless there is reasonable assurance that the imminence of such weather conditions will be recognised in time and that the ship will be able to leave the port safely
Applying that statement of the law, it was accepted by both Counsel before us that the following requirements must be satisfied when a vessel has to leave its berth. First, there must be an adequate weather forecasting system. Secondly, there must be adequate availability of pilots and tugs. Thirdly, there must be adequate searoom to manoeuvre. And, fourthly, there must be an adequate system for ensuring that the searoom and room for manoeuvre is always available.
[134] A similar approach was taken by Justice Dubé in the A/S Ornen v. Duteous (The), [1987] 1 F.C. 270, where a charterer was sued for nominating the Duteous at a dangerous berth as well as the National Harbour Board because of their failure to properly warn those onboard the Duteous of the imminent peril arising from the ice conditions in the port.
[135] At paragraph 28, he said:
All berths in the port of Montréal are safe under normal conditions. But, in a debacle situation, vessels tied alongside the channel are obviously exposed to the awesome pressure of ice and water coming down the current. Vessels safely tucked away behind jutting piers are unexposed and secure.
[136] Then, at paragraph 77, he added:
It appears to me that the ice conditions and the ensuing debacle in the port of Montréal were not concealed dangers, as they could have been apprehended, as mentioned earlier, by any interested party who kept abreast of the events. Moreover, those conditions were not constituted by the harbour facilities but created by nature and obviously beyond the control of the Harbour Master.
[137] The Court found that the harbour master was not negligent in failing to warn the Duteous of the incoming debacle (paragraphs 65 to 81) and that the master of the ship was negligent for failing to properly acquaint himself with the perils and the requirement of winter navigation and for failing to keep abreast of available information about ice conditions prevailing in the port. He should have foreseen the possibility of the debacle.
[138] In my view, this is a clear application of the general principle set out in classic cases dealing with the common law duty of a port/berth owner such as "The Moorcock" (1889) 14 PD 64, The Grit (1924) P. 246. There is no doubt that this duty is not absolute. A dock owner must take reasonable care to make the berth safe or must give warning of any defect not known to the ship owner or of the fact that it has not taken steps necessary to satisfy itself that the berth is safe.
[139] In this particular case, the Court is satisfied that the location of the berth and its layout gave sufficient warning as to its limitation in respect particularly of gale/storm winds from the south east.
[140] If the onset of bad weather had been sudden or could not have been predicted in time for the Barge to get out, it might possibly have constituted a hidden danger. However, I do not need to determine that issue. The weather conditions that were experienced on December 15 were not sudden. The swell that the Ocean Monarch found at the berth when it arrived at 17:30 had clearly built-up over several hours and was influenced by the height of the tide. Like in the Duteous, above, these conditions could and should have been apprehended by Captain Milcak.
[141] The Court is satisfied that in this case, Mercury and its employees had all the necessary means to keep abreast of the conditions at the berth. There is no doubt that the conditions could have been recognized in time to get the Barge out of the berth well before it suffered any damage.
[142] The Court concludes that in the present circumstances, Mercury has also failed to establish the allegation found at 9(a) and (b) of its Statement of claim.
[143] Before turning to the analysis of Texada's allegation that Mercury and/or Captain Milcak were negligent, I will say a few words about the conversation between Mr. Staaf and Captain Milcak at 14:00 because the parties spent some time at the hearing discussing its content and its overall impact.
[144] Having considered the evidence, the Court does not believe that Mr. Staaf asked Captain Milcak to take the Barge away at 14:00. That witness only said during his testimony that he may have asked Captain Milcak and his two written statements are silent about such a request. However, the Court accepts that there was no discussion whatsoever about the weather at that time and finds that Captain Milcak did say to Mr. Staaf that "he was not going anywhere and would be at the can".
[145] As I mentioned it earlier, there was no reason for Mr. Staaf to believe that the weather at the can buoy was any different than at the berth. He believed that he saw the tug pitching in the water and he knew that Environment Canada had properly forecasted the very strong winds experienced that afternoon. In the circumstances, the Court accepts that Mr. Staaf interpreted Captain Milcak's comment as meaning that he would not take the Barge away because of the rough weather. This is certainly the message he communicated to his superior after that conversation.
C) Negligence of Mercury and/or Captain Milcak
[146] The Court shall now consider Texada's allegations of negligence on the part of Captain Milcak and/or Mercury.
[147] The Court does not accept that a prudent mariner would not have entered into the loading facility at 06:15 in light of the weather forecast issued at that time.
[148] Even Captain Rose, who originally expressed that view, agreed that his opinion is not so much that the Barge should not have been landed in the first instance, but that it should not have remained at the dock as long as it did and certainly not after the 12:39 report was issued from the Chrome Island station. The Court finds that indeed even if one accepts that the sea was calmer at the can buoy, the Barge should not have been at this berth after that report was issued. Also, there was no reason for him to remain at this berth instead of behind the Island (Captain Milcak's plan if the storm hit Beale Cove) after 14:00 when the loading stopped.
[149] Captain Milcak was fully aware that the forecast predicted winds of 50 knots that afternoon. According to the local reports, the winds had steadily increased. There is no evidence that anything could prevent the waves/swell from building up at the berth. In fact, there was no reason for him not to expect the sea to build up at that location which was so very exposed to southeast winds.
[150] The can buoy was protected by a 15 foot high rock jetty. Although it was not offering that much protection, Captain Stirling confirms in his report that this location is sheltered in southeast winds. The Court accepts this evidence. It explains, and corroborates to some extent, the testimonies of the crew as to the conditions they were experiencing at the can buoy up to 16:00.
[151] In the circumstances, Captain Milcak's assumption that his location (can buoy) was safer may be understandable given that it was somewhat sheltered. But, this does not explain his assumption that the condition at the berth would be the same as at the buoy. No basis for this further assumption was given. Mr. Keizer, his mate, certainly acknowledged during his cross-examination that he expected the conditions to be worse at the berth.
[152] There is some evidence that Captain Milcak tried to ascertain the actual situation at the berth by looking at the Barge with his binoculars but he was unable to learn anything because of the rain.
[153] In my view, this gesture confirms that he knew that he had to ascertain the situation there and could not simply assume that it was the same as at the can buoy. If the binoculars failed to provide him with the necessary information, he had other options. He could get there and ascertain the conditions in a few minutes or, he could simply call Texada.
[154] Considering that Captain Milcak recognized his duty to check the actual situation reported by the various weather stations, it is difficult to understand why he would not check the actual situation at the berth for this should be the most relevant station of all for him.
[155] The Court notes that Mercury's expert, Captain Stirling, was not asked to opine on whether a prudent mariner would have expected Texada to volunteer information as to the actual conditions at the berth or whether it was customary to receive such information at similar facilities. Certainly, when Mr. Errington of Mercury testified, he did not say that he expected such information from Texada.
[156] The Court is not prepared to infer that Captain Milcak's failure to properly assess the situation at the berth and his negligence in not taking out the Barge in time to prevent the damage was attributable to fatigue. As mentioned, the Court finds the testimony of Mr. Williams that Captain Milcak only took a two hour nap that morning credible. There is no evidence that he needed more rest. Thus, the fact that this tug had a three man crew instead of a four man crew is not relevant.
[157] Having considered the evidence as to the content of the courses and the exam that would have been required to enable Captain Milcak to obtain his master certificate, the Court is not satisfied that if Captain Milcak had completed those steps and obtained his certificate before December 15, 2002, he would have reacted differently to the situation.
[158] The Court finds that Mr. McAllister, the expert called to give an opinion on under tonnage tugs, was a competent and credible witness. However, his evidence is simply not relevant.
[159] There is insufficient evidence before the Court to reach any conclusion on Mercury's training methods and whether any shortcoming in that respect contributed to the negligence of Captain Milcak.
[160] None of the other allegations of fault have been sufficiently established.
[161] The Court concludes that this accident and the damage to the Barge were caused by the negligence of the master of the Ocean Monarch.
ORDER
THIS COURT ORDERS that:
The action is dismissed with costs.
"Johanne Gauthier"
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