Canada v. Delta Pride (The), 2003 FCT 11

Date: 20030113

Docket: T-86-96

Neutral citation: 2003 FCT 11

ACTION IN REM AGAINST THE VESSEL "DELTA PRIDE" AND IN PERSONAM

BETWEEN:

                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

                                                                                                                                                         Plaintiff,

                                                                              - and -

                             THE SHIP "DELTA PRIDE", HER OWNERS, SERVANTS

                             AND AGENTS AND ALL OTHERS INTERESTED IN THE

                          SHIP "DELTA PRIDE", TRISTAR SHIPPING LINES LTD.,

                                                                                                                                                   Defendants.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]              A floating breakwater at Reed Point Marina in Port Moody, British Columbia, had two encounters with deep sea vessels in a two month period. The second is the subject of this action.

The plaintiff owned the breakwater and claims damages for the cost of repairs to a portion of it.

[2]                 The plaintiff alleges that on January 10, 1995, as the ship "Delta Pride"departed its berth at Pacific Coast Terminals in Port Moody, it was operated in an improper or negligent manner that resulted in the breakage of anchor chains and the repositioning of a portion of the breakwater. The plaintiff also alleges that the "Delta Pride" or one of the assist tugs came in contact with the breakwater.

[3]                 The defendants deny liability and deny that the plaintiff has suffered any damage or, alternatively, has suffered, at best, only nominal damages.

The Breakwater

[4]                 The government developed a joint venture program known as the Marina Assistance Program whereby assistance was provided for the development and construction of privately operated marinas throughout Canada. In 1977, the breakwater at Reed Point Marina was built pursuant to that program. The breakwater was constructed, owned and was to be maintained by the plaintiff.

[5]                 The breakwater, a floating inverted pyramid, was comprised of four main sections (called "booms") A, B, C, and D. The booms consisted of creosoted pilings of log bundle structures held together by chains (the wrapping chains). There were five bundles for each of booms A, B, C and, D. The bundles were connected by chains (the inter-connecting chains) and the boom was anchored to the bottom. Each boom had anchors secured by chains (the anchor chains). The anchor (4½ tons of concrete) had an embedded chain eye. A shackle was connected to the chain eye and to an anchor chain that was in turn connected to the wrapping chain of each bundle. The anchor chains were adjusted to enable the breakwater to move with the tide and, at the same time, remain in alignment.

[6]                 There were two additional small wing bundles on each side of the main booms. The breakwater's purpose was to protect the marina from the wake and wash of vessels.

The Facts

[7]                 The parties have agreed to the facts that follow. The plaintiff owned the breakwater situated near Reed Point Marina (the marina) in Port Moody, British Columbia. The defendant, Tristar Shipping Lines Ltd. (Tristar), was at all material times the registered owner of a bulk carrier ship named "Delta Pride", having a length of 710 feet and a width of 105.64 feet. The vessel's particulars are attached as Schedule "A".

[8]             On January 10, 1995, at approximately 1:45 p.m., the "Delta Pride"was manoeuvring in the vicinity of Pacific Coast Terminals (PCT) in the Port of Vancouver with the assistance of the Seaspan tugs "Hawk" and "Falcon". The "Delta Pride" was properly manned at all material times and its movement was being directed by a British Columbia coast pilot, Captain Stephen Jack Macauley.

[9]                 The breakwater was built to protect property on the shore side and was located next to PCT, a deep-sea terminal used to load products on board deep-sea vessels such as the "Delta Pride". PCT was operating at the time the breakwater was constructed in or around 1977. The breakwater, the marina, and PCT are all located in the Port of Vancouver.

[10]         Up to and including 1995, the Port of Vancouver was administered by the Vancouver Port Corporation, a federal Crown corporation. The marina leased property from that entity. The Vancouver Port Corporation, through the harbour master's office, designated areas for the movement of deep-sea vessel traffic in the area of PCT and the breakwater.

[11]            The breakwater was the subject of a prior claim when it was struck on November 8, 1994, by the deep-sea vessel "Sea Joy II". A variety of suits were commenced in the Federal Court against the "Sea Joy II" and against Her Majesty the Queen for damage to boats in the marina. It was alleged in those suits that Her Majesty the Queen failed to properly maintain the breakwater.

Prior to the "Sea Joy II" and the "Delta Pride" incidents, the plaintiff had a policy of replacing anchor chains only when the chains broke. An underwater survey was conducted in April, 1995, by Mr. Wes Maggs.

[12]            The parties also agreed on the sequence of events leading to the alleged damage. At approximately 1354 hours on January 10, 1995, the "Delta Pride", piloted by experienced seaman Stephen Macauley ( the pilot), was exiting berth number one at PCT after loading a cargo of sulphur. The "Delta Pride" was assisted by two Seaspan tugs, the "Falcon" and the "Hawk". Due to the time of departure from PCT and because of a falling tide, the pilot gave the instruction to back the "Delta Pride" away from the berth. Turning the ship, while it was closer to the berth, was not feasible because of the falling tide, the vessel's loaded draught and the lower clearance below the vessel's hull in the berth area. The "Delta Pride" was backed away from the berth to a position on the range lights in the designated deep water preferred channel.

[13]            After the ship stopped moving backwards, the pilot instructed the "Falcon" to push on the vessel's starboard bow and the "Hawk" to push on the port quarter, so that the vessel began to turn in a counter-clockwise direction with its bow facing north. The pilot noticed that the stern of the "Delta Pride" was moving in the direction of the breakwater. In addition to the assist tugs, the pilot instructed the ship's crew to engage the vessel's engine first at slow, then half, and briefly to full ahead. The "Delta Pride" moved forward and away from the breakwater, not coming into contact with it. The vessel continued on its way and subsequently anchored at anchorage "K" in Indian Arm.

[14]            The following facts, while not agreed upon, are not in dispute. The weather conditions at the time in question were calm. The "Delta Pride" was under the command of its master, assisted by Captain Macauley because of compulsory Canadian pilotage requirements. The pilot provided navigational advice to the master. The departure of the vessel was delayed by approximately one hour because the line crews had not arrived.

[15]            The breakwater was managed and maintained through the Small Craft Harbours Branch of the Department of Fisheries and Oceans (Fisheries and Oceans). In 1988, Gary Lacey was the assistant regional manager for property and operations for Small Craft Harbours. The government, during his tenure, revamped the small craft harbours program and in 1991 Mr. Lacey became area chief of the Small Craft Harbours Branch (SCH) of the Harbour Authority Program. The breakwater at the marina was within his jurisdiction.

[16]            SCH entered into a standing offer contract with a local contractor, Premier Marine Contracting Ltd. (Premier Marine), to ensure immediate response was available when required in a harbour. This constituted a departure from past practice wherein Public Works exclusively delivered services to SCH. Premier Marine was owned and operated by brothers Mac and James Nelson. Premier Marine was wound up in 1996.

[17]            After the "Delta Pride" incident, both emergency and permanent repairs were effected to boom B of the breakwater. Vessels no longer turn in front of the marina because a turning basin was dredged in front of PCT sometime after this incident and vessels are now able to turn before leaving their berths. The ownership of the breakwater was transferred to the marina sometime around 1998.

The Evidence of the Incident

[18]            Raymond Harris moors his CNC Landfall 48 at the marina. At the time of the incident, he was on the inside steering station of his boat and about 100 feet from the breakwater. When he saw the "Delta Pride", he moved to the bow where he had a clear and unobstructed view. He observed the vessel coming in and could see a tug at the bow fending out and a tug at the back. He said that the vessel was abnormally close and he saw a lot of activity on the tug at the back of the vessel. Just as he felt they were getting too close, the tug took an extreme right angle to both his boat and the vessel. The tug's engine had been medium but then powered up. The tug's engines pushed the breakwater in closer and the tug was within 75 feet of the witness. When the tug went to right angles, it was sliding along the chains of the breakwater and there was a crunching sound that lasted about ten seconds. The dock was heaving and the water and the dock behind Mr. Harris "exploded". He then saw a puff of black smoke and the large vessel gave a quick shot of power and moved forward. The breakwater moved to within 30 feet of the marina. His perception was that the freighter had no choice but to go full power because the tug had lost control. The vessel did not touch the breakwater but the tug did.

[19]            Ralph Ungless is a captain with the Port Moody Fire Department. On January 10, 1995, he was checking the fireboat that was temporarily being kept at the marina. At the time in question, he was standing on the deck of the fireboat a couple of feet above the water, approximately 300 feet from the "Delta Pride" and had an unimpeded view of the entire back end of the ship. He recalls seeing the stern of the ship moving clockwise coming up to the breakwater. The attending tug was attempting to stop the momentum of the ship. Just before the ship came up to the breakwater, it turned on its propeller to stop its momentum. When it did, the breakwater moved in. The witness said the water around the fireboat and the surrounding area was agitated. He did not see the tug make contact with the breakwater, did not see any smoke and did not hear any metal on metal screeching sound.

[20]            Captain Stephen Macauley began his nautical career as a deck boy in 1971 and qualified as a pilot in June, 1990. He holds Master Home Trade and Chief Mate Foreign Going tickets. The former is for unlimited tonnage, which means any ship of any description, and the latter is for any ship on any voyage. The qualification requirements for "pilot" are stringent and include courses in France, Florida and Rhode Island in addition to the requisite hours at sea. As a British Columbia coast pilot, Captain Macauley moved three to four vessels, per month, in and out of PCT.

[21]            Information pertinent to navigation is provided to pilots through notices to mariners from Transport Canada, through memos and notices to pilots from Pacific Pilotage Authority (PPA) and through vessel traffic services, i.e., the Canadian coastguard. Typically, a pilot receives an assignment, by telephone from a dispatcher, four hours prior to order time. In preparation for the assignment, Captain Macauley would consult the tide books, check the weather and obtain all pertinent information regarding the ship. If concerned about draught, he would ask the dispatcher to ascertain the actual draught. The source card is the pilot's record and contains the ship's particulars, its place of origin, place of arrival and all pertinent times.

[22]            Before 1995, vessels at terminal one PCT were almost always berthed starboard side along the dock with bow facing easterly and stern northwesterly. This position enabled tankers to go portside at berth number two. Consequently, depending on the height of the tide, a pilot might have to back up into deeper water to facilitate a turn.

[23]            At 1345 hours on January 10, 1995, the water depth at PCT was 6.7 metres and the "Delta Pride" draught was 12.5 metres. The task of the pilot was to keep the ranges perfectly in line while backing the vessel into the deep water preferred channel, then turn the ship to point in a westerly direction and do it soon enough to enable it to build up sufficient speed through steerage through Barnet Narrows. The "ranges", constructed by the Canadian coast guard, are fixed yellow ranges and when perfectly aligned, they appear as one and mark the deep water preferred channel.

[24]            Captain Macauley testified that when he backed the "Delta Pride" out of PCT, there were two tugs in attendance. One was left running free on the bow (with no line attached to the ship) and he thought that the tug aft was made up with the tug's line on the port quarter. He gave engine movements to get the ship moving astern very slowly and backed out to a position on the ranges using the forward tug to steer the bow and the stern tug to position the ship as required to remain on the ranges. He backed up to a position between the marina and Ioco Terminal (the Imperial Oil refinery) and, when he was in deep enough water, he initiated a turn to port. The turn would position the vessel's stern exactly west with the ranges astern of them. Captain Macauley had two options with respect to execution of the turn: placing the bow to the south or placing the stern to the south. He decided on the stern to the south because the bridge of the ship was located close to the stern and he was able to see for himself rather than rely on someone on the bow of the ship (close to 1000 feet away) to tell him how far off the ship was from any shore structure. He positioned himself on the bridge wings (platforms outside the bridge above the water) moving from one to the other to facilitate the best view.

[25]            The ship was stopped and at rest north of the marina. The pilot started the turn using only tug horsepower. The stern appeared to be "slipping" (a hydrodynamic effect when the ship tries to slide into shallower water) towards the breakwater and he used the ship's horsepower (the ship's engine) to correct the situation so that the ship did not come into contact with anything. The tug assisting on the stern was positioned on the port quarter and was pushing as was the tug forward. Captain Macauley knew the stern tug was close to the breakwater, but did not think it touched it. Having cleared the breakwater and unaware of anything "untoward", he proceeded and took the "Delta Pride" to anchorage kilo at Indian arm. After he anchored, he heard a VHF conversation regarding a complaint from the marina.

[26]            There were additionally two expert witnesses who provided affidavit evidence. The affidavits were tendered on consent and counsel for both parties waived the right to cross- examination. The first expert was Master Mariner John Swain who began his nautical career in October, 1970 and now holds a command position with Stolt tankers as the captain of a 40,000 ton chemical tanker trading worldwide. He operated as a Humber River pilot in the United Kingdom for almost one and one half years where he piloted vessels in confined waters. Master Swain stated that:

a)              The preferred approach would be to turn the vessel with the stern away from any potential danger or obstacle.

b)              It is a well-known fact that the thrust from the propeller of a deep-sea vessel can create a variety of damage. The thrust is more pronounced when there is engine control movement from a dead or slow speed to full speed ahead.

c)              It is my opinion that the original starboard turn was the preferred voyage plan. However, the pilot had sufficient horsepower to stop up and turn the vessel and therefore prevent any thrust and/or wash damage.

d)              It is my opinion that the pilot miscalculated the stern headway of the vessel and did not used (sic) the tug.

e)              One option would have been to have one tug tow the vessel from the stern with the forward tug made to fust the bow.

f)              It is my opinion that the tugs should have been made fust to the vessel. Because they were not, the vessel's options were limited and the vessel had to apply full power with the thrust and prop wash resulting in damage to Reed Point.

He concluded that the pilot, in manoeuvring the vessel from PCT did all the proper things up until the point when the vessel started to turn to port and that the pilot, with the use of the tractor tugs could have prevented the close quarter situation.

[27]        The second expert was Captain David W. Batchelor who began his sea-going career in 1959. Captain Batchelor operates a marine consulting company in Delta, British Columbia, having retired from his position as General Manager of PPA in 1996. His opinion was provided in response to the opinion of Master Swain. Regarding the issue of turning the ship to port in a

counter-clockwise direction, Captain Batchelor concluded that Captain Macauley's decision

fell within the standards of good seamanship for the following reasons:

a)             The stern of the ship passed by the closest fixed obstructions, which, in this case, was the Reed Point Marina. The bridge of the ship is located aft thus putting the pilot's point of view, probably about 30 metres from the stern, much closer to the potential hazard. If the ship had been turned to starboard, in a clockwise direction, the pilot's point of view would have been about 195 metres from the bow, which would be the part of the ship closest to the potential hazard.

b)             By turning to port Captain Macauley was able to rely on his own judgment as to how far off potential hazards he was rather than second hand information from an officer located in the bow passing the message by radio through an intermediary. Instant appraisal of the situation is the result rather than a delay and reliance on a third party's judgment.

c)             Captain Macauley maintained a good lookout and retained full positional awareness throughout the process of turning the ship.

d)             With the ship loaded to a deep draft of 12.5 metres there would be little or no transverse thrust effect from the propeller when effecting a turn in either direction therefore this would not influence the pilot's decision in which way to turn.

e)             The tugs are equally effective whichever way the ship is turned.

f)             Captain Macauley was aware at all times of the effect the tugs were having on the ship when acting in accordance with his directives.

g)             There was no existing weather or tidal current conditions that would have made turning to port less safe than turning to starboard.

h)             Captain Macauley used all facilities available for safe navigation during the process of swinging the ship, which includes the use of the ship's main propulsion and rudder to assist in making the turn.

i)              Captain Macauley's use of the engines was normal for turning a ship in confined waters. It is not unusual to use full ahead, combined with the suitable rudder action, for a short period of time to initiate a turn or to accelerate the turn particularly when in the proximity of a hazard.

j)              Captain Macauley actively moved around on the ship's bridge to gain the best vantage points for the safe maneuvering (sic) of the ship during the process of swinging the ship.

The Evidence Regarding the Breakwater

[28]        The plaintiff called five witnesses and the defendants called one expert witness in relation to the breakwater. I will not detail all of the evidence although I have reviewed it. I will discuss the most significant aspects but not necessarily in the order in which the witnesses were called.

[29]            In 1995, Gary Peter Lacey was the area chief of SCH and was responsible for the administration and management of some 70 public harbours for the Fraser River and Gulf Islands areas, including the marina. Upon assuming his duties in 1991 (having previously occupied the position of assistant regional manager), Mr. Lacy reviewed all files (engineering, operational and property) for the harbours under his control. As stated previously, it was during his tenure that the small craft harbours program was revamped. One of the changes was the private contracting for program delivery rather than the use of Public Works. Standing offer contracts were awarded through a tendering process and the successful standing offer contractor was Premier Marine. Another change was the divestiture program whereby SCH and Fisheries and Oceans undertook to get out of ownership of recreational harbours and concentrate resources on commercial fishing harbours. The objective of the recreational divestiture program was to turn those harbours over to either local government or local community organizations. If there was insufficient local interest, the facility was removed. It was the goal of SCH to divest itself of the marina.

[30]            Mr. Lacey requested that Premier Marine produce a CAD drawing of any repairs effected to the breakwater. The CAD drawing was a computer software program that consisted of a layered system of drawings delineating the repairs made. As layers were added, the CAD provided a comprehensive history and record that could be viewed in totality or for a specific year. Mr. Lacey used the CAD as a management tool. He testified that, initially, he did not have a really good understanding of the condition of the breakwater. Visual inspection revealed rusted shackles, popped out styrofoam billets (used to provide flotation) and misalignment. By entering any and all repairs on the CAD, he was able to determine what had been done. All work done on the breakwater for the years 1992 through 1995 was completed by Premier Marine and was entered on the CAD. Mr. Lacey recalled that repairs were made to the breakwater between 1992 and 1994 and specifically recalled that work was done on booms A and B in October, 1994. As a result of his review of the files, he was aware that some $90,000 had been expended on chain replacement in 1987.

[31]            Mr. Lacey was constantly pressured by marina owner David Harris to complete a major rebuild of the breakwater. Mr. Lacey met with Mr. Harris and made a number of determinations. The result of those determinations was a decision, by Mr. Lacey, with respect to what he considered to be the appropriate course of action for maintenance of the breakwater. Mr. Lacey determined that: the design and purpose of the breakwater was to prevent the slop or wake of passing vessels from coming into the marina; wave action was not a concern; there was no safety issue if one, two or three chains let go because of the series of inter-connecting chains; the concerns of Mr. Harris were cosmetic and business-related rather than safety-related; he (Mr. Lacey) was not prepared to spend money doing dives and inspections in advance of chains breaking; the breakwater did not require a major rebuild, but needed some maintenance work. In the end, Mr. Lacey decided that to maintain the breakwater in the safe and functional condition for which he felt it was designed, chains would be replaced when broken. He relied upon the watchful eye of Mr. Harris to ascertain when chains broke.

[32]            In January, 1995, Mr. Lacey was on sick leave and was replaced by Ted Appleton. Mr. Lacey was therefore not directly involved with decisions made immediately following the incident. Upon his return, he instructed Premier Marine to effect permanent repairs to the breakwater, specifically to replace 14 or 15 anchor chains and reposition 2 or 3 anchors. He did not order repairs with respect to what he referred to as "pre-existing problems".

[33]            Mac Nelson, who owned and operated Premier Marine with his brother James, testified that the contractual relationship between SCH and Premier Marine began in 1992 when Premier Marine obtained the standing offer contract for maintenance of the SCH facilities, wharves and floats. Between 1992 and 1995, Premier Marine received Westcad drawings (electronic format) of the Fisheries and Oceans file material regarding the various facilities serviced by Premier Marine. It was from the Westcad electronic format drawings that Mac Nelson developed the CAD drawings.

[34]            In 1992, Premier Marine did an initial survey of the marina breakwater. It conducted underwater inspections and developed detailed accounts regarding all of the chains, shackles and booms. This data was inserted into the CAD format as a database and as repairs and work were completed, additional references with the appropriate dates were incorporated. Mac Nelson personally inputted the information with respect to the CAD drawings. Similar undertakings occurred at each of the various facilities serviced by Premier Marine. In the case of the marina breakwater, the CAD was developed in September, 1993. The records of the detailed accounts along with accompanying photographs were retained in a booklet and the documents were printed in full size and distributed to various personnel in Fisheries and Oceans. Mr. Nelson met with staff as well as with marina owner David Harris to review them. Critical and essential repairs were identified in accordance with the philosophy adopted by Mr. Lacey in order of priority. Premier Marine acted only on direction from SCH, generally Mr. Lacey, and it was he who determined what repairs would be undertaken.

[35]            Following the "Sea Joy II" incident, Premier Marine repaired boom C. Mac Nelson recalled that his brother James tested boom B with a tug to determine whether it had sustained damage. After the "Delta Pride" incident, Mac Nelson was actively involved in effecting temporary repairs and in Mr. Lacey's absence, took instructions from engineer Ted Appleton. Premier Marine inserted a barge to connect booms A and C and equipped it with sensor lights. An underwater dive was conducted to determine the extent of repairs required and upon Mr. Lacey's return, the repairs (detailed earlier in Mr. Lacey's evidence) were completed. From the various CAD documents, only that portion depicting repairs was available. I will return to the topic of the Premier Marine documents later in these reasons.

[36]            James Nelson confirmed the evidence of Mac Nelson regarding Premier Marine. He described the division of labour as his brother "looking after the paperwork and correspondence" while he (James) was on site. Mr. Nelson had no specific recollection regarding the marina nor could he recall any information with respect to the divers who conducted underwater inspections there. He did describe a method for the immediate testing of whether a breakwater was holding by having a tug push on the breakwater until the resistance of the chains was felt. Mr. Nelson was referred to a document detailing such an inspection, by him, following the "Sea Joy II" incident. Although he could not recall the testing, he was able to determine what he had done by reviewing the document. It appears that Mr. Nelson tested boom C and the eastern end of boom B.

[37]            Robert Lyle Graves has been a marine engineering technologist with Public Works for 32 years. He travels to marine sites, breakwaters, harbours, wharves and floats throughout British Columbia, on the request of other departments, to complete condition assessments of the facilities in relation to maintenance, replacement and in some instances, construction. Much of the evidence provided by Mr. Graves related to breakwaters generally and the various methods employed in assessing their safety as well as the specific construction of the breakwater at the marina. His evidence was of great assistance to me in terms of a comprehensive overview.

[38]            In 1994-1995, Mr. Graves spent ninety-five percent of his time working for Fisheries and Oceans, almost exclusively with SCH. He conducted various types of inspections depending upon the particular facility and the specific circumstances. His practice was to report his findings verbally by telephone and then prepare a written report containing the detail. His services were charged out through a specific service agreement.

[39]            When dealing with breakwaters, the primary concern was safety, both navigational and public. Mr. Graves recalled his first attendance at the marina after the "Sea Joy II" incident. His report of that incident could not be located. His recollection was that it appeared, then, that only the section of the breakwater hit by the vessel (boom C) appeared to be damaged. He attended at the marina again after the "Delta Pride" incident, inspected and gave instructions for immediate temporary repairs to ensure safety. Those instructions were delineated in a draft report dated January 11, 1995. Mr. Graves was later asked to complete a condition assessment. He did a thorough above-water visual inspection and issued instructions for chain-specific underwater inspection. His recollection was that, after the temporary repairs and his inspection were completed, his further involvement was limited. A final report was requested and Mr. Graves assumed that he prepared one but it could not be located. He testified that he provided recommendations, in all cases, but decisions regarding whether the recommendations were followed lay with the client department in question.

[40]            Mr. Davis Harris is the owner and manager of the marina. His involvement began with the inception of the marina in 1977 and accelerated over the years. He first became involved in management in the late 1980's and then later, after 25 years of practising law, he assumed ownership and full responsibility for the marina. Mr. Harris was not happy with the manner in which the breakwater was maintained. He testified that he telephoned, wrote, travelled to Ottawa and elsewhere, all in an effort to obtain maintenance of the breakwater in accordance with the assistance program agreement. Although, theoretically, the program was in place and the government acknowledged its responsibility, there was apparently no money. Mr. Harris came to know Mr. Lacey on a first-name basis because he called him so frequently. Mr. Harris testified that only when it got to the point of booms breaking loose would emergency repairs be effected. In 1993, he complained that boom B was in the worst need of repair and made a notation on August 9^th that it had been secured. He continued to "pester" in order of priority because repairs were basically being made as the breakwater broke. Mr. Harris considered that booms that were not straight required urgent attention. In 1994, in addition to not being straight, broken booms were drifting out into the shipping channel. The Port of Vancouver and the coast guard demanded that Mr Harris remedy the situation of "his" breakwater.

[41]            Mr. Harris also lobbied the Port of Vancouver to alter the shipping channel. He was concerned because the deep-sea vessels had gotten so large and, when they turned in front of the marina, they came very close. The lack of manoeuvrability, when the ships were fully loaded, resulted in danger because if the vessels got too close and had to turn on any power there would be too much water movement for the marina not to sustain damage. The task in relation to the shipping channel was great because it involved Transport Canada, the coast guard and a myriad of others. After the "Sea Joy II" and the "Delta Pride" incidents, a turning basin was dredged in front of PCT obviating the necessity for vessels to turn in front of the marina.

[42]            The breakwater, Mr. Harris testified, did not do much more than protect the marina from small wakes. If a large tug went by at any speed, it did not respond very effectively. Normal traffic, though, including deep-sea vessels simply passing by, was not a concern.

[43]            The damage sustained by the marina at the time of the "Delta Pride" incident was minimal. This was in contrast to the "Sea Joy II" incident, which was catastrophic. The ownership of the breakwater was transferred to the marina and Mr. Harris now manages the breakwater. The chains have been replaced with Hardy-Last ropes. Diving inspections are conducted regularly because the ropes hook into chain at the bottom. Mr. Harris considers that a prudent owner would look at the longevity of chains as being in the vicinity of 7 to 10 years although it is possible that some could continue to have holding power for 25 to 30 years.

[44]            Robert Wesley Maggs gave expert evidence for the defendants. He was educated as a metallurgical engineer and began diving in 1963. Since 1969, his only occupation has been diving. He is the president and owner of Fraser Burrard Diving Limited, which engages in commercial diving covering construction, salvage, inspection and the like. Mr. Maggs, on the request of Colin Richardson of Hull & Cargo Surveyors, conducted an underwater inspection at the marina and prepared a report of his inspection. His report is exhibited to his affidavit.

Mr. Maggs went to boom B with a crew of three, including himself. The second person was a standby diver and the third was a tender (an assistant). Mr. Maggs conducted the inspection using scuba equipment. He swam underneath boom B and progressed from one end to the other in such a manner that he could not miss a chain. He swam down the length of each chain to the point where it was broken, if it was, and if not, to the anchor located 50 feet below the surface. He considered that his time was best spent inspecting the weakest link of the chain and he found those very close to the bottom. Mr. Maggs inspected 26 chains and found that 13 were broken. With one exception, all chains were found to have very thin sections. While 90 percent of the thickness remained for the most part, each chain contained areas that were extremely thin.

[45]            There were two types of wear observed. The first, known as "double thin", exists when one end of each link appears to be full and very thick but the other end of it is extremely thin. That was a typical link. The second, known as "single thin", exists when the link of chain is in very good condition except for one end which is about ready to fail. That was the situation with respect to the anchor chains at or very close to the seabed. Mr. Maggs was able to tear two links from a chain and one link, he pulled apart with his hands. He attributed the condition to a lack of maintenance meaning that if underwater inspections had been done, divers would have identified the very thin links and corrective action could have been taken.

[46]            The ultimate conclusion and opinion of Mr. Maggs was that the "failure of such anchor chains could have been caused by a minor disturbance such as the wake or wash created by a passing deep-sea vessel".    He came to that conclusion because he was able to tear one of the links apart with his bare hands and he considered the wash from a deep-sea vessel to be a lot stronger than he was. Mr. Maggs did not have, nor did he profess to have, any expertise in quantitative or qualitative analysis.

The Lack of Evidence

[47]        At the outset of the trial, plaintiff's counsel informed me that this was a very simple case. I do not see it that way. Rather, what might have been a simple case became, in my view, a complex one largely due to the evidence that was missing.

[48]            Any documents and records of Premier Marine that pre-dated the incident, with the exception of the CAD record of repairs, were not available. The inability of the plaintiff to locate the principals of Premier Marine and its records was of grave concern to the defendants prior to trial and was reflected in two Court Orders. By Order dated November 8, 2001, Prothonotary Hargrave ordered that the documents of Premier Marine be produced by November 14, 2001, without further extensions. The documents were not produced. Plaintiff's counsel informed me that efforts had been unsuccessfully undertaken to locate the principals of Premier Marine. The plaintiff only learned the whereabouts of Mr. Mac Nelson in late September or early October, 2002. The defendants' counsel first learned that Mr. Nelson had been located during a pre-trial management conference. The nature of the attempts to locate Mr. Nelson were not disclosed. The evidence at the trial established that Mac Nelson has lived continuously at 4147 Gulf Drive, North Vancouver, and was living there prior to the inception of Premier Marine. His telephone number has always been listed in the directory and has not changed.

[49]            Mr. Nelson testified that in 1992 Premier Marine had, after a lengthy dive report, completed a current status report of the breakwater to provide an initial baseline. The tragedy is that since winding up the company, Mr. Nelson has been destroying the Premier Marine files seven years after the date of the file. He had disposed of the 1994-1995 files in the spring of 2002 and has only his last year of business files remaining. Worse still, as he sat in the courtroom giving evidence, he revealed that the CAD for the marina breakwater, layered for each of the years, was still in existence and was on his computer at home. This information would have included the initial assessment conducted in 1992 and would have been of great assistance to all.

[50]            The completion report of Robert Graves after the "Sea Joy II" incident would have indicated damage to the breakwater including damage and movement, if any, to booms other than C as well as repairs effected. Due to the short time frame between the incidents, information relative to the breakwater's condition would have been of benefit. The report was not available. Similarly, the final report of Mr. Graves following the "Delta Pride" incident was not available. Mr. Graves testified that the original would have been forwarded to SCH and a copy retained in the Public Works files.

[51]            Invoices for work performed on the breakwater during Mr. Lacey's tenure, with one exception, were not available.

[52]            Foreshore Technologies Incorporated (Foreshore), the standing inspector for SCH, conducted a detailed underwater inspection of the anchor chains for booms B and C in May, 1995, at the request of SCH. Its report dated May 11, 1995, was produced and provided to defendants' counsel at the commencement of trial. It was tendered as an exhibit by the defendants without objection by the plaintiff.

[53]            The evidence was crystal clear that the "Delta Pride" vessel did not make contact with the breakwater. The plaintiff conceded this fact at trial. The evidence was not clear regarding whether one of the tugs had made contact. Despite the fact that contact was in issue, neither party called the captain of the tug to testify and both counsel suggested that I should draw an adverse inference from the other's failure in this regard.

[54]            At the end of the day, had some or all of this evidence been available, this may have been a simple case. Since it was not, the case is perhaps more complex than it need be. I will endeavour to keep it as simple as circumstances permit.

The Issues

[55]            The action is framed in negligence but it really comes down to how much liability should the defendants have to assume, if any, for the costs associated with repairs to the plaintiff's breakwater. Should the defendants be totally responsible for the costs as alleged by the plaintiff or should the plaintiff be responsible as alleged by the defendants? The parties have raised various subsidiary issues but I believe the matter can be determined on the basis of the answers to not more than three questions: Were the defendants negligent? If yes, does liability follow? If yes, what is the appropriate quantum of damages? Although I was urged, by both parties, to draw adverse inferences, it will not be necessary for me to do so as, in my view, the necessary determinations can be made on the basis of the evidence that is before me.

Negligence

[56]        In the absence of a finding of contact, I would not find Captain Macauley, nor by extension the defendants, negligent. The only allegation of negligence on the part of the pilot was with respect to his decision to turn the vessel to port rather than to starboard. Captain Macauley chose the port turn to enable him to see for himself where the vessel was in relation to the nearest shore structure rather than rely on information from someone located on the bow of the ship. To the extent that the expert opinions differ, I prefer the opinion of Captain Batchelor in this regard if for no reason other than it makes eminently good sense to choose the turn that enables one to see where one is and where one is headed. It was when the "slipping" occurred that Captain Macauley made the decision to use the ship's horsepower to correct the situation. On cross-examination, he described it as a decision based on relevancy. "Wash would be a lot better than a 40,000 ton bulk carrier inside that marina". The decision was not made to move the vessel forward; it was to stop it from going astern.

[57]            Captain Macauley made a judgment call. For this he cannot be faulted. The question is whether the decision he made was reasonable and prudent in the circumstances. The law does not demand perfection. The opinion of Captain Swain was given with the benefit of hindsight and that is twenty-twenty. I find that the act of turning the ship to port fell within the standards of good seamanship and the pilot and therefore the owners were not negligent. This finding, however, is not dispositive because if there was contact, it gives rise to a presumption of fact, i.e., when a moving object collides with an immovable one, the active role of the one as against the passive role of the other creates a presumption of fact against the former: Ultramar Canada Inc. v. The Czantoria (1994), 84 F.T.R. 241 citing A/S Ornen v. The Ship Duteous et al., [1987] 1 F.C. 270 (T.D.) and Bell Telephone Co. of Canada v. The Mar-Tirenno, [1974] 1 F.C. 294 (T.D.). This gives rise to two issues: whether there was contact between the tug and the breakwater and if there was, whether liability for that contact rests with the defendants.

Contact

[58]        Captain Macauley was positioned on the bridge wings of the vessel and it is indisputable that he had an excellent view. He did not see any contact between the tug and the breakwater. He acknowledged that the proximity between the tug and the breakwater was close but he did not think that there had been contact. He also acknowledged the possibility that contact occurred.

[59]            Ralph Ungless was approximately 300 feet away from the "Delta Pride" and had a clear, unobstructed view of her stern. He did not see the tug make contact nor did he see any smoke nor hear the grinding sound of metal on metal. My impression of this witness was that he tried very hard to be as accurate and honest as possible. I did not understand his evidence to mean that there had not been contact, rather that he had not seen any contact.

[60]            Ralph Harris was definitive in his evidence. He witnessed the incident from a distance of about 100 feet. He was certain that there was contact between the tug and the breakwater. He heard the grinding sound of metal on metal. He was also certain that there was no contact between the vessel and the breakwater. I was urged, by the defendants, to find that Mr. Harris exaggerated and embellished his evidence. The basis for that request was that Mr. Harris was incorrect regarding the time he had been at the marina prior to this incident and regarding his presence or absence at the time of the "Sea Joy II" incident.

[61]            It is true that Mr. Harris was confused about the length of time he had been at the marina before the occurrence in question. That, however, in no way diminishes the reliability of his evidence regarding what he saw and heard. For want of a better description, what happened on January 10, 1995, scared Mr. Harris out of his socks. He was terrified and it is unlikely that he will ever forget the incident. He was totally fair when giving his evidence and he recanted, or at least softened, a previous statement. That earlier statement was based on his perception that the large vessel would keep coming in (towards the marina) despite a push from the tug. Having had the benefit of more experience in witnessing tugs moving vessels, he felt at the time of trial that his initial statement should be regarded as an overstatement.

[62]            Mr. Harris was certain as to what he saw and heard and I have no reason to question the veracity of his evidence. I accept and find that there was contact between the tug and the breakwater and that the breakwater chains scraped the metal of the tug that lay beneath the rubber protectors.

Liability for Contact

[63]            The plaintiff urges me to view the deep-sea vessel as a composite unit on the basis that the vessel controls the tugs and relies on Sinquasi (1885), 5 P.D. 241 wherein it was held that the tug was a servant of the vessel. The defendants maintain that liability for any such contact rests with that tug and its owners and not with the defendants. They claim that the statement in Sinquasi is not a general statement of law, but a conclusion made on the facts of that case.

[64]            Halsbury's Laws of England, vol. 43, 4^th ed. (London: Butterworths, 1983) contains the following statements at paragraph 874:

In an ordinary contract of towage the tug is under the control of the tow and must obey the directions given to her by those in charge of the tow. In such a case the tug is not liable if by reason of these directions the tow gets into a position of danger, but if without good cause these directions are disobeyed by the tug, and damage ensures to the tow, the tug is liable for any resulting damage ...

The tow is not bound on all occasions to give detailed directions to the tug, and where no such directions are given by the tow it is the duty of the tug to direct the course. It is also always the duty of the tug, although she is controlled by the tow, to look out for both herself and the tow.

[65]            In Robert Grime, Shipping Law, 2^nd ed. (London: Street and Maxwell, 1991) the following statements appear at pp. 229 and 230:

There are many varieties of towage ... A large vessel may need the assistance of a tug in confined waters... When a collision occurs which involves vessels or structures under tow, the immediate question is raised, whether the owners of the towed vessel or the tug owners are to be held vicariously responsible for the negligence that might have taken place either aboard the tug, or aboard the tow, or in both places.

In this connection, there are two ancient legal maxims, often repeated, usually together, and invariably dangerous if taken literally. They are: 'The tug is the servant of the tow' and 'Tug and tow are one ship.' It is easy to see the basis of the maxims. It describes a common type of towage, a vessel navigated in confined waters with the help of tugs. The operation is under single command and that command is clearly placed on the bridge of the vessel under tow. It would seem to follow that, in the event of negligence aboard the tug, the owners of the tow would be vicariously liable. It would be they, through the master and officers of the towed vessel (no doubt assisted by a local pilot) who had the right to control action aboard the tug ...

This, however, cannot be a universal rule. The facts may simply be different. When a tug tows a rake of dumb barges, for example, the navigational control of the operation lies aboard the tug, not the barges. Each case must depend upon its particular circumstances ...

But the question for the purpose of vicarious liability remains, namely, who in all the circumstances, had the practical right to control? Simple maxims do not give much assistance.

[66]        The law of tug and tow was reviewed in Hamilton Marine & Engineering Ltd. v. CSL Group Inc. (1995), 95 F.T.R. 161 (Hamilton Marine). Recognizing that the majority of the

jurisprudence surrounding this area of maritime law was developed in the United Kingdom in the

last century, Nadon, J., as he then was, considered its principles to be well established and

articulated those principles at page 10:

In determining the duties and obligations between a tugboat and the vessel being towed, it is important to determine which was in control at the time of the incident. In The Niobe (1888), 13 P. 55; 59 L.T. 257, it was held that a tow generally has control over a tug and is thus responsible for the negligent acts of the latter. In SS. Devonshire v. Barge Leslie, [1912] A.C. 634; 107 L.T. 179, it was clearly stated that the determination of which vessel is in control is a question of fact to be determined in every case. As the rule now stands, there is a general presumption that it is the tow which is in control of the tug. As stated by Sir Robert Phillimore in The Mary (1879), 5 P. 14 at 16; 48 L.J.P. 66, "the tug is the servant of the tow". Given that a tug is ordinarily under the direction of a tow, the former must obey the instruction of the latter: The Gipsey King (1847), 5 Notes of Cases 282 at 288; 4 L.T. 839 and Canada Steamship Lines v. Montreal Trust Company, [1940] Ex.C.R. 220.

[67]        The defendants contend that it is the plaintiff's responsibility to show that the "Delta Pride"had a sufficient degree of control over the tug and its movements to give rise to vicarious liability. The plaintiff complains that the defendants did not join Seaspan as a third party. For the reasons that follow, I find that the tugs were in the control of the tow.

[68]            First, the maxims that the defendants urge me to disregard had their basis, according to Mr. Grime, in the common type of towage, a vessel navigated in confined water with the help of tugs. The evidence, here, establishes that that is the situation in this case. I appreciate the author's caution that, "this cannot be a universal rule because the facts may simply be different", but the evidence before me does not support a finding of anything other than a common type of towage.

[69]            Second, Nadon, J., in Hamilton Marine, acknowledged that the determination of which vessel is in control is a question of fact to be determined in each case, but he also noted that as the rule now stands, there is a general presumption that it is the tow which is in control of the tug. Presumptions, of course, can be rebutted by evidence. There exists no evidence here that suggests, let alone supports, the notion that the tugs were not under the control of the vessel. Rather, Captain Macauley testified that he issued directions to the tugs. When confronted on cross-examination with the proposition that the tugs had not been of much assistance, his response was that they had been of great assistance. Simply stated, the presumption that the tow is in control of the tug has not been rebutted.

[70]            Third, the deep-sea vessel was under the command of its master assisted by pilot Captain Macauley who provided navigational advice to the master. For all practical purposes, Captain Macauley was in control and he acknowledged on cross-examination that he had de facto control of the "Delta Pride". The sequence of events, submitted initially by the defendants, summarizes Captain Macauley's instructions to the tugs. The defendants' witness, Captain Batchelor, deposes in his affidavit sworn October 10, 2002, that one of the assumptions upon which his opinion was based was that, "[t]he tugs 'Seaspan Falcon' and 'Seaspan Hawk' were not secured by lines to the ship and they responded to the pilot's directives in a timely and seamanlike manner."

[71]            Having found that contact between the tug and the breakwater did occur and having found that the tug was in the control of the tow, it follows that the defendants were negligent.

Does liability follow?

[72]            The plaintiff contends that the damage to the breakwater was the direct result of the defendants' negligence and was caused by the tug's contact with the breakwater and by the wash from the tug and the vessel. The damages claimed relate solely to the costs associated with the essential repositioning and repairs on a temporary and permanent basis. The plaintiff does not seek compensation for anything other than the damage that resulted from the incident and therefore, there is no issue of "betterment". Moreover, the fact that many of the chains held, in spite of the extreme forces caused by the water mass, indicates that the breakwater was not about to crumble. The maintenance system adopted by Mr. Lacey regarding the breakwater was a pragmatic and cost effective approach and should not be subjected to detailed analysis.

[73]            The defendants argue that the breakwater was on the verge of collapse in January, 1995. It had deteriorated to the point that it was destined to fail and was essentially an accident waiting to happen. It is clear from the evidence that boom B was not capable of handling the ususal forces expected in the area, including deep-sea vessels manoeuvring within 10 feet. The anchor chains were weakened to the point where damage from the wash of a tug or a deep-sea vessel could not be withstood. Mr. Lacey's philosophy of waiting for a failure was the cause of the loss. The failure of the breakwater was inevitable. It was not a question of if; it was a question of when.

[74]            As stated previously in these reasons, specific evidence of the condition of the breakwater at various points in time prior to the incident was not available although, in my view, it should have been. Absent that evidence, I must do the best I can with what I have to work with and that is the testimony of the witnesses and the scant documentary evidence relative to the breakwater's condition.

[75]            I begin with certainties. In this respect, the evidence is that prior to the construction of the breakwater in 1977, concern was expressed regarding the impact that vessel traffic could have on it. There was a substantial increase, between 1977 and 1995, in the size of the vessels in the Port Moody area and specifically at PCT. In 1987, in excess of $90,000 was expended on chain repair to the breakwater. The lineal metres of new chain used in this repair would not have amounted to one quarter of the breakwater's total chains. In 1992, there were repairs undertaken with respect to the shackles and inter-connecting chains of boom B. Additionally in 1992, one anchor chain on the most western portion of boom B was broken. This chain was repaired in October, 1994. In August, 1993, one chain on the eastern end of boom B was broken and was replaced in August, 1993. That marks the end of the certainties.

[76]            The evidence of Mr. Lacey, relative to maintenance of the breakwater, was that he adopted a philosophy of "replace when broken". The determinations that served as the basis for this philosophy have been stated earlier. Before detailing additional evidence from Mr. Lacey and although I do not believe it is necessary in the circumstances of this case to determine whether the decision taken by Mr. Lacey was a "policy", I will state that were I required to make such a determination, I would not be inclined to find that the "replace when broken" philosophy constituted "policy" within the parameters set out in Just v. British Columbia, [1989] 2 S.C.R. 1228. Mr. Lacey himself referred to his decision as a philosophy; he did not refer to it as policy. The "replace when broken" philosophy was not one made at a high level involving social, political and economic factors or budgetary allotments for departments. This philosophy was with respect to the supplying of services.

[77]            Mr. Lacey considered that it was a waste of taxpayers' dollars to go in, tear everything out and replace it. He felt that such a course of action was analogous to "tearing down a house if you have a leaky roof. You fix the roof, you don't tear down the house". He did not consider that if one, two or even three chains of the breakwater let go that there would be a safety issue because he was "just looking at protecting against the wake of passing vessels". He was not aware of the nature or extent of vessel traffic in the area because he did not consider it to be part of his job. He did not think that there was a problem if a boom was 10 feet out of alignment. He said that Mr. Harris had never expressed concern regarding booms moving out, that the concerns were regarding booms floating in towards the clients' boats. Mr. Lacey's discussions with local management and authorities relative to the marina breakwater were confined to discussions with David Harris. He did not meet with the Vancouver Port Authority because there was no reason to do so. When questioned about whether he had observed vessels passing while at the marina, he responded, "I was not there to look at ships or where ships were turning. It was not a factor".

[78]            He specifically recalled having had repair work on booms A and B completed in October, 1994, and planned to proceed with repairs to boom C, but the "Sea Joy II" incident intervened. His concern was limited to the breakwater and where it sat on the water lot. When confronted on cross-examination with the question, "You don't care about the condition of chains until they break?", Mr. Lacey responded, "That's correct".

[79]            Mr. Graves, as stated earlier, had 32 years experience as a marine engineering technologist with Public Works and performed condition assessments of marine facilities. Mr. Graves was not aware of the SCH philosophy "replace when broken", was surprised to learn of it and did not consider that it was a good approach. He testified that with respect to the facilities he was involved with (that involved chain), they were inspected on a regular basis, regular being once per year. That was the manner in which Public Works approached it over the years. He would expect, at a minimum, an annual report from someone outlining the condition of the facility. If there was not, it would constitute a flaw in monitoring without which preventative action could not be taken. He would not recommend "replace when broken".

[80]            Mr. Graves testified that chains have a limited life span, the length of which varies. Stress, use, whether the chain is 3/4 inch or 1 inch, galvanized or black, are factors affecting the life span and it could be as low as 6 years. It would not be surprising if chains were worn and corroded to the point of requiring replacement after 8 or 9 years. Whether the failure of one chain in the breakwater could cause a problem would depend on the location of that chain. In an area where deep sea vessels are manoeuvring within 10 feet of the breakwater, it would be a problem if the breakwater moved closer than the 10 feet. It would be important to ensure that the breakwater is a minimum of 10 feet away and, in such circumstances, it would be more important to ensure that the chains were in good condition and that the anchor placement was in the correct location. Stress on the chains would be greater and the wear conditions would increase if vessels were to operate within 10 or 11 feet of a breakwater.

[81]            An anchor chain with 13 mm., or less, depth remaining would cause concern for Mr. Graves and he would report anything of 13 mm. or less for maintenance and replacement. It would not be necessary to replace the entire chain; the damaged, worn or stretched portion would be replaced.

[82]            Mr. David Harris was firmly of the view that the breakwater was not being properly maintained and consistently expressed and communicated his concerns to SCH. He was concerned about safety and that concern was not limited to the breakwater moving toward the marina but also into the navigation channel. He was concerned about the vessels turning in such close proximity to the breakwater and, as a prudent owner, he stated that he would conduct regular underwater inspection of the breakwater and would consider the longevity of chains to be in the vicinity of 7 to 10 years.

[83]            Mr. Wes Maggs conducted an underwater inspection after the incident and found that each of the chains had links that were in very poor condition. Some were so thin that he was able to tear them from the chain and one link he ripped apart with his hands.

[84]            The limited documentary evidence consisted of two underwater diving inspection reports, a Premier Marine report dated February 24, 1995 and the Foreshore report dated May 11, 1995. Since the plaintiff replaced only the broken chains, it was possible to segregate those chains from the other remaining chains referred to in the reports. I was not, however, able to place any reliance on the Premier Marine report because it simply referred to percentage of wear remaining without providing any basis upon which the percentage was determined. Mac Nelson, not being a diver and not having any knowledge in this respect, was not able to provide any enlightenment. The Foreshore report referred specifically to the "depth" of chain remaining and with the benefit of that information, coupled with the evidence of Mr. Graves, it was possible to get some indication of the state of affairs. The tables in the Foreshore report for boom B (the old chains) indicate that in bundle one, 2 of 6 chains had a depth greater than 13 mm. In bundle two, none of the chains had a depth greater than 13 mm. In bundle three, 3 of 8 chains had a depth greater than 13 mm., in each of bundles four and five, 1 of 5 chains had a depth greater than 13 mm. Fourteen chains had a depth of 6 mm. or less and 9 of those had a depth of 3 mm. or less.

[85]            On the basis of the evidence before me, I find that the philosophy of "replace when broken" was not sound. The breakage of one chain could, but not necessarily would, constitute a safety issue. Vessel traffic was a concern with respect to this breakwater. If the breakwater moved within less than 10 feet of the navigation channel, it was a navigational safety issue. In this respect, I find Mr. Lacey's statement that Mr. Harris did not address this with him to be suspect. Given the frequency of contact and the unyielding efforts of Mr. Harris regarding the breakwater, it is unreasonable to conclude that he would not have expressed his concern when the Port of Vancouver and the coast guard were looking to him to remedy the breakwater situation. As to the repairs that Mr. Lacey specifically recalled in relation to boom B in 1994, I find that those repairs consisted of the replacement of a chain that had broken in 1992. Regarding the analogy of the house proffered by Mr. Lacey and in view of the specific evidence of Mr. Graves that upon identification of the damaged, worn or stretched chain, replacement of that portion could be effected, Mr. Lacy could have fixed the roof without tearing down the house. Put another way, an ounce of prevention is worth a pound of cure.

[86]            I also find that:

(a)        The breakwater was constructed in 1977 and by 1987 required fairly extensive work.

(b)        A life span of 6 to 9 years is not unusual for an anchor chain.

(c)        Vessel traffic, in close proximity to a breakwater, adds stress to the anchor chains and increases the wear.

(d)        Of 30 chains in boom B of the breakwater, only 7 had a depth of 13 mm. and 14 had a depth less than 6 mm., that being one half of the depth when replacement would be recommended.

(e)        All broken chains had extremely thin links and most chains near the seabed had links that were thin. The thinness resulted from wear rather than stretching.

(f)         There was at least one link thin enough that it could be pulled apart with human hands and that link was not unlike some of the others.

(g)        There is no evidence of anchor chain replacement other than that referred to herein.

[87]            From the above facts, I conclude that on January 10, 1995, the breakwater was in a deteriorated, weakened and vulnerable state or condition and was not seaworthy. I infer that the chains that gave way were worn and thin and I find that the condition of the breakwater was a cause of the damage it sustained. That, however, does not end the matter. The general principles of causation, along with the supporting authorities are articulated in Athey v. Leonati, [1996] 3 S.C.R. 458 (Athey). For ease of reference, I reiterate the relevant principles here, but without the authorities cited by Major, J.

[88]            The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury. A contributing factor is material if it falls outside the de minimus range. The causation test is not to be applied too rigidly. It is essentially a question of fact which can best be answered by ordinary common sense. It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm.

[89]            Apportionment between tortious and non-tortious causes is contrary to the principles of tort law, because the defendant would escape full liability even though the defendant caused or contributed to the plaintiff's entire injuries. Hypothetical events (such as what would have happened without the tortious injury) or future events need not be proven on a balance of probabilities. Instead they are simply given weight according to their relative likelihood. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.

[90]            Past events must be proven, and once proven they are treated as certainties. In a negligence action, the court must declare whether the defendant was negligent and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct either was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty. However, the plaintiff is not to be placed in a position better than the plaintiff's original one. It is therefore necessary not only to determine the plaintiff's position after the tort but also to assess what the "original position" would have been. It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss.

[91]            The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position"and that the defendant need not put the plaintiff in a position better than the plaintiff's original position.

[92]            Following discussion of the general principles, Major, J. delineates a concise summary of the applicable principles for determining causation and for the factoring in of future or hypothetical events. It is useful to review that summary. However, Athey involved personal injuries arising from a motor vehicle accident. That is not the situation here although the applicable principles are the same. I have tailored the summary to coincide with the circumstances of this case.

[93]            If the tug's contact with the breakwater and the wash from the tug and deep-sea vessel caused or contributed to the damage to the breakwater, then the defendants are fully liable for the damages flowing from the contact and wash. The plaintiff must prove causation by meeting the "but for" or "material contribution" test. Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the damage must be determined to be proven or not proven. This has the following ramifications:

1.         If the damage to the breakwater would likely have occurred at the same time, without the contact or wash, then causation is not proven.

2.         If it was necessary to have both the contact and wash as well as the pre-existing condition of the breakwater for the damage to occur, then causation is proven, since the damage would not have occurred but for the contact or wash. Even if the contact and wash played a minor role, the defendants would be fully liable because the contact and wash were still a necessary contributing cause.

3.         If the contact and wash alone could have been a sufficient cause, and the pre-existing condition of the breakwater alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the damage. The trial judge must determine, on a balance of probabilities, whether the defendants' negligence materially contributed to the damage.

[94]            On the basis of this analysis, I conclude that although the breakwater was in a deteriorated, weakened and vulnerable state and was not seaworthy on January 10, 1995, but for the tug's contact with the breakwater and the wash from the tug and vessel, the damage to the breakwater would not have occurred at that particular time. I find that the tug's contact with the breakwater and the wash from the tug and vessel played a minor role and the primary cause was the condition of the breakwater at the time in question. That being said, I cannot say that the contact and wash fall within the de minimus range. Therefore, I am bound to find that causation is established and the defendants are liable for the damage. However, I also find that there was a realistic chance that the damage would have occurred at some point in the future without the intervention of the "Delta Pride". I reach that conclusion as a result of the findings I have referred to earlier and for the reasons that follow.

[95]            The breakwater was constructed in 1977 and by 1987 required significant repair work. The repair work undertaken in 1987 was the sole significant and major expenditure in relation to this breakwater. At that time, less than one quarter of the chains were replaced. There is no evidence, and it would certainly seem unreasonable to expect, that all of the expenditure would be allocated to boom B when there were four booms in the breakwater. My educated guess is that there were some chains replaced in each of the booms although, admittedly, I have no concrete evidence upon which to base that finding. As a matter of common sense, it seems more probable than not that some repair would be required for each of the booms upon the expiration of 10 years in circumstances where the anticipated longevity of chain is in the 6 to 9 year range.

[96]            Subsequent repairs to boom B involved shackles and inter-connecting chains. The only attention given to the anchor chains of boom B was the replacement of one chain in 1993 and the repair of another in 1994. The latter was broken in 1992. In view of the condition that I have found the breakwater to have been in, I conclude that it was a near certainty it would collapse. I agree with the defendants' position that it was not a question of if; it was a question of when.

[97]            It remains to be determined when that collapse would have occurred. Any finding in this respect is, of necessity, arbitrary and involves a judgment call based on the evidence. Being generous to the plaintiff, I arbitrarily find that the collapse would have occurred within 4 years of the date of the "Delta Pride" incident. That allows 11 years for chain longevity after the 1987 repair work notwithstanding that the anchor chains may or may not have been repaired or replaced at that time. In short, the collapse would likely have occurred before the end of 1998. In arriving at this conclusion, I take some comfort in the fact that Mr. Lacey testified that the ownership of the breakwater has been transferred to the marina and that the negotiations with respect to effecting that transfer included a condition that the breakwater be transferred in a state of repair satisfactory to the marina owner. The plaintiff would have had to effect the necessary repairs prior to transferring the breakwater in any event. The transfer occurred before the end of 1998.

Quantum of Damages

[98]        The calculation of damages must recognize that the plaintiff is to be returned to the position it would have been in, with all of its attendant risks and shortcomings, and not a better position: Athey. The general rule is that the plaintiff should have deducted from its award the amount by which its property is improved (betterment) but is compensated to the extent it has had to put out money prematurely to obtain that betterment: Upper Lakes Shipping Ltd. v. St. Lawrence Cement Inc. (1992), 89 D.L.R. (4^th) 722 (Ont. C.A.)

[99]            The defendants took exception to some of the amounts claimed by the plaintiff. Regarding the invoices for work done and particularly that in relation to the permanent repairs, the complaint is that the invoice is unreliable because it was issued before the work was actually done. I am satisfied that the invoice was issued early in order that it could be charged to the previous fiscal year and I am equally satisfied from the evidence of Mac Nelson and Mr. Lacey that the work was completed before payment was made.

[100]        The defendants also question the $7,100 claimed for the services of Mr. Graves because first, the product of his effort (his report) although completed was not produced. Secondly, there was a reference in Exhibit D-8 that work to be done related to booms B and C and therefore, there was work attributable to the "Seajoy II" incident. Mr. Graves gave a detailed account of the time he spent at the marina and in the preparation of his report after the "Delta Pride" incident. Although the report was not produced, it was completed. I am not prepared to adjust the claimed amount. Similarly, I find the amounts claimed for in-house engineering and in-house inventory reasonable. With respect to the latter, the plaintiff charged the inventory out at the price it would have had to spend to purchase it. I will not reduce these amounts.

[101]        I have concluded that the plaintiff would have had to effect the repairs on boom B in any event and that it would have had to do so within 4 years of the date of the "Delta Pride" incident. To put the plaintiff in the position it would have been in but for the events of January 10^th, the plaintiff should be compensated for the costs associated with the expenditure of funds necessary to effect the repairs 4 years in advance of when it would have had to do so. The plaintiff is therefore entitled to damages in the amount of the interest on $81,746.76 at the Bank of Canada rate, for 4 years (1995-1998), compounded annually. Counsel requested that the issue of pre-judgment interest be deferred to enable them to endeavour to resolve it by agreement. The issue is therefore deferred. Absent resolution, either party may make application and I remain seised of this matter with respect to determination of the issue of pre-judgment interest, should it be necessary.

Costs

[102]        In the exercise of my discretion, I decline to award costs. In so doing, I have considered the results of the proceeding, the amounts claimed and the amounts recovered and the fact that the issues were rendered more complex as a result of the unavailability of some of the plaintiff's documents that ought to have been preserved and produced. I have also considered the plaintiff's submission that the issues were important because of the advisability of certainty in the law and I conclude that the circumstances in relation to this matter are so factually driven that the decision is of little, if any, precedential value.

___________________________________

                    Judge

Ottawa, Ontario

January 13, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-86-96

STYLE OF CAUSE: HMTQ v. The Ship "DELTA PRIDE" et al

PLACE OF HEARING:                                   Vancouver, B.C.

DATE OF HEARING:                                     12-NOV-2002 to 15-NOV-2002

REASONS FOR ORDER BY:                      The Honourable Madam Justice Layden-Stevenson

DATED:                      January 13, 2003

APPEARANCES:

Joseph Spears                  FOR PLAINTIFF

H. Peter Swanson           FOR DEFENDANT

SOLICITORS OF RECORD:

Spears & Company        FOR PLAINTIFF

Bernard & Partners         FOR DEFENDANT