Owners of SS. "Albano" v. Owners of SS. "Parisian, (1906) 37 SCR 284

Supreme Court of Canada

Owners SS. "Albano" v. Owners SS. "Parisian." (1906) 37 SCR 284

Date: 1906-03-05

The Owners of the Steamship "Albano" and her Freight

Appellants

And

The Owners of the Steamship "Parisian" and her Freight

Respondents

1906: Feb. 20-22; 1906: March 5.

Present:— Sedgewick, Girouard, Davies, Idington and Maclennan JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA, NOVA SCOTIA ADMIRALTY DISTRICT.

Maritime law—Collision—Crossing ships—Admiralty rules, 1897, rule 19.

The SS. "Parisian," making for Halifax Harbour, came along the western shore, sailing almost due north to a pilot station, on reaching which she slowed down, finally stopping her engines. The "Albano," a German steamship for the same port, approached some miles to the eastward, sailing first, by error, to the north-east, and then changing her course to the south-west, apparently making for the eastern passage to the harbour. She again altered her course, however, and came almost due west towards the pilot station. When about a quarter of a mile from the "Parisian" she slowed down, and on coming within eight or nine ship's lengths gave three blasts of her whistle, indicating that she would go full speed astern. The "Parisian" then, seeing that a collision was inevitable, went full speed ahead for about 200 feet when she was struck on the starboard quarter and had to make for the dock to avoid sinking outside. The '"Parisian's" engines were stopped about six minutes before the collision, and a boat from the pilot cutter was rowing up to her when she was struck. At the time of the collision, about 5 p.m., the wind was light, weather fine and clear, there was no sea running and no perceptible tide.

Held, affirming the judgment of the local judge that the captain of the "Albano" had no right to regard the "Parisian" as a crossing ship within the meaning of rule 19 of the Admiralty Rules, 1897; and that the "Parisian" having properly stopped to take a pilot on board, and being practically in the act of doing so at the time, the "Albano" was bound to avoid her and was alone to blame for the collision.

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Appeals from judgments of the local judge of the Nova Scotia Admiralty District in favour of the respondents.

The collision in question occurred on 25th March, 1905, near Chebucto Head, at the entrance to Halifax Harbour, for which both vessels were bound, coming in from the sea. Cross actions were brought by the owners, The Allan Line Steamship Company seeking to recover damages sustained by their vessel, the "Parisian," against the "Albano" and the Union Dampfchiffs Rhereri Actiengesellsschaft, owners of the "Albano," to recover damages against the "Parisian." The local Judge, in deciding that the "Albano" was alone to blame described the situation at the time of the collision as follows:—

"These vessels were both coming in from sea and both bound for Halifax, when the collision occurred. The charts put in evidence on the trial indicate the positions of the respective ships when they sighted each other and the course respectively taken by them till the accident occurred. There is a pilot station at or near Chebucto Head, and both vessels were, previous to the collision, making for the pilot station with the view of procuring a pilot into the port of Halifax, and the collision occurred when the 'Parisian' had stopped at this station and while the pilot was approaching the ship to board her.

"Captain Johnson, the master of the 'Parisian,' in his evidence says: 'It was about 4.30, I think, in the afternoon when I saw the land about Chebucto Head or Sambro and at the same time I saw smoke to the eastward close to the north-eastern land. I was on the bridge, and had been there for some time before. About 4.45 p.m. I made it out to be smoke from a steamer, and I think then she bore north or

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north by east. I did not take the bearings as she was too far off, but I could see her from the bridge. She was to the north of us. I could see the whole beam of the ship when I first saw her. I did not see her again till she was coming right down on us full speed right straight for the funnel of the ship. The "Parisian" was at this time stopped.'

"As the 'Albano' approached she blew three blasts of her whistle which, it appears, indicated that her engines were put full speed astern. This, it appears from the other parts of the evidence, took place about two minutes before the collision took place. It appeared to be disputed by the witnesses for the 'Parisian' that the 'Albano's' engines were reversed at all, but while I am disposed to think that the engines were reversed shortly before the actual collision, I am satisfied it was done top late to be effective, even in lessening the force of the impact of the striking ship. According to the evidence of the captain of the 'Parisian,' perceiving this collision was inevitable and that his ship would be struck about amidships, he went full speed ahead, which moved the 'Parisian' forward about two hundred feet with the result, as the evidence shews, that the ship was struck further aft and, as the 'Parisian' claims, this saved the ship and probably the lives of the passengers on board."

The manner in which the vessels were being navigated "immediately prior to the collision is described in the judgment of the court delivered by His Lordship Mr. Justice Davies.

The nautical assessor, Commander Tinling, R.N., who assisted at the trial, presented a report giving his view of the situation and stating that, in his opinion, both ships were in fault. The local judge found that the "Albano" alone was to blame for the

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collision, dismissed the action by her owners against the "Parisian" and ordered judgment to be entered in favour of the Allan Line Steamship Company for the damages caused to the "Parisian," to be assessed by a referee, with costs against the "Albano" in both actions. The owners of the "Albano" assert the present appeals from both judgments.

Newcombe K.C. and Morrison for the appellants.

Nesbitt K.C. and W. B. A. Ritchie K.C. for the respondents.

The judgment of the court was delivered by

DAVIES J.—These were cross-actions brought by the respective owners of the SS. "Parisian" and the SS. "Albano" against each other arising out of a collision which took place between the two steamships outside the mouth of the Harbour of Halifax, Nova Scotia, on the 29th day of March, 1905.

The "Parisian" is a British passenger steamer of 3,385 tons net with a speed of about 15 knots. The "Albano" is a German freight steamer of 2,423 tons net with a speed of about 9 knots.

The time of the collision was about 5 p.m., the wind was very light and the weather fine and clear. There was no sea running and no perceptible tide. The place of the collision was near the inner automatic buoy which marks the approach to Halifax Harbour and is situate near Camperdown overlooking Portuguese Cove. The pilot station at Portuguese Cove is near the place of collision and it was about there where incoming steamers generally take a pilot. The "Albano" arrived first off the harbour, but mistaking one of the buoys ran away some miles to the

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eastward when, on discovering her mistake, she changed her course from N. by E. ½ E. sharply to W.S.W. ¾ W., and continued on that course till she came nearly up to and abreast of Rockhead Shoal, when she altered her course to W. ¼ S., a direction which would take her up to the automatic whistling buoy near by which the pilot schooner was lying, the object being to procure a pilot so as to enter the harbour.

Something was said at the argument as to the erratic character of the "Albano's" course in approaching this pilotage ground, but we do not think anything turns upon that or that the "Albano" is in any way to blame respecting it.

The "Parisian," on the other hand, having made a good land fall came in along the western shore, her courses: being N.W. by N. and N.N.W., when seeing the pilot's flag she was steered for the pilot schooner and about 4.56 or 4.57 p.m. as the captain said, she was steering N. by W.

The cutter "Petrel," pilot boat No. 4, with pilots for both steamers, was lying to, a little east of the automatic buoy. The "Parisian" slowed down as she approached the buoy. The time now becomes most important. Captain Johnson says that at 4.52 he gave the order to "stand by"; at 4.57, "half speed"; at 4.58, "slow"; and at 4.59 he stopped the engines. At about 3 minutes past five, he says, the "Parisian"

would be thoroughly stopped. The pilot boat would be a little ahead of me and the pilot thought that the impetus of the ship would bring us up to him, but we were so thoroughly stopped that he had to pull down to us.

The reference is to a row boat which had left the pilot cutter with a pilot for him. He says it was 2 or

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3 minutes after that, or as he put it, "about 5 o'clock and 5 or 6 minutes," that he heard the "Albano" whistle and saw her coming down on him, and that about 5.05, when he saw that the collision was inevitable and that he would be struck abreast of his ship's engines, he gave the order to go full speed ahead and his vessel forged ahead about 200 feet and was struck further aft, about the starboard quarter and abreast of No. 5 hatch.

According to the evidence of Captain Johnson and his officers and engineers, the engines of the "Parisian" were stopped at least six and perhaps seven minutes before the collision. He himself says he did not see the "Albano" more than 2 or 3 minutes before there was danger of collision, and that there was about one or one and a half minutes from the time he saw there might be danger of collision till it actually occurred.

On the other hand, Captain Kubenhold says, and as regards his time and orders he is supported by his officers and engineers, that at 4.55 he gave the order to stand by, at 4.57 half speed and slow, and 4.58 to stop, immediately followed by "full speed astern," and the blowing three blasts of his whistle to indicate to the "Parisian" what he was doing. He says the "Parisian" was then "about 5 lengths away a little more or less," and that for two minutes he was going full speed astern until the collision, which by his time occurred a few seconds after 5 o'clock. There was a difference between the "time" of the two steamers of six minutes, which explains apparent discrepancies in the evidence of the two captains. He further says that the course of his ship was not altered from the time it was changed to W. ¼ S. off Rockhead Shoals; that he saw the pilot row close to the bow

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of the "Parisian"; and that it would not take much over two minutes to stop the "Albano" at the rate she was going; and that up to or about the time he whistled, he thought the "Parisian" would go either full speed ahead or full speed astern to avoid collision; that he was about ¼ of a mile away when he noticed she had slowed down and that the "Parisian" was moving about 1½ knots "as far as he could make it out" immediately preceding the collision. In cross-examination he said he did not think

at the time the "Albano" was put at half speed there would be any collision; there was not much danger then,

and that then the "Parisian"

might be 8 or 9 ship's lengths away from him, he did not notice, his object in easing being to take a pilot.

That was at 4.57 by "Albano's" time, 5.03 by the "Parisian's," or about 3 minutes before collision. He further says that it might be ½ or ¼ mile from him when the "Parisian" slowed down and that he believed she slowed down for a pilot and to let him pass, and that was the reason he kept his course and finally that to prevent a collision he would have had to reverse a couple of ship's lengths before he did.

Under these circumstances it becomes vitally important to determine whether as a seaman he had, under all the circumstances before him, reasonable grounds for believing that the "Parisian" was, at the time he was approaching her and when risk of collision might be avoided, a crossing ship within the 19th rule, having the "Albano" on her starboard side and bound to keep out of her way. It seems to me, after listening to the able arguments addressed to us and carefully reading and considering all the evidence,

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that the determination of this controversy lies in the answer to that question. If the "Parisian" was such a crossing ship at the time immediately before the collision when the risk of collision could be avoided, then Captain Kubenhold was right in keeping his speed and course and depending upon the "Parisian" obeying the rule and keeping out of the way, nor does it seem to me that by reducing his speed when he did he was guilty of breaking the rules, because at that time he did not believe the risk of collision imminent, and when he reversed he did so at a time when he saw the "Parisian" was remaining stationary and a collision was inevitable.

The pilot in charge of the cutter was watching both vessels and sent off a row boat first to the "Parisian" as he found her approaching the pilot grounds first. The row boat had reached the bow of the "Parisian." Even with the little tide and wind there was carrying the "Parisian" towards them the row boat found they had to row to her. The occupants of the boat say they could touch the vessel with their oars and the line was about to be thrown to them at the moment the whistles of the "Albano" blew.

The engines of the "Parisian" had then been stopped either 6 or 7 minutes, probably six, and while I conclude from a careful analysis of all the evidence on the point, and there is much, that there was a slight motion of the ship through the water reaching from ¾ of a knot to a knot, I think it is clear that for at least two minutes and probably 3 minutes before the collision she was without any steerage way whatever and so practically, though not absolutely, without any motion.

Being on the pilotage ground without any steerage way for several minutes, two at least, evidently

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waiting to take up her pilot, with the pilot boat alongside, the line actually being about to be thrown, could the master of the other vessel, which was coming on almost at a right angle, but was at least ¼ of a mile and probably more away, the weather being calm and clear and nothing to hinder or obstruct the view, say, as a reasonable business or nautical interpretation of the rule, that the "Parisian" was still a crossing vessel and subject to the ordinary rule applicable to two steamers really approaching or moving towards and crossing each other so as to invoke risk of collision?

Are not the special circumstances of the actual stoppage for an appreciable time of the vessel which had first reached the pilotage ground, and the fact that the pilot was alongside of her and about to be taken aboard all in view of the approaching steamer "Albano" sufficient to make the regulation inapplicable and justify the captain of the "Parisian" in thinking that he would not then be run down?

It is true that Commander Tinling, who acted as assessor with the Chief Justice of Nova Scotia who heard the actions, thought the regulations did apply and so advised. But all his advice and findings seem to me to be based upon his main finding that as the "Parisian"

was under way, having steam up and not being prevented from using the same, it was her duty to keep clear of the "Albano."

The Chief Justice thought, I think correctly, that it was his province and not that of the assessor to put a construct ion upon the language of the rules, and to determine their application to the facts. After much consideration I agree with the conclusion he reached, that rule 19 was not applicable to the case of the "Parisian," and that under the circumstances the "Albano" alone must be held to be in fault.

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But then it was argued, that even if it is held that the rules invoked are inapplicable, the "Parisian" was in fault in not having kept a better "look out" and watched more closely the movements and approach of the "Albano" and in not having done something to avoid the blow. Mr. Ritchie strenuously contended that as no such fault was charged in the "Albano's" preliminary act, and the issue was not tried out in the court below, it would be unjust that a decision in appeal should be based upon it. But I think it clear that a fault or neglect on the part of one vessel, which cannot be presumed and is not proved to have been known to the other at the time of the fyling of the preliminary act, is not from that circumstance alone to preclude its consideration in determining the liability of the ships. As to the issue not having been tried out in the court below, it would appear that all the evidence possible to be given upon it was given by all of the officers of the "Parisian," and from that evidence it is clear that up to the moment when the "Albano" blew her whistle, or at any rate a very few seconds before that, no attention was being paid by the officers of the "Parisian" to her movements. The captain and officers of the latter ship had lost sight of the "Albano" and evidently had not the slightest idea of incurring any danger from her movements. We have not the advantage of being advised in this court by skilled assessors or of asking questions from them with regard to points of seamanship or what nautical skill or prudence required to be done under given circumstances. The assessor's finding of "gross neglect" on the part of the "Parisian" with respect of her "look out" depends entirely upon his main conclusion or finding that under the circumstances it was the duty of that ship under the rules to keep out of

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the way of the "Albano," from which conclusion I differ. But apart from that, from the best judgment I have been able to form, I cannot see that there were any measures of precaution which the "Parisian" ought under the circumstances to have taken, and which her officers failed to take. The "Parisian" was justified in coming to a stop for her pilot and had no reason to anticipate danger of collision from the "Albano" when she did so stop. It is said she should either have reversed her engines and gone astern or gone full speed ahead. It appears to me that either course would have only increased the risk of collision. I think that under the circumstances already detailed Captain Johnson had a right to assume either that the "Albano" would have stopped her speed, or if maintaining her speed would have either ported or starboarded her helm so as to have passed either astern or ahead of the practically motionless steamer in front of her, and that any attempt on his part, from the time when he should have seen that there was a risk of collision, to avoid it by forging forward or going back would only be likely to increase the danger. Not having steerage way on he could do very little while, on the other hand, the steamer approaching at the rate of 8 or 9 knots an hour controlled the situation. The "Parisian's" strength under the circumstances lay in "sitting still," and unless it could be held that his coming to a practical standstill to take up his pilot was in itself negligence under the circumstances I do not think, assuming the "Albano" to have been guilty of negligence as above held by me, that the "Parisian" could, by the exercise of the ordinary care, skill and diligence her officers were bound to bring to bear, have avoided the mischief which happened.

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With regard to the construction and application of the regulations for preventing collisions at sea, the rule seems to be correctly laid clown by Brett M.R. in The Dunelm[1], that they are to be construed,

if possible, not according to the strictest and nicest interpretation of language, but according to a reasonable and business interpretation of it with regard to the trade or business with which it is dealing,

which I take to mean that they ought to be construed as they would probably be understood by the class of men, masters of vessels, for whose guidance they are prepared.

The same learned judge said in The Beryl[2]:

Another rule of interpretation of these regulations is (the object of them being to avoid risk of collision) that they are all applicable at a time when the risk of a collision can be avoided—not that they are applicable when the risk of collision is already fixed and determined. We have always said that the right moment of time to be considered is that which exists at the moment before the risk of collision is constituted.

See also The Banshee[3].

As to the application of these rules, the same judge in the same case of The Beryl (2), at pp. 138 and 139 (in language quoted and expressly adopted by Lord Herschell in The Theodore H. Rand[4] said:

When you speak of rules which are to regulate the conduct of people, those rules can only apply to circumstances which must or ought to be known to the parties at the time; you cannot regulate the conduct of people as to unknown circumstances * * * Therefore the consideration must always be in these cases not whether the rule was in fact applicable, but were the circumstances such that it ought to have been present to the mind of the person in charge that it was applicable.

Some observations made by their Lordships of the Judicial Committee in "The Pekin"[5] are, I think,

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in point in the case before us. They had reference to article 22 of the then regulations, now article 19 of the existing ones, and as to the effect to be given the words "crossing so as to involve risk by collision," as regards vessels navigating the open sea and those passing along the winding channels of rivers. After pointing out that with regard to the latter vessels whether they are crossing vessels or not "depends upon their presumable courses" their Lordships go on to say:

The question therefore always turns on the reasonable inference to be drawn as to a vessel's future course from her position at a particular moment and this greatly depends on the nature of the locality where she is at that moment.

These later observations I understand to be general in their character, and not confined alone to vessels following the winding channels of rivers.

We were pressed with the case of The Ada v. The Sappho[6], affirmed in appeal by the Judicial Committee of the Privy Council[7].

When examined, however, that case, which in many respects is the converse of the one before us, will not be found to be a controlling guide for our decision in this case. The main question of fact in the case (as stated in the report of the hearing before Sir Robt. Phillimore) was as to which of the two vessels came up first to the pilot cutter, and the judgment of the learned judge proceeds upon the conclusion he reached from the evidence that

the lights of the "Sappho" were first seen from the pilot boat and she being the inside vessel the senior pilot ordered that she should be the first vessel to which the pilot should be sent and accordingly the boat was first sent to her.

The "Ada" was, therefore, held to be solely in fault

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for not stopping soon enough to have avoided the accident, the vessels being crossing vessels, the "Sappho" having the right of way and the circumstances not of themselves sufficient to take the case out of the rule.

It is to be observed that the answer made by the learned judge to the contention that the "Sappho" which under ordinary circumstances had the right of way should have avoided the collision because she should have foreseen that the "Ada" would stop about where she did for her pilot, was not that such circumstances had nothing to do with the case and that the "Sappho" had nothing to do but obstinately adhere to the crossing rule; but the answer was that the "Sappho" had herself got first to the pilot grounds and that the pilot was coming to her and not to the "Ada."

Sir J. W. Colville delivered the judgment of the Judicial Committee concurring with the court below in holding that there was nothing to relieve the "Ada" from the ordinary rule which required her to keep out of the way, and from his judgment it will be seen that it was not contended in that case that the "Ada" had not a right to stop at a suitable point for a pilot, but the contention was that she had approached too near to the pilot cutter in view of the position of the "Sappho," and he says:

On the other hand, if the vessels were crossing vessels as their Lordships think they were, and, as their Lordships also think, and the event has shewn, vessels crossing so as to involve risk of collision, it seems to their Lordships that it was the duty of the "Ada" to become absolutely motionless at a far earlier period that that at which she is said by some of the witnesses to have stopped, and thus, when it did, or ought to have become clear that the "Sappho" was coming inside the pilot vessel, and therefore would be the first to take the pilot, to have had the means of reversing her engines and keeping out of the way.

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In the case before us, however, the "Parisian" had clearly first reached the pilotage grounds, had slowed down till she was practically motionless, without steerage way, was, it may be said, in the very act of taking aboard the pilot who had come alongside of her from the pilot cutter in a row boat when the risk of collision first arose, and although so lying that the "Albano" was on her starboard side was not, in my humble judgment, from these circumstances, all of which must be held to have been present to the eye and mind of the "Albano's" captain, a crossing ship within the rule.

The appeals should, therefore, be dismissed with costs.

IDINGTON J. (dissenting).—I think no one can dispute that, for some time before any risk of collision in question, the lines of the courses of these vessels being prolonged would intersect.

They were thus within Marsden's definition of crossing vessels.

There were such distances, thus respectively sailed by each in its course, immediately preceding the collision, as to have involved the risk of collision within the meaning of article 19.

Once within the operation of this rule it became the duty of the officers in charge of the "Parisian" to keep out of the way of the "Albano." Why did they not?

Clearly, I think, because they failed to see, where they clearly should have seen, the "Albano."

I think the excuse given, of the "Parisian" having stopped for a legitimate purpose, is not to the point at all. The steps necessary to keep out of the way ought to have been taken some time before she

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was stopped, and considered in relation to the purpose of stopping and a proper place therefore selected.

I have no doubt that had the captain and others responsible for the navigation of the "Parisian" seen what was taking place in broad daylight, as they ought to have seen, they would have realized the risk involved as and when it became so, and when the risk could have been avoided; before, in the language of Brett M.R. in the case of The Beryl[8] it had become "already fixed and determined." True, that was said of a different rule, but one calling for similar interpretation.

The fact is clear on the evidence, that if the effort the "Parisian" made, when the risk had become thus fixed and determined, had been made two minutes earlier she would have been clear of the "Albano."

She had no right to stop just in front of the "Albano," or in the line of the course that the "Albano" was running, and had run, long enough for the "Parisian" to have found out the course being so run, and to have observed the rule of the road laid down for her in article 19.

It is idle to say, as has been urged, that if the "Parisian" had ventured ahead or to stop further back, clear of that line, the "Albano" might have done something else. The rule bound the "Albano" under such circumstances to have so continued her course and speed that the "Parisian" could confidentially act on her doing so. The "Albano" departing from this would have to suffer the consequences, if any.

As the judgment of this court, about to be given, is that the appeal be dismissed I need not labour with the conflicting evidence on this and many other points. I accept, for the present, as sufficient to know here,

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though contradicted, what Captain Johnson says as to the stopping of the "Parisian" in. the following evidence:

Q—After 4.59, how long was it before the vessel was still in the water? A.—At about three minutes past five she would be thoroughly stopped. The pilot boat was a little ahead of me, and the pilot thought that the impetus of the ship would bring us up to him; but we were so thoroughly stopped that he had to pull down to us.

Q.—How long after that was it that you heard the whistle and saw the vessel coming down on you? A.—It would be about five o'clock, and five or six minutes.

The preliminary act of the "Parisian" fixes the collision as taking place at six minutes and thirty seconds past five.

Two to three minutes is the length of the stopping there was of the "Parisian," according to the respondents' captain, who cries out about the "Albano" coming down upon him whilst lying still.

I assume as true that which the captain and officers of the "Albano" say as to the course of their vessel. I cannot see reasonable grounds for doubting it.

She had continued in what, generally speaking, was the same course for a good many miles. In that course slightly varied she had continued for the two or more miles she had sailed immediately preceding the collision.

That this distance was two or more miles may be verified in many ways either by computation based on times and rates of speed Captain Johnson gives, or on what Captain Kudenhold and others respectively state, as to the distance the "Albano" was from the pilot boat or cutter.

It was quite far enough off to have enabled the "Parisian" to have got out of the way, and quite near enough, I should say, to have then or thereabout involved

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the risk of collision before the "Parisian" slowed at all.

The case of The Ada v. The Sappho[9] disposes of the contention, rested on the facts, about each of the vessels going to take a pilot.

That case shews that such purpose does not dispense with the need of the observation of this article 19, and I would say especially so when a pilot might be taken on thereabout; not at a fixed point that could accommodate only a single vessel at a time, but at a place where this operation might have taken place within a field of possibly two miles or more in width and also in breadth.

My conclusion is, therefore, entirely different from that reached in the judgment of my brother, Sir Louis Davies, which I have read.

And if article 19 were not to govern, and the questions raised by article 27 had to be considered, I would not even then exonerate the "Parisian," and hence cannot concur in the results arrived at by the rest of the court.

The cases, I think, should be decided in favour of the "Albano."

My only doubt is as to whether or not the captain of the "Albano" ought not to have had more regard to article 27, and if blamable for not doing so his vessel might have to share the loss. But in my humble judgment the "Parisian's" officers had not regarded either rule until too late, and were guilty of negligence that caused the accident.

Appeal dismissed with costs.

Solicitor for the appellants: Alfred G. Morrison.

Solicitor for the respondents: Henry C. Borden.

Note.—Upon the application of the appellants, on

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30th March, 1906, to the full court, for an order to fix the bail on appeal to His Majesty in Council, it was contended by the respondents that there was no appeal de piano. After hearing counsel for both parties the court granted the application pro formâ, but expressed no opinion as to the right of appeal.