Supreme Court of Canada
The Collins Bay Rafting and Forwarding Co v. Kaine,
(1898) 29 SCR 247
Date: 1898-12-14
THE COLLINS BAY RAFTING AND FORWARDING CO. (DEFENDANT)
Appellant;
And
JOHN C. KAINE (PLAINTIFF)
Respondent.
1898: Oct 12; 1898: Dec 14
PRESENT
:—Sir Henry Strong C.J. and Taschereau, Sedgewick King
and Girouard JJ.
ON APPEAL FROM THE COURT OF
QUEENSS BENCH FOR LOWER CANADA APPEAL SIDE.
Lease—Negligence—Hire of tug—Conditions—Repairs—Compensation — Presumption of fault—Evidence—Mecosure of
damages.
The company chartered, the tug " Beaver "
from K., by written contract dated at Quebec, 22nd May, 1895, by which it was
agreed that K. should charter the tug "
Beaver" for not less than one month from date, at forty-five dollars per
day of twenty-four hours. If kept longer than one month the rate to be forty
dollars per day. K. to furnish tug, crew, provisions, oil, etc., and everything
necessary except coal and pilots above Montreal. The tug to leave next
morning's tide, and to be discharged in Quebec.
The company took possession of the tug, put her in charge of
their pilot (who assumed the control, employment and navigation of the vessel),
and used the tug for their purposes until 8th July, 1895 when while still in
their possession, the pilot took her, in the day time into waters at the foot
of the Cornwall Rapids, in the River St. Lawrence, where she struck against
some submerged hard substance and sunk. She was raised a few days afterwards,
towed to port and placed in dock for repairs at Montreal. The orders were to
make the necessary repairs, to put the vessel in the same condition as she was
immediately before the accident and on 30th July, K. was notified that the
repairs were completed, that the tug would be put out of dock the following day
and he was requested to receive the tug at Montreal. K. answered that the
discharge was to be made at Quebec, that she was not in as good condition as
when leased and requested the company to join in a survey, which, however, they
declined to do. The survey was made by a naval architect who reported that, in
addition to the repairs already made, it would cost $2,494.90 to restore the
[Page 248]
vessel to the same condition as when
leased, to the company. On 1st August, K. took possession of the tug under
protest and brought the action for the amount of this estimate in addition to
the rent accrued with fees for survey and protest. The company admitted the
rent due and tendered that portion of the claim into court. The Superior Court
rendered judgment for the amount of the tender, dismissing the action as to the
remainder of the claim on the ground that K. had been sufficiently compensated
by the repairs which had been made by the charterers. The Courts of Review and
the Queen's Bench increased the verdict to the full sum claimed $4909.90, by
adding the amount of the surveyor's estimate and the fees. On appeal to the
Supreme Court of Canada:
Held, Sedgewick and Girouard JJ. dissenting, that the
contract between the parties was a contract of lease: that the taking of the vessel,
in the day-time, into the waters where she struck was 'primâ facie evidence
of negligence on the part of the company, and that as the company did not
adduce evidence sufficient to rebut the presumption of fault existing against
them they were responsible under the Civil Code of Lower Canada for the damages
caused to the vessel during the time she was controlled and used by them.
Held, further, that the proper estimate of damages
under the circumstances is the cost of the repairs which should be assumed to
be the measure of depreciation in value occasioned by the accident, and that no
substantial error arose from regarding the condition and value of the vessel at
the commencement of the lease as that in which she ought to have been
discharged.
Garboard J. was of opinion that the Superior Court judgment
should be restored
APPEAL from the
judgment of the Court of Queen's Bench for Lower Canada (appeal side),
affirming the decision of the Superior Court, sitting in Review, at Quebec, by which the judgment of the Superior Court, District of Quebec, at the trial, had
been reversed with costs.
The appellant
being engaged in the business of rafting timber and conveying it to Quebec, hired the steam tug" " Beaver " from the respondent, the agreement
[Page 249]
between the
parties being embodied in the following memorandum:
QUEBEC, CAN., MAY 22nd, 1895.
"It
is agreed between the undersigned, that Mr. J John C. Kaine charters the tug '
Beaver ' to the " Collins Bay Rafting and Forwarding Company for
" not less than one month from date at the rate of forty " five dollars ($45) per day of twenty-four
hours."
"
Should the tug be kept longer than one month, " the rate per day for the
balance of the period to be " forty dollars ($40)."
John
C. Kaine to furnish the tug, crew, provisions, " oil, &c, and
everything necessary to run the boat, except the coal and the pilots required
above Montreal. The tug to leave here to-morrow morning's " tide and to be
discharged here on expiration of agreement.
"Signed
on the day written above."
"JOHN
C. KAINE,"
"N.
FLOOD,
"Agent
for Collins Bay Rafting Co."
The company
took possession of the tug, put her in charge of their pilot, who assumed the
control, employment and navigation of the vessel, and used her for its purposes
until 8th July, 1895, when, while still in its possession, the pilot took her
in the day-time into waters at the foot of the Cornwall Rapids in the River St.
Lawrence where she struck against some submerged hard substance and sunk. She
was raised a few days afterwards, towed to port and placed in dock for repairs
at Montreal. The orders given by the company were to make the necessary repairs
to put the vessel in the same condition as she was before the accident, and on
[Page 250]
30th
July, K. was notified that the repairs were completed, that the tug would be
pat out of dock the following day and he was requested to receive-the tug at Montreal. K. answered that the discharge was to be made at Quebec, that she was not in as
good condition as when leased and requested the company to join in a survey
which however was declined. The survey was made by a naval architect who
reported that, in addition to the repairs already made, it would cost $2494.90
to restore the vessel to the same condition as when leased to the company. On
1st August, K. took possession of the tug under pro test and brought the action
for the amount of this estimate in addition to the rent accrued with fees for
survey and protest. The company admitted the rent due and tendered that portion
of the claim into court
The Superior
Court at the trial rendered judgment for the amount of the tender, dismissing
the action as to the remainder of the claim on the ground that k. had been
sufficiently compensated by the repairs which had been made by the charterers.
The Court of Review increased the verdict to the full sum claimed, $4,909.90,
by adding the amount of the surveyor's estimate and the fees. On appeal this
latter judgment was confirmed by the Court of Queen's Bench.
The appellant
asked to have the judgment appealed from reversed, and that the judgment by the
Superior Court at the trial should be restored.
Fitzpatrick
Q. C. (Solicitor
General for Canada), and Walkem Q.C. for the appellant. This was not a
demise but an agreement to give the vessel's services for one month in the
first place and thereafter from day to day at a certain rate per day, the
possession and management of the vessel remaining with the respondent. The
pilot to be part of the crew and the
[Page 251]
servant
of the respondent, the appellants paying for his services as well as for the
coal. Thompson v. Fowler ();
The Manchester Trust v. Furness ();
The Bees wing'' ();
Abbott on Shipping, pp. 61-69. Respondent had a right to choose his own pilot
if he wished to do so. The captain had supreme command and the pilot was under
his jurisdiction. Abbott on Ship ping, pp. 191-192.
Kaine agreed to
furnish the tug, crew, provisions, &c as the consideration of the payment
to be made to him and when the vessel sank he ceased to fulfil this agreement and
cannot claim compensation after that time. The clause providing that the vessel
should be discharged in Quebec, on the expiration of the agreement, does not
mean an undertaking or warranty to deliver the vessel but rather to pay for her
services until she was sent back to Quebec. Thus, the charterer would have to
pay for the time the vessel would reasonably take to reach Quebec, after
cessation of employment. When the vessel sank the charterers were under no
obligation to raise her, and for doing so and bringing her to the dock in Montreal after notice of their intention to do so, they would be entitled to salvage under
the admiralty law.
The provisions
of the Code, art. 1627,
are not applicable. If
there was no negligence on the part of the appellants, there would be no
responsibility on their part in this action except for the charter money. In
the lease of a vessel the risks are incidental to owner ship and user, the
modes of user being by leasing or chartering. The accident was one of the
ordinary incidents of the navigation in which the vessel was employed, one of
peculiar risk and danger to the know
[Page 252]
ledge
of the respondent. There was no evidence of negligence on the part of the pilot
who was a competent careful man knew the river well and had been engaged in the
business for many years. At the place of the accident there were thirty or
forty feet of water.
The unfortunate
result of the accident was due to the unseaworthy condition of the boat; the
stern post was rotten, the heads of the spikes corroded, the planks at the
stern loose. A vessel in our waters, particularly in the lakes and rivers, is
expected to be able to stand concussion with the bottom. It is an every day
experience that vessels touch in the rapids or in the river and any vessel in a
seaworthy condition should have stood the shock without injury. See Abbott on
Shipping, (13 ed.), pp. 384-385. The plaintiff should not recover damages
sustained in consequence of unseaworthiness. The claim was covered by the
amount paid into court, and the Superior Court found that the appellant had
done all repairs necessary to put the tug in the same condition as she was
before the accident.
The result of
the judgments of the Court of Review and Appeal is to compel the restoration of
the vessel to the condition in which she was when she left dock in Quebec in May 1895 and the accident happened in July, up to which time the boat was
constantly in use. No allowance is made for wear and tear during that period.
Yet the judgment appealed from compels the appellant to renew the boat.
The respondent
offered no evidence on which a correct estimate of the damages could be based
and the conduct of the respondent shows that he was satisfied with the repairs
being done. The instructions were " to examine the boat carefully and make
[Page 253]
her as good as before the accident," and
these directions were fulfilled These instructions must have been known to the
respondent and his captain who were both about when the repairs were being
made. After the repairs were made the respondent used the vessel in his
business both above and below Quebec and up to the time of the trial of the
action no further repairs had been made upon her.
The
appellant’s conduct in dealing with the vessel should not prejudice the defense
nor operate as an admission of liability. The company acted reasonably and
prudently and for the benefit of all parties. If not at fault it would be
entitled to salvage for raising the vessel, and, as wrecking is part of the
company's business, raising the vessel and binging her to Montreal was a safe
adventure. It certainly would not have been wise to leave the boat at the
bottom of the river at the foot of the rapids while the parties were fighting
out a dispute as to liability for the accident. The repairs were necessary to
float the vessel. Everything was done after a repudiation of liability and a
termination by the defendant of the contract and was so done without prejudice.
v»
also refer to Kopiloff v. Wilson ();
Steele v state Line Steamship Co. (); and Murphy v.
Labbé
().
Languedoc
Q.C and
Stuart Q.C. for the respondent. The evidence shows a complete demise,
and that the appellant's pilot was actually in full charger as master of the
tug at the time of the accident, also that he took her into shallow waters and
had no chart aboard; Maclaughlan on Shipping (4 ed.) p. 283; Baumwoll
Manufactur von Carl Scheibler v Furness ();
arts
[Page 254]
1601 1627 and 2413 O. C; Christie v.
Lewis ();
The Neptune the Second (); The Eden
();
consequently the appellant
is responsible for the damages claimed, and responsible for injuries which
happened during the lease, unless it is proved that the lessee is without
fault; Nugent v. Smith (),
per James L.J. at page 444; Pothier, Louage, nos. 192,
183, 197, 199 and 200. There is no pretence here of a vis major or for
tuitous event or of perils of the sea; Story on Bailments, no. 515a.
The offers of
settlement by respondent are admissions of liability; The V. Hudon Cotton
Co. v. Canada Shipping Co. ();
The Picton ();
Nordheimer v. Alexander ().
The question of
negligence decided by the trial judge, two judges of the Court of Review and
unanimously by the Court of Queen's Bench, should not be disturbed by this
court.
As the damages
arise from tort the respondent is entitled to the full amount resulting from
the accident. Marsden on Collisions p. 110. The Beaver must have been very
seriously damaged by straining and " hogging" for according to the
pilot's evidence, he ran her ashore twice; the first time there were 5 feet of
water forward and 18 feet aft and the second time she had 6 feet forward and 9½
feet aft, which must of course have strained the vessel very much. The
straining is established by the evidence; see The Clarence (). The sufferer is
entitled to restituiio in integrum.
There is no
difference between the admiralty and common law rules as to what damages are
[Page 255]
recoverable.
See foot note Parsons Maritime Law, vol. 2, p. 215, and Giles v. Eagle
Ins. Go. ().
It is a principle of Maritime Law that the wrong doer cannot claim salvage for
services rendered to the ship, etc. Marsden, Collisions, p. 46. In any case the
contract was to deliver the vessel at Quebec and respondent should have
tendered a sufficient sum to cover the expenses of bringing her to Quebec, as
well as the charter money for the time occupied in doing so, which was never
offered.
The judgment of
the majority of the court was delivered by:
KING J. As to
whether or not there was a demise of the vessel, the question in such cases is
not one of title but of control. Has the owner parted during the period of the
charter party with the entire possession and control? Baumvoll Manufactur
von Scheibler v. Gilchrest & Co. (); Steel v.
Lester ().
The evidence of
the master shows that the charterer controlled the employment and navigation of
the vessel. " Macdonald, the charterers pilot) said 'Go here, go there,'
and I took his orders * * I did nothing without he gave me his orders."
In this state
of things the charterer is under the Code responsible for injuries and loss
which happen to the demised vessel during his enjoyment of it unless he proves
that he is without fault.
Apart from the
provision of the Code, the fact that Macdonald personally directed the
movements of the vessel, and took her in the day time into waters where she
struck against a hard substance, is primâ facie evidence of negligence.
The theory that she may
[Page 256]
have struck
upon a floating log sunken at one end is wholly conjectural and has not been
accepted by any of the courssueiow.
Then as to the
amount of damages. The Superior Court held that this had been fully satisfied
by the repairs made by the charterers, but the Courts of Review and Queen's
Bench deemed that a further sum of $2,494 was needed to indemnify the plaintiff.
The charterers
having undertaken to restore the vessel to the condition she was in just prior
to the accident, the cost of repairs of damage occasioned by the accident is
assumed by both parties to be the mea sure of depreciation in value.
The rule in the
admiralty course is that the owner of a vessel wrongfully injured by collision
is entitled to have the damage occasioned by the wrongful act fully and
completely repaired without deduction on account of the substitution of new for
old material
It is
unfortunate that the appellants wholly ignored the request of the owner for a
joint examination on the completion of the charterer's repairs in Cantin's
dock. The report and conclusions of Auger, the per son nominated by the owner,
show clearly that the repairs made by the charterer in Cantin's dock were but
partial This is confirmed by Cantin's evidence who says that his orders did not
require him to make full repairs.
But there is
further a striking confirmation of Auger's report as to the condition of the
vessel contained in the testimony of Mr. Leslie, the charterers manager under
whom the repairs at Cantin's were made.
Q. Will you
look at it (Auger's report) now and go over it and make any remarks you think
necessary, and say if you agree with that or not. (Witness takes communication
of the paper.) Do you agree with the statements in the report?
[Page 257]
A.
I deny that the state of things described in Mr. Aiger's report was occasioned
by the accident. He refers to the butts being opened and filled with pine. That
certainly could not have been occasioze by the accident.
Q.
Do you deny the statements in the report itself?
A.
No. What I deny is that this state of things described in the report was
occasioned by the accident.
It is therefore
to he taken as proved that the physical appearance and. condition of the vessel after the repairs
put on her by the charterer were as described by Auger in his report.
Then the
question is: Was the damaged condition of the vessel occasioned by the
accident? If it was not or to the extent to which it was not, the wrong doer is
not under obligation to pay for or make good such damage. This is very clear.
Mr. Leslie in
denying that the vessel's condition was the result of the accident specifies
but one particular, viz., the but filled with pieces of pine. Now obvious that
the accident could not have the effect of filling butts with pieces of pine,
and it is not to be supposed that Auger intended to say otherwise.
Following the
usual form of such reports, the first part of it gives the physical appearanee
of the vessel, and then follow the proposed repairs and estimates of cost.
That the
paragraph of the report dealing with the vessels appearance is not a catalogue
of things to be remedied is manifest from the fact that it notes, among other
things, the new work done by the charterer on the vessel at Cantin's. In the
same way reference is made to the butts filled with white pine, as a fact of
appearance in connection with the strains of planking sprung in on both sides
of the keel.
In the
recommendations for repairs there is nothing to show that the planks filled
with pine at the butts are to be dealt
with in any way in consequence of
[Page 258]
their being so
filled, certainly nothing in terms, and nothing impliedly except so far as
repairs of the damage indicated by the springing of the planking would
incidentally remedy the other at the same time.
There is
therefore nothing in what is adduced by Mr. Leslie to show that Auoer's
estimate of cost covered damage not occasioned by the accident.
auger's
testimony stands as that of a man of proved experience and capacity who has
been credited by the Courts of Review and Queen's Bench as a trustworthy
witness. In these circumstances the appeal should be dismissed. The amount of
ordinary wear and tear in the few weeks elapsing between the beginning of the
charter and the date of the accident would be so trifling that no substantial
error arose from regarding the condition and value of the vessel at the earlier
instead of the later period.
For these
reasons the appeal should be dismissed and with costs.
Sedge wick J. dissented.
Girouard J.
(dissenting) The respondent chareered the tug " Beaver" to the
appellants by a written contract in the following words:
QuebEc, May 22, 1895.
It
is agreed between the undersigned that Mr. Kaine charters the tug Beaver for not less than one
month from date, at forty-five dollars ($45) per day of twenty-four hours. If
kept longer than a month the rate to be forty dollars per day.
Mr
Kaine to furnish tug crew, provisions, oil. etc. and everything necessary
except coal and pilots abode Montreal. The tug to leave here tomorrow morning's
tide, the tug to be discharged in Quebec.
J. C. Kaine,
N. Flood,
Agent for
Collins Bay Rafting Co.
The appellants
took possession of the tug in due time, and at the place indicated, and put her
under
[Page 259]
the charge of
their pilot, Capt. Macdonald, and used the same until the 8th of July, 1895
when, in their possession she was sunk in the St. Lawrence River, at the foot
of the Cornwall Rapids.
On or about the
13th of July, 1895, the appellants, having raised the said tug towed her down
to the port of Montreal and placed her in Cantin's dock for repairs. These were
made and competed on the 1st August, and paid for by the company to the amount
of $664.89, exclusive of the expenses of raising the boat and transportation to
Cantin's dock, amounting to the further sum of $1,201.69.
On the 30th
July, 1895, the respondent was notified that the repairs were completed, and
that the tug would be put out of dock the following day, and was requested to
receive the same in Montreal.
The respondent
answered that the boat was to be discharged in Quebec, and moreover that she
was not in as good condition as when leased, and requested the appellants to be
present at a survey to be held in Cantin's dock, at 11 o'clock of the 1st
August in which survey the appellants declined to take part.
The survey was
made by one Auger, ship carpenter and naval architect of Quebec, who reported
that the cost of repairing the tug, in addition to the repairs already made by
Cantin, would amount to the sum of $2494.90. The survey was made on the 1st of
August, but was written out and signed a day or two later on and reads as
follows:
MONTREAL,
Cantin's
Dry Dock 11 a.m.
On examination
I found the lower piece of stem made new. Stern post, after end keel, two after
garboards and the plank above made new. The keel bruised at several places,
sixty-five feet from stern post and six feet from keel five straiks of planking
sprung in on both sides. The open butts of planking filled with white pine. The
knee on the starboard forward wheel beam started. The stringer between wheel
beam on that side broken, has been strengthened by a piece of
[Page 260]
oak.
The butts of the main deck open at covering board, windlass, butts, mooring
butts and hatch coaming. The main deck joiner work started and moved forward
The pilot house the cover of steam drum, casing of engine frame, two posts and
mast started. The main keelson broken at cylinder. The butts of clamps and
ceiling open. Beams and knees at wake of boiler started. The rods of two posts
made to fit by seven-eighth washers. The after end of hull twisted to
starboard. The boat was sighted and found to have sagged when afloat about
eight inches from half-past three to five o'clock.
I
recommend the boat to be placed on dry dock. The main broken niece of keelson
replaced the balance of the centre line to be fastened with seven-eighth iron,
one bolt in each frame clinched on rings. The boiler to belied and replaced,
all her connections made good. Two keelsons of elm about 110 feet, 11 x 12 to
be fitted on both sides secured with one bolt of seven-eighth in each frame
clinched on rings. The scarf’s to be six feet bolted with seven bolts of
three-fourth iron. Two elm straiks of arches to be bent on both sides about 110
feet, 5 x 10, secured with three-fourth iron bolts in each timber. Seven
straiks of planking with two sheer straiks to be fastened with five eighth
screw bolts one in each frame. The started beams and hanging knees to be
secured. Deck to be respired and caulked joiner work to be secured and
retailed.
I
recommend the aboee repairs to be done to put her in the same condition as when
the boat came out from floating dock in the monk, of April, 1895.
I
estimate the materials and labour for those repairs to cost two thousand four
hundred and ninety-four dollars and ninety cents-($2,494.90).
ELZéAR AUGER,
Naval Architect.
On the 1st of
August the respondent took possession of the boat in Montreal under protest,
and by an action taken on the 31st August, 1895 claims this amount in addition
to the rents accrued to the day of delivery of the boat and $30 for the
surveyor and notary's fees, altogether $4,9099.00.
The appellants
pleaded that the contract was not one of lease and that, even if it was the
accident was not the result of any fault on their part, but was purely
accidental and caused by the dangers of navigation and the unseaworthy
condition of the boat.
[Page 261]
They, however,
tendered and deposited in court all the rents due to the 4th August, namely,
$2,385, covering the whole time required to reach Quebec, reserving their
recourse for the recovery of the salvage and the repairs at Cantin's dock, a
reservation which was not made when the first offer was made through Flood.
The Superior
Court (Caron
J.) maintained this
tender with costs of contestation, and the appellants were condemned to pay
$2,385, with interest from the date of service of process and costs of suit
incurred down to the filing of the plea.
Considérant
qu'il parait par Ia preuve de la Défenderesse a fait toutes les réparations nécesaires
pour remettre le dit remarqueur tel qu'il était avant l'accident, ce qui lui a
coûté six cent soixante-quatre piastres et quatre-vingt-neufcenss et
qu'elle l'a rdmené à Montréal à ses frais etc.
In Review this
judgment was modified, and the appellants were condemned to pay also the amount
of the survey, $2,494.90, and the fees of the surveyor and costs of notarial
protest, $30, altogether $4,909.90, Mr. Justice Routhier dissenting:
Considering
that in this respect the said judgment errs inasmuhh as it is satisfactorily
proved by the survey and the testimony of the surveyor (Auger) that it will
require a further expenditure of two thousand four hundred and ninety-four
dollars and ninety cents to restore the said tug;
Considering
the defendants were duly notified to be present at the said survey but absented
themselves, and have adduced no evidence whatever to contradict its conclusions
or put in question its accuracy.
In appeal this
judgment was unanimously confirmed.
None of the
courts pronounced upon the plea of un seaworthiness; but the three courts held
that the contract was one of lease and that the appellants were liable for the
damage to the tug under art. 1627 of the Civil Code, unless they proved they
were not in fault, and we agree in this proposition of law.
[Page 262]
The point at
issue is as to the liability of the appellants for the amount of the survey
made by Auger, namely, $2,494.90. Is it proved that it was necessary to place
the vessel in the condition she was before the accident? Was she seaworthy?
The case was
heard before the Superior Court at enquête and
merits. We have no notes of Mr. Justice Caron, but in his text judgment he has
entirely ignored the survey and testimony of the surveyor in its support.
The trial judge
was sitting as a jury, and unless manifestly wrong it seems to me that a Court
of Appeal, whether sitting in review or elsewhere, which did not see the
witnesses, should not disturb his findings of facts Sénésac v. Central Vermont Railway Co (); Cossetle
v Dun ();
Gingras v. Désilets (); Levi v. Reed
(). I find in the
evidence ample proof that they were right.
I have given
this case a good deal of time. I knew that upon a question of fact. the
findings of two courts go very far before this court. I therefore did my best
to reconcile myself to the judgment appealed from, and must confess that I
cannot do so.
I believe that
too much importance has been attached to the survey of Auger. The courts below
took the view that his evidence is not contradicted. But is it conclusive? That
is the least we should expect in a case like this, where he proceeded by
default, accompanied only by the respondent and his employees. True he
certifies, in his unsworn report, that the repairs he recommended to be made
were necessary to put the boat in the same condition as when she came out in
April, 1895, from Russell floating dock, which was under his superintendence.
But when in the
[Page 263]
witness box, he
is forced to admit that he made no examination of the boat in the Russell dock,
or elsewhere, before he made the survey:
Q.
Avez-vous vu
les morceaux qui out été enlevés? R.—Non, monsieur, parce que je n'ai pas fait
un examen dans le dock, quand il était dans notre dock. On a rien que
chevillé. Je naavais pas ordre de faire ça non plus.
Finally he
swears that the boat, as repaired by Cantin was not fit for towing below Quebec:
Q.
A
moins d'y faire des reparations quevous avez recommandées dans votre rapportt R.—Non.
The truth is
that during the fall of 1895 the tug made several trips in the Grulf, as far as
Father Point, and was used, without any repairs whatever, in the towing
business The whole of the following navigation season, till the 7th November, 1896, when the trial took
place. We do not know what has happened since.
It seems to me
that what Auger meant was to report not what was necessary to repair the damage
caused by the accident, but what was necessary to put her in good condition,
and he says so in express terms:
Q.
Vous avez recommandé dans ce survey là ce qu'il fallait pour mettre ce vaisseau là
en bon étaiit?
R.—Oui.
Q.
Entièrement en bon état de reparation? R.—Oui.
It is true that
in answer to a leading question
immediately following:
Voulez-vus
dire, pour le mettre dans le même état qu'il était avant qu'il monte à Montréal
et lorsqu'il est sorti de votre dock à la fin de mai?
He immediately
answers " Oui,
à penprès."
What is the value of this answer, in face of his
statement that he did not examine the boat when in Russell's dock?
The same
intelligence results from the testimony of Leslie who although not in a
position to deny that the
[Page 264]
repairs
recommended by Auger were not necessary, swears that they were not occasioned
by the accident.
He says:
I
deny that the state of things described in Mr. Auger's report—plaintiff's
exhibit " C " was occasioned by the accident. He reefs to the butts
being opened and filled with pine. That certainly could not have been
occasioned by the accident.
Q.
Do you deny the statements in the report itself?
A.
No; what 1 deny is that this state of things described in the report was
occasioned by the accident.
It must be
borne in mind that the appellants were not bound to build a new boat. In
collision cases, it has been held that the wrongdoer is not expected to replace
decayed timbers which had to be renewed to make the injured vessel seaworthy,
this damage being caused not by the accident, but by the old age of the vessel
and this rule was enforced even when it is proved that the decayed parts, if
undisturbed, would have lasted for some years. The Princess ().
The "
Beaver " was first built in 1858 for service in the construction of the Victoria Bridge. She was re built in 1873, and re-registered that year under the same name
but, as stated in the certificate of registry, with the old engine. She was
again rebuilt in 1884, and this time new boilers were put in. Respondent swears
that he spent $5,000 or $6,000 in this recon strutting, but if his memory is as
reliable as when he speaks of the repairs at Russell's dock as amounting to
$400 or $500, whereas in fact they came to only $298, we must accept the
figures of the respondent as exaggerated, and suppose that $3,000 or $4,000
were likely the correct ones. Whether they were or not, the respondent admits
that the hull built in 1813
was of no value in 1884,
and had to be renewed. The accident at the foot of the Cornwall Rapids happened
just eleven years after the hull was rebuilt in 1884.
[Page 265]
No repairs had
been made to the boat from that year to the spring of 1895, except small
repairs, " not very large," remarks the respondent in his evidence,
"just enough to keep her up." And the repairs in the spring of 1895
came only to $298, including $80 for docking charges. And in face of this
indisputable fact, the respondent wishes us to believe that, after this third
period of her existence, the hull of the boat was in good condition. The
evidence shows that the vessel was a rotten one, unseaworthy, that is, unfit
for the service for which she was chartered. The evidence adduced is conclusive
that the tug was rotten in her stern which struck the rock or log,
and it may reasonably be inferred that the rest of her hull considering her
age, was in the same decayed condition; but whether it was so or not, we have
the clearest proof that in her stern at least she was unseaworthy, and to the
mind it matters very little whether in this respect the appellants repaired the
damage or not; the fact remains undisputed that she was unseaworthy, that is,
not staunch, to use the expression of art. 2423 of our Code. The fact that they
did not insist Don their right in so far as the repairs to the stern of the
boat were concerned does not take it away with regard to the remaining portions
of the vessel. Consequently the appellants are not responsible for the damage,
unless they exposed the vessel to extraordinary perils.
The learned
Chief Justice of the Superior Court (Sir L. N. Casault), says that Capt.
Macdonald directed the vessel to a dangerous spot of the river, but this is
stated by only one witness, one Bergeron, the engineer of the "
Beaver," who is not only contradicted by Macdonald, but is only reporting
what the wheelman, Méthot,
told him, although not
examined.
[Page 266]
Under article
1612 of the Civil Code, the lessor is obliged to maintain the thing leased in a
fit condition for the use for which it has been leased; the thing must be
delivered in good state of repair in all respects,. art. 1613; the lessor is
even obliged to warrant the lessee against all defects and faults in the thing
leased, which prevent or diminish its use, whether known to the lessor or not.
Art. 1614. If the thing leased be a vessel art. 2423 provides that the lessor
is obliged to provide a vessel tight and staunch, and to keep her in
that condition till the end of the service. Art. 2413 provides that a lease or contract of
anreightment of a vessel and the obligation of the parties under the same, is
subject to the rules relating to carriers contained in the title of lease
and hire when these are not inconsistent; and art. 1675, respecting
carriers, says they are liable for the loss or damage of things entrusted to
them unless they can prove that such loss or damage was caused by a fortuitous
event or irresistible force, or has arisen from a defect in the thing itself.
Seaworthiness
implies that the hull is not only tight but sound staunch and strong, that is
sufficiently strong to stand the ordinary risks of her undertaking. Edea v.
Parkinson ();
Mills v. Roebukk and Lee v. Beach, reported in Park
on Insurance, (7 éd.),
p. 835. Parker v. Potts
();
Watt v. Morris ();
Foster v. Steele ();
Knit I v. Hooper ();
Douglas v. Scougall ();
see also decisions collected in 7 Am. & Eng. Ency. of Law (2 ed.) pages 211
and following; Valin Ord. de
la Marine 1681 liv. 3
tit. 3, art. 12. Pothier "Charte
Partie," n. 30, 68.
In Douglas v. Scougall (6), a certificate of seaworthinsss
had been issued by a ship
[Page 267]
carpenter who
had repaired the ship immediately before the voyage began, but without making
any thorough inspection. The ship sailed, and at the out set appeared to have
been for two or three days in a violent storm. In the protest, the master
stated that the sea sprung the boltsprit and wrought the stem entirely loose at
the same time washed the boats out of the chocks, the ship making three feet of
water per hour, and in consequence the master had to look for a place of
refuge. In an action by the owners to recover from the insurers £1,420, cost of
repairing the ship, it was proved she was an old boat and materially decayed.
The action was maintained by the trial judge but on appeal to the House of
Lords this judgment was reversed. Lord Eldon said:
The
ship sails, and appears to have been for two or three days in a violent storm.
If so damaged as that the damage might be fairly considered as the effect of
the storm that is one view of the case. But if damaged in such a manner as in
common probability she would not be, if she had been sea-worthy when she sailed
on the voyage, the implied warranty is not observed.
On
the ship coming into port she was surveyed by Scott and Steele and, whatever
Scott might say in 1812, it is clear that he and
Steele, applying particular assertions to particular facts, upon this survey,
stated that part of the timbers were decayed and that the iron work, in
general, was very much decayed and wrought loose * *
Having
considered the whole of this evidence I never was more clear about anything
than that it is proved to be perfectly manifest, and proved to my entire satisfaction, that
this vessel was not sea worthy for the voyage when she sailed, whatever might
then have been the opinion of the owners and carpenters who repaired her.
Seaworthiness
is not a fixed inflexible quantity; it is a question of fact which must be
decided according to the circumstances of each case; the degree required has a
relation to the length and hazardousness of the employment. Dixon v.
Sadler ().
The appellants had reason to suppose that the boat was at least sound
[Page 268]
and capable of
touching bottom without going to pieces a very common occurrence in river and
canal navigation, especially in the navigation of a tug engaged in the towing of rafts between the rapids of
the St. Lawrence river.
The repairs
done at Cantin's and the examination which preceded the same, disclose the fact
that the boat was in a rotten condition. The very assertion made by Auger that
a further expenditure of $2494.90 was required to put the hull in as good
condition as before.(for the boilers and machinery were not injured), shows
that a rebuilding was needed as was done in 1873 and 1884.
While
collecting some dispersed portions of a raft at the foot of the Cornwall
rapids, her stern struck a submerged log or a rock, it matters very little
which under the pleadings, and she was shortly after beached on an even bottom
of the river without apparently receiving any further injury. Immediately
Captain Fournier wrote to the respondent:
When
we struck that rock we were going to try to haul off drams on a shoal called
the Crabs. In starting from a little bay on the south side of the river we
struck a big rock near the stern post, they say that there never was any rocks
there before; the stern post is split and & little piece of the
rudder broke, and all the butts from her seven feet mark down to the keel are
open from her stern post four inches, and three seams open about fifteen feet
long and an inch wide and fore head the ten is about two inches open from the
planking, and nearly all the butts from the wheel to the stern are open from
the wheels to the stem. She bends five feet.
The boat was
raised and towed down to Cantin's dock in Montreal, where she was examined by
many experts, but by no one on behalf of respondent. Then was, however, the
proper time for a survey. Instructions were given to put her afloat, and in a
good condition to go about her usual work. This was done without any complaint
on the part of the respondent,
[Page 269]
or his captain
who watched the repairs and suggested some of them. Cantin says:
Q.
Did you examine the vessel pretty thoroughly?—A. No. I did not. I examined the
stern where the work was done.
Q.
What was the condition of the wood work at the stern? I mean independently of
the accident?—-A. It was pretty ripe.
Q.
Well, I suppose ripe means rotten?—A. Yes.
Q.
What did you find to be in that ripe condition you speak of? A The upper part
of the stern post and the apron particularly were defective. We took them out
and replaced them with new. They were rotten.
O
Not in such a condition as they should have been had the vessel been
sea-worthy? A. The vessel if she had not touched anything would have got along
all right.
O
If she did touch something 2 A She would not resist it quite as well
Q
How did you find the planking in the stern of the vessel? A. They came off
pretty easily.
Q.
What did that indicate?—A. It would indicate, of course, that they had been
started by this accident.
Q.
How did you find the bolting or spiking at the stern of the vessel? A. Some of
them were somewhat corroded by evidently, the salt water
Q.
What had corroded upon them? A. Underneath the part between the plank and the
fiame-- the inside.
Q
What was the result of the corrosion so far as holding the vessel together was
concerned?—A. The vessel could have got along if she had not touched the
bottom.
Q
That then was the condition of the vessel at the point where the accident
occurred?—A. The principal part.
Trudeau
Cantin's foreman:
Q
Avez-vous vu dans quel état était le bois du bâtiment le corps du bâtiment,
dans quel that était-il? était-il pourri?—R. Bien, pour le sûr qu'il était
pourri vous savez bien cc qui était défoncdé était pourri. Le bordé qui tait
pourri, il fallait calfeutrer, et lorsque cane calfeutrait pas......
Q.
C'était tellement pourri qu'on ne pouvait pas calfeutrer?— R. Des places. Pas
tout.
Q.
Est-ce qu'il y en avait pas mal comme ca?—R. Pas bien mais iusciu'en haut des
échoirs.
Q.
Jusqu'en haut de la ligne d'eau?—R. Oui, Monsieur.
[Page 270]
Q.
C'étatt tout pourri, n'est-ce pas?—R. Pardonnez, pas tout, ii ne faut pas
mettre tout, un morceau d'un bord, un morceau de l'autre.
Captain
Macdonald:
Q.
Did you see her put in Cantinss dock? A Yes.
Q,
Did you examine her after she was put in? Yes.
Q.
First as to the stern what did you find its condition to be? A. I found her
stern post knocked to one side.
Q.
Which side? A. Knocked ove-r to the port side.
Q.
And anything more?—A. .There was a plank loose on the bottom; the carpenters
went to pry the plank off and it came off quite easily; it almost fell alone.
Q.
What was the condition of the other plans at the stern? A. The timber was
rotten, nothing to hold them. '
Q.
Which timbers do you refer to? A. The frame where the planks were spiked.
Q.
What was the condition of the stern post? A All the dead wood was rotten, that
is there was nothing to hold the stern post.
Q.
What did you find the condition to be of the bolts or spikes that fastened the
timbers? A All the spikes were eaten off with rust * *
The
place where I beached her is a flat bottom and very level.
Leslie, manager
of the company, appellants:
I
went to the scene of the accident as soon as I heard of it I went to the
steamboat. I made no examination of the place
Q
How did you find the vessel herself? A. On the bank outside the Cornwall Canal, on the north bank of the river lying in a slanting direction Her bow was in
about six and a-half feet of water and her stern nine and a half. She was lying
on the bottom with a little list to port.
Q.
Was she resting at both ends?—A. Yes. Resting straight through all the way; I
had her examined by a diver there. He went all round her.
Q.
If there had been any rocks in the middle between the stem and stern what would
have been the result? A She would have her bottom pinned up. There was no
indication of that kind That is why we made the examination to see if we had to
pump her at once.
Q.
What did you do then? A. We found out where the leaks were at the stern and we
put some canvas and boards over it in the usual way and pumped her out and she floated. We
put two pumps on her. In ordering the pumps, I thought it was as well to get
two as one, as we had to bring the steamboat down with the pumps from Kingston. I sent for two. We pumped her out, patched her, and sent her to Montreal
[Page 271]
Referring to an
examination he made of the boat in Cantin's dock he continues:
Q.
What did you find?—A. I found how the accident had occurred. She struck her
stern and the post was broken—twisted o el
to port,
probably a foot at the bottom and the garboard started and we found the stern
post and all the apron inside perfectly rotten.
Q.
Could you judge from the appearance of the stern post what had caused the
accident?—A. Yes, distinctly how it occurred. My supposition was strengthened
that she had struck a stick of timber because there was no abrasion on the
bottom of the keel; just as though something caught her at the stern post and
she cleared it evidently at once. I found another thing that probably went on.
Her butts had been opened and wedged evidently when she had been in the docks
before. The butts' are where the planks come together.
Q.
What had been done to these?—A. They had been open and pieces of pine put in
from an inch to an inch and a half.
Q.
What did you find to be the state of the bolts?—A. We had to pull the planks
off aft. The oakun was taken out and they put in a bar to start the plank and
the whole plank nearly fell off. They did not require to wedge it.
Q.
As a matter of fact what does that indicate?—A. That the fastenings had all
been rotted out; the iron fastenings.
Finally, he
says:
Q.
Was the vessel an old boat?----A. Yes.
Q.
Had she been kept in good repair?—A. She was not in good repair when I examined
her.
Q.
In what way do you mean?—A. The stern poses were rotten, and the apron.
Q.
And you alluded to the bow?—A. The stem had started and the opening had been
filled up by driving m a piece of rope.
Auger also
swears:
Q.
Les butts
qui
étaient ouverts et qui avaient été arranges par vous autres, ce n'est pas
l'accident qui avatt cause ça?—R. Non. Comme je viens de dire, c'est l'âge du bâtiment.
It seems to me
that the appellants have proved their plea of unseaworthiness, and upon that
ground and also for the reason that there is no satisfactory evidence that the
repairs recommended by Auger were occasioned by the accident, I feel disposed
to allow the appeal with costs. Were it not for the admission of
[Page 272]
the appellants
in their pleas, and the tender made by Flood on their behalf, and renewed under
reservation by their pleadings, I would dismiss respondents action for everything beyond the rent due on the day of
the accident, the appellants having rebutted, in my opinion, the presumption of article 1627, by proving that the loss
happened without any fault on their part, and that the unseaworthy condition of
the boat was the immediate cause of the damage.
In France and on the continent of Europe generally, when it is proved that the vessel was unseaworthy
at the beginning of the service, she does not earn any freight, and the owner
is further responsible for any damage which the lessee might suffer. Art. 297 of the Code de Commerce and the Ordonnance de
la Marine
of 1681, liv, 3, tit 3, art. 12, say so
in express terms. Valid, in his comments, seems to think that such is the
universal maritime law. The English law, which is followed also in the United States and the British Colonies, is not so severe. The charterer is always liable in
damages, but he may, in certain cases, recover a certain proportion of the
freight, and even the whole of it; and that seems to be the rule which was
adopted by the Quebec Civil Code, arts. 1065, 2423, 2426, 2448. It is not
necessary to dwell any longer upon this point in face of the admission contained
in the pleas, which is in these words:
The
defendants while denying any liability to the plaint in except for the sum of
two thousand three hundred and eighty-five dollars ($2,385) being the
balance of the charter money, nevertheless tendered to the plaintiff, before
this action was brought, the sum of two thousand three hundred and eighty-five
dollars, without preju dice or admission of liability on the part of the
defendants, in full satisfaction of the plaintiff’s claim which sum the
defendants allege was amply sufficient to pay such claim, but the plaintiff
refused to accept the sum so tendered. And the said defendants deposit here
with the said sum of two thousand three hundred and eighty-five dollars and of
the said tender pray acte.
[Page 273]
It is
undoubtedly a very unfortunate admission and tender as it includes the rent
accrued after the accident till the delivery of the boat supposed to have taken
place in Quebec, on the 4th of August. It is in contradiction of the previous
allegations in the plea. Evidently the appellants were anxious to avoid
litigation, and on the 23rd August, 1895, they authorized their agent in
Quebec, Flood, to offer, and through him did offer, the respondent,—but not à deniers découverts—the sum of $3,015, less $630, already
paid, that is all the rent to the 4th of August in full settlement of your claim against
said company for services rendered by tug " Beaver." It is this offer
which the company has repeated by their pleadings under reservation.
I am not
willing to extend the scope of that admission or tender beyond its terms; and
therefore, upon the two grounds that the tug was unseaworthy and that it is not
proved that the repairs recommended by surveyor Auger were occasioned by the
accident in question, I am of the opinion that the appeal should be allowed,
and the judgment of the Superior Court restored with costs before this court
the Court of Queen's Bench and the Court of Review.
Appeal dismissed with costs.
Solicitors
for the appellant: Fitzpatrick & Taschereau.
Solicitors
for the respondent: Caron, Pentland & Stuart.
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