Supreme Court of Canada
Dagmar
Salen (Ship) v. Chinook (Ship), [1951] S.C.R. 608
Date:
1951-05-10
Rederiaktiebolaget Pulp, Owners of the Ship Dagmar
Salen (Defendant) Appellant;
and
Puget Sound Navigation Co., Owners of the Motor
Vessel Chinook (Plaintiff) Respondent.
1950: November 16, 17, 20, 21; 1951: May 10.
Present: Rinfret C.J. and Taschereau, Rand, Estey, Locke,
Cartwright and Fauteux JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA, BRITISH
COLUMBIA ADMIRALTY DISTRICT.
Shipping—Collision at sea—Fog—Both ships equipped with
radar—Speed —Passing port to port—Change of course.
Two ships, both equipped with radar, collided in fog-shrouded
waters of Puget Sound, U.S.A. The trial judge found the Dagmar Salen two-thirds
to blame and the Chinook one-third on the grounds that the Dagmar
Salen disregarded the general practice of vessels on this seaway to pass
port to port and that both were proceeding at too great speed.
Held (Estey and Locke JJ. dissenting) and reversing the
percentage findings of the trial judge, that the Chinook should be
charged with two-thirds of the responsibility and the Dagmar Salen with
one-third.
Both ships were going at excessive speed under the
circumstances and there was no rule nor invariable custom requiring vessels to
pass port to port, but the main fault rested with the Chinook for
changing her course just prior to the collision. If the Chinook had
maintained her original course or if, at that point, the engines had been
reversed, the accident would have been avoided; and if the radar screen on the Chinook
had been closely and accurately observed, the course of the other ship
would have been made clear and the risk eliminated. That blind action at the
critical moment was primarily responsible for the collision.
APPEAL from the judgment of the Exchequer Court of
Canada, British Columbia Admiralty District holding that the Dagmar
Salen was more at fault than the Chinook when the two ships collided
in the fog in Puget Sound, U.S.A.
R. C. Holden K.C. and J. I. Bird for
the appellant.
F. A. Sheppard K.C. for the respondent.
[Page 609]
The judgment of the Chief Justice and of Taschereau, Rand,
Cartwright and Fauteux JJ. was delivered by
Rand J.:—The
facts of the collision in controversy in this appeal can be stated shortly. The
Chinook is a motor ship 273.5 feet in length and of 4,106
gross tons, engaged in a daily service between Victoria and Seattle. The Dagmar
is likewise a motor ship 405 feet long and 5,000 tons gross. The former was
passing through Admiralty Inlet and approaching Puget Sound on the way to
Seattle and the latter, well laden, was proceeding north from Seattle bound for
Vancouver. The critical time runs from 8.00 o'clock in the evening of September
28, 1947. At that moment, Dagmar was abeam Double Bluff Point and about one-half
mile off the Horn buoy; equipped with four six-cylinder diesel engines of 1,100
H.P. each and a radar detector screen, she was making about 12½ knots through
the water with an ebb tide that may have brought the speed to approximately 14
knots over land. She was then running on a course 328 degrees true. Three
minutes later, the radar screen indicated a vessel 1½ to 5 miles distant about
one-half a mile northerly beyond Bush Point and approaching that point one-half
a mile off. At 8.05, the pilot, concluding the craft to be on a generally
southeasterly course along Whidby Island and too close to that land to allow Dagmar
to pass on the port side, changed his course by five degrees to 323 degrees
true for a starboard passing. At 8.07, the vessel entered thick fog and the
engines were reduced to half speed; at 8.08, a further alteration of course of
10 degrees to 313 degrees was made; at the same time, the whistle of a vessel
was heard from the direction of that indicated on the radar screen and the engines
were stopped. At 8.11, an alteration of course to starboard by the unknown ship
was detected on the screen and full speed astern was ordered; at 8.13½, the red
and masthead lights of Chinook were seen about 10 degrees on the
starboard bow, the vessel passing from right to left; visibility was about 600
feet. Both vessels blew three blast signals indicating engines at full speed
astern. The starboard bow of Dagmar at 8.14 came into contact with the
forward port side of Chinook just aft of the bridge. Neither
[Page 610]
vessel had more than bare way on it and the collision was
not severe. After Dagmar pulled back, each continued on its course.
The Chinook, likewise equipped with radar, had been
running through heavy fog for over an hour at 18 knots, and assuming it to be
against the ebb tide, was making, say, 16 knots over the land. It claimed to
have passed abeam of Bush Point at a distance of 1½ miles and that at that
time, 8.04, Dagmar appeared on the screen 5 miles distant and at about
30 degrees on the port bow. As this would have placed Dagmar to the east
of Double Bluff Point, it was obviously wrong and was admitted to be so by the
captain. This time of 8.04 is only a difference of about one minute from that
of the appearance of Chinook to Dagmar and it can be taken that
they came into view of each other at approximately the same time. Chinook claims
at 8.06 to have changed its course from 133 degrees to 150 degrees compass
bearing, the speed to have been reduced to one-half, and at 8.07 the engines to
have been stopped; at 8.08 the whistle of Dagmar is said to have been
first heard; the white masthead light of Dagmar to have been first seen
at 8.10; at 8.10½ the engines to have been put full astern; and at 8.11½ the
collision. But as of 8.06 and on, these times, taken from the entries on the
deck log, were found to be unreliable and were disregarded by the trial judge.
The Dagmar puts the position of the collision at a
point two miles northwest by west from Double Bluff buoy. As located on the
chart, the point is 7/10 of a mile west of a line drawn through the buoy to
Bush Point. The Chinook places it much farther to the north, at a point
1.1 miles, 210 degrees true, from Bush Point. From an examination of the
evidence and the charts, and keeping in mind the fact that Smith J. at the
trial remarked both on the frankness of the pilot of Dagmar and on the
unsatisfactory testimony of officers of Chinook and disregarded the deck
log of Chinook, I have come to the conclusion that the collision took
place approximately at the point and time fixed by Dagmar, a finding
which the trial judge did not find it necessary to make.
Disregarding that as well as what he considered other subordinate con-
[Page 611]
siderations, he placed his judgment on two overriding factors:
first, the disregard by Dagmar of a general practice of vessels on this
seaway to pass port to port; and the excessive speed of both. The former, in
effect, superseded all questionable behaviour other than speed on the part of Chinook,
and by reason of it he charged Dagmar with two-thirds and Chinook
with one-third of responsibility. I agree with his findings of excessive
speed, but I must qualify in some respects the effect of his finding of a
violation of the practice.
It was not contended that the waterway was a narrow channel
within the meaning of Article 25 of the Inland Navigation Rules governing the
vessels here, and there was, therefore, no rule requiring the vessels to pass
port to port. Nor was it contended that there was any invariable custom binding
the vessels to a port passing; at most, and the point was mentioned neither in
the preliminary Act nor in the statement of claim, it was the "usual
practice", more frequent than not; the question itself seems to have been
brought up casually or incidentally in the course of the evidence. There was,
therefore, no legal or quasi-legal obstacle to a starboard passing; but the
practice is a circumstance relevant to the actual navigation of a vessel
proceeding on the northerly run.
The Dagmar at one-half a mile off Double Bluff buoy
was on the course that would ordinarily be taken for a port passing; for two
minutes, immediately after the radar indication of Chinook, that course
was maintained; then for three minutes there was the five degree and for six
minutes the 15 degree alteration, the latter with the engines stopped. This
seems to me to have been a faulty initiation of a starboard passing. The
original indication was of a vessel approaching "pretty fast"; on the
testimony of the first officer of Dagmar who attended the radar screen,
the outline of a ship on the screen at a distance of several miles may take up
five or six degrees: her position is thus somewhat approximate: and assuming
radar equipment in the other vessel, a departure of five degrees from a course
would not at once be apparent. There was nothing to prevent the swing of 15 or
even 20 degrees from the first sighting to take Dagmar without delay out
of the easterly lane preparatory to a starboard passing.
[Page 612]
The result of the failure to do this was that the accident
took place within the range of the usual northbound course of Chinook itself
which may be taken to be that of ships, generally, observing the practice. In
the existing conditions of fog and courses, there was an obvious risk of
becoming involved with the incoming vessel, whatever her equipment; and to that
extent, I agree with the trial judge that the actual position of Dagmar introduced
an element of potential danger.
On the other hand, Chinook, relying on radar and the
stopping power of its engines, was travelling at a speed that, in the absence
of radar, would have been greatly excessive, and it called for unremitting
attention to the screen and the sharpest appreciation of what it revealed. If
radar is to furnish a new sight through fog, then the report which it brings
must be interpreted by active and constant intelligence on the part of the
operator.
It is a general rule as old as navigation that in fog, when
by one vessel the course of another within a danger zone is not yet
ascertained, without sufficient indication to justify action, no change of
course should be made: Vindo-mora v. Haswell ; and in The
"Wear" Hill, J. used this language:
It has been said over and over again in this court that when
in a fog you sight a ship whose direction or course you do not know the worst
thing you can do is to take helm action.
The same principle was applied in Crown Steamship v. Eastern
Navigation Co., "Lundy" v. "Miltistone"
,
and in the "Rona" and the "Ava" .
On the evidence, chiefly of the independent witness, Gordon, a passenger on Chinook,
I take the fact to have been that the engines of Chinook were still
working when the exchange of whistle signals was on between the vessels and
when Chinook, in his opinion, swung to starboard about 20 degrees. With
Smith, J., I take this as the change in course of 17 degrees which Chinook claims
to have made at 8.06, and likewise I take it to be the swing to starboard
noticed on board Dagmar and recorded as at 8.11 in the order for full
speed astern. That change, in the circumstances, would have
[Page 613]
been bad seamanship in the absence of radar, but it was much
more so in the presence of unattended radar and under the speed which radar was
felt to have made safe. If the original course had been maintained or if, at
that point, the engines had been reversed, the accident would have been
avoided; and if the radar screen had been closely and accurately observed, the
course of Dagmar would have been made clear and the risk eliminated.
That blind action at the critical moment was primarily responsible for what
took place.
This last circumstance has not, in the attribution of fault,
been taken into account by the trial judge. I would, therefore, reverse his
percentage findings and hold Chinook responsible for two-thirds and Dagmar
for one-third of the damages. The costs in both courts should be in the
same percentages to both parties.
The dissenting judgment of Estey and Locke JJ. was delivered
by
Estey J.:—These
actions arise out of a collision between the motor ship Chinook and the
Swedish vessel Dagmar Salen between Double Bluff and Bush Point in Puget
Sound, U.S.A., on the evening of September 28, 1947. The cross actions claiming
damages were consolidated and tried in the British Columbia Admiralty District .
The learned trial judge found:
Both vessels must be held blameworthy. Both were proceeding
at too great speed, the Chinook originally, and the Dagmar Salen as
she approached the fog-shrouded area. Both failed to reduce sufficiently when
their respective radars (properly observed) gave indication of the other's
approach on a bearing that changed but little, if it changed at all
and again:
I think, however, that the main fault (apart from excessive
speed) lay with the Dagmar Salen. She knew that the customary rule was
for north and south bound vessels to pass port to port, yet she chose to pass
starboard to starboard.
The learned trial judge found that two-thirds of the fault
rested with the Dagmar Salen and one-third with the Chinook and
apportioned the liability accordingly.
The Dagmar Salen appeals, contending that it was not
at fault and, therefore, the action should be dismissed or, alternatively, that
the Chinook be found to be more blameworthy and the apportionment of
liability varied accord-
[Page 614]
ingly. The Chinook submits that the judgment at trial
should be affirmed or, alternatively, that it be exonerated from fault and the Dagmar
Salen held to be entirely at fault.
The Dagmar Salen had left Seattle and was proceeding
outward through Puget Sound. She is a motor vessel of 5,000.65 tons gross,
length 405 feet, beam 51 • 3 feet, equipped with four six-cylinder Diesel
engines of 1,100 Horse Power each and a single propeller. Upon this voyage she
was carrying a general cargo of 7,000 tons.
The Chinook, a motor vessel ferrying between Victoria
and Seattle, was inbound to Seattle. This motor vessel is of 4,106 tons gross,
length 273.5 feet, beam 65.6 feet, equipped with four 1,600 Horse
Power Diesel electric engines and twin propellers.
There was no fog at Double Bluff. A mile or two north
thereof there was a dense fog which continued northward and covered the area
around and beyond Bush Point. The Dagmar Salen, therefore, in proceeding
outward bound at Double Bluff, was not in the fog, but did enter the fog a mile
or two beyond.
Both vessels were equipped with radar.
These ships were, at all relative times, subject to the
United States "Rules to Prevent Collisions of Vessels and Pilot Rules for
Certain Inland Waters". All courses and bearings given are magnetic.
The collision occurred between Double Bluff and Bush Point
and, due to a difference in their respective clocks, the Chinook fixed
the time at 20.11½ and the Dagmar Salen at 20.14.
It will be convenient to deal first with the learned judge's
finding that the Dagmar Salen was the greater in fault because she
violated the customary rule of port-to-port passing. On behalf of the Dagmar
Salen it is contended that this requirement of a port-to-port passing was
not proved and, even if it was, the Pilot had a right, in the circumstances, to
attempt a starboard-to-starboard passing.
The Pilot of the Dagmar Salen deposed:
… it is a common practice amongst the local pilots to follow
a course outbound close on the Whidby Island shore, passing Bush Point approxi-
[Page 615]
mately half a mile off. Inbound vessels usually steer
southbound from Marrowstone, a course to pass Bush Point at least one and a
quarter miles off, which always results in a port-to-port meeting.
As to his own practice he stated:
Also due to the fact in running a course from Double Bluff
to Bush Point I considered it good seamanship to stay on the right side of the
channel, which I follow at all times, …
and then as to the trip in question he stated:
Well, I am sure I must have realized it was a vessel
approaching before I ever altered course. If it was a vessel going the same way
I was, I don't think I would have made any alteration, because I was on a track
that I have followed out there ever since I have been piloting, and before
that.
The Master of the Chinook deposed that vessels pass
"port-to-port as a rule" and when questioned as to the northbound
vessels he stated:
All the vessels steer the same course. It does not make any
difference in the size, close on Double Bluff and approximately half a mile off
Bush Point.
This evidence is not in any way contradicted. While it does
not establish a port-to-port passing as an absolute rule, it supports the
learned trial judge's finding that there existed a "well-established
practice" requiring a port-to-port passing.
At 20.00 o'clock visibility was fair. The Dagmar Salen, as
the Pilot estimated, was then three-tenths of a mile off the buoy at Double
Bluff. At 20.03 the Chief Officer informed the Pilot of a target in the vicinity
of Bush Point at a distance which he fixed to be four and one-half miles. The
target was in the fog and this information was obtained from the radar screen.
The Pilot himself examined the radar. At first he could not determine what it
was. Then he thought it might have been "a small craft in on the point
bound for Mutiny Bay". However, he soon concluded that it was "a
vessel approaching" and the Chief Officer estimated that it was passing a
half mile off Bush Point. (The approaching vessel was, in fact, the Chinook).
In that position off Bush Point the Chinook would be
following the usual course of outbound vessels and, therefore, well off its
usual inbound course. Both the Pilot and the Chief Officer of the Dagmar
Salen make it clear that from the radar they could only approximately
determine the position of the Chinook off Bush Point. The
[Page 616]
latter thought he could do so within four or five degrees.
The Pilot himself deposed: "it was hard for me to estimate her exact
position." The truth of this statement is emphasized by the fact that when
asked, at his examination for discovery, the position of the Chinook off
Bush Point he replied:
I truthfully don't know; I don't want to answer the
question.
He also stated that "it is impossible to tell on a
radar if it is on a parallel course at that distance." Nevertheless he
concluded that the Chinook was proceeding "on a parallel course,
following the left-hand channel southbound," which he described as "a
peculiar course." In these circumstances, at or about 20.05, the Pilot,
having concluded the position of the Chinook to be half a mile off Bush
Point and that the Dagmar Salen was drawing 24 feet aft, decided he must
keep away from the shallow water which he described as "the 4-fathom spot
approximately 2½ miles, or 3 miles south of Bush Point" and that he should
make a starboard-to-starboard passing. It was at 20.05 he entered the fog and
altered his course five degrees to port, or from 305 to 300 degrees.
The Master of the Chinook determined by his radar
that he passed one and one-quarter miles off Bush Point. The learned trial
judge thought "it was rather less—certainly not more than one mile."
This distance of a mile would not have made it difficult for the Dagmar
Salen to pass Bush Point upon her regular course outbound and would not
have interfered with a port-to-port passing, which apparently the Pilot of the Dagmar
Salen intended and only abandoned because he thought the Chinook was
a half mile off Bush Point.
It was contended that the area here in question constituted
a narrow channel within the meaning of Art. 25 under which a "steam vessel
shall, when it is safe and practicable, keep to that side of the fairway or
mid-channel which lies on the starboard side of such vessel." However, it
is important to note that the general rule followed in this area is to the same
effect. Vessels outward bound follow the east and those inbound the west side
of this channel. If the Dagmar Salen was right in fixing the
[Page 617]
location of the Chinook off Bush Point she was well
over in the outbound channel and, as the Pilot of the Dagmar Salen stated,
she was following "a peculiar course."
Moreover, at Bush Point the Chinook was following a
course of 133 degrees and at Double Bluff the Dagmar Salen was following
a course of 305 degrees. The learned judge stated that at that time their
courses intersected at an angle of only eight degrees and added: "I think
there can be little doubt that the Chinook then had the Dagmar Salen closely
on her port bow, while the Dagmar Salen had the Chinook very
slightly on her starboard bow."
The Chinook was in the fog, but would be emerging
therefrom in a few minutes. The Dagmar Salen did not enter the fog until
it was aware of and had concluded that the Chinook was upon a peculiar
course. In these circumstances it would have been, as the learned trial judge
points out, good seamanship on the part of the Dagmar Salen to have
proceeded with caution and not to have altered her course, as she did, to port.
The Vindomora ; The Counsellor ; and 30
Halsbury, 2nd ed., p. 733, para. 944.
The Pilot's decision to make a starboard-to-starboard
passing was made, therefore, just before he entered the fog, in relation to a
vessel, itself in the fog and approaching him upon a peculiar course, the
position of which was at most only approximately ascertained. This explanation
on the part of the Pilot in justification of his decision was described by the
learned trial judge as "unconvincing."
Not only was the decision of the Pilot of the Dagmar Salen
to attempt a starboard-to-starboard passing not justified in the
circumstances, but, having made that decision, he continued to conduct his
vessel in a manner that, upon the evidence, cannot be accepted as good
seamanship.
Art. 16 of the above-mentioned Inland Rules reads:
Art. 16. Every vessel shall, in a fog, mist, falling snow,
or heavy-rain storm, go at a moderate speed, having careful regard to the
existing circumstances and conditions. A steam vessel hearing, apparently
forward of her beam, the fog signal of a vessel the position of which is not
ascertained shall, so far as the circumstances of the case admit, stop her
engines, and then navigate with caution until danger of collision is over.
[Page 618]
Neither at 20.05, when the Dagmar Salen entered the
fog and altered its course five degrees to port, nor at 20.08, when it altered
its course a further ten degrees to port, was the Chinook an ascertained
vessel within the foregoing Art. 16, as explained by Lord Macmillan in Nippon
Yusen Kaisha v. China Navigation Co.:
In order that the position of a vessel may be ascertained by
another vessel within the meaning of the Article she must be known by that
other vessel to be in such a position that both vessels can safely proceed
without risk of collision.
The Pilot, notwithstanding that the Chinook was then
an unascertained vessel, altered its course to port and attempted a
starboard-to-starboard passing which, under the circumstances of fog, and
having regard to the usual courses of vessels and the passing rule in this
area, would tend to confuse the Master or Pilot of an approaching vessel and be
more likely to increase than to diminish the possibility of a collision.
This alteration in course was contrary to the rule as
expressed by Lord Watson in The "Vindomora" supra at p. 8:
… that when a vessel at sea, overtaken by a fog, becomes
aware that another vessel is in her neighbourhood she ought, whilst complying
with the regulations as to speed, to keep on her course unless she has some
indications more or less reliable that it would be proper or at least safe to
change it.
It cannot be said, upon the Pilot's own evidence, that he
had indications "more or less reliable" that justified his alteration
to port in order to make a starboard-to-starboard passing. He, of course, knew
the Chinook was in the fog, but, upon his own evidence, he did not know,
with a reasonable degree of certainty, its position off Bush Point, nor did he
have, at any relevant time, sufficient, if, indeed, any, reason to believe that
the Chinook would not follow the usual course and pass port to port. His
evidence that he concluded the Chinook was half a mile off Bush Point is
a part thereof which the learned trial judge described as
"unconvincing." A reading of this evidence leaves the same
impression. His statement that he concluded the Chinook was half a mile
off Bush Point must be read with the other portions of his evidence, which have
already been mentioned, to the effect that it was hard for him "to
[Page 619]
estimate her exact position" and his earlier statement,
upon discovery, that he did not know her position off Bush Point. That appears
to be the only point at which he attempted to determine her distance off shore,
being thereafter content with his conclusions from the radar that the Chinook
remained on his starboard bow. Apart from the difficulties he had in
determining the exact locations on the radar, he himself had altered the Dagmar
Salen twice to port, which would appear to leave the Chinook upon
his starboard bow for some time even after she would be attempting a
port-to-port passing. All these circumstances of fog, the Chinook's unusual
position and the practice of a port-to-port passing, would require, as prudent
and seamanlike conduct, that the Dagmar Salen should have proceeded with
caution and upon the expectation that the usual practice would have been
followed by the Chinook at least until such time as she had given
sufficient indication to the contrary. Toronto Railway Company v. King
.
In this connection the words of Lord Wright are also appropriate:
Nor does any one doubt that it should not be lightly assumed
that a wrongdoing ship might not correct her error in time, and that it is not
desirable to prejudice her repentance so long as action can properly be deferred.
S.S. Heranger .
The Pilot of the Dagmar Salen did not know how long
it would take to stop that vessel, but he did know, as he stated, that it was
"heavily loaded, and she carried her way." Its engines were stopped
at 20.08 and, notwithstanding that his radar indicated only the approximate
position of the Chinook, the Pilot waited until 20.11 when he heard the
first fog signal from the Chinook before putting his engines full
astern, with the result that the Dagmar Salen had headway at the point
of collision. The Pilot was, therefore, proceeding without knowing whether he
could avoid the Chinook once it might come into sight. His conduct was
in disregard of the general rule requiring that only such speed should be
maintained in the fog after the presence of a nearby vessel is known as will
permit the avoiding of that vessel once it is seen. The Campania ;
The Oceanic ; The Counsellor.
[Page 620]
The Chinook was also at fault. It was, at all times
material hereto, in the fog. The Master admits that he observed upon his radar
screen a vessel which he subsequently found to be the Dagmar Salen when
he was off Bush Point. The learned trial judge was not convinced that the
Master of the Chinook "paid any proper attention to the radar
screen during the vital eight minutes preceding the collision;" and
further that he did "not altogether accept the evidence given by the Chinook's
Master and Chief Officer." These comments are fully justified upon the
evidence. It is, however, clear that the learned trial judge accepted the
Master's evidence that he altered his course from 138 to 150 degrees, but did
not accept his evidence as to the time of his making this alteration, in regard
to which he stated: "The exact time when the Chinook made this
alteration is one of the unsettled features of her evidence."
The appellant's contention that the Chinook's alteration
from 133 to 150 degrees was not more than three minutes before the collision
was not established by the evidence. The learned trial judge has already
indicated that he did not accept the evidence of the officers of the Chinook
that it was made at 20.06, nor does he accept the evidence of other parties
who sought to fix that time. The evidence of Gordon, upon which the appellant
laid great stress, goes no further upon this point than to state that when he
heard the fog whistle of the Dagmar Salen the Chinook was
swinging slowly to starboard and he estimated it was a twenty-degree swing up
to the moment of the impact. It was only an estimate and he did not speak with
certainty as to any time. All of the evidence upon this point supports the view
of the learned trial judge that the time of this alteration cannot be fixed.
Apart, however, from the exact time of the making of this
alteration, it was admittedly made after the Master of the Chinook was
aware of the near presence of the Dagmar Salen, which vessel, upon his
own evidence, could not be regarded as ascertained. Whether he was or was not
upon his usual course and notwithstanding the customary rule of a port-to-port
passing, his vessel was in the fog and, in these circumstances, this alteration
constituted negligence on the part of the Master of the Chinook.
[Page 621]
The contention that the practice of a port-to-port passing
does not obtain in the fog is well founded to the extent that, instead of their
following the rules as where visibility is such that vessels can be checked,
good seamanship requires that every move must be determined by the
circumstances and one of the primary rules appears to be that, once a vessel is
known to be nearby, engines should be stopped and no change in course should be
made until such vessel is ascertained. Neither of the vessels here observed
this rule. The action of the Dagmar Salen in entering the fog when the
approaching vessel was pursuing a peculiar course upon which it was not
ascertained, and in making the alteration to port in these circumstances,
constituted the greater negligence.
The appellant's submission that the entire cause of the
collision should be attributed to the conduct of the Chinook cannot be
supported upon the evidence. In support of this contention it is submitted that
had the Chinook used reasonable care it would have observed the Dagmar
Salen's alteration to port and realized it had decided upon a starboard-to-starboard
passing and would not have altered its course seventeen degrees to starboard,
or from 133 to 150 degrees. It is not established at what time the Chinook made
this alteration. Even if the Master of the Chinook had been giving
sufficient attention to his radar and observed the Dagmar Salen had
altered her course to port, it does not at all follow that the reasonable man
in the Master's position would, as he first noticed that alteration, have
concluded that the Dagmar Salen had decided upon and was making a
starboard-to-starboard passing. It was an unusual course and there was no
reason therefor so far as the Chinook was concerned. At what time, in
these circumstances, the Master of the Chinook ought to have concluded
that the starboard-to-starboard passing was being attempted by the Dagmar
Salen it is not possible to determine, nor can it be determined whether at
that time he could have done more than he actually did do. Moreover, there
would be a period after he noticed the Dagmar Salen's alteration during
which the Master of the Chinook would be apprehensive lest at any moment
the Dagmar Salen would again alter its course to effect the usual
port-to-port passing and should, therefore, stop his engines. We cannot know,
because the learned trial judge
[Page 622]
did not accept his log nor his evidence, at what point he
did stop his engines. This, however, is established, that at some time before
the Dagmar Salen came into sight some 400 yards distant the Chinook had
stopped its engines and placed them in reverse so that at the point of
collision the Chinook had no headway. Under these circumstances the
evidence does not establish that the Chinook is entirely to blame, but
rather, when read as a whole, supports the view that both were negligent and
that such negligence continued up to and contributed to the collision.
While the learned trial judge's finding "that at the
time of the collision neither vessel had more than trifling headway, that each
was blowing the appropriate fog signals, and that each gave the full astern
signal" is generally supported by the evidence, a careful reading thereof
indicates an important difference between the Chinook and the Dagmar
Salen in this respect, that the Chinook was either dead in the water
or proceeding slightly astern at the time of the collision, while the Dagmar
Salen still had a slight headway. Not only is this to be gathered from the
evidence of the various witnesses, but the point of collision and the
consequent damage make this rather clear. The stem of the Dagmar Salen collided
with the Chinook "right at the wing of the bridge on the port
side" and the nature and character of the damage would indicate that the Chinook
was not making headway at that time. Gordon and Holmes, who, in their
respective positions, had an opportunity to observe the vessels as they
approached each other, both agreed that the impact on the Chinook was
aft of where they thought it would be—Holmes says to a point of 25 or 30
feet—which would indicate that the Chinook was dead in the water, or
slightly astern. This is rather important in assessing the degree of fault to
be attributed to each of these vessels, as it tends to show that at the
critical time the officers of the Chinook had the better control of
their vessel. It is true the evidence establishes that the way of the Chinook
could be run off rather quickly. That, however, was only a circumstance to
be taken into account by those in charge. Against this the Pilot of the Dagmar
Salen did not know how much time it would take
[Page 623]
to run off the way of that vessel and did not adequately
provide for either his lack of knowledge in this regard, or the fact that he
had a two-knot tide in his favour.
The parties differed as to the place of the collision. They
respectively placed it at points separated by a distance of one and one-half
miles, each locating the place of the collision upon or close to their
respective courses, as they had deposed to them. The Dagmar Salen contended
that, having regard to its speed and distance, it could not have reached the
place where the Chinook said the collision occurred until some time
after it admittedly did occur. The same contention was made on behalf of the Chinook
in relation to the place of the collision as fixed by the Dagmar Salen. In
fact, the discrepancies in the evidence were such that, having regard to the
fact that all distances are more or less approximate and the respective times
questioned, it is impossible to draw any conclusion of assistance to either
party from the evidence as to the point of collision.
Both of these vessels were equipped with radar. The learned
trial judge was of the opinion that the Chief Officer on the Chinook had
"paid no attention to it" after 19.50 and, as to the Master, he did
not pay "any proper attention to the radar screen during the vital eight
minutes preceding the collision." On the other hand he was satisfied that
the Chief Officer on the Dagmar Salen did pay proper attention to the
radar but on this ship, while they made more continuous and accurate
observations, "they, too, changed too narrowly to permit of a safe
distance for passing in fog." The radar is no doubt of the greatest
assistance to navigation in the fog, provided the reading of the screen is made
with care and that, having regard to what is there disclosed, reasonable
precautions are taken. In this case it would seem that on the Chinook sufficient
attention was not paid to the radar, while on the Dagmar Salen, although
greater care was exercised in the use of the radar, the Pilot did not exercise
the care that the radar indicated to be reasonably necessary.
Both of these vessels were at fault, but the greater must
rest with the Dagmar Salen. In my opinion the learned
[Page 624]
trial judge arrived at the proper conclusions and his judgment
should be affirmed and this appeal dismissed with costs.
Appeal allowed.
Solicitors for the appellant: Campney, Owen,
Clyne, Murphy and Owen.
Solicitors for the respondent: Locke, Guild, Lane,
Sheppard and Yule.
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