Cominco Limited v. Bilton, [1971] SCR 413

Supreme Court of Canada

Cominco Limited v. Bilton, [1971] S.C.R. 413

Date: 1970-05-04

Cominco Limited (Plaintiff) Appellant;

and

T.E. Bilton (Defendant) Respondent.

1969: April 30; 1969: May 1; 1970: May 4.

Present: Cartwright C.J. and Abbott, Martland, Ritchie and Spence JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Shipping—Carriage of goods—Negligence—Duty of care—Scows towed by tug—Master of tug employed by carrier—Scows sank at mooring—Goods lost or damaged—Duty of master to owner of goods—No fault of tug master.

The plaintiff brought this action for damages against the defendant in his capacity as a tug boat master employed by S, alleging that he was so negligent in his performance of a contract whereby his employer had agreed to transport the plaintiff’s goods by water from Vancouver to Port McNeill, B.C., that the scows in which these goods were carried sank at their mooring at Port McNeill booming ground with the result that the plaintiff’s goods were lost or damaged. The trial judge dismissed the action. He took the view that when the contract for carrying is between the carrier and the owner of the goods, the master employed by the carrier is not liable to the owner of the goods for the negligent carrying as he is under no duty of care to the owner of the goods. The plaintiff appealed to this Court.

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Held (Spence J. dissenting): The appeal should be dismissed.

Per Cartwright C.J. and Abbott, Martland and Ritchie JJ.: In carrying out that part of the contract of carriage which his employer had engaged him to perform, the defendant was temporarily in control of the plaintiff’s cargo and during this limited period the plaintiff was a person whom he should have had in contemplation and to whom he owed a duty to take reasonable care to avoid acts or omissions which it could reasonably be foreseen would be likely to injure the cargo. But the defendant was under no duty to the plaintiff to care for its goods after he had completed his allotted task of towing the scows to Port McNeill. He had nothing whatever to do with the selection of the booming ground at Port McNeill as the place to tie up the scows nor was he responsible for their supervision while they lay at the mooring. There was no evidence that, even with extraordinary tide, the way in which the scows were secured would be likely to place an undue strain on a reasonable sound and well-founded piling. The evidence indicates the sinking to have been occasioned by the scows swinging free because the worm eaten pilings failed to hold, with the result that they veered to an angle of 90° from their original position, settled on the sharp ends of pilings under water and sank. The loss and damage to the cargo was occasioned by the condition of the booming ground where S, to the knowledge of the plaintiff, moored its cargo-laden scows.

Per Spence J., dissenting: The physical acts of the mate and the deck-hand who tied up the barges at the booming grounds were as much the acts of the defendant as if he had done them himself. Although they were not his employees, they were under his direct orders and were acting on his direct orders. Upon undisputed evidence, the actions taken by the defendant or upon his express instructions in the mooring of the two scows exhibit acts of negligence, which were the direct cause of the sinking of the barges and the consequent damage to the cargo. These acts of negligence on the part of the defendant give rise to a cause of action against him by the plaintiff, the owner of the cargo which was lost. The plaintiff rightly submits that the person who is so closely and directly affected by the act of the master that the master ought reasonably to have had that person in contemplation as being so affected is the owner of the cargo and that,

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therefore, the owner of the cargo is a “neighbour” within the principle of Donoghue v. Stevenson, [1932] A.C. 562.

APPEAL from a judgment of Sheppard J., Deputy Judge of the Admiralty District of British Columbia, dismissing an action for damages against a tug boat master. Appeal dismissed, Spence J. dissenting.

W.J. Wallace, Q.C., and H.C.K. Housser, for the plaintiff, appellant.

Vernon Hill, Q.C., for the defendant, respondent.

The judgment of Cartwright C.J. and of Abbott, Martland and Ritchie JJ. was delivered by

RITCHIE J.—I have had the advantage of reading the reasons for judgment of my brother Spence but as we unfortunately appear to disagree as to the effect to be given to some of the evidence, I think it desirable for me to state my understanding of the facts upon which the learned trial judge based his decision.

As the submissions advanced on behalf of the appellant are based in great measure on the construction which its counsel places on evidence as to times, distances and other matters of detail elicited from the respondent on cross-examination and on his Examination for Discovery, it appears to me to be important to bear in mind that, at the trial, the respondent was speaking of events which had taken place more than six years and eight months earlier and that his Examination for Discovery did not take place until four years after the happening of these events. The task assumed by the appellant in this case is well illustrated in a statement made by its counsel when he was seeking to introduce the notes concerning the salvage operation which was made necessary as a result of the sinking hereinafter described. At that time appellant’s counsel said:

We are dealing with a sinking which occurred beyond the sight of men. It is still possible, in my sub-

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mission, with the assistance of the notes as to what was done with the barges when they were raised to reconstruct what happened and to explain the sinking.

(The italics are my own.)

What the appellant sought to do was to attribute the cause of the sinking to the fault of the respondent by attempting to reconstruct and explain what had occurred not only beyond the sight of men, but at a period so distant in point of time as to strain and partly obscure the recollection of the witnesses. This is illustrated by the fact that when an effort was made in the course of cross-examination to pin down the respondent to an exact time, he had to reply: “It has been so long. I am all mixed up in my times now.”

These were circumstances which had to be weighed by the learned trial judge in evaluating the evidence for the purpose of rendering his decision which he did thirteen days after the conclusion of the trial when the testimony which he had heard and the manner in which it was given were fresh in his mind.

This is an action brought against the respondent in his capacity as a tug boat master employed by Straits Towing Limited, (hereinafter referred to as “Straits”) alleging that he was so negligent in his performance of a contract whereby his employers had agreed to transport the appellant’s goods by water from Vancouver to Port McNeill, B.C., that the scows in which these goods were being carried sank at their mooring at Port McNeill booming ground with the result that the appellant’s goods were lost or damaged.

Straits is in no way concerned in this litigation, but it is interesting to note that the President of that Company gave evidence to the effect that a claim had been made against it by Consolidated Mining and Smelting Company and plaintiff’s counsel said in opening:

My lord, there is an arrangement between Straits Towing Limited and the plaintiff, who at that time was the Consolidated Mining & Smelting Company of Canada Limited, now Cominco, which was hauling cargoes destined for Cominco mine at Benson Lake to Port McNeill. Those cargoes were destined

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for a particular place in Port McNeill, as shown in a number of the manifests, namely, a place called the Mannix Grid.

(The italics are my own.)

Although Straits is not a party to the action, it nevertheless appears to me that the conditions of carriage agreed to between that Company and the appellant and the task which it had employed the respondent to perform, are important factors in determining the issues raised by the pleadings.

The learned trial judge took the view, based on the decision of the Exchequer Court of Canada in R.M. & R. Log Limited v. Texada Towing Co. Ltd. et al[1], that “when the contract for carrying is between the carrier and the owner of the goods, the master employed by the carrier is not liable to the owner of the goods for the negligent carrying”. This proposition flows from the findings made in that case that “while the master… was in fact negligent, he in law was under no duty of care to the plaintiff.”

The appellant’s counsel, however, contends that although the respondent was under no contractual duty to the appellant, he should under the circumstances have had the appellant in contemplation as being a person directly affected by his acts and therefore one to whom he owed a duty as a “neighbour” within the meaning attached to that word by Lord Atkin in the well-known passage from Donoghue v. Stevenson[2], which has been reproduced in the reasons for judgment of my brother Spence. It was contended that it was a breach of this duty which occasioned the loss and damage complained of.

In carrying out that part of the contract of carriage which his employers had engaged him to perform, I think that Bilton was temporarily in control of the appellant’s cargo and that during this limited period the appellant was a person whom he should have had in contemplation and to whom he owed a duty to “take reasonable care to avoid acts or omissions” which it could reasonably be foreseen would be likely to injure the cargo.

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To this extent I am in agreement with my brother Spence as to the law applicable to the circumstances, but in my view the scope of the duty which the master owed to the cargo owner in this case was limited by the terms of his own contract of employment with Straits and the nature of the task which he had agreed to perform under it. The duty which Bilton owed to the appellant did not arise because he had made a contract; it is rather the fact that he had entered upon specific work in relation to the appellant’s goods which in my view gives rise to the respondent’s duty at law and it follows that that duty must be measured by the extent and nature of the work which he had undertaken. In my opinion therefore, Bilton was under no duty to the appellant to care for its goods after he had completed his allotted task. A consideration of the facts will, I think, serve to illustrate this.

The cargo in question in this case was one of a number of such cargoes which Straits had agreed to transport for Cominco from Vancouver to Port McNeill and thence for delivery to a Mannix unloading grid for carriage forward overland to Benson Lake by Continental Explosives Limited. In discharging this obligation, Straits adopted the practice which it followed in this case of breaking the voyage into three stages, each of which required the use of a different tug. The procedure was that the goods were loaded on a scow or scows in Vancouver and towed by a harbour tug to a point at which another tug took them over for the tow to Port McNeill where they were left in a booming ground to be picked up by a third, smaller tug owned by another company but paid for by Straits, which towed them to the Mannix grid as the seagoing tug was too large to dock there.

In the present case, a barge (which can best be described as a scow with a superstructure on deck) and a flat scow were loaded in Vancouver with Cominco’s cargo and thence towed out to the Kitsilano Buoy by a Straits’ harbour tug called Arctic Straits where they were transferred to the tug Victoria Straits of which the respondent was the master, for the tow to Port McNeill, a

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voyage of some 36 to 42 hours. (The craft which were being towed are hereinafter collectively referred to as the “scows”).

The respondent, who had only been employed by Straits as a master for about two weeks, received his instructions from the office despatcher to pick up the two scows at about 11:30 p.m. on Friday, January 5th. All that he was told was “to pick up the two scows at Kitsilano Buoy and take them to Port McNeill for C.M. & S.”. The Straits Company had provided a crew on the Victoria Straits consisting of a mate and a deckhand; whether or not these two seamen had been employed aboard the tug before Bilton was named as Master is not clear, but it is plain that he had no hand in employing them and that they were in no sense employees of his but like himself they were selected and employed by Straits. After a smooth passage the Victoria Straits arrived at Port McNeill sometime between 2:30 and 3 p.m. on Sunday, January 7th, and went immediately to the government dock where it was met by a man named Simpson who received the cargo manifest from the mate and gave instructions for the scows to be tied up in the area of a booming ground which was controlled by the Rayonier Company whose smaller tug had, with the knowledge of Cominco, been hired by Straits to complete the tow to the Mannix grid.

It becomes important to determine the role played by Simpson in the performance of the contract between Cominco and Straits. The learned trial judge spoke of him as an “employee of the plaintiff” and although this does not appear to me to be strictly accurate, I am nonetheless satisfied that he was acting on behalf of Cominco in giving the instructions as to the place where the scows were to be tied and that, in any event, insofar as Bilton was concerned, he was the person being held out as the authoritative source of information. In fact Simpson was an employee of Continental Explosives Limited which company was responsible for the haulage of the Cominco goods from the unloading grid to Benson Lake, but he and his company were also charged with dealing with the deliveries made for Cominco at

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Port McNeill as clearly appears from the following excerpt from the evidence of H.G. Barker, the appellant’s property superintendent at Lake Benson, who said:

Q. Now, his lordship has asked you about Continental Explosives. Is it not a true explanation that despite your position, Continental Explosives stood between you and Straits in relation to deliveries at Port McNeill? In other words, they were the ones that were immediately dealing with all these deliveries as they came in.

A. That is pretty well correct, yes.

THE COURT: When you say ‘you’ you mean Cominco?

MR. HILL: Yes.

Q. And as far as Continental Explosives was concerned, it was really a man named Simpson who was active on behalf of Continental in this area.

A. He was acting for Continental. They did have a foreman.

Simpson’s own account of meeting the Victoria Straits and the scows at the government wharf is contained in a report made to his own company in which he says:

On Sunday January 7/62 at approximately 2:30 to 3 P.M. Straits Towing arrived with two barges No. 64 and 99 at Rayonier Wharf. I received the papers from a man off the boat.

The Captain asked about tying up these barges at the wharf and I pointed to the booming grounds the usual place that Straits Towing ties up these barges behind the storm wall.

They tied these barges side by side and left the steamer wharf proceeding to the booming grounds. They left these barges tied the same and left.

(The italics are my own.)

The fact that Simpson accepted the manifest of the Cominco cargo was, in my view, a clear indication to Bilton of his apparent authority to act on that Company’s behalf, but whatever his function may have been, it is clear that the booming ground to which he directed Bilton was the area where the Straits tugs had been moored when loaded with Cominco’s goods on each such voyage since June, 1961. It is equally clear to me that Cominco must have known that the

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Rayonier booming ground was being used for this purpose, and if the appellant acquiesced in the scows which carried its cargoes being left there on the understanding that Straits would be responsible for the cargo until it was unloaded, Bilton was not a party to any such understanding and when he was directed to tie up in the area by the ostensible representative of Cominco, he was, in my view, entitled to assume that that company accepted the facilities as being reasonably safe for the purpose.

It appears to me to be made plain from the memorandum which the appellant’s property superintendent at Lake Benson sent to his own company the day after the scows were found to have been sunk, that his company accepted the Rayonier booming ground as the place where the scows were to be tied. He said, in part:

Straits normally tied up their barge at the Rayonier booming ground. Here it stayed until a suitable time with respect to the tide for docking at the grid. This docking was usually done by a Rayonier tug.

(The italics are my own.)

The acceptance of the Rayonier booming ground as the mooring place for these scows is further confirmed by the report of Bilton’s arrival which was made to Cominco by Mr. Stokes of Continental Explosives on the 27th of January in which he says:

The skipper asked him where they tied the barges and Bob Simpson told him down at the booming grounds where they proceeded to take them down to tie them up. This has been the procedure during the previous months when barges have been brought up to Port McNeill.

(The italics are my own.)

Whatever the arrangement may have been between Cominco and Straits with respect to the responsibility for the safety of the scows as they lay in the booming ground, Bilton, as I have indicated, was no party to it and he was directed to the grounds in question by the appellant’s representative who appears to have watched him from a distance while he tied up the scows there and departed from Port McNeill.

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The appellant’s counsel laid great stress on the fact that the Rayonier booming ground was an unsafe place for the scows to be left by reason of the existence of a number of old, broken pilings under water and of the fact that many of the pilings and boom sticks had been weakened by the action of a form of sea worm known as teredos. In support of the submission that the Port McNeill booming ground was an unsafe place to leave the scows, appellant’s counsel introduced an excerpt from a mariners’ handbook “The British Columbia Pilot” which contained the following comment on Port McNeill:

Mariners are warned against the many ruined and broken piles and dolphins in this bay many of which are submerged, the northwest end particularly being obstructed by partly submerged snags.

It is perhaps pertinent to observe at this stage that in seeking to attribute fault to the respondent for the selection of the booming ground as a mooring place, the appellant alleged that he was negligent in failing to refer to “The British Columbia Pilot” but the Master said that he did not think that the Victoria Straits “packed that handbook” and if Straits did not supply it, the failure to refer to it cannot, in my view, be construed as the Master’s negligence.

The appellant also led evidence from a former tug master named Culbard who had been engaged in assisting in the recovery of the cargo from the sunken barges. This witness expressed a very low opinion of Port McNeill as a place to moor scows saying:

One of the main things is that it has been used as a booming ground for many years and there is a lot of debris lying on the boom, or at least there could be a lot of debris in the way of dead heads, sunken logs, roots etc.

This witness was asked what he would have done himself if he had found it necessary to secure heavily loaded barges of the kind in question on the booming ground at Port McNeill and he replied simply: “I wouldn’t moor them there”.

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It is significant to note, however, that he was asked in cross-examination:

Q. Witness, I believe you have indicated that there is a measure of control from headquarters like say in this case, Straits Towing?

A. Yes.

Q. And by whom are directions given? I mean how are they transmitted?

A. They are transmitted by radio through their despatcher’s office.

Q. And there is an official called a despatcher is there not?

A. That is right.

Q. If a despatcher tells you to go to Port McNeill you go do you not?

A. That is right.

This illustrates Bilton’s position. He had nothing whatever to do with the selection of the Rayonier booming ground at Port McNeill as the place to tie up the scows. There is some suggestion that he could and should have selected a safer mooring within this area and it is in fact alleged in the Statement of Claim that he was negligent “In mooring the barges in an unsafe mooring;…”, but I do not think that this was by any means established, and I can see no basis for differing with the finding of the learned trial judge that “the evidence does not prove some other or better place at Port McNeill for the mooring of these scows … “, nor is there any ground, in my opinion, for disturbing the further finding of fact by the trial judge that “The master there tied up the scows at the usual place for doing so and he had therefore properly towed the scows to Port McNeill as he was directed.”

Evidence advanced by the appellant appears to indicate that the booming ground in question was a treacherous spot where scows, which are in any event subject to sliding at their moorings, might rub up against pilings which have been gnawed by teredos and thus left with sharp ends under water capable of puncturing the under-planking of a scow. The fact that no scows had previously come to harm in this mooring area does not appear to indicate that the danger was

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not there or to support the suggestion that it was created by the way in which Bilton moored the scows. The task which Bilton had been ordered to perform for his employer involved leaving Vancouver at 11:30 p.m. on a Friday on a voyage of between 36 and 42 hours to Port McNeill so that the scows were bound to arrive at the booming ground on a Sunday afternoon and would there have to remain for some time before being picked up for the final tow to the unloading grid. It also happened that Bilton’s arrival coincided with what was probably one of the highest tides of the year, and the appellant alleges by its Statement of Claim that Bilton was negligent

In failing to watch or attend the said barges or cause them to be watched or attended while they lay at moorings and until delivered for unloading as aforesaid;…

As I have indicated, I am of opinion that Bilton’s obligation in relation to the scows was confined to that part of the contract of carriage which his employers had engaged him to perform, and just as he was not responsible for ensuring that the scows were transported to the Mannix unloading grid, so he was not responsible for their supervision while they lay at the mooring. In this regard I think that Bilton accurately described his role when he said in the course of his Examination for Discovery, speaking of the scows:

A. What I mean to say is, I put them at the dock; I don’t know what the contract was, if Straits moved scows from the booming ground or if C.M. & S. had it done when I put them on the booming ground. I figured—I don’t know who looked after the scows after they were put there; I don’t know if it was up to C.M. & S. to move them down or look after them or if it was Straits’ work.

Q. You hadn’t received any instructions?

A. No, that’s all I know.

Q. You hadn’t got any instructions on that from Straits?

A. No, as far as I was concerned, as soon as the scows were tied up I was finished with them. I don’t know who was looking after them, CM. & S. or Straits. So when that chap, from my own deduction,

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I figured that when he told us that he had made arrangements to hold them in the booming ground there, I thought it was C.M. & S. looking after them there. As I say, I didn’t know Straits was responsible for them until they got to the grid.

The learned trial judge has made a finding that “As the scows were moored in deep water there was no negligence in this respect” and I do not think that the circumstances were such as to place Bilton under any duty whatever to question the safety or adequacy of the mooring area to which he was directed, and which was accepted as the customary place for the mooring of such scows.

As I have indicated, the witnesses who testified as to the facts concerning the nature of the mishap were all speaking of matters which had occurred more than six years before the trial, and sometime before the trial the Rayonier booming ground as it existed at the time of the accident had been wiped out so that the witnesses who were describing it were depending in large measure on photographs taken at the time to refresh their memories.

Under these circumstances it appears to me that the most reliable description of what occurred is that contained in the report of the appellant’s property superintendent made the day after the accident in which he says:

In this case the two barges were tied up side by side. Evidently they pushed over two pilings, swung around at about right angles, then settled down with the falling tide so that the covered barge settled on either a broken pile or an old pile, sunk and pulled the other barge down with it.

(The italics are my own.)

It is further alleged in the pleadings that Bilton was negligent “in failing to ensure that the barges were adequately secured at the mooring” and it appears to me that if the evidence supported the contention that the barges were not adequately secured because of some act or omission of Bilton’s, he would have been in breach of a part of the duty which he was employed to discharge in the execution of the contract made by Straits.

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The initial burden of proving the allegation that the barges were not adequately secured and that Bilton was at fault in this respect, rested upon the appellant, but the issue which is now to be determined is whether, on consideration of all the evidence, it appears to be more probable than not that it was a failure on the part of Bilton to ensure that the scows were adequately secured which caused them to sink.

When the Victoria Straits left the government dock and headed for the booming ground in accordance with the direction given by Simpson, the two scows were tied up side by side and towed out for about one mile until they reached the specified area where Bilton settled on the northern extremity of the booming ground as the most suitable place to moor having regard to the depth of the water. As to this the learned trial judge found:

The spot where the captain moored the scows was 250 feet northwest of or behind the breakwater, outside the actual booming ground and in a depth of water to 27 feet. On the 7th January 1962 at Port McNeill at 1315 there was high water of 17.3 feet; that is in addition to the depth shown on the chart.

On arrival at the northern extremity of the booming ground, Bilton found a row of dolphins, each of which consisted of heavy timbers driven into the bottom and fastened together at the top by wire. From one of these there hung a strong wire cable which appeared to be appropriate for use in tying up the scows and of which Bilton says that “it must have been all of 18 feet” long. At this time Bilton was concerned with the navigation of his tug so as to bring the scows into their proper place, and having seen the wire he told the mate to pick it up and tie to it. The mate then tied his wire to the forward corner of the flat scow, to the outside of which the scow with superstructure was firmly secured. The wire had to be attached to a bollard on the scow which was about one foot square. There can be no question that this line was firmly tied as it was found to be “singing tight” after the barges had sunk.

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Bilton’s object was to tether the inner scow lengthways along the northern edge of the booming grounds which consisted of a double row of rough logs, referred to as boomsticks, held in place by being attached at fixed intervals to single piles which were 10 to 16 inches in diameter and driven into the bottom. The purpose of this tie-up was to secure the stern of the inner scow by a strand flex wire line to the northern edge of the boom so as to permit the line to slide along the length of the boomstick in case of the movement of the scow. While this stern tie-up was being made by the mate and the deckhand, Bilton was busy with the boat and in a position where he could not see what they did. Neither the mate nor the deckhand gave evidence at the trial and the divers who saw the scows on the bottom could give no account of the stern tie-up, so that there is really no evidence as to the exact manner in which the stern Une was secured, but when Bilton was asked about it in direct examination he gave the following general description:

The tail end of the scow had a strand-flex line slipped around the side stick. It was like over the top, up from the bottom and then back to the scow again, so it would slide up and down the stick.

He then was asked:

Let us assume that the tide has fallen some seven feet. What is happening to the head of the scow and barge as a result of the drop of seven feet in relation to the position of the dolphin?

A. The barge should have come closer to the dolphin and the strand-flex should have slid up the standing stick.

THE COURT: I did not get the last part.

THE WITNESS: The strand-flex should have slipped up the standing stick.

THE COURT: Slipped up? A. Yes.

MR. HILL: I take it that your description is of a loose-holding over the standing stick which…?

A. I am not talking about a single stick, there is a pile and the sticks are running…

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Q. You are talking about in between two standing piles?

A. Yes, that is right, the sticks between the two piles, yes. They would slide up this stick so as the scow went ahead on the wire, it should automatically go up the stick to hold it in.

It is true that under cross-examination Bilton appeared to become very confused about the nature of the tie-up, but his direct evidence was part of the record before the learned trial judge who was entitled to give it such weight as he saw fit.

The contention of counsel for the appellant that the barges were inadequately secured was based on the theory that the bow line was only 14 feet in length and therefore a great deal too short and that the stern line must have got caught on a knot in one of the boomsticks or in the chain which joined them together so that the falling tide would inevitably place an extraordinary strain on the boomsticks and thus on the pilings by which they were supported; and that this was the reason why two of the pilings broke and the stern of the scows drifted free so as to come round to an angle of 90° to their original mooring place. This theory is dependant upon a reconstruction of the circumstances founded in large measure on the evidence of a sea captain who was called as an expert and furnished his opinion on the basis of what he had heard in the court room.

As the allegation with respect to the inadequacy of the tie-up appears to me to depend on the assumption that there was only 14 feet of cable at the bow, and that the stern line caught on a log or chain, I think it desirable to consider separately the way in which the bow and the stern were secured.

The appellant’s counsel reaches the conclusion that there was only 14 feet of bow line by interpreting the evidence as if it established that the cable attached to the dolphin was only 18 feet long and that the bollard to which it was attached on the scow was one foot square; it was also contended before us that the pressure exerted by the falling tide must have brought the bow of the inner scow up against the dolphin so that the cable was hanging perpendicularly from it. It is to be observed, however, that the cable was

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attached to the dolphin 4 feet above the level of the water, that the tide fell a distance of 14.9 feet and that the scows sank a further distance until they rested on the bottom, at which time the cable was still “singing tight”. It appears to me to follow that when Bilton described the cable as “all of 18 feet” long, he was underestimating and that after tying to the bollard there must have been a good deal more than 14 or 15 feet of free line stretching to the dolphin.

In considering the manner in which the stern was secured, I may say that I have read the evidence with the greatest care and can find no proof whatever that the stern line was caught up in a knot on one of the logs or in the chain. Nobody saw it after the event and I am in agreement with the learned trial judge that “There is no evidence that this line was improperly tied.”

In my view there is also no evidence that, even with the extraordinary tide, the way in which the scows were secured would be likely to place an undue strain on a reasonably sound and well-founded piling, and indeed the appellant accepts the fact that the pilings had probably been eaten away and thus weakened by sea worms.

Notwithstanding the elaborate reconstruction of events presented on behalf of the appellant, I am of opinion that the evidence indicates the sinking to have been occasioned by the scows swinging free because the worm eaten pilings failed to hold, with the result that they veered to an angle of 90° from their original position and the outer scow there settled on the sharp ends of pilings under water as a result of which it sank, pulling its companion down with it.

Speaking of the tide, the appellant’s expert said that it was “an exceptionally large run off, probably one of the largest tides of the year…” and under all the circumstances, having regard to the condition of the booming ground, I incline to the view that the scows would have been in danger no matter how they had been tethered.

In my view the loss and damage to the appellant’s cargo was occasioned by the condition of the booming ground where Straits, to the knowledge of Cominco, moored its cargo-laden scows. The task undertaken by Bilton was limited

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to towing the scows to Port McNeill, and although his employer may have been responsible for looking after the cargo until it was unloaded at the Mannix grid, it was no part of Bilton’s duty, either to his employer or the cargo owners, to question the safety of the booming ground to which he had been directed or to care for the scows or the cargo after he had tied up there.

If this action had been brought against Straits Towing Limited, other considerations might have applied, but in suing the tug master, the appellant assumed the burden of proving that his negligence was a probable cause of the loss, and in my opinion, viewing the evidence as a whole, it cannot be said that this burden has been discharged.

I would accordingly dismiss this appeal with costs.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Exchequer Court of Canada pronounced on October 3, 1968. By that judgment, the Court dismissed the action with costs.

The action was one for damages sustained in the loss of a great variety of equipment which had been shipped by the plaintiff from Vancouver to Port McNeill, British Columbia. The shipment had been made under a contract between the plaintiff and Straits Towing Limited. That contract was carried out by Straits Towing Limited using its tugs and towing scows or barges, also either owned or chartered by it, filled with the goods of the plaintiff, from Vancouver to Port McNeill either directly or by intervention by a company with a lighter tug putting the scows alongside the “Mannix” grid in Port McNeill harbour, from whence they were to be unloaded by another contractor, Continental Explosives Limited, and transported by that latter contractor to the mine of the plaintiff.

The defendant Bilton was the Master of the tug Victoria Straits which, on the occasion of this accident, towed two barges—one the property of Straits Towing and known as Straits 64 and the other chartered by Straits Towing and known as G.G.99. These two barges were filled with the

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goods of the plaintiff and the defendant, as Master of the tug Victoria Straits, towed them from Vancouver Harbour to Port McNeill Harbour. The Victoria Straits with the two barges or scows in tow arrived at the Government wharf at Port McNeill at 14:30 hours on January 7, 1962. The defendant Bilton had not previously engaged in the carrying out of this contract but had, on two occasions, been in charge of a ship when it came into Port McNeill Harbour. On each of those occasions, he was engaged in the towing of logs. The instructions to the defendant Bilton had not detailed how he was to handle his loaded barges on arrival at Port McNeill. He, therefore, stopped at the Government Wharf and sent his mate ashore to inquire how the barges should be disposed of. The mate met a Mr. Simpson who, as an employee of Continental Explosives Limited, was there for the purpose of taking the manifest of the goods which were carried in the barges. In answer to the mate’s inquiry, Mr. Simpson, who was not called as a witness but had made a statement dated January 7, 1962 which was produced as an exhibit at the trial at the request of the defendant, recounted:

Sirs:

On Sunday January 7/62 at approximately 2:30 to 3 P.M. Straits Towing arrived with two barges No. 64 and 99 at Rayonier wharf. I received the papers from a man off the boat.

The Captain asked about tying up these barges at the wharf and I pointed to the booming grounds the usual place that Straits Towing ties up these barges behind the storm wall.

They tied these barges side by side and left the steamer wharf proceeding to the booming grounds. They left these barges tied the same and left.

Mr. Bilton testified that on his mate so informing him, he tied the two barges side by side and then attaching bridles thereto towed them from the Government Wharf about one mile westerly to the booming grounds of a timber company; after circling the outside or north‑easterly end of the timber breakwater at that point, he came up against the northern extremity

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of the said booming grounds. About 40-50 feet north of this northerly extremity of the booming grounds, which shall be more particularly described hereafter, there was a row of what is known as dolphins. These dolphins each consisted of three heavy timbers driven into the bottom and were fastened together at the top by wire cable. From the second of these dolphins, counting from the east, there hung a wire cable some 18 feet in length. At the defendant Bilton’s instructions, the crew of the Victoria Straits, consisting of a mate and a deckhand, neither of whom was called to give evidence, secured the end of this wire cable by the use of a pike pole; then, also upon the defendant’s instructions, they tied the inside scow, No. 64, by a stanchion in its forward port corner to that wire cable. The stanchion was about one foot square and Bilton agreed that after the cable necessary to go around that stanchion was utilized there was about 15 feet of free line from the dolphin to the port corner of the scow. The cable was fastened to the dolphin about three or four feet below the tops of the timbers; therefore, the line from the dolphin to the stanchion on the scow was about level with the water and it was stretched to the full extent because of the action of a west wind pushing against the scow.

The mate then went to the stern of the scow and fastened it to the northern edge of the booming ground. This northern edge had been formed by driving single piles into the bottom. These piles were described as logs from ten to sixteen inches in diameter. The evidence was that these piles were some fifty feet apart, although no exact measurement had been made. A double row of logs known as “boomsticks” ran from one of these upright piles to the next. Each log was fastened to that at either end of it by a chain which ran through a hole in the log about one foot from its end and the rows lay one at each side of the piling so that they were held in place by this row of pilings. The boomsticks were rough logs with knots frequent along their length. The particular pilings along this particular boom had been in place some three years.

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The defendant Bilton, in cross-examination, testified that the mate had fastened the stern of Barge No. 64 to the line of timbers forming the northern limit of the booming grounds by what he called a strandflex cable slip, that is, metal and manilla intertwined, which he passed under a log and then up over the log and brought back to the stern port corner of the barge. The purpose of this type of tie was to permit the line to slide along the length of the boomstick in case of movement of the scow. The defendant was carefully cross-examined as to the exact method of this tie-up which is vital in the litigation and he gave evidence that he did not know exactly whether it was tied up in a straight line from the stern of the barge or whether it was a diagonal line from the stern to the boomstick but at any rate he desired it to be in as straight a line as possible with the stern of the scow pulled up to the chain where it joined two of the logs in the boom. Barge 99 was left tied tightly to the outside or starboard side of Barge 64, so that the two barges lay parallel facing in a north-south direction. Having accomplished the tie-up in the fashion I have described, the defendant Bilton in the tug Victoria Straits left Port McNeill. In his evidence at trial, he gave the time of departure as 15:30 hours but when confronted with his examination for discovery he agreed that probably a more accurate time would be 15:10 hours.

There was no one working around the booming grounds on that Sunday afternoon and no one seems to have made any observation of the barges until Monday morning at 7:30 a.m. when the witness Woolridge observed that two barges had sunk, not alongside the north limit of the booming grounds but across the line of that north limit and facing not north-south but east-west. Under those circumstances, the plaintiff has taken action against the defendant Bilton, the master of the tug Victoria Straits for damages and has alleged damages for loss and damage to cargo of something over $55,000 and for average paid on the salvage of the barges of some $19,000. The Straits Towing Limited are not parties to the action. The action is one based solely on the alleged negligence of Bilton in the

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carrying out of his duties. Upon these facts and such further evidence as that to which I shall make reference hereafter, the learned trial judge dismissed the action holding (1) that there was no liability upon Bilton toward the plaintiff for damages for any negligence on his part (2) that there was no evidence that Bilton had been negligent (3) that no negligence which had been the act of the mate or the deckhand could be attributed to the defendant Bilton. It is my intention to consider these three issues in an order in reverse to that used by the learned trial judge.

I, therefore, firstly, come to the question as to whether Bilton was liable for acts of the mate and of the deckhand. It must be remembered that these acts were carried out on the direct instructions of the defendant Bilton. In his evidence, Bilton agreed that the wire cable hanging from dolphin No. 2 had been recovered by means of the pike pole upon his specific instructions and that the tie-up with the forward port corner of barge No. 64 was carried out with his instructions. Again, the tie-up of the stern port corner of barge No. 64 to the boomstick was carried out in accordance with the fashion which he approved. In fact, he admitted that if it had been possible to put that strandflex slip over the chain where it joined two of the boomsticks he would have preferred that method of tying. It was the defendant Bilton who knew the state of the tide; it was the defendant Bilton who knew the possible weakness of the boomsticks, to which I shall refer hereafter; it was the defendant Bilton who knew that the slip, as it lay over either the chain joining the boomsticks or along the length of the boomsticks, could be impeded in its slipping action by the chain or by the knots or unevenness on the boomstick or by coming up against one of the upright pilings as it slid along the length of the boomstick. Although the mate and the deckhand were not the defendant Bilton’s employees and therefore he cannot become liable for their acts on the basis of the maxim respondeat superior, nevertheless, they were under his direct orders and were acting on his direct orders. I am of the opinion that the physical acts of the mate and the deckhand were as much the acts of the defendant Bilton as if he had done them himself.

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I, therefore, turn to the question of whether the acts of the three, that is, Bilton and his two aides, the mate and the deckhand, did constitute negligence. The defendant at trial and as respondent in this court laid much stress on the allegation that the defendant Bilton simply took the tug and the barges to the mooring place indicated by Simpson and therefore he could not be negligent in mooring in the place indicated by Simpson and in the place where barges, during the previous six-month period, had been so moored. The learned trial judge, in his reasons, referred to this argument and was quite evidently of the opinion that Simpson was an employee of the plaintiff company who was authorized to direct where the barges should be moored. With respect, I am of the opinion this was a misunderstanding of the evidence. Simpson was not an employee of the plaintiff company at all; Simpson was an employee of Continental Explosives Limited and that company was under a contract with the plaintiff company to unload the barges once they were put alongside the Mannix Grid and to transport the contents unloaded therefrom to the plaintiff’s mine. Neither Simpson nor Continental Explosives Limited had any control or direction whatsoever of either the barges or their contents until those barges were tied up beside the Mannix Grid. Until such time, it was the sole responsibility of Straits Towing Limited to tow the barges to Port McNeill and to put them up alongside the Mannix Grid. It was realized by both the plaintiff company and Straits Towing Limited that the large Straits Towing tugs such as the Victoria Straits, at any rate at low tide, could not go in alongside that grid and therefore the procedure was used of tying the barges up at some other place to await a small tug supplied by the Rayonier Company to take the barges from that mooring place to the Mannix Grid. Any costs of such transfer from a mooring place to the Mannix Grid were to be the costs of the Straits Towing Company and it alone had the direction of how the transfer from one place to the other should be made. The defendant Bilton knew nothing of these arrangements. His only instructions were to take the barges with their loads to Port McNeill. It would appear to be relevant whose agent Simpson was; as in fact

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Simpson’s direction to the mate, transferred by the mate to the defendant Bilton, was not to tie up the barges in any particular place. To repeat again his statement, “I pointed to the booming grounds, the usual place that Straits Towing ties up these barges, behind the storm wall.” In other words, all Simpson did was to indicate the usual place where the barges were to be tied up.

The defendant Bilton, in his cross-examination, admitted that apparently all Simpson did was to point out the general area of the booming grounds and agreed that it was his, Bilton’s duty to look for the spot that was safe in that area, testifying that he looked for a spot that was furthest south and in the deepest water. Under these circumstances, no reliance could be placed on the defence based on the allegation that the defendant Bilton only moored the barges in the position indicated by Simpson as, in the first place, Simpson had no authority to do so and, in the second place, all he did was to indicate a general area.

It, therefore, becomes necessary to determine whether Bilton, acting either by his own hand or through directions given to his mate and deckhand, was guilty of negligence in the mooring of these two scows. I have already described how Bilton carried out that operation and such description was taken, in the largest part, from his own evidence. The tie-up so far as the bow of the scows was concerned was to this pile No. 2; the cable which hung from that pylon was attached thereto at a distance some four feet above the high-water mark. As I have pointed out, after the end of the cable had been used to wrap around the stanchion on the scow, there was left only about 15 feet of it. Capt. MacDonnell, giving expert evidence, testified that at 15:10 hours, the time when Bilton agreed he had left the booming grounds after the tie-up, the tide was 14.9 feet above the low water mark. It must be presumed that this information was as available to Bilton at the time as it was to MacDonnell. It is apparent that with this 15-foot tie-up, even excluding the effect of the cable being fastened to the dolphin four feet above the high-water mark, the lowering of the tide would have

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to have the effect of drawing the scow closer to the pylon so at low-water mark it would be practically bumping against the dolphin with the cable extended vertically from its bow to the tie-up on the dolphin. The inevitable result of this tie-up, therefore, would be that the stern of the barge would have to be drawn forward. That stern was fastened tight up against the boomstick by this strandflex; although the tie-up was supposed to be such as would permit the strandflex to move along the boomstick and therefore permit the stern of the barge to move forward, Bilton, in his testimony, admitted that that could be prevented by several occurrences: when the strandflex slip caught on either the chain tying two different boomsticks together or on some knot or projection on a boomstick, or when the slipping strandflex came up against the single pilings which held the boomsticks in place. Since after the tie-up the wire cable from the bow of the barge to the dolphin was taut and in a line level with the water, the movement forward of the barge with the lowering of the tide would commence immediately and the strain upon the boomstick, therefore, would occur almost as soon as the tie-up had been completed.

The defendant Bilton admitted that he knew full well the damage caused by teredos to the boomsticks and to the pilings; in his testimony he said:

Q. What is the problem of teredos and where is it most prevelant?

A. Well, they are hungry, they eat lots of logs and they are around booming ground. They are chewing at the pilings and also standing sticks. They get inside and they bore and you cannot see them from the outside but they feed inside the sticks and bore.

Therefore, the result which the defendant Bilton should have expected was the weight of 630 tons, the combined weight of the load and of the barges, pulling on this boomstick held in place only by single pilings which had been subject to the action of teredos. The breaking of those boomsticks would be well-nigh inevitable and this would appear to be exactly what occurred. Two of the boomsticks were broken off. The barges thereafter had evidently swung around so that they lay across the line of the

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boom which was drawn down by this action and one of the barges, G.G. 99 was actually pierced by a freshly broken piling so that it drove not only through the body of the barge and out through the bottom of the barge but up through the body of the barge and out about one or two feet through the upper deck. When this occurred, the pulling over and consequent sinking of barge No. 64, tied tightly to barge No. G.G. 99 as it was, was again a natural consequence. In my view, these actions, taken either by Bilton or upon Bilton’s express instructions, exhibit acts of negligence and those acts of negligence were the direct cause of the sinking of the barges and the consequent damage to the cargo. The acts of negligence may be summarized as follows: (1) tying the bow of barge No. 64 by a wire cable much too short to make any allowance for the falling tide; there was no need to use the wire cable which lay attached to the pylon and was not the property of Straits Towing but a cable from his own equipment could easily have been used by Bilton, (2) tying the stern of barge 64 in the fashion which I have described to the uncertain boomstick which, of course, was floating and which would descend with the outgoing tide. I realize that in coming to this conclusion I am differing from the trial court judge upon a question of fact. I point out that in doing so I rely only upon undisputed evidence and that most of that evidence came from the defendant Bilton himself. It is, of course, well established that an appellate court may, under those circumstances, draw inferences which differ from those of the trial court judge.

The problem remains whether the acts of negligence which I have outlined on the part of Bilton give rise to a cause of action against him by Cominco, the owners of the cargo which was lost. It must be remembered that there was no contractual relationship between the plaintiff company and Bilton. The only contract was between the plaintiff company and Bilton’s employer, Straits Towing Limited. The learned trial court judge held that negligence on the part of the master did not give rise to an action against him by the owner of the goods when no contractual relationship existed between the two. The learned trial judge relied on his own decision in

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R.M. & R. Log Ltd. v. Texada Towing Co. Ltd. et al.[3]. As the learned trial judge pointed out, the ratio decidendi in that case may be taken from the sentence: “That while the master Minnette was, in fact, negligent, he in law was under no duty of care to the plaintiff”.

The appellant, at trial and in this court, relied on the often quoted case of Donoghue v. Stevenson[4], and particularly on the judgment of Lord Atkin at p. 580:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in the other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

The appellant submits that the person who is so closely and directly affected by the act of the master that the master ought reasonably to have had that person in contemplation as being so affected is the owner of the cargo and that, therefore, the owner of the cargo is a “neighbour” within the principle as outlined by Lord Atkin.

The learned trial judge, in his judgment in R.M. & R. Log Ltd. v. Texada Towing Co. Ltd.,

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supra, at p. 97, agreed “the categories of negligence are never closed” but continued:

While they continue this Court should declare the law as it is, that is, whether the circumstances do give rise in law to a duty of care—but not as it might be extended. Hence it is sufficient to say that while the master, Minnette, was, in fact, negligent, he in law was under no duty of care to the plaintiff.

The learned trial juge, in his reasons for judgment in the present case, agreed that masters were liable to third parties who suffered injury due to their (the masters’) negligence in collision decisions but limited those decisions to the facts on which they were based, that is, if there had been a collision, while in the present case, of course, there was no collision.

Carver’s Carriage by Sea (British Shipping Laws (1963 ed.)) states at para. 92:

Liability of carrier’s servants. There is no direct authority as to the liability in tort for negligence of the master or crew of the vessel in respect of their failure to care for goods carried. Action on the case lay both against a servant driving a vehicle on his master’s business and his master if he carelessly injured the person or property of another user of the highway;

The person primarily liable in damages to the sufferer by collision is he by whose negligent act or omission the loss was occasioned. The shipowner navigating his own vessel, the master, mate, pilot or other person in charge of the ship, who gave a wrong helm-order, the helmsman who directed the ship’s course wrongly, the seaman on the lookout who negligently failed to see and report the approach of the other vessel, may all be sued as wrongdoers, and are liable for damages: Marsden (British Shipping Laws 4) s. 58; Stort v. Clements (1792) Peake 144.

But no such authority can be found for the proposition that where goods (or until recently persons) are carried under a contract the servant of the car-

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rier is liable in negligence in respect of them. Earlier the servant probably could not be sued on the ground that suit lay only on the contract; and when that limitation was removed there was little point on suing him before the “fundamental principle” was expounded in 1961 that (if he could be sued at all) he could not rely on the exceptions in the contract: Midland Silicones v. Scruttons, [1962] A.C. 446.

However, in the following paragraph, the learned author continues:

…Donoghue v. Stevenson, [1932] A.C. 562,

established that everyone must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons so closely affected by his act that he ought reasonably to have them in contemplation when directing his mind to the acts or omissions in question: ibid. p. 580, per Lord Atkin.

Applying that principle it has now been established that, where, in the cause [sic] of his employment a servant of the shipowner injures (1) a fellow-servant, or (2) a passenger in circumstances in which the shipowner would be vicariously liable in tort for the servant’s negligence, the servant, as a joint tortfeasor, is also liable and can be sued alone or as a co-defendant with the shipowner.

Carver’s conclusion in para. 93 is:

Since action on the case lay against a servant for an act of carelessness to person or property where no contract was involved, and since the existence of a contract no longer precludes an action in tort, it would seem logical to extend the law, in the spirit of Hayn v. Culliford (1879) 4 C.P.D. 182, and Donoghue v. Stevenson, [1932] A.C. 562, to hold the servant also liable for his personal fault. No distinction was made between damage to passengers and goods when the law was extended following Hayn v. Culliford.

It is submitted accordingly that the true position is that, if goods in course of carriage are lost or damaged by reason of lack of reasonable care of the master of a ship or member of the crew or independent contractor (whether or not the goods

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are in his possession), the person so responsible for the loss or damage is liable for it in an action in tort by the owner of the goods.

I am of the opinion that the learned author was correct in his conclusion. Donoghue v. Stevenson has not been restricted to the facts there approved or assumed. I cite the following cases:

Lamberty et al. v. Saskatchewan Power Corpn. et al.[5];

Popein & Popein v. Link Bros. Construction Ltd. et al.[6];

Lock & Lock v. Stibor et al[7];

Huba v. Schulze & Shaw[8];

Davies v. Swan Motor Co. (Swansea) Ltd.[9];

Denny v. Supplies & Transport Co. Ltd.[10];

Yuille v. B. & B. Fisheries (Leigh) Ltd. et al.[11]; this application of the “neighbour” principle was approved in The “Anonity”[12];

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd[13].

The principle was extended when the damage claimed was personal injury. See Yuille v. B. & B. Fisheries (Leigh) Ltd., supra. Where the damage was loss of property, Lord Justice Willmer, in “The Anonity”, supra, said at p. 126:

This is sufficient to dispose of the case. But I think I should refer to an argument put forward by Mr. Brandon to the effect that fault or privity on the part of Mr. Everard could only properly be found in circumstances such as would have supported a claim against him personally. In support of this a decision of my own in Yuille v. B. & B. Fisheries (Leigh) Ltd., and Bates (The Radiant), [1958] 2 Lloyd’s Rep. 596, was cited. That was, it is true, a case in which, on its own particular facts, I did

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come to the conclusion that a personal action lay against the managing director of a company on the same facts as actual fault or privity was found against the company. But I am certainly not prepared to accept that this must necessarily be so in all cases. It seems to me that the question whether an injured plaintiff could successfully bring a personal action against a member of a company, whose conduct is held to amount to actual fault or privity of the company within the Merchant Shipping Acts, must depend on whether, in the particular case, the relationship of “neighbours” in the eye of the law is established. I say nothing as to whether a personal action against the late Mr. Everard could have been sustained on the facts of the present case. I do not think that that question arises.

Therefore, in my view, he failed to make a decision upon the point.

Midland Silicones v. Scrutions Ltd.[14] was a decision of the House of Lords upon the following circumstances. A bill of lading between the shipper and the owner applied the limitation appearing in the United States Carriage of Goods Act by Sea, 1936, and limited the loss to $500 per package. The shipper engaged the defendants, who were stevedores, to unload the ship. While lowering the drum from an upper floor of the dock transit shed onto a lorry, the stevedores negligently dropped and damaged the drum causing damage well beyond the limitation aforesaid. The consignees sued the stevedoring firm for damages in tort. It was held by the majority of the law Lords that the stevedoring firm was not able to take advantage of the limitation of liability which was included in the contract between owner and the shipping company. In referring to this decision, the learned trial judge in his reasons for judgment in R.M. & R. Log Ltd. v. Texada Towing Co. Ltd., supra, at p. 96 said:

The duty of care and the liability therefrom was on the contracting stevedores, the employers, and not on the employees who were in fact negligent.

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In my view, this is an erroneous understanding of the decision. The contract for carriage was between the owner of the goods and the shipping company. That contract was the one which included the limitation of liability. There was another contract for the unloading between the shipping company and the stevedores but there was no contractual relationship between the owner of the goods and the stevedoring company. The stevedoring company was liable in tort and since the company itself took no corporate action the tort was a tort committed by its servants. It was only liable upon the maxim respondeat superior and if the servants were not liable themselves there could have been no liability on the employer of the servants, the stevedoring company, Scruttons Limited. The judgments in the House of Lords seemed to deal only with the question of the limitation upon the liability and to presume that the company was liable, since the company could only be liable if its servants were, the servant is liable in that relationship.

The learned trial judge, in his reasons for judgment in R.M. & R. Log Ltd. v. Texada Towing Co. Ltd., supra, at p. 94, refers to Guay v. Sun Publishing Co. Ltd.[15] as “holding that an action did not lie for negligent use of words”. In that case the plaintiff had suffered serious nervous shock with attendant medical disability when she read in the newspaper published by the defendant an account that her husband and three children had been killed in an automobile accident in Ontario. The account was altogether false and evidently had been accepted by the newspaper from some unknown person and published without investigation. Kerwin J., one of the majority, held that the plaintiff was not a person who was a “neighbour” within the meaning of Lord Atkin’s statement in Donoghue v. Stevenson, since she was not a person so closely and directly affected by the publishing of the report that the respondent ought reasonably to have had the appellant in contemplation as being affected injuriously when it was directing its mind to the act of publishing. Estey J. assumed that the appellant was such a “neighbour” but held that she had not proved she had suffered nervous

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shock. Locke J. said that since it was conceded that the report had been made without malice there was no cause of action even though the newspaper had acted carelessly. The dissenting judgment of the Chief Justice, Rinfret, and the present Chief Justice was given by the latter and held that the proper analogy was to a case in which the plaintiff had unintentionally but negligently been struck by the defendant or the defendant had caused some object to strike her and expressed the opinion that under those circumstances a right of action would accrue to the plaintiff. I am of the opinion that the case cannot be extended beyond its particular facts or be understood to do more than hold that words carelessly spoken without malice by someone who is in no contractual relationship to the plaintiff did not give a cause of action, as the plaintiff on such circumstances was not a “neighbour” of the defendant. In the present case, we are not concerned with words however spoken but with actions.

To summarize, I have found no decision since Donoghue v. Stevenson which would prevent the application of the doctrine therein to an action against a master for his negligence which caused the plaintiff damage through the destruction of the plaintiff’s goods. On the other hand, I am of the opinion that in such authorities as Midland Silicones v. Scrutions Ltd., supra, such a liability, at any rate, has been tacitly inferred.

For these reasons, I would allow the appeal with costs here and in the courts below. The plaintiff, in his statement of claim, asked for judgment for the said loss and damage and for costs and for a reference to the Registrar to assess the amount of the loss and damage.

In this court, the appellant, by its factum, asked that the decision of the learned trial judge be reversed and that judgment be given for the appellant; the appellant also asked that damages be awarded as established by the evidence or, alternatively, as may be determined by reference to the Registrar. Since this court considered none of the evidence in reference to the damages nor any argument thereto, I am of the opinion that the order of this court should be that the

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appeal should be allowed, that it be declared that the plaintiff should be entitled to damages and that it be referred to the Exchequer Court to assess such damages. As I have said, the appellant is entitled to its costs in this court and in the Exchequer Court.

Appeal dismissed with costs, SPENCE J. dissenting.

Solicitors for the plaintiff, appellant: Bull, Housser & Tapper, Vancouver.

Solicitors for the defendant, respondent: Macrae, Montgomery, Hill & Cunningham, Vancouver.