Stein et al. v. ‘Kathy K’ et al. (The Ship), [1976] 2 SCR 802

Supreme Court of Canada

Stein et al. v. ‘Kathy K’ et al. (The Ship), [1976] 2 S.C.R. 802

Date: 1975-10-07

Marjorie Hexter Stein (now known as Marjorie Hexter Cowley) for herself and as the Widow of Charles Simmon Stein, Deceased, and as a co-executrix of the Estate of the said Deceased, and Maurice Schwarz and William I. Stein, co-executors of the said Estate (Plaintiffs) Appellants;

and

The Ship “Kathy K” (also known as “Storm Point”) and “S.N. No. 1”, Egmont Towing & Sorting Ltd., Shields Navigation Ltd., and Leonard David Helsing (Defendants) Respondents.

1975: June 9, 10, 11, 12; 1975: October 7.

Present: Martland, Judson, Ritchie, Spence and Dickson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Negligence—Contributory negligence—Collision in inland waters of British Columbia between sailboat and barge being towed by tug—Crew of sailboat negligent in failing to keep proper look-out—Tug also guilty of negligent conduct causative of collision—Crew member of sailboat killed—Apportionment of fault—Contributory Negligence Act, R.S.B.C. 1960, c. 74, s. 2.

Shipping—Fatal accident—Owner and operator of tug not entitled to limit liability—Failure to discharge burden that loss of life occurred without their actual fault or privity—Canada Shipping Act, R.S.C. 1970, c. S-9, s. 647.

An action was brought by the widow and executors of Charles Stein who lost his life in the waters of English Bay, Vancouver, when the small sailboat in which he was acting as crew for his son collided with the unmanned barge S.N. No. 1, which was then in tow of a tug known as Storm Point.

The Storm Point, which was on a return voyage to Vancouver from coastal operations, berthed at a terminal located on the south side of False Creek, a body of water which opens into English Bay. It was then engaged in towing the S.N. No. 1, which discharged at the terminal. At this time the tug’s Captain Greenfield,

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having contacted Peter Shields, the president of both Shields Navigation Ltd., which operated the tug, and Egmont Towing & Sorting Ltd., the tug’s owner, obtained his approval to stay ashore, leaving the tug and barge in the control of the respondent Helsing. The latter, accompanied by one deck hand, was to take the tug with the unloaded barge in tow out through English Bay and around Stanley Park to North Vancouver, although Helsing had never taken a tug and tow out of False Creek before and the tug certificate specified a minimum crew of three.

The trial judge concluded that the “crew” of the sailboat were negligent in that they failed to keep a proper look-out and that the tug was also guilty of negligent conduct causative of the collision and he apportioned that fault on the basis of 75 per cent to the tug boat and 25 per cent to the sailboat. On appeal, the Federal Court of Appeal, by a majority, set aside the judgment rendered at trial and dismissed the action. An appeal by the widow and the executors was then brought to this Court.

Held: The appeal should be allowed and the judgment at trial restored.

Although findings of fact made at trial are not immutable, they are not to be reversed by an Appellate Court unless it can be established that the trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such error occurred, it is not a part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at trial. Applying this test to the present case, it could not be concluded that the trial judge was plainly wrong in any of the relevant findings of fact made in the course of his reasons for judgment.

The tug master was not only negligent in failing to keep the barge close hauled and in entering the Bay at the speed which he did, but he was also in breach of Rule 20(a) of the Collision Regulations in failing to keep out of the way of the sailboat. The skipper and crew of the sailboat were negligent in failing to keep a proper look-out contrary to Rule 29 of the Regulations.

As to the question of the respondents’ counterclaim seeking limitation of liability pursuant to s. 647 of the

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Canada Shipping Act, the burden resting upon the corporate respondents to show that the loss of life occurred without their actual fault or privity was not discharged, and, accordingly, they were not entitled to limit their liability, but having regard to the provisions of s. 649(1) of the Act the respondent Helsing as master of the tug was entitled to limit his liability.

The collision having occurred within the inland waters of British Columbia, the provisions of the Contributory Negligence Act, R.S.B.C. 1960, c. 74, s. 2, applied, and, accordingly, the damage sustained by reason of the death of Stein should be in proportion to the degree in which each vessel was at fault.

S.S. Devonshire (Owners) v. Barge Leslie (Owners), [1912] A.C. 634, distinguished.

APPEAL from a judgment of the Federal Court of Appeal[1], allowing an appeal from a judgment of Heald J. Appeal allowed.

J.J. Robinette, Q.C., and J.R. Cunningham, for the plaintiffs, appellants.

D.B. Smith and J.A. Hargrave, for the defendants, respondents.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Federal Court of Appeal (Thurlow J. dissenting) setting aside the judgment rendered at trial by Mr. Justice Heald and dismissing the action brought by the widow and executors of the late Charles Simmon Stein who lost his life in the waters of English Bay, Vancouver, when the small sailboat in which he was acting as crew for his son, Ross Stein, collided with the unmanned barge S.N. No. 1 which was then in tow of a tug known as Storm Point. The reasons for judgment of the learned trial judge are reported in [1972] F.C. 585 and those of the Court of Appeal in [1974] 1 F.C. 657.

The action by the executors was brought pursuant to what is now s. 719 of the Canada Shipping Act, R.S.C. 1970, c. S-9, on behalf of the dependants of the deceased who include the said Ross Stein. Section 719 reads as follows:

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719. Where the death of a person has been caused by such wrongful act, neglect or default that, if death had not ensued, would have entitled the person injured to maintain an action in the Admiralty Court and recover damages in respect thereof, the dependants of the deceased may, notwithstanding his death, and although the death was caused by circumstances amounting in law to culpable homicide, maintain an action for damages in the Admiralty Court against the same defendants against whom the deceased would have been entitled to maintain an action in the Admiralty Court in respect of such wrongful act, neglect or default if death had not ensued.

That the Federal Court is clothed with jurisdiction in relation to a claim for loss of life is established by the fact that under the Canada Shipping Act as amended (R.S.C. 1970, c. 10 (2nd Supp.), Sch. 2, item 5), “Admiralty Court” is defined as meaning “the Federal Court of Canada” and s. 22 of the Federal Court Act provides:

22. (1) The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.

(2) Without limiting the generality of subsection (1) it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any claim or question arising out of one or more of the following:

…

(d) any claim for damage or any loss of life or personal injury caused by a ship either in collision or otherwise;

It will thus be seen that the right of action is dependent upon it being shown that the late Charles Stein would have been entitled to maintain an action in the Federal Court of Canada if he had been injured and death had not ensued. The action is therefore to be treated as if it had been brought by the deceased personally, although in his capacity as a member of the crew he is identified with the actions of the sailboat 505. Ross

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Stein is not a party to this action in his personal capacity nor is the identity of the owners of the 505 established, and there is no claim against the sailboat in rem.

In the course of his reasons for judgment, in which he made a careful review of the evidence, Mr. Justice Heald concluded that the “crew” of the sailboat 505 were negligent in that they failed to keep a proper look-out and that the tug was also guilty of negligent conduct causative of the collision and he apportioned that fault “on the basis of 75% to the tug boat “Storm Point” and 25% to the 505 sailboat skippered by Ross Stein”. (See [1972] F.C. pp. 599 to 600).

In reaching the conclusion that the sailboat was entirely to blame, Chief Justice Jackett, who delivered the judgment on behalf of the majority of the Court of Appeal, appears to have ignored the various findings of fact made by the trial judge, in favour of his own appreciation of “the balance of probability”. In this regard he states in [1974] 1 F.C. at p. 661:

Any attempt to trace with precision the respective courses of speed of the tug (with its barge) and the sailing boat in relation to each other and to determine with precision what steps were taken at particular points of time on the respective vessels is doomed to failure having regard to the state of the evidence. I accordingly limit myself to a statement in general terms of what, as I appreciate it on the balance of probability, did happen.

With the greatest respect for the learned Chief Justice, I do not consider that this approach to the determination of the facts is justified under the circumstances, particularly haying regard to the fact that evidence was taken from the individuals in charge of the respective vessels and that findings of credibility were involved in the trial judge’s conclusions. I think that under such circumstances the accepted approach of a court of appeal is to test the findings made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court’s view of the balance of probability.

In this regard reference may be had to the case

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of S.S. Honestroom (Owners) v. S.S. Sagaporack (Owners)[2], where Lord Sumner said, at pp. 47-8:

…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and unless it can be shown that he has failed to use or has palpably misued his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusion of fact should, as 1 understand the decisions, be let alone. In The Julia, (1860) 14 Moo.P.C. 210, 235, Lord Kingsdown says:

They, who require this Board, under such circumstances, to reverse a decision of the Court below, upon a point of this description, undertake a task of great and almost insuperable difficulty … We must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.

(The italics are my own).

In the same case, Lord Sumner adopts the practice laid down by James L.J. in The Sir Robert Peel[3], at p. 322, where he said:

The Court will not depart from the rule it has laid down that it will not overrule the decision of the Court below on a question of fact in which the judge has had the advantage of seeing the witnesses and observing their demeanour, unless they find some governing fact which in relation to others has created a wrong impression.

These passages were expressly adopted by Mart-land J., when delivering the judgment of this Court in Prudential Trust Co. Ltd. v. Forseth[4], at pp.

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216-7, where he also adopted the following passage from the judgment of Lord Shaw in Clarke v. Edinburgh Tramways Co.[5], at p. 36, which is quoted by Lord Sankey in Powell v. Streatham Manor Nursing Home[6], at p. 250:

“Am I—who sits here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case—in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”

These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, a part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial.

Applying the test recognized in these authorities, I am unable to conclude that the learned trial judge in the present case was plainly wrong in any of the relevant findings of fact made in the course of his reasons for judgment, but I note and will consider hereafter the fact that the Court of Appeal were advised by assessors whose advice differed in one material aspect from that of the assessors sitting with the learned trial judge so that at least to this extent different considerations applied at trial and on appeal.

The circumstances immediately before and at the time of the collision as they are described in the dissenting opinion of Mr. Justice Thurlow in the Court of Appeal do not differ to any material extent from those described by the learned trial judge, although he draws different inferences from

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the facts and accepts the advice of different assessors in concluding that the two vessels were equally at fault for the collision. Mr. Justice Thurlow’s decision is reported in [1974] 1 F.C. at pp. 671 et seq., and I will be referring to some of his findings, but I think it desirable to include a brief summary of the facts which I consider essential in determining the issue in order that the present reasons may be better understood.

On June 27, 1974, the tug Storm Point, which was on a return voyage to Vancouver from coastal operations, berthed at Johnston Terminals which is located on the south side of False Creek, a body of water which opens into English Bay. It was then engaged in towing the barge S.N. No. 1 which discharged at the terminals and at this time the tug’s Captain Greenfield, having contacted Peter Shields, the president of Shields Navigation Limited which operated the tug and also the president of its owner, Egmont Towing & Sorting Ltd., and obtained his approval to stay ashore leaving the tug and barge in the control of the respondent Helsing who, accompanied only by the now deceased deck hand Iverson, was to take the tug with the unloaded barge in tow out through English Bay and around Stanley Park to Belair Shipyards in North Vancouver, although Helsing had never taken a tug and tow out of False Creek before and the tug certificate specified a minimum crew of three.

On leaving Johnston Terminals the barge was close hauled to the stern of the tug but as the tug and tow entered English Bay the tow line was let out to a distance of approximately 150 feet and speed was increased. Helsing testified that at this time there was a concentration of sailboats off his starboard bow and approximately between five to seven cables away. One of the sailboats, which turned out to be the 505 under the command of Ross Stein, appeared to veer off and to proceed in the general direction of the tug on a bearing of 45° on the starboard bow, and when it was about 1,000 feet away, the tug altered course to port of 15°without giving any signal to indicate the

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change, and at about the same time the sailboat altered 20° to port.

The actions of the sailboat before making its 20°alteration are described in the evidence taken from Captain Helsing on discovery as follows:

Q. Well, the sailboat had been coming on a fairly constant course before that, had it?

A. A general course.

Q. And on the same bearing. What, 45 degrees on your starboard bow?

A. Yes.

Q. And it stayed at that bearing as it came in towards you?

A. Heading in more this direction as he went.

Q. When you say “heading in more this direction” he was heading towards you at all times?

A. Yes.

A full and accurate account of the actions of the sailboat is to be found in the dissenting reasons for judgment of Mr. Justice Thurlow at [1974] 1 F.C. at pp. 671-2, as follows:

On the afternoon in question they and some twenty to thirty others, some of them also from California, had engaged in an informal practice race and thereafter the Steins and some of the others were continuing their sailing for further practice; Having sailed out to the vicinity of Ferguson Point at least three of them had turned at some juncture and thereafter for from ten to twenty minutes; and with the Stein boat in the lead, they were sailing with the wind on the port beam proceeding at from three to three and a half miles per hour in a generally southeasterly direction with their mainsails, jibs and spinnakers set. The Steins were experienced sailors but they were not familiar with the sight of large barges being towed by comparatively small tugs, which is a common thing in Vancouver Harbour. They were about to take down their spinnaker, preparing to proceed to Kitsilano Yacht Club, and had released its sheet when Ross Stein saw on his port side the bow and starboard side of a tug, which turned out to be the Storm Point, but he did not see the barge which it was towing at a distance of some 150 feet behind. He altered course to port at once and neither anticipated nor had any difficulty by that manœuvre in clearing the tug but, according to his evidence, which the learned trial judge appears to have adopted, he had just steadied and picked

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up way on his new course when for the first time he saw the barge directly in front of him. He thereupon made strenuous efforts to avoid the barge by going further to port but his spinnaker had collapsed and with what way he had he was unable to bring his boat into the wind so as to go on a starboard tack. The bow of the sail boat came in contact with that of the barge just to the starboard of its centre, the boat was pushed around so that its port side came in contact with the starboard portion of the bow of the barge, the sailboat was thereupon capsized, and Dr. Stein was thrown out and lost his life.

In the result, as I have said, Mr. Justice Thurlow would have varied the judgment at trial by dividing the fault equally between the two vessels involved and it appears to me that the essential difference between his opinion and that of Mr. Justice Heald is that the latter, who found that the tug was in breach of Rule 20(a) of the Regulations for Preventing Collisions at sea (hereafter referred to as “the Regulations”) took the contrary view. Both judges appear to be in agreement in the following findings with which I also agree:

(1) That Captain Helsing was negligent in the following respect described by Mr. Justice Thurlow at p. 681:

By letting out too much tow line and by proceeding too fast Captain Helsing … so incapacitated himself from controlling the barge and bringing it to a stop within a reasonable distance that when the prospect of a possible collision arose he could not take effective action to avoid it either by stopping the barge or by getting out of the way. The result was that the barge was still moving when the collision occurred. In my view its speed shortly before the collision reduced the time available to the Steins in the last stages to take effective action to avoid it and in the result it was the barge’s momentum and motion that caused the damage.

(2) That Ross Stein, the skipper of the sailboat, and his father, who was the only crew, were negligent in that they failed to “keep a proper lookout” contrary to Rule 29 of the Regulations, as evidenced by the fact that they did not see the

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barge at all until immediately before the collision.

The difference of opinion between these two judges concerns the actions of Captain Helsing after first sighting the sailboat and appreciating that it was coming towards him. The 505 was then about 4/10ths of a mile away at a position marked 1 on the chart which was about four cables from the point of collision. Helsing took no action at this point but waited until the sailboat was about 1,000 feet away at which point he altered a mere 15° to port fearing, as he said, that a further alteration might bring him into “foul ground”. Mr. Justice Thurlow took the view that it would have been bad seamanship for Helsing to attempt to get out of the way of the sailing vessel by making a further alteration, whereas Mr. Justice Heald made the finding that “if he had altered any time between position 1 and position 4 (the point where he made the alteration) he could have altered 30° or more and been completely clear of the sailboat with both tug and tow”. Rule 20(a) of the Regulations provides:

When a power-driven vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, except as provided for in Rules 24 and 26, the power-driven vessel shall keep out of the way of the sailing vessel.

In finding that:

…it is unrealistic and much too strict an application of Rule 20(a) of the Collision Regulations to hold Captain Helsing as bound by that Rule to keep out of the way of such a sailboat.

Mr. Justice Thurlow appears to have thought that complying with the Rule might have endangered other shipping to port. In this regard the learned judge said:

The practical consequences of such an application of the Rule appears to me to be that the commercial activity of transportation by barges cannot be carried on in these waters at times when pleasure craft are out in force for no sooner would such a tug and barge act to keep out of the way of one of them when he could expect to be involved with another or others and the very action

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taken to avoid one might well put him in breach of the Rule with respect to another.

With the greatest respect, these general observations do not appear to me to apply to the present case in light of the answers given by Captain Helsing himself on examination for discovery:

Q. It was clear of traffic ahead and to port as far as you were concerned?

A. Yes, very clear.

Q. Now, could you see the sailboats, including the one that became involved in the collision, before you got to the spit?

A. Yes.

Q. From Burrard, just west of Burrard Bridge?

A. Yes.

Q. Does a tug have more control over a barge when the barge is kept closer behind the boat?

A. Yes.

If it was “very clear” of traffic to port, it is difficult to understand how the misfortunes envisaged by Mr. Justice Thurlow could have been realized. I am, however, of opinion that the essential difference between Mr. Justice Thurlow’s view and that of Mr. Justice Heald lay in the answers given by the respective assessors at trial and in the Court of Appeal.

It seems to me that Mr. Justice Thurlow must have been influenced by the following finding of the two assessors who assisted the Court of Appeal and were asked the following questions:

Q. In such circumstances described in question 1 would good seamanship have required Captain Helsing to alter course 30° to port when passing Crystal Pool and to proceed through the western portion of English Bay in order to keep out of the way of sail boats to the eastward of the course indicated by the range lines on the chart?

A. No because of foul ground in near vicinity on port side.

A directly contrary view appears to have been expressed by the assessors who assisted Mr. Justice Heald as appears from the following passage in his judgment:

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As a matter of fact, at position 4, the assessors advise me he could have altered 90 degrees to port without endangering his own vessel. His vessel was drawing a maximum depth of 7'6". It was also at the top of a high water of over 11 feet which would have allowed him further leeway. In my view, Helsing was guilty of improper navigation procedures which contributed in a very direct and substantial way to the collision. He knew the sailboats were there. They were at 45 degrees off his starboard bow from the sighting until the collision. The Stein boat remained on the same bearing as it came in toward him (questions 345-350, discovery) and yet he did absolutely nothing about it, even though they were on a collision course with him, until they were about 1,000 feet away. Then, his action was clearly “too little and too late”.

In considering the difference of opinion between the two sets of assessors, I think it apt to quote what was said by Viscount Dunedin in The Australia[7], at p. 149, in the following passage:

Yet I do think it necessary to protest against a view which if I am not doing them injustice, has seemed to prevail in the Court of Appeal in a recent case, to wit, that the Court is bound to pay more attention to the opinion of its own assessors than to that of those who advised the Court below. There is no hierarchy of assessors. They occupy much the same position as do skilled witnesses, with this difference, that they are not brought forward as the partisans of the one side or the other.

In the present case it appears to me that the view taken by the assessors who advised the learned trial judge is substantiated by reference to the chart, by the fact that it was “at the top of high water” in the Bay and by the shallow draught of the tug and tow. The evidence as a whole does not, in my opinion, sustain the view adopted by Mr. Justice Thurlow, and the high tide and the depth shown on the chart do not indicate to me that there was “foul ground in near vicinity on the port side”. I am accordingly in agreement with Mr. Justice Heald that there would have been no danger in the tug making an alteration of at least 30° to port in time to get out of the way of the sailboat, and I think that the failure to take such avoiding action constituted a breach of Rule 20(a)

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of the Regulations and was a factor which materially contributed to the collision.

In summary, I am of opinion not only that Captain Helsing was negligent in failing to keep the barge close hauled, and in entering the Bay at the speed which he did, but he was also in breach of Rule 20(a) in failing to keep out of the way of the sailboat. In the result, the tug crossed the path of the 505 with the barge 150 feet behind it. It is true that the barge might well have been seen from the 505 if a proper look-out had been kept, but on the other hand had the barge been close hauled, the single mass so formed would undoubtedly have been seen by the sailboat and the action successfully taken to avoid colliding with the tug might very well have avoided the barge also.

As I have said, the main difference between Mr. Justice Thurlow’s reasoning and that of the learned trial judge is that the only negligence attributed to the tug by the former was the letting out of 150 feet of tow line when it did and proceeding too fast into the Bay, whereas Mr. Justice Heald found also that it was in breach of Rule 20(a) for not taking action to avoid the risk of collision at a time when it could and should have done so. This would appear to me to account for the difference between the two learned judges in their allocation of fault as between the tug and the sailboat.

The learned trial judge made other findings of fault against the tug, but I do not find it necessary to deal with them separately. It is enough for me to say that I do not consider his finding as to Captain Helsing’s failure to keep a proper look-out and his failure to sound blasts on his whistle when he altered course have been shown to be factors which were actually causative of the collision. I am satisfied, however, that the faults which I have discussed earlier fully support the findings of Mr. Justice Heald.

The conclusion reached by the Court of Appeal appears to me to be founded in large measure on the acceptance of the view expressed by Chief

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Justice Jackett in the following passage of his reasons for judgment at p. 666 of [1974] 1 F.C.:

In my view, the duty imposed on a power-driven vessel to “keep out of the way” of a sailing vessel when the two vessels “are proceeding in such directions as to involve risk of collision” does not arise when the sailing vessel has adopted a collision course in relation to the power-driven vessel’s course at a time when it is not reasonably possible for the power-driven vessel to keep out of the way of the sailing vessel. …

As I understand the facts in this case, Rule 20(a), as I interpret it, never applied. While the time when the sailing boat first started on the collision course with the tug and tow (which vessels had been on their course since they entered English Bay) cannot be determined with precision, the balance of probability on the evidence is that it was shortly before the time when the tug made its 15° port turn and the sailing boat made its 20° port turn. That being so, in my view it is clear on the evidence that, when the sailing boat first started on the collision course, it was not reasonably possible for the tug to have brought the barge to a stop so as to “keep out of the way” of the sailing vessel, it was obviously impossible for it to “keep out of the way” by any sort of starboard turn, and, while what would have happened if it had made a substantial port turn has not been established, it has not been established that such a turn would have resulted in its keeping out of the way of the sailing boat. In my view, in such circumstances, it was, for all practical purposes, impossible, at that time, for the tug to keep out of the way of the sailing boat and the requirement of Rule 20(a) never came into play.

On the other hand, in my view, what turned a perfectly safe situation into a potentially dangerous situation was the act of the sailing boat crew when it put the sailing boat on a collision course with the tug at a time when the two vessels were so close that the tug could not, by any normal manoeuvre, keep out of her way.

This passage appears to assume that the sailboat altered to “a collision course” with the tug at the last minute, whereas the evidence shows that from the time that the 505 “veered off from the main group of sailboats and started to proceed in the “general direction” of the tug and tow until it made the 20° alteration to port, it had maintained the same course.

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Chief Justice Jackett’s finding that the balance of probability on the evidence is that the sailboat first started on the collision course when it made the 20° port turn at which time the two vessels were so close that the tug could not keep out of the way, is difficult for me to accept, particularly having regard to what appears to be another finding of fact in the same judgment at p. 662 to the effect that from the time it was first sighted by the tug master it “was proceeding in what appeared to be a collision course”. I can find no evidence to indicate that the sailboat changed its course in any way from the time it was first sighted until the time of the 20° to port turn, and in my view that alteration did not have the effect of putting the sailboat “on a collision course with the tug” but, on the contrary, was a substantial factor in causing it to avoid the tug altogether.

It is also apparent that the Court of Appeal was of opinion that it had not been established that a further alteration to port by the tug when the sailboat was 1,000 feet away would have resulted in its keeping out of the way of the sailboat. This latter view was apparently shared by Mr. Justice Thurlow and, as I have said, I am in respectful disagreement with it.

I think it should be stressed that the provisions of Rule 20(a) come into effect “when a power‑driven vessel and a sailing vessel are proceeding in such directions as to involve risk of collision” and that, like other “Steering and Sailing Rules” it is to be obeyed in accordance with the preliminary paragraphs of Part D of the Regulations which provide that:

In obeying and construing these Rules, any action taken should be positive, in ample time, and with due regard to the observance of good seamanship.

The same provision is directly related to Rule 20(a) by the terms of Rule 22 which provides that:

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Every vessel which is directed by these Rules to keep out of the way of another vessel shall, so far as possible, take positive early action to comply with this obligation, and shall, if the circumstances of the case admit, avoid crossing ahead of the other.

And Rule 23 which reads:

Every power-driven vessel which is directed by these Rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.

In the case of Canadian Pacific Railway Co. v. The Ship “Camosun”[8], at p. 45, Maclean J. considered the meaning of “risk of collision” in the following passage:

What constitutes risk of collision is discussed by Marsden, 8th ed., pp. 302 and 303, and he there quotes Dr. Lushington to the effect that a chance of collision is not to be scanned by a point or two, and that if there was a reasonable chance of collision that is sufficient, that ships should not be allowed to enter into nice calculations in determining measures as to whether risk can be accepted, when long before the collision measures might be taken which would render risk impossible.

If the evidence of Helsing is accepted and he considered the sailboat to have been on a collision course from the time he first saw it at 4 l/10ths of a mile, then the situation was one in which “long before the collision measures might be taken which would render risk impossible”, but as I have indicated, I agree with the learned trial judge that the tug could have got out of the way even at the time when only 1,000 feet separated the two vessels.

As to the question of the respondents’ counterclaim seeking limitation of liability pursuant to s. 647 of the Canada Shipping Act, supra, I agree with Mr. Justice Heald for the reasons which are reported at [1972] F.C. pp. 600 to 607, that the burden rested upon the owner of the tug and tow to show that the loss of life occurred without their “actual fault or privity”, and that the owner,

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Egmont Towing & Sorting Ltd., through its president and manager, Peter Shields, who occupied the same position in Shields Navigation Ltd., was actually privy to the fault and negligence hereinbefore described. It appears to me to be reasonable to assume that the negligence of the tug master in failing to keep his tow close hauled, travelling at an excessive speed and failing to get out of the way of the sailboat was attributable to his inexperience. All these factors were causative of the collision and in my view Shields, by acquiescing in the tug and tow being left in such inexperienced hands, created a situation exposing other traffic in the Bay to potential dangers which in fact ensued and which Shields in his capacity as president and manager of the two respondent companies should have foreseen.

The burden resting on the shipowners is a heavy one and is not discharged by their showing that their acts were not “the sole or next or chief cause” of the mishap. As Viscount Haldane stated in Standard Oil Co. of New York v. Clan Line Steamers, Ltd.[9], at p. 113:

…they must show that they were themselves in no way in fault or privy to what occurred.

This cannot be said of the respondents in the present case. Peter Shields was the person with whom the chief management of both companies resided and I agree with the following description of his actions contained in the reasons for judgment of Mr. Justice Heald:

Peter Shields … authorized Helsing and Iverson to resume the voyage as a total crew of two.

In taking such action, Peter Shields was, in my view, guilty of negligence. He knew or should have known that Helsing had never taken a tug and tow out of False Creek as master before. He knew or should have known that Helsing had only sailed as master of the Storm Point once before and that was on June 23, 1970 when he brought the tug and tow across from Sidney on

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Vancouver Island. He knew that there would be considerable sailboat traffic in English Bay; he was a sailboat enthusiast himself. He admits knowing there was no legal authority to operate the Storm Point with a crew of two; he admits that this lack of legal authority crossed his mind; he acknowledges now that he was probably sending Helsing, an inexperienced master, into a potentially difficult situation. His exact words were “You have to be ready for anything in English Bay.”

I have the firm view that the negligence of Shields as set out supra contributed to the accident.

In view of the above, I am satisfied that the corporate defendants are not entitled to limit their liability in the present case, but having regard to the provisions of s. 649(1) of the Canada Shipping Act, the defendant Helsing as master of the tug is entitled to limit, his liability for which purpose I agree with Mr. Justice Heald that the calculation should be on the tonnage basis of 600 tons and that liability must be calculated on the aggregate tonnage of the wrong-doing mass, i.e., the tug and tow.

It would not be proper in my view to fail to take note of the suggestion made by Chief Justice Jackett at the outset of his reasons for judgment where he referred to the cases of S.S. Devonshire (Owners) v. Barge Leslie (Owners)[10]; Sparrow’s Point v. Greater Vancouver Water District et al.[11] and Algoma Central and Hudson Bay Railway Co. v. Manitoba Pool Elevators Ltd.[12], and expressed the view that these cases raised the possibility that the action should have been dismissed because contributory negligence by the deceased Stein offered a complete defence at common law and under the Canada Shipping Act.

As I said at the outset, the present action is brought pursuant to s. 719 of the Canada Shipping Act, which confines the appellants to the maintaining of an action for damages in the Admiralty Court, the jurisdiction of which is now vested in

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the Federal Court of Canada and, as 1 have indicated, includes jurisdiction with respect to “any claim for damage or for loss of life or personal injury caused by a ship either in collision or otherwise”. (See Federal Court Act, supra, s. 22(2)).

The High Court of Admiralty in England originally administered marine law by attempting to apportion liability for loss in accordance with the degree of fault of two colliding vessels, but after a time, in consequence of the difficulty of ascertaining the just proportion of blame, the Court adopted the rule of equal division and it was not until the enactment of the Maritime Conventions Act, 1911 (Imp.) 1 & 2 Geo. V, c. 57, that statutory provision was made for division of fault. These provisions were adopted in the Maritime Conventions Act, 1914 (Can.), c. 13, and are now substantially reproduced in s. 638 of the Canada Shipping Act which reads as follows:

638. (1) Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault.

(2) Where, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

(3) Nothing in this section operates to render any vessel liable for any loss or damage to which its fault has not contributed.

It is to be noted that this section makes no mention of loss of life or personal injury, for which the following provision is made in s. 639:

639. (1) Where loss of life or personal injuries are suffered by any person on board a vessel owing to the fault of that vessel and of any other vessel or vessels, the liability of the owners of the vessels is joint and several.

(2) Nothing in this section shall be construed as depriving any person of any right of defence on which, independently of this section, he might have relied in an

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action brought against him by the person injured, or any person or persons entitled to sue in respect of such loss of life, or to affect the right of any person to limit his liability, in cases to which this section relates, in the manner provided by law.

The case of the Devonshire, supra, which appears to have given rise to the misgivings of Jackett C.J., was one in which damage was caused to an innocent vessel through the combined negligence of two others, and the Courts held that the whole damage was recoverable from each of the wrongdoers. In an action against the owner of the Devonshire, one of the two negligent ships, they were condemned in the full amount of the damage sustained. In the course of his reasons for judgment, Viscount Haldane, L.C., said at p. 647:

I have come to the conclusion that the appellants [i.e. the Devonshire owners] have failed to shew that there was a rule in force in the Court of Admiralty that the owners of an innocent ship could not recover the whole of the damage she had sustained against one of two ships both to blame for a collision with her.

and at p. 651 Lord Atkinson referred to

…the general rule or principle of law, common to Courts both of common law and admiralty, that there is not to be contribution between joint tortfeasors, and that each is liable for the entire damages inflicted on an innocent person by their joint wrong.

The present case is not one in which an innocent ship or person was damaged through the joint negligence of two others although in my view this is the situation contemplated by s. 639 (1) of the Canada Shipping Act. Where the section refers to loss of life or personal injuries suffered by any person on board a vessel owing to the fault of that vessel and any other it must be taken to be referring to any innocent person on board a vessel, such as a passenger, and not to one who has himself been found to have participated in the negligence of one of the vessels in such fashion as to identify him with it. What we have here is a personal action brought against a vessel, its owners and master to assert the rights to which a deceased person would have been entitled if he had been injured and survived. It is a claim for loss of life

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“caused by a ship … in collision” within the meaning of s. 22(2) (d) of the Federal Court Act.

Like the case of Devonshire, s. 639 is directed to the liability of joint tortfeasors whose combined negligence has injured an innocent third party and it recognizes the joint and several liability of such tortfeasors just as does the judgment in that case, but, as I have said, the parties to this action are not joint tortfeasors in that sense and I do not think that s. 639 has any application to the circumstances here at issue any more than has the Devonshire or the cases following it to which Chief Justice Jackett referred.

This is not a case of damage to a vessel or its “cargoes or freight or any property on board” so that s. 638 can have no application and there is no express provision in the Canada Shipping Act for division of fault in the case of loss of life caused by the fault of two vessels in collision.

The old common law defence of contributory negligence has never been recognized in collision cases in admiralty law, and the rule as to equal division adopted in the Admiralty Court appears to have applied only to damage to a vessel or its cargo. Furthermore, the collision occurred at the mouth of False Creek in English Bay, British Columbia, at a point within the inland waters of that Province and I can see no reason why a claim under s. 22(d) of the Federal Court Act should not be governed in that Court by the substantive law of the Province concerning division of fault. I am accordingly of opinion that the provisions of the Contributory Negligence Act of British Columbia, R.S.B.C. 960, c. 74, s. 2, apply to this collision and that the liability to make good the damage sustained by reason of the death of Charles Stein should be in proportion to the degree in which each vessel was at fault.

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In view of all the above, it will be seen that I would allow this appeal, restore the judgment of the learned trial judge and direct that the appellants are entitled to recover 75 per cent of the damage which has now been assessed at $160,000.

The respondent Helsing is entitled to have his liability limited in accordance with the provisions of s. 649(1) of the Canada Shipping Act and for this purpose the calculation will be on the basis that the aggregate tonnage of the tug and tow is 600 tons.

The appellants are entitled to their costs in this Court and in the Court of Appeal.

Appeal allowed with costs.

Solicitors for the plaintiffs, appellants: MacRae, Montgomery, Spring & Cunningham, Vancouver.

Solicitors for the defendants, respondents: Bull, Housser & Tupper, Vancouver.