Supreme Court of Canada
Ove Skou Rederi v. Nippon Yusen Kaisha Ltd., [1971] S.C.R. 233
Date: 1970-10-06
Ove Skou Rederi A/S, Owner of the Ship Marie Skou and Cartiere Del Timavo S.P.A. and Cellulosa Sarda S.P.A. Appellants;
and
Nippon Yusen Kaisha Ltd. and Showa Yusen Kaisha Ltd. and the Ship Chitose Maru Respondents,
1970: March 3, 4, 5; 1970: October 6.
Present: Abbott, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Shipping—Collision—Fog—Radar—Close quarters situation—Both ships equally at fault—Canada Shipping Act, R.S.C. 1952, c. 29.
The ship Marie Skou collided in the Straits of Juan de Fuca in heavy fog with the ship Chitose Maru. The former was sailing outbound from Crofton, B.C., and was travelling at her full speed of 15½ knots assisted by a one-knot out-going tide. The Chitose Maru was sailing inbound to Port Moody, B.C., and was operating at about 7½ knots. The Marie Skou had the Chitose Maru on a bearing to starboard leading to a starboard to starboard passing, while the Chitose Maru had the Marie Skou on a bearing to port leading to a port to port passing. Both vessels were on intersecting courses which eventually led them into a close quarters situation. In that situation the Chitose Maru altered course hard to starboard across the bows of the Marie Skou, and the collision occurred. The trial judge found that both ships were equally to blame. An appeal and a cross-appeal were filed in this Court.
Held (Pigeon J. dissenting): The appeal and the cross-appeal should be dismissed.
Per Abbott, Ritchie, Hall and Spence JJ.: The liability should be borne equally between the two ships in accordance with the provisions of s. 648(2) of the Canada Shipping Act. The trial judge has rightly held that both vessels were at fault and that the faults of each contributed to the collision in equal degree. No proper radar lookout was maintained by either vessel and each failed to take early and substantial action to avoid a “close quarters situation” after they had become aware of each
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other’s position with the assistance of their respective radar sets. The trial judge rightly ruled also that the inexcusably excessive speed of the Marie Skou was a fault which contributed to the collision and that the absence from the bridge of the master of the Chitose Maru and his delegation of authority to the second officer and helmsman was probably the reason for the alteration “hard to starboard” across the bows of the Marie Skou and was a fault which made the collision inevitable.
Per Pigeon J., dissenting: The primary cause of the collision was the sudden turn of the Chitose Maru that put her across the bow of the other ship when she was so close that a collision was inevitable. From the point of view of civil liability, the Marie Skou did not commit any fault having effectively contributed to the collision.
APPEAL and CROSS-APPEAL from a judgment of Sheppard J., Deputy Judge of the Admiralty District of British Columbia, whereby both parties were held equally at fault in a maritime collision. Appeal and cross-appeal dismissed, Pigeon J. dissenting.
John R. Cunningham, for the appellants.
John I. Bird, Q.C., for the respondents.
The judgment of Abbott, Ritchie, Hall and Spence JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of Mr. Justice Sheppard, sitting in his capacity as the District Judge of the Admiralty District of British Columbia, in which he decided that the Marie Skou and the Chitose Maru were equally to blame for a collision which occurred in the Straits of Juan de Fuca in heavy fog at 0032 hours on the morning of September 20, 1967, while the Chitose Maru was sailing inbound to Port Moody, B.C., and the Marie Skou was outbound from Crofton, B.C.
The Marie Skou was 416 feet in length and had a gross tonnage of 6,262 tons, whereas the Chitose Maru was 634 feet 10 inches in length and had a gross tonnage of 24,254 tons.
I have had the privilege of reading the reasons for judgment of my brother Pigeon, and I am in full accord, with him that the facts found by the
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learned trial judge are accurate, but I am unable to agree with the conclusions which he draws from those facts.
There is no dispute as to the fact that the Marie Skou was at all material times travelling at her full speed of 15½ knots which was assisted by a 1-knot out-going tide current so that her speed over the ground was 16½ knots, and that the Chitose Maru was operating at about 7.5 knots for more than one hour before the collision, which latter speed is characterized by her master as “slow ahead”.
It is not my intention to reproduce all the findings of fact of the learned trial judge, but I think it is of assistance to note the following preliminary finding:
The Marie Skou had the Chitose Maru on a bearing to starboard leading to a starboard to starboard passing while the Chitose Maru save at the initial change from 095 degrees (true) to 105 degrees (true) had the Marie Skou on a bearing to port leading to a port to port passing. Neither vessel knew of the other vessel’s course or intention. Although the vessels were on intersecting courses those intersecting courses did not necessarily lead to the vessels colliding; that would depend on whether or not the two vessels arrived at the intersecting point at the same moment and in any event such intersecting point was not at the place of this collision. However, the intersecting courses did lead the vessels into a close quarters situation. In that situation the Chitose Maru altered course hard to starboard across the bows of the Marie Skou, due to the continuing belief of the second officer that he was clear to pass port to port. Thereupon the Marie Skou collided with the Chitose Maru due to the excessive speed of the Marie Skou having disabled her from avoiding the Chitose Maru and that excess speed was built up and continued as excessive because of the belief of those on watch that all was clear for a starboard to starboard passing.
The italics are my own.
There is no doubt in my mind that the collision would not have occurred if the Chitose Maru had not altered course hard to starboard across the bows of the Marie Skou. This was the immediate cause, but that is not to say that it was the sole cause of the collision.
I agree with the learned trial judge that both vessels were at fault and that the faults of each
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contributed to the collision in equal degree, but I am content to rest my opinion as to their common fault on the fact that no proper radar lookout was maintained by either vessel and that each failed to take early and substantial action to avoid a “close quarters situation” after they had become aware of each other’s position with the assistance of their respective radar sets. I agree also with the learned trial judge that the inexcusably excessive speed of the Marie Skou was a fault which contributed to the collision and that the absence from the bridge of the master of the Chitose Maru and his delegation of authority to the second officer and helmsman was probably the reason for the alteration “hard to starboard” across the bows of the Marie Skou and was a fault which made the collision inevitable.
This was in truth a radar-assisted collision in the sense that it was brought about by the misuse of the radar equipment on both vessels. This becomes abundantly apparent from the finding of the learned trial judge that “neither vessel knew of the other vessel’s course or intention”. The radar screen on the Marie Skou appears to have been observed with greater care than that on the Chitose Maru as the second officer on the former ship appears to have made use of a bearing marker, but neither vessel plotted the course of the other and in this regard reference may be made to the judgment of this Court in Imperial Oil Limited v. M/S Willowbranch[1], where two ships (Imperial Halifax and M/S Willowbranch) both of which were equipped with radar, were approaching each other in or near fog and in the final analysis the Willowbranch brought herself directly into the path of the Imperial Halifax. In finding that liability for the collision should be borne equally between the two ships, it was said at page 411:
As I have indicated, I take the view that the imperial Halifax should have seen the echo of the Willowbranch sooner, but the greater negligence consisted in the Captain, after he had detected the presence of the approaching ship by radar, proceeding on the assumption that the ships would pass -starboard to starboard without first having plotted the course of the ship ahead. It seems probable that the
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ships would indeed have passed if Willow branch had not altered course, but under all the circumstances, Captain Kent’s decision to proceed, based on his own unverified estimate, exposed both ships unnecessarily to the risk of collision.
The negligence of the Willowbranch was of the same character. The echo of the Imperial Halifax was detected on the radar two and a half miles away and yet, despite this warning, the course of the approaching ship was never plotted. On the contrary, the Willowbranch appears to have adopted a series of courses which resulted in the ship edging her way directly into the path of the Imperial Halifax. If the radar information had been ‘interpreted by active and constant intelligence on the part of the operator’, I find it difficult to believe that this action would have been taken.
There is undoubtedly a strong analogy between the present case and that of the Willowbranch, supra, but I cite that case at this point for the purpose of indicating the importance which this Court has placed on the necessity, for vessels equipped with radar and operating in fog, to plot the course of approaching vessels observed on the radar screen.
The collision regulations passed under the authority of the Canada Shipping Act by P.C. 1965-1552 are required to be followed by all vessels in waters such as the Straits of Juan de Fuca, and I think it desirable to make express reference to Rule 16 of these regulations which reads as follows:
Rule 16.
Conduct in Restricted Visibility.
(a) Every vessel,… shall, in fog, mist, falling snow, heavy rainstorms or any other condition similarly restricting visibility, go at a moderate speed, having careful regard to the existing circumstances and conditions.
(b) A power-driven vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.
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(c) A power-driven vessel which detects the presence of another vessel forward of her beam before hearing her fog signal or sighting her visually may take early and substantial action to avoid a close quarters situation but if this cannot be avoided, she shall, so far as the circumstances of the case admit, stop her engines in proper time to avoid collision and then navigate with caution until danger of collision is over.
In considering Rule 16(b) of the regulations before Rule 16(c) had actually been brought into force, the following comment was made on behalf of this Court in the Willowbranch case at page 410:
The considerations giving rise to this rule appear to me, to apply with added force when a ship is equipped with radar and thereby has available a means of detecting an approaching ship at a greater distance and with greater accuracy than any fog signals could afford. The ships involved in this collision detected each other forward of their respective beams before hearing each other’s fog signals or sighting each other visually, and they were thus in a position to take early and substantial action to avoid coming to close quarters. In lieu of taking such action, the proper course for both would have been to stop engines and not to proceed again until each had established the position of the other so that both could proceed without risk of collision.
In my view these observations have direct application to the present case.
It seems to have been assumed by counsel on behalf of the appellant that the phrase “close quarters situation” as used in Rule 16(c) refers to a situation in which the vessels were only a few hundred yards apart, and in this regard it is, in my view, helpful to consider the judgment of Lord Justice Willmer rendered on behalf of the Court of Appeal in England in the case of the Verena[2]. That was a case in which two vessels, the Grepa and the Verena, were approaching each other on practically opposite courses. The Grepa, which had a gross tonnage of 9,957 tons and a length of 515 feet, was proceeding in increasingly thickening weather and had been travelling at her
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full speed of 14 to 15 knots until about 12 minutes before the collision, by which time the visibility was worsening and the approaching Verena had been seen on the radar screen. At this time speed was reduced to slow (5 to 5½ knots). Eight minutes later when the Verena was distant less than 1½ miles, the Grepa engines were stopped and they remained stopped until the time of the collision.
The Verena, on the other hand, was in clear weather until about five minutes before the collision when it was first observed that there was bad visibility ahead. The Verena had been proceeding at her full speed of 14 to 15 knots but about two minutes after the thickening weather had been appreciated, the engines were reduced to slow and two minutes later, at which time it was conceded that the reduction of speed must have been practically negligible, a virtually head-on collision occurred between the two vessels.
Under these circumstances, Mr. Justice Karminski at trial held the Verena wholly to blame, but when the matter came before the Court of Appeal it was found that the actions of the Grepa were such as to make it impossible to establish different degrees of fault and the vessels were accordingly pronounced equally to blame.
In the course of his reasons for judgment, Willmer L.J. analyzed the speed maintained by the Crepa at various stages while operating in fog and he decided that when the Verena was first sighted on the Grepa’s radar screen, there arose a duty specifically towards the Verena to reduce speed, but he went on to point out that at that early stage when the vessels were many miles apart, he did not think that a breach of that duty could be regarded as a cause contributing to the collision, but in determining the point of time at which the continued improper speed did become a contributing factor, the learned judge, after quoting the terms of what is now Rule 16(c), went on to say at page 133:
That, it will be seen, authorizes ‘early and substantial action to avoid a close quarters situation’. If that cannot be avoided, then, as I read the proposed rule, it requires (in effect) that the same precautions shall be adopted as are prescribed by Rule 16(b) already, namely, stopping the engines and then navigating with caution. It leaves open to
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argument what is meant by the phrase ‘close quarters situation’. That, I think, must depend upon the size, characteristics and speed of the ships concerned. I think, however, that in the case of ships of the class that we have here it must mean a quite substantial distance, and, I would venture to think, a distance measurable in miles rather than in yards.
The learned judge went on to find that twelve minutes before the collision (at 0550 hours) all that the Grepa had done was to reduce her engines to “slow” and he said, at page 134:
That must, I think, inevitably mean that many minutes would pass before her previous excessive speed could be run down to her slow speed. Mr. Adams contends that at that stage, at the least, the engines of the Grepa ought to have been stopped, so as to reduce to a moderate speed as quickly as possible. He also at one period suggested that, even at that stage, the Grepa might have made a substantial alteration of course, preferably to starboard. That charge, however, was never pleaded against the Grepa, and it has not been pressed before us.
Willmer L.J. went on to say:
It seems to me that certainly by 0550 hours, if not before, there was at least imminent danger of a ‘close quarters situation’ developing if something drastic were not done. Indeed it may even be said that such a situation had already arisen; and if this be right, I think it must follow that maintenance of any improper speed after that point could hardly be said not to be a factor contributing to the collision.
The judgment continues as follows:
Mr. Adams (and Mr. Brandon also) made the further point that, since the engines had only been reduced to ‘slow’ at 0550 hours, the situation at 0558 hours, when the engines were in fact stopped, was such as to call for reversing rather than stopping. At that time, the vessels were only just over a mile apart, and the Grepa must have been going not less than 5 to 5½ knots. That was the lowest she could have got down to with engines working at ‘slow’, and that, as it seems to me, would clearly be a dangerous speed at that range in face of a vessel approaching on a practically opposite course and at high speed. The difficulty of suggesting that at that stage the engines of the Grepa ought to have been reversed seems to me to be that it might probably have caused her head to fall off substantially—presumably to starboard if the vessel had a right-handed propeller—and might have resulted in her getting
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into a position where she would lie athwart the course of the approaching Verena. In the circumstances, I think the better view is that the fault of the Grepa must be sought at an earlier stage; if she could not safely reverse at 0558 hours, her inability to do so can only be regarded as due to her earlier failure to reduce her speed.
In the present case the learned trial judge has found that at 0019 hours, which was 13 minutes before the collision the echo of the Chitose Maru was seen on the radar screen of the Marie Skou bearing 10 degrees to starboard at a distance of 5.5 miles. The two vessels were then approaching each other at a combined speed of about 24 knots and their respective length and tonnage was comparable to that of the two vessels involved in the Verena collision. It appears to me that by 0019 hours “there was at least imminent danger of a ‘close quarters situation’ developing if something drastic were not done” and I am of opinion that if the Marie Skou had then followed the directions contained in Rule 16 of the regulations and stopped her engines or at least reduced her speed to slow, she would have been in a position to avoid the collision by backing away from the other vessel.
What in fact happened was that the Marie Skou was making 16½ knots when she first sighted the other vessel visually, with the result that no order to reverse the engines or go full astern could have been effective to put the vessel in reverse or even to decelerate her speed. The actions on the Marie Skou after it had been appreciated that the other vessel was turning to starboard across her bows are described by the learned trial judge as follows:
The Master rushed into the wheelhouse to the steering pedestal, switched to manual control, swung the wheel hard to port and shouted to the second officer to order the engine full astern. The second officer rang this order on the engine room telegraph but stated he heard some apparent difficulties in reversing the engine. The engine and propeller were in direct drive so that before reversing the engine it was necessary to bring the propeller to rest and after the engine was reversed some time was required before the deceleration took effect as the vessel being loaded would continue to make headway for some
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time. The chief engineer of the Marie Skou stated that the engine orders were as follows: 0030 stop; 0030 full astern; 0032 collision. The Master estimated 3 to 4 minutes had elapsed between the lights of the Chitose Maru coming into view and the collision.
It is contended that the speed of the Marie Skou was not a factor contributing to the collision because if her speed had been reduced the intersecting courses of the two vessels would have brought them together earlier. But the intersecting courses of the two vessels before they came together had nothing to do with this collision and the speed of the Marie Skou became a factor, directly contributing to the collision because it incapacitated her from taking such avoiding action as would have been available to her if her engines had been stopped or even reduced to slow at the time when it should have been apparent to those responsible for her navigation that “a close quarters situation” was at least imminent. By reason of her inability to take the action which she could have taken if she had obeyed the rules, the Marie Skou contributed to the collision so materially that I am, like the learned trial judge,. unable to establish different degrees of fault between heir and the Chitose Maru and it follows that the liability should be borne equally between the two ships in accordance with the provisions of s. 648(2) of the Canada Shipping Act.
For all these reasons I would dismiss this appeal with costs.
PIGEON J. (dissenting)—This is an appeal from a judgment of the Exchequer Court rendered by F. A. Sheppard, deputy judge, on May 15, 1969, whereby both parties were held equally at fault in a maritime collision.
The facts are fully and accurately stated in the judgment below and only a brief outline appears necessary.
The collision occurred in the Strait of Juan de Fuca in fog, thirty-two minutes after midnight on September 20, 1967.
The Chitose Maru was on her maiden voyage sailing in ballast from Yokohama to Port Moody,
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B.C. She is a large twin-screw bulk carrier 634’.10” in length, with engines and superstructure aft.
The Marie Skou was loaded with wood pulp and outward bound from Crofton, B.C. She is a single-screw diesel engine direct drive, with engine and superstructure amidships. Her overall length is 416’ 4”. Until shortly before the collision she was going practically at her full speed of 15½ knots with an outgoing tide current of 1 knot making her speed about 16½ knots over the ground while the Chitose Maru was going only about a knot over her half speed of 7½ knots so that this was her approximate speed over the ground.
The master of the Marie Skou was on the bridge with the second officer and a lookout. He sighted the Chitose Maru by radar when still outside the six-mile range at 15 minutes past midnight bearing to starboard and he instructed the second officer to watch the echo. This the latter did, placing a bearing marker through it and he observed that the angle was altering to starboard. At 0019, the captain noted on a pad that the echo was at 5.5 miles bearing 10° to starboard. At 0025, he noted the distance as 2.5 miles and the bearing 15° to starboard. At 0029, the lookout from the wing of the bridge reported a white light to starboard 20° or a little more. The master went to the wing and with binoculars saw two masthead lights open to starboard. Then the white lights began to close showing the vessel was turning to starboard across the bow of the Marie Skou and in a few seconds the port light was seen. At 0030, at the same time as the wheel was swung hard to port, the engine was ordered to stop and then full speed astern. Two minutes later the collision occurred, the bow of the Marie Skou hitting the port side of the Chitose Maru, not very far aft of the bow and almost perpendicularly.
It is obvious that the primary cause of the collision is the sudden turn of the Chitose Maru that put her across the bow of the other ship when she was so close that a collision was inevitable. With commendable fairness, counsel for the respondents does not deny that without that manoeuvre the collision would not have occurred, although he said the two ships would have crossed
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starboard to starboard at close quarters. He did not deny that the Chitose Maru’s unfortunate manoeuvre was a fault that did cause the accident. The only submission on her part was that the other ship had also contributed to the accident.
In such a situation the proper approach must be to consider whether there was such a fault on the part of the Marie Skou. The duty of the Court here is to fix civil liability and, consequently, for any act or omission to be considered as affecting liability, it must be shown not only to have occurred but also to have effectively contributed to the accident. With this in mind, the faults found against both ships and those found against the Marie Skou in the Court below must now be considered.
1. No lookout on the forecastle head.
On the Marie Skou this cannot have contributed to the accident. The lookout on the bridge did see a white light and the master then saw both top lights when still open to starboard. He noted the time as 0029, which is exactly in accordance with the evidence from the other side that the hard starboard order was given precisely at 0029. It might also be observed that the combined speed of the two ships being 24 knots and the collision having occurred three minutes later, this means that the lights of the Chitose Maru were effectively seen at the upper limit of the range of visibility estimated by the master of the Marie Skou that is 0.8 to 1.0 mile. On the other hand, the absence of a lookout on the forecastle of the Chitose Maru was much more serious her bridge being more than five hundred feet aft, not less than two hundred. Putting both ships in pari delicto on that account might be proper on an abstract technical consideration of the observance of the regulations, but, with respect, it is erroneous in the allocation of liability where actual influence in the outcome is the criterion.
2. Misuse of the radar.
“The courses in passing, it is said, are to be denoted only by plotting and plotting was neglected by both vessels”. Here again equal blame is laid on both ships although the situation was radically different. On the Chitose Maru there was not even proper observation of radar on account of insufficient personnel on the bridge. Such was not the case on the Marie Skou, while plotting
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was not done there was not only proper and continuous observation, but also a bearing marker was used and precise observations were made and recorded. From those observations, it was possible to have what might be called a rudimentary plot prepared by the master of the Marie Skou, when he was examined on discovery and this was put in by the respondents at the trial as an exhibit. It shows that, while the two ships were on intersecting courses, they would not have come within close quarters in crossing starboard to starboard had they both continued on their respective courses of 288° (true) for the Marie Skou and 115° (true) for the Chitose Maru. Counsel for the respondents did not challenge appellants’ contention that it would have been so on that assumption. However, he pointed out that at 0025 the Chitose Maru had altered her course to 120° and at 0027 or 0028 to 125°. While this would not have brought her on a collision course he urged that it would have brought her within a few hundred yards which would have been a close quarters situation requiring caution on the part of the Marie Skou.
Counsel for the latter points out, however, that plotting will not reveal in a short time a small alteration in the course. It must therefore be concluded that on the part of the Marie Skou the omission of plotting did not contribute to the accident. Prior to the alteration of course, this would not have revealed any danger but merely confirmed what the master of the Marie Skou had correctly deduced from the radar observations, namely that safe starboard to starboard crossing was indicated. There is nothing in the evidence from which it can be deduced that plotting would have made the master of the Marie Skou aware of the danger sooner than he was by visual observations and no such finding was made. It should also be noted that even if a close quarters situation had been indicated somewhat sooner, a substantial speed reduction could not have been effected because, due to the intersecting courses, a slowing down would have increased the danger of collision by preventing the Marie Skou from keeping as far ahead as possible of the point of intersection.
Of course, if there was a regulation requiring plotting under the conditions prevailing at the
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material time, those responsible for the omission of the plotting might have to be found equally guilty of a breach of such regulation irrespective of anything else. However, from the point of view of civil liability, those who, as a result of continuous, careful and systematic observations with notes and visual aids, rightly concluded that the courses of the two ships were leading to a safe starboard to starboard crossing cannot be put on par with those who, after insufficient, incomplete and erratic observations without notes or visual aids, wrongly anticipated a port to port crossing and made the improper manoeuvre that caused the collision.
3. Failure to comply with Rule 16(c).
This is effectively disposed of by what has just been said. When the presence of the Chitose Maru was detected, a close quarters situation was not indicated and her small alterations of course that subsequently created it could not be detected in proper time.
4. On the part of the Marie Skou, failure to proceed at a moderate speed.
Here again the crucial question is whether the speed did contribute to the collision. It is not the duty of the Court to decide whether, under present conditions, it is proper with radar to navigate a ship at a speed at which her stopping distance is greater than her range of visibility. In this particular case, as we have seen, the primary cause of the collision is not doubtful. It is the sudden starboard turn by the Chitose Maru that put her across the bow of the Marie Skou. This was clearly an improper manoeuvre and it is hard to see how it could be contended that those on board the Marie Skou should have anticipated it. However, unless they did, there was no reason for them to lessen their speed because, as previously noted, due to the fact that the courses were intersecting behind the Marie Skou, an early reduction in speed would have had the effect of bringing the intersecting point closer with consequent risk of collision unless the course of the ship as well as the speed was altered.
It is clear that in fog, unnecessary alterations of speed and of course are to be avoided because every alteration makes it more difficult for any
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other ship to make a proper decision respecting her own course and speed. Here, the minor course alterations made by the Chitose Maru a few minutes before the accident were clearly not in accordance with good seamanship because they could not be promptly perceived by the other ship and were apt to cause confusion and uncertainty. In the absence of any indication of an impending close quarters situation, the master of the Marie Skou had no reason to anticipate a situation requiring a reduction of speed. As soon as he did, he ordered the engine stopped and reversed. Nothing shows that there was any delay in giving those orders and in executing them. Nothing shows that the necessity for doing this could have been perceived earlier. In fact, it is shown that the master of the Marie Skou did observe the starboard turn just as soon as it started to become apparent.
5. On the part of the Marie Skou, assuming the courses of the two vessels would lead to a starboard to starboard passing.
How can the Marie Skou be said to have been guilty of fault in so doing where this was a correct conclusion? The only reason for which this ultimately proved incorrect is the sudden turn. As we have just seen, this was clearly an improper manoeuvre that could not reasonably be anticipated.
6. On the part of the Marie Skou, going hard to port after sighting the port light of the Chitose Maru.
Even if this was an error, there is no evidence that it did contribute to the collision or increase the damage and no finding that it did. It is not suggested that the collision would not have occurred if this had not been done and it is not shown that it did increase the damage. On the contrary, it is fairly apparent that the only result of that manoeuvre was that the Chitose Maru was struck near the bow instead of amidships, a result that clearly tended to minimize the damage rather than to increase it.
At this point, one should note how much the facts of the instant case differ from those of the British Aviator[3] case that was relied on in the Court below. In that case the Crystal Jewel was in much the same position as the Chitose Maru
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was in this case and like her, she made a succession of small alterations of course to starboard. However, the position of difficulty was created not by her but by the British Aviator turning to port, without which Sellers L.J. said (at p. 281) “there would in all probability have been no collision”.
In that case therefore, where the blame was apportioned equally, bad seamanship had been displayed by one ship improperly making a succession of small alterations in course but then the crucial false manoeuvre had been made by the other ship turning across her bow. Here, on the contrary, the same ship, the Chitose Maru, did both. It is true that the Marie Skou did port her helm, but this was done after the wrong turn by the other ship and at the same time as her engine was ordered stopped and reversed, so that it was in no way the effective cause of the collision as in the case of the British Aviator.
Concerning the Willowbranch[4] case, I must note what is in my view a major difference in the respective positions of the ships involved. The captain of the Imperial Halifax, the ship that stood in much the same situation as the Marie Skou in the present case, estimated the other to be approximately 1½ miles ahead bearing 3° of the starboard bow. When the ships were about a mile apart, the angle appeared to have broadened to 4°. This clearly indicated a close quarters situation. Here, on the contrary, the corresponding figures are at 5.5 miles, 10° to starboard and at 2.5 miles, 15° to starboard. As previously stated, it was not contended before us that when those observations were made, a close quarters situation was indicated. It is true that a close quarters situation subsequently developed but this was solely due to the successive small alterations of course effected by the Chitose Maru, contrary to good seamanship. These were such that they could not readily be detected and certainly were not to be anticipated.
While it is a fact that plotting was omitted by the master of the Marie Skou as it was by the master of the Imperial Halifax, the latter did not like him put himself in the situation of being
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able to show that by having continuous precise observation made with the help of a bearing marker and of periodic notes on a pad, he had effectively obtained all the information that plotting would have provided so that the omission of the plotting was in effect only a technical violation of the rule of good seamanship that requires it rather than misuse of radar.
Concerning the case of the Verena[5], it must similarly be noted that a close quarters situation was indicated to the Grepa when the presence of the other ship was first detected. She was, it is said, “on a practically opposite course” (per Willmer L.J., at p. 135). There was, therefore, at that time, a duty either to take “early and substantial action” to avoid that situation or to stop her engines and this is what she failed to do until it was too late.
On the whole, I must conclude that on the findings of fact made by the learned trial judge with the assistance of his two assessors, it cannot be said that the Marie Skou did commit any fault contributing to the collision, while the Chitose Maru is clearly guilty of a fault so contributing.
I would therefore allow the appeal, set aside the decision of the Exchequer Court in so far as the Marie Skou was held guilty of a fault having contributed to the collision and direct judgment against the respondents in favour of the appellants for the damages from the collision with interest thereon at five per cent per annum and order that, failing an agreement between the parties as to the amount of such damages, there shall be a reference to the proper officer of the Exchequer Court to assess the same, the appellants to have their costs in this Court and in the Exchequer Court of Canada including any reference taken in accordance with the present judgment.
Appeal and cross-appeal dismissed with costs, PIGEON J. dissenting.
Solicitors for the appellants: Macrae, Montgomery, Hill & Cunningham, Vancouver.
Solicitors for the respondents: Owen, Bird & McDonald, Vancouver.