Date: 20010131
Docket: T-2057-85
BETWEEN:
PORTO SEGURO COMPANHIA DE SEGUROS GERAIS
Plaintiff
- and -
BELCAN S.A.
FEDNAV LIMITED
UBEM S.A.
THE OWNERS AND ALL OTHERS INTERESTED IN
THE VESSEL "FEDERAL DANUBE"
AND THE VESSEL "FEDERAL DANUBE"
Defendants
REASONS FOR JUDGMENT
LEMIEUX J.:
| A. INTRODUCTION |
[1] Without making any finding of fact at this stage, I provide a general description of the events giving rise to this collision action. On the clear and calm night of December 11, 1984, at 21:48 hours, two large ocean-going bulk carriers, the M/V Beograd (the "Beograd") 182.85 meters in length and the M/V Federal Danube (the "Federal Danube") with an overall length of 222.48 metres, collided in the Pointe Fortier anchorage in Lac St. Louis, situated west of Montreal and adjacent to the Lower Beauharnois Lock (the "Lock"), part of the St. Lawrence Seaway (the "Seaway"). Seaway traffic in the area was heavy that day because of a two-week back-up due to a malfunction of the Valleyfield bridge. It was also near the Seaway's closing for the winter.
[2] Approximately ten minutes before the collision, at 21:40 hours, the Beograd, loaded with a cargo of Pinto beans whose destination was Brazil, had exited the Lock, passed a vessel at the Lock's tie-up wall awaiting entry and had advised Seaway Control she had cleared the end of the Lock's tie-up wall when her Pilot, Captain Noël Daneau ordered her engines "full ahead" with a heading of 56 degrees and then immediately to a heading of 58 degrees. At approximately 21:45 the Beograd's heading was changed to 63 degrees.
[3] At 21:40 hours, the Federal Danube, at anchor in 50 feet of water in the Pointe Fortier anchorage area south of the navigation channel awaiting her turn to move towards the Lock, began to draw in her port anchor lying on the river bed at 90 degrees of her center line.
[4] When the Beograd was in the Lock, Captain Daneau could see with the naked eye three ships at anchor in the part of the anchorage area north of the navigation channel. He also could see two ships at anchor in the southern part of the anchorage area, one being the Federal Danube and the other the Canadock. For its part, the Federal Danube's Captain on bridge duty saw the Beograd exit the Lock.
[5] At approximately 21:44 hours, the Federal Danube's Chief Officer, Wilham T. De Deken (the "Chief Officer"), who was then at the ship's bow to direct her anchor heaving operation, observed the Beograd at approximately four cables away (731.5 metres) and contacted the bridge of the Federal Danube to advise the Beograd would be passing very very closely in front of her.
[6] A minute or so later, at approximately 21:45, the Federal Danube's Master, Captain Pierre Derenne, ordered the anchor heaving operations stopped and at 21:47.48 hours ordered her engines at "half astern".
[7] When the distance between the Federal Danube's bow was approximately twenty to thirty meters away from holds one and three on the Beograd's port side, Captain Daneau said he ordered the wheelsman to put the Beograd's wheel "hard to port".
[8] At 21:48, the port bow of the Federal Danube came into contact with holds six and seven on the Beograd's port side. The Beograd began to take water; she was grounded and her cargo of Pinto beans, taken on board in Duluth, was severely damaged.
| B. THE ISSUES |
[9] Two issues arise in the new trial of this cargo action in which the plaintiff is the cargo's insurer who had made good the loss and the defendants are the Federal Danube, its owners, managers and charterers:
| (1) The plaintiff's standing to sue; and |
| (2) The liability for the collision. |
[10] The plaintiff says the principal cause of the collision was the Federal Danube's untimely and unauthorized heaving up of her anchor, an operation which should not have taken place if she had paid attention to the Beograd because it is said the heaving pulled and moved her ahead into the path of the passing Beograd. The plaintiff also blames the Federal Danube for failing to report to Seaway Control her exact position at anchor and to receive permission to heave anchor. Other faults are said to be her getting underway without permission, her inoperable bow thruster which could have been used to abate her sheer to port, and her non-use of her engine to avoid the collision.
[11] The defendants say the Beograd is solely responsible because she should have been navigating in the dedicated navigational channel rather than at high speed in the anchorage. They allege the Federal Danube was still at anchor and normally swinging at anchor when the collision occurred. The Beograd breached its duty to stay clear, they say.
C. THE NEW TRIAL OF THE ACTION
[12] The Supreme Court of Canada in Porto Seguro Companhia de Seguros Gerais v. Belcan S.A. et al., [1997] 3 S.C.R. 1278, ordered a new trial of this action which had been dismissed by the trial judge and on appeal. McLaughlin J., as she then was, on behalf of the Court, held the trial judge and the Federal Court of Appeal were wrong in refusing to hear evidence from three experts because assessors had been appointed to assist the Court.
[13] The new trial was conducted before me pursuant to directions issued by Mr. Justice Hugessen on February 10, 1999.
| (a) The amount of damages, in principal only, is $4,400,867.84; |
| (b) The transcript of evidence and the exhibits produced at the first trial serve as evidence of the facts in the new trial with either party at liberty to read in portions of the examinations on discovery; |
| (c) The only other evidence to be taken is expert evidence; |
| (d) No assessors are to be appointed to assist the Court. |
[1] At the first trial, the plaintiff had called three witnesses:
| (a) The Beograd's Captain Janicic; |
| (b) Its Pilot Noël Daneau; and |
| (c) Mario Rossi from the Salvage Association. |
[2] At the first trial, the defendants had called as witnesses the following:
| (a) Captain Derenne; |
(b) Chief Officer De Deken;
| (c) Apprentice officer Christian Dubit; |
| (d) Captain John D. MacKenzie of the M.V. Canadoc; and |
| (e) M. Claude Bilodeau from the Seaway Authority. |
[3] The transcripts of their testimony and the exhibits produced were filed and constitute evidence.
[4] In terms of experts, the plaintiff advanced the evidence of Captain Mueller, Dr. Doust and Mr. Rossi in this new trial.
[5] The defendants replied with the expert evidence of Captain David Pockett, Anthony Bowman and Captain Michel Desrochers.
| D. THE EXPERT EVIDENCE |
| (1) From the Plaintiff |
(a) The Mueller Report
[6] I summarize Captain Mueller's written report.
[7] First, he was of the view the Federal Danube breached section 83 of the Seaway Regulations. According to him, vessels in a designated anchorage such as Pointe Fortier, must report their position at anchor at least by fixed bearing and distance.
[8] Second, and more importantly, the Federal Danube got underway to enter the Lock without the Seaway Traffic Controller's permission. Before leaving the Lock, the Beograd had been told by Seaway Control the Federal Danube was preparing herself to heave anchor, i.e. getting ready to heave it. His opinion is that the actual operation of heaving the anchor should only have occurred after the Federal Danube asked and received from the traffic controller permission to heave. Had this been done, the grant of permission would have been heard by the Beograd as all vessels are obliged to listen to vessel communications on VHF channel 14.
[9] Third, after describing the Federal Danube's exceptional manoeuverability because of its right-handed propeller in a Kort nozzle with steering flap, Captain Mueller expressed the view her half astern movement at 21:47.08 hours to avoid the collision was initiated too late and was of too short a duration to have been effective avoidance. According to him the engine should have been placed in the "full astern" mode with the nozzle in the "hard port" position. Other possible collision avoidance actions were identified.
[10] Fourth, Captain Mueller noted the Federal Danube's bow thruster was not in working order at the time of the collision; if it had been operational, that bow thruster could have been used to shift its bow to starboard altering her rapid port turn caused, in part, when the current was exerting force on her starboard side. In his opinion, the conditions for use of her bow thruster were ideal to prevent the collision especially if coupled with other timely avoidance manoeuvres which did not take place because the Federal Danube was not keeping a proper look-out on the Beograd.
[11] Fifth, Captain Mueller found the Federal Danube's anchoring at around 16:25 - 16:30 hours on December 11, 1984, was without difficulty and with the proper amount of chain let out (three shackles, i.e. 270 feet of chain in the water) to remain safely anchored. When the Federal Danube came to rest, the chain was leading without strain about 90 degrees port side. Captain Mueller wrote at paragraph 53 of his report:
| At anchor, the Federal Danube was in constant movement as witnessed on its course recorder graph. It is common knowledge that a vessel anchored in a ... current and/or strong winds experiences a normal, regular gyration about its anchor chain. This is commonly referred to as yawing. |
This regular slow cycle of yaw was interrupted he said when she commenced to heave her port anchor at 21:40 hours.
[12] He then explained when the Federal Danube began heaving her anchor, her bow was pulled to her port side with her heading changing from 227 degrees (at 21:40 hours) to 195 degrees (at 21:45 hours) when it was decided to stop heaving on account to the approaching Beograd. He stated the Federal Danube continued to swing to port after heaving had stopped because of her imparted turning inertia and the effect of the current now pushing on her starboard side.
[13] He noted the heaving of an anchor always imposes a forward movement on a vessel which does not cease when heaving is stopped. A vessel will advance through the water and over the ground at an angular speed component which is directly related to the rate of retrieval of a vessel's anchor chain.
[14] According to him, when the Federal Danube stopped heaving, about 140 feet of chain remained in the water representing only 2.8 times the water depth which is significantly inferior to the normal minimum chain length required of five times the water depth of 50 feet. The consequence was to increase the rate of turn of her bow to port causing her to drag her anchor.
[15] That she was dragging her anchor is further supported by an entry into the anchorage bearing book of the Federal Danube which indicates that by 22:40 hours, she had moved 365 feet which was not possible if her anchor had remained in her original position.
[16] He concluded, if the Federal Danube had continued to monitor her radar or had continued to take visual bearings after commencing to heave and during heaving, she would have immediately observed she was making way into the Beograd's path. If making way, her Captain should immediately have alerted the Beograd on VHF and then sounded the danger signal. He should immediately have extinguished her anchor lights, put on her steaming lights as required for a vessel underway.
[17] In other words, Captain Mueller was of the opinion the Federal Danube had changed her status from an anchored vessel to a vessel underway becoming the give-way vessel required to stay clear of the approaching Beograd.
[18] Sixth, acknowledging the Collision Regulations make no particular reference to the posting of a lookout while at anchor, he points to Rule 5 dealing with look-outs.
[19] He quoted paragraph 27 of the 1985 edition of the recommended Code of Nautical Procedures and Practices "if the Master considers it necessary, a continuous navigational watch should be maintained at anchor. In all circumstances, while at anchor, the officer of the watch should ... ensure that an efficient look-out is maintained ...". Although a look-out had been posted in the Federal Danube's starboard bridge wing, he had not been instructed by her Captain on his particular duties. Captain Mueller criticized Captain Derenne for not following the Beograd's movements.
[20] Captain Mueller concluded his report by saying that due to heaving of her anchor, the Federal Danube gained some headway and moved into the path of the oncoming Beograd, an action compounded by the dragging of her anchor which was caused by leaving an insufficient amount of chain in the water when heaving was stopped at 21:45. He repeated his criticisms of inadequate avoidance action by the Federal Danube. In his view 80 percent of the blame for the collision was the Federal Danube's fault.
| (b) Dr. David Doust's report |
[21] Dr. Doust reached a number of conclusions as a result of his investigation of the collision.
[22] First, he was of the view the proximate cause of the collision was the veering of the Federal Danube to port by heaving its anchor at a time the Beograd was approaching. He said the Federal Danube's course recorder plottings and the damage reports indicate at the time of impact, she was veering to port with her bow moving towards the side of the passing Beograd.
[23] In his opinion, if the Federal Danube had not heaved anchor, the minimum clearance between the vessels would have been some 230 feet (70.1 metres). If she had delayed heaving by five minutes, no collision would have occurred since the clearance would have been 70 feet (21.3 metres).
[24] He considered the Federal Danube's inoperable bow thruster made her unseaworthy and, if it had been available for the usual control of the ship, it could have been very effective in preventing her veering to port into the path of the oncoming Beograd.
[25] Moreover, he stated, if she had reversed her propeller earlier, with her rudder to port, this manoeuvre would have avoided her impact into the Beograd. In his view, an effective reversing time of only 26.5 seconds, at half astern, would have averted the collision and the Beograd would have passed with 380 feet (115 metres).
[26] He reported a reverse thrust from her propeller and the rudder would have been more than sufficient to pull her anchor clear from the river bed and overcome the hauling force of the anchor winch.
[27] He examined the nature and extent of the damage to each ship and found the Beograd was in a passing mode and was harpooned by the Federal Danube on its port side.
[28] In terms of weather conditions, Dr. Doust's view was that the wind was of negligible importance as was the wave action. He measured the current in the anchorage area to be between 0.80 to 0.92 knots moving in a direction of 25 degrees to the north which he recognized would have assisted the movement of the Beograd in the direction of the Federal Danube. In his view, this is why the Beograd changed course to starboard three minutes before the collision from her previous heading of 58 degrees, a course which had been held since 21:40 hours.
[29] He analysed the Federal Danube's movements as she veered on her anchor. He calculated that at 21:40 hours, the Federal Danube's heading was 229 degrees. At 21:45 hours, the Federal Danube's heading was 197 degrees; she had veered 32 degrees to her port with a rate of turn of 6.4 degrees per minute. Two shackles of her anchor chain remained in the water [sic] and her bow was moving southeast under the action of the current.
[30] In his view, at 21:48 hours, when the ships collided, the Federal Danube's heading was 182 degrees; she had moved on her anchor in a southeasterly direction and her bow pierced the port side of the Beograd at some point 167.3 feet from the Beograd's stern. She had moved on her anchor not only because of the anchor's pull but because of the lift forces on her underwater hull caused by the current. The bow thruster, in Dr. Doust's view, would have offset the effect of this lift force.
[31] He corroborated Captain Derenne's evidence that her anchor had not budged before the collision. His calculations showed there was not enough force exerted by the Federal Danube to break out her anchor from the channel bed.
[32] According to Dr. Doust's calculations, when the stop heaving order was given, the Beograd was 1,200 feet from the point of collision.
[33] Because the Beograd was moving at a speed of about 12.79 feet per second, Dr. Doust said it was evident the order to stop heaving allowed only 94 seconds in which her bosun could act. He stated the danger of hauling herself towards the Beograd was realized too late to be effective.
[34] Finally, he concluded the heaving started a premature movement towards the oncoming Beograd, the danger of heaving was realized too late to avoid the impact and the order to stop heaving did not allow sufficient time to avert the collision.
| (c) The report of Mario Rossi |
[35] At the trial before Justice Tremblay-Lamer, Mario Rossi, who had prepared an expert report on the angle of blow and the speed of the Beograd and the Federal Danube, was allowed to testify only on the angle of blow but not in respect of the speed at which the vessels were operating because this was a matter of expert evidence which had been excluded.
[36] Mr. Rossi had calculated the angle of blow to be 78 degrees with both vessels turning to port.
[37] Given the Supreme Court of Canada's ruling, the purpose of his testimony before me was on the speed of the vessels which in his expert report states:
| (1) Taking into account the current, the Beograd was travelling at a speed of approximately 7/8 knots; |
| (2) The Federal Danube had "some forward motion approximately 0.5./1 knot and was swinging to port at the time of the collision." |
| (2) From the Defendants |
(a) The report of Anthony Bowman
[38] The purpose of Mr. Bowman's report was to comment on the conclusions set out in Dr. Doust's report, with which he disagreed as to its conclusions.
[39] In his view, the proximate cause of the collision was the failure of the Beograd to practice basic good seamanship which requires that an anchored vessel be given safe clearance. He identified additional factors, namely, the failure of the Beograd to navigate at a safe speed and her failure to navigate in the navigation channel rather than through the anchorage area.
[40] He stated a vessel at anchor is entitled to assume, provided it displays the right signals and lights, that all approaching vessels underway will keep clear.
[41] He gave the following reasons "that the time honoured practice of giving vessels at anchor a large clearance should be adopted".
[42] First, in relatively calm but variable conditions and a weak current, a vessel's movement around her anchor can be erratic and unpredictable; over a period of time, significant changes in position and heading will occur.
[43] Second, if a ship is operating in relatively shallow waters, her steering characteristics, at very high speeds, will change causing her to respond to rudder movements much more slowly than in deep water. He said the turning circle of a ship can double and this is why navigating closely around anchored vessels at relatively high speeds is not advisable.
[44] Third, when a large vessel passes a moored/anchored vessel at speed, a force is created which acts to draw the stationary vessel towards the passing one. He was of the view such a force must have been present when the Beograd attempted to pass close to the Federal Danube.
[45] Fourth, if a current is present, its speed and direction may cause a vessel to pass closer to an object than anticipated and he expressed the view that the five degree course adjustment by the Beograd three minutes before the collision was definitely not enough to safely clear.
[46] Fifth, there is always the risk of a passing vessel hitting the anchor chain.
[47] He disagreed with Dr. Doust the Federal Danube could have taken action to avoid the collision. It was irrelevant, in his view, to discuss what would have been possible if her bow thruster had been operational. He pointed out that an ocean-going vessel is not in any way considered unseaworthy if not fitted with a bow thruster -- the majority of such vessels are not equipped with them and, on Dr. Doust's reasoning, such vessels would all be unseaworthy when navigating on the Great Lakes which is not the case.
[48] In his opinion, it was totally unreasonable that a more or less stationary vessel, at anchor, is required to take action at the last moment to avoid a collision with an approaching vessel travelling fast.
[49] In his opinion, the Federal Danube was still lying at anchor and so was not required or able to take effective avoidance action. He could understand why appreciating the possibility of a collision, she would consider taking desperate avoidance measures such as going astern. He concluded, however, such action could only be taken as a last resort at the last minute and would be insufficient to be effective. He theorized, if she had attempted to turn her bow to starboard, it would have put her stern into the path of the Beograd.
| (b) The report of David Pockett |
[50] In his report, Captain Pockett commented on the expert reports provided by the plaintiff. I consider the following to be his essential findings.
[51] First, Captain Pockett was of the opinion the Beograd's navigation plan on exiting the Lock was totally defective primarily because of her Pilot's decision not to use the navigation channel where anchorage is prohibited.
[52] He said the Beograd's Pilot had only visually assessed the five anchored vessels and did not check their position by using radar or navigation charts which, without such aids and without knowing the length of the anchor chain let out by each anchored vessel which determines a ship's swinging circle, the Beograd's Pilot could not possibly know if any of these anchored vessels was encroaching into the navigation channel, the main reason for his not sailing in it. He observed other ships had safely navigated through the channel on the day of the collision. Moreover, he said the Beograd's Pilot failed to account for the current from the Beauharnois Dam spillway, a current, although not strong, whose effect would have pushed the Beograd northward in the Federal Danube's direction.
[53] Second, in Captain Pockett's opinion, it mattered not one bit that both vessels' compasses had gyro errors. The Beograd's Pilot was navigating visually, without the use of radar. The Beograd's personnel could see the five ships at anchor. As for the Federal Danube, he said what was important to determine was whether she was properly anchored in the anchorage area. He plotted her position and concluded she was properly anchored. In any event, because heaving is a fifteen minute operation and she since commenced heaving anchor only eight minutes before the collision, on any view, the Beograd should have passed her before her anchor was off the bottom of the river bed and she had gotten underway.
[54] Third, as to whether she had permission from Seaway Control to weigh anchor Captain Pockett interpreted the communications with Seaway Control as the grant of permission to start shortening her anchor prior to getting underway as well as a signal to the Beograd that the Federal Danube's engine was ready and a stand-by crew was in position to weigh anchor.
[55] Fourth, Captain Pockett expressed the view the Federal Danube, at the time of collision was at anchor, was not underway and was not dragging her anchor. At the time of the collision, she displayed her anchor lights and her anchor was still on the bottom with two shackles on the windlass and no evidence of her engine running. He did not find it surprising that she changed headings at anchor, particularly when her anchor was being drawn in. He said a vessel, in the course of heaving anchor, may move forward or sideways but not to the point of being effectively underway. He concluded the Beograd breached its duty of failing to give the Federal Danube a wide berth.
[56] Fifth, he could find no fault with the action of the Federal Danube's personnel and, in particular, her collision avoidance action once she realized a collision was imminent. In his view, it was not necessary for those on the Federal Danube to follow the progress of each vessel that cleared or approached the Lock because she was anchored in the anchorage area and was entitled to assume the ships would follow the navigation channel and give her a wide berth. He was not critical of the fact she did not sound any warning bells because she expected the Beograd would pass ahead. He noted her Chief Officer De Deken (who was on the forward part of her bow supervising the heaving operations) testified he expected the Beograd would pass, albeit closely and expressed complete surprise that the Beograd then bore down on her. Such circumstances, in his view, prevented the Federal Danube from taking any effective, anti-collision action. He reached the same conclusion as Anthony Bowman on the relevance of the Federal Danube's inoperable bow thruster.
[57] Sixth, he did not dispute Dr. Doust's calculations but disagreed with their significance. He said Dr. Doust's estimated clearing distance was only seventy metres (230 feet). In his opinion, this was not a safe passing distance because it did not take into account the scope of the anchor cable and the catenary. He said, with three shackles of anchor chain in the water and without knowing precisely where the anchor was, the Beograd should have allowed for a much greater passing distance.
[58] Seventh, he noted the Beograd, before the collision, did not change her course of sixty-three degrees and did not reduce speed. He attributes this to the lack of proper look-out by the Beograd. He said a broad alteration of course to starboard was called for when it was realized the Federal Danube was veering to port.
| (c) Captain Desrochers' report |
[59] Captain Desrochers' report concerned pilotage practices in the Seaway area where the collision occurred. He made these points.
[60] First, he said it was quite normal to have vessels anchored in the north and south anchorage areas at Pointe Fortier. To have five vessels anchored there is not surprising.
[61] Second, during his career as a Pilot, he had never seen nor heard, except in the case of the Beograd, that a ship had navigated through the anchorage area rather than following the navigation channel in Lac St. Louis. It is a fundamental rule for the Master or Pilot of a vessel to navigate in the channel and stay in it unless exceptional circumstances arose which was not the case on December 11, 1984.
[62] Third, navigating a course of 63 degrees, at a speed of 10 knots, would, in his opinion, put the Beograd in a direction where collision with either the Federal Danube or the Canadock was likely.
[63] Fourth, none of the collision avoidance manoeuvres suggested by either Captain Mueller or Dr. Doust would have succeeded. Their effect would have been to tighten the anchor chain thereby increasing the risk it would be struck by the Beograd.
[64] Fifth, the reason a vessel underway must stay well clear of an anchored vessel is because the anchored vessel's manoeuvring ability is greatly diminished and a vessel at anchor normally yaws. In addition, vessels interact with one and another and an anchor chain is an additional invisible obstacle. He disagreed with Dr. Doust that a passing distance of 70 feet was prudent. He was of the opinion the Beograd should have planned to pass the Federal Danube at a wider angle by at least 1 cable and at a speed very much less than 10 knots.
[65] Sixth, he was of the view that on a clear night it was relatively easy for an experienced Pilot to determine if a vessel was well anchored in the anchorage area at Pointe Fortier. However, he said if there was any doubt, a radar check should have been performed. He was of the opinion the Federal Danube was appropriately anchored in the southern anchorage area determined by radar bearings inscribed in the Federal Danube's anchorage bearing booklet. He noted the position inscribed in the anchorage bearing booklet when the Federal Danube secured anchor at 16:30 corresponded exactly with her position written on the navigation chart at collision.
[66] Seventh, for any Pilot or Master, it was natural to assume vessels leaving the Lock would proceed in the navigation channel reserved for that purpose. In his view, it was not foreseeable nor imaginable that a vessel would proceed as the Beograd did and at the speed it did. Given the Beograd's slight course change from 58 degrees to 63 degrees and at the speed she was going, he was of the opinion it was at the very last minute that those navigating the Federal Danube would have realized a risk of collision was developing. He was also of the view the Pilot and Master of Beograd themselves did not realize the danger of collision except at the last minute.
[67] Eighth, the inoperable Federal Danube bow thruster did not affect her ability to navigate. He was of the view her use by the Federal Danube was academic because her anchor chain was not tight.
[68] Ninth, he disagreed with Captain Mueller's opinion the Federal Danube was dragging her anchor. He was of the view Chief Officer De Deken's observation of the Beograd coming rapidly onto the Federal Danube could be explained: (i) by the interaction of the ships and the fact the Beograd was navigating at high speed, (ii) by the fact the Beograd would have passed over the Federal Danube's chain and might have hit it.
[69] Captain Desrochers concluded his report by disagreeing with Captain Mueller the Federal Danube did not have a proper look-out. He was also of the view the suddenly developing risk of collision created by the Beograd explains why the Federal Danube could not react through the use of her search lights, VHF contact with the Beograd or the sounding her danger whistle.
| (3) The Plaintiff's rebuttal evidence |
| (a) Captain Mueller's rebuttal evidence |
[70] Captain Mueller filed three supplementary reports rebutting those provided by Captain Pockett, Mr. Bowman and Captain Desrochers.
[71] First, he did not accept Captain Pockett's assertion the Federal Danube was not anchored close to the southern limit of the navigation channel. He indicates Captain Pockett's own appendix C shows her swinging circles puts her on or extremely close to the limit of the channel and adds, at best, Captain Pockett's plottings can only be said to be assumptions because they were established by Federal Danube's personnel taking radar bearings and not by calculating the significantly more accurate radar distances.
[72] Second, he disputes 11 knots as the speed at which the Beograd was travelling when the collision occurred. Calculating the distance the Beograd travelled between 21:40 hours and 21:48 hours, he asserts her approximate speed made good taking into account the current was 7.1 knots, a safe speed. If the Beograd had been travelling at 11 knots, he says she would have passed by the Federal Danube at 21:45.
[73] Third, he vindicates Pilot Daneau's decision to travel through the southern anchorage zone because he had visually assessed the vessels anchored in the northern portion of the Pointe Fortier anchorage and concluded they were badly anchored i.e. extending into the navigation channel. He points to Captain Desrochers' evidence that it was relatively easy on a clear night to determine if a vessel is indeed anchored in the anchorage area or close to the channel. He says radar is only of limited use because of its inherent errors or inaccuracies. He concludes the transit across the anchorage area had been properly planned by Pilot Daneau.
[74] Fourth, he disagrees with Captain Pockett's statement Pilot Daneau should have assumed the Federal Danube was going to heave anchor once it was known by the Beograd the Federal Danube was preparing to heave anchor. He said Pilot Daneau did not base his voyage plan on scanty information and he expected the Federal Danube to remain at her anchored position until authorization to proceed to heave was received.
[75] Fifth, Captain Mueller acknowledged one of the most difficult stages of an anchoring operation is the heaving operation, particularly in areas which experience a current. This is so because a heaving operation imparts moving or turning inertia on a previously stationary vessel and the shortening of the chain usually results in breaking out of the anchor and reduced holding capacity.
[76] Extraordinary movement of the vessel can be expected. This is exactly what happened to her when she commenced to heave anchor. She started to make movements about her anchor which were abnormal despite the existing weather and current conditions were not a factor. Her anchor chain let out was only about 20 feet longer than the minimum requirement of 5 times the water depth of 50 feet and was being shortened on heaving, lessening her anchor's holding power. The current was then brought into play on her starboard bow which resulted, in his opinion, in her continued abnormal swing to port (measured by her rate of turn) even after the heaving operation had stopped. As a result, he says that at 21:45 hours the Federal Danube was no longer suspended by her anchor chain but had drifted badly across her slack chain (up and down) or her chain was leading under her bow on the starboard side thus dragging her anchor.
[77] Sixth, he disagreed, the Federal Danube could not take any action to avoid a collision. He says putting the Kort nozzle hard port and full astern would have avoided the collision because it would have brought her on a reciprocal course to the course steered by the Beograd providing a clearance of 243 feet. He reiterated the virtues of an operable bow thruster.
[78] Seventh, he concluded the Federal Danube was not at anchor at the time of collision and was not securely moored because she had significantly changed her heading about her anchor.
[79] Eighth, he insisted the lack of a proper look-out on the Federal Danube was a contributory cause of the accident. The Beograd had been in her field of vision from the time the Beograd left the Lock but nobody on the Federal Danube bothered to report on her movements or kept a careful watch on her.
| (b) Dr. Doust's rebuttal |
[80] The basic trust of his rebuttal was to uphold his view the Captain Derenne hauled his vessel into the path of the oncoming Beograd and a delay of five minutes would have avoided the collision.
[81] He stated the Captain Derenne was unaware of the fact the hauling of her anchor cable would pull his vessel towards her anchor and straight into the Beograd's path, thus a need to delay lifting her anchor.
[82] He said only, after the Federal Danube had hauled in her anchor cable for five minutes, did Captain Derenne realize the need to delay by giving the order to stop hauling but this was much too late to avoid her bow veering still further to port under the action of the current.
[83] He indicated the essence of Mr. Bowman's report is that a ship at anchor while hauling has no responsibility for her own actions or the effects that it may have on other vessels.
[84] He reiterated the damage reports confirm the bow of the Federal Danube pierced the side of the Beograd and scraped its side all the way to the Beograd's propeller.
[85] In his view, the Federal Danube was not stationary because her heading varied from about 175 to 240 degrees which corresponds to a lateral distance of 475 feet (150 m) bow movement. Dr. Doust concludes she was moving while heaving her anchor and had a responsibility for her actions in the collision. Within eight minutes her heaving action decreased the Beograd's safe passage distance from 230 feet to 0.
[86] In terms of the inoperable bow thruster, he said the evidence was clear: at the time of collision, she lacked operational ability - was in a defective operating condition compared to her design, as built, and had it been working it could have been used to avoid the collision by exerting a traverse force on her bow.
[87] He adds her propeller could have been reversed earlier to offset the pull on the chain.
[88] He concluded the Beograd was in a passing mode and the Federal Danube was the aggressor; her course recorder proves she was turning into the path of the Beograd at 21:46. In this respect, the Federal Danube Chief Officer's testimony should be interpreted that her bow was moving toward the Beograd. Dr. Doust suggests at the time of the collision, her anchor cable, which was not damaged, was under the Beograd and the Federal Danube was not dragging her anchor because of her holding power of 26 tons.
[89] He concluded by stating a prudent Master Mariner would not have hauled in the anchor of his ship knowing that for at least five minutes he would be veering towards an approaching ship.
| E. ANALYSIS |
| (1) The preliminary issue - Standing |
[90] As they did during the first trial of this action, the defendants challenge as a preliminary matter the plaintiff's ability to bring an action in its own name. They say that Canadian maritime common law applies with the result the plaintiff should have commenced this action in the name of the insured cargo's owner.
[91] The defendants do not challenge the fact the cargo was properly insured under the insurance contract made in Brazil and the fact the plaintiff indemnified the cargo's owner, who, upon the receipt of the insurance monies, released the plaintiff and subrogated the plaintiff to its rights of action against all parties responsible for the action.
[92] At the first trial, [1995] 82 F.T.R. 127, Justice Tremblay-Lamer held the plaintiff could sue in its own name.
[93] This finding was not discussed by the Federal Court of Appeal or the Supreme Court of Canada. Justice Tremblay-Lamer was of the view the result was the same whether she applied the law of Brazil or the law of Quebec where the accident occurred, namely, to the extent of the indemnity that it has paid, the insurer is subrogated to the rights of the insured against third persons who have caused harm and can institute proceedings in their own name.
[94] In terms of subrogation, Justice Tremblay-Lamer followed Mr. Justice Teitelbaum's decision in Switzerland General Insurance Company et al. v. Logistec Navigation et al. (1986), 7 F.T.R. 196, holding that the issue of subrogation is not a matter of Canadian maritime law but rather was governed by the Civil Code of Quebec when the accident occurred.
[95] I adopt the reasoning of Justices Teitelbaum and Tremblay-Lamer and hold that the plaintiff is entitled to bring this action in its own name.
| (2) The applicable legislative and regulatory requirements |
[96] This action is framed in negligence both at common law in maritime matters and statute law whose principles in maritime matters flow from the Canada Shipping Act and, more specifically, from the Collision Regulations, made thereunder, which set out the Rules applicable to the operation of ships. The Collision Regulations have as their source the Convention on the International Regulations for the Prevention of Collisions at Sea, 1972, codifying civil and common law principles applicable in Canada.
[97] As the collision here occurred in Lac St. Louis, there is no question that the Collision Regulations apply, they being applicable to any vessel within the internal waters of Canada.
[98] Of particular importance in the assessment of liability in this action are the following Rules:
| (a) Rule 2 preserving the common law duty of a vessel operator to exercise the ordinary skill of seamanship in the operation of a vessel; |
| (b) The definition of "underway" in Rule 3 which reads: |
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| (c) Rule 5 dealing with look-out which reads: |
| Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision. |
Tout navire doit en permanence assurer une veille visuelle et auditive appropriée, en utilisant également tous les moyens disponibles qui sont adaptés aux circonstances et conditions existantes, de manière à permettre une pleine appréciation de la situation et du risque d'abordage. |
| (d) Rule 6 on safe speed in the following terms: |
| Safe Speed - International Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and condition. |
Vitesse de sécurité - International Tout navire doit maintenir en permanence une vitesse de sécurité telle qu'il puisse prendre des mesures appropriées et efficaces pour éviter un abordage et pour s'arrêter sur une distance adaptée aux circonstances et conditions existantes. |
| In determining a safe speed the following factors shall be among those taken into account: |
Les facteurs suivants doivent notamment être pris en considération pour déterminer la vitesse de sécurité : |
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a) Par tous les navires :
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| (e) Rule 7 fixing on the risk of collision in the following manner: |
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| (f) Rule 8 on action to be taken to avoid collision reading: |
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(g) Rule 16 specifying the action to be taken by a give-way vessel meaning a vessel that does not have the right of way in relation to another vessel:
| Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear. [Underlining added.] |
Tout navire qui est tenue de s'écarter de la route d'un autre navire doit, autant que possible, manoeuvrer de bonne heure et franchement de manière à s'écarter largement. [Je souligne.] |
[99] Without setting out their wording, reference is made to Rule 18 which provides that a power-driven vessel underway shall keep out of the way of a vessel restricted in her ability to manoeuvre and Rules 23 and 30 regulating the lights of a vessel underway or at anchor.
[100] The plaintiff relies upon section 83 of the Seaway Regulations made under the St. Lawrence Seaway Authority Act. It reads:
| 83. A vessel anchoring in a designated anchorage area, or elsewhere, ... shall immediately report its position to the vessel traffic controller and it shall not resume its voyage without the vessel traffic controller's permission. [Underlining added.] |
83. Un navire qui jette l'ancre dans un mouillage désigné, ou ailleurs, [...] doit immédiatement faire rapport de sa position au contrôleur du trafic maritime et il ne doit pas poursuivre son voyage sans l'autorisation de ce dernier. [Je souligne.] |
| (3) Some findings of fact |
[101] I make certain findings of fact based on the transcript of the witnesses heard by Justice Tremblay-Lamer, the filed exhibits at that first trial and a consideration of the testimony of the experts heard by me.
[102] Before doing so, I refer to Exhibit D-115 which is a transcript of the recorded conversations between the Beograd, the Federal Danube and Seaway Control at Beauharnois (BOH). I note the following:
| (a) At 21:10:58, BOH advises the Federal Danube the Beograd is approaching the Lock in order to enter it and then in 20-25 minutes "on va prendre l'"AVENTURE", ça va vous donner un mur clair" (underlining added). |
| (b) At 21:36:39, the Beograd advises BOH that she is clear of the Lock's wall and asks for information about the ships in the area. BOH advises that the "Adventure" is about to enter the Lock. "Après lui, le "FEDERAL DANUBE" qui se prépare à lever l'ancre de PFT, ça laisse 4 autres navires ancrés à PFT, un 5e, le "CECILIA SMITS" qui doit approcher le point 3 ..." (underlining added). BOH also provides a view of other ships moving downstream to Montreal. |
| (c) At 21:41, the "Cecilia Smits" advises BOH she is at point 3 and BOH advises her "il y a le "BEOGRAD" qui vient de sortir de l'écluse 3; il y a cinq navires à l'ancre, le "FEDERAL DANUBE" cependant devrait être en marche bientôt. On attend son appel, un appel ancré" (underlining added). |
| (a) With respect to the Beograd |
| (i) her manoeuvres |
[103] The testimony of Captains Janicic, her Master, and Daneau, her Pilot, as well as the Beograd's log establish that she manoeuvred in the following way during the night of December 11, 1984. I should add that, being an older ship, the Beograd did not have a course recorder nor an engine movement recorder:
| (i) A first manoeuvre at approximately 21:40 after clearing the end of the Lock's tie-up wall. That manoeuvre consisted in putting her engines at full steam ahead in a direction of 56 degrees and then immediately to 58 degrees. I do not consider it necessary to make any finding whether the direction given to the Beograd's wheelsman was true (gyro corrected) or gyro uncorrected. My reason is that the Beograd was being navigated practically by Captain Daneau who was in charge of the Beograd, that is, without reference to such navigational aids as compass, radar and navigation chart although Captain Janicic did testify he consulted from time to time the radar and navigation charts. |
| (ii) A second manoeuvre at about 21:45 steering the Beograd in the direction of 63 degrees based on the testimony of Captain Janicic and Captain Derenne. Captain Daneau could not recall when he gave the order to steer at 63 degrees but he did say the Beograd was on the 58 degrees course most of the time. When the course change was made, Captain Janicic said the Federal Danube was 4 cables away (700 to 900 metres). Captain Derenne testified it was at 21:45 that the Federal Danube saw the Beograd's red light which meant the Beograd then intended to pass in front of the Federal Danube. The purpose of this manoeuvre, so said Captain Daneau, was to make sure the Beograd would pass approximately 1 cable (600 feet) in front of the Federal Danube. He knew and so testified however that a ship at anchor sometimes moves and he admitted he did not know the Federal Danube's heading because it was dark. He needed to be close to the Federal Danube to observe her movements. |
| (iii) A third manoeuvre just a few moments before the collision. As the bow and the forward quarter of the Beograd were passing in front of the Federal Danube, Captain Daneau says he ordered her wheel hard to port. I have some difficulty in accepting this testimony since it was Captain Daneau's first impression the Federal Danube was swinging or moving to starboard and he made a previous interview statement to defendants' counsel prior to trial to the same effect. I neither accept nor reject this evidence but retain it as illustrative of the fact, and I so find, Captain Daneau and Captain Janicic seemed to be confused of their whereabouts in relation to the Federal Danube and what she was doing. |
| (ii) her speed |
[104] It is acknowledged by the parties that at 21:40 after clearing the tie-up wall, orders were given by Captain Daneau to put the Beograd's engines full speed ahead. The evidence also shows that order was not changed until after the collision. It was only after the collision that at 21:49 orders were given to put her engines dead slow ahead.
[105] There is conflicting evidence of her speed at the time of collision: Captain Daneau - 11 knots; Captain Janicic - about 8 knots; Captain Mueller 7.1 knots but on cross-examination said it could have been 8 knots; Mr. Rossi approximately 7 to 8 knots; Captain Pockett 11 knots in direct but on cross-examination in the range 8.8 and 9.5 knots, close to the Beograd's maximum manoeuvring speed of 10.2 knots and Mr. Bowman at about 9 knots in cross-examination.
[106] I do not think it necessary to pinpoint exactly the Beograd's speed. I find that at the time of collision she was likely about 9 knots, close to her manoeuvring speed.
(iii) her navigational plan upon exiting the Lock
[1] When the Beograd exited the Lock, her Pilot and her Master knew there were five vessels anchored in the Pointe Fortier anchorage area: three in the north area and two in the south. They also testified they knew where the Federal Danube was anchored because it was a clear night and her anchor lights were on. The Beograd knew she was preparing to heave anchor and was next to get underway as she was being cycled into the Lock's tie-up wall as next up by Seaway Control.
[2] The navigation plan devised by Captain Daneau, concurred in by Captain Janicic, was not to follow the navigation channel where anchorage was prohibited but to pass south of the Federal Danube cut north of bouy Beauharnois "C" in order to re-enter the navigation channel.
[3] Captain Daneau stated his reason for doing so was that he believed (had the impression) the three vessels anchored in the northern area were badly anchored and were encroaching into the navigation channel, a conclusion he reached without verifying their position by radar. He testified he had experienced bad anchors in the area before i.e., near or encroaching the channel. Moreover, Captain Daneau testified he was never given the distance the Beograd was from the Federal Danube. He added he did not know what the Federal Danube's heading was because it was dark and she was displaying many lights. Captain Janicic testified that, from time to time, he was looking at the radar but his evidence was not sufficiently precise to enable me to conclude he had determined the position of the anchored ships, including the Federal Danube, through radar and was tracking her.
[4] Captain Daneau acknowledged it was the first time in his career he had navigated directly through the Pointe Fortier anchorage. He had always navigated via the channel. Captain Janicic also acknowledged the navigation channel was the recommended but not obligatory route to follow. Captain MacKenzie of the Canadoc, with a long experience sailing the Seaway, testified he had never seen ships transiting through this anchorage area. Ships are to navigate in the channel, he said. To the same effect was Captain Desrochers's testimony.
[5] There is evidence in the record of a number of other ships that night passing by the Federal Danube while using the navigated channel. I find, in the circumstances, the Beograd should have navigated in the navigational channel reserved for that purpose.
[6] I make another finding of fact. Based on his own testimony, I find that Captain Daneau did not take into account the current when he devised and was executing his navigational plan. I accept that the current was not particularly strong being between 0.9 and 1 knot in a direction of 25 degrees.
| (b) As to the Federal Danube |
| (i) her anchoring and heaving operations |
[7] The testimony of Captain Derenne, her Master, that of her Chief Officer, and a review of her deck log book, her anchorage bearing book, her engine movement recorder and her course recorder are evidence of the following facts on the 11th of December 1984.
[8] First, at 16:28 she dropped her port anchor in the water and by 16:30 was properly anchored in 50 feet of water with three shackles of anchor chain in the water leading 8 points (90 degrees) to port.
[9] Her position at that time was Lat 45 19' 95N Long 73 58' 80W. In that position she was anchored in the south anchorage area and was not anchored in the navigation channel. I do not take the whole of Captain Mueller's evidence, either in his written evidence or in cross-examination (see Exhibit D-145) to say she was encroaching in the navigation channel. At best, he said she was anchored very close to the southern limit of the channel and, taking into account her swinging circle, she could have theoretically yawed into it at certain undetermined times.
[10] At 21:40 she began to draw in her anchor in order to get underway as she was next in line to move to the Lock's tie-up wall. Her heaving operations were being supervised by her Chief Officer who testified when the heaving operations began her chain was leading to port and there was little strain or force on it. He confirmed three shackles were in the water.
[11] At about 21:45 the Master of the Federal Danube ordered her heaving to stop. Her Chief Officer testified before that order was received he had made two reports to the bridge: the first report was that he had just observed the Beograd 3 to 4 cables away (consistent with Captain Janicic's evidence) manoeuvring to pass in front of his ship seemingly very closely. He described the Beograd's manoeuvre as unusual as did Captain Derenne. He moved forward to have a better look, he then reported the Beograd was about to pass the Federal Danube's bow but very closely and gave the distances at which she would pass. It was then the order to stop heaving was executed.
| (ii) her collision avoidance manoeuvre |
[12] The Chief Officer, after the heaving operation stopped, continued to monitor the Beograd's passage in front of his ship. He said he remained confident the Beograd would pass as she was doing so at a good speed at a distance of about 20 feet (7 metres). He reported to the bridge the Beograd would pass.
[13] He testified he looked at the Beograd's stern to see when "it would end". He said he saw the Beograd's stern coming very very rapidly towards the Federal Danube and he realized he would be hurt if he remained where he was. He reported to the bridge "he was clearing out" and ran aft where he made it safely behind the windlass.
[14] I accept Chief Officer De Deken's evidence as the most accurate about what was happening during the critical time frame when the Beograd made her course alteration to when the collision occurred. He was the only witness at trial who was up close to observe the events just before the collision.
[15] At 21:47:48 the Federal Danube's engine recorder registers an order from her Master "half speed astern". Her Master testified at the time her propeller was recording 21 revolutions astern meaning her engines were ready but idling; there was no use of the knot nozzle.
[16] The engine movement recorder, except for the half astern movement, indicates no other use of her engines during the period from 21.40 to 21.48 on December 11th, 1984.
| (iii) her anchor lights |
[17] There is no dispute that, at all relevant times, including at the time of collision the Federal Danube was displaying her anchor lights and the Beograd's officers had recognized her status as such.
| (iv) her yaw at anchor and during heaving |
[18] The evidence shows, a vessel at anchor will move about her anchor because she is subject to external forces such as wind and current. This movement is accentuated during heaving operations. Captain Daneau knew this and all experts all recognize that any heaving operation is difficult because during it a vessel may move sideways or forward and its purpose is to break the anchor's hold on the ship so she can get underway.
[19] The Federal Danube's course recorder registered the changes in her heading during the relevant period.
[20] The following table shows the degree of change:
| Time Course (t) |
| 16:25 238 |
| 16:36 185 |
| 16:51 245 |
| 18:20 166 |
| 18:28 238 |
| 20:04 166 |
| 20:20 231 |
| 20:46 170 |
| 21:07 238 |
| 21:36 240 |
| 21:40 225 |
| 21:41 223 |
| 21:43 210 |
| 21:45 193 |
| 21:46 188 |
| 21:47 180 |
| 21:48 178 |
[21] A fair reading of the evidence indicates that the Federal Danube's yaw from 21.40 was not a normal yaw. Captain Pockett conceded this. However, this finding does not mean the Federal Danube was underway or dragging her anchor.
| (c) The legal principles |
[22] I derive a number of principles from the authorities cited to me by counsel.
[23] First, since as far back as 1834 in the case of the ship Girolamo (3 HAGG 169) and constantly followed since, it is clearly established a vessel underway must steer clear and avoid a vessel properly at anchor and the only defence where collision occurs is one of unavoidable accident, that is, one which no human skill or precaution could have avoided. In "The City of Peking" (6 Maritime Law Cases 396), the Privy Council confirmed a vessel underway striking a properly anchored one provided prima facie evidence of fault on the part of the vessel underway who cannot escape liability unless it is proven a competent seaman could not have averted it or mitigated the disaster by the exercise of ordinary skill.
[24] The Supreme Court of Canada in W.F. Wake-Walker v. Steamer Colin W. Limited [1936] S.C.R. 624, sustained on appeal to the Privy Council [1937], 2 D.L.R. 753, endorsed the principle of a vessel colliding with a moored vessel was prima facie evidence of fault.
[25] Second, the cases of The Coniston v. Walrod (1918), 19 Ex. C.R. 238 and Fraser v. Re Aztec (1920), 19 Ex. C.R. 454, are authority for the proposition that proof of a breach of the Rules in the Collision Regulations does not give rise to a presumption of fault unless the plaintiff can establish a causal connection between infringement of the Rule and the collision. See also M.V. Lubrolake v. the Ship Sarniadoc (1959), Ex. C.R. 131.
[26] Third, risk of collision is not to be scanned under a microscope, a proposition stated by MacLean J. in Canadian Pacific Company v. The Ship Camosum, [1925] Ex. C.R. 39 at pages 45-46, in these words:
| What constitutes risk of collision is discussed by Marsden, 8th ed., pp. 302 and 303, and he quotes there 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 ship 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. |
[27] Fourth, the obligation of the give-way ship under Rule 16 to take early and substantial action where risk of collision is present includes taking substantial alteration of her course at an early stage or substantial reduction of speed and, if necessary, the stopping or reversing of engines (see, The "Genimar", [1977] 2 Lloyd's Rep. 17 and The "Firedog", [1951] 2 Lloyd's Rep. 205) where a vessel was blamed for not sufficiently altering course when she collided with a ship that had been at anchor and just got underway.
[28] Fifth, there is an obligation under Rule 17 for the stand on vessel to take such action as will best avoid collision as soon as it becomes apparent that the vessel required to keep out of the way is not taking appropriate action in compliance with the Rules. In some cases, such action includes putting her engines full of stern, letting down her anchor and issuing warnings (see "The Balfe" (1928), 30 Ll.L. Rep. 142).
| F. CONCLUSIONS |
[29] In drawing my conclusion on liability, the question to determine is whether any faults can be attributed to the manner and way the two ships were operated and whether any of those faults contributed to the collision. Counsel for the plaintiff argues there should be split liability and the Federal Danube is largely at fault. Where the Beograd failed, he acknowledged and for which she is liable, was by not using her VHF to tell the Federal Danube what she was and intended to be doing.
| (1) The Beograd |
[30] I have no difficulty in coming to the conclusion the Beograd was negligently operated when it collided with the Federal Danube on the night of December 11, 1984. Simply put, the Beograd had no business being anywhere near the Federal Danube. When the Beograd devised her course and speed after exiting the Lock, her Master and Pilot had seen the Federal Danube's anchor lights and knew or ought to have known she was about to lift her anchor so she could get underway to access the Lock at a time when there was heavy traffic in Lac St. Louis and Seaway Control wanted to maximize traffic flow. I identify the following specific elements of fault.
[31] First, good seamanship dictated that the Beograd navigate in the channel reserved for that purpose rather than going through the southern anchorage area at Pointe Fortier unless there were exceptional circumstances such as an ascertained blockage of the channel. Captains MacKenzie and Desrochers said this was the way to go. Captain Janicic said it was the preferred way. Captain Daneau had always navigated in this channel before and he attempted to justify the one exception by attributing a perceived channel encroachment on the part of three vessels in the northern area who he thought were badly anchored. Captain Mueller endorsed Captain Daneau's justification since it was a clear night and visual assessment was better than radar.
[32] In my view, before setting out on a course which would take her outside the navigation channel, the Beograd, as a matter of good seamanship, should have verified by radar and with BOH whether, in fact, the channel was being encroached upon and to what degree. I add that Captain Daneau had experienced badly anchored vessels in Pointe Fortier before and yet, in the past, still followed the navigational channel. Another fact is that other ships that night were using the channel without difficulty.
[33] It is true the anchored vessels could be seen and some impression of where they could be, but that is all. Radar use was called for by Rule 7 and constant monitoring of the anchored vessels by radar was required in the circumstances. Captain Daneau admitted he could not really see what the Federal Danube was doing because it was dark.
[34] Second, the speed of the Beograd, at the time of collision which I found to be about 9 knots, was not a safe speed as required by Rule 6 of the Collision Regulations. As I appreciate the evidence, the Pilot and Master of the Beograd never took into consideration many of the factors required by Rule 6 in determining a safe speed, for example, her stopping distance, her turning ability, the current, radar detection of the location and movement of other vessels and darkness. In my view, a prudent mariner would have travelled through the anchorage area, if need be, where the collision occurred at a much more reduced speed particularly because he was travelling through an anchorage area whose use was occupied.
[35] Third, subject to what I will say about the Federal Danube being at anchor, the Beograd breached Rule 16 of the Collision Regulations which directed it to keep out of the way of an anchored vessel and, as far as possible, take early and substantial action to keep "well clear". The "well clear" requirement must be assessed in the particular circumstances of each case and I stress three foreseeability factors which were recognized by all experts testifying: (1) the fact it is quite usual for anchored vessels to yaw or move about their anchors, particularly so, when affected by a current; (2) as a result, at anchor, vessels have swinging circles defined by the length of the anchor chain paid out; and (3) during an anchor heaving operation, it is also quite expected that a vessel may incur a slight forward movement depending on where the anchor is situated. In addition, an anchored vessel has limited manoeuvrability. The evidence also convinces me the Beograd's course alteration to 63 degrees three minutes before the collision at the speed she was going was simply too little and too late. The Beograd's course of 63 degrees led her to be very much too near the Federal Danube and without any margin of safety.
(2) The Federal Danube
[36] The nub of this trial, in my view, is to determine whether the actions of the Federal Danube gave rise to liability on her part. The plaintiff points to the following failures which I discuss in turn.
(a) Failure to report her anchorage position
[37] It is acknowledged the Federal Danube reported to BOH she was anchored but did not give her exact position. No liability arises from this failure because it did not contribute to the collision. The Pilot and the Master of the Beograd testified they knew where the Federal Danube was and that they were navigating by sight. Counsel for the plaintiff so acknowledged.
| (b) No permission to heave |
[38] Assuming the Federal Danube was required to obtain BOH's permission to commence heaving operations, I find such permission was given and the navigators of the Beograd knew or should have known the Federal Danube was in this process. Such a conclusion is clear from the transcript of the communications between BOH, the Beograd and the Federal Danube. At 21:10:58, BOH advised the Federal Danube she was next up to come to the tie-up wall at the Lock. At 21:36, the Beograd was advised the Federal Danube was preparing to heave anchor. At 21:41, the Cecilia Smits was advised the Federal Danube was to be underway soon. The Beograd heard or should have heard these communications.
[39] This meant in everybody's mind, particularly in the context of restoring traffic flow, that the Federal Danube was heaving her anchor, an operation which takes several minutes. In my view, the Federal Danube, on the whole of the evidence, had the right to commence heaving at 21:40 on December 11, 1984 and such right is not negated by BOH's words to the Cecilia Smits « on attend son appel, un appel ancré » which cannot, in context, as suggested by the plaintiff, be interpreted as BOH awaiting the Federal Danube's call to receive permission to heave.
[40] The situation at hand is not like the one decided in Re Forest Lake, [1967] 1 Lloyd's Rep 171 where it was found the "Janet Quinn" should not have heaved anchor at a time when she either observed or should have realized if she had a proper lookout the Forest Lake was entering into the anchorage area near the Suez Canal. The evidence in this case does not support the proposition advanced by counsel for the plaintiff the Federal Danube knew or ought to have known the Beograd was, after clearing the Lock, heading towards the southern anchorage area for the purpose of sailing through it. I am satisfied, on the evidence particularly that of Captain Derenne, it was only, at 21:45, after sailing through the navigation channel at 58o that the Beograd cut into the anchorage area with her 63o degree manoeuvre. It was only then the Federal Danube realized the Beograd, her red light visible, intended to pass in front of her.
[41] As a result of this finding, I reject the evidence of Captain Mueller and Dr. Doust that a principal cause of this collision was either the Federal Danube's unauthorized heaving or that she should not have commenced heaving operations when she did.
(c) Was section 83 of the Seaway Regulations breached
[42] Section 83 of the Seaway Regulations provides that a vessel anchoring in a designated anchorage area, which Pointe Fortier is, shall not resume its voyage without the vessel's traffic controller's permission.
[43] The concept of « resume its voyage » or « poursuivre son voyage » under the Seaway Regulations is not the same as the concept of « underway » in the Collision Regulations which will be discussed later.
[44] The purpose of the two provisions are different: the object of section 83 is to regulate traffic flows while the purpose of « underway » is related to collision avoidance, principally by vessel light identification of status.
[45] Clearly, in my view, the Federal Danube had not resumed her voyage by navigating to the Lock's tie-up wall at or immediately before the collision. Her anchor was on the bed of Lac St. Louis and her engines were not moving her forward.
(d) Was the Federal Danube underway
[46] As noted, the word « underway » is defined in the Collision Regulations as « means a vessel not at anchor, or made fast to the shore, or aground » .
[47] The concept « at anchor » is not defined in the Collision Regulations. Examining the words in their context with the words « not made fast, or aground » in the definition and taking into account the purpose for defining « underway » i.e. the display of specific and recognizable lights evidencing a specific status of a vessel, I conclude a vessel not at anchor means one which is not subject to the holding power or control of its anchor which is its function, based on the authority of Marsden on Collision at Sea.
[48] Marsden on Collision at Sea, 12th Edition, states that a vessel leaving her anchor is considered to be underway as soon as she ceases to be held by or under its control and quoting The Romance [1901] P. 15 states « It seems that she is "at anchor" while being towed to her anchor, so long as the anchor is not broken out of the seabed » . See also, The Nortonian (1935) 51 Lloyd's Law Reports 317 where the notions of holding and control of a vessel by her anchor were discussed.
[49] In my view, the Federal Danube had not, at the time of the collision, changed her status from an anchored vessel to one which was underway. She was not underway for the purposes of the Collision Regulations requiring her to extinguish her anchor lights and put on her navigation lights. My conclusion is based on the following reasons.
[50] It is acknowledged that at the time of the collision the Federal Danube's anchor was on the floor of Lac St. Louis with 140 feet of chain in the water. The question then becomes whether the anchor and the remaining chain in the water had any holding power thus restraining the Federal Danube from becoming a free ship, not under command.
[51] I am not satisfied on the evidence before me the plaintiff has established the Federal Danube was underway for the purposes of the Collision Regulations. The plaintiff's burden was to do so but the evidence of its witnesses was contradictory. Doctor Doust calculated the Federal Danube's anchor still had holding power to such a degree, one of the objectives of his suggested full astern movement was to break out her anchor from the river bed. I prefer Dr. Doust's testimony to that of Captain Mueller who had not calculated the Federal Danube's holding power but he proffered the opinion that at 21:43 the Federal Danube's anchor was broken loose when her bow crossed over her chain thus jerking the anchor free. I view Captain Mueller's evidence as perhaps theoretically possible but, when weighed against that of Doctor Doust, the witnesses who testified on behalf of the Federal Danube and what is shown on the course recorder is not sufficient to establish on the balance of probabilities her anchor and her chain were not constraining her.
| (e) Did the Federal Danube have a proper lookout |
[52] Counsel for the plaintiff argues that one of the Federal Danube's principal faults was to fail to track the Beograd as she left the Lock and it was wrong for her to assume, because of the direction the Beograd took, the Beograd would not traverse the anchorage area where the Federal Danube lay at anchor.
[53] I do not blame the Federal Danube for not having the Beograd under constant observance, be it by radar or otherwise, after she exited the Lock. My view is that the Federal Danube was entitled, based on the evidence, to foresee the Beograd would, following what good seamanship dictated, navigate the navigation channel passing her astern rather than in front of her bow. See Re Argon II v. Re Porthcawl (1920) 2 L.L. Rep. 370.
[54] As noted, the Beograd's cut at 63 degrees around 21:45, minutes before the collision, was the first time the Federal Danube could realistically know something unusual was about. After the Beograd's 63o course change, her movements were under constant lookout by Chief Officer De Deken who was right there on the Federal Danube's bow.
| (f) Did the Federal Danube drag her anchor |
[55] I am deciding this point on the balance of probabilities and my assessment of the weight of the evidence.
[56] The only witness advancing the theory the Federal Danube was dragging her anchor which would explain her forward movement as the aggressor to the passing Beograd was Captain Mueller. All other witnesses including Doctor Doust took a different position.
[57] I appreciated Captain Mueller's overall evidence; he was of valuable assistance to the Court in providing insights on how the Court should focus on certain navigational areas. However, on this issue, I cannot accept his evidence and I do not find it persuasive on the balance of probabilities because: (1) Captain Mueller had not calculated the holding power of the Federal Danube's anchor whereas Dr. Doust had and came to a different conclusion (2) the importance in maritime matters, in the interest of safety and preservation of property, for the Court not to base its decision on fine lines and distinctions.
[58] The plaintiff relied mainly on a shift in the Federal Danube's anchor position from 21:00 and 22:40 which is after the collision. The plaintiff argues the anchor was displaced by some 600 feet and therefore proof of dragging.
[59] I am not prepared to find the Federal Danube's anchor was displaced by 600 feet just before the collision. I do so on the following basis (1) it was an admitted fact in the Beograd's preliminary act filed pursuant to Rule 498(2) of the Federal Court Rules, 1998 (the Rules) that the position of the Federal Danube's anchor at 16.30 was the same as where it was when the collision occurred (2) no account by Captain Mueller was taken of the possible effects of the half-stern movement and of the collision itself (3) some margin must be given in radar measurements.
| (f) The inoperable bow thruster |
[60] It is a fact the Federal Danube's bow thruster was not operable at the time of the collision; it had been inoperable for quite some time before. It is not denied by the defendants her bow thruster could have attenuated her shift to port; they sought to neutralize her impairment by saying that most vessels sailing through the St. Lawrence are not equipped with bow thrusters.
[61] While I do not accept the defendants' attempt to hide behind the fact that other vessels travelling the St. Lawrence are not so equipped, in my view, her inoperable bow thruster did not contribute to the collision and more particularly would not have impaired her ability to take effective collision avoidance measures through the use of her engines and her Kort nozzle if time had been sufficient.
| (g) Deficient appreciation of risk and failure to avoid the collision |
[62] Based on the evidence before me, I am not prepared to accept the plaintiff's position the defendants failed to appreciate a risk of collision and failed to avoid it.
[63] I accept the evidence of both parties that each of them thought the Beograd would pass safely in front of the Federal Danube, although very close. The explanation for the last minute realization of an imminent danger of collision differs but it does say why neither ship sounded warning bells or whistles.
[64] After coming up close to the Federal Danube, Captain Daneau testified he had the impression she had her engines on and was turning or moving rapidly in the Beograd's direction, an observation he made a short time before the collision. According to him, the Federal Danube's bearing down on the Beograd happened very quickly. Captain Janicic said one or two minutes after steering to 63o, he noticed the Federal Danube was turning very fast.
[65] Chief Officer De Deken of the Federal Danube testified that up until the last minute he believed the Beograd would pass safely; he looked at the Beograd's stern to see when "it would end" and testified he saw her stern advancing upon the Federal Danube; he realized he was in danger and advised the bridge he was clearing out of his position on her bow and ran for safety.
[66] It is not important in my view to decide, as was suggested by the defendants, the Beograd's last minute manoeuvre was hard to starboard rather than hard to port which would explain her stern turning into the Federal Danube. Even assuming the Beograd's order was hard to port and assuming that the Federal Danube had some forward movement, the main cause of this collision was the fact the Beograd simply miscalculated a safe passing distance in front of the Federal Danube, a fact which I attribute to a number of factors (1) her failure to follow the navigation channel; (2) her failure to properly look out at the Federal Danube; (3) her unsafe speed which unduly narrowed her passing distance as previously planned; (4) her lack of respect for the Federal Danube's anchored position at the time of heaving breaching her duty to stay well clear.
[67] I do not find fault with the Federal Danube's limited manoeuvres at the critical time. The Beograd's cut in front of her was an unanticipated surprise. She did stop heaving anchor at 21:45 and she went half astern at 21:47. In Re Viper, 24 Lloyd's List Law Reports 10, it was recognized that a ship at anchor is not entirely free from duties towards a ship underway but in terms of what she can do her actions are limited. I find this to be the case before me. See also, Re Dalemead v. King City 1923 Lloyd's Law List Reports 22.
| (h) The failure to call the Pilot of the Federal Danube |
[68] I was invited by counsel for the plaintiff to draw an adverse inference because the defendants did not call at trial the Federal Danube's Pilot, Denis Duchênes.
[69] Plaintiff says it is proper to infer that he would have confirmed the Federal Danube was indeed moving ahead in the water while heaving her anchor and thereafter until the collision; that she was rapidly swinging to port in the moments immediately preceding the collision; that no particular attention was paid to the Beograd until it was too late; that, aside from the order to stop heaving, no other steps were taken by those in charge of the Federal Danube to avert or minimize the risks of collision and explain the manoeuvres of the Federal Danube.
[70] I am not, in the circumstances of this case, prepared to draw the inferences counsel for the plaintiff suggests simply because Captain Duchênes did not testify.
[71] My reason for doing so is that the defendants led proof as to the facts which the plaintiff wants me to infer. Moreover, the Federal Danube's course recorder put in evidence as was her engine recorder. Captain Durenne was on the bridge with her Pilot and testified as did several of the Federal Danube's crew.
Disposition
[72] For the reasons expressed, I find the Beograd solely liable for the collision and therefore dismiss the plaintiff's action with costs which are to be spoken to.
"François Lemieux"
Judge
MONTREAL, QUEBEC
January 31, 2001