Date: 19990217
Docket: T-1713-96
BETWEEN:
FRANK IAN LAING
Plaintiff
- and -
BOREAL PACIFIC, A DIVISION OF BOREAL
PROPERTY AND CASUALTY INSURANCE COMPANY
and THWAITES NORRIS INSURANCE SERVICES LTD.
Defendants
REASONS FOR JUDGMENT
REED, J.:
[1] This case concerns a claim under a marine insurance policy, for loss occasioned by an accident at sea in which the plaintiff lost a large machine (an excavator) overboard. The plaintiff believed that his insurance policy would cover any loss or damage to his vessel, his cargo, and any legal liability arising from such a loss. The defendant Boreal Pacific (now Axa Pacific Insurance Company) has refused to pay any part of the plaintiff's losses on the ground that the vessel was not seaworthy for the voyage undertaken. The claim against the insurance brokers, Thwaites Norris Insurance Services Ltd., has been abandoned.
[2] Subsection 37(4) of the Marine Insurance Act, S.C. 1993, c. 22, provides that when a ship is sent to sea in an unseaworthy state, the insurer in certain circumstances is not liable for any loss attributable to the unseaworthiness. Subsection 37(5) provides that a ship is seaworthy "if it is reasonably fit in all respects to encounter the ordinary perils of the seas of the marine adventure insured":
| 37(4) There is no implied warranty in any time policy that the ship will be seaworthy at any stage of the marine adventure, but where, with the privity of the insured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness. |
| 37(5) A ship is deemed to be seaworthy if it is reasonably fit in all respects to encounter the ordinary perils of the seas of the marine adventure insured. |
[3] Seaworthiness is a relative term and varies with the nature of the voyage to be undertaken: its location, whether in a river, or canal, or on the ocean; the type of weather to be expected on the voyage, summer conditions or winter storms. Improperly stowed cargo will make a vessel unseaworthy, if the improper stowage endangers the safety of the ship.1 When the policy covers both the vessel and the cargo, however, a vessel will not be seaworthy if in order to save the ship the cargo must be jettisoned. If a vessel is overloaded it is not seaworthy.2
[4] The defendants' position is that the vessel was unseaworthy at the start of the voyage because, among other reasons: it was overloaded; the cargo was not properly stowed for the voyage; and, the vessel was undermanned.
[5] I will start with a general overview of some of the facts. The plaintiff has many years of shipping and navigating experience. He never became formally qualified by obtaining a certificate of competency as a Master of Small Crafts. He was, and is, the owner of a self-propelled barge called the "Palaquin" - a small craft. He purchased it in 1991 and began using it to transport freight between False Bay on Lasqueti Island in the Strait of Georgia and French Creek on Vancouver Island and points adjacent.
[6] On November 28, 1995, the plaintiff loaded a 1991 Hitachi Model EX120-2 excavator onto the Palaquin to transport it from False Bay, Lasqueti Island, to French Creek, Vancouver Island. The excavator was loaded onto the deck on top of wooden planks that the plaintiff had placed to cover the deck. The excavator was not secured in place by chains or blocking. Mr. Laing was not accompanied by anyone. He had successfully transported the excavator in this fashion (alone and unsecured) on three previous occasions.
[7] Before embarking on the crossing, the plaintiff checked the marine weather forecast, as well as the weather information collected from three nearby lighthouses, both of which are broadcast on the COMOX VHF weather channel. He observed the existing sea conditions. He decided to cross the eight nautical miles in question. During his crossing the seas became rougher, the barge became difficult to manage and the excavator shifted position, causing the ship to list to the starboard side. In order to right the vessel, the plaintiff left the helm and started the engine of the excavator to attempt to move it back to a centred position. Shortly thereafter, with the plaintiff still at the controls, the excavator toppled overboard and sank. The plaintiff managed to escape and climbed back onto his barge, which was by this time partly submerged. The barge eventually righted itself. The Coastguard arrived and the barge was towed to dock at French Creek.
The Loss of the Excavator
[8] There are a number of different descriptions of exactly what occurred to cause the loss of the excavator. One is a report prepared by David Hart, the insurance adjuster, that purports to recount Mr. Laing's description given immediately after the accident. Mr. Laing signed this report. The report describes moderate weather conditions and the movement of the unsecured excavator. Mr. Laing now states that the report is inaccurate and incomplete.
| . . . I departed French Creek at 5:30 A.M. for Lasqueti Island. I checked the weather channel before departing. The forecast was for southeast winds 10 - 15 kilometres per hour in the morning, with gales to 30 kilometres in the afternoon. On my way over to Lasqueti, there was a one foot chop on the water, nothing to worry about. I arrived in False Bay on Lasqueti Island at 7:00 A.M. The load I was to pick up did not arrive until 8:00 A.M. We loaded the Hitachi EX120 excavator at 8:00 A.M. . . . I started back to French Creek at 8:00 A.M. When I cleared False Bay, the wind was freshening. I was not concerned. The wind was from the southeast, the tide was flooding west. The crossing from shelter to shelter is 8 nautical miles. When I was about in the middle of the crossing, I was having a cup of coffee, chugging along, not the least bit concerned, when suddenly I was aware of a 5' or 6' wave approaching, followed by two other 6' waves; at the time, I was running in a 2' chop. I turned the vessel to her port side to head into the waves, I slowed the engine down. The wave gave the boat a big heave from the port side. No water came into the boat but the machine moved sideways a few inches to starboard, causing the barge to list slightly to starboard. The machine was not tied to the barge, it was the weight of the machine that held it in place. I put the barge in neutral and went out onto the deck and onto the machine. I climbed up into the cab of the machine and started the engine. I intended to move the machine back onto the centre of the barge. I was orientating myself with the machine's controls, when the barge was hit by two further waves on the port side. The machine slid further to the starboard side of the barge and the barge started to take on water over the starboard gunnel. The barge rolled onto her starboard side. As I stepped out of the port side of the machine, the machine left the barge, over the starboard side of the barge. . . . [Emphasis added, Exhibit 4.] |
[9] At trial, Mr. Laing stated that it was not correct that the vessel was hit by two further waves on the port side, when he was trying to centre the excavator (the phrase "on the port side" is not in the original handwritten report). Mr. Laing is also critical that there is no mention in the report of his decision to turn the vessel around to run with the weather and that he accomplished that manoeuvre.
[10] The loss of the excavator led its owner to sue Mr. Laing: Pacific Tractor Rentals (V.I.) Ltd. v. Ship "Palaquin" and Frank Ian Laing (T-2616-95). This litigation was settled. In the examination for discovery that took place for the purpose of that litigation, on May 23, 1996, Mr. Laing gave evidence that Mr. Hart's report was accurate but incomplete. He reiterated that he had suddenly seen a five or six foot wave approaching, but stated that the Hart report was incomplete because it mentioned only one wave, followed by two others, when there had been a number of such waves. That evidence reads in part:
| The sea condition wasn't accurately described in that report. I mean I said I said I saw a wave coming, or two waves coming, you know. There was one wave after the other. It was the initial wave that was very steep and on both sides, almost like a wave you would encounter against wind running against the tide. . . . |
| A It stands to [the] sea straight up and down. That's what it was like one after the other. |
| Q All right. Which way were these waves moving? |
| A Well, on my course here they would be coming off my port-side from this direction. |
| . . . |
| Q So that was how it started. And then the waves, I think you said six-foot waves. |
| A Yeah. [Emphasis added.]3 |
[11] In the course of the May 23, 1996, examination for discovery Mr. Laing stated that he had had a thermos and a flashlight on a shelf near him in the wheelhouse, which had not fallen off the shelf as a result of the slight list of the vessel that resulted when the excavator shifted after the first wave hit the vessel. He gave evidence that after the first wave, "because of the conditions and having to reduce the power of the vessel, I lost steerage, so my next manoeuvre was to try to turn the stern into the weather - that would involve going broadside to the weather"4 (Emphasis added). He explained that he was almost broadside anyway because when he came off the top of the wave, the wind was blowing with such force that it had turned the boat broadside into the trough. He stated that he put as much power on as he could but by the time he got the vessel turned around "two or three other waves had come along and so the machine had shifted" and the boat was violently rolling. He stated that the second shifting of the machine had "happened when I was attempting to turn the boat stern to the weather so I would assume I was broadside in the wave, yes."5 He stated that after the second shifting, the excavator was close to the bulwark of the vessel.
[12] During the examination for discovery for the purposes of the present litigation, on March 6, 1997, Mr. Laing stated that Mr. Hart's report was accurate as far as it went. Mr. Laing asked rhetorically "Have you ever seen only three waves on the ocean? I haven't."6 He stated that the waves came one after the other and that they were bigger than five or six feet: "According to the Coast Guard they were a lot bigger, six to 10 feet, seven to 10 feet, nine and a half to 10 feet."7
[13] Mr. Laing, at trial, stated that on the morning of November 28, he had not seen any weather conditions that concerned him until he suddenly saw a massive wave coming at him and that the waves were coming from the port side and were 103 - 153 high. He described the first wave as being like a solid wall and being a weather condition he had never seen before. He said that he turned the vessel into the wind and the vessel was carried up on the first wave, but the wave had no back on it. He gave evidence that when the barge left the top of the wave, it crashed down, the excavator followed in a slightly delayed fashion, and when it caught up with the deck of the barge it landed slightly off centre. He gave evidence that he did not want to experience this again so he decided to turn the vessel completely around so that it would run with the weather, instead of into it. He stated that he accomplished that task but the vessel then started to broach so he took the power off and let the vessel lie in the trough of the waves. He then went to the excavator to start it up to centre it. He says when he was sitting in the trough the weather was coming from the starboard not the port side. He says the statement taken by Hart is incorrect when it says that the barge was hit by two more waves on the port side, and that the barge started to take on water over the starboard gunnel. He asserts that the severe wind and sea conditions tossed the excavator overboard, and that the loss was not caused by the rolling of the vessel and the shifting of the excavator. He stated that the excavator did not move adjacent to the bulwarks before it was tossed over the side and that photographs taken after the accident demonstrate this to be the case.
[14] It is clear from the above that there are many inconsistencies in Mr. Laing's story. It is clear that Mr. Laing at trial was exaggerating the state of the sea at the relevant time and had modified his story to try to avoid the defendant's assertion that it was because the vessel was overloaded that Mr. Laing had trouble, first, holding it into the wind, and, second preventing it from wallowing in the trough of the waves. He also massaged his evidence to avoid the conclusion that it was the movement of the unsecured excavator, first, a short distance and then further so that it was adjacent to the bulwark, that destabilized the vessel and eventually led to the excavator toppling off the barge.
[15] A criterion often used in evaluating evidence is that the explanation given first in time by a witness is usually the most accurate. Thus, I give Mr. Hart's report and the description in the May 23, 1996 transcript more credence than the explanation given at trial.
[16] I do not believe that Mr. Laing succeeded in turning the vessel so that it was running with the weather, and that only after that did the vessel begin to broach. In the course of Mr. Laing's evidence at trial, at one point, he described the vessel as being out of control after it encountered the first wave.8 I believe that to have been the case. It was impossible to hold the vessel into the wind because it was overloaded. The excavator shifted position in what was a relatively moderate sea condition because it was not chained or blocked. The shifting was compounded by the rolling of the vessel that was now broadside to the weather. The shifting of the excavator in the circumstances put Mr. Laing and his vessel in peril. It was the extreme seriousness, indeed desperateness of the situation that led Mr. Laing to leave the wheelhouse to try to recentre the excavator.
[17] It is unfortunate that the discrepancies in Mr. Laing's evidence exist because they lead me to doubt much of what he said at trial. Insofar as the photograph of the damage to the bulwark of the vessel is concerned, it is not inconsistent with the excavator having been lost after it had shifted to a position adjacent to the bulwark before going overboard.
Insurance Investigations
[18] Shortly after the accident, the defendant insurer asked Captain Vale, a registered marine surveyor, to examine the Palaquin, interview Mr. Laing and determine the cause of the loss of the excavator. Captain Vale prepared a preliminary report dated December 10, 1995, then, a more complete report dated December 22, 1995 and, lastly, an opinion letter dated January 23, 1996. He concluded that the loss had occurred because the vessel was unseaworthy at the start of the voyage.
[19] I consider the most relevant portion of the December 22, 1995 report to be the following passage:
| In the opinion of the Undersigned the machine should have been secured and the voyage not attempted with only 1"" of freeboard unless the weather was calm and had every likelihood of remaining so, the Strait of Georgia is notorious for a quick change of weather, in 20 minutes the seas can change from hardly a ripple to 4-6 ft and it would be fair to say that all those seafarers familiar with the Strait of Georgia know that these changes can occur. |
| I think it was a fatal error to allow the vessel to come broadside to the seas by leaving the helm, the advantage of a second crewman is now apparent. Despite the vessel apparently rarely taking much sea on deck there is always the danger that it might occur and the freeing ports not [be] able to remove the sea quickly enough and so flood the engine space because the hatch had no means of securement and could easily be lifted off by the buoyancy of the sea. [Exhibit 25.] |
The last sentence refers to the fact that in the course of the accident the engine became flooded because the engine hatch cover, not being secured in place, came off.
[20] The important part of the January 23, 1996 letter reads:
| In answer to your verbal request regarding the seaworthiness of the M/V "Palaquin", I should like to make the following observations; |
| (1) The vessel itself was not inspected as required by Regulations made under the Canada Shipping Act. |
| (2) The Master had no Certificate of Competency, at least a Small Craft Masters Certificate was required. |
| (3) The excavator should have been secured and lashed, possibly as described in our Survey Report. |
| (4) The sailing freeboard of 1"" was, in the opinion of the Undersigned insufficient for the voyage contemplated taking into account the weather existing and forecasted. |
| (5) The voyage should not have been undertaken with only one person on board. It is possible that had there been another man available for the wheel the vessel would not have come broadside to the sea which was a factor contributing to the loss of the excavator. |
| In view of the five (5) circumstances listed above it is the considered opinion of the Undersigned that the vessel "PALAQUIN" was unseaworthy for the voyage contemplated on the morning of Nov.28th.1995 and the Owner/Master was negligent in prosecuting the voyage. |
[21] The defendant insurer then sought a second opinion from Captain Hopkinson, a certified marine surveyor. He confirmed Captain Vale's opinion that the vessel had been unseaworthy and this had caused the loss. Captain Hopkinson subsequently prepared a written opinion dated September 9, 1997, based on his review of Captain Vale's reports of December 12 and December 22, 1995, the statement taken from Mr. Laing by Mr. Hart on November 28, 1995, the examination for discovery of Mr. Laing dated March 6, 1997, the Environment Canada Marine Forecast at 0445 PST (4:45 a.m.) on November 28, 1995, and the weather records from Ballenas Island on that day. The opinion expressed in that report is that the vessel was overloaded for the sea conditions to be expected on the voyage, that the cargo should have been blocked or lashed, and that the vessel was insufficiently manned:
| In our opinion the vessel in her loaded condition had too little freeboard to make the voyage in safety and was therefore overloaded. An overloaded vessel lacks buoyancy and this causes her to wallow in the troughs and she is reluctant to rise with the waves and is difficult to manoeuvre. |
| It is our opinion that the owner/operator, who we understand had heard the weather forecast and was aware that a gale warning for the area was in effect, showed poor judgement in embarking on the voyage with the vessel loaded as she was. |
| It is our opinion that the cargo should have been blocked and lashed into position. The fact that the owner/operator did not secure the cargo because he felt that in the event of an emergency the cargo would overwhelm the vessel and take it to the bottom points clearly to the fact that he had grave doubts about the seaworthiness of the vessel prior to departing False Bay. |
| Shifting of cargo is one of the most common causes of marine disasters. It is obvious that the weight of the excavator when compared to the size of the "PALAQUIN" would cause the vessel to heel significantly in the event that the excavator shifted. |
| It is our opinion that the vessel was insufficiently crewed to make the voyage safely. We note that the owner/operator in a last ditch attempt to save the excavator and the situation, abandoned the helm and control of the vessel which likely caused the situation to further deteriorate. |
| CONCLUSION |
| Given the foregoing opinions it is our further opinion that the vessel was unseaworthy when she departed False Bay on the voyage in question. |
| The fact that the vessel was unseaworthy was responsible for the loss of the cargo. [Exhibit 30.] |
[22] It is these experts upon whom the defendant relies in this action. The burden is of course on the defendant to prove that the Palaquin was unseaworthy when it commenced the voyage, that the loss was caused by that unseaworthiness, and that the owner was privy to the unseaworthiness.
Plaintiff's Witnesses and Some Conclusions Respecting Their Evidence
[23] The plaintiff called witnesses to rebut the defendant's assertion that the vessel was unseaworthy, and to support his contention that an unexpected weather event was the main cause of the accident.
[24] Mr. McClure, a naval architect, gave evidence directed to the stability of the Palaquin, specifically its freeboard and its heeling and trim characteristics. His evidence was not very persuasive. It was based on theoretical calculations and speculation. It is clear from the more direct, first hand and factually based evidence of other witnesses that the vessel was very stable and the freeboard, when it was loaded with the excavator, was very small.
[25] Insofar as the freeboard on the occasion of the voyage in question is concerned, Mr. Laing's evidence at trial was that he had not checked it, he did not know what it was but he knew it was sufficient because he had carried the excavator before and checked it on the previous occasions. Also he said that he knew from the way the vessel handled that it was not overloaded.
[26] Captain Hopkinson made an assessment of what the freeboard would have been and estimated 4". Captain Vale did a calculation of the probable freeboard and found it was comparable to what he said Mr. Laing had told him (1""- 2"). Mr. Laing's evidence was that he had not told Captain Vale what the freeboard had been. Captain Vale's evidence, which I believe, was that he had asked Mr. Laing to indicate where on the hull of the vessel the water line had been and from his answer Captain Vale knew that the freeboard was just under 2".
[27] Captain Smart, a marine surveyor and engineer, and Captain McKillop, a ship's master with extensive experience in the Lasqueti Island - French Creek area, gave criticisms of the Vale and Hopkinson reports that are, in the overall context of the evidence in the case, not of great consequence. As I read their reports, and consider the evidence, the crucial aspect is the assertions by Captain Smart and Captain McKillop that there was nothing inherently wrong in deciding to carry the excavator without securing it, or even in deciding to carry the excavator with so little freeboard, providing the anticipated weather for the voyage was benign.
[28] Captain Smart stated that the cargo had been loaded using accepted local practices within the operating area, that the vessel was adequately crewed for the voyage intended, but he also said that if you have to tie the cargo down you don't go.9 He gave evidence that "if there was any doubt at all in terms of what [weather] he [Mr. Laing] might encounter... he shouldn"t have gone".10
[29] Captain McKillop's evidence was similar. He concluded that the loss of the excavator was the result of the shift of that cargo occasioned by an unexpected line squall that caused significant rolling during the voyage and overwhelmed the vessel. His assertion that there was a line squall is not based on first hand information but merely because others said this occurred. He also asserted that the vessel was not overloaded. This was based to a significant extent on Mr. Laing"s assertion that he had been successful in turning the vessel so that it ran with the weather, an assertion that I do not accept as true. Captain McKillop stated that there was a considerable divergence of opinion as to what are acceptable securing arrangements for heavy cargo such as an excavator. He said that there was a considerable divergence of opinion as to what was considered safe and reasonable.11 Regardless of one's view, however, a crucial consideration was the anticipated weather:
| . . . I think beyond that [whether to secure the cargo], I would have to go back and look at the voyage, the weather, what could have been expected based on the forecast, and in Mr. Laing's situation, I probably would not have lashed the vessel, nor would I have gone if I felt there was a concern. |
| I think if you had to lash the vessel - or you had to lash the vehicle rather to the vessel, you probably should have reconsidered your decision to depart.12 |
[30] Indeed, in my view, what both these gentlemen said was not much different from
Captain Vale's statement in his December 22, 1995 report: "the machine should have been secured and the voyage not attempted with only 1"" of freeboard unless the weather was calm and had every likelihood of remaining so . . ."13 (Emphasis added).
Weather Conditions
[31] The plaintiff called Mr. Morrison, a well qualified meteorologist, who gave evidence that he thought Mr. Laing may have run into a "squall event" on the occasion of the accident. Squall events are of short duration. I do not need to describe the details of his evidence. It suffices to note that his review of the weather data led him to conclude that:
| . . . at least one squall type event, perhaps several, were generated in Georgia Strait during the morning, moved northward through the Lasqueti - French Creek area, brought up fairly high seas as it moved through with very strong gusty winds . . .14 |
[32] Mr. Morrison's evidence was that squall events are not predictable and that the one(s) that passed through the relevant area of the Strait of Georgia on the morning of November 28, 1995, had not been predicted. What was predicted was the arrival of a warm front with winds increasing through the morning, reaching gale force in the late afternoon in the northern portion of the Strait. The gale warning had been in effect since the previous day. The crossing from False Bay, Lasqueti Island, to French Creek, Vancouver Island, can be described as being in the northern portion of the southern part of the Strait, or in the southern portion of the northern part of the Strait. The relevant marine weather forecast, issued at 0445 was:
| Strait of Georgia |
| Gale warning continued. |
| Winds variable 5 to 15 knots rising to southerly 20 this morning and southeast 25 to 30 this afternoon. Winds over the northern portion will rise to southeast gales 35 late afternoon. Winds easing to southerly 20 to 25 overnight. . . |
[33] Mr. Morrison agreed that November is a notoriously windy month in the Strait of Georgia, and that erratic weather patterns and squall events occur.
[34] As noted, in addition to the Environment Canada marine weather forecasts that are issued approximately every six hours, current marine weather information is collected from various lighthouses at three hour intervals (e.g. 0300, 0600 and 0900), and broadcast continuously on the COMOX VHF weather station. The information available at 0640 was that the winds at Ballenas were 20 knots and at Sisters 18 knots. The Ballenas weather station is southeast of the route Mr. Laing was to take. Sisters is closer to his route but north of it.
[35] Mr. Morrison, in preparing his report, used hourly information from the lighthouses and some non-marine weather information as well. This information showed that by 0700 winds were "increasing an average 15 to 20 knots over the Straits with gusty conditions reported at Ballenas" and that "at Sisters . . . the speed has reached 20 knots but no gusts". By 0800 the winds were in the 25 knot range. The winds were coming from the southeast. Mr. Morrison, at the beginning of his report, stated what he thought the weather information showed:
| From 0600 PST [Pacific Standard Time] to 0800 PST the winds in the area will be shown to have averaged around 20 knots with little or no gusts being reported"resulting in a moderate but regular sea condition. From 0800 to 0900 PST the winds will be shown to have risen to around 25 knots and that gustiness increased. The increase in winds and gusts results in a higher sea condition, making waves rougher and more erratic. As of about 0900 PST on the day in question it will also be shown that the possibility of squall-like conditions increased and that the winds rose in strength above the 25 knot average for at least a short period of time. |
[36] The Coastguard's accident report, reporting on weather conditions at 0930, twenty minutes to half an hour after the accident, stated that the weather conditions were "poor" and the waves "were over two meters high and the wind speed - 30 knots with rain squalls". Mr. Laing asserted at trial that the weather conditions were less severe when the Coastguard arrived than they had been previously when the accident occurred. For reasons that follow there is reason to doubt this assertion.
[37] Mr. and Mrs. Cejka a couple whose home on Lasqueti Island overlooks the relevant stretch of water, were drinking coffee at their kitchen table in front of a window that looked out on that water. They were about five miles distant from where the accident occurred. They observed an unusual wave pattern. Mr. Cejka described it as being a big double wave, not usual. He could not say how high it was. Mrs. Cejka described it as an unusual wave pattern consisting of two or three waves, fairly large waves. They were not concerned that the wave would be a danger to the Palaquin; they did not pay a great deal of attention to it; neither saw the wave hit the Palaquin. When Mr. Cejka noticed that the Palaquin had its stern to them, he thought that Mr. Laing was having mechanical difficulties. Mr. and Mrs. Cejka described the conditions as a normal November day, very dark and grey. The fact that they did not report any severe weather condition of the kind Mr. Laing describes is telling.
Mr. Laing's Knowledge of the Likely Weather Conditions
[38] Mr. Laing's evidence, on the stand, was that he had listened to the COMOX VHF weather station both before leaving French Creek at 0530 and before leaving Lasqueti at 0810. He knew that the 0445 forecast indicated that the winds were to rise during the day and reach gale force in the northern part of the Strait in the afternoon. He had expected to leave Lasqueti by 0700 (the voyage between French Creek and Lasqueti takes about one and a half hours). He was delayed because the excavator was not ready for him when he arrived. When Mr. Laing left Lasqueti at 0810 he relied heavily on the sea and weather conditions that he could observe visually. He says that there was only a 13 or 23 chop, which did not concern him. (As noted earlier, his evidence is not totally reliable and thus I am not prepared to accept this.) Also, as noted earlier, the weather information as of 0640 was that there were 20 knot winds in the area. The seas were reported as being moderate. Mr. Laing stated that after he had travelled about a mile he listened to the lighthouse weather information that is broadcast on the VHF weather station. He knew the winds and sea size had increased from what they had been earlier. Mr. Laing knew that the stretch of water he would travel was exposed to southerly and southeastern winds, that winds from that direction were expected to increase over the course of the day, and the weather was expected to deteriorate.
[39] On his examination for discovery, on March 6, 1997, Mr. Laing stated that he did not consider it safe to voyage with the Palaquin when the winds were over 20 knots; he said he did not go if the winds were over 20 knots. At trial he said that what he meant was that he did not consider it safe to go in heavy weather. He had declined to transport the excavator on October 6, 1995, when the forecast was less threatening and the winds less strong than was the case on November 28, 1995. When asked by Mr. Vale why he had not secured the excavator to the vessel, he said that he did not do so because if a problem developed the excavator would take the vessel to the bottom with it.
[40] In their attempt to support Mr. Laing"s action in taking the barge to sea, laden as it was, in the weather conditions that were anticipated, both Captain Smart and Captain McKillop place inappropriate emphasis on the fact that the 0445 weather forecast predicted a gale in the afternoon, not the morning, and that it would occur in the northern part of the Strait. It is not reasonable to assume that weather forecasts carry the degree of precision that such reliance requires. This is equally true of the reliance that Mr. Laing indicated he put on the forecast.
Conclusions of Fact
[41] Without going into a great deal of detail, my conclusions on the first two reasons that Captain Vale gave for concluding that unseaworthiness existed are: the fact that Mr. Laing did not hold a Master of Small Craft certificate has not been shown to be a cause of the loss, and the fact that the barge was not inspected is irrelevant - it was not of a size that required it to be inspected.
[42] With respect to the conclusions of both Captain Vale and Captain Hopkinson that the undermanning of the vessel was a reason for finding unseaworthiness, the absence of a second crew member on board has not been shown to be a factor that contributed to the accident. It is not clear that a second person in the wheelhouse would have made any difference. The fact that Mr. Laing had sufficient knowledge, because of his personal experience with excavators, that he could attempt to move the excavator back to a central position on the barge, is not sufficient to demonstrate that the under manning of the vessel was a cause of the loss.
[43] There was some evidence adduced to demonstrate that securing the excavator by chains or blocking would not have made a difference. I find to the contrary. Chains would have been effective. It was the initial wave that resulted in the excavator shifting. This caused a listing and contributed to the rolling of the vessel as well as to additional difficulty in its handling. Had the excavator been secured in place the initial shift would not have occurred.
[44] As will appear from the facts set out above, the Palaquin was not reasonably fit for the intended voyage. It was too heavily laden for the sea conditions that it could reasonably be expected to encounter. The excavator, not being secured, was not stowed in a safe manner for the sea condition the vessel could reasonably be expected to encounter. The unseaworthiness created by these two factors caused the loss.
[45] Counsel for the plaintiff argues, however, that the plaintiff was not privy to that unseaworthiness. Counsel argues that even if Mr. Laing was negligent in starting out on the voyage, this is not knowledge of the unseaworthiness. He refers to the decisions in Compania Maritima San Basilio S.A. v. The Oceanus Mutual Underwriting Association (Bermuda) Ltd. (The "Eurysthenes"), [1976] 2 Ll.L.R. 171 (C.A.), and Manifest Shipping & Co. Ltd. v. Uni-Polaris Insurance Co. Ltd. and La Réunion Européene (The "Star Sea"), [1997] 1 Ll.L.R. 360 (C.A.). In the former Lord Denning described privity as requiring not only knowledge by the owner of the facts that constitute unseaworthiness but also knowledge that those facts render the ship unseaworthy:
| To disentitle the shipowner, he must, I think, have knowledge not only of the facts constituting the unseaworthiness by also knowledge that those facts rendered the ship unseaworthy, that is, not reasonably fit to encounter the ordinary perils of the sea. And, when I speak of knowledge, I mean not only positive knowledge but also the sort of knowledge expressed in the phrase "turning a blind eye". If a man, suspicious of the truth, turns a blind eye to it, and refrains from inquiry"so that he should not know it for certain"then he is to be regarded as knowing the truth. This "turning a blind eye" is far more blame-worthy than mere negligence. Negligence in not knowing the truth is not equivalent to knowledge of it. |
[46] Lord Justice Roskill explained the test (at 184):
| In the context of the Act as a whole I think it is clear that "privity" in this sub-section is not the same as "wilful misconduct". Nor is it the same as negligence or fault, whether personal or otherwise. The sub-section says that the underwriter is excused if the ship is sent to sea in an unseaworthy state with the privity of the assured. That must mean that he is privy to the unseaworthiness and not merely that he has knowledge of facts which may ultimately be proved to amount to unseaworthiness. In other words, if the ship is sent to sea in an unseaworthy state with his knowledge and concurrence and that unseaworthiness is causative of the loss, the time policy does not pay. There must be causative unseaworthiness of which he knew and in which he concurred. Mr. Mustill at one point of his argument used the phrase "conscious realization of the implication of the facts making the ship unseaworthy". I would accept that phrase as correctly conveying the underlying intention of this sub-section, though I have rejected his wider argument that privity must be equated with wilful misconduct. |
| But like Lord Denning, M.R., I would emphasize that knowledge does not only mean positive knowledge, but includes that type of knowledge which is expressed in the phrase "turning a blind eye". If the facts amounting to unseaworthiness are there staring the assured in the face so that he must, had he thought of it, have realized their implication upon the seaworthiness of his ship, he cannot escape from being held privy to that unseaworthiness by blindly or blandly ignoring those facts or by refraining from asking relevant questions regarding them in the hope that by his lack of inquiry he will not know for certain that which any inquiry must have made plain beyond possibility of doubt. [Emphasis added.] |
[47] In the "Star Sea", the Court, at 377, described the requirement as "some consciousness or suspicion that the ship is unseaworthy which is disregarded so that the person concerned does not know for certain".
[48] I am forced to conclude that Mr. Laing had knowledge not only of the facts that made the vessel unseaworthy but also "blind eye" knowledge that those facts rendered the Palaquin unseaworthy. As noted above, his evidence was that he did not consider it safe to voyage in 20 knot winds. On the morning in question the weather information demonstrates that when he started the voyage 20 knot winds existed. Those winds were from the southeast and the forecast was for increasing winds from that direction and deteriorating weather conditions. Mr. Laing knew erratic conditions exist in the Strait, especially in November. When asked why he had not secured the excavator to the barge, he told Captain Vale (and I have no reason to doubt this evidence) that he had not done so because if he got into trouble the excavator would take the barge to the bottom with it. I can reach no other conclusion than that he was privy to the unseaworthiness as that concept has been described in the jurisprudence to which I was referred.
[49] For the reasons given, I reluctantly dismiss the plaintiff's action.
Judge
OTTAWA, ONTARIO
February 17, 1999
__________________1 H.N. Bennett, The Law of Marine Insurance, (1996) pp. 294, 296.
2 Benedict on Admiralty (7th Ed.) (New York; Mattheuw Bender, 1990) para. 67; Halsbury's Laws of England, (rht Ed) (Reissue) Vol. 43(2), p. 1126, para. 1653; Biccard v. Shepherd (1861), 14 Moore PCC 471 at p. 491 (391 in reprint); Harocopos v. Mountain, [1934] 49 KB 267 at p. 270; Albert E. Reed & Co. Limited v. Page, Son & East Limited, [1927] KB 231 at pp. 234-4; Arnould's Law of Marine Insurance and Average (London; Stevens & Sons, 1981)at p. 573, para. 735 and Foley v. Tabor (1861), 2F. & F. 663, 671-2 (p. 1234 reprint).
3 Trial Transcript, pp. 244-5.
4 Trial Transcript, p. 256.
5 Trial Transcirpt, p. 257.
6 Trial Transcript, p. 254.
7 Trial Transcript, p. 243.
8 Trial Transcript, pp. 254, 259, 260, 262.
9 Trial Transcript, p. 383.
10 Trial Transcript, p. 404
11 Trial Transcript, pp. 520-1.
12 Ibid.
13 Supra, p. 9.
14 Trial Transcript, pp. 37-38.