A/S Ornen v. Ship Duteous et al., (1986) 4 F.T.R. 122 (TD)

• Judge: Dube, J.
• Court: Federal Court (Canada)
• Case Date: April 25, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 4 F.T.R. 122 (TD)

A/S Ornen v. Ship Duteous (1986), 4 F.T.R. 122 (TD)

MLB headnote and full text

A/S Ornen v. Ship "Duteous", Canada, National Harbours Board, Clipper Maritime Co. Ltd., Dancan Line Limited, Armada Shipping APS, Armada Lines Ltd. and Protos Shipping (defendants) and Canada and National Harbours Board (third parties)

(No. T-189-81)

St. Lawrence Stevedoring Company Limited and Royal Insurance Company of Canada v. Ship "Duteous", Canada, National Harbours Board, Clipper Maritime Company Limited, Dancan Limited, Armada Shipping APS and Protos Shipping Ltd. (defendants) and Canada and National Harbours Board (third parties)

(No. T-160-81)

Compagnia de Navegacion Duteous, S.A. v. Canada and National Harbours Board

(No. T-545-81)

Indexed As: A/S Ornen v. Ship Duteous et al.

Federal Court of Canada

Trial Division

Dube, J.

April 25, 1986.

Summary:

The ship "Duteous" was moored at an exposed berth in the port of Montreal when her moorings broke under the force of an ice pack recently broken up by an ice breaker. The ice pack pushed the "Duteous" downstream where it collided with and heavily damaged the ship "Thor I" and two shore cranes. The owners of the ship "Thor I" and the cranes each brought an action for damages against the owners of the ship "Duteous", the federal Crown, the National Harbours Board and the charterer and charterer's agent of the ship "Duteous". The owner of the ship "Duteous" brought an action for damages against the federal Crown and the National Harbours Board. The trials of the three actions were heard on common evidence.

The Federal Court of Canada, Trial Division, allowed the actions of the owners of the ship "Thor I" and the two cranes and dismissed the action by the owner of the ship "Duteous". The court held that the ship "Duteous", through its Master, was negligent and solely at fault. The court held that there was no negligence on the part of the charterer, the charterer's agent, the Crown, the National Harbours Board or the ice breaker. The court also held that the ship "Thor I" and the crane owners were not contributorily negligent.

Shipping and Navigation - Topic 5324

Collisions - Negligence - Duty of charterer or charterer's agent - The ship "Duteous" broke her moorings under the force of an ice pack, was pushed downstream and damaged another ship and two shore cranes - The ship "Duteous" was not an ice-class vessel - The Federal Court of Canada, Trial Division, held that the charterer of the ship was not negligent in sending the ship to Montreal in winter conditions, because the terms of the charter party permitted the charterer to send the ship anywhere, there were no regulations limiting winter navigation in Montreal to ice-class vessels and there was no conclusive evidence that any inherent disability on the part of the ship caused the collision - The court also held that since the charterer did not select the ship's berth, no negligence could be found on that ground - See paragraphs 50 to 57.

Shipping and Navigation - Topic 5324

Collisions - Negligence - Duty of charterer or charterer's agent - The ship "Duteous" broke her moorings under the force of an ice pack, was pushed downstream and damaged another ship and two shore cranes - The ship's owner submitted that the charterer's agent was negligent - The Federal Court of Canada, Trial Division, held that the charterer's agent was not negligent, because his limited duties included soliciting cargo, recommending stevedores, processing claims, collecting freights etc., and he had no duties respecting navigation or berthing of the ship - See paragraphs 58 to 64.

Shipping and Navigation - Topic 5403

Collisions - Negligence - Defences - Inevitable accident - The Federal Court of Canada, Trial Division, stated that the defence of inevitable accident arises only where the collision could not have been prevented by "the exercise of ordinary care, caution and marine skill" - The court stated that where a ship runs into another ship lawfully moored in port, the onus is on the first ship to show the collision was inevitable - See paragraphs 21 to 49.

Shipping and Navigation - Topic 5403

Collisions - Negligence - Defences - Inevitable accident - The ship "Duteous" was moored at an exposed berth when her moorings broke under the force of ice - The "Duteous" was pushed downstream where it collided with and heavily damaged another ship and two shore cranes - The Federal Court of Canada, Trial Division, rejected the defence of inevitable accident and found the ship "Duteous", through its Master, negligent on the following grounds: (1) the Master failed to acquaint himself with the perils and requirements of winter navigation; (2) the Master did not keep abreast as to ice conditions; (3) the Master did not foresee the possibility of the ice breakup and did not seek a safer berth; (4) the ship was not moored securely enough; (5) the Master was remiss in his duty to keep a pilot on board and (6) the Master did not exercise reasonable care and skill in navigating the ship once it broke its moorings - See paragraphs 21 to 49.

Shipping and Navigation - Topic 5408

Collisions - Negligence - Defences - Contributory negligence - The ship "Duteous" broke its moorings, was pushed downstream by ice and collided with and heavily damaged the ship "Thor I" and two shore cranes - The Federal Court of Canada, Trial Division, held that the ship "Thor I" and the crane owner were not contributorily negligent, because both were lawfully where they were entitled to be - The court likened the case to that of a negligent motor vehicle driver colliding with a lawfully parked motor vehicle - See paragraphs 91 to 92.

Shipping and Navigation - Topic 7800

Harbours, docks and piers - Liability of harbour authorities - Negligence - The ship "Duteous" broke its moorings under the force of ice, was pushed downstream and collided with another ship and two shore cranes - The Federal Court of Canada, Trial Division, held that the National Harbours Board was not negligent in failing to assign or shift the ship to a safer berth - The court held that the Board's duty was limited to informing all vessels in port of any "concealed danger which may be constituted by harbour facilities" - The court stated that the ice condition was neither a concealed danger nor constituted by harbour facilities - The court stated that the Board does not have a duty to ensure the safety of ships mooring in their harbours - See paragraphs 65 to 82.

Shipping and Navigation - Topic 7910

Harbours, docks and piers - Regulation - Charges for use of - Not creating contract - Ships entering a port paid wharfage and other tolls in return for a berth - The Federal Court of Canada, Trial Division, held that the charges did not create a contract for a safe berth between the ship and the National Harbours Board - See paragraph 83.

Cases Noticed:

Europa, The (1850), 14 Jur. 627, refd to. [para. 21].

"Marpesia", The v. "America", The (1872), L.R. 4 P.C. 212, refd to. [para. 21].

Merchant Prince, The (1892), 7 ASP. M.L.C. 208, refd to. [para. 21].

Bell Telephone Company of Canada - Bell Canada v. Ship "Mar-Tirenno" and owners, The, [1974] F.C. 294, refd to. [para. 22].

"City of Peking" v. Compagnie des Messageries Maritimes (1888), 14 A.C. 40 (P.C.), refd to. [para. 25].

Bank Shipping Company v. Steamship "City of Seattle" (1903), 9 Ex. C.R. 146, refd to. [para. 25].

Beauchemin v. The King, [1947] Ex. C.R. 102, refd to. [para. 25].

"Velox", The, [1955] 1 Ll.L. Rep. 376, refd to. [para. 25].

Barge T-429, The, [1957] Ll.L. Rep. 135, refd to. [para. 25].

Wake-Walker v. SS. Colin W. Ltd. et al., [1937] 2 D.L.R. 753 (P.C.), refd to. [para. 26].

R. v. Hochelaga Shipping & Towing Company Ltd., [1940] S.C.R. 153, refd to. [para. 41].

Irish Shipping Ltd. v. The Queen, [1977] 1 F.C. 485, refd to. [para. 48].

Ship Dumurra, The v. Maritime Telegraph and Telephone Company Limited, [1977] 2 F.C. 679, refd to. [para. 48].

Blandy Bros. & Co. v. Nello Simoni, [1963] 2 Ll.L. Rep. 24, refd to. [para. 59].

Owners of the Steamship "Panagiotis Th. Coumantaros" v. National Harbours Board, [1942] S.C.R. 452, refd to. [para. 68].

Ship "Sparrows Point" et al. v. National Harbours Board, [1951] S.C.R. 396, refd to. [para. 69].

Nord-Deutsche et al. and Her Majesty The Queen and Koninklijke et al., [1969] 1 Ex. C.R. 117, refd to. [para. 70].

Grossman and Sun v. His Majesty the King, [1952] 1 S.C.R. 571, refd to. [para. 70].

Workington Harbour and Dock Board v. Towerfield (Owners), [1951] A.C. 112 (H.L.), refd to. [para. 70].

Angeliki Compania Maritima S.A. v. BP Oil Limited et al. (1975), 6 N.R. 216 (F.C.A.), 8 N.R. 196 (S.C.C.), refd to. [para. 71].

Warwick Shipping Limited v. The Queen, [1982] 2 F.C. 147, affd. (1983), 48 N.R. 36 (F.C.A.), refd to. [para. 73].

R. v. Canada Steamship Lines Limited, and another, [1927] S.C.R. 68, refd to. [para. 83].

Statutes Noticed:

Charts and Publications Regulations, C.R.C. 1978, c. 1415.

Pilotage Act, S.C. 1970-71-72, c. 52, sect. 31 [para. 48].

Crown Liability Act, R.S.C. 1970, c. C-38, sect. 31(a), sect. 31(b) [para. 70].

Berthage, Buoyage and Anchorage Charges Tariff Bylaw, C.R.C. 1978, c. 1061, sect. 8 [para. 74].

Quebec Civil Code, art. 1056(c) [para. 90].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 43, para. 981 [para. 21].

Living Webster Encyclopedic Dictionary of the English Language [para. 24].

Trappe, Johannes, The Duties and Obligations and Liabilities of the Ship's Agent to his Principal, [1978] Lloyds Mar. and Comm. L.Q., pp. 595-605 [para. 60].

Counsel:

S. Hyndman and N. Spillane, for the plaintiff, A/S Ornen;

E. Baudry, for the plaintiff, Royal Insurance Co. of Canada;

M. Edwards, for the plaintiff, St-Lawrence Stevedoring Co. Ltd.;

T.H. Bishop and R. Cypihot, for the plaintiff, Compagnia de Navegacion Duteous, S.A., and for the defendant Ship "Duteous".

D. Angus and L. Fortier, for the defendants, Clipper Maritime Co. Ltd., Dancan Line Limited, Armada Lines Limited, Armada Shipping Aps, Protos Shipping;

J.C. Ruelland, A. Bluteau and P.H. Vanasse, for the defendant and third party, The National Harbours Board;

J.C. Ruelland and A. Bluteau, for the defendant and third party, Her Majesty The Queen.

Solicitors of Record:

McMaster, Meighen, Montreal, Quebec, for the plaintiff, A/S Ornen;

Gagnon, de Billy & Associates, Quebec, Quebec, for the plaintiff, St. Lawrence Stevedoring Company Ltd.;

Lavery, O'Brien, Montreal, Quebec, for the plaintiff, Royal Insurance Company of Canada;

Brisset, Bishop, Davidson & Davis, Montreal, Quebec, for the defendants, M.V. Duteous and Her Owners;

Stikeman, Elliott, Montreal, Quebec, for the defendants, Clipper Maritime Co. Ltd. et al.;

Ports Canada, Montreal, Quebec, for the third party, The National Harbours Board;

F. Iacobucci, Ottawa, Ontario, for the third party, Her Majesty the Queen.

These actions were heard on February 3-7, 10-14, 17-20, 24-27 and March 4-6, 1986, at Montreal, Quebec, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 25, 1986.