Stein Estate et al. v. Ship Kathy K et al., (1975) 6 N.R. 359 (SCC)

• Judge: Martland, Judson, Ritchie, Spence and Dickson, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 1975
• Jurisdiction: Canada (Federal)
• Citations: (1975), 6 N.R. 359 (SCC);[1975] ACS no 104;1975 CanLII 171 (SCC);[1976] 2 SCR 802;62 DLR (3d) 1;[1976] 2 SCR 640;59 DLR (3d) 610;1975 CanLII 146 (SCC);6 NR 359;[1975] SCJ No 104 (QL);[1976] CTC 99

Stein Estate v. Ship Kathy K (1975), 6 N.R. 359 (SCC)

MLB headnote and full text

Stein Estate et al. v. The Ship "Kathy K" et al.

Indexed As: Stein Estate et al. v. Ship Kathy K et al.

Supreme Court of Canada

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

October 7, 1975.

Summary:

This case arose out of an action for damages for death pursuant to the provisions of the Canada Shipping Act. The action arose out of a collision in Vancouver Harbour between a sixteen foot sailboat and an eighty foot barge. The barge was being towed by a forty-nine foot tugboat. The barge was being towed by a 150 foot tow line which separated the tugboat and the barge. The crew of the sailboat saw the tugboat but did not see the barge. The collision occurred on a Saturday afternoon in daylight in clear weather. The Trial Division of the Federal Court of Canada held that the tugboat was seventy-five percent at fault and that the sailboat was twenty-five percent at fault.

On appeal to the Federal Court of Appeal the appeal was allowed, the judgment of the Trial Division was set aside, and the plaintiff's action was dismissed - see 4 N.R. 381. The Federal Court of Appeal held that the crew of the sailboat were 100 percent at fault for failing to keep a proper lookout. The Federal Court of Appeal stated that Rule 20 of the Canada Shipping Act Collision Regulations did not apply in the circumstances. Rule 20 provided that a power-driven vessel shall keep out of the way of a sailing vessel.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgment of the Federal Court of Appeal was set aside, and the judgment of the Trial Division of the Federal Court of Canada was restored. The Supreme Court of Canada held that the sailboat was negligent for failing to keep a proper lookout - see paragraph 14. The Supreme Court of Canada held that the tugboat was negligent for failing to keep the barge close hauled and for failing to yield to the sailboat as required by the Rule 20(a) of the Canada Shipping Act Collision Regulations - see paragraphs 14 and 21.

The Supreme Court of Canada stated that because the collision took place in the inland waters of the Province of British Columbia that the provisions of the British Columbia Contributory Negligence Act with respect to the division of fault applied to the collision - see paragraph 40.

Shipping and Navigation - Topic 5068

Collisions - Rules of the sea - Right of way of a sailing vessel - Canada Shipping Act Collision Regulations, Rule 20(a) - A sixteen foot sailboat collided with an eighty foot barge which was being towed by a forty-nine foot tugboat in Vancouver Harbour - The Supreme Court of Canada held that the tugboat was negligent in failing to yield to the sailboat as required by Rule 20(a) - See paragraph 21.

Shipping and Navigation - Topic 5076

Collisions - Rules of the sea - Hauling another vessel - A sixteen foot sailboat collided with an eighty foot barge which was being towed by a forty-nine foot tugboat in Vancouver Harbour - The barge was being hauled by a 150 foot tow line which separated the tugboat and the barge - The Supreme Court of Canada held that the tugboat was negligent for failing to keep the barge close hauled - See paragraphs 14 and 21.

Shipping and Navigation - Topic 5066

Collisions - Rules of the sea - Keeping a proper lookout - A sixteen foot sailboat collided with an eighty foot barge which was being towed by a forty-nine foot tugboat in Vancouver Harbour - The barge was being hauled by a 150 foot tow line which separated the tugboat and the barge - The crew of the sailboat saw the tugboat but did not see the barge - The Supreme Court of Canada held that the crew of the sailboat was negligent for failing to keep a proper lookout - See paragraph 14.

Shipping and Navigation - Topic 5404

Collisions - Negligence - Defences - Statutory limitation of liability of an owner of a vessel - Whether the loss occurred without the "actual default or privity" of the owner - Canada Shipping Act, s. 647(1) - The Supreme Court of Canada held that the owner was not entitled to the statutory limitation of liability because the owner authorized a tugboat and barge to operate with a crew of less than three contrary to the tugboat's certificate - See paragraphs 10 and 30 to 32.

Shipping and Navigation - Topic 5408

Collisions - Negligence - Defences - Contributory negligence - A sixteen foot sailboat collided with an eighty foot barge which was being towed by a forty-nine foot tugboat in Vancouver Harbour - The collision took place in the inland waters of the Province of British Columbia - The Supreme Court of Canada held that the provisions of the British Columbia Contributory Negligence Act respecting division of fault applied to the collision - See paragraphs 33 to 40.

Evidence - Topic 7403

Assessors - Status of opinions or evidence of assessors - Claim for damages arising out of a collision of two ships in Vancouver Harbour - There was a conflict of an opinion of an assessor advising a trial court with an opinion of an assessor advising a court of appeal - The Supreme Court of Canada stated that there is no heirarchy of assessors - The Supreme Court of Canada stated that assessors occupy much the same position as do skilled witnesses - See paragraphs 19 and 20.

Practice - Topic 8800

Appeals - Duty of an appellate court regarding findings of fact by a trial judge - The Federal Court of Appeal ignored the fact findings of the Trial Court and made fact findings based on its own appreciation of "the balance of probability" - The Supreme Court of Canada stated that a court of appeal should test fact findings of a trial court on the basis of whether or not they were clearly wrong rather than on the basis of whether the fact findings were in accord with the view of the Court of Appeal of the "balance of probability" - See paragraphs 6 and 7.

Words and Phrases

Risk of collision - The Supreme Court of Canada discussed the meaning of the words "risk of collision" as found in Rule 20 of the Canada Shipping Act Collision Regulations - See paragraph 28.

Words and Phrases

Actual fault or privity - The Supreme Court of Canada discussed the meaning of the words "actual fault or privity" as found in s. 647 of the Canada Shipping Act - See paragraphs 30 and 31.

Cases Noticed:

S.S. Honestroom (Owners) v. S.S. Sagaporack (Owners), [1927] A.C. 37, folld. [para. 7].

The Sir Robert Peel (1880), 4 Asp.M.L.C. 321, folld. [para. 7].

Prudential Trust Co. Ltd. v. Forseth, [1960] S.C.R. 210, folld. [para. 7].

Clarke v. Edinburgh Tramways Co., [1919] S.C. (H.L.) 35, 36, folld. [para. 7].

Powell v. Streatham Manor Nursing Home, [1935] A.C. 243, folld. [para. 7].

C.P.R. v. The Camosun, [1925] Ex. C.R. 39, folld. [para. 28].

Standard Oil Co. of New York v. Clan Line Steamers Ltd., [1924] A.C. 100, folld. [para. 31].

S.S. Devonshire (Owners) v. Barge Leslie (Owners), [1912] A.C. 634, dist. [para. 33].

Sparrow's Point v. Greater Vancouver Water District et al., [1951] S.C.R. 396, dist. [para. 33].

Algoma Central and Hudson Bay Railway Company v. Manitoba Pool Elevators Limited, [1964] Ex. C.R. 505, dist. [para. 33].

The Australis, [1972] A.C. 145, folld. [para. 20].

Statutes Noticed:

Contributory Negligence Act, R.S.B.C. 1960, c. 74, sect. 2 [para. 40].

Canada Shipping Act Collision Regulations, rule 20(a) [para. 15]; rule 22 [para. 27]; rule 23 [para. 27]; rule 29 [para. 14].

Canada Shipping Act, R.S.C. 1970, c. S-9, sect. 638 [para. 35]; sect. 639 [para. 35]; sect. 647(1) [para. 30]; sect. 649(1) [para. 32].

Counsel:

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

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

This appeal to the Supreme Court of Canada was heard on June 9, 10, 11 and 12, 1975. Judgment was delivered by the Supreme Court of Canada on October 7, 1975.

The judgment of the Supreme Court of Canada was delivered by Ritchie, J.