Stein Estate v. The Ship Kathy K et al., (1974) 4 N.R. 381 (FCA)

• Judge: Jackett, C.J., Thurlow and Pratte, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 17, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 4 N.R. 381 (FCA)

Stein Estate v. Ship Kathy K (1974), 4 N.R. 381 (FCA)

MLB headnote and full text

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

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

Federal Court of Appeal

Jackett, C.J., Thurlow and Pratte, JJ.

May 17, 1974.

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 16 foot sailboat and an 80 foot barge. The barge was being towed by a 49 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 held that the tugboat was 75% at fault and that the sailboat was 25% 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. The Federal Court of Appeal held that the crew of the sailboat were 100% 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 - see paragraph 17.

Thurlow, J., dissenting, in the Federal Court of Appeal, would have found the tugboat negligent for letting out too much tow line resulting in an inability to control the barge. Thurlow, J., would have apportioned fault equally between the sailboat and the tugboat - see paragraphs 34 to 55.

Shipping and Navigation - Topic 5066

Collisions - Rules of the sea - Lookout - A 16 foot sailboat collided with an 80 foot barge which was being towed by a 49 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 - Canada Shipping Act Collision Regulations, Rule 20 - The Federal Court of Appeal dismissed an action against the tugboat by the estate of a crew member of the sailboat - The Federal Court of Appeal held that the crew of the sailboat were 100% at fault for failing to keep a proper lookout.

Cases Noticed:

S.S. Devonshire (Owners) v. Barge Leslie (Owners), [1912] A.C. 634, refd to. [para. 4].

Algoma Central & Hudson Bay Ry. Co. v. Manitoba Pool Elevators Ltd. et al., [1964] Ex. C.R. 505, refd to. [paras. 4, 55].

Sparrows Point v. Greater Vancouver Water District et al., [1951] S.C.R. 396, refd to. [paras. 4, 55].

"H.M.S. Sans Pareil", [1900] P. 267, refd to. [fn. 5].

The Lionel v. The Manchester Merchant, [1970] S.C.R. 538, refd to. [fn. 5].

"Cape Breton" v. Richelieu and Ontario Navigation Co. (1905), 36 S.C.R. 564, folld. [para. 30].

Statutes Noticed:

Canada Shipping Act, R.S.C. 1970, c. S-9, sect. 638, sect. 639(2) [para. 4].

Canada Shipping Act Collision Regulations, rule 20 [para. 17]; rule 21 [para. 40]; rule 27, rule 29 [para. 25].

National Harbours Board Act Regulations, sect. 25(1) [para. 51]; sect. 37(1) [para. 52].

Counsel:

[None disclosed].

This appeal was heard by the Federal Court of Appeal at Vancouver, B.C., on May 6, 7, 8, 9, 10, 13 and 17, 1974. Judgment was delivered by the Federal Court of Appeal on May 17, 1974 and the following opinions were filed:

JACKETT, C.J. - see paragraphs 1 to 33.

THURLOW, J. - see paragraphs 34 to 55.

PRATTE, J. - see paragraphs 56 to 60.