John Redpath and Others, - Appellants; James Allan and Others, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 03 December 1872 |
| Date | 03 December 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 542
ON APPEAL FROM THE VICE-ADMIRALTY COURT OF LOWER CANADA.
Mews' Dig. tit. Colony, I. General Principles, 6. Legislatures; II. Particular Colonies, 4. British North America.-Shipping-Compulsory Pilotage; tit. Shipping, A. XX. Collision, 10. Compulsory Pilotage, a. Generally. S.C. L.R. 4 P.C. 511; 42 L.J. Adm. 8; 27 L.T. 725; 21 W.R. 276; 1 Asp. 491. As to special leave to appeal see note to Retemeyer v. Obermuller, 1837, 2 Moo. P.C. 125.
[340] ON APPEAL FROM THE VICE-ADMIRALTY COURT OF LOWER CANADA. JOHN REDPATH and Others,-Appellants; JAMES ALLAN and Others,- Respondents * [Dec. 3, 1872]. the " hibernian." The Canadian Statute, 27th and 28th Viet. c. 13, intituled " An Act to amend the Laws respecting the navigation of Canadian Waters," enacts, by sect. 14, that " No Owner or Master of any Ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified Pilot acting in charge of such within any place where the employment of such Pilot is compulsory by law; " and the Canadian Statute, 27th and 28th Viet. c. 58, s. 9, enacts, that " The Master or person in charge of each Vessel exceeding 125 tons, coming from a port out of the Province of Quebec and leaving the port of Quebec for Montreal, shall take on board a branch Pilot, for and above the harbour of Quebec, to conduct such Vessel, under a penalty equal in amount to the pilotage of the Vessel, which penalty shall go to the Decayed Pilots' Fund:" Held, on appeal, affirming the judgment of the Vice-Admiralty Court of Lower Canada, in a cause of damage by collision, that these Statutes are to be read and construed together as being in pari materid, constituting a compulsory pilotage, and exonerating the Owner of a Vessel having such Pilot on board from liability for damage inflicted on another Vessel. Where a Statute inflicts a penalty for not doing an act provided for, the penalty enacted implies that there is a legal compulsion to do the act in question, and this principle is not affected by the fact, that the penalty has a particular destination [9 Moo. P.C. (N.S.) 349]. This was a cause of damage promoted by the Appellants, as the Owners of certain bags of sugar which were laden on board of two Barges, called the [341] A. McFarren and the Dora, against the Steamship Hibernian, owned by the Respondents, for the recovery of damages caused by the loss of the sugar by reason of a collision which happened between the Barges and the Steamship Hibernian. The collision happened shortly before noon on the 16th of June, 1868, in the River St. Lawrence, between Pointe aux Trembles and Varennes, off Isle a 1'Aigle. The Hibernian was a Mail steamer of 1391 tons register, and was proceeding down the St. Lawrence on a voyage from Montreal to Liverpool, with cargo and passengers. * Present:-Sir James William Colvile, Sir Robert Phillimore (Judge of the High Court of Admiralty), Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 542 REDPATH V. ALLAN-HIBERNIAN (THE) [1872] IX MOORE N.S., 342 The Hibernian was in charge of a duly licensed branch Pilot for the Eiver St. Lawrence, whose duty it was to pilot her from Montreal to Quebec. The Barges were proceeding up the St. Lawrence in tow of a Steam-tug boat called the Canada. The consequence of the collision was that the Barges sank. By the Canadian Statute, 27th and 28th Viet. c. 13, s. 14, it is provided, that no Owner or Master of any Ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified Pilot acting in charge of such Ship within any place where the employment of such Pilot is compulsory by law. By another Canadian Statute, 27th and 28th Viet. c. 58, ss. 9, 10, relating to the Trinity House of Montreal, all Vessels of more than 125 tons burden navigating the St. Lawrence, between Montreal and Quebec, are bound to take on, board a duly licensed branch Pilot, or to pay a penalty to the Decayed Pilots' Fund equal to the amount that they would have had to pay for the pilotage. By sects. 2 and 3 [342] of the same Statute, Pilots are required to pilot any Vessel for which they are engaged, and Masters of Vessels are allowed to choose what Pilot they would employ, subject to...
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