Redpath v Allan; The "Hibernian"
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1865 |
| Year | 1865 |
| Date | 1865 |
| Court | Privy Council |
Lower Canada, Law of - Statutes, 27 & 28 Vict. c. 13, s. 14, and 27 & 28 Vict. c. 58, s. 9 - Collision - Compulsory Pilotage.
The Canadian Statute, 27 & 28 Vict. 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, 27 & 28 Vict 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 Pilot 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 materiâ, 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.
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 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 à l'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.
The Hibernian was in charge of a duly licensed branch Pilot for the river 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, 27 & 28 Vict. 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, 27 & 28 Vict. 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 Pilot's Fund equal to the amount that they would have had to pay for the pilotage. By sects. 2 and 3 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 certain restrictions. By the Statute relating to the Trinity House of Quebec, 12 Vict. c. 114, s. 55, it is enacted, that any Vessel entering the St. Lawrence without a duly licensed Pilot on board, shall be bound to take the first duly qualified Pilot that offers, without any power of selection.
On the 11th of November, 1870, an action, which had been commenced by the Northern Transportation Line, as the Owners of the two Barges, the A. McFarren and the Dora, which had contained the sugar, for their loss, was consolidated with this cause of damage.
The case was heard before the Honourable Henry Black, C.B., the Judge of the Vice-Admiralty Court of Lower Canada, now the Province of Quebec, assisted by two nautical Assessors.
The facts which were proved with respect to the employment by the Respondents of the Pilot, were as follows:—
The Pilot, Adolphe Lisée, was licensed Pilot, and had been usually employed by the Respondents since the year 1860, taking his turn with two other Pilots, who were also in their employ, in piloting the mail Steamers belonging to the Montreal Ocean Steam Ship Company, of which the Respondents were the Owners, between Montreal and Quebec. The Pilots so engaged were free from the...
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- Fowles v Eastern and Australian Steamship Company Ltd
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John Redpath and Others, - Appellants; James Allan and Others, - Respondents
...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. 12......