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Tug and Tow
Case SummariesCharters– Bailment – Waiver of Subrogation North King Lodge Ltd. v Gowlland Towing Ltd. et al., 2005 BCCA 557 affg. in part 2004 BCSC 460 In this matter the towing company was found not liable for untying a camp barge that had been tied to a log boom. See the summary under Miscellaneous/Charters. Wharfs – Safe Berth – Tug and Tow – Damage to Barge – Bailment Mercury Launch & Tug Ltd. v. Texada Quarrying Ltd. 2006 FC 464 In this matter the towing company was held to be responsible for damage caused to its barge. See the summary under Miscellaneous/Other. Towage – Negligence – Benefit of Insurance – Betterment Rough Bay Enterprises Ltd. v. Budden et al., 2003 BCSC 1796 The Plaintiff, the purchaser of a barge, sued the Defendants for negligence and breach of contract in the towage of the barge. The Plaintiff purchased the barge from the Defendant Budden for $90,000, paying a $5,000 deposit together with an initial payment of $42,500. The Defendant Budden agreed to tow the barge from Port Alberni to Campbell River with his fishing vessel for an additional sum. The balance of the purchase price was to be paid on delivery. The Plaintiff arranged with its insurer to add the barge to its insurance policy. The towage commenced but due to mechanical difficulties was interrupted at Bamfield. Discussions were then entered into between Budden and the Koprino Defendants for the Koprino Defendants to complete the tow with the fishing vessel “Koprino”. The Koprino Defendants advised Budden that they would complete the tow on the condition that the owners of the barge provide insurance for all parties. Budden agreed to this condition but he failed to advise the Plaintiffs of the condition and the Plaintiffs, therefore, did not obtain insurance protecting the Koprino Defendants. The “Koprino” took the barge in tow from Bamfield. At the time of departure the weather forecasts included gale warnings. The barge capsized off Port Renfrew and was later towed to Victoria, where it was repaired and substantially upgraded. The Plaintiff did not pay Budden the balance of the purchase price. The issues in the case included: whether the Defendants were negligent; if so, whether the Plaintiff's claim was barred by its failure to obtain insurance coverage for the benefit of the Defendants; and if not, what damages were attributable to the Defendants' actions. The Court held that the Plaintiff did not prove that the Defendants were negligent in deciding to leave Bamfield given the prevailing weather conditions or in continuing with the tow. The Court held that the capsize of the barge was due to localized storm conditions off Port Renfrew and that the Defendants were not negligent in failing to anticipate this. The Court found that the barge capsized because it was unseaworthy due to rot in its bow and stern planking. Notwithstanding the findings that the Defendants were not negligent the Court considered the insurance and damages issues. The Court found that there was an agreement to insure for the benefit of the Koprino Defendants and, even though this agreement was entered into between Budden and the Koprino Defendants, the Court held that Budden was acting as agent for the Plaintiff. Consequently, the Plaintiff's subrogated insurance claim was barred as against the Koprino Defendants but not as against Budden. With respect to damages the Court held that the repair costs should be depreciated by 25% to take into account betterment. Collisions – Docks – Causation – Damages – Tug and Tow The Queen v The “Delta Pride” et al., 2003 FCT 11 This was an action for damage allegedly caused to a breakwater by the Defendant vessel while manoeuvring. The facts established that one of the tugs assisting the Defendant vessel made contact with the breakwater. The Defendants, the owners of the vessel, argued that they were not liable for any contact between the tug and the breakwater. The Court held that there is a general presumption that the tow is in the control of the tug and that this presumption had not been rebutted. Accordingly, the Court found that there was liability. However, the Court also found that the breakwater was in a deteriorated and weakened condition and that this was a contributing cause. In result, the damages were reduced to take into account the condition of the breakwater. Collision - Tug and Tow - Towage Conditions - Damages
Gravel
and Lake Services Ltd. v Bay Ocean Management Inc., 2001 FCT 468 This case arose out of an alleged collision between the “Lake Charles” and the tug “Robert John” in the Port of Thunder Bay. The Plaintiff, the owner of the “Robert John”, alleged that, when the tug and another tug were hooked up to the “Lake Charles” to assist her to berth, the “Lake Charles” negligently drifted into the “Robert John” and caused her to go aground. The Defendants denied there was a grounding and denied negligence. The Court found as a fact that there had been a grounding and further held that the parties were both partly at fault. Liability was apportioned 75% to the “Lake Charles” and 25% to the “Robert John”. The Plaintiff also claimed that its standard terms and conditions entitled it to contribution and indemnity from the Defendants. The Court held, however, that the towage contract was between the Plaintiff and the charterer of the vessel. The owners and managers of the “Lake Charles”were never a party to the agreement and were therefore not bound. On the issue of damages, the Court allowed damages for replacement of a rudder stock on the principle that “no deduction is made from the damages recoverable on account of the increased valued of the tug or the substitution of new for old materials”. The Court disallowed damages for steering gear repairs on the grounds that the damage to the gear resulted from delay in drydocking the vessel and not from the original grounding. The Court also disallowed a claim for re-drydocking to re-install the original propeller holding that this could be done at the next scheduled five year drydocking. Tug and Tow - Pilotage Fees Laurentian Pilotage Authority v Techno Navigation Ltee. (June 11, 1998) No.A-1027-96 (F.C.A.) The issue in this case was whether a tug and barge combination are exempt from the pilotage requirement imposed by the Laurentian Pilotage Authority Regulations passed pursuant to the Pilotage Act. At trial, the judge considered the regulations were "vague and imprecise" and held that both the tug and barge were exempt. On appeal, however, the Court of Appeal held that the trial judge had misread the regulations. The Court of Appeal agreed that the tug was exempt but held that the barge was subject to compulsory pilotage. The Court of Appeal further held that the Laurentian Pilotage Authority was entitled to take the dimensions of the tug into account when setting the pilotage charges for the barge. Towage Conditions - Limitation Clauses Primex Forest Products Ltd. v Harken Towing Co.,(July 9, 1997) Vancouver Registry No. A976013 (B.C.S.C.) This case arose out of a collision involving a log tow and a bridge. As a consequence of the collision the log tow broke apart and the Plaintiff was required to pay for salvage. The Plaintiff claimed these expenses from the Defendant tug owner who alleged that it was not liable by reason of a set of standard towing conditions or, alternatively, that it was entitled to rely upon a limitation provision in the conditions. The issue in the case was whether these conditions were valid. The Plaintiff argued that the various clauses within the conditions were inconsistent and ambiguous and therefore of no force and effect. The Court agreed with the Plaintiff that the exclusion clauses within the conditions were inconsistent and of no effect, however, the Court gave effect to the limitation provision. In result, the Defendant was entitled to limit its liability to $500. Towage Conditions - Limitation of Liability Meeker Log and Timber Ltd. et. al. v The "Sea Imp VIII" et. al. (May 30, 1996) Vancouver Registry CA019851 (B.C.C.A.) The British Columbia Court of Appeal rendered a short oral judgment from the bench dismissing an appeal and cross-appeal from the decision of Mr. Justice Peter Lowry, reported at 1 B.C.L.R. (3d) 320. The issues concerned the interpretation of standard towing conditions and limitation of liability pursuant to the Canada Shipping Act. The standard towing conditions were composed of multiple parts each of which contained a slightly different exclusion. They also incorporated parts of the Carriage of Goods by Water Act. The plaintiffs argued that the conditions when read as a whole, and with or without the incorporated provisions of the Carriage of Goods by Water Act, were so inconsistent and ambiguous that no effect could be given to them. The Trial Judge agreed and held the conditions were of no effect. On the limitation aspect of the case, the Trial Judge held that the tug owner was entitled to limit its liability as the cause of the accident was an error in navigation which the owner could not have guarded against. Both parties appealed. The Court of Appeal agreed with the Trial Judge's reasoning and dismissed both appeals. In result, the standard towing conditions were ruled invalid but the tug owner was entitled to limit its liability. Insurance - Towers Legal Liability Burrard Towing Co. v Reed Stenhouse Limited et.al.(April 23, 1996)Vancouver Registry No.CA019659 (B.C.C.A.) This case involved the interpretation of a Towers Legal Liability Policy. It is summarized under Marine Insurance. Liability - Collision - Duty to inspect tow Fraser River Pile & Dredge Ltd. v Empire Tug Boats Ltd.,(1995), 92 F.T.R. 26, (F.C.T.D.) The tug owner was held liable when the crane on a barge hit and damaged the Cambie Street bridge. The Court held the tug owner had a duty to inspect the tow, including the height of the crane, to ensure it was suitable for the intended voyage. The Court further considered the nature of the liability of a tug owner for an unmanned tow and questioned whether a tug could not be held liable in bailment for damage caused to an unmanned tow. Towage Conditions - Agreement to Insure St. Lawrence Cement Inc. v Wakeham & Sons Ltd.,(1995), 86 O.A.C. 182, (Ont.C.A.) This action involved a stranding of a barge due to the negligence of the tug. The towage contract specifically provided that the barge owner would be responsible for insurance on the barge and cargo and further provided that the towage was to be at the sole risk of the barge owner. At Trial, the Judge found that these provisions did not relieve the tug owner of liability for the loss. On appeal, however, the Court of Appeal held that the agreement to insure could have no purpose other than to relieve the tug owner of liability. It further held that the "sole risk" clause operated so as to relieve the tug owner from liability for negligence. In the course of its reasons the Ontario Court of Appeal suggested that the only basis upon which a tug owner could be held liable is in negligence and not as a bailee. ( Editors Note: Compare with Fraser River Pile & Dredge Ltd. v Empire Tug Boats Ltd. above.) Capsize of Tug - Duty of Tug Hamilton Marine & Engineering Ltd. v CSL Group Inc., (May 3, 1995), No.T-162-89, (F.C.T.D.) This matter involved the capsizing of a tug while it was assisting a larger vessel to undock. At issue in the case was the liability for the capsizing. The Federal Court Trial Division canvassed the rights and duties of tug and tow in such situations. It held that there is a presumption the tug is under the control of the tow and that the tow has a duty to ensure it does not cause damage to the tug. On the other hand, and notwithstanding that the tow is in command, a tug has the duty to look out for its own safety.
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