TOM WRONG Schooner, ashore at Port Burwell, Total loss, November 1866. Property loss $8,000
Casualty List for 1866---Buffalo
Commercial Advertiser, Feb. 26, 1867
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TOM WRONG Bark, ashore at Port Burwell, not yet off. Possible total loss $5,000 November 1866.
Canadian Vessel Casualty list for 1866
Toronto Globe, January 25, 1867
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TOM WRONG Bark of 115 Tons, owned at Port Rowan. Bound from Cleveland to Port Burwell, went ashore at Port Burwell, November 1866. Loss to ship $8,000 insurance $5,000
Marine Casualties on the Great Lakes
1863-1873 U. S. Coast Guard Report
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VESSEL ASHORE. - The bark TOM WRONG went ashore at Port Burwell a few days since, and is reported seriously damaged. Parties are engaged endeavoring to get her afloat. - Detroit Free Press, 23.
Buffalo Daily Courier
Monday, November 26, 1866
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U P P E R C A N A D A C O M M O N P L E A R E P O R T S.
Vol 17 by S. J. Van Koughnet, M. A.
Printed, Toronto by Henry Rowsell, 1868
Common Pleas, Easter Term, 30., Vic., 1867
SWEENEY v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE PORT BURWELL HARBOUR.
Harbour Company - Pier lights - Actual notice - Damages - Pleading.
In an action against a Harbour Company, charging that it was their duty to keep
a sufficient light upon the end of one of their piers, as they had been in the habit
of doing, to enable vessels to enter with safety, and that they had wrongfully
removed such light without giving sufficient public notice, by reason of which the
plaintiff's vessel, while endeavouring to enter said harbour, had been lost, HELD,
1. That the arbitrator, to whom the matters of fact had been referred, having found
that it was necessary that such a light should be maintained for the proper use of
the harbour by vessels entering in the night time, and that the immediate cause of
the loss was the absence of the light, the defendants were 'prima facie' guilty of a
negligence, by the consequences of which they were liable.
2. That even if the defendants would under certain circumstances be justifled in
closing their harbour to vessels and removing the light, they were bound to give
reasouahly sufficient notice of the same, and that the notice given was not of that
3. That in addition to the value of his vessel, the plaintiff was entitled to recover a
further sum expended by him in good faith, and with a reasonable expectation of
success, In attempting to raise the vessel, for the purpose of repairing her.
4. That an Insurance Company which had a risk upon the vessel, was not entitled to
recover, in the name of the plaintiff, moneys expended by them in a similar attempt.
'Semble', that a plea of not guilty put in issue the negligence only, and not the duty
Remarks upon the extent to which the possession of means of knowledge furnishes
evidence of actual knowledge.
The declaration alleged that the defendants, under the authority of an Act of Parliament, had constructed piers and wharves, and formed a harbour at Port Burwell, and placed and maintained a light on the end of one of the piers until the time thereinafter mentioned, and had levied tolls on all vessels entering the harbour; that it was the duty of the defendants to keep the said light, as they had been in the habit of doing, in order, that vessels seeking to enter the said harbour by night might do so with safety, which, without such light, they could not do; that previously to the 8th November, 1866, the defendants so kept and maintained such light, and that the plaintiff, in a voyage down Lake Erie, saw such light on the said night; that the defendants thereafter wrongfully and negligently ceased to keep and maintain such light, and wrongfully removed the same without giving any proper and sufficient public notice thereof, and without allowing a sufficient time to elapse before so doing, in order that the public, and amongst them the plaintiff', could obtain knowledge and notice thereof, by reason whereof the plaintiff's vessel, on her return-voyage up Lake Erie on the night of 10th November, before it was light, being compelled by stress of weather to seek a harbour of refuge, endeavoured to enter the said harbour, the plaintiff and his crew being ignorant of the removal of the said light, and when it was discovered that the said light had been so removed, it was impossible for the plaintiff or his said vessel to escape either running on the said piers or ashore, except by endeavouring to enter said harbour without the aid of such light, which, had the light not been removed, they could have done with ease and safety, but in consequence of such removal they were driven on one of the said piers and greatly damaged, and ran ashore and the vessel became a total wreck, and the plaintiff' thereby not only lost his said vessel, but incurred great labour and expense in endeavouring to save her, which it was found impossible to do.
PLEAS -1. Not guilty.
2. Denial of the plaintiff's property in the vessel.
3. That before the said time when, &c., the said harbour became and was obstructed by large accumulations of mud and sand, which the defendants were unable immediately to dredge out and remove, and the defendants thereupon determined to close and did close the said harbour, and ceased to take or levy tolls or dues upon vessels entering or coming into the said harbour; and the defendants gave further notice by an advertisement in the leading newspapers of Toronto, St. Thomas, Buffalo, and other places; and the plaintiff and
master of the said vessel had at and before the said time when, &c., actual notice and knowledge that the said harbour was closed as aforesaid.
The case was brought down for trial at the last Spring Assizes for the County of York, when a verdict was taken for the plaintiff, subject to the finding of an arbitrator, who was to examine the witnesses and report upon the facts and the amount of damages, when the Court was to direct whether a verdict should be entered for plaintiff or defendants, or a nonsuit, &c., &c.
The arbitrator afterwards made his award, by which he found as follows:
That the defendants were a Company incorporated by the Stat. of Canada 12th Victoria, cap. 160.
That the harbour was not a natural harbour, but had been formed by piers built by the company out from the shore southerly into Lake Erie, with a space of 95 feet between
them, which space had been deepened by dredging for the whole length of the piers, and was usually at high water 10 feet deep.
That the effect of storms was to fill up this space partially, the sand there forming the bottom of the lake being by the waves driven in between the piers, thus shoaling the water in the harbour, and that in consequence it was necessary from time to time for the company to dredge the bottom to preserve the necessary depth of water.
That there was during the season of navigation a light exhibited at Port Burwell in the night time, (not at the harhour but inland,) which was called the Government light, being furnished by the Government, and not being under the control of the defendants: that this light was a white light, and could be seen several miles out in the lake: that it served to mark from a distance the place of the harbour, but did not enable, and was not intended to enable, a vessel to enter the mouth of the harbour in the night time.
That there was during the season of navigation a red light exhibited in the night time by the defendants, at the southerly end of the westerly pier of their harbour, which red light could be seen for a distance of a mile and more on a clear night, when the light was burning clearly : that this light marked the entrance to the harbour, and enabled vessels in the night time to run between the piers, and was necessary to enable a vessel to enter with safety in the night time.
That on the fifth day of November, 1866, the water between the piers was 8 feet 6 inches deep, and that the water on the bar opposite the mouth of the harbour was then of the same depth, and on that day the directors of the defendants' company resolved to close their harbour on and from that day until further notice, to discontinue the receipt of tolls
in the harbour, and to remove the light from the Western pier.
That some of the larger vessels which traded to Port Burwell draw, when fully laden, from eight to over nine feet of water. That just before, and for some time before the said fifth of November, the weather had been stormy, and the defendants could not in consequence dredge their harbour that the directors of the company, in so resolving to close their harbour and remove the light, acted in good faith, from a fear of danger to vessels endeavouring to enter, from the shoalness of the water in the harbour, and from a fear of the responsibility which would attach to the company from any accident which might occur to vessels from that cause that it was dangerous for such large vessels as aforesaid to
attempt in stormy weather to enter the harbour when laden, with the depth of water which existed on the 5th of November as aforesaid.
That on the said fifth day of November the directors caused a printed notice to he posted up at Port Burwell, notifying the public that the harbour there was closed, the tolls taken off, and the lights removed, and that this notice, which was by mistake dated the 5th "October," was sent by the secretary of the company to the collectors of customs at the following places, Port Rowan, Port Dover, Port Bruce, Fort Erie, Hamilton, Toronto, Kingston, St. Catharines, Port Colborne, Dunnville, Windsor, Port Stanley, and Cobourg, all ports in Upper Canada, and to the collectors of customs at Erie, Buffalo, Cleveland, and Detroit, ports
in the United States, and also to a ship broker in Buffalo; and the said notice was at the said time also sent for publication to the St. Thomas Journal, and to the Toronto globe and Leader. That upon the mistake in the date being discovered, new printed notices, dated the 5th November, were mailed on the 6th November to the above-named persons and places, and also on the latter day to the collectors of customs of Port Ryerse, in Upper Canada, and to the collectors of customs at Asthabula and Oswego, ports in the United States. The said notice was published in the Globe and Leader aforesaid, on the 8th of November, 1866, and
and in the Cleveland Leader on the 9th November: that it was posted in the custom house in Buffalo the 9th November, and was published in a public newspaper in Buffalo on the same day.
That the said red light was exhibited by the servants of the defendants in the usual place, on the western pier, on the night commencing on the evening of the 5th and ending on the morning of the 6th November, and also on the night next following, commencing on the evening of the 6th and ending on the morning of the 7th : it was not exhibited on the evening of the 7th, nor afterwards, but was then and thenceforth discontinued by order of the defendants.
That the vessel in the declaration mentioned, being about 150 tons burden, was the plaintiff's vessel, and left the harbour of Port Stanley, being a port on Lake Erie lying westward of Port Burwell, on the night of the 6th and 7th November, on her trip from Port Stanley to Buffalo, and that on that trip she sailed past Port Burwell early on the morning of the 7th day of November before daylight, and the captain (being the plaintiff) and the crew of the said vessel on that occasion saw the lights at Port Burwell, that is, the Government light and the red light of the defendants: that the said vessel proceeded on her way to Buffalo, arriving there on the night of the 7th November, was there unloaded, and remained in that port until the afternoon of the 10th November, the captain and crew being during all the intervening period in Buffalo: that on the afternoon of the 10th the vessel left Buffalo, bound for Port Stanley light, drawing four feet six inches of water, having a wind from
the north-east: that she proeeeded on her voyage during the night of the 10th, the wind increasing during the night and shifting, first to the east, then round by the south to
south-sout-west : that as long as the vessel could hold her course she made for Port Stanley, and when headed off by the shifting of the wind to the southward and westward, she was steered for Port Bruce, a port lying easterly from Port Stanley, between the latter and Port Burwell, when the wind continuing to increase in violence, it was found impossible to make Port Bruce, and it became necessary to get the vessel on the other tack to prevent her being driven on shore: that shortly after, about the hour of four o'clock on the morning of the eleventh of November, it being then dark, the wlnd, which had been blowing from south-south-west, veered again to the south and rendered it impossible for the vessel to clear the land, and the captain therefore then bore away for Port Burwell: that at the time the vessel bore away for Port Burwell, she was between two and three miles distant from it to the southward and westward, the night not being clear, but then and until the vessel
struck, cloudy and rainy : that the Government light at Port Burwell was visible to the crew, but not the red light and that up to that time neither the captain, nor any officer, nor any of the crew of the vessel, had any actual notice or knowledge of the fact that the harbour had been closed, or that the light had been removed : that when the vessel approached near to the pier, the night being obscure, and it was first ascertained that no light was there, it was then too late to change the course of the vessel, and that in the endeavour to make the entrance of the harbour the vessel struck the western pier and was cast on the beach west of the harbour, and hence was lost : that the captain in his then position, not knowing of the removal of the light, took the most prudent course, and acted with skill and judgment
in endeavouring to make the port : that the immediate cause of the vessel striking against the pier was the absence of the defendants' light, and that had it been exhibited the vessel
could have made the harbour.
The arbitrator also made a special finding as to the damages, which it is unnecessary to give in detail.
J. H. Cameron, Q.C., and W. H. Burns, for the plaintiff, cited 14 & 15 Vic. oh. 157;
18 Vic. ch. 199; 23 Vic. ch. 103; 2 Wm. IV. ch. 15; 12 Vic. ch. 160; Jenkins v. Port
Burwell Harbour Co., Trin. Term, 2 & 3 Vic.; Webb v. Port Bruce H. C., 19 U. C. 614;
Dixon v. Bell, 5 M. & S. 198; Spark v. Heslop, 28 L. J. Q. B. 197; Hughes v. Quentin,
8 C. & P. 703; Randell v. Trimen, 18 C. B. 786; Richardson v. Dunn, 8 C. B. N. S. 655;
Cullen v. Wright, 8 E. & B. 647; McDonald v. Port Dover Co., 3 C. P. 402; Clark v.
Blything, 2 B. & C. 254.
M. C. Cameron, Q.C., and Moss, for the defendants, cited Raphael v. Bank of
England, 17 C. B. 161; Gibbs v. Trustees Liverpool Docks, 3 Ii. & N. 164;
Mersey Docks v. Penhallow, 7 H. & N. 329; Berryman v. P. B. H. Co., 24 U. C. R.
34; Walker v. Goe, 3 H. & N. 395; Thompson v. N. E. R. Co., 2 B. & S. 106;
Birkett v. Whitehaven Junction, 4 H. & M. 730; The Egyptian, 10 L.T.N.S. 910;
The Eolides, 3 Hagg. 367; The Columbus, 3 W. Rob. 158; The Clarence, 3 W. Rob.
283; The Pactolus, 1 Swab. A. R. 173; The Clyde, 1 Swab. A. R. 23.
RICHARDS, C. J., delivered the judgment of the Court.
The cases of Webb v. The Port Bruce harbour Company (19 U. C. 623); Berryrnan against these defendants (24 U. C. 31,) seem to establish the general liability on the part of these defendants to compensate the owners of vessels lost in consequence of the negligence of the defendants and their servants in keeping the harbour in proper order for the entry and safety of vessels seeking refuge there in.
The first question to be censidered is, whether, under ordinary circumstances, and the harbour open for traffic, they would be liable for loss of a vessel arising from not keeping
up the red light which was at the end of their harbour, the omission to keep up which in the way they had usually kept it up and which it was necessary should be kept up for the proper use of the harbour by vessels entering it in the night time, was the cause of such loss. I cannot doubt they would be liable. The arbitrator finds as a fact that such a light has always been kept up during the season of navigation, and is necessary to enable a vessel to enter the harbour with safety in the night time. The omission to keep up this light, as necessary to the entry into the harbour of vessels in the night time, as well as not having the proper depths of water, would constitute a neglect of duty quite as likely to produce danger and disaster to those intending to use the harbour, as any that could be suggested. The second section of defendants' act of incorporation authorizes them to construct a harbour which shall be accessible and fit, safe and commodious for the reception of such description of vessels as commonly navigate Lake Erie, and to erect and build all such needful moles, piers, wharves, buildings, and erections whatever, as shall be useful and proper for the protection of the harbour, and for the accommodation and convenience of vessels entering, lying, and unloading within the same.
The fourth section allows them to charge certatin tolls as soon as the harbour shall be so far completed as to be capaWe of receiving and sheltering vessels. If there were no light at this harbour to enable vessels to run in there during the night, it could hardly be said to be capable of receiving and sheltering vessels.
The observations made by the Judges in The Lancaster canal (Jo. v. Parnaby (11 A. & E. 233) would apply here. The action there was against the company for an injury arising from a barge sunk in the canal, which they had not removed. The defendants contended, as they had not put it there, they were not liable for any accidents arising from its being there; that their charter did not oblige them to remove it, though it permitted them to do so.
Chief Justice Tindal said: "The company opened the canal to the public upon the payment of tolls to the company, and the common law in such a case imposes a duty upon the proprietors to take reasonable care, so long as they keep it open for the public use of all who may choose to navigate it, that they may navigate it without danger to their lives or property."
The best evidence of the necessity of the light to the proper use of the harbour is the fact that it is always kept up when the harbour is open.
The duty of the defendants to keep the light burning during the night, as they have been accustomed to do; is averred very emhatically in the declaration.
The only plea which can be said to deny the duty alleged is the general issue, and that, I take it, only denies the negligence.
'Prima facie', then, it seems to me to be established by the pleadings and the facts found that the loss of the plaintiff's vessel arose from the negligence of the defendants in not keeping up the light on the end of their pier, as they had been accustomed to do.
The answer to that comes up under the third plea, "that before the time when, &c., their harbour became obstructed by a large accumulation of sand, which they were not able
immediately to dredge out and remove, and they thereupon determined to close, and did close, the harbour, and ceased to take or levy tolls or dues on vessels entering or coming
into the harbour, and they gave further notice by an advertisement in the leading newspapers of Toronto, St. Thomas, and Buffalo, and other places; and the plaintiff and master of the said vessel had at and before the said time when; &c., actual notice and knowledge that the said harbour was closed as aforesaid."
It is stated, in argument, that this course was taken in consequence of a suggestion by the Court in giving judgment in Berryman against these defendants. In referring to the sudden formation of bars and shoals near artificial works, which might cause obstructions to the harbour, the learned Chief Justice remarked: "Time must necessarily be allowed for the removal of an obstruction so created. If it renders the entrance to the harbour dangerous, every possible notification of the danger should be given, and every available precaution taken for the safety of vessels using it, and even then it is not diflicult to suggest cases where the harbour company would be liable; so that the most prudent course would be to close the harbour until repaired or restored to a proper condition." When making these observations, the learned Chief Justice no doubt had before him the judgment delivered in the Exchequer Chamber by Mr. Justice Coleridge, in Gibbs v. The Liverpool Docks, reported in 3 H & N. 177, from which I make the following extract:
"We think if they had a discretion, under the circumstances, to let the danger continue, they ought, as soon as they knew. of it, to have closed the dock to the public, and they had no right, with a knowledge of its dangerous coudition, to keep it open, and to invite the vessel in question into the peril which they knew it must encounter, by continuing to hold out to the public that any ship, on payment of the tolls to them, might enter and navigate the dock.
The case of The Lancaster Canal Compony v. Parnaby establishes that the defendants would have been responsible, under the circumstances, if they had had a beneficial interest
in the tolls that were received." The Judge then concludes: "The duty, in our opinion, is equally cast on those who have the receipt of the tolls and the possession and management of the dock vested in them, to forbear from keeping it open for the public use of every one who chooses to navigate it on payment of the tolls, when they know it cannot be navigated without danger, whether the tolls are used for a beneficial or for a fiduciary purpose, and for the consequences of this breach of duty we think they are responsible in an action."
From the very nature of the works themselves, the Liverpool Docks and the Lancaster Canal could be closed to the public whenever it was dangerous to navigate them, and there would be no necessity of giving notice to the public that they were not open for the mere purpose of preventing vessels from entering them, though in the event of their being so closed it might be well to notify the public, to prevent claims of another character arising than injury to vessels whilst using them. But here the harbour is, from its very construction, entirely open to be entered by vessels navigating the lake, and the only mode that their masters can reasonably be expected to know of the state of the harbour, and the intention of its owners with respect to its use, to be of any practical service, is by receiving notice.
Actual notice, if given, would of course be the best evidence that the masters of vessels had knowledge of the intention of the proprietore of the harbour to close it and remove the lights, and not charge tolls for its use. if actual knowledge is not brought home to the party claiming damage arising from want of such knowledge, then the defendants should set up such notice of the fact, or circumstances from user and other circumstances, from which it might be inferred that the party complaining of such want of knowledge really had it.
I take it the plea does not set up that the mere notice shown to have been given in this case relieved the defendants from all responsibility with reference to losses which might occur in the harbour. What is alleged as a substantive fact in the plea is tbat "the plaintiff and master of the vessel had at and before the said jime when, &c., actual notice that the said harbour was closed ;" and in argument it was contended that if the master had an opportunity of knowing the fact (and he had such opportunity from the notice having been put up in the custom house at Buffalo before he sailed from that port), then if he did not avail himself of such opportunity, it is the same as if he had had actual notice.
On this point the language of Chief Justice Tindal, in Bell v. Gardiner, (4 M. & G. p. 24,) is very pertinent, and I think will be generally assented to, as laying down the proper rule in such cases-(He is not, of course, using this language in relation to persons who have a peculiar duty cast upon them, which makes the knowledge of certain facts a part of their duty)-" We can in fact regard the possession of the means of knowledge only as affording a strong observation to a jury, to induce them to believe that the party had actual knowledge of the circumstances; but there is no conclusive rule of law that because a party has the means of knowledge, he has the knowledge itself. There may be cases where the existence of the means of knowledge might lead inevitably to the inference that the party had actual
knowledge." And in the same case Mr. Justice Cresswell said: " When the party has the means of knowledge, it may be evidence of actual knowledge; but no case has been decided that means of knowledge are equivalent, as a matter of law, to actual knowledge." Other and more recent cases seem to sustain the same view. See cases referred to in 7 H & N., at p. 337.
It is not now necessary to determine if giving notice on the 5th or 6th of November of the closing of the harbour, would release defendants from all kind of responsibility to ship owners, arising from accidents, even though they may have had actual notice of defendants' intention so to do. If notice is to be used for releasing defendants from responsibility, it must be reasonable notice in relation to the circumstances under which it is given. If, as a general rule, at certain seasons of the year the defendants' harbour cannot
be safely approached, and they cannot by any reasonable exercise of care and skill make it safe in that respect, and timely notice of that fact is given to all vessels frequenting the harbour and navigating that coast, the defendants might then possibly be relieved from liability; but giving a notice on the 5th of November that their harbour is to be thenceforth closed, which notice is not published or made known in many of the ports where vessels frequenting and passing that harbour may he then lying, until five or six days thereafter, and then perhaps only on the very day that the vessel suffering damage left port, would hardly be considered reasonable notice to such vessel, if not brought home to the knowledge of the master.
I take it for granted, on the finding of the arbitrator, that the loss occurred from the removal of the defendants' light from the harbour without notice to, the master and owner of the plaintifi's vessel, and not from any negligence or want of care or skill on the part of the finding and management of the vessel: that not having this knowledge of the fact of
the removal of the light, the master and, crew of plaintiff's vessel were not guilty of any want of reasonable care and skill in the management of the vessel in making for that harbour, which she might have entered but for the removal of the light.
Under the finding and facts, I think the plaintiff entitled to recover.
Then as to the question of damages. If the vessd had been wholly lost, there is no doubt that, if entitled to recover, plaintiff should have the full value of the vessel, which is found to be five thousand dollars.
I do not see on what principle the Insurance Company is entitled to recover in the name of the plaintiff for the money they chose to expend in endeavouring to raise and repair the vessel. No authority was referred to to sustain that view, and we have not met with any.
The arbitrator found that the plaintiff expended $672 in endeavouring to raise the vessel for the purpose of repairing her, and that the endeavours so made were made in good faith, and with a reasonable expectation of being able to raise her.
In Tindafl et al. v. Bell (H. M. & W. 228), which was an action for running down a ship, as to the liability of the defendant to pay certain charges named by the plaintiffs, to an observation of the defendants' counsel, that it was not a contract to indemnify, it was a case of tort, and the defendants were liable only for the necessary or natural consequences of the collision, Baron Parke answered, "The parties are in the same situation as if the defendant had entered into a contract not to do the act complained of: this is not a contract to indemnify." He also remarked: " The necessary consequences of the wrong are what a prudent man would reasonably do to repair the mischief. It is perhaps like the case
in insurance law, where the question is whether a prudent man would repair or sell the ship. When the mischief is done, the necessary consequences of it are what a reasonable man would do under similar circumstances when he had no other judgment but his own to resort to."
In Richardson v. Dunn (8 C. B. N. S. 655,) Byles, J., referred to the note to Vicars v. Wilcocks, (2 Smith's Leading Cases, 430,) where reference is made to actions of tort
unattended with circumstances of aggression, and where the principal as to damages is stated to be, a strict adherence to the rule that they must be the natural and proximate
consequences of the act, and that must be adhered, to.
here the plaintiff acted in good faith, and with reasonable expectation of saving the vesscl expended $672. The wreck was sold for $700. This is the only evidence we have of its value, and which, I take it, we must assume to have been the value when the accident occurred. This would be about $28 in excess of what plaintiff expended in endeavouring to
save the wreck. This, when deducted from the $5,000, leaves $4,972, which I think are the damages which are the natural and proximate causes of the wrong complained of.
I do not think in this matter we are obliged to take notice of any bargains or transactions between the plaintiff and the Insurance Company, of which these defendants had not any notce, or to which they were not called upon to give their assent.
Judgment for plaintiff.
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NOTE:- THE TOM WRONG was originally the propeller DICK TINTO, which was renamed as S. C. IVES, then lastly as the Canadian bark TOM WRONG.