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In the Supreme Court of Canada, Appeal from the Supreme Court of British Columbia between Arthur Sewell… Canada. Supreme Court 1882

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APPEAL
From the Supreme Court of British Columbia,
§tftwje*tt
ARTHUR SEWELL, ROBERT BOSWORTH, JOSEPH SMALL,
ALPHEUS P. BOYD, JAMES A. McLELLAN, SAMUEL A.
DINSMORE, THOMAS A. REED, HABBIET H. CUTTER and
ELIZABETH H CUTTER, Plaintiffs, Appellants,
AND
THE BRITISH COLUMBIA TOWING AND TRANSPORTATION COMPANY, Limited, and THE MOODYVILLE SAWMILL COMPANY, Limited, Defendants, Respondents.
Ottawa Agents:
THEODORE DAVIE,
Solicitor of Appellants.
DAVIE & POOLEY,
Solicitors of Respondents, the B. C. Towing Co.
DRAKE & JACKSON,
Solicitors of Respondents, the M. S. S. Co.
••." • \\-jo.: ' vVi
CCC&BURN^ WRIGHT,
*»°
For, Appellants.
:l iL; N.:;BENJAMJN,
For Respondents.
VICTOBIA:
DAILY  COLONIST  PRINT.
1882.  ^£>
r
IN DEX.
Short statement   	
Statement of claim	
Statement of defence (Towing Co.)
Statement of defence (M. S. Co.)..
Repl
Demurrer  ^   12
Proceedings at trial.
Evidence for Plaintiffs:—
Thrasher
Robert Bosworth, Master of
Herman Larsen, A. B	
Charles Davis	
John Devereux	
William Clements   21
George Budlin    23
Thomas Eric Peck	
Thomas Pamphlet .     ...
Hardey G. Young	
William McCullock	
James Mcintosh	
William Scott	
William Ettershank	
Herbert G. Lewis	
Arthur Finney	
Bobert Gray	
Evidence fob Defence :—
Edgar Crow Baker	
Benjamin Madigan	
Donald Urquhart	
A. McAllister	
Benjamin Madigarr(recalled)   	
Henry Saunders	
Andrew Bogers	
John Jagers	
Henry Smith	
John G. Barnston	
Wm. B. Clarke	
George Faulkner 	
James Christensen	
James Bamsey	
Jas. D. Warren	
Henry S. Mason  	
Notice to Mariners in " London Gazette "	
Pilotage certificate of witness Scott	
Judge's Charge, plaintiff's exceptions, and questions to and answers of
J
lury
Motion for judgment  ;	
Judgment for C. J. for defendants
Seasons therefor  	
Appeal to Provincial Court	
Judgment dismissing appeal...
Beasons therefor, Gray, J	
" "       Crease, J	
Begbie, C. J...
Appeal to Supreme Court	
Allowance of security	
Copy security	
Obdebs:—
Taschereau, J., and Ritchie
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Dry
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DO
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C. J., enlarging time for filing case diMML
-y&m I3ST THE
SUPREME COURT OF CANADA.
BETWEEN
ARTHUR SEWELL, ROBERT BOSWORTH, JOSEPH SMALL,
ALPHEUS P. BOYD, JAMES A. McLELLAN, SAMUEL A.
DINSMORE, THOMAS A. REED, HARRIET H. CUTTER and
ELIZABETH H CUTTER, Plaintiffs, Appellants,
AND
THE BRITISH COLUMBIA TOWING AND TRANSPORTATION COMPANY, Limited, and THE MOODYVILLE SAWMILL COMPANY, Limited,
Defendants, Respondents.
ON-APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA
This is an appeal to the Stipreme Court of Canada, from the judgment of the Supreme
Court of British Columbia, coram Begbie, C. J. and Crease, J., (Gray, J. dissenting)
dismissing the plaintiff's appeal from the judgment of the Chief Justice in favor of the respondents rendered in the cause on the 11th day of July, 1881:
PLEADINGS.
THE  PLEADINGS  ARE  AS   FOLLOW :
IN   THE   SUPREME   COURT   OF   BRITISH   COLUMBIA.
Between
AETHUR SEWELL, ROBEBT BOSWOBTH, JOSEPH SMALL,
ALPHEUS  P.   BOYD,   JAMES   A.   McLELLAN,   SAMUEL   A.
DLNSMORE,   THOMAS A. REED,   HARRIET H. CUTTER and
ELIZABETH H. CUTTER, Plaintiffs,
AND
THE BRITISH COLUMBIA TOWING AND TRANSPORTATION COMPANY, Limited, and THE MOODYVILLE SAWMILL COMPANY, Limited, Defendants.
STATEMENT OF CLAIM.
1. The plaintiffs are ship owners residing at Bath, Maine in the United States of
America.
2. The defendants "The British Columbia Towing and Transportation Company,
Limited," hereinafter called the Towing Compamy, are a joint stock company having their  registered office at Victoria, British Columbia; such company is carried on for the purpose of acquiring profits by the towing of ships in British Columbia waters, and own the
steam-tug " Beaver," hereinafter mentioned. The said Towing Company did so own the
"Beaver" on the 21st May, 1880, and from thence to the time of the loss of the
"Thrasher."
3. The defendants "The Moodyville Saw-Mill Company, Limited," hereinafter called
the " Saw-Mill Company " are a company incorporated under an Act of the British Columbia Parliament passed in 1878, intituled "An Act to incorporate the Moodyville Saw-Mill
Company, Limited," and own the steam-tug " Etta White" hereinafter mentioned, which
steam-tug is used and employed by the said Saw-Mill Company in towing ships for reward. 10
Such was the case at the time of the towing and loss of the " Thrasher " and at that time
Henry Smith was master of the "Etta White," appointed as such master by the Saw-Mill
Company.
4. Qn the 21st May, 1880, and from thence to the loss of tbe same the plaintiffs were
owners of the American ship "Thrasher" of the burthen of 1514 tons registered tonnage,
which said ship on the said 21st May, 1880, in command of the plaintiff Robert Bos-
worth arrived at Royal Roads in ballast bound on a voyage to Nanaimo there to load with
coal for San Francisco.
5. The "Thrasher" being in need of a tug-boat to tow her to Nanaimo, the master
of the said ship, the said Robert Bosworth, on the 22nd May, 1880, entered into a verbal 20
agreement with Henry Saunders as agent for and on behalf of the Towing Company for
the services of a tug-boat to tow the " Thrasher" to Nanaimo and so soon as she was
loaded to tow her to Cape Flattery, the said service was to be performed for the sum of
$600.
6. In pursuance of the said agreement the Towing Company towed the " Thrasher "
to Nanaimo with the said steam-tug the " Beaver."
7. The "Thrasher" finished loading at Nanaimo and was ready for sea about the 13th
July, 1880, and shortly before that time the said Robert Bosworth wrote to the said agent,
Henry Saunders, for a tug to tow the '' Thrasher " to Cape Flattery in pursuance of the
said contract mentioned in the 5th paragraph. The "Thrasher" was loaded with 2600 30
tons of coal and drew twenty-four feet of water and the master the said Robert Bosworth
asked that he might have the steam-tug " Alexander " if available. The said steam-tug
" Alexander " was^a very powerful boat and under the control of the Towing Company
and used bv them in their said towing business.
8. The said Henry Saunders wrote to the said Robert Bosworth stating that the
" Alexander " was not available but that in place of the " Alexander " he .would send the
two tug-boats " Pilot" and " Beaver."
9. Neither the "Pilot" nor the "Beaver" were ready to tow the "Thrasher" on the
13th July when she had completed loading and was ready for sea, but in the evening of
that day the said steamer "Etta White" came to Nanaimo and the said  master of the 40
"Etta White," the said Henry Smith, informed the master of the "Thrasher," the said Robert Bosworth, that he had been sent up to tow the " Thrasher" down.
10. The said Robert Bosworth objected to the "Thrasher" being towed by the "Etta
White" alone as he knew nothing about her power.  11. On the 14th July, 1880, the "Beaver" arrived at Nanaimo in charge of James
Christensen, the master of the said "Beaver" appointed by the Towing Company to that
position, and at about 7 o'clock p.m. took the hawser of the "Thrasher" and the "Etta
White" passed her hawser to the "Beaver" and the two tug-boats with the consent of
the said master of the "Thrasher" commenced to tow the "Thrasher" down the Straits of
Georgia towards Cape Flattery, the ' 'Etta White" being the foremost tu
12. The said masters of the steam-tugs "Etta White" and "Beaver" at the time of
the said towage service, as the said Robert Bosworth knew, were both licensed pilots for
the locality in which they were towing but they were engaged voluntarily by the owners
of the "Etta White" and "Beaver" respectively as masters of the said tugs.
13. No direction as to the course was given by the master of the "Thrasher" or by
any one on behalf of the tow to the tugs or either of them or to any on board other than a
general direction to tow to Cape Flattery. In fact there was no pilot on board the
"Thrasher" as the masters of the tugs knew; the master of the "Thrasher" Robert Bosworth and.all on board were strangers in the waters where the towing was taking place
(as the said masters of the tugs also knew) and did not attempt to direct the course for
the tugs to pursue but the course was left entirely to the tugs and those commanding
them.
14. The tugs did not tow the "Thrasher" in a safe course.
15. At the commencement of the towage the weather was clear and calm.    At about 20
ten o'clock p.m. on the said 14th July, the weather continuing the same and a bright starry
sky prevailing, without previous indication of danger, the tugs, through the negligence
carelessness and unskilfulness of  the masters and mariners of the same,  dragged the
"Thrasher" on a reef of rocks known as Gabiiola Reef situated in the Gulf of Georgia.
16. The value of the "Thrasher" at the time of the disaster was $75,000, and by reason of the premises she became and was a total wreck, and was and is completely lost to
the plaintiffs together with her cargo.
17. The plaintiffs have expended divers and large sums of money in fruitless endeavors to remove the ship from the said reef of rocks, have lost large profits which would
have accrued to them by sale of the cargo of the ship, and have been otherwise injured.      30
The plaintiffs claim the following relief:
1. 180,000 damages.
2. Such further relief as the nature of the case may require.
The plaintiffs propose that this action be tried at the town of Nanaimo.
Delivered the 4th day of March, A. D. 1881, by
THEODORE DAVIE,
Of Langley Street, Victoria,
Plaintiffs Solicitor.  IN THE SUPREME COURT OF BRITISH COLUMBIA
BET"W"EE3ST
ARTHUR SEWELL, ROBERT BOSWORTH, JOSEPH SMALL,
ALPHEUS P. BOYD, JAMES A. McLELLAN, SAMUEL A.
DINSMORE, THOMAS A. REED, HARRIET H. CUTTER and
ELIZABETH H CUTTER, Plaintiffs, Appellants,
and
THE BRITISH COLUMBIA TOWING AND TRANSPORTATION COMPANY, Limited, and THE MOODYVILLE SAWMILL COMPANY, Limited, 10
Defendants, Respondents.
STATEMENTS OF DEFENCE.
1. The defendants, "The British Columbia Towing and Transportation Company,
Limited," hereinafter called the said company, do not admit that the plaintiffs, or any, or
either of them are ship owners residing at Bath, Maine, in the United States of America,
as they have no means of knowing the truth of the plaintiffs allegation.
2. As to the allegations in paragraph three of the statement of claim the said company
do not admit them and are not concerned therewith.
3. The said company do not admit that the plaintiffs, or any, or either of them, were'
the owners of the American ship "Thrasher" on the 21st day of May, 1880, or at the time 20
of the loss of the said ship, or that the said ship was of the burthen of 1514 tons, or of
what burthen, as they have no means of knowing the truth of the allegations.
4. The said company deny the agreement of towage as alleged by the plaintiffs in the
fifth paragraph of their statement of claim, and say that the agreement made between
Captain Bosworth, the master of the said ship "Thrasher," and Henry Saunders, the,agent
of the said company, was as follows: "On or about the 22nd day of May, 1880, Robert
Bosworth, the master of the said ship, being desirous of proceeding to the port of Nanaimo, came to Victoria, British Columbia, and called upon one, Henry Saunders, the
agent of the said company, and then and there entered into an agreement with the said
company for the services of a steam tug to take the said sailing vessel from Royal Roads 30
to Departure Bay, Nanaimo, aforesaid, and from Departure Bay, aforesaid, to Race
Rocks or Cape Flattery after the loading of the said vessel for the sum of $500 if the said
ship was towed to Race Rocks, and $600 ij: towed to Cape Flattery. The said Henry Saunders was to send up the steam tug "Alexander" if hs could/obtain the services of the same
or otherwise to send another tug id assist the "Beaver"'in towing the said "Thrasher"
from Nanaimo when loaded. The said Robettj>Bbsworth was a stranger on the coast and
when the said agreement wae hVaoe the s#io! Henry Sauaders.Ja<ffoaged that the said master
should engage the services of a pilot *for the purpose 'of 'ilaMgstting his ship during the
performance of the agreement and the said Robert Bosworth agreed to do so.
5. In pursuance of the terms of the agreement the said Robert Bosworth took a pilot, v   ~      y  ^ | by name, Andrew Rogers, a duly licensed pilot of the port of Nanaimo on board his said
ship "Thrasher" at Victoria, and the said company towed the said "Thrasher" to Nanaimo
with the steam tug "Beaver."
6. The said company admit that the said Robert Bosworth did previously to the 13th
day of July, 1880, write to Henry Saunders to send the steam tug ' Alexander" to tow the
"Thrasher" to sea if she was available. The said company deny that the steam tug
"Alexander" was under their control or used by them in their towing business, but the
said company did from time to time make arrangements for the use of the said "Alexander" as business required.
7. The said company admit that the said Henry Saunders wrote to the said Robert 10
Bosworth stating that the "Alexander" was not available, but do not admit that he promised to send the tug boats "Pilot" and "Beaver" or any particular tugs, but he promised
to send two tugs.
8. The said company admit that the tug "Pilot" was not available to tow the said
"Thrasher" from Nanaimo on the 13th day of July, 1880, and in consequence thereof the
said Henry Saunders made arrangements with the owners of the "Etta White" to send
her over to Nanaimo to assist the "Beaver" in towing the said ship "Thrasher" out of
of Nanaimo.
9. On the 14th day of July, 1880, the steam tug "Beaver" arrived at Nanaimo in
charge of James Christensen, the master of the said "Beaver" appointed by the towing
company to that position; and at about seven p. m. the "Thrasher" started on her voyage
in tow of the said steam tugs "Etta White" and "Beaver," the "Etta White" taking the
lead; the said "Etta White" passed her hawser to the "Beaver" and the said "Beaver"
passed her hawser to the "Thrasher," but the master of the Said vessel did not in accordance with the terms of his agreement with the said Henry Saunders take the services of
a pilot to assist him in directing the course of the said vessel and steam tugs from the
port of Nanaimo to Cape Flattery as aforesaid, though one or more qualified pilots tendered their services to the said master just previously to his starting from Nanaimo in tow
of the said steam tugs as aforesaid.
10. At Nanaimo there is an organization of lawfully qualified pilots, one or more of 30
whom offered his services to the master of the said "Thrasher" before the vessel left the
port of Nanaimo, but the said master refused and declined to accept the services of the
said pilot (notwithstanding his agreement aforesaid with the said Henry Saunders) and
took upon himself the whole care and responsibility of navigating the said " Thrasher"
from Nanaimo to Cape Flattery and directing the course of the said tugs, and the company
allege that the said master of the said "Thrasher" was guilty of great negligence and carelessness in attempting to proceed from Nanaimo to Cape Flattery without the assistance
of a qualified pilot.
11. The said company deny that James Christensen,  the master of the  said tug
' 'Beaver" was at the time of the alleged accident a licensed pilot of the port of Nanaimo, 40
the locality in which the said ship "Thrasher" was being towed, and also deny that the
master of the "Etta White" was a licensed pilot; of these facts, the said Robert Bosworth
was well aware or if not aware could have become acquainted therewith  by simple
enquiry.  .12. The master of the "Beaver" was aware that there was no pilot on board the said
ship "Thrasher" at the time of commencing to tow from Nanaimo, as aforesaid, from the
fact that the master of the said ship "Thrasher" stood upon the poop of his said ship and
gave orders to the master of the said tug "Beaver;" and the said company deny that the
master of the said ship 'Thrasher" did not attempt to direct the course of the said tugs,
and that the course was left entirely to the tugs and those commanding them.
13. The said company deny the allegations of the plaintiffs in the fourteenth paragraph of their statement of claim, and say that the steam tug "Beaver" did tow the
"Thrasher" in a safe course.
14. The said company admit that at the commencement of the towage the weather 10
was clear and calm and coutinud fine and clear, but the said company denj that through
the negligence, carelessness and unskilfulness of the masters and mariners of the said
tugs, the said "Thrasher" was dragged on a reef of rocks known as Gabriola Reef situated in the Gulf of Georgia or any other known rock or reef. The tug "Beaver" was tow^
ing ahead of the said ship "Thrasher" with 100 fathoms of hawser, and the tug "Etta
White" was towing ahead of the said "Beaver" also with 100 fathoms of hawser, and the
said "Beaver" and "Etta White" having steered a correct course from Nanaimo through
the Fairway channel, rounded the lighthouse and then due east by compass past the Flat
Top Islands proceeded on their course to the northward of Gabriola Reef, then distant
half a mile and upwards. The tug "Etta White" then changed her course east south east, 20
the tug "Beaver" still continuing her easterly course, but the helm of the said ship
"Thrasher" was put to port and she was directed towards the Etta White instead of following the tug BeaArer, the steamer next to her; this brought the Beaver a point or a point
and a half on the port bow of the Thrasher, and in consequence the said ship Thrasher
struck against an unknown and sunken rock lying to the north of Gabriola Reef and distant more than half a mile from the beacon on Gabriola Reef, and which said rock is not
laid down on any authorized chart of the said coast; whereas if the said master had followed the course steered by the Beaver no such accident could have happened and the
said company are in no way to blame for the carelessness and want of skill of the master
of the said ship Thrasher which was the cause of the accident. 30
15. The said company do not admit that the value of the said ship Thrasher at the
time of the disaster was of the value of $75,000 or any other sum, as they have no means
at their disposal of knowing the value of the said vessel. They admit that she became a
total wreck but not through the unskilfulness, negligence or carelessness of the said
company.
16. The said company do not admit that the plaintiffs have expended divers and large
sums of money in fruitless endeavors to remove the said ship from the rocks, and the
said company deny that the plaintiffs lost large or any profits which would have accrued
to them by sale of the cargo of the ship Thrasher.
17. The master or officer in charge of the Thrasher was in fact in command of both
•tugs and ship, and was responsible for the course, direction and navigation of the said 40
tugs.
18. The said company further say that the said master of the Thrasher contributed
to the loss of the said vessel by his negligence in not taking a pilot in pursuance of the
terms of the agreement aforesaid, and that the plaintiffs cannot therefore recover against
the said company in this action.  19. The said company further say that the said master of the said ship Thrasher
caused the loss of the said vessel by his negligence in not following directly in the course
of the steam tug Beaver, and that therefore the plaintiffs cannot recover against the company in this action.
20. The said company further say that if they did tow the said ship Thrasher on to
any rock it was an unknown rock not laid down on any authorised chart, and that it was
an inevitable accident, and that therefore the plaintiffs cannot recover in this action.
21. The said company say that by the law of Canada which regulates and governs
the law of ships and shipping navigating Canadian waters that the owners of any ships
where any loss or damage is by reason of the improper navigation of such ship, as afore- 10
said, caused to any other ship or boat shall not be answerable in damages in respect of
loss or damage to ships, boats, goods, merchandize, or other things to an aggregate
amount exceeding $38.92 for each ton of the ship's registered tonnage, where such loss or
damage occurs without their actual fault or privity, and without in any way admitting
that they are responsible for the alleged loss of the said ship Thrasher, the said company
claim that the. amount of damages, if any, recoverable against the said company must be
limited to $38.92 per ton of the gross tonnage of the steam tug Beaver, and the said company further say that the gross tonnage of the said steam tug Beaver, without making any
deduction for engine room is 159.12 tons.
Delivered the 12th day of April, A. D. 1881.
CHAS. E. POOLEY,
Solicitor for B. C. T. and T. Co., Limited.
IN THE SUPREME COURT OF BRITISH COLUMBIA;
BETWEEN
ARTHUR SEWELL, ROBERT BOSWORTH, JOSEPH SMALL,
ALPHEUS P. BOYD, JAMES A. McLELLAN, SAMUEL A.
DINSMORE, THOMAS A. REED, HARRIET H. CUTTER and
ELIZABETH H CUTTER, Plaintiffs, Appellants,
AND
THE BRITISH COLUMBIA TOWING AND TRANSPORTA- 30
TION  COMPANY, Limited, and THE  MOODYVILLE SAWMILL COMPANY, Limited,
Defendants, Respondents.
STATEMENT   OF  DEFENCE   OF  THE   DEFENDANTS,   THE   MOODYVILLE
SAW-MILL COMPANY, LIMITED.
1. The defendants, "The Moodyville Saw-Mill Company, Limited," do not admit
that the plaintiffs or any of them were on the 21st of May, 1880, the owners of the American sailing ship Thrasher.  10
2. The defendants admit that the master of the said ship, Robert Bosworth, on the
22nd May, 1880, or at some other time to the defendants unknown entered into a contract
with Henry Saunders as agent for and on behalf of the Towing Company for the services of
a tug boat to tow the Thrasher to Nanaimo and when loaded to tow her to Cape Flattery
for $600, but the defendants say that the said Henry Saunders insisted on the said ship
Thrasher taking a pilot from Royal Roads to Nanaimo, and it was understood that when
loaded and ready for sea the said vessel would be under the charge of a pilot.
3. The defendant's tow boat Etta White being at Nanaimo on the 14th June, 1880,
offered her services to the said Robert Bosworth to tow his vessel from Nanaimo to Royal
Roads, but the said Robert Bosworth declined to engage the said Etta White, stating 10
that he had entered into a contract with Mr. Saunders, of Victoria, to tow him out, and
that he was waiting for a tug from him. The tug Beaver shortly afterwards arrived at
Nanaimo and before proceeding to take the Thrasher in tow the master of the Beaver
engaged the tug Etta White to assist him, and the defendants admit that when the Thrasher
was ready for sea the tug Beaver passed her hawser to the Thrasher, and the Etta White
passed her hawser to the Beaver and steamed ahead of the Beaver.
4. The defendants deny that the master of the tug Etta White was a licensed pilot,
as alleged, or was entitled or authorised to pilot vessels in Nanaimo Pilotage District, or
in any other pilotage district of British Columbia, and the defendants allege that at Nanaimo there is an organization of lawfully qualified pilots, one of whom offered his services 20
to the master of the Thrasher before that vessel left the port of Nanaimo, but the said
master refused and declined to accept the services of the said pilot, and did not in fact
take any pilot, although he had been advised not to sail without one, and his sailing without a pilot was contrary to the understanding mentioned in the second paragraph hereof.
The defendants submit that the master of the said Thrasher, by the fact of sailing from
Nanaimo without a pilot, was guilty of great negligence and carelessness and thereby contributed to the accident.
5. The defendants deny that the Thrasher was, through the carelessness and unskilfulness of the said defendants dragged against the reef known as Gabriola Reef, for these
defendants say that the tug Beaver was towing ahead of the said ship Thrasher with one 30
hundred fathoms of hawser and the tug Etta White was towing ahead of the said Beaver,
also with one hundred fathoms of hawser, and the Etta White having steered a correct
course from Nanaimo through the Fairway Channel rounded the lighthouse and then steered
due east by compass, proceeded on her course, passed the Flat Top Islands to the northward of Gabriola Reef then distant half a mile and upwards. She then changed her
course east south east, the Beaver still continuing her easterly and proper course, but the
Thrasher's helm was put to port and she was directed towards the Etta White, this
brought the Beaver a point or a point and a half on the port side of the Thrasher, and
in consequence of the Thrasher not following the tug next to her she, the Thrasher, struck
against an unknown and sunken rock lying to the north of Gabriola Reef and distant 40
more than half a mile from the beacon on Gabriola Reef, whereas if the said Robert Bosworth had followed the course steered by the Beaver no such accident could have happened, and the defendants submit to the court that they are in no way to blame for the
carelessness, negligence and want of skill and care of the master of the ship Thrasher so
steering as aforesaid, nor for the unknown dangers of the seas and navigation.  11
6. The defendants allege that the course taken by the Etta White was in accordance
with the sailing directions of the Vancouver Pilot, being the highest and lawful authority,
and was a proper course for such a voyage.
7. The defendants do not admit that the value of the Thrasher was $75,000, and are
unacquainted with her value, and they deny that she became a total wreck or that she
was completely lost to the plaintiffs.
8. The master of the Thrasher was in command of both tugs and ship, and during
the towage service gave orders to the tugs and to the steersman on board the Thrasher,
and the said tug Etta White obeyed all orders she received from the master of the
Thrasher or the Beaver, and the defendants submit that the alleged injury to the said 10
Thrasher was solely due to the negligence, carelessness and want of skill of the said
master.
9. The defendants further say by way of alternative defence that the rock on which
the Thrasher struck is not part of Gabriola Reef, as laid down on the official charts, but
is a detached rock not noticed or marked on any chart, lying six cables N. by E. distant
from the said reef, and the defendants allege that according to the sailing directions contained in Vancouver Island Pilot, the rock on which the Thrasher was wrecked, lies in
the course laid down in the sailing directions for clearing Gabriola Reef.
10. The defendants further submit that the master of the Thrasher, by his negligence,
contributed to the loss of the said vessel beyond the power of the defendants  to remedy, 20
and that the plaintiffs cannot therefore recover against the defendants in this action.
11. The defendants say that by the law of Canada which regulates and governs the
law of ships and shipping navigating Canadian waters that the owners of any ship (where
any loss or damages is by reason of the improper navigation of such ships, caused to any
other ship or boat) shall not be answerable in damages in respect of loss or damage to
ships, boats, goods, merchandize, or other things, to an aggregate amount exceeding
$38.92 for each ton of the ship's registered tonnage, where such loss or damage occurs
without their actual fault or privity, and without in any way admitting that they are responsible for the alleged loss of the Thrasher, the defendants claim that the said loss
alleged occurred without their actual fault or privity and that the amount of damages, if 30
any, to be recovered against the said defendants must be limited to $38.92 per ton of the
registered tonnage of the said tugs, and that the gross registered tonnage of the said tug
is 97.35 without any deduction for engine room.
Delivered this 11th of March, 1881.
ROBERT EDWIN JACKSON,
Solicitor for the Moodyville Company, Victoria.  IN THE SUPREME COURT OF BRITISH COLUMBIA.
BETWEEN
ARTHUR SEWELL, ROBERT BOSWORTH, JOSEPH SMALL,
ALPHEUS P. BOYD, JAMES A. McLELLAN, SAMUEL A.
DINSMORE, THOMAS A. REED, HARRIET H. CUTTER and
ELIZABETH H CUTTER, Plaintiffs,
and
THE BRITISH COLUMBIA TOWING AND TRANSPORTATION  COMPANY, Limited, and THE MOODYVILLE SAW- 10
MILL COMPANY, Limited, Defendants.
The plaintiffs join issue upon the respective statements of defence of both defendants.
The plaintiffs demur to so much of the statement of defence of the towing company
as is contained in paragraph twenty thereof, and to so much of the Saw-Mill Company's
statement of defence as is contained in paragraph eleven thereof, and say that the same
in each instance is bad in law on the following grounds:
1. That the limitation claimed does not apply to cases of negligent towage or to damages for breach of contract.
2. The amount of which it is claimed the liability should be limited, is not brought
into court and no offer is made to pay or secure the same. 20
3. The defence does not include interest on the limited amount since the loss of the
ship.
4. It is not shewn that the tugs are registered, and on other good and sufficient
grounds, sufficient in law to sustain this demurrer.
Delivered this 29th day of April, 1881, by
THEODORE DAVIE,
.Of Langley Street, Victoria, Plaintiff's Solicitor.
The. defendants duly joined in demurrer.
By a judge's order the issues of fact were directed to be tried first, and such trial took
place on the 26th, 27th and 28th days of June, 1881. 30
The evidence and proceedings at the trial were reported in short hand and the following is a synopsis of such evidence:
Robert Bosworth, duly sworn, (evidence taken on commission by judge's order)—I
was formerly master of the ship Thrasher; she belonged to Bath, State of Maine, U. S.;
she was an American Register; I produce certificate of register (marked A); this is a  18
second register made out in Baltimore; this is the last register. At the time of the loss
of the ship the owners were the same as in the register with the exception of two deceased.
The deceased were three, William C. Sewell, Edward Sewell, Charles Crooker. I had at
the time of the loss of the ship purchased the interest of Alice S. Cutter; with these four
exceptions the owners were the same as on the register; I bought Alice S. Cutter's share
for about ten thousand two hundred dollars; I paid about five thousand dollars down.
The ship was only insured to the extent of five thousand dollars on my interest for the
purpose of securing the balance of the purchase money. I arrived in Royal Roads 21st
May, 1880, about eleven p. M.; the ship anchored in Royal Roads; she was from San
Francisco bound to Nanaimo for coals. I anchored in Royal Roads for the purpose of 10
getting a tug to take the ship the balance of the way; next morning the 22nd I came to
Victoria; I went to Mr. Saunders, the agent of the tug boats in Victoria and made a verbal agreement; the agreement was to tow the ship to Nanaimo and after she was loaded
thence to Cape Flattery for six hundred dollars. Mr. Saunders gave me the tug Beaver to
tow up. I do not remember whether I informed him of the tonnage of my ship. I may
have done so. He said, in all probability the Alexander would be available when I was
ready to be towed to sea. On going up I engaged a pilot. I asked Mr. Sunders if it was
necessary to engage a pilot; he said as a general thing it was not customary to take one.
He said Captain Warren of the Beaver was a man they put great confidence in. He said
he thought as I was a stranger and it was possible I might break adrift that it 20
was advisable for me to take a pilot; I got to Nanaimo without any trouble, being
towed by the Beaver. We lay at Nanaimo about eight weeks getting loaded. Before I got ready for sea I wrote Mr. Saunders, I told him I was nearly ready for
sea and if the Alexander was available I insisted on having that boat; that after my long
detention in loading I did not care to have any further delay in having an inferior boat,
or to the above effect. I received an answer to this letter which I have lost. He gave me
to understand the Alexander was not available, but he would in place of sending the-
Alexander send me the two boats "Pilot" and "Beaver." I notified Mr. Saunders twenty-
four or forty-eight hours by telegraph before I was loaded. I finished loading I think on
Tuesday noon the 13th July. There was no boat ready until about five o'clock that even- 30=
ing. Instead of the Beaver or Pilot the Etta White came up. The Alexander was sent
the same day to take a ship out of Departure Bay. I saw the captain of the
Etta White; he said he had been sent up to tow me down; it was Captain Smith;
I objected to being towed down by his boat as it was not the boat which I had
been promised and I knew nothing about the power of his boat. He tried to persuade me to go and said he could do as well as either of the other two tugs by themselves
singly. The weather was fine and he thought there would be no trouble in taking the
ship down, but I still objected. Later in the evening he came on board my ship and
urged me still further to go; I told him I did not consider myself justified in risking such a
large amount of property with a boat as small as his was, and finally finished by saying I 40)
would not go until I had got the second boat; he thought they would be sending the
Beaver up and we would meet her on the way. I still refused to go. I kept Captain
Smith waiting twenty-four hours until the Beaver came up which she did in charge of
another ship. She took in her coal and as soon as she was ready she took my hawser.
Both the Captain of the Etta White and Captain Christensen of the Beaver came on board
my ship prior to this; Captain Smith expressed some annoyance at being detained so
long. Captain Christensen gave me to understand that as soon as he got his coal in he
was ready to proceed with the ship. Previous to this Captain Smith told me he had received a telegram from Mr. Saunders saying that the Beaver was on her way up to take  14
the ship in tow with the Etta White. After the Beaver had taken my hawser the Etta
White passed her hawser to the Beaver; we started, the Etta White being in the lead; I
think we started about 7 o'clock P. M. on the 14th July. The weather was fine and no
wind and good daylight at the time; the sky was clear; I had no pilot; there was no conversation between myself, the captain's of the tugs, or any one on board them about a
pilot. I had my full complement of a crew except carpenter; I had sixteen men besides
officers: two officers, 1st and 2nd mate, cook and steward, twenty-one including myself.
The tUgs took the ship directly out of the harbor by Light House Island; I set
a regular sea watch about eight o'clock, an officer of the deck and eight men.
I told the man at the wheel to steer directly after the steam tugs; no course by com- 10
pass was given. We proceeded alright till somewhere about ten o'clock, the weather
continuing the same, night clear and starlight, what is generally considered here a remarkably fine night; it was perfectly calm, hardly a ripple; the ship having been steered
and still steering directly after the steam tugs, without any warning whatever struck with
a heavy crash which shook her from stem to stern on what is called Gabriola Reef; I had
just gone below probably gone below ten minutes. I immediately rushed on deck and
forward onto the top-gallant forecastle. I observed that the ship had risen out of the
water forward to a considerable extent and was hard and fast. The Etta WThite was
some distance ahead having parted her hawser, the Beaver was still towing; I sounded
with the lead forward and found sixteen or nineteen feet of water; I hailed the Beaver and 20
at the same time gave orders to sound the pumps. I asked the captain where he had got
the ship to. He replied that she was on Gabriola; I asked him how he got her there; he
said he or they had hauled to too quick. I asked him what he thought of doing. He suggested getting out a hawser aft which was immediately done, but continually sounding
and using the pumps with all hands I found the water was gaining so rapidly that I
thought it .unsafe to tow her off the rock into deep water. I felt certain that if she were
towed off the rock she would sink. I kept all hands at the pumps until I found it was
useless then gave orders to shift the valuables from aft to forward. We had two pumps
going. Capt. Smith came alongside in the Etta White; I asked him if he could account
for the ship getting there; he said no he could not; at the time I ordered the valuables 30
forward the ship was going down rapidly; I then proposed to Captain Smith to take me
to Nanaimo as I wanted to report the ship on the reef to my owners and see if I could get
some assistance. I went to Nanaimo in the Etta White; the Beaver stayed by the ship; I
hunted up Mr. Bate, the agent of the Vancouver Coal Company and notified him, and
Bate, and Capt. Johnson of the Belvidere returned to the ship. We got back to the ship
about four o'clock in the morning. The ship had sunk down on the bottom and when the
tide came in again it flowed so as to cover the entire after end of her. Plan of ship as she appeared marked B. produced: at high water (1) at low water (2); it was about low water when
I got back to the ship; at that time the water was flowing over the starboard rail; she had a
strong list to starboard and rested heavily on her starboard Bilge; when I got back I had about 40
made up my mind the ship would be a total loss; Capt. Johnson was with me and this was
his opinion also; I set my people to work unbending sails, <fec, and saving stuff from the
wreck which I placed on board the Beaver; about noon the steamer Victoria came rap and,
Capt. Heyward came alongside in his boat; he was also of opinion that the ship could not
be saved; the rest of the day I spent in saving what I could; towards night I started in .
the Etta White to go to Nanaimo; on the way I met Mr. Peck, the receiver of wrecks; he
volunteered to assist; we went to Nanaimo together, got a barge from the Douglas and
assistance from the ships, I mean men; we returned that night to the wreck; arrived early
in the morning and went to work wrecking the ship, saving what we could; about noon HRRi
am 15
that day I started for Victoria, being of opinion that the ship might yet be saved; at this
time the starboard rigging was slackened up from which I feared the starboard bilge was
badly strained, in which case there was very little hope of saving the ship; it had been so
almost from the first; I was in hopes, however, that the bilge was not badly strained; I
was in hopes that by getting assistance from the navy, divers and powerful pumps, I
would be able to use the pumps at low tide so effectually as to enable me to control the
water before the rising of the tide and so the ship would float with the tide, as the tides
at that time were on the increase. I called on the American Consul with Messrs. Rithet
and Peck and proceeded with them to the Admiral's house and solicited his aid. The
Admiral sent up the gun vessel Rocket with four marine divers and steam pump; I also 10
employed a Cameron steam pump to make this aid more efficient; the engineer of the
Etta White engaged the pump and I paid for it. After some short delay the Rocket and
all these materials arrived at the scene of the wreck; after the arrival of the Rocket I went
on board to consult the captain of the Rocket; he said the work he was going to do on
the ship he wanted to have the sole control of the work himself; the work commenced
about the 19th or 20th of July; I don't vouch for the accuracy of the dates in the log; the
plans of the captain of the Rocket for going to work to save the vessel coincided with
mine; we commenced in the first place with sending the divers down to make an examination; their report was that they were not able to tell much about the starboard bilge
where the ship rested so heavily; as far as the damage forward they thought they could 20
patch up the damage there if that was the only damage we could succeed in pumping her
out. They patched it up with lead, canvass, and felt, and material I had purchased in
Victoria for this purpose. We got the pumps in order, to work, both the Cameron pump
and the navy pump. We set gangs to work shovelling out coal forward at same time; the
first day's work was ineffectual; the second day we closed up the after hatch and we closed
up the after scuttle in which we had the hose the previous day, leaving the after scuttle
water tight with room for the hose to go down so that we could pump there after the
water had gone over the hatch. The result was we could not perceive any gain on the
water. We pumped from about seven until at noon when the pamps were submerged
and we could not work any longer. This same day we had both the main pumps rigged 30
and working with all hands we could get. The third day we worked as hard as we could
but came to the conclusion that the appliances were not sufficient. Captain Smith during
the third day said it was no use and my friends considered I was throwing away my time
by working any further. The divers went down each day in succession and stopped up
the hole. • They reported they had done all they could but had not succeeded in stopping
the leak forward satisfactorily as they expected to at first. I concluded that the only
thing for me to do was to dispose of the wreck to the best advantage which was subsequently done; she realized, ship and cargo, $520. The value of the gear saved, that is
what it brought, was about thirty-four hundred dollars ($3400) at auction sale and private
sale. The expenses of trying to save the ship amounted to about fourteen hundred dollars ($1400.. The value of the ship at the time of her loss was worth eighty thousand
dollars ($80,000). She was built in 1876; her cost in building exceeded eighty thousand
dollars. Her tonnage was 1512 and her value $55 per ton, at which rate I bought in her.
The particulars in the certificate of register are correct; log produced of ship Thrasher
marked C. William C. Sewell deceased was the father of Arthur and Edward Sewell who
who were brothers. Robt. Boswobth.
[Witness]        Henry S. Mason.
Herman Larsen, sworn.—I am an able seaman; I was employed on board the ship
Thrasher; I remember when the Thrasher left Nanaimo in tow of the two steamers: when WW*
RM 16
we started it was fine clear weather, about seven o'clock P. m. I went to the wheel at
eight o'clock* the watch was then set; my orders were to keep after the steamers; I had
been at the wheel about an hour and a half before we struck. The ship struck and the
captain went forward on the top-gallant forecastle he asked the steamer where he was taking
us to, but I was that far back I could not hear the answer. The captain was below at
the time the ship struck; he had been below about ten minutes or a quarter of an hour;
before that he had been on deck from the time we left Nanaimo. I stayed at the wheel;
we got out a hawser aft and all hands to the pump. The water increased. The Beaver
endeavored to tow the ship astern but did not move her; she was hard and fast; they still
went on pumping; when they saw the water was gaining they stopped towing astern. I
heaid the captain and second mate say that if they towed her off she would sink in deep
water. The crew were set to work carrying stuff out of the cabin forward. We were a
long while at the pumps, but I cannot say how long. The captain went off to Nanaimo
in the Etta White; all hands stopped on board- The water continued to rise over the
ship. The captain returned at daylight the following morning. The stern of the ship was
then under water; she laid over to starboard like No. 2 in the plan B., after the stern of
the ship was under water we commenced taking our clothes on the steamer. As soon as
the captain returned, at his orders, we unbent the sails and tried to save all we could on
board the ship. The weather was the same as when we started when the ship struck. It
was not dark at the time the ship struck. Hebman Laesen.
Fbiday, 29th Oct., 1880.
Herman Larsen, cross-examined by Mr. Pooley.—I was placed at the wheel when the
watch was set at eight o'clock in the evening on which the ship Thrasher was being towed
by the tugs Beaver and Etta White. The mate set the watch; I suppose he got orders
from the captain. Young, the second mate, was officer of the watch; the first mate set
the watch. The name of the first mate is Carter. There was a lookout placed forward
in the vessel, his name was Albert Oldberg; when I was placed at the wheel there was no
particular course given me to steer. The captain directed me to steer after the Etta
White because the Beaver was an old boat and did not steer very well. I followed the
instructions given by the captain and steered after the Etta White. An hour and a half
after the watch was set, at eight o'clock, the Thrasher struck. About an hour and a
quarter after the watch was set the captain remained on deck. He then went down in
the cabin, It was a fine clear night. I did not see any haze hanging along the shore; we
could see the land all along. I could see the tow boats very distinctly. The tow boats
had lights burning, both clear lights. When the ship struck the Etta White was right
ahead. The Beaver was on the port side of the Etta White when the Thrasher struck.
The Beaver was about a point on the port side of the Thrasher when the Thrasher struck.
I had noticed a change in the course of the Etta White just before the Thrasher struck.
My board is paid by Captain Bosworth while I am here. I want the captain to pay me
a dollar a day. Capt. Bosworth has not promised me any employment. I have not been
promised any money at all by Capt. Bosworth. I came here from San Francisco; the
captain brought me up and paid all my expenses and the captain promised to pay me a
dollar a day from the time I left San Francisco till the time I leave here. I don't think
I could point out on the chart where the vessel struck.
[Witness]       Henry S. Mason. Hebman Laesen.
Captain Bosworth, cross-examined by Mr. Jackson.—I entered into the contract for
the towage with Henry Saunders; I did not sign any agreement for towage. I had never
been to Nanaimo or Departure Bay before I went with the Thrasher.    I don't know the  17
pilot regulations at Nanaimo; Nanaimo Pilotage By-Laws, 1879, put in marked D. I do
not remember having seen this book. I paid inward pilotage to Nanaimo and half pilotage out; if I remember right I did not engage a pilot to take me from Nanaimo. Sometime before I sailed Mr. Rogers and Mr. Urquart asked me if I intended to take a pilot.
I answered I did not think it necessary as I was to have the services of two tug boats andl
other vessels did not take them. I think the half pilotage was included in the collectors
charges. I did not pay half pilotage to Sabiston; I knew that half pilotage was paid; I
knew I paid half pilotage because I did not take a pilot. The reason I did not take a
pilot to Victoria was to save half pilotage. I did not enquire how much I saved. I made
enquiries as to the captains of the tugs and they were represented to me as efficient men. 10
I made the enquiry of Capt. Smith and in particular of Capt. Johnson as to Capt. Smith's
capabilities. I was informed that Capt. Christensen had piloted the ship B. P. Cheeney
from Victoria to Departure Bay. The customary way of paying pilotage is by the foot.
I am under the impression I saw the amount that was charged for half pilotage, but on
my oath I could not say that I saw it. I don't know what I paid or agreed to pay Rogers
for taking the ship up. Capt. Johnson of the Belvidere told me that he had known Capt.
Smith for some time and that he had towed his ship safely. My ship drew about twelve
or thirteen feet going up to Nanaimo; she drew 23 feet 6 inches coming down, and I knew
I should save half pilotage by not taking a pilot whatever the pilotage might be.
Question.—When you first met the captain of the Etta White in Nanaimo did he not 20
say to you that he had been sent to help to tow you down ?   Answer.—I don't remember
his saying so.
Question—And did he not at the time alluded to in the last question produce to you
a telegram which whilst in conversation with you and Mr. Peck, who introduced him to
you, he had then received from Mr. Saunders stating: "Beaver will leave at seven this
evening with Henry Buck, wait till she arrives to-morrow morning. H.  Saunders."
Answer.—I don't remember the telegram. Telegram, 13th July, 1880, put in marked
E. I did not know where the Etta White had come from. I was informed in Nanaimo
that Capt. Smith had come up to tow me down. I gave no directions to the tugs before
leaving the wharf. I gave no instructions to either tug to proceed; they settled that 30
among themselves. When we were ready to leave I did not cast the lines off and say go
ahead nor did an officer say so. I merely cast off. I had about ninety fathoms of hawser
between the Beaver and the ship. I do not know the length of the hawser between the
Etta White and the Beaver. I directed my course after the steam boats. I told the
helmsman to steer after the tug boats. I recognize Benjamin Madigan, the engineer of
the Beaver; I know Capt. Christensen by sight; I don't think I should know Jagers,
mate of the Beaver; I know Capt, Johnson.
Question.—You recollect stating in presence of Madigan, Christensen, Jagers and
Johnson on board the Beaver, at or about two o'clock on the day after the accident
occurred, that you ordered the nelmsman to steer for the Etta White ? 40
Answer.—I do not remember; I was in an excited state of mind. I swear I did not
say it. I looked over the chart with Capt. Smith in a general way. There was nothing
said about courses.
Question.—Do you not know that even if you had a pilot on board you would not be
justified in allowing the pilot to run your vessel into palpable danger ?  18
Answer.—Of course.    I should object if I was running into imminent danger.
I gave Capt. Christensen a cheque for the amount of the towage; it was a cash order;
I suppose it was made payable to the tug boat company. I am not certain whether it
was not payable to Mr. Saunders; I think it was likely to have been payable to Mr.
Saunders as he was the agent and the person with whom I entered into the contract with
and the only person I knew. The amount of the draft was $600, I think. The hands
were long enough engaged at the pumps to convince me they were of no avail. All hands
pumped for a short time; it was more than five, I could not say it was more than ten
minutes. I don't know whether I gave the order to rig the pumps before I went on board
the Etta White or not. I think I did give it; but I had sounded the pumps before and 10
knew how much water she was making. I cannot say how long I remained on my vessel
after I came off the Etta White. After I became convinced the ship was bound to go
down where she was I left for Nanaimo on the Etta White. I can't say how long it was
after the accident before I left in the Etta White, but there was (5) five feet of water in
the hold and had been some time before I left, and gaining rapidly. I don't know what
time it was that we started for Nanaimo. I returned to the wreck about daylight, about
four o'clock. When I returned the ship was sunk on the bottom. The water was flowing
over the deck on the starboard side. The water had flowed in so much that I could not
get into my room; my room was on the starboard side. Telegram marked F, produced
17th July, 1880:1 received this telegram from the agents of the owners. I received no 20
other telegram from owners in regard to not spending money about saving the vessel. I
have not, nor have any of the former owners any interest in the ship since the sale. The
contract for towage was all in one. It is not paid. The check for $600 was given back
to me.    I asked Captain Christensen where it was and he gave it back to me.
[Witness]        Henry S. Mason. Robt. Boswoeth.
Herman Larsen, re-examined by Mr. Davie.—I remember stating yesterday that my
orders were to keep after the steamers, but I recollect the captain saying not to'pay much
attention to the old Beaver, but to keep after the Etta White. (He then asked the captain
if he did not say so). The change which I noticed in the course of the Etta White was
about three quarters of an hour before the ship struck. There was no change in the 30
course of the Etta White within three-quarters of an hour, nor in the course of the
Beaver. Heeman Laesen.
Capt. Bosworth, re-examined.—At the time of the accident the ship was lying in a
bed of kelp for nearly one hundred yards outside and nearly twice as far inside. After
the accident I kept continually sounding the pumps; I kept sounding as often as I could
get the rod dry and see the marks. The fact of a ship having been ashore and repaired
she always carries the name of a ship ashore and is detrimental to the sale of her and in
getting freight. I considered the ship was irretrevably damaged whether she was got off
the" rock or not, that is for a grain ship or for carrying valuable or damageable cargo.
Robt. Boswoeth. 40
Charles Davis, master of barque Henry Buck, in July, 1880, was towed to Nanaimo
by the Beaver; remember when Thrasher was towed out of Nanaimo by the tugs Etta
White and Beaver; weather fine; nearly full moon; I suppose Bosworth a good navigator
as he has been in command of a vessel for some years and witness understands that he
still has command of another ship. Christensen in the Beaver towed witness down; took
no pilot; thought I was capable of taking charge of my  own vessel myself; I have never  19
taken a pilot in these waters; presume it is not usual to do so perhaps because we are so
used to the coast waters; touched a rock whilst being towed down on this occasion by the
Beaver, in Baynes Sound.
Cross-examined.—I have been on the coast a considerable time and have sailed
in and out of Nanaimo three or four times; when I take a tug down I look after the course
and see where I am going to; I generally let the steamer take its own course and I have
never yet found it necessary to raise any interference with the steamer, but I keep my
eye on the steamer and see where she is going all the time. If I thought the steamer was
going a course I did not approve of should probable endeavor to stop her. I don't think
I should signal her by shearing my vessel one side or the other. I suppose one of the 10
men on the steamer would be astern looking out. The usual way is by hailing or sounding a trumpet or something of that kind. This is the contract which I signed when I
got on the rock in Baynes Sound.    (Contract put in evidence):
"TOWAGE AGREEMENT."
"Henry Saunders, Agent, Johnson Street, Victoria,B. C."
" This agreement made at Victoria, B. C-, this 13th July, 1880, between the undersigned as agent for the tug boat Beaver of the one part and Captain C. Davis, master
and agent for the ship, or vessel, called the barque Henry Buck of the other part. Wit-
nesseth, That the said tug boat has engaged to tow the said vessel from Royal Roads
to Nanaimo and back for the sum of three hundred dollars and that the master of said 20
vessel agrees to pay the same in cash for said towage service. This agreement further
witnesseth that the master of said vessel agrees to assume all responsibility in respect of
the strength and sufficiency of hawser used, whether furnished by said vessel or said tug
boat, and that the tug boat and owners are not to be held responsible for the piloting of
the said vessel while in tow of said tug boat, the latter being regarded as subject to the
orders of the pilot or other duly authorised officer in charge of said vessel while fulfilling
this agreement. In the event of the tug boat above named being prevented by accident,
or other unavoidable cause, from completing this agreement, her owners or agents shall
provide another steamer capable of towing said vessel." Chas. Davis.
Capt. John Devereaux—Is a master mariner and acquainted with Straits of Georgia; 30
is master of Dominion government steamer Sir Jas. Douglas; points out on chart proper
course for clearing Gabriola Reef after passing Entrance Island. The directions are given
in the sailing directions so as to clear the reefs; you are to keep Notch Hill open on Berry
Point and this carries a mile to the northward of the reef. If you go inside of that line you
do not know, sometimes the rock is above water, sometimes the rock is covered at half tide;
another way shewn in the sailing directions of clearing the reef is by keeping Portier Pass
just open or touching on the south east or quarter east bearing and that course clears the
reef more than a mile, vide sailing directions, page 112. (Note.—The chart is put in
and the sailing directions compiled under surveys made by authority of the Admiralty
and which contain the notes from which the chart is drawn: sailing directions form part of 40
this case.) Witness continued: Is well acquainted with rock where Thra-her is stranded.
In opinion of witness it is doubtful if tug towing a ship according to sailing directions
could have landed her there. In my opinion directions have not been followed; it is a
doubtful question of course. If they had followed the course of the chart they could not
have landed there unless there had been a very strong ebb tide to carry them out; if there
were a strong ebb tide it would have been the duty of the tug to keep a couple of points  20
more outside until they'had passed the reef; the stronger the ebb tide the further out the
tugs should have kept If an ebb tide were running I should keep at least two miles off
the rock, steering straight out to the eastward; there would not be the slightest difficulty
by taking cross bearings in ascertaining exactly where you were and whether a mile or
two miles from the rock provided land is in sight. If the night was clear the land must
have been visible all the way down from Entrance Island and all the points from which
bearings were to be taken must have been visible. Previous to wreck of Thrasher took
soundings all around the rock on which the Thrasher lies and stood on the rock. From
the point of the rock you can get soundings at 900 feet you will get eleven fathoms
and until you get eleven fathoms from this point you get three, five, six, seven and from 10
that down to eleven fathoms; within 600 feet to the seaward of where the ship lies stranded
you would get six fathoms or 36 feet. (To the Judge.—600 feet to a cable, 10 cables to
a nautical mile. The white dotted space on the margin of the chart shews the subdivisions into cables. 300 feet to the seaward of the ship might be somewhere from three
to five fathoms. In one direction the descent of the rock is perfectly gradual but
due north and north west it is quite abrupt.) It would not be prudent navigation for a tug to tow a ship inside the line on the chart marked "see view," particularly at night. Question.—How much past the Thrasher Rock or how much past the
Gabriola Reef would you go before changing your course from the eastward ? A.—If I
was sure I was past it I would lay it about a mile to the eastward of it, not before. I 20
should certainly make quite certain I was past the reef before changing my course. Q.—
How would you ascertain you were past it ? A.—If I could see the bearings of the land
I would go by that; if I could not see that I would go by Fraser River light. There is no
difficulty on a clear night in ascertaining your right course by land marks. There is an
error in the chart as regards the position of Gabriola Reef; it is not exactly correct; there
has been an error in transferring the field notes or surveying notes. The notes are perfectly correct. The reef is shewn on the chart to be about 800 feet further inside
than the notes shew it to be. There are four rocks marked on that chart that are above
water. Those four rocks are in existence. One rock marked on the chart is not
in existence. The notes I refer to are the sailing directions. According to the true 30
position of the Thrasher rock it is at least a nautical mile inside of the "see view." If
the sailing directions are followed the true position of the Thrasher rock is denoted and
there is sufficient there given to avoid the rock. The sailing directions lead you one
mile clear of the rock; it could not be otherwise unless there was a strong current and
tide and you did not guard against it. Since the compilation of the sailing directions no>
new directions have been given for clearing the reefs, but I hear there is such a notice-
in the Custom House. Entrance Island light is visible in clear weather 16 miles, 14 anyway. I believe the Thrasher rock is one of the four indicated on the chart as forming
Gabriola reef but it is out of place. Question.— Is the true position of the Thrasher
rock generally known among navigators in that location ? A.—The position of that rock 40
is generally known to every pilot in the country. Perhaps they have never been standing
on it the same as I have myself but they know it from the position of the kelp around it
and before the beacon was put there they never assumed to go there within the distance
they go now. They gave it a wide berth, although the beacon is misplaced. The beacon
is more than half a mile from this place and there is no light on it. I should go far
enough from the beacon not to see it at all. You could not see the beacon on a dark
night. In the month of July there are four or five acres of kelp round the vicinity of
where the Thrasher is; kelp is an indication of danger. It is not prudent navigation to
go insi.de of kelp unless there is a very light draft of water.    The reef upon which the mmmmmummmmmwmv* 21
Thrasher lies is a continuation of Gabriola reef. There are several narrow passages between the rocks forming the same. The entire reef is about three-quarters of a mile in
extent. The beacon is never used by mariners as a guide; every one knows it is out of
place.
Cross-examined—Knew the beacon was out of place the year it was put there.    I
found it out when I saw it, besides I was told.    I verbally so reported it to Capt. Cooper
the agent of marine.    This was in 1876.    The beacon is on the inside rock instead of the
outside.    There is a double error,  the beacon is placed on  the wrong rock and is not
marked on the rock it actually occupies, the beacon ought to be on the Thrasher rock.
By the chart the Thrasher is lying 1250 yards from the beacon.    The depth of water be- 10
tween the Thrasher rock and where the beacon is 17, 20, 23, 24 fathoms  and less and
sometimes there are rocks almost up.    I never put a plot on paper or kept any record
of my soundings.    It is full of rocks, foul ground.    I don't know all the rocks in the place;
know a good many.   By running on know one rock; Chain Island.    Went on  shore at
Burrard Inlet with the Isabel.    Where the Thrasher is lying eleven fathoms is marked on
the chart.    In the notice respecting the Thrasher rock contained in the London "Gazette"
dated 29th Oct., 1880, the same directions are given for clearing the Thrasher rock as are
given in Richard's directions for clearing the reef.  ["Gazette" notice read.] Have been in
charge of tugs in towing from place to place and in sailing ships in other parts of the
world, mostly with pilots; I don't think I have ever been without one as well as I can 20
recollect.    It is twenty-five years since I was in charge of a sailing vessel.    If there had
been a mirage so that I could not see the land I would have gone on until I picked up
Fraser river light.    If you hug the land you must expect to get ashore.    If you can't see
the land you have no business to keep inshore..   If the moon were full it would be an ebb
tide, three-quarters of a mile outside Entrance Island; a course east from Entrance Island
would clear the reef, that is if your compasses are right and there is no current.    Have-
never seen fresh water from, the Fraser river in that neighborhood,
body of water coming from the Fraser at that time of year.
There is a large
Re-examined.—There are fifteen miles of sea room to the north of Gabriola reefs
where the Thrasher might have been towed with unquestionable safety.    It is very impru- 30-
dent navigation to neglect to take bearings when you are not quite certain, where you. are
and want to find out.
To the judge.—If I had been on board the tug for half a mile or a mile before the
Thrasher struck and had been looking out I should not have thought I was in a safe
course.    I should have thought we were going into danger.    If I had been on board the
Thrasher I should have thought the same.    Q.—By the judge—Any competent man on
board of any of the three vessels, if he had been looking out would probably have known
she was going into danger that night?   A.—I think so; yes, decidedly my opinion.
Capt. Wm. Clements.—Am engaged piloting to Nanaimo; last July was in command
of the Pilot, a steam tug, she was I think, running in combination with the Beaver and 40
the Etta White; in towing it was optional with the captain of the tow whether he took a
pilot or not, sometimes they did sometimes not. I have towed several ships with pilots,
several without. The general rule in towing is to keep the steamer on the side the hawser
is fastened so that you can see clear of the jib-boom, and so that the man at the wheel of
the ship can see the steamers mast, or light, and also to keep the hawser clear
of the head gear and to escape steamers back wash. The usual course after leaving
Entrance Island, half a mile north or three-quarters; if the compass is right, is to steer  east in the day time; half north at night; east is very near the view line. If you knew
exactly where the reef was you could with 'prudence steer quite a little way inside
of the "see view" line. I know the rock on which the Thrasher is stranded; I see her there
every time I go up and down; have seen the water break over that rock several times. I
believe in rough weather at low tide; I don't think the water broke on the rock where the
Thrasher lies before she went on. In the course of my towage I always deemed it prudent to keep from a quarter of a mile to a mile and a half clear of where she now lies; the
dangers surrounding the place where the Thrasher lies stranded were known to me prior
to her stranding; the water indicated sunken rocks there in rough weather if you went
near enough. I would not have approached those places at night with a tow if I knew 10
where I was going with it; could easily find where I was if it was clear so as land could
be seen. If I could see the Entrance Island light I would know if I was in too far; there
is no difficulty in knowing where you are if you pay attention. The greater the depth of
water your tow draws the further you keep out. There would be no difficulty in finding
out the rate of speed you were travelling at; you might heave a log or take bearings. There
is no difficulty in finding out exactly where you are if you take bearings and can see anything to take them from. You can take them from Entrance Island light, Flat Top Island
or Point Atkinson light. There are also a great many breaks in the land. Do not think
a prudent course could have been steered or the Thrasher would not be where she is.
Witness describes the land marks mentioned in the sailing directions for clearing the 20
reef. When you can't see these points, in order to be sure you are clear the reef, you
steer ten miles after you pass Entrance Island light on an east course and until you see
the Fraser light then there is no doubt you are clear of it.
Cross-examined—Have been up inside the reef; towed a ship up inside between the
reef and Gabriola Island. There is a passage there between the reef and Gabriola Island.
I towed the Challenger up "inside and anchored behind Flat Top. There is quite a nice
harbor there, (sailing directions quoted which speak at page 70 of a channel inside which
is not generally recommended.) The inside channel is frequently taken to avoid north
west winds. I would not go up at night. The channel is about a quarter of a mile inside
the beacon. The shoal on which the beacon is erected extends two and a half miles. 30
Have been considerably nearer the beacon inside than where the Thrasher now lies from
the beacon. First saw Thrasher rock wash three years ago when I first went towing up
there. I always supposed where the Thrasher is, to be a continuation of the reef. Have
never compared it with chart. I am a pilot, and I suppose I have charge of the ship and
tug too. I always treat myself as having charge of the tugs; they always go where I direct
them; when I was running a tugboat, when no pilot on board, the captain had charge of
the ship; he generally followed the tug; when he wanted me to go a certain rate or course
it is my duty to go there. I took my orders from him if he saw fit to give me any. The
captain is in charge of his own ship, the tug goes where he tells them to. Have seen
Fraser river water all the way across the gulf nearly to Portier Pass. In heavy freshets 40
think it comes up above the reef. In towing in this locality the master of the tug
depends more on his local knowledge than he does upon his chart. Don't bother the
chart much.    Don't pack charts round with them very often.
By the Judge—-Will you look at the chart, you see Entrance Island, you see that cross
at which the Thrasher went ashore. Now in going from Entrance Island there that is
not according to the course you have been mentioning? Ans.—No sir. We generally
come from half a mile to three quarters outside the Island and down east or east a half
north.    Ques.—If you run east that would carry you from half a mile north ?   A.—Yes.  23
Q.—That would carry you clear of the Thrasher rock ? A.—Yes. Q.-
night described as a clear night ? A.—Yes. Q.—Could any competent person, you, if
you had been on board the tug for a mile before you got to the rock could you have told
that you were going right or wrong? A.—If I had been paying attention I could have
told I was too near the land. Q.—And I suppose any body on board either of the three
ships could have seen the same thing? A.—Yes sir. Q.—That is always presuming they
had local knowledge?    A.—Yes sir, any body familiar with the land.
Capt. George Rudlin, master of steamer Wilson G. Hunt, plying between Victoria,
Nanaimo and Comox;—Was in the towing business before running the Hunt; several years
in that business; used to look after steam tugs; acquainted with passage from Entrance 10
Island past Gabriola reef; know rock on which Thrasher lies. Before she stranded
knew there was a rock somewhere there; could not tell exact place; used to steer at night
so as to clear the rock, east half north coming down the gulf, and if the wind was northerly
would steer east by north. If there was any current from the Fraser would haul out
a little more. In the result by steering such course would go about one mile and a half
to the eastward of the rock. A prudent man would not steer within that distance unless
there was a strong wind from the. south and west when he might steer a little nearer. The
course which I have indicated would take outside the line marked on the chart "see
view," east half north magnetic would take outside of that line; that line is due east.
Ordinary care would avoid any danger to a ship of the size of the Thrasher in being towed 20
down the Straits of Georgia; there is plenty of sea room where there are no rocks. The
water inside of the "see view" line has always been considered dangerous. It has been
generally known among navigators to be dangerous and generally to masters of tugs. I
was a licensed pilot for two or three years. It was not usual to employ pilots to navigate
tugs; I had a license to run a tow boat but not as a general pilot. Before changing my
course in coming down the gulf past Gabriola reefs I used in general to wait until
Portier Pass bore south by east and the light ship bore south by east without altering my
course. I would not alter my course until I saw Fraser river light unless it was a clear
night and I could see the land. The light ship should bear east by south. If I caught
Burrard Inlet light, Point Atkinson light, I would bear a little north east, a little east of
nor'ard bringing me in then I should shape my course down the gulf. Have towed inside
the reef when strong westerly winds blowing i. e., in the day time. Have seen Fraser
river water extending to the reef and close to the Ballinac Islands. The more Fraser
river water I saw the further I would keep out- The tugs ought to have known by looking at the land that they were too close in shore, and of course if there had been a pilot
on board the ship or any one acquainted with navigation he could have told the same
think. I do not suppose a stranger would have thought about looking. You can see
Entrance Island light about fourteen miles I think. It is four years since I was in the
business. If a captain or master of a tug took no bearings he would be apt to get into
danger unless he had a nice clear night.
Cross-examined—Don't know where Thrasher is on the chart; never took any bearings of her; eleven fathoms is ample water even for the Thrasher. Ques.—In towing a
heavy vessel down if that vessel is on one quarter all the way doesn't it have the effect of
drawing the tug off her course more or less ? Ans.—Well, very little. If the ship should
be a couple of points off, the effect would be to draw the tugs off the course. It would
alter the course materially if the ship did it steadily. If the ship kept on doing it the
tug would guard against it. The tug would put her helm the opposite way. It is the
duty of the tug to keep ahead of the tow.    I always used to hail the ship and tell them to  24
steer after me. Q.—Supposing the ship goes off would'nt you consider the course of the
tow the course you were to take? A.—No. I never take it. If there was a pilot on
board, if he would hail me I would have done so and tell the ship to steer after me. I
take the orders from the pilot if one is on board. If there is no pilot I generally used to
go my own road. The captain of the tow was my employer. If he gave me any orders I
would obey them. In towing a ship up inside the reef I would go a great deal nearer
than I would come down outside. In coming down inside I would keep mid channel perhaps
about a quarter of a mile from the beacon. Q.—If you were outside of the beacon and
in eleven fathoms of water, you would be safe there? A.—I never approached the beacon
near enough to know, .not on the outside. I was considerably closer to the beacon when 10
on the inside than the Thrasher now lies out. Have seen mirages and fogs along the
shore in midsummer; effect is as a general thing to throw the land further off than it
really is and you cannot then be governed by any points you see, in fact it changes the
. whole appearance of the coast. The first time that I knew of the rock where the Thrasher
is was in 1865. I will not .swear it was the same rock. I saw there were rocks around
there and I knew there was danger and I put my vessel around and stood off the rock. I
suppose there is a number of rocks between where the Thrasher is now placed and the
rock on which the beacon is placed. I think I have seen four or five rocks dry at low
water but I don't know the exact position. Q.—You are not certain that you ever knew
that the Thrasher rock was there before ? A.—No. I would'nt swear to that one rock. 20
Am slightly conversant with the charts of the coast. Don't know whether Thrasher rock
is marked on chart or not. I know that there are rocks around therein the vicinity..
The Thrasher lies about a third of a mile from* the beacon; never reported the rock to the
pilot board. Don't know that the Thrasher rock was generally known; I knew there were
rocks in the vicinity. Suppose Thrasher rock would be dry in summer months,
and in winter months.    Wouldn't swear to seeing that one rock dry.
Re-examined—I knew there were rocks around there; reason never reported because
naturally supposed everyone knew of them; thought the rocks around there nothing
wonderful. Have frequently encountered mirages; would give the land a wider berth; I
steer by compass; you can see the land marks at night and Portier Pass unless it is very 30
dark; on an ordinary night you can see Portier Pass four miles off; see the gap; it is difficult to make out Flat Top Island at night because there is high land behind it; it is very
difficult to' take cross bearings.
Thomas Eric Peck, receiver of wrecks for Nanaimo—Held an enquiry in that capacity.
James Christensen the master of the Beaver, Mr. Smith the master of "the Etta White and
John Jagers mate of the Beaver, all gave evidence under oath. [Counsel for plaintiffs
proposes to put in evidence; the statement of Christensen and Smith rejected.] Knew the
Gabriola reef before striking of the Thrasher; it was generally known in neighborhood of
Nanaimo; have seen a rock a short distance from the Thrasher bare, to the port hand between the shore and the Thrasher; the Thrasher rock may be a continuation of the same 40
rock which I saw bare; I never saw the Thrasher rock bare nor any other man; the bare
rock which I mention is 60 to 100 feet from the Thrasher.
Cross-examined—The day after the wreck I drank fresh water from along side the
wreck; I suppose it came from the Fraser river; there is no other place it can come from;
the fresh water extends to Cowichan Gap; it was nearly full moon at the time of the
accident.
94375  w
25
Capt. Thomas Pamphlet—Am a master mariner; have seen where Thrasher is stranded;
knew the reef some time before, twenty years or more; it was a generally known rock,
known amongst all seamen around here; to the southward of the Thrasher are some rocks
that dry; where the Thrasher lies is part of Gabriola reef; I believe it to be so; it is all
scattered about, but I believe it is part of the reef; by following the course pointed out
in the sailing directions you would steer well clear of the reef as it actually stands including the rock where the Thrasher is; by following the sailing directions you clear the reef
by a mile; there is no difficulty when you can see the land in discovering where you are
from Entrance Island down past the reef; the Entrance Island light is visible some distance below the reef; you can shape your course from that light; you cannot get into 10
danger if you shape a proper course from that light; we generally keep about the line of
the "see view;" in the night time I would not come inside of it; it would not be prudent
to do so at any rate; if a ship could not see the shore it would be necessary to take bearings of Entrance Island or some other light; there is no difficulty in the master of a steam
tug that is used to. the boat ascertaining exactly the speed he is travelling through the
water; there would be prominent openings along the land which shew a man just where he
is if it is a fine night; if it was hazy or heavy you could not see the Flat Top Islands; a
good lookout is generally kept on board the- tugs to see that the tow steers pretty well
after them; a man at the tug's wheel can tell in a minute if there is bad steering because
the tug boat will commence to steer badly; when the tow steers badly it is the rule to call 20
attention to it from the tug; in towing the tow always steers on the side that the hawser
is attached so as to keep the head gear clear, get a view of the tug and see how to steer.
Cross-examined— Have no master mariner's certificate from, board of trade or Dominion Government; am. not a master mariner; have known the rock where the Thrasher is
for twenty-three or twenty-four years; it is part of the reef ;.I don't know much about the
chart;: I never took any bearings that distance off; could not say if the Thrasher is on part
of the reef as laid down on the chart; witness then pointed to me of the rocks marked on
the chart as the rock on which the Thrasher was stranded, north of west of the beacon;
took bearings round it about ten years ago; only saw three or four rocks on the reef; took
my bearings by a common compass; I had no sextant; came to the conclusion the reef 30
was wrong in 1866 or 1867. Believe there is a lithographic error in the chart. I have
never reported, though I have been a pilot in these waters. The beacon is on a rock, part
of the same reef as the Thrasher lies on. It is not rightly marked on the chart. I suppose the Thrasher is about a quarter of a mile from the beacon. I don't go much on the
Gazette which says six cables length.
Hartley G. Young.—Was second mate of Thrasher on occasion of the stranding; Bosworth was master; Bosworth was a stranger on the coast; had not been higher north than"
San Francisco. We left Nanaimo between six and seven on evening of 14th July. Passed
the ship's hawser to the Beaver; it was fastened to the ship's port bow; the Etta White
took her own line ahead and made fast to the Beaver; was on deck when towing com- 40
nienced looking after the fenders; Bosworth on the poop; no orders were given the tugs
from the ship as to the course to be taken that I am aware of; tugs are supposed to use
their own discretion in towing out or into harbor; no pilot on Thrasher; it is not usual
to take pilots when tugs are engaged. I have been on the coast seventeen years. We
had Captain Rogers as pilot going up from Victoria. As soon as we started a regular
watch was set on the ship. From six to eight p. m. it was the first mates watch; at eight
o'clock I took charge; eight men in my watch; weather fine and clear; dead calm; twilight
was not down at the time of the accident.    Moon rose about nine or nine thirty P. m. and  TP
26
was nearly full. At that time of the year there is no real night in fine weather. There
was no mirage along shore; could see the outline of the beach and the trees plainly. Capt.
Bosworth remained on deck till half past eight or twenty minutes to nine. Ship struck
between twenty minutes past nine aud twenty minutes to ten. Observed ship's course
from time she rounded Entrance Island until she struck and it was east by south by our
compass and our compass was correct. It was between seven and eight when we passed
Entrance light. I was on deck at the time. We were a full point east by south. We
went about half a mile outside of the light house. We had spirit compasses. Thrasher
was a nice steering ship- In steering you are supposed to keep the tug a point or a half
point on the bow the hawser is on. From the time I took charge I did not leave the 10
poop until she struck. When she struck the ship was heading E. S. E. and within half
a point or a point in line with the tugs and that distance is allowed to keep the hawser
clear of the head gear and so that the man at the wheel could see the lights; could see the
land all the way down. I have towed down the coast before. I was satisfied in my own
mind they were a little too far in, but it was not my duty to interfere and I thought they
knew their business. I did not report to the captain; did not know whether there was
danger or not until the ship struck; I was not acquainted with Gabriola reef as well as I
am now. If I had had any idea danger existed where we struck I would have cut the
hawser and let the ship go off. When ship struck was on the poop; got forward as fast
as I could on to forecastle. Etta White had carried away her line and was ahead; Beaver 20
did not carry away ship's hawser. Beaver kept on towing. Hailed him and he said it
was Gabriola Reef. He said "all right she is coming" and kept on paddling. Ship was
seven feet out of water. When we left Nanaimo the ship drew 23 feet seven inches of
water. The captain got on the forecastle in his night clothes. Bosworth seemed paralyzed to see the ship ashore. Think Beaver must have gone through one of the
crevices of the reef or she would have struck also. Used every effort we could to save the
ship but of no avail. It was useless to tow her from astern as she would have sunk.
There were acres of kelp round where the ship struck, excepting just off the port quarter;
there was no kelp there. On the port beam I should think the kelp extended for two
hundred yards. Right off the port fore rigging as near as I can judge 200 yards
there was four and a half fathoms; from the ship it runs three and a half to four and a
half fathoms from the port bow at half tide. [Q.—What would have been the consequence
if she had steered several points to the seaward or to the port instead of the starboard at
the time she struck ? A.—If she had been steering N. E. she would have struck all the
same in the line of E. by S. or E. by N. If she had been steering N. E. or N. N. E. she
would have struck; she could not have escaped it in that place.]
Cross-examined.—After the tugs rounded Entrance Island they steered east by
south which I call a wrong course as that would put them ashore, especially with
a current from Fraser River setting on the port bow that is bound to drive you inshore
a little. I did not think it necessary although the tugs were steering a wrong course 40
after leaving Entrance Island to refer to the first mate or the captain or any body.
I supposee they knew where they were going. I had charge of the ship's deck. If I had
seen the tugs running on Flat Top Island I should have said something. Our compass
is about a quarter point to the westward. I thought we were too close in shore some
fifteen minutes before the ship struck, closer in than I had ever been before. It is not
my place to change the course. I had got my orders to follow close after the tugs. Even
if I had seen a rock right ahead and kept the ship from the course- she was steering after
the tugs and anything had happened to the ship they would have hung me. Though I
saw the ship going into actual danger I had no right to change the course.    If a pilot is  np
27-
on board the ship he has to command the ship itself; he has no right to give me orders;
he might command the helmsman. I think if a pilot had been on board and given instructions to head her out fifteen minutes before she struck she might have been saved;
you can signal a tug by waving a hat or a handkerchief. The object of having a pilot on
board is merely to relieve the position of the captain and take the responsibility off from
him. The pilot is supposed to know the reefs and rocks, shoals and everything. I believe in British Columbia it is not compulsory to take one. Q. The almanacks states that
the moon that night was in its first quarter, is that correct ? A. I don't know about the
almanacks. Two days after the Thrasher struck the Etta White got ashore outside of
where the Thrasher wa< and the Etta White only draws eight or ten feet of water. She 10
stayed ashore one tide. Have been to Nanaimo six times altogether; was shipped at San
Francisco. I piloted Thrasher into Royal Roads and after that my piloting was done.
Have never been inside of Gabriola Reef. Knew Gabriola Reef was somewhere iu the
Gulf of Georgia. Didn't examine the chart. No course was set. The orders were to
sail after the tugs. If after leaving Entrance Island had seen tugs going due north
would have called the captain and ask where he was going. If I was first officer I would
hail the tug and ask him where he was going. For ten or fifteen minutes before the ship
struck I thought the tugs were too close in shore, closer than ever I had been before.
Ques.—The tugs were not going a wrong course on this occasion were they?   A.—It
appears they were. 20
Mr. Davie—At that time ?   A.—The result was that I think they were going very
wrong.
Mr. Drake—You thought at the time ? A.—I thought at the time before they struck
that they were too close in shore, closer than I had ever been in there before.
Q.—How long were you of that opinion before the accident happened ? half an hour ?
A.—Ten or fifteen -minutes.
Q.—Up to ten or fifteen minutes before you struck they were taking a right course
according to your view of the matter?   A.—They were taking a right course.
Q.—Were they ?   A.—No, they were not, taking a very wrong course.
Q.—All the time?   A.—Yes sir, keeping them off east south east. 30
Q.—During the whole time from Entrance Island?   A.-—No, I didn't say that.
Q.—I want to know, after they rounded the Entrance Island, half a mile off ? A.—They
steered east by south.
Q.—Is that the wrong course or the right course ? A.—I call it a wrong course. I
think east by south will put her ashore.
Q.—About half a mile from Entrance Island ? A.—I think it is about half a mile
we pass clear of it.
Q-—You think that is the wrong course ? A.—I do think it a wrong course, particularly with a freshet out of the Fraser river setting over on your port bow. That is bound
to drive you in shore a little bit.  28
Q.—Particularly of freshets setting out the Fraser River. You knew there was a
freshet setting in there ?   A.—I know it is a natural consequence.
Mr. Davie—You knew it at the time ?   A-—I know it.
Q. You know it?   A. I know it.
Q. Did you know it before the ship struck ?   A. Know what.
Mr. Drake—That the freshet was setting in ? A. I don't say that I knew it just at
that time. But when the freshet is coming down out of the Fraser it naturally looks
over towards that side. You have it on the port bow or port beam as you are going
down that gulf. I have seen the water muddy and riley there, right alongside the ship
while we laid there on the reef.
Q. Now you knew as a fact that the tugs were towing the wrong course as you said
by your compass half a mile after leaving Entrance Island, and you never referred to the
first mate.   A. Not necessary to do so.
Q; Did you refer to the captain ?   A. I didn't
Q. You referred to nobody ?   A. I referred to nobody.
Q. You never hailed them? A. I never hailed them. No, it is not my place. I
supposed they were two qualified men, two pilots-
Q. You supposed they were two qualified men, two pilots ? A. Two qualified men,
two pilots been sailing up there for years.    I supposed they knew where they were going.
Q. Who had charge of the deck? A. Charge of the ship's deck, I did. Think from 20
Entrance Island to the reef the ship was being towed from seven to. ten knots per hour.
Did not notice. It was an ebb tide. When I say seven to ten knots I mean past the
land; could not judge any nearer as I did not feel interested to know. Orders were given
by Captain Bosworth at Nanaimo to cast off the lines; Christensen gave orders from tug
to let go every thing; Capt. Bosworth gave the order "all clear go ahead"; when the captain went below I was in charge of the deck myself. I was not sure the ship was in
danger; I had my suspicions she was too close in. Did not consider it necessary to hail
the tugs or call the captain. I supposed the tugs knew where they were going; I did not
take notice as to the speed the ship was going; it was my duty to see the ship kept after
the tugs. I did not notice any current before the ship struck. If I had known we were 30
close to the reefs I could not have saved the ship because we might have kept her off six
points and still we would not have cleared it. I never saw the ship was going into danger.
I thought she was too close in, closer than ever I had been towed down there before. If
I had had any idea the ship was going ashore I might have done differently from what I
did.    Bosworth's orders to me before he went below were to keep right after the tugs.
William McCullock—Am master of the steamer Otter in the Hudson Bay service.
Have seen where Thrasher is stranded once since the stranding. The place is considerably
inside of where I generally go; from a mile to a mile and a half; I would think I was close
then. Have been engaged in towing. If I had been a tug and had been towing a ship
drawing 24 feet of water I should have towed two miles outside of where the Thrasher is.
I would not have considered myself at night safe within one mile. There is no difficulty
on a bright night in ascertaining exactly where you are when towing past Entrance Island.
There are a great many indications which mariners know and which point out exactly  29
where you are.    If the shore should not be visible, by taking bearings from the lights
you could tell where you were.
Cross-examined—Have been inside Gabriola reef in a boat, never in a ship; can't say
how far the Thrasher rock is from Gabriola reef proper but is a considerable distance.
Has seen rocks dry to the seaward of where the beacon is; can't say he knew rock where
Thrasher is, but knows there were rocks in that vicinity; I call Gabriola reef proper a
reef of rocks about a mile or a mile and a half in extent and the Thrasher rock is one of
them. After leaving Entrance Island by night if you are half a mile off, east would be a
fair course; east half north is generally my course. There is no difficulty for a man who
can read and write and who has a tolerable good sense with a chart and sailing directions 10
and compass in taking that course, A man so circumstanced if he was going south of
east would know he was going wrong.
James Mcintosh—Am a British Columbia pilot.
There is no difficulty in keeping clear of the rocks.
Agree with evidence of McCullock.
William Scott—Am a British Columbia pilot. Proper course to tow after leaving
Entrance Island is east half north; that course is the one generally known among mariners. No difficulty in keeping that course in fine weather; no prudent man who is acquainted with the coast would keep to the south of east by compass. It is never deemed
prudent to keep inside of the line upon the chart marked ' 'see view" unless you intend to
go inside altogether. Pursuing a proper course would take you over a mile outside 20
where the Thrasher is. In clear weather might go close; if weather hazy might keep
further out. Have never seen rock on which Thrasher is; have never towed as close in as
where the Thrasher is, but have seen the water breaking around where she is. In towing
have always pursued the course just indicated. Beacon is not recognized by mariners as
a guide. The tow generally steers a little off on one. quarter or the other according to
which bow you have got the hawser on so that the hawser wont chafe the head gear; the
man can see the steamer and to avoid the steamer's back wash.
Cross-examined—Am not now a pilot from Nanaimo but only from Victoria, the Victoria District. Have taken vessels to Nanaimo; have only seen the Thrasher once. If I
was pilot on board I should give the instructions to cast as the pilot is in charge of the 30
ship. If I was pilot and saw the tug going wrong I should signal the tug to alter her
course. If I was on a tow and wanted to direct the tug one way or the other in fine weather I should do so by hailing. If I could not make myself heard I should put my helm
one way or another. Two miles and a half from where the Thrasher lies after leaving
Entrance Island I could have taken precautions to save the ship providing there was no
current setting in towards Gabriola Island as there was at the time of the wreck and is at
that time of the year; after passing Entrance Island three quarters of a mile out east
magnetic would be a safe course. Before the divisions of the different districts I was a
pilot for Nanaimo. I still hold a certificate. Certificate produced as follows. This certificate has never been revoked and I know of nothing which renders me less competent 40
to pilot a ship in Nanaimo than I was when I received my certificate.
William Ettershank, a pilot, agrees with Scotts' evidence.   You must make east good,
keep further out according to the wind and tide.
Cross-examined—The pilot is a local assistance to the captain; he generally takes his
position up in the tow to take command of her as he can see there better.  30
Herbert G. Lewis, master of the H. B. Co.'s steamer Princess Louise—Have been
running steamers on the coast off and on for twenty years; know the ground from Entrance Island so as to clear Gabriola reef; ship should go east or east half north. It just
depends, if it is a dark night I keep east by north magnetic; would only go south of east
if it was blowing a strong westerly wind, westerly gale or south westerly gale but east and
east half north. East by north is the course generally steered. Would not go to the
southward. One of the marks for shaping your course is Entrance Island bearing upon
Notch Hill; another is Portier pass open or just on, i. e., touching, that carries you clear.
The Entrance Island light is to be plainly seen as you go down; easily take bearings. If
it is a clear night you can tell where you are from the land; if it is any way hazy you have 10
to take your bearings from the lights. No difficulty if you can see the Entrance Island
light in discovering where you are. If there was a current setting in you would haul
more to the northward. The same if there was a wind from the north; you could not tell
the effect of a current without taking bearings of the light; know where Thrasher is and
am acquainted with the locality; can't be certain I have ever seen the rock she is on but
have seen rocks in the vicinity. The rock on which the Thrasher is stranded is, I think,
a continuation of Gabriola reef, at least I know it is all broken rock in and around there.
It is not prudent navigation for a ship to come within half a mile of where the Thrasher
is. It is imprudent navigation; I always kept a mile and a half or two miles outside,
just depends. In the night time perhaps three miles. Do not think a ship steering her 20
proper course from Entrance Island could become stranded on that rock unless the current
or wind or something drove her on. If a man would take bearings he could never be
driven where she is.
Cross-examined—Have never seen that rock bare. I could not lay down the position
of the Thrasher rock in the chart for certain as I have never been near enough to take
bearings. As a master of a ship if I was leaving port in charge of a tug on a coast of
this description I would not go to bed. It is not the duty of a master or prudent. It
was the captain's duty to keep on deck and see how the ship was going; and in these inland navigations the captain should stop on deck even though he had a pilot on board.
Arthur Fmney, contractor who built the beacon in 1873—Was engaged building it 30
eleven weeks. During that time had opportunity of judging the shoals in the vicinity.
Was requested to do so by Capt. Cooper and did examine them. I got my boat ashore
on a rock which was outside the beacon, the same rock the Thrasher is now near or
partly on. Reported this to Capt. Cooper. That rock shews at low tide; I have been on
it. There are four parts of the reef altogether which dry. During present week have
examined place where Thrasher is; took soundings. To the seaward of the Thrasher i. e.
on port side which looks towards the Gulf of Georgia at four feet distance obtained
soundings upwards of two-thirds of a fathom. There is less water to the port side of the
ship than there is where she is stranded. For about thirty yards to the port side there
is less water than where the ship is stranded. On the other side of her there is deep 40
water, that is towards the land. I took these soundings on Sunday last and Robert Gray
was with me and Thomas Digman. We were in a large northern canoe. We passed
over the rock once, but as it was heavy weather considered we would be liable to touch
the rock and burst our canoe. When I speak of passing over a rock I mean a rock in a
line with the bows of the Thrasher.
Cross-examined—The Thrasher is now heading about north and south; bow to the
south.    Placed beacon where I was directed by Capt. Cooper.    I have seen four rocks Wfia
HP^IfcuL « ■ KS 81
there only, that is all I can say. Am a carpenter by trade. The beacon is half a mile or
more from the Thrasher rock I should think and I have seen a rock between the Thrasher
and the beacon The beacon is marked in the right place on the chart on the larger
rock. There is a rock to the south of that and one to the west and one to the north;
these are all I saw; I cannot show you on the chart the rock on which the Thrasher
struck.
Robert Gray—Have recently examined position of Thrasher; she lies about north
and south. Am a seafaring man; keep the lighthouse at Entrance Island. Took soundings with last witness on west side of ship; soundings to the west were a few feet less
than on the starboard side. For twenty or thirty yards to the west there were less sound- 10
ings than to the east. There was about a fathom to the east side; the water was deeper
on the east side than on the west. I could not swear that I ever saw the rock where the
Thrasher is stranded. Have seen water breaking round the region where the Thrasher
lies.
Cross-examined—It was a fish line with which we took soundings, not a lead line.
We had a little piece of iron for a weight on the end of the line. We had no measurements; I measured by my arm; could not tell within a considerable number of feet the
depth.
Robert Gray, recalled by defendants—Remember when Thrasher passed Entrance
Island in tow; she was about three fourths of a mile out, further out than many other 20
ships go.    They took the north passage.
defendants' evidence.
Edgar Crow Baker—Am a Trinity House pilot; hold a masters certificate and am a
navigating lieutenant in the navy; have been accustomed to marine surveying which is
part of my profession. Has made an examination of the chart respecting the region
where the Thrasher lies. Produce a hydrographic sheet of abbreviations referred to in
the chart, which is an appendix to all charts. The dotted line outside Gabriola reef is
the limit of danger line; that is there is no danger outside of that limit. The explanation
of the small crosses is sunken rocks that don't uncover at low water. Went to the neighborhood in October last on the 28th; made a survey of the reef. [Result put in evidence 30
marked .]    First went to the beacon; it was then three quarters of an hour after low
water and erected the tripod azimuth compass and took a line of bearings; a complete
circle of bearings; my object was to ascertain the exact position of the beacon; I also
took a line of sextant angles with a lunar sextant to verify that position. The result of
those observations placed the beacon where I have laid it on this chart about one third
of a mile from where it is laid on the authorized chart to the south west of it. I also
took the position of the Thrasher, but not in precisely the same manner because it was
impossible to erect an azimuth compass, but I took sextant angles and fixed the position
of the Thrasher as I have laid it on the chart. I made the place where the Thrasher is, a
little over a third of a mile from the beacon; about six cables. On Gabriola reef in the 40
authorized chart there are four rocks marked as visible. I only saw the one on which I
stood i. e. the one where the beacon is and the one to the N. W. of the bank on the extreme edge on the left of the bank. Those two were the only ones I saw at that time,
that of course was in October. It was low water, at least the flood tide had made about
an hour. There are not such extreme low tides in October as in July. From my examination the Thrasher is not on Gabriola reef as marked on the authorized chart; I sounded  82
under the bows of the ship and got five fathoms, but there was a pretty good swell on. I
did not do much sounding; I was sent there for the purpose of ascertaining the position
of the beacon and the position of the wreck. I think the ship lies on an isolated rock
because there is deep water in there; between there is 4J to 7^ fathoms. We went in
between in the Etta White.
Q. There is a distinct channel runs between the Thrasher and the Gabriola reef as
laid down here ?
A. Precisely.
Q. Sufficient to take a large vessel?
A. There was sufficient water there at the time I was there to take a vessel through 10
and the Etta White went through.    The width of that channel is about two cables or between four and five hundred yards.
Q. That lays between Gabriola reef proper as laid down on the chart and the place
where the Thrasher lies ?
A. And the place where the Thrasher now lies. Have laid off on the chart the course
as laid down in the sailing directions page 13, and the two bearings there given intersect
on the line of the reefs as laid down on the chart, and the conclusion I draw from my examination is that the sailing directions have reference to the Gabriola reef as marked on
the chart and not to the outlying rock the Thrasher is upon. The Thrasher rock lies
quite outside of that, a third of a mile. Passing Entrance Island half to three fourths of 20
a mile; I should say a reasonable course would be east magnetic according to the chart.
Q. Now from your experience as a seaman, Mr. Baker, supposing that course was
laid round Entrance Island, and a vessel of the Thrasher's size laden down, with a tendency to be steered inside, what effect, do you think, that would have in the distance
running from the Entrance Island, to Gabriola reefs, would that have any effect in drawing her towards the shore ?
A. Well, sir, much would depend on circumstances, as regards current, winds and
soforth. The question, I presume, you want me to answer, is whether she would sag in
there. I think there is always a tendency to sag in towards the land, on that side, in
towing.
Q. Do you know" which way the current leads ?
A. I am not conversant with these waters, at all, you know; I don't profess to be a
pilot for these parts ?
Know the duty of a master of a ship in tow; have acted as such. Duty
is never to leave the deck whilst vessel in pilotage waters whether a pilot on board
or not. The difference between pilotage waters and navigable water is, in navigable
waters there is lots of sea room and the tides would not affect me and I could, ascertain
my position by head reckoning or nautical observation. Pilotage waters mean when
there are known points visible from which bearings can be taken to lay position of the
vessel on the chart and for which pilots are generally employed. As pilot on board a 40
ship would give orders to the helmsman; I should walk up and down the bridge and give
him my orders from time to time. I should take control of the tugs. Ordinary way of
directing tugs in these waters is to sheer one way or the other. The tow has the tug entirely at her command; she can put her wheel one way or the other; she goes where she
pleases.    She can cut the hawser or throw it overboard.    That is the custom in these  w
w
S3
waters as I am informed- I am secretary of the pilot board and of course am conversant
with what usually takes place between masters and pilots. It would not be prudent for
the master of a tow to go to bed even if he had a pilot so long as he is in pilotage waters
and certainly not if he exercises that vigilance which a master mariner should do when in
pilotage waters. Having a pilot on board does not free the captain from responsibility.
The master has the whole control in the absence of a pilot; if he has a pilot on board
he does not interfere unless he has good reason to do it and the pilot was taking him into
palpable danger; he would in that case suspend the pilot and take the charge out of his
hands. If he has no pilot on board then the captain fills the duflex capacity, at least so
I should consider myself. Produce London Gazette of 29th October, 1880. The infor- 10
mation there given leads me to suppose that the danger there mentioned was not known to
exist before.
Cross-examined—When you come across a body of kelp that is an indication of
danger when you see it. As a rule it indicates danger. I have seen kelp where there is
no danger. The fact of kelp being mentioned in the notice in the London Gazette would
shew that the place was designated as dangerous. It is not the business of a navigator
to go amongst kelp. He would keep away from it. Can't say whether the hydrographic
sheet of abbreviations is in general vogue. Knows there is one on H. M. S. Rocket; it
comes out with the chart book as abbreviation; all our charts are marked this way. The
sailing directions tell you to give the reefs a wide berth. The course I have laid out on 20
chart I do not say is a reasonable course. It is not a reasonable course, most
assuredly not. I was asked to define the location of the reef. What I call a reasonable
course past Entrance Island [witness here marks it on the chart] would take you about a
mile from where the Thrasher rock is. I speak of an east magnetic course. I did not
make a correct survey of the reef so cannot say if there are other rocks than marked on
the chart. I was sent up to ascertain the position of the beacon and the wreck. I most
decidedly say that the rock the Thrasher is on is not marked on the chart. I received
my instructions in this case as to the survey I made from the defendants. My instructions were to take such observations as would be necessary for the defence in this case.
I did not make a complete survey. Here are my instructions (put in.) Instructions as 30
follows:
Victoria, B. C, Oct. 29th, 1880.
Messrs. E. C. Baker and Capt. W. R. Clarke, Victoria.
Gentlemen, —You will please proceed by steamer Etta White this evening to the wreck
of the Thrasher off Gabriola reef and make such survey or examination as the instructions
on other side call for, and oblige, yours respectfully, H. Saunders.
"Evidence given—When the Thrasher struck the Etta White was dead ahead of the
Thrasher and the Beaver was one point on the port bow of the Thrasher. Find out if
the Thrasher had followed in the wake of the Beaver if she would have cleared the rock.
Take notice of the kelp, quantity, &c. Find exact position of ship. Also ascertain if 40
beacon is in right position. Find out whether rock on which ship struck is on chart; and
take any notes that you may think necessary as mariners for the defence in this case so
that you give evidence as experts should it be necessary to call you as witnesses at the
trial." H. Saunders.
I took notice about the kelp but saw very little kelp indeed.    There are times in the
year when there is less kelp than at others.    I suppose there would be less kelp when I  34
was there than in July; I can't say. I am not thoroughly posted on these coasts.
Have never actually navigated in these waters. As regards these waters my knowledge
is not practical to a certain extent, only theoretical. In the notice given in the Gazette
of the 29th October, 1880; the directions given to mariners to clear the dangers of Gabriola
reef are identical with those in the sailing directions; a re-issue of it. I would not have
towed the ship within a mile of where she is. I am to be paid for my professional
services to the defendants same as you are for the plaintiffs. I am employed as a nautical expert to assist the defence. Before the pilot districts were split up I was pilot secretary for the whole waters of B. C. There was no practice as to taking pilots; sometimes
ships took them, sometimes not.    There was a good deal of rivalry between tug boats.
Q. Was it not part of the inducement held out that they would save the expense of
a pilot by taking a tug ?
A. That I can't say.    Never in my presence.
Q< But don't you know that was the case ?
A. Not of my own knowledge.    No.
Q. Isn't that the impression which you formed, that inducements were held out to
masters of ships not to take pilots, by the tugs ?
A. No. I can't say so; I don't know. I can't swear to anything one way or'the other,
whether inducements were held out. There may be all sorts of things going on between
masters of vessels and pilots.    I know nothing about it. 20
Q. Christensen is a pilot, is he not ?
A. He is a pilot for the Victoria and Esquimalt District at the present time.
Q- Does he not also hold a certificate for the whole of British Columbia?
A. He has, yes, sir. That license has never been revoked; he was on leave at that
time on a request to go as master of the tug; at that time he had authority to go as master
of the tug but not as pilot. If the hawser of the tug was on the port bow the tow would
have a tendency to sag to starboard but that would depend on the steering. I would
counteract it by keeping further off, that is what any prudent man would do.
Re-examined—With promptitude there is sufficient time in half a mile to avoid a
known danger.
Q. If the master of a ship in broad daylight an hour before the ship went down past
Entrance Island saw the ship going E. S. E., stands on the poop for an hour and then
went to bed, would you think he acted prudently or imprudently ?
A. Most imprudently if I was in pilotage waters whether there is danger or not.
Benjamin Madigan—Was chief engineer of the Beaver at time of the towing and was
on watch when vessel struck. Had been on deck several times from the time we left
Nanaimo. At the time the Thrasher struck the Thrasher was very much inside the
Beaver, closer in shore, a great deal more so than vessels usually are on either side; some
kelp straight astern and some a little on one side and some a little on the other. This
was very much on one side so much so that I noticed it myself. The Etta White was 40
also inside the Beaver ahead very nearly as much inside as the Thrasher was. The
morning after the disaster I heard Capt. Bosworth state that he gave orders to the man
at the wheel to steer after the Etta White and not mind the Beaver  or old Beaver or  35
something to that effect. This statement took place on board the Beaver. Christensen,
Jagers and Capt. Johnson of the Belvidere were present. Christensen remarked, '' That
accounts for you then being inside of us all the time."
Cross-examined—Don't know if any one else was on deck of Beaver when Thrasher
struck; Jagers steering; wheelhouse is on hurricane deck. Don't know where Christensen was; don't remember how long before I had seen Christensen on deck. The state-
-ment of Capt. Bosworth relative to the steering orders was the day after the wreck;
I thought that to this steering may be that if the vessel had been as much outside as she
was inside that she would have gone safe. Perhaps the reason that no point was made
of Captain Bosworth's order to his man at the wheel before the receiver of wrecks on the 10
occasion of the enquiry was that it was not enquired of; I was not there; believe Smith,
Christensen and Jagers gave their evidence there; I did not; I was not called upon to give
evidence there; can't say that the point was ever debated; I thought myself that if the
vessel was as much outside as she was inside she would have gone safe.    I am not sure.
Donald Urquhart—Am now in command of the steam tug Alexander. In July last
I was a Nanaimo pilot; met Bosworth at Nanaimo; offered my services to him to pilot
him to Victoria. He said he could not afford to pay a pilot. I asked him if he wanted a
pilot and told him it was the habit of masters of large ships like that and strangers to
take a pilot. At that time I had been a pilot about two and a half years. Have seen
Gabriola reef a thousand times. Have piloted more than fifty vessels up and down there; 20
been up and down steadily for last two and a half years. I know where the Thrasher is
lying; I never saw the wreck; was there last week at very extreme low tide and could not
see it. Never knew of a rock existing there. Have taken vessels within a cables length
of where Thrasher is; took the steamer Victoria up, a steamer of 1200 tons register; the
morning after the Thrasher went ashore I took the Victoria within a cables length of her.
I have been up in that direction many times before, as close in or nearly as close in as the
Thrasher is. I tow ships now, nearly as close as where the Thrasher is. I came down
the other day, last week with a ship in tow within two cables length of her. There was
no wind. If the tow wants the tug to change its course the most usual way is to alter the
helm. There are various ways of communicating with the tug, but that is the most recog- 30
nized way so far as I have seen both in the capacity of a pilot and the master of a tug
boat. Have been among the reefs in a pilot boat on one occasion; some time in September or October. Noticed currents there tending towards Valdez Island; right along the
coast there. The current carried us in four miles in about two hours and a half. When.
I passed the Thrasher in the Victoria the morning after the wreck we laid by for an hour
or two getting stuff out of the Thrasher. I heard Mr. Young the second mate say that
their hawser was on the port side of the Thrasher from the port bow and that the
Thrasher was steering on the port side of the Beaver. The duty of a tug in regard to
her tow is to assist the ship in her voyage, to keep right ahead of the tow. If the tow
keeps on one side or the other it indicates that the tow wants the tug to keep right ahead 40
of her. The tug has to keep ahead all the time as nearly as she can. My practice is
always to keep ahead of the tow. When I came up in the Victoria the day after the
wreck there was a heavy freshet from the Fraser river—fresh water almost all the way to
Nanaimo
Cross-examined—Bosworth's reason to me for not taking a pilot was that he was
lying a long time at Nanaimo and could not afford to pay a pilot. I will swear that he
did not say his reason was that he had two tugs; did not state that that was the reason
before Mr. Peck.    [Evidence given before receiver of wrecks rejected.]   I  may have  86
stated that; I don't say I have not, but Capt. Bosworth's main reason to me was he could
not afford the expense. I am not interested in this case only what I hear that you (Mr.
T. Davie) in this case is fishing to bring another case that I am interested in. Do not
propose to answer any thing about a difficulty I had with the Sumatra some time ago. I
do not say that the only reasonable course to bring a ship from Entrance Island is not
inside the "see view" line. I came down a mile inside of it and have always found
it a safe course.
Q. Would you pursue the same course the captain of the Etta White did here? A. I
never found that rock yet.
Q. Don't you think you may find one just like it, if you go inside of the view ?   A. Any 10
one is apt to find one; there is lots in there to be found yet.
Q. If you keep out, here, you would not ?   A. I don't know, I might.
Q. There is more liability to find rocks in there ?   A. It seems so.
Q. Why do you keep a mile inside of where the "view" marked on the chart is ? Because it is safe.    I know it is safe.    I know it by practical experience it is safe.
Q. Your experience is two years and a half?    A. No, it is practically four years now.
Q. And yet in the face of what men who have been here twenty years say, you with
the experience of four years say inside of that line, is a safe course ? A. I don't know
what people that have been here twenty years know, I know what I know myself.
Q. There is Capt. Lewis and Capt. Rudlin ?    A. They know their own way and I 20
know mine.
As a general thing it is usual for strange captains to take a pilot.
I ever advise them not to.
I do not know that
A. McAllister, a Burrard Inlet pilot—Have been on this coast since 1874; was one of
the original owners of the Alexander and was all the time aboard the steamer up and
down the coast; I knew of dangers being around in the vicinity of Gabriola reef. Have-
never seen the rock on which the Thrasher lies. Have been within three-quarters of a
mile of the beacon.
Q. Do you believe that rock to be a well known rock?   A. Not to my knowledge. If
it had been a well known rock I should have heard it discussed amongst the pilots.    East 3&
magnetic I should consider a good course after passing three fourths of a mile outside of
Entrance Island.
Cross-examined—Q. Do I understand you to say that the course pursued by the tugs
in this case was. a proper course ? A. I didn't mention anything about the tugs. 1 would
get my bearings from Portier pass, or if I could see the light I would take bearings from
that; on a clear night I would not take any bearings because I could see the land and
could see exactly how far it was necessary to go before changing the course. If it was
not a fine night I would take my bearings from the light. I would go nine miles from
Entrance Island before changing my course.    Yon can come inside of the "view."
Q. How much inside the view ?   A. If you leave Entrance Island three-fourths of a 40
mile east one quarter south would take you clear of the reef pretty near a mile.  87
Q. Would you consider it prudent to go inside of the mile? A. We have often done
it during the time I was part owner of the Alexander becanse we have to account for the
tides in the different passes, and we have to make time to get to these passes in order
to get through on certain stages of the tide. It is safe enough on a fine night to come
inside the view, that is when you can see the land. I have been a pilot about eight
months. Came here in 1874; that was my first acquaintance with. B. C. When I came I
went to the mines for about nine months. I first took to seafaring as a business in 1876
since the Alexander was built. After that I went to the mines again for about twelve
months and came back and for the last eight months I have been a pilot. The deviation
from the straight line between the tug and the tow should not be more than the breadth 10
of the steamer.
Benjamin Madigan, recalled by the court—I am sure that the Thrasher was inside
the Beaver fifty feet. I called the attention of Mr. Jagers to the fact. I don't know
what he caused to be done; I did not cause anything to be done any more than I noticed
she was very much to the side and I called his attention to it.
Henry Saunders, agent for the tug boat Beaver—Remembers the contract with Bosworth on 22nd May, 1880, to tow Thrasher to Nanaimo and back to Race Rocks or Cape
Flattery; if to Race Rocks price to be $500; if to Cape Flattery $600. I told him if the
Alexander was available, if I had any control I would send the Alexander,
would send two smaller tug boats. Bosworth asked my advice about taking a pilot; he 20
told me he was a stranger in these waters and had a large and valuable vessel and I advised him and told him to take a pilot at the time we were making this contract for towage. He said he would take one and he engaged Andrew Rogers, a Nanaimo pilot, right
then and there in my office. I sent the Beaver up and got the Etta White to assist her
down. The Etta White belongs to the Moodyville Saw Mill Co. I spoke to Mr. Rithet
about her assisting. There was no written agreement with Capt-Bosworth. It was not
necessary because he agreed to take a pilot. The agreements we generally make are
similar to those put in signed by Capt. Lewis. We never undertake to pilot vessels.
Capt. Bosworth asked me what was the pilotage fees; I told him $3 a foot and $10 for the
gulf.    Have never been paid the towage.    The contract was one up and down. 30
Q. The pilot you recommended him to take was for the whole voyage ? A. That was
for the whole voyage; that was made at the same time; the agreement was made at the
same time, and he considered it necessary to have a pilot.
Q. You consider it was more necessary to have a pilot coming down rather than
going ? A. Yes, sir. Going up be only drew twelve feet, coming down he drew twenty-
four feet. All strange vessels take pilots, unless they think they know sufficient of the
coast.
Cross-examined—Produces books of towing company; only record of Thrasher contract is the price for towage.    No mention of pilotage one way or the other.    Have no
recollection of advising captains not to take pilots, in fact the reverse.    I advise them to 40
take pilots.
By Mr. Pooley—Q. When once the captain comes to your office and he signs an
agreement it is nothing to do with you then whether he takes a pilot or whether he does
not ?   A. No, it is perfectly immaterial to me.  38
Andrew Rogers.—Am a Nanaimo pilot. Piloted Thrasher up last May twelvemonth
to Nanaimo. Captain engaged me in Mr. Saunder's office. Went up the passage inside
Gabriola reefs. Offered my services to bring him down. It is usual for the pilot taking
the ship up to bring her down. Bosworth told me having been at Nanaimo so long he
had been under such an expense he could not afford to pay full pilotage down and also he
was going to take two tugs and did not require the services of a pilot. Have heard
Saunders advise captains to take pilots. Do not know Thrasher rock. Did.not know of
the existence of that rock before; only by seeing kelp in the direction.
Q, Have you ever heard that rock spoken of amongst the pilots. A. I did hear of a rock
spoken of one day amongst the pilots, whether that is the rock or not I can't say. The 10
rock I heard spoken of was one which a schooner once ran on with a cargo of coal from
Nanaimo. I suppose the rock I heard spoken of is one a third of a mile inside of where
the Thrasher is; nearer the beacon. I have seen the rock I mention uncovered. I never
saw the Thrasher rock uncovered. I should consider east course magnetic after passing
Entrance Island a safe'course; it is further than I go very often. Have been a pilot only
one year and some months; was in the steamer Douglas nearly five years before that. If
I tow wishes to signal the tug in fine weather you hail or I might get a speaking trumpet
or fog horn, otherwise shape the helm of the ship one way or the other, that generally is
the last resource because it stops the progress of both ship and tug. It is the duty of
the tug to keep nearly ahead of the tow. If a tow has two tugs ahead it is her duty to 20
follow the one next to her. A tow steering some distance inside of a tug would have a
considerable effect on the tug as regards the shore.
Q. From what you know as a pilot in that neighborhood do you consider that if the
ship Thrasher had kept astern of the tug as it ought to have done, you would have gone clear
of the rock ? A.I think if she was considerably astern on the quarter of the boat all the
way down from the Island she would have a tendency to bring her in there if she had
been just enough to see the mast, clear of all obstructions below, I think she would have
gone clear.
Q. What is the duty of the pilot when he is leaving the dock ? Does he give instructions to cast off ?   A.  Certainly. 30
Q. Does he give instructions to the tugs to go ashead ?    A. Certainly.
Q. That is the pilot's duty? A. The pilot's duty is to take charge when he goes
aboard.    If he don't take charge of the ship he don't go.
Q. Some parties have been telling us that kelp is an indication of danger. To what
depth in your knowledge does kelp grow ? A. I suppose I must have seen kelp 50 or 60
feet long.
Q. In taking up a vessel inside Gabriola reef don't you have to go through kelp there ?
A. We do.
Q. Have you seen kelp where there is no rock at all ?   A. I have seen kelp where
there is no rock.    I don't suppose that is close to the surface.    But you can't go through 40
any of these inner channels here such as Mid-channel, Bain's channel, and these inner
channels up above Discovery Island you can't go through them without going through
kelp.    There is kelp in all these channels, especially in the fall of the year.  If
39
Q If you were a nautical man and saw kelp some distance outside of these dangerous marks on the map, it would not necessarily follow there is a rock on the surface ?
A. Well, I wouldn't run through it.
Cross-examination.—An easterly course from Entrance Island would take you clear
of the reefs. If I found out there was a current on the port quarter I would haul her off.
On a clear night you can readily see how far you are from the land. I would go a mile
or two miles from the land. If there was a mirage along the shore that would form an
additional reason for taking bearings.
Q. In case it was hazy along shore that would be an additional reason for taking
bearings?   A. Of course or how would you know where you are if you don't. 10
John Jagers. —Was mate of the Beaver on occasion of stranding of Thrasher. Didn't
hear orders given on starting from Nanaimo but presume there were orders given. Left
Nanaimo about 7 o'clock; I was busy around deck after leaving. We were just past
Entrance Island lighthouse when I took the wheel; I didn't set any course; she was heading then east by south one-quarter south by the Beaver's compass.
Q. What is the deviation of that compass compared with the chart bearings? A. I
couldn't tell exactly what the deviation was; it differs on different points.
east.
Q. What would that make your course by magnetic bearings ?   A. It would fall out
Q. Then as a matter of fact you were going magnetic east ?   A.I suppose.    I stayed 20
at the wheel until after the vessel struck.    Steered on that course until shortly before the
vessel struck.    I couldn't exactly tell how long; a few minutes after we changed she
struck, ten minutes, more or less.
Q. Do you know, did you notice the course the Thrasher was towing? A. The
Thrasher always kept on my starboard quarter.
Q. Do you recollect Mr. Madigan drawing your attention to that ?   A. I do.
Q. Was she very much on your starboard. A. She was. I should think a point or
more. My duty as regards the Thrasher in steering was to keep ahead of the tow as near
as I could.
Q. And if she is to one side or another you tiy to do what ?   A. I try to get ahead 30
of her.    That is what I did.    The Etta White was on my starboard bow; just about as
much as the Thrasher, perhaps a little less.    I noticed no current until we struck.    It
was setting in shore.    Saw Capt. Bosworth next day on board of the Beaver.
Q. Did he say anything in reference to the course that was being steered in your presence ? A Well, I can say only the same thing that Madigan stated; he told the man at the
wheel to steer after the Etta White and not to mind the Beaver. If he carried out those
directions from Entrance Island the effect would be to fetch the whole of them inshore more
or less. Have steered many vessels down that line from Entrance Island. I have come down
inside that line considerably sometimes; never met with any accident on that course; I consider the course we laid that night a perfectly straight course and we kept that way down 40
till shortly before we struck.    Was examined at Nanaimo before Mr. Peck.    When I was  40
asked to sign my examination Mr. Peck read over the evidence I gave. I protested against
the evidence for he had not put it down as I gave it. He said he would not contradict it; he
would not alter it. He told me to sign it. I didn't know any better so I did. He put it
down wrong, different from what I gave it. (The following was the evidence before the receiver of wrecks, same put in:)
John F. Jagers, first officer steamer Beaver, sworn,—Left the wharf about seven o'clock;
the Etta White was ahead of the Beaver; Capt. Christensen went below after we cleared the
lighthouse. Did not give me any particular course but told me to steer after the Etta
White. It was a good course. I do not know the coast very well; have not been running
here very long yet. We were steering S. E. by E. by our compass. Our compass is out 10
considerably. I do not know how much. Clear and' calm night. I did not know enough
of the coast to know if we were too far in or not. I did not tell anyone in Victoria that the
Etta White was steering too close in. When Capt. Christensen went below we steered E.
by S. quarter S. She was heading S. E. by E. after the ship struck. She changed her
course about ten minutes before the ship struck. She changed her course to S. E. by E; the
ship Thrasher was steering inside the Beaver. The hawser was upon the port bow of the
ship.    "The ship was steering in a direct line with the steamer but all the time slightly in
shore.'
Signed John F. Jagers.    Sworn to before me this 11th day of August, 1880."
Eric Peck," receiver of wrecks.
Cross-examined—The evidence differed as to the course we steered. The course Mr. 20
Peck put down on the paper was not the course I gave him. He refused to alter the evidence so as to make it accord with facts. The course Mr. Peck put down would have taken
the ship right over Entrance Island. I don't recollect the course now which Mr. Peck put
down. During the towage within a quarter of an hour of the stranding, sometimes the
Etta White was ahead and sometimes on the side; most of the time she was a little on the
starboard. I followed her as well as I could. At the time of stranding the Etta White was
steering near about the same direction as the Beaver. Some two or three minutes after the
Etta White changed her course I changed mine to correspond.
Re-examined—Q. When the first tug changes her course does not the second one put
her helm over ?    A. Certainly to come around slightly. 30
Q. You didn't change right immediately after ?    A. No, certainly not.
Henry Smith—Was master of the Etta White on 14th July, 1880, on the occasion of
the disaster. At Nanaimo I wanted Capt. Bosworth to go down with me alone, and that
when the Beaver came she could come along after us, and help us down the straits. He
seemed quite annoyed with me at the suggestion and refused to have anything to do with
me. I waited until the Beaver came, I then got the Beaver's hawser attached to the Etta
White and the Thrasher's hawser was attached to the Beaver. We started about 7 o'clock
p. m. The course we laid after leavingTmtranee Island was east magnetic, but I was steering east by south by our compass to make that course good.
Q. East magnetic course, but you were steering east by south by your compass to make 40
that course good ?
A. Yes sir.
Q. Your compass was out what ?    A. A point.
Q. Or three-quarters of a point ?   A. No, a point on that course.  41
Q. That is the course you always take ?   A Yes sir.
We kept on that course about about an hour and a half. The course was changed five
or ten minutes before the Thrasher struck. It was quite a clear night. There was a slight
haze along the shore, a mirage. The effect of a mirage is to make the land look rather
deceiving. I steered all the way myself with the exception of about five minutes before the
vessel struck.
Q. What is the reason of your leaving the wheel there ? A. Well, the land looked. I
looked out of the window and couldn't judge just where I was. I thought I was a long
ways below the reef, and to assure myself where we were I just stepped in my room to look
at the chart. 10
, Q. You stepped in the room to look at the chart.    Did you see where the tow was at
this time ?    A No sir.
Q. You didn't notice her on this occasion ?   A. No.
Q. Could you see her looking astern or was she too far off? A. I could have seen her
if I had looked.
Q. What distance was she away ?   A. I suppose about twelve or fourteen hundred feet.
Q. Did you see her during the time you were going down ?    A. Yes sir.
Q. Was she steering directly after the Beaver ?   A. No sir.
Q. Where was she ?   A. She was steering more after the Etta White.
Q. She was steering after the Etta White ?    A. Yes sir.
Q. You were not dead ahead of the Beaver ? , A. No sir.
Q. When the accident happened your hawser broke, I believe ?    A. Yes sir.
Q. You went alongside the Thrasher where she was lying ?    A. Yes sir.
Q. Did you know that rock where she was ?    A. No sir.
Q. Never heard of it ?    A. Never heard of it.
Q. Did you find a current there ?   A. A very strong current.
Q. Unusual current ?   A. It was, to my knowledge.
Q. A very strong current. Did it have any effect on the Etta White when she turned
around ?   A. I had some difficulty in getting alongside of the ship.
Q. On account of the current ?    A. Yes sir.
Q. Was it fresh water there ?   A. Yes sir.
Q. Where did that current proceed from?    A. I presume it proceeded from the Fraser
river.
Q. Had it been on your quarter all the way down from Entrance Island ?    A. Yes sir.  w
42
Q. Did you know that current before ?    A No sir.
Q. You are not a pilot, are you?    A. No sir, only for the tug that was all.
Q. You got a certificate to enable you to run a tug without paying pilotage duties?
A. That is all, yes sir.
Q. If you didn't have that certificate, you would have to pay pilotage duties ?    A. That
is all.
Q. You don't pilot vessels ?   A. No sir.
Q. You never undertake it ?    A. I never had a pilot license to pilot vessels.
Q. I think counsel said that there was nothing but a siwash steering ?    A. We never
had no si washes there. 10
Q. Never had one on board ?    A. Never had any employed in any way up to that time.
Q. That is rather an exaggeration ?    A. It seemed to me when he said so.    There was
never an Indian employed on the Etta White in any capacity up to the time of that accident.
Q. How much was the Thrasher on the starboard side when you saw her, the starboard
side of the Beaver ?    A I should say about a point.
Q. Would that have any effect on the power of the tug to keep her straight, or would
ive the effect of drag
shore instead of off shore.
it have the effect of dragging her inshore ?   A. It would have the effect of setting her in
Q. Have you towed vessels any where in the neighborhood of where she is lying now ?
A. Yes sir.
Q. Often, more than once ?   A Yes sir. 20
Q. Inside of where she is lying between the reef and that place ?    A. Yes sir, I think I
have, because—I don't know for I never knew the position of that rock before.
Q. You have towed at all events within a very short distance of the Gabriola reef, as
marked on the chart, have you ?   A. Yes sir.
Q. You think within the place where the Thrasher is now lying ?    A. Oh! inside of
that, yes sir
Q. You never saw the rock there ?   A. No sir, I never saw it, because I know the
Thrasher is on top of the rock now.
Q. You had never seen that rock and never heard of it in all the time you have been
plying in these waters?    A. No sir. 30
Q. Never heard of it ?   A. No sir.    I ha^e heard of Gabriola reef often.
Q. You know that on the chart, or on the spot itself ?    A. Yes sir.
Q. Did you see any kelp about the place when you went down that night ?    A. No sir.
Q. Did not notice any kelp ?    A. No sir.  43
Q. Did your steamer go through any kelp ?   A. No sir, not to my knowledge.
Q. Is the rock where the Thrasher struck on the chart? A. No sir, not on any chart
that ever I saw.
Q. You are quite clear that that is not a portion of the Gabriola reef as marked on the
chart ? A. I am quite positive that I never saw it on any chart—on no charts that ever I
have seen.
Cross-examined by Mr. Davie—Q. How long have you been navigating steamboats
here?   A. In these waters?    Q. Yes sir?    A. Four or five years.
Q. How long have you been in your present employment?   A. How do you mean?
Q. As master of the Etta White?   A. About ten years.
Q. I thought she came over here about four years ago?   A. Four or five years ago.
Q. Then all the navigation you have done on these waters is what you have done in the
Etta White?   A. Yes sir.
Q. I suppose you are tolerably conversant with the points of the chart and the land
marks in that locality, are you not ?    A Well, yes, I think I am.
Q. And you generally find out where you are from landmarks, do you not? A. Well,
from landmarks and local knowledge.
Q. You have spoken about the slight haze on the shore this night. Was that of such a
character as to prevent you seeing these land marks ?    A. Well, they would show.
Q. Did they show at all?    A. You could see the land, yes sir.
Q. Consequently you could see the land marks ? A. The land marks would appear different in a case of that kind than they would if it was perfectly clear.
Q. Tell us what the difference would be? A. I don't think I could do that. For at
different times  it appears different.
Q. Couldn't you see the land all the way down?    A. Yes sir.
Q. Did it occur to you what it was that was taking you so close to the land? A. I
didn't think I was close into the land.
Q. How far did you think you were from it ?   A. At what time.
Q. During the time you were towing down, what was your average distance from the
land ?    A. Sometimes I was a mile and 'a half out and sometimes two miles; that depends on 30
the curvature of the land.
Q. At all events you could see it during the whole time? Could you see Cowichan
Gap as you go towords Gabriola reef?    A. Yes sir.
Q. You could see the gap.    Could you see Notch Hill ?   A. I don't think that we could.
Q. Did you try to see Notch Hill?    A. I didn't try.  44
Q. Did you take any bearings ?    A. I did not.
Q. Neither from the light or anything else?   A. No sir.
Q. How long did Bosworth keep you waiting at Nanaimo? A. I was there several
times with him. You mean the first visit? Q. Yes sir. A. I think I got there about three
or four o'clock in the afternoon, and we left there about 7 o'clock on the following day.
Q. He kept you about there some time ?    A. Yes sir.
Q. You were a little annoyed, I suppose, at his keeping you there, when you were quite
confident of your towing him down alone ?    A Yes sir.
Q. I suppose you had other contracts, other business; you wanted to be attending to
other affairs?   A. I don't remember just now. 10
Q. You did not want to be stopped at Nanaimo ?    A. No.
Q. What was your object in shaping your course east ? A. Because I thought it was
the proper course.
Q. Will you show us about the place where you changed your course east ? A. Well, it
would be along about here; half to three fourths of a mile off the lighthouse. That is, I
changed my course east magnetic; but I changed it east by south'ard by our compass.
Q. Where was it you changed to east south east ?    A. I thought I was down about here.
Q. Shew the jury where you changed it to east south east where you thought you
were ? A Here is where I thought I was, about there (marking on the chart.) There is
not where I was, but where I thought I was. ■ 10
Q. What was the direction you were steering before you got there ?    A. East magnetic.
Q. That is how you were shaping to steer?    A. Yes sir.
Q. Had you any idea of going through Cowichan gap ?    A. No sir.
Q. No idea at all of going through ?    A No sir.
Q. How do you account for being so much out of your course you say you were at that
point ?    A. By the current.
Q. For which you had made no allowance ? A. For which I had made no allowance.
I knew nothing about it, that is the current that was setting in the direction it was.
Q. Have you seen the same kind of a current this year ? A. I have not been, up there
this year. 30
Q. Had you never seen it previously ?   A. No sir.
Q. Now, when you left the wheel to look at the chart, who did you put there ? A. I
put one of the deck hands there.
Q. How many deck hands did you have on watch at the time ?    A. One.  Q. What was the state of the tide at the time the ship struck? A. It ought to have
been ebb tide.
Q. What was it?   A. I think it was ebb tide.
Q. Did you look and see?   A. I presume I did at the time.
Q. You say you noticed this deviation in the course of the Thrasher, that is that she
was steering to the starboard. How long was that before she struck ? A. It was an hour or
more.
Q. Was it a very marked deviation?    A. I can't say as it was at that time.
Q. Did it become more marked ?   A. I didn't notice her after that.
Q. Was that the only time you observed it ?   A. Yes sir.
Q. Did you consider that as improper steering at all on the Thrasher's part ? A. I can't
say as I did.
Q. If you had considered it improper you would have hailed the ship or something of
that kind and told her to steer differently, would you not ?    A. Oh! no.
Q. You wouldn't?   A. No sir.
Q. Even if she had been steering improperly, you Wouldn't?    A. No sir.
Q. Isn't that the usual course, if the ship is steering improperly, for you to give some
directions as to how she should steer?   A. No sir.
Q. You have never done it?   A. No sir.
Q. When other men say they would do so, that is not correct ?    A. I have not heard 20
any one say so.
Q. Did you hear Capt. Rudlin say that if he was on board of a tug and saw the ship
steering improperly, he would at once hail her ?   A. He might do so.
Q. You wouldn't ?    A. No sir.    I wouldn't tell another ship how to steer.
Q. • What would you do if you saw she was pulling inshore from the effect of the steering?    A. If I know she was going into danger I wouldn't take her there.
Q. What would you do?   A. I would either stop, or I think I would stop altogether.
Q. Wouldn't you haul a point further seaward or something of that kind? A. Likely
I would.
Q. You wouldn't give the ship any directions as to her steering, inform her she was 30
steering badly?   A. If I saw she was going into danger I might.
Q. If it was a-question of impeding you in the way you were going? A. No, I don't
think I would.
Q. At all events you tell us this is the only time you observed how the the Thrasher
was steering and then she was a point out? A. I didn't say she was steering a point
out; I say she was probably steering a point on the starboard side.  46
Q. That was an hour before the accident?   A. Oh! yes, more if anything.
Q. Up to the time of the accident you didn't notice anything more again?    A. No sir.
Q. You say you knew nothing about this rock; were you ever aground outside of
the place where the Thrasher is, to the port side of her? A, The next morning following,
I took a scow down there.
Q. Following the loss of the Thrasher? A. Yes sir, and the captain of the Belvidere
Capt. Johnson, and another captain, I forget who it was, wanted I should bring this scow
up to the stern of the Thrasher to put her anchors and chains in. The vessel at the time
she struck this rock was heading down the Gulf of Georgia. The tide afterwards, the
next day, swung her inshore; she is now lying near due north and south just in a right 10
angle of the position to what she was first. I tried to get this scow up to her, trying to
get a line astern. I couldn't do everything, and stopped the motion of the boat, and was
immediately set right in towards her bow and they contended a little with me, in getting
her up there, so I took more chances than I ought and went up, and when they got the
line the steamers keel caught. I immediately sent a line to the Beaver and took it to the
captain and we heeled off.    Probably we were down there twenty minutes.
Q. Were you not ashore there for three or four hours? A. No sir, no living man
ever saw us there.
Q. You were about twenty minutes ashore?   A.  Yes sir.
Q. This was outside of where the Thrasher was?   A. Yes sir.
Q. How many feet of water do you draw?   A. Eleven feet.
Q. What time did the hawser part between the Beaver and the Etta White? A. A
little after ten.
Q. How far did you go after the hawser had parted?    A. Didn't go a great ways.
Q. Were you aware when the hawser parted?    A. Yes sir.
Q. Did you take any steps to find out the distance you had actually travelled ?
A. That is what I went down for.
Q. Before that?   A. No sir.
Q. You say you went to examine your chart to see how far you had travelled?
A. Yes sir. 30
Q. Why did you not examine the land marks?   A. Because there was so much haze.
Q. Could you have seen Cowichan gap or Portier Pass?   A. I wasn't far enough.
Q. You tell us when the ship struck you could see the Cowichan gap and Portier
Pass ?    A. Yes sir.
Q. The weather could not be very hazy if you could see Portier Pass ? A. Portier
Pass is much more prominent than any other landmarks along there.
Q. Could you not tell from the direction Portier Pass was, whether you were within
your proper line, or whether you were not ?    A. Not exactly.  47
Q. You have seen Richard's book of directions, have you not ?   A. Yes sir.
Q. You know very well if you keep Portier Pass just touching and working up by the
summit of Gabriola Island inside Berry Point, is open clear of the Flat Top Islands the
reef will just be cleared ? You knew very well if you kept Portier Pass touching, you
would be correct ?   A. You can't see those points in the night.
Q. You told us just now you could see Portier Pass ?   A. So I did see Portier Pass*
Q. Wouldn't that have told just where you were? A. No sir. It would in daylight,
if you could look through the Pass.
Q. You tell us you could see Cowichan Gap? A. Yes sir, but you couldn't see exactly those lines. 10
Q. But you could see the gap ?   A. Could see where it was, yes sir.
Q. Well, was that open?   A. It was not so I could look out, I don't think.
Q. Didn't that fact of itself show you that you were a great deal further inland than
you ought to have been when you could not see portier Pass open ?    A. No sir it didn't.
Mr. Davie—Q. You know very well to keep Portier Pass open will always clear
Gabriola Reef ?   A. Always keep clear of the reef.
Q. You suspected land when you found you could not get those points open ? A. I
thought from the way the land lay at the time it occurred to me we were rather close in.
Q. How long before the accident did you think you were rather close in? A. About
five minutes I think. 20
Q. And then in order to find out where you were you went to your chart. Why is
the reason you didn't take some of these landmarks ? A. Well, I didn't think it necessary.
Q. What was the necessity of your going to your chart then. To find out how far
you had come? Would it not be a much longer process to go to the chart than to take
the bearings of some of these points?   A. No, I don't think it would.
Q. Couldn't you tell exactly how far you came by taking bearings from Entrance
Island light ?    A.I had no exact way of taking bearings.
Q. How were you going to ascertain from your chart how far you had travelled ?
A. Well, I thought I could ascertain by the distance we had travelled down there. 30
Q. You say you went to the chart for the purpose of ascertaining how far you had
travelled ? How were you going to ascertain from the chart how far you had travelled ?
A. Well, I should judge from the speed we had been making.
Q. How were you going to find out from the chart the distance you had travelled ?
A. I knew that we were here (showing here) about a little after eight o'clock and this was
ten, and I thought we were going about six knots, and I thought to space that off, it
would tell me how far I was down.  48
Q. At the same time you say you thought you were rather close to the shore ? A. Yes
sir, I did think I was rather close to the shore.
Q. Did you calculate when you went down this course, that you were inside or outside this "view" when you came from Entrance Island? A. Well, I calculate to be on it,
that is what I thought.
Q, When you were on the "view" could you see the land very plainly ?    A. Yes sir.
Q. How far is that from the land. About a mile and a half or two miles ? A. About
two miles I should judge.
Q. But now, as a matter of fact, knowing what you have since discovered, how near
the land were you during the whole time when you came down there ?   A. I was not look- 10
ing at the land the whole time, I had something else to do.
Q. When you found that the tide was carrying you in here, which you didn't know
anything about, how far do you consider now you were from the land ? A. How do I
know when I was not looking at it.
Mr. Drake—Q. You^say you caught the keel of the Etta White in getting that scow
alongside, how far is that from.the Thrasher? A. Just the length of the steamer, about
90 feet.
Q. You found fresh water along there didn't you ?   A. Yes sir, the water was fresh.
Q. You used it for your engine?   A. Yes sir.
Q. Used it for the boilers I should say ?   A. Yes sir.
John G. Barnston, barrister at law, residing at Nanaimo. Appeared at the enquiry before Mr. Peck on behalf of the Etta White—Remember Jagers being examined and Mr
Peck reading the evidence over. At the time the evidence was read over an objection
was made to the correctness of the evidence as taken down by Mr. Peck. I think the objection was made first by myself, Mr. Jagers concurring in the objection. I do not think
Mr. Peck alterde the deposition The objection was taken before the signature. Mr.
Peck insisted that the words of the witness were correctly taken down. I was instructed
not to press the point and I desisted in the objection. Mr. Jagers was self possessed
enough; neither did he appear to be very much confused. He said there was an objection to the evidence and objected himself, but he did not persist in it.
Cross-examined—I think it was Captain Smith who instructed me to waive the objection to the evidence.
William R. Clarke—Am an auctioneer at present; hold a master's certificate, 25
year's experience in the navy and mercantile marine.. Been second in command of a
steamer on this coast for about twenty years. Was in the Forward gunboat when we
arrived and afterwards in the Sir James Douglas. Know all these waters very well. Am
I member of the Pilot Board; know the charts; know the abbreviations; have seen the
place where the Thrasher lies. I went withvMr. Baker when he made his survey; I was
sent to assist him. He went to find out the exact position of the Thrasher. Mr. Baker
took the angles, I took the degrees, while he called the angles out I marked them down.
I never in my experience knew the rock where the Thrasher lies; I have been around in
that direction but not close enough in to find it. I have never seen it and never heard
of it.  w
49
Q. From your experience, if there is a strong curreut setting across the Fraser river
on to these reefs and a heavy loaded vessel steered to the starboard, would that have any
effect of drawing the tow boats off the course that they reasonably laid down from Entrance Island?   A. Most certainiy.
Q. They would still really keep head to the proper course, but sag in ? A. Sag in,
they would sag in to the starboard the whole time.
Q. But by the compass?   A. They would be still pointing their course.
Q. What you call drifting to leeward isn't it ? A. Drifting to leeward. If she
was steering east and still sagging in she would be steering to east still. It would
all depend upon whether the captain or the pilotis doing his duty to watch that sag. 10
She would be steered E. N. E. perhaps to make east good. If a vessel is making four knots
an hour and the tide making two the vessel is sagging into the land two miles an hour. I
think the duties of the master of a merchant ship are very responsible. In the first place
I should no more think of- leaving Nanaimo with a vessel of 24 feet of water under my
f jot without a pilot, without I wished to consider myself a pilot. I consider that the
captain who leaves a harbor without a pilot should have five or ten minutes consultation
before leaving the wharf, directing what course he should steer and where the vessel
should be put, through what passage, and the captain to attend to the whole business
until he was in safe ground. That is the duty of that captain and if he does not take a
pilot the responsibility is his and the command of the steamers, if there are a dozen, are 20
under the command of the captain of that ship who represents the pilot. There is only
one man on board his ship and that is Captain Bosworth. The captain ought not to have
gone to bed. He ought to have dictated the course before he left; and another thing, he goes
past a lighthouse three quarters of a mile off; there is no bearing taken; he then goes along
when he could have done it he ought to have dictated the course to the steamers. He
ought to have taken another bearing again and find which course he was going. It is not
the business of the steamers to find what course they were going, but he was to tell the
course, find what course he was going down in that channel. The tug boats are responsible for themselves alone. If the hawser broke and if the wind came on, or the fog
come on what does Captain Bosworth know about it ? He is absolutely jeopardizing 30
a hundred thousand dollars belonging to other people because he didn't take a pilot.
A course magnetically east, such as has been described in evidence here with vigilance would have been a correct course, because the captain or pilot would have watched,,
but if it were me I should not go so near; I have laid down Mr. Baker's line that he has
laid down with reference to the sailing directions. Mr. Baker consulted me on those
directions. I might say Mr. Baker did the whole work. I checked him and put down
his angles as he read them off. Those directions are for every class of vessel, particularly
for sailing vessels; steamers can go a great deal closer. I know Capt Urquhart; I made
him a pilot; he is a good pilot.
Q. He said in his evidence he has gone frequently within a cable length of where 40
the Thrasher is now lying?   A. I don't know, I might have taken the same risks myself
but I never did.
His Lordship—You wouldn't do it on purpose ? A. No my Lord, I wouldn't do it
on purpose without it was blowing very hard. Urquhart is a good pilot and a safe man.
I can say his local knowledge for the short time he has been there is equal to those who
have been there three times the time he has.  50
Witness—I may add my Lord and gentlemen that the reason I have not gone closer
in, I have simply followed the "Vancouver Island Pilot." I have never gone closer in
than the marks that have been made. If I had been in distress I might have gone in
there too.
Mr. Drake—There are no marks on the chart at all events. The line on the chart
shows that there is a limiting danger line?   A. Yes sir.
Q. Have you seen the chart that there is a circle with "2" under it to the south of
this reef?   A. Yes sir.
Q.  What is the meaning of that ?   A. It means that that is the extent of danger.
Q. No, no,, look at the chart will you ?   You will see underneath that there is a little 10
circle?   A. Round the reef?
Q. No, underneath it, to the south of it. What does that mean ? A. That means a
rock.
Q. Unknown rock ?   A. Unknown rock.
Q. Probable rock? A. Probable rock, danger there is on the inside; that is a rock.
Eleven fathoms are marked on the chart where the Thrasher lies. From my experience
as a pilot and nautical knowledge if there is a pilot on board the pilot takes command of
the ship under the superintendence of the captain, the responsibility never ceases. The
pilot gives the orders to cast off. If the pilot is not there, I suppose the captain gives
his orders to his first officer, and then he takes command, he takes the pilots place, but 20
the captain's responsibility never ceases until she is back to her own home, and in the
shipmaster's hands, and he is on leave.
Q. When you were up on this expedition with Mr. Baker did you find a channel
lying between the reef and .where the Thrasher lies ? A. We did and anchored in seven
fathoms, midway between the big reef of Gabriola Island and the Thrasher; the smallest
water we had there was five fathoms or five and a half. Lots of vessels have gone through
there; numbers of men in this place have taken ships through there.
Cross-examination—Q. Are there not several points in the vicinity of these reefs as
known where you canget seven and eight fathoms of water ? A. I am not aware; the only
time I told you I have ever been there is when I was with Mr. Baker. That is the only
time I ever was near the Gabriola reefs at all. I am not aware that there are channels running between several of thereefs. In the sailing directions you will see that the dangerous
cluster of rocks is half a mile only—the Thrasher rock if included is only a mile. I obtained
my master's certificate in the Royal navy. My position in the navy is a gunner and a
sailor^too.
Q. All men are more or less sailors ? A. No, there are some that are better sailors than
others. I consider myself one of those. I was employed on the gunboat Forward not as
navigating lieutenant but as gunner. I assisted the captain in navigating the ship from Rio
for six weeks when the captain was laid up on his beam ends, with a broken chronometer
too. When I was engaged in the Douglas her course was inside Gabriola Islands altogether, 40
not going through the straits of Georgia at all but going out into Stewart's and other channels. Have been at Gabriola reef a hundred or more times. Have towed ships up and
down.    I always obeyed the sailing directions; they are when you go up.    I generally keep  w
51
mid-channel and when I got up abreast of the Flat Tops and take hold of Berry Point on
Notch Hill in day light, and if it were night I went out into the middle of the gulf the same
as any commander would.
Q. Any prudent commander ? A. Yes sir, a man who does his duty, shaped a course
and gave his directions. I have often experienced currents there. I suppose all sailors have
more or less. I always obeyed the pilot or the commander of the ship that I was towing and
I made arrangements with that commander before we left port how we were to steer, where
we were to go, and what was to be done generally. That was the arrangement made before
I started and every good commander does the same thing, or otherwise he gives no course,
and five minutes before leaving the dock, that makes all the mischief. 10
Q. When you were towing along there in a ship, where you mention, and when you observed the current setting in there what would you do,Jin order to prevent the effect of that ?
A. You must consider I am no sailor at all. What is the use of humbugging me this way.
I should simply put her a port and take her out. You don't suppose I am a ninnie with
my 21 years' experience in this country. I am not going to be turned around, and twisted,
and distorted. I don't think it is right. I shall appeal to His Lordship if I am to be asked
any more such questions.
Q. You said you would put your helm a port if you found the current setting in; would
you have any difficulty in ascertaining. Did I understand you to say you would put your
helm a port ?    A. Yes sir, I did. 20
Q. And then you would go further in land. Would not putting your helm to port, if you
were steering with the wheel, take you in shore ? A. You don't appear to understand. You
know the wheel gives the reverse.
Q. Would not putting your helm a port take you in shore? A. Perhaps I made a mistake
between port and starboard. Yes I have made a mistake. I felt so annoyed by your cross-
examination that I made the mistake.    You should put your helm a starboard to keep out.
Capt. George Faulkner—Master of City of Quebec, 22 years at sea; would not going
into strange pilotage waters attempt to take my vessel without a pilot. Should consider it
my duty before leaving a port in pilotage waters to lay my course, and know where I was
going from the pilot. Should consider it my duty to see the ship was making a good course, 30
to keep clear of all dangers at all times My responsibility never ceases whilst I am in
charge of my ship, pilot or no pilot.
Q. Would you consider it the duty of a jria^er1 in chjirgej of a large vessel like the
Thrasher, a ship and cargo worth a hundred thousarid"dollars, Vould you consider it your duty
as master of that vessel to go to bed; in strange waters,:without having laid any course, and
not knowing where you were going ?    A. Decidedly not.
Q. Would you consider a master'whoJ dittany act'tfPthat kind guilty of negligence?
A Most gross negligence.
Q. What would you expect would happen to you as master of the vessel if you did a thing
of that kind ?   A I should expect to have my certificate cancelled, severely reprimanded, 40
and my prospects ruined for life.  52
Q. You wouldn't expect to get a large vessel immediately afterwards from the same
owners ?    A. Sometimes it does happen.
Q. What do you mean ? A In such cases where there is a case on they have got to
give a master a ship afterwards to shew that they have got confidence in him.
Q. Is that it ? You, under those circumstances wouldn't be surprised to hear it stated
by counsel in opening his case, that Capt. Bosworth has a ship now from the same owners ?
A. I have known lots of cases the same.
Q. What is generally the result, suppose the case is decided against the owners, what is
the result with the captain then ? A. Well, the first opportunity he gets paid off I have
known the case several times. 10
Q. Now, another question as to duty of the master in charge of a vessel, if you were
going in strange waters, even with a pilot with you, would you not have a chart laid out in
your cabin and take your course from that and see that your ship was keeping your course ?
A. Decidedly I would.
Q. More particularly, I suppose, if you were going into these strange waters at night ?
A Yes sir.
Q. Well, suppose that you had a pilot on board you ship, and the most powerful tug you
could get in these waters, would you consider then, as a master of that ship, you were relieved from your responsibility ?   A. No.
James Christensen—Was in charge of the Beaver on the 14th July last; recollect going 20
to Nanaimo and taking the Thrasher's hawser; she was lying alongside the coal wharf at
Nanaimo. The orders to cast off were given from the ship; suppose from the captain; had
no conversation with the captain previous to leaving as to the course we were to take. He
did not tell us which way he wanted us to go. The deviation of our compass on an east
course is a point and a half. Took charge of the Beaver, May, 1880. Knew how much our
compass was out by repeatedly trying it with the courses laid on the chart; always run by
that as a recognized deviation; after passing round Entrance Island when the Thrasher was
in tow laid my course off, to make good an east course, that is the course I always steer. I
am not a pilot from Nanaimo; I was steering when we rounded Entrance Island. When I
gave up, Jagers the mate, took the wheel. I think he was a competent man; I tried him 30
several times and found him very trustworthy. Saw Bosworth after the accident. He
came on board the steamer Beaver; he told me that he told his helmsman not to mind steering after the old Beaver but steer after the Etta White. The effect as I suppose must be to
set the vessels off to one side, all three bodily. I could not say how much, but it had some effect
in my opinion. There was a very strong current against us on the port quarter. I found it
out after the ship was ashore. When we started from Nanaimo we got no further orders
from the ship than to cast off. I was told to go ahead. He sung out from the ship to
go ahead. I could not say whether it was the captain or not. My duty as master
of a tug boat with regard to the tow is to keep ahead of the ship as nearly as possible, and to look out to hear if any orders are given by the ship and attend to them. I could 40
not say how far the Thrasher was off to the starboard of the Beaver when the accident
happened; the ship was ashore when I came out and of course the Beaver was off about a
point and a half at one side at that time, but then the ship was ashore at that time. I don't
know how she was before.    I could not move the ship, although I tried.  w
58
Cross-examined—After passing Entrance Island the course by our compass was E. by S.
quarter S.; the true course was E. quarter N. when I went off deck. It was about 8:30 when I
went off deck. I went to my room; I never before discovered the current setting inshore so
I could not account for the ships getting inshore only when Capt. Bosworth came and that
report was told me; I came .to the conclusion it must affect the ship and the tow; he told me
that about two o'clock of the afternoon after the ship was ashore; I gave evidence before the
receiver of wrecks; don't remember saying anything about this there. Evidence given before
of wrecks put in same as follows :
"James Christensen, master of tug Beaver, sworn—We left the wharf about 7 o'clock in
the .evening of the 14th; Etta White was towing ahead of the Beaver; passed Entrance Is- 10
land about quarter past eight. Set the course down the Gulf E. by S. quarter S. by Beaver's
compass, being one quarter of a point more east than usual; compass out about one and
a half point; I then set the watch; 1st officer on deck; I then turned in, giving order that if
anything went wrong I should be called; I did not say anything about altering the course; it
was a fine calm night; I considered that we were going about- five and a half or six knots;
considered that at that rate we would be at the Flat Tops in one hour and a half; I do not
alter my course until I get well clear of Gabriola Reef; I did not give the mate any instructions to call me at Gabriola; I am a Victoria pilot in good standing; I do not remember if I
was informed of a pilot being upon the ship; I consider my first officer a competent man who
has been many times up and down at night; I did not come up upon deck until the ship 20
struck. The ship's crew passed the hawser aft; I started to go a head but the captain
stopped me, saying that the ship was filling fast and he was afraid to take her off into deep
water; she struck about half past ten; I did not think the rock was as far out as it is; I did
not consider it quite safe to tow as close as the Thrasher, but I believe that vessels have
towed down as close; I consider now that it will not be safe to tow down within a mile and
a half of the Beacon; I am not now a licensed pilot for Nanaimo.
(Signed)        James Christensen."
"Sworn to before me this 11-th day of August, 1880. (Signed) T. Eric Peck, Receiver
of Wrecks."
That is my signature; don't know what the object of the enquiry was; I suppose it 30
was an enquiry to ascertain what the cause of the ship stranding on the rock was.
Q. Now, as Capt. Bosworth had already told you that he directed his course after
the Etta White, and you had concluded that such action on his part was what caused the
ship to go out of her course, how is it you didn't state it at that inquiry ? A. Well, because I suppose I never thought of it at the time.
Q. And you say that you are not a Nanaimo pilot?   A. No. sir.
Q. Did you hold a certificate before the different districts were divided ? ' A. I did.
Q. You hold that now, do you not?    A. Yes sir.
Q. That is a certificate authorizing you to pilot in the whole of the waters of British
Columbia?   A. It was then when I signed, but it is altered since then. 40
Q. Who has altered it, the authority who gave it to you? A. No, the pilot commissioners of Nanaimo stopped us from piloting to Nanaimo.
Q. You mean by that that they have stopped you from collecting your fees ?
A. Certainly.  54
Q. Nothing to prevent you from piloting then if you want to ? A. Still we don't
expect to pilot there without getting paid for it.
Q • Still you are competent to do so if you choose ?   A. I suppose so.
Q. What is the ordinary way of testing a ship's compass and the deviation of them ?
A. It is by swinging the ship round.
Q. How long before the Thrasher accident was it that the Beaver was swung round ?
A. Well, swung round a good many times, sometimes they swung around in 24 hours half
a dozen times; she was not swung for the purpose of testing her; but when I had her on a
different course.
Q. She was not swung for the purpose of testing her compass ?   A. No.
Q. When was she swung for the purpose of testing her? A. That I don't know, I
can't say.
Q. You have done a good deal of towing ? A. Well, I had not done a good deal of
towing then.
Q. Isn't it the usual course when you find a ship is sagging to one side or the other
to counteract that by the movements of the tug ? A. Yes sir it is the course, of course.
It is usual to counteract when it is thrown out.
Q. Do you know whether any effort was made to counteract the sagging of the ship
in this case ?    A. I couldn't say.
Q. If you had been on deck and observed the ship sagging towards shore, or keeping 20
as described, would you have done something to counteract that?   A. Not without orders
from the ship to have done so.
Q.  Would you not call the attention of the ship to it?    A. I would not.
Q. Would you not, knowing it is a dangerous thing for the ship to do ? A. Well, it
might possibly be then.
Q. If you had seen she was liable to cause any danger, would you cause something
to be done to counteract it ? A. If there was any danger to the steamer I had charge of,
I would most certainly have avoided that danger.
Q. Would you not also to the ship ? A. I had no charge of the ship; I could not
dictate to the ship where to go.
Q. You would have warned the ship ? A. I didn't consider it was my place to interfere with the ship.
Mr. Drake—Q. What water does the Beaver draw ?   A. Ten feet.
Capt. James Ramsey—A British Columbia pilot; have been so for a good many years;
have piloted many vessels between Victoria and Nanaimo; am not a Nanaimo pilot; never
saw the Thrasher rock before; I have been very close to it but have never seen it. I
piloted the Victoria out of Fraser river the morning after the Thrasher struck and passed
close to her; the current was very strong on that day; I had no difficulty in bringing the
Victoria out on that occasion; the gulf was full of fresh water; it was sending fresh water  w
55
all through all the passes at that time all around where the Thrasher is now; have always
had the tugs under my directions when piloting; the pilot takes his place on board the
ship; in signalling the tugs sometimes you cannot make them hear, at night especially;
when there are very few men on deck on board of the tug and they are not going according to the pilots' directions all he has to do is to put his helm hard to starboard or hard
to port, that would turn them right around     I have commanded tugs.
Cross-examination—Q. Is that current you speak of unusual about the time of the
year that you mentioned ? A. There is a few months in the year when the Fraser river
is high, that current is always there; it is there how; June, July and August you will
always find it there, sometimes later than that, sometimes earlier. The time I towed a 10
ship near the place where the Thrasher lies was when the Victoria came down. I came
within about a cable and a half of where she is lying. I considered it safe at the time.
I was a good way within the "see view." It was in the day time; I would not likely be
so close in at night. I would be a great deal further out. I have seen a great many of
the rocks round where the Thrasher is. I have not taken any particular soundings around
them. It was not my business to do so. It is customary for vessels in tow to take pilots
and the pilot has charge of the ship.
James Douglas Warren—Have been engaged master of towing vessels four years or
more. In command of Beaver three years before Thrasher accident. Have towed and
piloted vessels to Nanaimo and back; never heard of the rock that Pamphlet and others 20
speak of until the Thrasher struck; have never seen it; have towed within half a mile or
less of it. Recollect seeing schooner Experiment on Gabriola reef. The rock on which
she was must have been at least 600 yards from where the Thrasher is. I should consider
it the most northern rock of the reef. Do not know from personal experience how far
the Thrasher is from the beacon but she is a long way off. The variation of the Beaver's
compass differs in different localities. On an east course the variation would be about a
point and a half. I have ascertained by steering courses repeatedly and repeating, steering courses and comparing it with courses on the chart by taking them from the chart.
Have been coasting on these waters more or less since 1858.
Cross-examined—I have been in most all the waters in British Columbia. I never 30
went in where the Thrasher is to take soundings prior to her wreck; never went there and
stopped over a tide. I passed there so often that I should think I would have seen it, but
I never have. I know that the admiralty circular states that it dries at low water a foot
and a half, but that must be only two or three times a year at extreme low tide. I have
never been through inside of the Thrasher channel, but I have been inside Gabriola reef;
About two years ago since Experiment Avas ashore. I only saw her in passing; I could
see the rock, it was bare; I am a member of the defendants company, the "Towing Company"; I hold a certificate to pilot my own ship. I have towed numbers of ships up and
down to and from Nanaimo without a pilot.
Henry S. Mason—A barrister; was the commissioner who took the evidence of Bos- 40
worth and Larsen; on the occasion of taking the evidence the seaman Larsen had just
stated that he was told by the captain to steer after the Etta White and not to take any
notice of the old tug Beaver, that she could hot steer; that she did not steer well. Then
the captain speaking to the witness under examination said, "Why do you say that," or
words to that effect. Larsen came forward a step or two and said to the captain, "Didn't
you tell me to steer after the Etta White and not after the Beaver." Capt. Bosworth said
"Well, perhaps I might have done so," or words to that effect.  56
The London Gazette, October 29th, 1880. (5477)    Notice to Mariners.    (10,193)   North
America—West Coast Vancouver Island—Straits of Georgia—Gabriola Reefs.
Information has been received that the beacon erected by the Canadian Government
on Gabriola Reefs, near the eastern end of Gabriola Island, stands on the largest ledge
which covers at six feet rise of tide. At the distance of nearly six cables N. 15 deg. E.
from this beacon and about two cables' length seaward from the end of the Gabriola Reefs,
a detached rock which dries 1^ feet at low water, spring tides, has been found in the kelp
which marks the neighborhood.
There is 11 fathoms within a cables' length of the rock on its seaward side and be-
twean it and the Gabriola Reefs there appeared to be a depth of about five fathoms over
a rocky bottom
Berry Point bearing W. J S. (Avell open of Flat Top Point) leads about 1 mile northward of Gabriola Reefs and the above detached rock. The entrance points of Portier
Pass just touching on a S. S.E. J E. bearing lead eastward of the reefs.
[Pilotage Certificate of witness Scott, produced by him in evidence.]
Dominion of Canada. Pilotage District of British Columbia Licensed Pilot, No. 11.
We, Roderick Finlayson, William Raymond Clarke, and John Devereux, B. C. Pilot
Commissioners, being the pilotage authority having by law poAver to examine and license
pilots for the Pilotage District of British Columbia, do hereby certify that William Scott,
of Victoria, B. C, having been duly examined by us has been found in all respects duly
qualified, and is deemed by us to be a fit person to undertake the pilotage of vessels of
every description within and throughout the said pilotage district of British Columbia,
and on this fifteenth day of October, A.D. 1877, is by us licensed to act in that capacity.
This license cannot be lent or transferred." "ROD'K FINLAYSON,"
"W. R, CLARKE,"
Registered 22:5:78. 'JOHN DEVEREUX."
EDGAR CROW BAKER, Secretary.
[Description of William Scott.]
The Judge charged the jury and left to them the following questions, which were answered as shewn.   The Plaintiffs' Counsel took several exceptions and required additional    30
questions to be submitted.
by the juey.
Question—Did the defendants, or either, and which of them, at any time contract to
tow the "Thrasher" from Nanaimo to Fuca Straits Avithout a pilot engaged as such by the
"Thrasher?"
Answer—There was no contract made by either of the defendants to tow the Thrasher
from Nanaimo to the Straits of Fuca without a pilot, neither was there any direct stipulation in the contract Avhich was made between Captain Bosworth and (the agent) Mr.
Saunders, of the British Columbia Towing and Transportation Company, that the vessel
should take a pilot.
Q.—What was the magnetic compass course taken by the tugs from Entrance Island?  57
A.—The magnetic compass course taken by the tugs was about due east from Entrance Island, which course was changed by the '' Etta White" some ten minutes before
the "Thrasher" struck.
Q.—Was any specific compass course (or any other course) given by the tow to the
tugs, either by the captain or other officer ?
A.—No course of any kind was given by the tow to either of the tugs by Captain
Bosworth or any of his officers.
Q.—At what time did the captain of the "Thrasher" go to bed ?
A.—-We are of opinion that Captain Bosworth left the deck about a quarter to nine
o'clock.
Q.—Did the captain of the "Thrasher" direct his steersman to neglect the "Beaver's"
course ?
A.—Captain Bosworth did instruct his steersman not to follow the course of the
I Beaver" but that of the " Etta White."
Q.—Was there any current and in what direction? Would it have been probably
noticed and allowed for by a competent pilot on board the tow or either of the tugs ?
A.—There was some current setting in shore and we are of opinion that same would
have been noticed and allowed for by a competent pilot either on board the tow or either
of the tugs.
Q.—Was the "Thrasher Rock" a generally well-known rock previous to the accident?   20
A.—We are of opinion that the "Thrasher Rock" was not generally well-known prior
to the accident.
Q.—Did the Captain of the "Thrasher" follow a reasonably direct course after the
tugs?
A.—We are of opinion that the captain of the "Thrasher" did follow a reasonably
direct course after the " Etta White" but not after the " Beaver."
Q.—Did the accident take place with the actual privity of either of the defendants ?
A.—The accident did not take place with the actual privity of either of the defendants.
Q.—Did Captain Bosworth take proper and what precautions as captain of a tow
should, such as to take notice of the rate and real direction of the progress ?
A. —We are of opinion that Captain BosAvorth, as captain of a tow, did not take proper
precautions as to noticing rates of speed and real direction of his vessels progress.
Q-—At the time of the stranding what'-was the value of the "Thrasher," of the cargo
of freight; if no evidence, say so?
A.—There is no evidence to show the value of either ship, cargo or freight at the
time of stranding. [Signed], H. Beown, Foreman.  58
On the 4th and 7th days of July, 1881, the Plaintiffs, pursuant to notice, duly applied
to the Chief Justice to enter judgment for the plaintiffs for $75,000, but on the 11th day
of July, 1881, the Chief Justice, upon such motion, directed judgment to be entered for
the Defendants, and the following is such judgment.
[NAMES OF PARTIES]
Monday, the 11th day of July, 1882.
The action having on the 26th, 27th and 28th days of June, A. D. 1881, been tried
before the Honorable Sir Matthew Baillie Begbie, Knight, Chief Justice of the Supreme
Court of British Columbia, and a special jury of Victoria, and the jury having been discharged without finding a verdict expressly either for the Plaintiffs or Defendants, but
having answered certain questions put to them by the Judge as appears by the certificate
of the Registrar, and now upon this day motion is made to His Lordship the Chief Justice, on behalf of the Plaintiffs (pursuant to notice duly given in that behalf) to enter
final Judgment in favor of the Plaintiffs for the sum of seventy-five thousand dollars and
costs of suit, and the said motion having been debated by the Counsel on both sides, His
Lordship did adjudge that judgment should be entered for the Defendants with costs of
suit. Therefore it is adjudged that final judgment be entered for the Defendants, and
that the Plaintiffs do pay the Defendants their costs of suit, to be taxed by the Registrar.
By the Court,
[seal] James Chaeles Peevost,
Registrar Supreme Court, B. C.
And the reasons for such judgment are as as follows:  w
This is an action for damages by a tow against two tugs, the tow having been taken
on a rock, which I shall call the " Thrasher" rock, as the plaintiffs allege by the negligence of the tugs. The tugs put in several defences; they deny the negligence; they
allege an unusual current; they allege that the rock was an unknown danger; they allege
that the accident was due not to their own negligence (if any) but to the negligence and
errors on the part of the tow—active error in that the tow mis-steered and otherwise failed
in her duty; passive negligence in omitting to take a pilot to keep on the course takori
by the tow. The case, as regards the facts, was discussed for some days before a very
patient and intelligent jury, who found several facts, I think in answer to 9 or 10 questions, some of which, however, they left in doubt, but not material questions, or such as 10
I shall hesitate to form an opinion upon myself.
The first matter to be decided on, is as to the cause of the accident. Negligence,
somewhere or other, there must have been to run on the ' 'Thrasher" rock on such a night.
The negligence alleged against the tugs is, that they did not take and keep a proper
course, according to the sailing directions from Entrance Island, and that they openly
steered into a well known danger on a clear, calm, bright moonlight night. I do not
think any other negligence is alleged on the tugs. The onus of proving this negligence is
on the tow. (Spaight and Tedcastle, per Lord Blackburn.) The fineness of the night
is admitted, but of the other instances of negligence two are negatived, and I think on
the evidence, most properly negatived by the jury, who have found that the "Thrasher" 20
rock was not generally known, and that the tugs laid a proper and safe course from Entrance Island: viz: E. or E. -J N., magnetic. It is quite certain that the plaintiffs' third
allegation is correct, viz:—That this proper course was not made good, although it is in
evidence that the tugs adhered to this magnetic course by compass; but the course actually made was deflected by causes which I shall consider presently. The jury, however, find, and I fully agree with them, that this deflection, and the unusual circumstances likely to cause it might have been noticed by any competent pilot or seaman on
board either of the three vessels. I suppose that if any person on board either of the
three vessels had taken a back bearing of Entrance Island light, it would have been at
once apparent that they were not proceeding E. magnetic from that point, that they were 30
departing from the course first laid and which is recommended in the sailing directions;
and witness after witness said that any intelligent school boy of 15 could have told them
that they were so departing. It is, I think, disproved that the tugs knew they were going
into danger, and in fact there was no apparent or known danger. They struck 1200 yards
N.E. of the beacon on Gabriola Reef, but it is quite clear that they were not proceeding
according to the sailing directions and that they might have easily recognized that fact.
In my opinion that is negligence on the tugs. Was it this negligence which caused the
accident? I think negligence may be of two sorts. Simple neglect, as the neglect of the
tugs in this instance to take a glance backward over the compass towards Entrance Island
light, or a glance over the side of the vessel to see whether there were any signs of a 40
freshet, which, though unusual generally, might surely not to be unlooked for at the time
T)f the year.    I do not think any other sort of neglect is to be attributed to the tugs.
The other sort of neglect is, a sin against knowledge, as where a tug hears but deliberately disobeys the orders of a pilot. (Spaight vs. Tedcastle, 6 App., Ca. 220) or deliberately sails on the inside of a known beacon. (Robert Dixon, 5 P. D. 54.) This is evidently a neglect of a much higher degree of culpability and indeed different in kind. It
is the "culpa lata" of the Roman law (incorporated in our maritime law) "que aquipara-
tur dolo" (i. e.) which is deemed as bad as a fraud.    And Lord Blackburn (6 App. Ca. p.  *w
226) seems to say that even contributory negligence in a plaintiff cannot avail as a defence
against the consequence of negligence of this kind in a defendant. The cases are many
in which the relative duties of tug and tow are spoken of by the judges. I do not know
of any in which any full and decisive definition has been made necessary foi the judgment delivered. The law is doubtless often laid down, but in general terms, and each
judge speaking Avith reference, indeed, to the case before him and influenced by its circumstances, but not deciding any point necessary for his judgment. Accordingly we
find'detached expressions by the judges of the very highest eminence Avhich may be quoted
in favor of the tug and others in favor of the tow. A great question in such cases generally is: Who is responsible . for the course laid and made ? The tow or the tug ? Per- 10
haps the custom in particular ports might in time acquire considerable weight, and I was
informed as a matter of fact that the doctrine in the U. S. courts upon some points of
towage differs from our own, and there seemed to be some difference of opinion not unusual in a collision case among the nautical witnesses here. I think that this would be a
very mischievous notion to encourage. It would be most embarrassing if captains of different nationalities coming to distant waters were to find any peculiar rule in force, nor
do I believe maritime law to be so uncertain.
The contract of towage is merely a contract to supply motive power. It is not a contract of pilotage at all. Neither can it now be argued that the tug impliedly contracts to
tug safely. That would be a contract of pilotage of the highest degree. The only im- 20
plied contract on the part of the tug in that relation is that it will not exert its powers in
a way of danger manifest to any person possessing a local seaman's common knoAvledge
(not a pilot's local knowledge) will not run on a well known rock or on the wrong side of
a visible, known beacon. Having to provide power, she is bound to find sufficient coal or
steam, hawsers of proper strength and fittings, and competent engineers and crew sufficient to work the tug herself, with a steersman to follow the course approved by the tow,
and to look out for known dangers, and she is bound to obey all reasonable orders from
the tow. I do not know that she contracts for anything else. But the tow also has duties
to perform to the tug. It is her duty to her owners as well as to the tug to watch the
course laid; to watch the course made, the state of currents and weather, and the indi- 30
cations of them, the rate of progress through the water and past the land, the distance
from the shore, the soundings if necessary, as" well as any visible or indicated dangers
ahead, and to consult all the means, (e. g.) charts, sailing directions, compasses, etc,
Avith which a well found ship is provided, to judge of these points. When the tow takes
a pilot, even in compulsory pilotage waters, (which these are not) it is still the duty of
the captain to see to these things, and in addition to see that the pilot sees to them. And
it is the duty of the tow to the tug to direct the course which is the object and outcome
of all these observations, and to communicate with the tug if any observed circumstance
indicate danger. These duties are reciprocal and if either tug or tow fail in her duty and
damage accrue to her inconsequence she cannot complain. If for instance the tug run 40
short of coal, and she does not inform the toAv and loss ensue she cannot say, "If the tow
had ordered me to go half speed or to wait for the tide at such a place my coal would have
sufficed." It seems very obvious that the duties here assigned to the tow can be much
more efficiently performed by her than by the tug. The tug has a much smaller crew, a
less commanding height of observation, possibly no charts and generally carries no pilot.
She knows she is the servant of the tow and naturally expects orders from her employers.
She devotes her attention to that alone for which she is hired, viz: the supply of motive
power. In many instances, as where she is moored alongside the tow, it is almost impossible that she could perform these duties.    And when, as in the case now in hand,  two tugs are employed, on which of the two servants does the responsibility devolve ?
And yet there must surely be but one rule in all cases alloting the relative duties of tug
and tow. I lay aside the cases of emergency, salvage, etc., or manifest incompetency in
the directing power on board the tow or obvious danger. In imminent danger the conditions of master and servant may be properly reversed. But in the normal state of things
the servant must wait for orders and obey them.
The captain of a ship cannot divest himself of responsibility by devolving his authority upon another, or by adopting the suggestions of another person. So long as he continues captain at all he is responsible for performing the duties of a captain and for the
act and neglects (not being violations of duty) of those whom he chooses to employ. It 10
required an act of parliament to exonerate him from this responsibility even in compulsory pilotage waters and then only when he can show that the damage has occurred
through the fault of the pilot (not selected by himself but imposed by the Legislature)
and without any fault or neglect of his own. He remains responsible whether there is a
pilot on board or not and whether the pilot is of his own selection or not. It would be
strange if without any act of parliament he could shake off his responsibility by refusing,
to take a pilot at all. All the authorities are unanimous that it is the tow who has to direct the course. Even in cases cited for the plaintiffs where the unexplained language of
the judges would seem to give the tug that power, when the language is read in the light
of the decision and the circumstances, it shows the real meaning to be the other way. 20
Thus in Spaight v. Tedcastle (6 App. Ca. H. L.) Lord Selborne says (p. 219, Sub fib.) the
master of the Ruby was in my judgment entitled to assume that the master of the tug
knew what he was about, and would do what was necessary to avoid getting, on the bank
unless the contrary manifestly appeared, and the plaintiff's counsel relies on those words..
But what was the actual point decided in that case ? The tow had a pilot; the pilot had
directed a certain course, and the tug had disobeyed him and carried the ship on a well-
known local shoal The tug was held responsible. Why? Expressly because it had
disobeyed the order of the pilot, "culpa lata''; "and though the pilot had been thereafter
guilty of an error of judgment," says Lord Blackburn, "that would not excuse the original and far graver error (in kind, not degree only,) of the tug." Now, why was the error 30.
of the tug so grievous in disobeying the order of the tow? It could only be because the
tow has the right to command. But the right, or power, involves, necessarily, the responsibility of commanding or acquiescing,—and that means a duty. It would be very
strange if the tow should be and remain responsible if they give any express direction as
to the course, but that by omitting this duty she should be able to avoid responsibility
and acquire the guarantee of the tug and her owners for a proper course being taken. If
such a proposition were maintainable, then it would become, not negligence, but the duty
of the captain of every tow towards himself and his owners to do as captain of this tow
did and go to bed as soon as he got well secured to the tug. The relations of the tow
and the tug as employer and employed are, if I may venture to say so, well laid down in 40
"The Energy" [3 L. R. Ad. and E. 34, 56,] and The Julia freely cited in the judgment
there; and also by Lord Blackburn in Spaight and Tedcastle p. 220. These doctrines
have never been doubted by any judge and any "dicta" which at first sight seem to differ
from them will, on examination, be found to support them. They not only flow directly
from the doctrine of employer and employed and the authority of the master of a ship
over all things connected with the navigation of his ship but I would venture to point
out they are based on the reason of the thing as regards tow and tug, both as regards
economy and efficiency. The tow employs the tug to take her to the haven whither she
would go, therefore the tow should direct the tug.    The tow can with much more ease and  accuracy observe, select and direct the course; therefore let her do so and not the tug.
The tow would'have to pay much more for the services of the tug if the latter were to be
compelled to carry additional crew, equipments and a pilot and moreover to undertake an
additional guarantee for a duty which after all the tow can perform better at no extra
cost at all. Therefore again the course should be left wholly to the tOAv, nor do I collect
that any reason is assigned by the plaintiffs for the contrary rule, exact that the tugs have
generally more local knowledge than the captain. But they cannot be assumed to have
the local knowledge of a pilot. It would be unlawful for them to have undertaken to act
as pilot; and even if the tow in this case had taken a pilot, he, being selected by the captain, would not have been responsible in damages. Then, how can the tugs, for a mere
error in pilotage matters, which they did not and dare not undertake, be more deeply responsible than a pilot would have been. Nor is there, I think, any case in which the tug
has been held liable to the tow save only where the tug has disobeyed the orders of the
tow or carried her upon some well knoAvn danger.
It appears in the present case that the captain had on leaving Nanaimo refused the
preferred services of a pilot. Under the circumstances with a very deeply laden ship, 23 feet
10 inches, a draft which was of course exceeded at the time of the accident, if there was
much fresh water about, and on his first visit to the port, this refusal was Arery imprudent;
but he was at liberty if he chose to undertake the greatly increased responsibility himself.
On the evidence, he seems to have alleged two reasons for taking no pilot; one that he
Avould thus save half the pilotage fees, $3 per foot; the other that he had engaged two tugs.
The jury have found, I think quite rightly, that the defendants had not stipulated either
that they would or would not tow without a pilot. But it is quite clear that the captain
knew the defendants were not providing him with a pilot. His conversation with the
Towing Company's agent, Mr. Saunders, on the voyage up and taking a pilot to Nanaimo,
and his paying the Nanaimo pilot half his fee, in order to save the other half, everything
shows this quite clearly. The tugs entered on their engagement with the ship, I think,
knowing that she had no pilot; but their contract was a contract of towage merely, not of
pilotage. And, in point of fact, nobody on board of either tug could lawfully have undertaken to pilot the tow, (except, of course, in case of emergency.) This refusal of a pilot,
I say, was very imprudent, but it was scarcely "culpa lata," nor did it lead directly to
the accident. An hour after passing Entrance Island, a little before nine p. m., scarcely
two hours from the wharf, and when if all went well, another hour would have taken his
ship into the open gulf, the captain leaves the deck and goes to bed. This was surely
terrible neglect, but perhaps even this was hardly "cu'pa lata;" nor again did this in itself occasion the accident. But there are some other circumstances, I think, which were
observed and known on board the tow, and which, I think, did show "culpam latam," in
those in charge, " aequiparandam dolo."
The three vessels having pursued a safe and proper course as far as half a mile off
Entrance Island, the tugs then laid a course E. orE. £N., magnetic. This is found by 40
the jury, and I think is conclusively shewn by this evidence, this is the course advised in
the sailing directions in clear, calm weather. The tugs laid that course without any direction from the captain of the tow, but he, possibly seeing that it was the Admiralty
course, permitted it, and so, in my opinion, adopted it and he was quite justified in that.
But though the tugs laid that course and steered it continuously by compass, they did not
make it good. Through some cause or other it is quite clear that they were carried out
of that course and taken on to the " Thrasher " rock, which lies at least half a mile probably further, to the south of  a line drawn  E. magnetic, fiom Entrance Island,   (the Ad-  miralty course.) This deviation from the intended course the tugs did not notice, though
if there had been a pilot on deck he could hardly have failed to do so; but the tow did
notice it. The second mate of the tow says that he noticed all the way from Entrance
Island that they were heading E. by S. by their compass, and that their compass varied
one-quarter W. from magnetic. He did not state whether that was additive or subtractive,
but, at the least, this showed a deflection of three-quarters of a point from the intended
course. The captain of the tow does not himself say that he noticed this, but he can
hardly having avoided seeing it, (he was on deck on this course for an hour before he
went to bed.) At all events the second mate says that he noticed it all the way from Entrance Island, and they never informed the tugs. I think this was a clear breach of the 10
duty which the tow owed to the tugs. And this deviation from the original course was
undoubtedly the sole cause of the accident. For I do not attribute the accident to the
change of course by the tugs immediately before the ship struck. As the counsel for
plaintiffs insisted, she was then, probably inextricably involved; at least only to be saved
by an entire and instantaneous reversal of her bourse if she had room with her attendants
to turn round. But what was the cause of the deviation ? This is not quite clear, but
there are two circumstances each of which would tend to divert the course of the three
ships in that direction, and which together were sufficient, perhaps to account for it. The
first was the great flow of fresh water from Fraser River on the port side, setting to the
southward. This does not appear to have been noticed on board the tugs, though again 20
it is clear that a competent person on deck of either of them at leisure to look over the
side, might and probably would have perceived it. But it was actually perceived by the
second mate, for at least an hour before the accident, and again, no notice of this unusual
flow was given to the tugs. I think this was another clear breach of the duty which
the tow owed to the tugs. There was another circumstance, which Avould lend to deflect
the course in the same direction. The tow was attached by a hawser from her port bow
to the starboard quarter of the "Beaver." The "Beaver" was attached to the "Etta
White," the leading tug, by a hawser from her starboard bow to the port quarter of the
"Etta White." Ordinarily the tow is steered as nearly as may be in the wake of the tug,
so as just to clear the bowsprit, &c. But on the present occasion the tow was steered 30
quite unusually wide a point or- a point and a half on the starboard quarter of the I' Beaver."
This would evidently tend to turn the "Beaver" to starboard (i. e.) in the direction of
the reef. To correct this tendency I suppose, at any rate it would correct such tendency,
the "Etta White" was kept proportionally on the "Beaver's" starboard boAV. It appears that the captain of the tow had directed his helmsman not to steer in the wake of
the "Beaver;" to neglect her and to steer after the "Etta White." And these orders,
which evidently might have an important influence on the course were not communicated
to the tugs, who were thus completely misled; and I consider this another instance of
breach of duty of the tow to the tug directly leading to the loss. This order to the helmsman of the tow was not only calculated to divert the course, but was in itself a very well 40
recognized signal to the tugs which still further misled them. For it appears clear on
the whole, notwithstanding the plaintiff's contention, that the tow does unusually direct
the course of the tug in these waters, and when disapproving of the course taken, those on
board the tow steer her in the direction which they wish the tug to take. Thus if those
on board the tow had wished to revert to the original course, advised in the Admiralty
directions, viz: E. magnetic, they had only to turn the ship's head towards the port quarter of
the "Beaver " when the tug would have had to go to the northward to keep ahead of her.
By keeping so far on the starboard quarter the tow intimated in the clearest way possible
for them to adopt that they thought the tugs were giving the reef an unnecessarily wide
berth.    It is true the tugs appear to have neglected this signal and even tried to counter- 50  act its effect as I have pointed out. They knew there was no pilot on board and probably
thought the command wrong. But, at all events, they were thus lulled into security, and
I think this another instance of " culpa lata"—an erroneous command to the tugs. There
seems to be an admitted error on the chart, both as to the proper extension of the " limits
of danger " of the reef (the limits, a dotted line, ought to extend half a mile, at least, to
the N. E. of the chart lines,) and as to the situation of the beacon, which is on the chart
a quarter mile out of place. The beacon does not appear to have been either sighted or
looked for on the present occasion. It appears to me that there is betAveen the reco£
nized "limits of danger" on the chart (on which if a vessel steers it is, so to speak, certain to come to loss) and what I shall call the "limits of caution," as given in the sailing dir-10
ections, due E. magnetic from Entrance Island (to the North of which if a vessel keeps, it
is guaranteed against hidden dangers) there is a belt a mile or a mile and a half wide,
which may be called debatable ground. It is stigmatized in the sailing directions as containing a good deal of " broken ground," though certainly the greater part of it is not ascertained to be deep water enough and safe enough, and too near Gabriola Reef for pru-
.dence. But there was not on the 14th of July last any commonly known rock there, so
the jury have found, and so I am convinced after hearing nearly all the pilots and tu£
masters of the vicinity. It is true one witness, Capt. De\ereux, said that this rock is
known to every pilot in this country. He says he stood on this particular rock, which
seems to be bare at extreme low tides, about 20 years ago, but really he is the only wit- 20
ness who seems to have ever known of it and he did not report it. The only other witness who spoke of being acquainted with it was Mr. Pamphlet. But when he was asked
to show the situation on the chart, he selected a rock within the " limit of danger," some
half mile from the rock in question, which is 1200 yards from the beacon. It now appears,
from investigation since this accident, that there are several other semi-isolated rocks,
though with intervening channels extending to the north-east, so that the dotted " limit of
danger " line of Gabriola Reef ought to include at least three-quarters of a mile more than
it does on the chart. It was upon this belt of water that the tugs had entered with, as
they had every right to believe, the full sanction and approval of the tow, who, by her
steering to starboard, was in fact imitating to them that their course was ultra-cautious,
when the ship took the ground. I think that the accident was caused by the active agency
of the tow, and not by the negligence of the tugs, who were completely misled by the
tow, although, no doubt, if the tugs had had a careful watch, they would probably not
have been misled and might have prevented the accident. But this indirect conclusion
does not make them liable to the tow for the direct results of the tow's much graver negligence, although probably it might be such contributory negligence on their part as would,
if they had suffered damage and were now suing the tow, prevent them from recovering.
There were many other points argued, but it is not necessary. to discuss them, e. g. as to
the sub-contract, limit of value, the terms of the contract with the Moodyville saw mill
Co., etc. Neither is it necessary to consider the doctrine of contributory negligence, a 40
matter which is only available as a defence; and useful observations are made both by
Lord Seblorne and Lord Blackburn in Spaight vs. Tedcastle in that respect.
The case of the Stranger in the U. S. *'Law Times," vol. 24 p. 365, appears to be
well decided as to the relative duties of tow and tug, and the learned judge there points
out that a tug is held liable to the tow "only where the injury results from the violation
or neglect of pure duty coming within the scope of duties devolving upon that class of employment," such as defective tow ropes. But this case, though otherwise useful, and I
believe quite rightly decided does not expressly answer the question whether the direction of the course " comes within the scope of duties devolving upon that class of em-  ployment," which is the main question here. There were many other cases cited from the
U. S. Courts, some of them apparently at variance with the conclusions there laid down,
as to the relative duties of the tow and the tug, and the consequences of any breach of
those duties reciprocally. The Lady Pike (21 Wallace, Sup. Ct. U. S. 1); the Margaret
it Otto. p. 494); the steamer Webb (14 Wall. 406); steam tug Favorite (4 Sawyer 226);
Arturo (16 Fed. Rep. 308), in which last case there were, as now, two tugs belonging to
different owners employed in one towage service and both were held liable. But then as
a matter of fact both tugs were found guilty of the negligence which caused the loss. And
it is the principal " causa causans," which is looked to; not a negligence which merely
conduces to the loss.    Judgment for defendants; the usual consequences.  The time for appealing from such judgment of the- Chief Justice to the Supreme
Court of British Columbia and of taking such steps by the Appellants as they might be
advised in revieAv of the same, was duly extended by several Judges' orders, and afterwards, pursuant to notice duly given according to the rules and practice of the Supreme
Court of British Columbia, the Appellants moved that the motion for judgment might be
re-heard before the full Court, the judgment for the Defendants set aside and in lieu
thereof judgment might be entered for the Appellants for $75,000, or in the alterative,
that the findings of the jury might be set aside as inconclusive and a new trial granted on
the grounds of mis-direction and non direction.
On the 19th April, 1882, the following judgment was upon such motion pronounced    10
by the Court.
[NAMES OF PARTIES.]
Wednesday, the 19th day of April, 1882.
The plaintiffs having duly appealed to the full court, being the last court of final resort
in the province, from the judgment of the Chief Justice, rendered herein on the 11th day of
July, 1881, in favor of the defendants; and having duly moved for a rehearing of the motion
for judgment and to enter a verdict for the plaintiffs, for the sum of seventy-five thousand
dollars, or in the alternative, to set aside the findings and for a new trial on the ground of
alleged misdirection and non-direction. Upon reading the several orders dated respectively
.the 4th July, 1881; 11th July, 1881; 29th July, 1881; 24th November, 1881; 11th January,
1882, and the 25th January, 1882, duly extending the time for hearing of the said appeal
and motions until the day when same were heard; upon reading the notice of the said appeal
and motion, upon reading the pleadings, reviewing the proceedings, and fully considering
the evidence given upon the trial, as reported in shorthand; upon rehearing the motion for
judgment, and upon hearing Mr. Theodore Davie as of counsel for the plaintiffs, and Mr.
Drake as of counsel for the defendants, the Moodyville Saw Mill Company, Limited, and Mr.
Pooley as of counsel for the defendants, the British Columbia Towing and Transportation
Company, Limited. This court doth dismiss the plaintiff's appeal against the said judgement in favor of the defendants, and the motion to enter a verdict for the plaintiffs and the
alternative motion to set aside the findings, and for a new trial, and this court doth affirm
the said judgment of the Chief Justice dated the 11th July, 1881, and the same is hereby affirmed accordingly. Let the plaintiff's demurrer to the defendant's pleadings be over-ruled
and let the plaintiffs pay the defendant's cost of, and occasioned by this appeal and motion
to be taxed by the proper officer, as between party and party.
By the Court,
GRAY, J., Dissentiente.
James C. Peevost,
Registrar Supreme Court, B. C.
And the following are the respective reasons for such judgment:  GRAY, J.—In this ease I regret that for the reasons I shall hereafter give I cannot
agree with the learned Chief Justice either as to the laAv which he laid down as governing it, or as to the conclusions he has drawn from the facts found by the jury and those
which he himself assumed to find under authority of the New Rules of Practice and Procedure. At first I entertained some doubts whether the Rule 298 sufficiently applied to
enable him to pronounce judgment, but on further consideration I think it does, and that
inasmuch as the court now "has before it all the materials necessary for finally determining the question in dispute and for awarding the relief sought," it would be better to
pronounce judgment than to send the cause down again for a new trial, entailing as it
would, enormous expense and perhaps a failure of justice from the difficulty of again col- 10
lecting the witnesses and the evidence, more particularly so, as the defendant's counsel
raised no objections to the Chief Justice's rulings or conclusions on the trial tho' the
plaintiff's counsel did.
The material question on which the dispute turns was not put to the jury, though all
the evidence was before them. Assuming the facts concurred in by the counsel on both
sides and taking the questions put to the jury with their several answers thereto, the case
so far as their findings go, remains incomplete. Those questions and answers contain ingredients to be taken into consideration in forming a conclusion, but they state no conclusion on the main question. In reality the jury empanelled to try the cause were sworn,
heard the evidence and were discharged without any verdict on the pointatissue. They were 20
relieved from doing that which they ought to have done, saying Avhich of the parties was
guilty of negligence. ' The Chief Justice Avho tried the cause admits throughout his whole
judgment that there was negligence somewhere. It was not a case of inevitable accident. It was not a ca^e of contributory negligence. It was a case pure and simple; one
party or the other neglected his duty; which one neglected his duty the jury Avere sworn
to say and they have not said it.
Before referring to the law on the question of negligence in such a case, it is important to examine the ground on Avhich the Chief Justice claims that he may supplement the
finding of the jury and by drawing his own conclusions from the evidence assume as a
fact proved that which the jury have not found, and thus render complete that which the 30
jury left incomplete. It is to be borne in mind that on this trial the jury gave no verdict.
When a distinct verdict is given the law presumes much in its favor and the court will
support it unless or until it be manifestly shewn that it was erroneous, but when no verdict has been given such presumptions do not exist. The reason is obvious. The jury
are supposed to be intelligent men, practically acquainted with subjects of the nature of
the enquiry before them, and to bring to the consideration of such subjects practical
business intelligence and experience. The judge's duty is to guide them as to the law.
The jury's duty under that guidance to find the fact. The new ru es, however, seem intended to provide for an omission of the kind that took place on this occasion,- when the
court having all the materials before it, can supplement the finding of the jury on points' 40
essential to the case (on which points the jury have expressed no opinion) by conclusions
not inconsistent with their findings on points on which they have expressed opinion. In
no case, however, it seems to me should the conclusions of the court on facts not pronounced upon by the jury, be inconsistent with the conclusions of the jury on the facts
on which they have prononnced. Such inconsistency would be a conflict of finding as to
facts and form ground for a new trial, whereas when consistent they afford ground for judgment.  The relative duties of the tow and tug are clearly defined in a case as late as March,
1881, Spaight vs. Tedcastle 6 App. Ca. H. of L. 217, in which Lords Selborne, Blackburn and Watson approvingly quote the judgment delivered by Lord Kingsdown in the
case of the Julia (1 Luch 231) as clearly and accurately stating the law. " When such a
contract (i. e. of towage) is made, the law would imply an engagement that each vessel
would perform its duty in completing it, that proper skill and diligence would be used on
board of each, and that neither vessel by neglect or misconduct would create unnecessary
risk to the other or increase any risk which would be incidental to the service undertaken. If in the course of the performance of the contract any inevitable accident happened to the one without any default on the part of the other, no cause of action would 10
arise Such an accident would be one of the necessary risks of the engagement to Avhich
each paity was subject and creates no liability on the part of the other. If on the other
hand the wrongful act of either occasioned any damage to the other, such wrongful act
Avould create a responsibility on the party committing it—if the sufferer had not by any
misconduct or unskilfulness on her part contributed to the accident."
This is at the present day the recognized rule of the British Courts. Dozens of
cases may be cited in which the findings and conclusions on the facts may be in one way
or the other, but the rule is the same in all instances, and those findings and conclusions
are simply illustrations of its application; that rule as incident to the undertaking is the
"exercise of proper skill and diligence " on board both vessels, and the absence "of mis- 20
conduct or unskilfulness " on the part of either by which unnecessary risk or any increase
of the risk incidental to the undertaking is incurred. In his law the learned Chief Justice essentially narrows this rule. He says: "The contract of towage is merely aeon-
tract to supply motive power. It is not a contract of pilotage at all. Neither can it now
be argued that the tug impliedly contracts to tow safely. That would be a contract of
pilotage of the highest degree. The only implied contract on the part of the tug in that relation is, that it will not exert its power in a way of danger manifest to any person possessing a common seaman's local knowledge (not a pilot's local knowledge) will not run on a
well known rock or on the wrong side of a visible known beacon. Having to provide
power she is bound to find sufficient coal or steam, haAvsers of proper strength and fittings 30
and competent engineers and crew sufficient to Avork the tug herself, with a steersman to
follow the course approved by the tow, and to look out for known dangers, and she is
bound to obey all reasonable orders from the tow. I do not know that she contracts for
anything else."
Now it will be perceived that this definition leaves out the most essential element
pointed out by Lords Kingsdown, Selborne, Blackburn and Watson, namely, the exercise
of proper " skill and diligence " to carry out the contract. " Skill and diligence " are the
application of mind and thought, precaution and experience. It is perfectly consistent
with this definition' of the Chief Justice that a tug should fasten herself to the tow, set
her machinery to work, and then float off wherever winds or wave or tide might carry, 40
though such conduct would absolutely mar the engagement into which she had entered.
What was the "engagement" what the "service undertaken" here? It was in distinct words, and for a specific consideration "to tow from Nanaimo to Race Rocks or
Cape Flattery." And Lord Blackburn says you are to apply to that " undertaking " skill
and diligence. Not simply the motive power but the using of the motive power to attain
the "end contracted for.    To say that  " the only implied contract on the part of the tug  is that it will not exert its power in a way of danger manifest to any person possessing a
common seaman's local knowledge," will "not run on a well known rock or on the wrong
side of a visible known beacon," is simply to contract that the motive power is not under
the control of a fool, a madman or a knave, but by no means fills the rule taken from the
Julia's case that " proper skill and diligence " will be used to accomplish the undertaking.
The   true   rule   is   not   only   that  you   are   not   to   do   a
foolish   thing   but   that
are   to   do   a   sensible   thing;   you   are   for the   pay
you   get   to
make   use
as
well   as   your   motive
you
of your intelligence, your knowledge, your experience,
power to accomplish the undertaking. Nor is it an essential of the contract that the tow
is always to give the course. It has the power to give the course, but when it does not 10
give it, it is the duty of the tug to take that course which will with the exercise of "proper
skill and diligence " and without " misconduct or unskilfulness " on its part reach the destination indicated by the contract. If the tow thwarts that course or by its own " misconduct or unskilfulness" prevents the contract being carried out, then the tug will be exonerated from blame. These two points are clearly laid down and exemplified in the cases
of the "Robert Dixon" L. R. 5, Probate Division 54 (A. D. 1879), and of
Smith vs. The St. Lawrence Tow Boat Co., 5 P. C. 308, and will have to be
enlarged upon hereafter. But apart from these two leading cases the relative duties of
the tow and the tug towasd each other and the incidents attached to the contract of towage are laid down with such simplicity and such marked contrast to the judgment of the 20
learned Chief Justice in MacLachlan on merchant shipping, (ed. 1880, page 286,) that it
would be unexcusable not to quote that author.
" The employment of a steam vessel by the master or owners of another ship for the
purposes of towage is a contract which implies the exercise of diligence, care and reasonable skill in the fulfilment of their engagement by the parties to it on both sides and their
agents and servants, the master and crew of the tug and the master and crew of the ship
in tow.''
" The parties to the contract contemplate risks in the performance of it, the risk of
Ayinds and waves and of obstacles floating or fixed that lie about or in  their path.    They
both engage to bo ready armed with diligence, vigilance and competent skill against these 30
risks,   and besides this on the part of the tug with such a crew, tackle  and equipments
as are reasonably to be expected in a vessel of her class.    With all this performed, if
there be notwithstanding inevitable accident and consequent damage to one of the parties,
there is no liability in the other.    But neither may by his fault or negligence aggravate
the risk of the other with injury to him, without liability for the damage accrued unless
the other have contributed to the loss by his own fault or negligence.    In all this it is assumed on both sides when the contract is made, that the risk will be no more than ordinary under ordinary bad weather.    But there is no implied warranty on the part of the
tug to bring the tow to the point of destination under all circumstances and at all hazards.
She engages to use her best endeavors for that purpose, but she is relieved from her obligation if she be prevented by " vis major " or by accidents not contemplated which render
performance of her contract impossible."
" She is not, however, relieved from her obligation because unforseen difficulties occur in the completion of her task, because the performance of her task is interrupted or
cannot be completed in the mode in which it was originally intended, as by
breaking of the ship's hawser, &c. But if in the discharge of her task by reason of
the sudden violence of winds or waves or other accidents beyond the control of and with-
40  out default in the tug the tow is placed in danger, and the tug incurs risk and performs
duties which Avere not within the scope of her original engagement she is entitled, on
proof of this, if the ship be saved, to claim as a salvor instead of being restricted to the
sum stipulated for mere towage. Such a remuneration under the circumstances becomes
her right, but in such circumstances it is not optional with her whether she will render
the service. She is bound to do so. This is implied in her original contract from which
she is not relieved except by circumstances of difficulty that render the performance of it
impossible."
This is the law as laid down by this able author as gathered from all the cases down
to 1880,  and it will be at once seen how far a contract for towage on the part of the tug 10
goes beyond the mere supply of the motive power.    In applying this law to the present
case it will be our duty to note how far the performance of the contract on the part of the
tug was rendered imposible by any circumstance within the above definition.
Then here:   1st. What was the contract and  whose was the   " wrongful act"  that
brought about the disaster ?
2nd. Did the sufferer by his   "misconduct or unskilfulness" contribute to the dis-
aster ?   Under English law these are the tAvo questions in the case.
The plaintiffs are strangers, ship-owners at Bath, Maine, U. S. The defendants are
towing companies carrying on business for hire in the navigable waters of British Columbia. The plaintiff's ship the " Thrasher" comes to this province and being in want of a 20
tug boat contracts with the agent of the defendants " The British Columbia Towing and
Transportation Company " for the services of a tug boat to tow the " Thrasher " to Nanaimo and as soon as she was there loaded to tow her to Cape Flattery for the consideration of $600.
In this contract the point of departure and the point of destination are both specified and are within the waters where the defendants carry on their busine3S.
The ship was towed to Nanaimo (the captain of his own accord taking Rogers, a pilot,
up), was loaded with coal, informed the agent and called upon him and the captain pursuant
to the contract to tow her to Cape Flattery. The agent sends the "Beaver" belonging to the
first defendants. She not having sufficient power he supplements that power by sending an- 30
other towing steamer, the "Etta White." The captain of the "Beaver" had been acting and
was then holding a certificate as a licensed pilot in the navigable waters of British Columbia, though at the time and in the contract under consideration he was not
acting or receiving remuneration as a pilot but was solely the servant of the defendants,
' The Towing and Transportation Company," and the master of the "Etta White " held a
pilot's certificate for the district of Nanaimo, though then not acting or receiving remuneration as a pilot but simply and solely as the servant of the said defendants. The night
was extremely fine and calm, the course clearly defined, well lighted and well known and
sea room abundant. The captain of the "Thrasher " gave no directions as to course or
otherwise; the tugs as the defendant's servants took the course without any, it must be 40
assumed as knowing the destination of the ship under the terms of the contract which
the defendant's agent sent them up to carry out. The "Thrasher's " hawser Avas carried
from the port side of the "Thrasher" to the starboard side of the "Beaver "and the
"Beaver's" from her starboard bow to the port quarter of the "Etta White." These
arrangements were made by the steamers not by orders from the ship; they moved from w* the wharf at 7 p. m., passed half a mile clear of Entrance Island light in half an hour,
took the proper course due magnetic east by one point N., and at half past nine or thereabouts with ten miles of clear sea room on the port side and land distinctly visible the
whole way on the starboard, found themselves hugging kelp on the starboard quarter
three quarters of a mile from the extreme limits of the course taken by themselves and indicated by the charts and sailing directions as free from danger and stranded the ship on
a rock which (whether as an individual rock well known or not) was presumably an extension of the well known Gabriola reef surrounded with the indications of danger known to
seamen—kelp indicative of  a rocky bottom and unsafe for vessels of the tonnage and
draught of water of the
Thrasher."   Whose fault was it ?
10
In Nanaimo District pilotage is compulsory or half forfeit. The captain of the
" Thrasher " paid the forfeit, deeming as he says the pilot's services unnecessary as he had
two tugs engaged and not wishing to incur unnecessary expense. There was therefore no
contract for safe pilotage, "eo nomine." But the fact that the defendants had men who
were either then or had been licensed pilots in their employ as masters of their boats,
gave to the ship owners and captain who contracted with the defendants the presumption
that there were competent persons in charge and was an assurance of the exercise of proper "skill and diligence."
Care and diligence under ordinary circumstances are measured by the nature of the
duty assumed, the value of the article entrusted, and the amount of compensation con- 20
tracted for. A man who in consideration of a sum fixed by himself as sufficient remuneration takes charge of very valuable property though not an insurer against inevitable accident is certainly bound at the least to exercise reasonable care, prudence and precaution
for its safety.
In order to arrive at the testing point of this case the first thing is to see what material points are undisputed, or have been found by the jury
First then, the evidence shews that in the negotiations preliminary to the contract
the captain of the '' Thrasher " informed the defendants through their agent that he was a
stranger and had a very valuable ship. That the agent recommended him to take a pilot,
and the jury have found that ultimately the contract was closed without any stipulation 30
" that the defendants would tow the ship from Nanaimo to the Straits of Fuca Avithout a
pilot" or " that the vessel should take a pilot."
Secondly. '' That on leaving Nanaimo no course of any kind was given by the ship,
its captain or any of its officers to the tugs or either of them."
Thirdly. That a course due magnetic east from Entrance Island was a proper and
safe course to take, the usual and ordinary course for tugs and tows leaving Nanaimo harbor and when followed (as shewn by the sailing directions and charts) a perfectly safe
course
Fourthly. That on leaving Nanaimo the tugs after passing Entrance Island took that
course without any orders or instructions of any kind from the captain of the tow. 40
Fifthly. That that course if followed carries a ship from half a mile to one and a half
at any rate, if not two miles beyond the limits of danger and the rock on which the
" Thrasher" was stranded.  Sixthly. That between the said limits of danger and the opposite side of the straits
at Port Atkinson on which there is a light there are ten miles of clear sea room without
an obstruction of any character or description.
Seventhly. That the night was unusually calm and clear.
The jury find also three other points which in the view I take of this case are comparatively unimportant.
1st. "That the Thrasher Rock now so called was not generally known prior to the
accident." Whether individually known or not it was clearly within the known limits of
danger, and out of the line or course due magnetic east from Entrance Island which the
defendants themselves had chosen. The question is, not whether they knew that particular rock or not, but what business had they being in the vicinity where it was. It
was at least a mile out of their own selected course.
2nd. That there was some current setting in shore which would have been noticed and
allowed for by a competent pilot either on board the the tow or either of the tugs.
3rd. That the tow was steered after the " Etta White " more than after the " Beaver,"
keeping her one point to starboard of the "Beaver."
The jury, however, do not find that either of these two last named circumstances, the
current or the steering, were of sufficient influence to cause the loss, or even to contribute
to it, if the proper course due magnetic east from Entrance Island had been followed.
Moreover both the tugs were on this occasion the servants of the defendants, and if there- 20
fore it was their duty to lead the course it was their duty to lead it properly, and to indicate to the tow that she was causing a deviation. The case turns upon the question,
whose duty was it in this instance to take the course and keep it ? It becomes therefore
the duty of the court carefully to examine the law applicable to this contract, and if possible to see from the acts of the parties themselves what construction they themselves put
upon this .contract, and what duties by those acts they thus indicated they assumed. As
having a material bearing upon the conclusion at which I have arrived it is to be observed
that this is a question* of contract. That the parties to that contract were the ship and
the British Columbia Towing Company. The other defendants the Moodyville SaAv Mill
Company were no parties to the contract with the ship but were on this occasion the servants of the other defendants, when therefore in my observations I speak of the defendants I confine myself to the British Columbia Towing Company. Whatever questions may
hereafter arise as between themselves to the contract with the ship the Moodyville Company were no party.    The present proceeding is not "in rem."
In the first place the defendants are a towing company carrying on the business  of
towing loaded and unloaded vessels in these waters.
In the second place the captain of the " Thrasher" is a stranger in these waters and
' knows nothing of them, which information was communicated to the defendants, and Avith
this knowledge they enter into a contract with him to tow his vessel when loaded from
Nanaimo to Race Rocks in the Straits of Fuca for $500 or to Cape Flattery for $600 without stipulating or requiring that he should take a pilot for his ship (though that subject
had been discussed) or take on himself the responsibility of the course.
In the third place, under this contract they send their two servants the   " Beaver '  and the '' Etta White " to Nanaimo to carry out this contract. They take hold of the
vessel and without even asking the captain what course they are to go start off of their
own accord, select their own course, and proceed to carry out the contract made by their
employers, and which they had received instructions to go up and carry out. Even if there
was no clear legal rule on this point common sense would say, surely these defendants
know how to carry out their own contract, they know wnat they are about. It is their
own ordinary and customary business they are following. They know that I am a stranger
and in consideration of $600 they have agreed to do this work without requiring me to
take a pilot. I am therefore safe in their hands, they are responsible. Besides the law
says they must carry out their contract with "proper skill and diligence." If I interfere 10
I may put them all wrong, and thus relieve them of their responsibilities under this contract.    That is the common sonse rule.    What is the.Legal Rule?
Lord Justice James in the " Robert Dixon " case, L. R. 5 Probate Div. 54, after alluding to the particular circumstances of that case, which was one of salvage says,
"Whether the evidence establishes that the tug acted in violation of any positive directions from the ship during the voyage, it is not necessary for us to give an opinion, because if it be true, that no direction were given to the tug apart from the general directions at the commencement of the towage it comes to this, that the master of the tug was
acting (as it was his duty to do) 'on his own discretion to take the ship on a safe course'
to the Skerries allowing for possible contingencies and a change of weather."
Here in the "Thrasher" case, not only were no directions given by the ship, but the
tug was acting, the law will imply under the directions it had received from its own employers to carry out their contract.
Lord Justice Brett in the same case says, ' 'I think it is proved by the plaintiff's witnesses that the captain did direct the general course to be taken by the tugs. I am very
much inclined to think that a tug is bound to obey the orders of the captain (i. e. of the
tow) and if the captain had insisted on the tug keeping that course the tug would have
been bound to obey, certainly the captain could not have complained of the tug obeying.
But here on the plaintiffs own shewing (the plaintiff's being the claimants of salvage) the
only evidence was, that at the beginning of the towage the tug was directed to tow the 30
ship in a particular course I assume that to have been the right course but on the way the
weather became threatening. Assuming that no further order was given by the captain,
it was the duty of the tug to use reasonable care and skill, and unless she was ordered
to the contrary she had the command of the course," &c, &c. " Therefore unless the
master of the tug can ' clear himself by shewing that he acted upon orders from the ship,
he cannot excuse himself from the charge of negligence, and the burden lies on him to
do so.' "
In Smith vs. The St. Lawrence Tow Boat Co., 5 Privy Council cases 308, the " Silver
Cloud " Sir Barnes Peacock lays down the rule with equal clearness.
" It appears to me clear, he says, that ' when no directions are given by the vessels 40
in tow the rule in the case of tug steamers is, that tley shall direct the course.'    The tug
is the moving power, but it is under the control of the master or pilot on board the ship
in tow."
That is the rule. In that case the application of the rule forcibly shews how much
the responsibility of the tug is increased in the present instance.    There the court con-  OI
sidered that the tow, having the knowledge that the position was dangerous was guilty
contributory negligence in bringing about the disaster and was not therefore entitled to
recover. Not it will be observed, that the tug was guilty of no negligence but that the tow
was guilty of contributory negligence. The very use of that term inlaw shews that the
tug was guilty of negligence, of the primary negligence, otherwise the other could not be
contributory. In this case of the " Thrasher" not only had the tow no local knowledge,
but the fact of that want of knowledge Avas communicated to the defendants, they on the
contrary from the business they were carrying on and their experience in these waters had
that local knowledge, and they undertook to exercise " proper skill and diligence" in toAv-
ing that vessel from Nanaimo to Race Rocks or Cape Flattery and they of their own ac- 10
cord took the course to do it.
The value of such local knowledge is tersely expressed by one of the witnesses for
the plaintiffs, Captain Clements, an experienced seaman and pilot of those waters. He
says: "The tug depends upon its local knowledge and does not bother the chart
much."
The next question is, did they exercise proper " skill and diligence " under the circumstances in carying out the contract ?
This question entails not only a review of the evidence, but a review of  the application of the evidence by the learned Chief Justice in his judgment because under the rule
298, before mentioned, he having from the evidence assumed to draw certain conclusions 20
essential to maintain his judgment, if the conclusions are erroneous the judgment cannot
be sustained.
I differ from him, first, that it was the duty of the tow, under the evidence attending
the making of this contract, and the subsequent action of the tugs at Nanaimo in carrying
ing out their instructions from their employers (without asking the tow as to the course)
in any way to indicate or direct it. It was a responsibility the defendants assumed. The
contract specified the point of departure, it specified the point of destination. The road
between the two was known to the defendants, it was not known to the plaintiffs. The
defendants had traversed it repeatedly. The plaintiffs had never seen it. The defendants tried to relieve themselves of this responsibility by suggesting that a pilot should be 30
employed, but for the consideration named they undertook the towage without any stipulation in the contract that a pilot should be employed. They knew that it was not compulsory on the ship to take a pilot, that the payment of half pilotage dispensed with that.
Thus it is manifest, not only that they recognised their responsibility resulting from
the stranger's ignorance but that they suggested a mode of evading it, the insisting on
which mode, however, rather than lose the bargain, they gave up, I think therefore in
view of this contract that the legal position laid down by the Chief Justice namely, "That
all the authorities are unanimous that it is the tow who has to direct the course " is not
correct. The tow may have the power and the privilege, but it is not necessarily its duty
to do so, the exercise of that privilege is not obligatory. It depends entirely upon cir- 40
cumstances, and may be waved or exercised by arrangements between the parties, or
even transferred, as a duty, to the tug, a3 shewn in the " Robert Dixon " case. I think
the omission to recognise this distinction was the first starting point of error in this case.
The inference that the tow assumed any responsibility for the course is negatived by the
special facts while the assumption of that responsibility by the tugs is conclusively shewn
by the same facts. They knew the road so well that for the $600 they assumed it, and
most strikingly" is the assumption of that responsibility on the present occasion confirmed,  Awi
by the fact, that the defendants themselves produced and put in evidence one of the
printed forms of contract they ordinarily used, in which it was set forth in express words
that " the tug boat and owners are not to be held responsible for the piloting of the said
vessel while in tow of the said tug boat." Yet on the present occasion they did not use
that form or as the jury have found include in their contract any such stipulation.
Did they then exercise " proper skill and diligence ?" On this point we have the evidence
of the actors on the scene, of those who were present on that night, who under oath detail
exactly what they did and by those details shew us what they omitted to do. The captains, officers and men of the three vessels must necessarily be the best witnesses. There 10
was nothing new, unknown or dangerous in the course. It had been traversed repeatedly
by the masters of the tugs, and these men though not acting as pilots held certificates as
pilots, thus shewing that they knew and were familiar with that course, and by taking it
without instructions from the tow, proclaimed their knowledge and their duty. There
was nothing exceptional in the weather except its extreme calmness and its soft summer twilight, (July 14th) or in the current from the Fraser River which was emptying its waters
into the Gulf just as it was wont to do since it was first known by navigators, no evidence
whatever to show that there was an unusual flow or extraordinary amount, and there was
an admitted clear space of sea room ten miles wide free from all obstructions and all dangers in which to take that course.    Who Avas to blame for getting out of it ?
There were present that night actors on the scene, Captain Smith of the "Etta White,"
Captain Christensen of the "Beaver," Benjamin Madigan, engineer of the "Beaver,"
and John Jagers the mate of the " Beaver," Captain Bosworth of the " Thrasher," H. G.
Young second mate, and Herman Larsen able seaman of the " Thrasher," seven witnesses
sworn and examined, the only persons who detail the circumstances that took place on
board the ship and steamers, the occurrences on the course and at the time of the disaster. Of the other 22 witnesses called, sworn and examined, not one was present. It
is pleasant to a witness to have a theory, it is more important to the court and jury to
have a fact. Captain Smith of the "Etta White" says, (the evidence of these witnesses
was given on the trial in June, 1881, eleven months after the disaster) "After leaving 30
Entrance Island laid my course east magnetic, but steered east by south by our compass
to make that course good, my compass was out a point, that is the course I always take.
That course was changed five or ten minutes before she struck." "I was a pilot for the
tug; got a certificate to enable me to run the tug without paying pilotage dues; never had
a pilots license to pilot vessels; have often towed vessels in the neighborhood of where
she is lying; did not notice any kelp there that night; did not steer through any to my
knowledge; been navigating those waters 10 years; I am tolerably conversant with the
points of the coast and the land marks in that locality and I find out where
I am from land marks and local knowledge; that night you could see the land
all the way down; could see Cowichan Gap, but not Knotch Hill; didn't try; took no 40
bearings from the light or any thing else; made no allowance for the current; didn't think
of it; noticed the." Thrasher's " deviation before she struck an hour or more; that was the
only time I noticed it; can't say that was an Improper steering on her part; would not tell
the ship even if I saw her improperly steering; I thought from the way the land lay at the
time it seemed to me we were rather close in; that was about five minutes before she
struck."
Captain Christensen,  master of the  "Beaver":    "Had no conversation with the
captain as to the course we were to steer; he told me nothing at all; after passing round  Entrance Island I laid off my course to make good an east course; that is the course I
always take, due east magnetic; I was steering myself when I rounded Entrance Island;
the mate, Jagers, took charge of the helm when I gave it up; I could not say how much
the steering after the "Etta White" would set the vessels off the course; it had some effect;
did not know of the current; found it out afterwards; when we started from Nanaimo got
no orders from Captain Bosworth but to "cast off;" nothing further was heard from the
ship. The duty of the tug is to keep ahead of the ship and to look out to hear if any
orders are given by the ship and attend to them; the ship was astern when I came up; the
true course after passing Entrance Island was east quarter north; that is when I went off
the deck; held pilot's certificate at the time, but was stopped from collecting pilotage fees 10
by the pilot commissioners at Nanaimo; there is nothing to prevent my piloting if I want
to; but we don't expect to pilot without getting paid for it; I am competent to do so if I
ohoose I suppose." ' 'It is usual when a ship is sagging to one side or the other to counteract
that by movements of the tug. It is the course, of course, to counteract it." When asked
whether any effort was made on that occasion to counteract the sagging of the ship says, ' 'he
can't say, and even if he had observed the ship sagging towards the shore, he would not do
anything to counteract it without orders from the ship, nor would he call the attention of
the ship to it."
Question.—" Would you not, knowing it a dangerous thing for the ship to do ?" 20
Answer.—" Well it might possibly be then."
Question.—"If you had seen she was likely to cause any danger would you cause
something to be done to counteract it ?"
AnsAver.—" H there was any danger to the steamer I had charge of I would most certainly have a Avoided that danger."
Question.—"Would you not also to the ship ?"
Answer.—"I had no charge of the ship, I could not intimate to the ship where
to go."
Question.—You would have warned the ship ?
Answer.—" I didn't consider it was my place to interfere with the ship." 30'
These answers require no comment. In my opinion it would be a good thing for
every ship that he is towing that this captain should "turn in" as soon as possible after
the towage commences.
In a written deposition put in evidence signed and sworn to by him on the 11th of
August, 1880, within a month after the wreck, he states: " He left the wharf about seven
o'clock on the evening of the 14th ultimo; Etta White was towing ahead of the Beaver;
passed Entrance Island about quarter past eight; set the course down the Gulf- E. by S.
quarter S. by Beaver's compass, being one point more E. than usual; compass out about
one and a half points, I then set the watch and 1st officer on deck; I then turned in giving orders that if anything went wrong to call me; I did not say anything about altering 40
the course; I considered that we were going about five and a half or six knots; considered
that at that rate_ we would be at the Flat Tops in one hour and a half; I do not alter my
course until I get well clear ef Gabriola Reef; I did not give the mate any instructions to
call me at Gabriola; I am a Victoria pilot in good standing; do not remember if I was informed of a pilot being upon the ship; I consider my 1st officer a competent man who has
been up and down many times at night; I did not come upon deck until she struck; the
ship's crew passed the hawser aft but the captain stopped me,  saying that the ship was  lAnaa
filling fast and he was afraid to take her off in deep water; she struck about half past ten;
I did not think the rock was as far out as it is; I did not consider it quite safe to tow as
close as the 'Thrasher,' but I believe vessels have towed down as close; I consider now it
will not be safe to tow down within a mile and a half of the beacon; I am not now a
licensed pilot for Nanaimo."
John Jagers, mate of the Beaver.—"Took the wheel at Entrance Island light, Beaver
then heading E. by S. quarter S., deviation of compass over a point; that would make
magnetic bearing east; stayed at the wheel until after the vessel struck and steered on that
course until shortly before she struck; we changed a few minutes before she struck;
noticed the tow was a point to starboard; didn't notice any current until after we struck; 10
then noticed it setting in shore. Captain Christensen went below after we cleared the
lighthouse, and told me to steer after the Etta White; I didn't know the course very well;
we were steering S. E. by E. by our compass; our compass is out considerable; we were
steering E. by S. quarter S. by our compass-1 did not know enough of the coast to know
if we were in too far or not. The course was changed ten minutes before she struck to S.
E. byE."
Benjamin Madigan, chief engineer of the Beaver.—" Was on watch when the vessel
struck; in regard to the Beaver the Thrasher's position when she struck was very much
inside closer in shore; a great deal more so than vessels usually are; some keep straight
astern; some a little on one side, and some a little on the other; this was very much on 20
one side; does not know that any one else than himself was on the deck of the Beaver
when the ship struck. Jagers was steering in the wheelhouse in the hurricane deck; did
not see Captain Christensen on deck; my duty as engineer was to go round where the machinery was, looking that all its working parts were doing their duty; that he (Madigan)
was on deck several times after leaving Nanaimo, generally every half hour to look around
the machinery; don't remember seeing the captain on deck.''
Now these were the four witnesses for the defendants who were present on the occasion.    By their evidence we have clearly established,
1st.  A thorough local knowledge both on the part of the captain  of the Etta White
and on the part of the captain of the Beaver, long familiarity with the course—ten years; 30
competency  and  the possession  of  the  "skill"   which   would   enable  them   to follow it.
2nd. That there was not the exercise of the proper " skill and diligence " to follow it
correctly. The captain of the Beaver " turns in," leaving the charge of the wheel to a
man who says " he did not know the course very well or enough of the coast to know if
we were in too far or not, and with orders " to steer after the Etta White," and this man
was his first officer  and no other man is shewn to have been left on deck.
3rd. That while these two servants, the captains of the "Beaver" and the "Etta
White " sent up by the defendants to carry out this contract, tell you that "it is the duty
of the tug to look out for orders and signals from the tow," they do not station a single 40
man to look out for such signals or receive such orders, nor is it shewn that there was a
single man on the decks of either steamer who could have seen or heard them had they
been made. One goes to bed the other to his wheel house, and not a deck lookout is
shewn to have been left anywhere on either steamer.  TIT
4th. That the orders left Avith the officer in charge when the captain of the Beaver
"turned in" were, not to look out for signals from the tow as to the course or directions
of any kind, but simply "to steer after the Etta White," thus shewing conclusively that
whatever might be the ordinary rule as to looking out for orders and signals from the
tow, on that occasion he considered the tugs as masters of the course, and the Etta White
good to lead it, this same captain of the Beaver who so " turned in " being the special officer or servant of the defendants sent up to carry out the contract.
5th. That while thus masters of the course they do not take a single "bearing" to see
that they are following the course taken by themselves, Magnetic East from their point
of departure; do not make the slightest allowance for an ebb tide, or fresh water current 10
from the Fraser River, or for the " sagging effect" of the steering of the tow, which if
true, they now say they noticed and allege to have been the canse of the disaster, but
steam along on a calm clear night deflecting a mile out of their own selected course until
they land on a rock in the midst of an acre of kelp, which kelp they did not see or know
they were sailing through, and which rock was in the immediate vicinity, if not a part of
the well known Gabriola Reef, from which their local knowledge told them they should
keep at least a mile away.
6th. That the captain of the "Etta White," the thus recognised leader of the course,
says that he himself noticed the Thrasher's mode of steering an hour or more before the
ship struck, and   "that he could not say that it was an improper mode of steering," nor 20
would he tell the ship, if he thought so, and  '' that it seemed to him from the way the
land lay that they were rather close in."
7th. There is the distinct admission made by the captain of the "Beaver" in his
sworn deposition before Mr. Peck, the Receiver of Wrecks, shortly after the disaster,
" That he did not think the rock was as far out as it is, and that he did not consider it
safe to tow as close as the ' Thrasher' and he would not now consider it safe to tow down
within one and a half miles of the beacon."
As confirmatory of the opinion of the captain of the " Etta White " that the mode of
steering of the " Thrasher" was not improper it may be observed that Captain Clements
before referred to in his evidence says,   "There is no rule as to taking  a pilot,  the 30
tow in going, goes a little to one side,  to keep jib  clear,  that is the ordinary practice."
Before turning to the plaintiff's evidence touching the occurrences of that night there
are two official documents that must be referred to;
1st. The  Admiralty notice of this rock, published on examination  of the locality
after the disaster.    "Notice to Mariners, No. 193."
North America, West Coast, Vancouver Island, Straits of Georgia, (1) Gabriola Reef,
I Information has been received that the beacon erected by the Canadian Government on
Gabriola Reefs, near the eastern end of Gabriola stands on the largest ledge which covers
at six feet rise of tide. At the distance of nearly six cables N. 15 E, from this beacon and 40
about two cables length seaward from the end of the Gabriola Reefs, a detached rock
which dries one and a half feet at low water, Spring tides, has been found in the kelp
which marks the neighborhood."  "There is eleven fathoms within a cable length of the rock on its seaward side, and
between it and the Gabriola Reefs there appeared to be a depth of about five fathoms over
a rocky bottom."
The other is the Nanaimo Pilotage District Regulations under authority of the Dominion Parliament put in evidence by the defendant's counsel. These point out the
necessary qualifications to obtain a certificate and license. "Licenses will be granted to a
limited number of such persons as the board shall find to be qualified and eligible. Applications must be in writing to the secretary. Masters or mates of Canadian registered
steamers on producing proof of qualification to the satisfaction of the pilotage authoritiy
shall be entitled to a yearly certificate as pilot for the vessel in which they may be then 10
employed on payment of an examination fee of $10 and while a duly pilotage certificated
master or mate is actually employed as a master or mate of a steamer registered as aforesaid the said steamer shall not be liable to pay pilotage fees." Qualifications.—Any person applying for a license as pilot for this pilotage district must be a British subject not
under 21 years of age, and produce evidence that he has served in some licensed pilot
boat for at least three years, or that he has served in square rigged vessels, either in the
capacity of master or mate. No application will be entertained for such license from any
person whose knowledge of the navigation of the waters in the said pilotage district does
not extend over a period of at least two years practical experience. The applicant Avill
be required to prove to the board that he is in all respects competent to fulfil the duties 20
of a branch or licensed pilot, and pay the sum of $25 examinatiom fee and a license fee
of $50." The extent of this district is thus described: "A pilotage authority having been established at Nanaimo, B. C, with jurisdiction extending to all other parts of Vancouver
Island excepting Victoria and Esquimalt harbors, the following By-laws are made by said
authority for the government of pilots of Nanaimo Pilotage District, and these By-laws
are certified as approved of by the Governor General in Council on the 4th of December,
1879."
These official documents authoritively establish two things:
1st.  That the particular rock on which the '' Thrasher " was stranded is in the midst
of kelp, dry one and a half feet at low water spring tides, and is in the vicinity of the well 30
known Gabriola Reef.
2nd. The extent of expedience, sea service and local knowledge of the navigable waters in the Nanaimo Pilotage District a person must have before he can obtain a pilotage
certificate or license from* the pilotage authorities at Nanaimo. Captain Smith of the
" Etta White" swears that he held such a license or certificate.
It was this "Etta White" with this Captain Smith, that Captain Christensen of the
I Beaver" when he left the deck to "turn in" after rounding Entrance Island told his
steersman to " steer after," both of them being then engaged in the service of the defendants to carry out their contract with the " Thrasher," and it was this same "Etta White"
with this same Captain Smith on this same occasion that the captain of the " Thrasher "
told his steersman to follow. It is now said on behalf of the defendants that because the
captain of the "Thrasher" gave the same order to his steersman to do exactly that which
the defendant's servant, the captain of the " Beaver," ordered his steersman to do, the latter captain having a perfect knowledge of what was right and of the capacity and competency of the captain of the  "Etta White "  to do, what they were both sent up to do,
40  namely to carry out the contract with proper "skill and diligence," therefore that the captain of the "Thrasher" was wrong. It will require a great deal of study to make men of
common sense understand such reasoning.
The Chief Justice observes in his judgment that these men were not acting and dared
not act as pilots on the occasion. Admit it. No effort is sought to charge them as pilots,
but the knowledge they possessed they could not divest themselves of, or act contrary to.
That knowledge by the terms of their employment, was at the service of the defendants.
By virtue of the possession of that knowledge they held pilot's certificates and were consequently exempt from paying pilotage dues when they entered the harbor of Nanaimo,
an advantage which inures to the benefit of the defendants when they send these captains 10
on such duty, and which knowledge for the purposes of such employment becomes the
property of the defendants and they by the contract undertake to use it '' with proper
skill and diligence." This action is not against these men for breach of duty as pilots or
for assuming to act as pilots, but against the defendants for not carrying out their contract, and the fact of these men, their servants, being pilots and the consequent knowledge
they possessed is simply proved, to shew that the defendants had the knowledge and the
means and the competency of carrying out their contract but neglected to use that knowledge or those means.
We will now proceed to consider the evidence of the three witnesses for the plaintiffs
who were present on that night and Avere examined and gave their evidence.    Two it will 20
be observed, Larsen and Captain Bosworth, under commission in October,  1880, at Victoria just three months after the disaster, and Young on the trial in June, 1881.
Larsen states "he was an' able seaman of the Thrasher; that he went to the wheel at
eight o'clock and continued at the wheel until she struck, about an hour and a half afterward; that a lookout was placed forward; that no particular course was given
him to steer, but he was directed to steer after the Etta White, because
the Beaver was an old boat and did not steer very well ; that the captain had
been on deck from the time they left Nanaimo until about ten minutes or a quarter of an hour before she struck; that he followed his instructions; and when the ship struck
the Etta White was right ahead the Beaver on the port side of the Etta White and a 30
point on the port side of the ship; that he had noticed a change in the course of the Etta
White just before the Thrasher struck; on re-examination he fixes this change in the
■course of the Etta White at three quarters of an hour before the ship struck; that when
the ship struck the captain went forward to the top gallant forecastle and hailed the
steamer ' where he was taking us to,' but he, the witness was so far back he did not hear
the answer."
Young was second mate of the Thrasher and gives the reasons for the Thrasher's
steering: " You are supposed to keep the tug half a point or a point on the boAv that the
hawser is on; we had the hawser on port bow, and I was supposed to keep the tug open
out by the mast where the man at the wheel could see it; that was done; she was steering 40
that way until she struck, in a line with the tugs half a point or a point, that is to keep
the hawser clear of the head gear, still in a line, except a sufficient distance so
that the man at the wheel could see the lights, the mast head lights, (that is of the tuj
the Thrasher was a nice steering ship, steered like a pilot boat. He says he had been
there before; that the night was clear, and he could see the outlines of the beach and trees
distinctly; that he thought they wrere too far in, more than he had ever been before, half  w
an hour before they struck but that he didn't know there was any danger. If he had he
would have cut the hawser and let the ship gone off; he supposed they (that is the tugs)
were "qualified men." He had no authority to direct them, or to do anything; that hailing the Beaver she said it was Gabriola Reef; she is all right; the Beaver he said must
have passed over the crevices; the kelp was extending all around."
Captain Bosworth on his examination says, "I went to Mr. Saunders, the agent of the
tug boats in Victoria, and made a verbal agreement. The agreement was to tow the ship to
Nanaimo and after she was loaded thence to Cape Flattery for $600. Mr. Saunders gave
me the tug Beaver to tow up; he said in all probability the Alexander would be available
when I was ready to be towed to sea; on going up I engaged a pilot; I asked Mr. Saunders 10
if it was necessary to take a pilot; he said as a general thing it was not customary to take
one; he said Captain Warren of the Beaver was a man they put great confidence in; he
said he thought as I was a stranger, and it was possible I might break adrift, that it was-
advisable for me to take a pilot; when ready for sea he wrote Mr. Saunders for the Alexander; he, Mr. Saunders, replied she was not available but that he would send the two
boats, Pilot and Beaver; on the 13th of July instead of Pilot and Beaver, the Etta White
came up; Captain Smith said he was sent to tow .me down; refused to go Avith him; Beaver
came up and coaled; Captain Smith told me he had received telegram from Saunders that
Beaver had gone up to take ship in tow with the Etta White; after the Beaver had taken
my hawser the Etta White passed her hawser to the Beaver; that the ship was well found, 20<
proper watch set and orders given to steer after the tugs; that he did not think it necessary to take a pilot, as he was to have the services of two tug boats, and other vessels did
not take pilots; that he had made enquiries as to the captains of the tugs and they were
represented to him as efficient men; that he gave no instructions to the tugs; no directions
to either to proceed, they settled that among themselves; there were 90fathoms of hawser
between the Beaver and the ship; does not know the length between the Beaver and the
Etta White; that he went below ten or twenty minutes before the ship struck; describes
the shock; states that coming on deck he rushed forward, hailed the Beaver, asked the
captain " where he had got the ship " ? He replied "she was on Gabriola." I asked him
how he got her there? He said "he or they had hauled too quick." I asked him what 30
he thought of doing ? He suggested getting out a hawser, which was immediately done.
Witness then details the ineffectual efforts to get the ship off, and on re-examination says
at the time of the disaster the ship was lying in a bed of kelp for nearly 100 yards outside and nearly twice as far inside."
These are the three witnesses on the part of the plaintiffs who wrere present that night
and detail the occurrences.
By their evidence we have it clearly established: 1st. That no directions were
given from the tow as to the course, or any interference with it afterwards when taken by
the tugs.
2nd- That the mode of towing,  placing of the tugs,  fastenings of the hawsers, and 40
relative position of each was the work of the tugs themselves, and that the steering of the
tow one point off was from the very commencement of the towage and was continued until
the disaster.
3rd. As bearing upon the question of responsibility for the course, the reason assigned by Mr. Saunders for recommending Captain Bosworth of the Thrasher to take a
pilot, was not to  direct the course, but "as he was a stranger in case of his breaking  lALaai
adrift," and that "as a general thing it was not customary to take one." An observation
confirmed by the evidence of several of the captains sailing in these waters called as
witnesses.
4th. That neither the captain of the Thrasher, his steersman or 2nd mate or so far as
the evidence goes, any person on board his ship had any knowledge that they were in
danger, nor was there any act of commission on their part, by which the disaster was accelerated or brought about; the steering of the Thrasher one point off having been explained, noticed by the tugs and not objected to, and in the opinion of the captain of the
Etta White, "not improper."
5th. That the captain of the tow had from previous enquiry learnt that the men in 10
charge of the tugs were efficient men, from local knowledge competent to carry out their
contract, whilst he had no local knowledge  or his  subordinate officer,   sufficient to know
of any danger.
6th. That at the time of the disaster the cause of it was promptly and immediately
assigned by the captain of the Beaver, not that the tugs were not responsible for the
course, not that they did not know it, nor the current from the Fraser River, nor the sagging in shore by the mode of steering of the tow, not that it was the fault of the tow in any
way, but that "he or they had hauled too quick." What was the meaning of that prompt
reply. A sailor's answer to a sailor's question, "They had hauled too quick." It is plain
by his own admission they had changed their course and headed down the Gulf before 20
they had passed the point of danger which they knew lay in their course, and this answer
was given before the extent of the disaster was known, for it was immediately followed by
instructions to get out a hawser to haul the vessel off. The other reasons now assumed it
would almost seem are after thoughts. I may be all wrong but I cannot disguise my conviction that this disaster arose from an over weening confidence of the tugs in their personal local knowledge and a desire without reflection to shave the matter too close. They
had not the slightest intention of doing what was wrong. This conclusion requires no refinement of reasoning, no elaborate distinctions of law, no wonderful exercise of intelligence. The tugs had been over the ground so often that they took it as a matter of
course they would go right. One captain "turned in" and the other sat in his wheel 30
house and hauled too quickly without thinking of the tow behind them. The tugs naturally wanted to cover as little ground as they safely could in doing the work assigned to
them, and from an over weening confidence in themselves created by having gone over
the course so often without accident, they were not as watchful on the occasion as they
should have been. All sound law is based on common sense and human nature, and to
my mind it is impossible to read the evidence in this cause and come to any other conclusion than that the disaster arose from carelessness and neglect on the part of those
who undertook to select the course and to keep it. The captain of the tow might have
been all wrong to put so much confidence in these tugs, but he did what probably ninety-
nine men out of one hundred would have done, and whatever he may have omitted to do 40
he certainly did not do anything that led to the disaster. His error if any, was negative,
not active.
It is on the legal construction of the contract and the testimony of these seven witnesses that I think the case must mainly turn. Charts, sailing directions, pilots, captains,
witnesses after witnesses all come forward, and prove conclusively that if the course due
magnetic east had been followed the disaster would not have occurred, whether that particular rock was known or not.    Known, the course being a mile clear of it, and all equally p* say that while occasionally a vessel may possibly have passed closer to the place of t he
disaster than is recommended by the charts and sailing directions, and have escaped, yet
it is not prudent to do so, and most certainly not at night.
It requires no nautical knowledge to tell a man that a vessel moving across a current
will be impelled more or less in a diagonal direction, and that the tendency will be increased by the greater the immersion of the moving body; the question is, whose business was it on this occasion to notice and counteract that tendency? Who undertook to
do it? Who was paid for doing it ? Who had the local knowledge that the current was
to be expected there ? The man who was a stranger, never there before or the men who
were carrying on business in those waters at the price named by themsehres? Surely it 10
does not admit of a question. To say that the tug simply supplies the "motive power" is to
my mind a mistake. The motive power requires a head to direct and a hand to put it in
motion, and Lords Selborne, Blackburn and Watson say that that head and hand must
work with "proper skill and diligence" to carry out the undertaking in which they have
embarked. A shipowner does not contract with the owner of the ' 'motive power" to run
him on shore, but to tow his vessel Avith prudence according to the best exercise of his
experience and local knowledge as a tug owner.
It will be noticed throughout this case that no charge of commission is made against
the ship, but simply of omission. Now if the "motive poAver" had followed the course it
took of its own option, the omission charged against the ship would not have been of 20
the slightest effect even supposing, of which there really is no evidence, that there was an
unusual current on that occasion. In connection with this observation it may be here
stated, that in the Admiralty sailing instructions which are prepared with great care and
in which the courses, distances, reefs and bearings are laid down and the Gabriola Reefs,
there called "a dangerous cluster of rocks, some of which cover at half flood, others having a few feet of water over them and cover a space of half a mile" (page 112) and (at page
70 "as an extensive group of rocks uncovering at low water at one and a half a miles
eastward of the Flat Top Islands; much broken ground exists in their neighborhood and
it is desirable to give them a good berth," there is not the slightest intimation of any
current from the Fraser River to be guarded against. Indeed the Fraser River empties 30
into the Straits of Georgia by exact measurement on the Admiralty chart five and two-
thirds nautical miles below the Gabriola Reefs and the rock on which the Thrasher
was stranded. There is not the slightest evidence of any exceptional flow from the
river or of any commotion, heavy rains or other cause whatever to create it, nor of its
.having been noticed anywhere else throughout the neighborhood at that period. I think
it may well be doubted whether the flow upon the rocks at the time of the disaster was
any more than the ordinary ebb of the tide which was then running. The jury in answer
to one of the questions find that there was "some current" setting in shore, but whether
strong or weak, Avhere from or from what cause is not stated. Nor Avas it found by the
jury that it in any way caused or contributed to the disaster, or that it was of sufficient 40
influence to have caused any deviation from the course the tugs took, had they used even
the most ordinary precaution to keep to that course, and while in answer to another question put they find that Captain Bosworth did instruct his steersman not to folloAv the
course of the Beaver, but that of the Etta White, and to another that he did follow a reasonably direct course after the Etta White and not after the Beaver, they do not find that
either the order so given or the carrying it out contributed in the slightest degree to the
disaster or caused in any way the deviation now complained of. Equally may the same
remark apply to another answer given to another question, namely,   '' We are of opinion  that Captain Bosworth as captain of a tow did not take proper precautions as to noticing
rate of speed and real direction of his vessel progresses."    Laying aside that such an answer as to "proper precautions as a tow" is more the expression of a legal opinion than
the finding of a fact to which the court should apply the law, it will be noticed that they do not
find ''that the rate of speed or the real direction of the ship's progress" had anything whatever to do with the subsequent loss and as "to the real direction of the ship's progress," that
they had found in the answer just preceding that she "did follow a reasonably direct course
after the Etta White and not after the Beaver," and they did not find that that had anything to do with the deviation.    It is to this supposed current and the mode of steering
of the Thrasher one point off and the alleged deviation caused thereby that the learned 10
Chief Justice mainly attributes the disaster, and he seems to have considered that it was
entirely the duty of the tow to have noticed and guarded against the consequences.   I"
differ entirely with him.    Those two causes if in reality any such existed were not sufficient according to the evidence to have produced even an approximate effect,  if the tugs
had kept on the their own selected course, and taken proper back  bearings to have seen
that they were keeping it.    It cannot legally be assumed that the whole duty of course,
bearings, observations,  directions,  watchfulness,  skill and diligence even to correcting
the tugs mistake, was to be on the part of the tow, and that the tugs were to do little more
than oil their machinery and not blow themselves up by letting their boilers run dry.
The Chief Justice is extremely severe on the  captain of the tow for absenting himself 20
from his deck for half an hour or twenty  minutes before the disaster, or as the jury find
he left the deck about a quarter to nine o'clock, and yet has not one word of condemnation of the captain of the Beaver "turning in" immediately after leaving Entrance Island
and never shewing himself again  until after  the disaster.    The captain  of the tow is
blamed for not noticing the deviation from the course after leaving Entrance Island, and
it is assumed (though not proved) he must have noticed  it "because he was on deck on
this course for an hour before he went to bed," and the second mate states he nad noticed
it, but there is no blame attached to either the captain of the Beaver or the captain of the
Etta White for not noticing it,  though having selected the course without instructions
from  the tow surely it was their duty to justify that selection and keep that course.   A 30
captain of a ship cannot shake off his responsibility and he therefore, it is said, should
have been on deck, looking out.    The same responsibility attaches to the captains of the
tugs and they should have been on deck looking out,  but the evidence sheAvs that the
captain of the Beaver had "turned in" and had not been on deck at all from the time of
leaving Entrance Island,  and some ten minutes before the disaster up to which time he"
had been steering, the captain of the Etta White had gone into his room  to look as he
says at his charts, having conceived from his observations of the land that they were too
close in, neither of them having looked out himself or set any one to look out.    Nor is it
shewn that this temporary absence of the captain of the Thrasher from his deck or his
non-noticing of the current,  had the slightest bearing upon causing the disaster,  for 40
whether right or wrong the evidence shews he placed himself as to the course -entirely in
the hands of the tug, for he knew nothing about it and believed that under the contract
he had nothing to do with it.
There have been some forty-three authorities cited in the argument and over five
hundred pages of manuscript copy of evidence read, taken down by a short hand Avriter.
It cannot be expected that each one of these authorities should now be reviewed or the
whole details of this evidence entered into. From a consideration of those authorities and
that evidence on the whole I have come to the conclusion above stated.  I think this case must be governed by the contract and that the acts.of the defendants and their servants sent up to carry out that contract indicate most clearly what that
contract was and that as incident to that contract the law imposed upon them the responsibility of carrying it out with "proper skill and diligence," and not only did they not carry
it out "with proper skill and diligence," but that they were guilty of gross negligence,
and that the disaster, I cannot call it an accident, was entirely attributable to that negligence, and not to any "wrongful act," "unskilfulness" or "misconduct" of the captain of
the Thrasher, his officers or ship.
I have been thus minute in my observations,  because   differing from  the learned
Chief Justice, both as to the conclusions he has drawn from the evidence, and the law he 10
has applied to the case, it is but right that my observations should be submitted to a
similar scrutiny.
I think the judgment should be for the defendants, the Moodyville Saw Mill company,
because they were not parties to the contract, but without costs, as the captain of the
Etta White, their servant, was as culpable as the captain of the Beaver and moreover the
steamer herself was not at the time engaged in the business for which her owners were incorporated, vide act of incorporation, cap. 3,1878, sect. 2, and as against the other defendants the British Columbia Towing Company the judgment should be for the plaintiffs for
the full value of the ship and cargo as proved, with costs.
The value of the ship I find to be at the time of the disaster, according to Captain 20
Bosworth's evidence, which on that point is uncontradicted, $80,000; she is shewn by the
certificate of registry to have been 1512 tons burthen and cost $55 per ton, at which rate
he bought in a short time before, a comparatively new ship, having been built in 1876,
stranded in July 1880, and to this value the plaintiffs are entitled, the limitation in the
Canadian shipping act to $38.92 per ton of the tugs not applying. No statement of the
value of the cargo is given but it is shewn that the proceeds of sale of ship and cargo after
stripping off the gear was $520. That the gear brought 13400; total proceeds $3920 less
$1400 expenses in efforts to save, 1512 tons at $55 equals $83,160; deduct $2520 net proceeds of sales after expenses, ($83,160 less $2520), $80,640, but Captain Bosworth having
estimated her at $80,000 must be limited to that sum. I think judgment should be for 30
the plaintiffs against the defendants, the British Columbia Towing and Transportation
Company for $80,000 with costs: for the Moodyville Saw Mill Company as against the
plaintiffs but without costs.  CREASE, J.—I have examined and reflected much on all the evidence, oral and documentary, authorities and arguments which have been brought forward in this case.
The motion before this, the Full Court, is in a three fold form: 1. To set aside the
judgment given for the defendants. 2. To grant a new trial. 3. To reverse the judgment and enter it for the plaintiffs.    The grounds were:
1. That according to the facts admitted on the pleadings, supplemented by the findings of the jury, plaintiffs were entitled to a verdict to recover.
2. That if plaintiff's right to recover be conceded, the limitation of the liability by
statute does not arise, that there is no statutory limitation to the liability.
3. That if the findings are not held to entitle the plaintiffs to a verdict there are not 10
sufficient facts found to absolve the defendants,  then there must be a new  trial on the
ground of:   1. Misdirection.    2. Non-direction.
Because the material issues of fact on whieh the judgment is based were arrived at by the
judge and should have been left to the jury. That the judge found matters of fact which
plaintiff's counsel alleged it was the exclusive province of the jury to have found. The
'motion was fully argued before the full court by the counsel on both sides. The judgment of the Chief Justice, the questions submitted to the jury and their replies, the authorities and documents cited at the trial and evidence taken in short hand at the trial
were all read and fully commented on during an argument which lasted eight days.
The court took time to consider after long and careful consideration; the court now 20
delivers judgment.
To understand the findings of the jury it is necessary to give the questions to which
they were replies.    These were as follows:
by the juby.
Question.—Did the defendants or either and which of them at any time contract to
tow the "Thrasher" from Nanaimo to Fuca Straits without a pilot engaged as such by the
"Thrasher?"
Answer.—There was no contract made by either of the defendants to tow the Thrasher
from Nanaimo to the Straits of Fuca without a pilot,  neither was there any direct stipulation in the contract which was made between Captain Bosworth and (the agent) Mr. 30
Saunders of the British Columbia Towing and Transportation Company that the vessel
should take a pilot.
Q.—What was the magnetic compass course taken by the tugs from Entrance Island ?
A.—The magnetic compass course taken by the tugs was about due east from Entrance Island which course was changed by the "Etta White" some ten minutes before
the "Thrasher" struck.
Q-—Was any specific compass course (or any other course) given by the tow to the
tugs either by the captain or other officer ?
A. —No course of any kind was given by the tow to either of the tugs by Captain Bosworth or any of his officers. 40
Q.—At what time did the captain of the "Thrasher".go to bed ?
A.—We are of opinion that Captain Bosworth left the deck about a quarter to nine
o'clock.  Am
^771
Q.—Did the captain of the "Thrasher" direct his steersman to neglect the "Beaver's"
course ?
A.—Captain Bosworth did instruct his steersman not to follow the course of the
"Beaver" but that of the "Etta White."
Q.—Was there any current and in which direction ? would it have been probably
noticed and allowed for by a competent pilot on board the tow or either of the tugs ?
A.—There was some current setting in shore and we are of opinion that same would
have been noticed and allowed for by a competent pilot either on board the tow or either
of the tugs.
Q.—Was the "Thrasher Rock" a generally well known rock previous to the accident? 10
A.—We are of opinion that the "Thrasher Rock" was not generally well known prior
to the accident.
Q.—Did the captain of the "Thrasher" follow a reasonably direct course after the
tugs?
A.—We are of opinion that the captain of the "Thrasher" did follow a reasonably
direct course after the "Etta White" but not after the "Beaver."
Q.—Did the accident take place with the actual privity of either of the defendants?
A.—The accident did not take place with the actual privity of either of the defendants.
Q.—Did Captain Bosworth take proper and what precautions as captain of a tow 20
should, such as to take notice of the rate and real direction of the progress ?
A.—We are of opinion that Captain Bosworth as captain of a tow did not take proper
precautions as to noticing rates of speed and real direction of his vessel's progress.
Q.— At the time of the stranding what was the value of the "Thrasher," of the cargo
of freight; if no evidence say so ?
A.—There is no evidence to show the value of either ship, cargo or freight at the
time of stranding. [Signed]        H. Brown, Foreman.
Now first as to the grounds for setting aside the judgment and granting a new trial,
namely, not putting to the jury fully the question of negligence. I am of opinion that
it was not necessary, nor indeed advisable in the judge to submit a question as to what 30
would or would not in law constitute negligence of the different degrees to the jury. It
was sufficient to obtain their assistance in determining such of the questions of fact necessary to determine negligence so as to enable the judge to come to a satisfactory conclusion
on any given points. This is exactly in accordance with the law as set forth in the B.C.
Judicature Act, 1879, and the Supreme Court Rules, 1880, and with the English law
and practice.
By Supreme Court Rules, 1880, rule 290 "except where by the act or by these rules
it is provided that judgment may be obtained in any other manner, the judgment of the
court shall be obtained by motion for judgment."
By rule 294 "where at or after the trial of an action by a jury, the judge has directed 40
that any judgment be entered, any party may Avithout any leave reserved, apply to set
aside such judgment and enter any other judgment on the ground that the judgment
directed to be entered is wrong by reason of the judge having caused the finding to be
wrongly entered, with reference to the finding of the jury upon the question or questions
submitted to them.   An application under this rule shall be to the full court."  Rule 284 provides that any application for a new trial shall be to a full court which
shall for the purpose thereof consist of two or more judges.
By Rule 298 "upon a motion for judgment or for a new trial the court may if satisfied it has before it all the materials necessary for finally determining the questions in
dispute or any of them or for awarding any relief sought, give judgment accordingly."
There are other rules affecting the subject which I will not now quote. Our rules are
transcripts of what the English law and practice in such cases is.
One particular ground advanced by counsel for the plaintiffs was that the judge had
of himself determined as an important element in the formation of his decision that the
order of the master to steer after the "Etta White" and not after the "Beaver" had actively 10
contributed towards the accident a conclusion which plaintiffs counsel considered had not
been arrived at by the jury.
That the verdict in other respects was evasive and therefore the plaintiffs were entitled to a judgment in their favor or new trial.
The new practice, however, was intended for the purpose of meeting such a case as
this and to give power and gives power to supplement the verdict of a jury and if necessary even vary or reverse it, in order, at the least expense of money and time, to reach the
substantial justice of the ease. For this purpose also the full court has all the powers
necessary. The action therefore of the Chief Justice in this respect was in accordance
with the law. And while on this point I may mention a notable instance of the exercise 20
of this power in England in a recent case in the Queen's Bench Division reported in
the "Times" of 11th January last entituled the Queen on the prosecution of the Lords of
the Treasury against the Mayor, &c, of Maidenhead. From that it would seem that Mr.
Justice Mellor at the assizes and subsequently Mr. Baron Pollock, Lord Coleridge and
Mr. Justice Manisty in appeal had in both courts exercised this power.
The jury in the case in question had found for the defendant; the judge gave judgment for the plaintiff. On appeal before the judges above named the court was divided,
two thought Mr. Justice Mellor right on the issues raised, one thought the jury right and
the judgment was confirmed. But throughout I can find no suggestion that the judge
was bound by the verdict of the jury, although both the judge Avho tried the case and a ma- 30
jority of the judges of appeal who examined the evidence rejected the \Terdict on facts. I
think therefore that on that ground and the non-submission of what is negligence generally and particularly to the jury, the ruling of the judge who tried the case is sustained
by the present law and practice. The same provisions of the law which enable the full
court to examine further into the case and decide upon the fullest evidence obtainable
render in this case a new trial unnecessary and inexpedient, for I cannot think that at a
new trial any further or fuller evidence can be obtained than that which is already before
this court. Indeed it is more than questionable whether anything like so full or complete an array of evidence could again be collected as was summoned and put in evidence by the industry and care of counsel on both sides in this case. Were it otherwise 40
we have full power at this moment instead of delivering judgment to defer our decision
and summon such evidence as this court might think necessary for its complete enlightenment. But the fact is we have practically already all the evidence now before us that can
be usefully collected to enable us to come to a decision on the case before us. We have
therefore now to decide on the third and main branch  of the application whether the.  Tjn
judgment should be sustained or reversed. On this point also the law speaks with no
uncertain sound. Before we can overturn the judgment of a judge who has had the great
advantage of having all the witnesses before him, who has observed their demeanor,
made his allowance or deductions for hesitation, over readiness or bias on one side or the
other, and all those particulars indicative of trustworthiness or non-trustworthiness
which I may be permitted to call the evidence of the eye, we must be satisfied not only
that his decision was not in the opinion of this full court as fully supported as they could
wish in every particular by evidence, but that it is absolutely wrong.
"The rule is (says the learned judge in the case of The Julia) not merely to entertain
doubts as to whether the decision below is right but to be conclusively convinced that it 10
is wrong."
To come to a just conclusion as to whether the judgment should be reversed or not
we have to consider, 1st. The evidence as to the facts. 2nd. The law as gathered from
the cases applicable to those facts.
Before entering into these points it is useful to remember that the contract which
forms the subject of inquiry is not a contract of insurance nor a contract of pilotage, but
a contract of towage with all its legal incidents and liabilities, and after determining the
circumstances of the case the question arises what is the general liability resulting from
such a contract? What the relation which the law implies betAveen the tug and the tow and
what deduction and decision are to be drawn from the application of that principle in 20
the Thrasher case. What then are the facts as gathered from the evidence and a consideration of the whole case. I think it was clearly proved that there was a contract of
towage made on 21st May, 1880, between the master of the "Thrasher" and Mr. Saunders for the B. C. Towing and Transportation Company, Limited; that the "Etta White"
was hired by that company; that whatever the rights and liabilities of the two steamers
between themselves they were (as far as the contract with the "Thrasher" was concerned)
steamers of the B. C. Towing Company alone and to be so regarded. As to the duty of
the "Etta White" to the "Thrasher" that would be, I take it, the duty of a tug to a tow
irrespective of contract. The specific contract of the Beaver's company was to tow the
Thrasher to Nanaimo and back to Royal Roads for $500 or to Cape Flattery for $600. It 30
did not include the taking of a pilot either way, that is clear from the master taking and
paying a pilot from Victoria to Nanaimo, refusing to take one there, and paying half
pilotage at Nanaimo to avoid taking one from thence to Victoria, all this entirely unconnected with his towage contract. Neither of course was there any insurance in it or it
would have been specified. The contract was made on 21st May, 1880. In pursuance of
it the Thrasher, in ballast, drawing twelve feet of water was towed up by the Beaver
through the forward channel in the night past and inside the Gabriola Island and reefs
and so safely and easily into Nanaimo Avhere she loaded with coal at the wharf. This apparent facility in going up possibly induced the master to dispense with a pilot coming
down. On the 14th July the Thrasher was loaded and ready for sea having on board 2600 40
tons of coal and drawing 23 feet 4£ inches of water. At half past seven p. m. on that day
Captain Bosworth gave the orders to cast off the ship from the wharf and ordered the
tugs to go ahead. This was obeyed and the towage commenced. The vessel started Avith
two tugs ahead, the Etta White leading with a hawser eighty fathoms long to the Beaver,
the Beaver with ninety fathoms of hawser astern to the port bow of the Thrasher. The
proper relative position of tow and tug would have been that the bow of the Thrasher
should have headed on the starboard quarter of the Beaver in line parallel to the line of  length of the Beaver. No course, that is no specific course was set or even inquired for
beforehand by Captain Bosworth or at any time on the 14th after his orders to cast off
and go ahead from the Nanaimo wharf had been obeyed. He had refused the offer of a
pilot to pilot him doAvn, thus he had neglected the warning given him by Mr. Saunders, of
the danger of going without a pilot with a vessel like the Thrasher in strange waters and
an intricate navigation, even in ballast to fetch a cargo, and a "fortiori" when over twenty-
three feet deep in the water. He preferred, however, to pay half pilotage and take the
chance. The night was clear and light, the sea smooth and no wind. The vessels went
out by the ordinary channel until half or three-quarters of a mile off Entrance Island.
Thence we have it in evidence the course steered was that usually adopted by sailing 10
vessels and as I construe Admiral Richard's instructions in exact accord with if not the
express words, certainly the spirit and common meaning of the sailing directions as the
same are understood and acted upon by the great majority of the sea-faring witnesses who
were examined, Captain Devereux, Captain Clarke, Navigating Lieut. E. C. Baker, R.N.,
Captain Lewis of the Hudson Bay Company, Captain Rudlin and others. Christensen,
master of the Beaver, tells us that when he left the deck (presumably no doubt to turn
in) at half past eight, the course steered was allowing for ships deviations of the compass,
from full half a mile outside of Entrance Island towards where (on the chart) the word
"see view" is laid down. That, say in effect the "sailing directions" is a safe course for
even sailing vessels and a "fortiori" for steamers, east quarter north. 20
Jagers a steady man at the helm puts that beyond a doubt and says his instructions
were to keep that E. course good, and there is no reason that I see to doubt that up to ten
minutes before the ship struek this man Jagers did consider he was fulfilling his command by the margin to the northward of east he was giving her and as he swears continued to give her from Entrance Island up to the point where the Etta White took a
turn towards the south just before they struck. The Etta White was from a point fully
half a mile north of Entrance Island light steered, a course which the master, Henry
Smith, described as east magnetic but that he had to steer east by south by the Etta
White's compass to make that course good, as on that course their compass was one point
out. That they always steered that course in towing from Nanaimo to Victoria. The 30
Etta White took a turn towards the south from five to ten minutes (the jury say some ten
minutes) before the ship struck. He also describes the night as quite a clear night with
a light breeze along the shore a mirage which he said made the land look rather deceiving. He could see certain of the land marks along the shore but they would appear different in a case of that kind if it were perfectly clear, not enough to ascertain his position. I do not find it anywhere stated that the change in the course of the Etta White
ten minutes before the ship struck was the cause of her stranding nor could it be for she
was already so far advanced that she could not have turned the whole long string of
vessels round and got clear out. The compasses of both steamers and the evidence
shewed that an east course magnetic was steered by each steamer from north of Entrance 40
Island till within ten minutes of the time when the ship struck. No bearings or observations were taken either as to land marks or current, or position by either the captain of
the tow or the master of either of the steamers. The only attempt was made by the captain of the Etta White just before the tow struck. All the vessels safely out of Nanaimo the
master of the Beaver after getting a good offing for setting the usual course turned in and
as far as the evidence goes seems like the captain of the tow to have disappeared down
below until both were roused probably from sleep by the shock of the ship striking
heavily on the rock and bringing the Beaver to with  a round turn.    The first thing one  next observes is how short handed the tugs Avere, only the master, engineer and one deck
hand, so that if the master goes below there is only the man at the wheel to take charge
of her; a marked absence of preparation for the double responsibility claimed by the
plaintiffs as her due. The master of the Thrasher after setting the sea watch on board of
her for the night also went below (the jury say) at a quarter to nine and did not appear
on deck till she struck. He was no sooner gone than his example Avas followed by his
first officer and the care of the tow with a valuable cargo and all her responsibilities at
night passing Gabriola and its dangerous reefs was devolved (so the eAddence goes) on a
seaman of the name of Young who was second mate. Before retiring to rest, however,
indeed for some time previously Captain Bosworth had ,left with the helmsman a fatal 10
order, placed as the three vessels were together, the tow last with her nose pointing away
to the starboard side of the Beaver somewhat inshore, the Etta White leading ahead on the
Beaver's starboard bow inshore of the Beaver, very much in the shape of a
bow, if anything could have insured the whole mass tending bodily to leeward,
slowly almost imperceptibly but surely, it would have been to steer the Thrasher
along the chord of that arc, and that order was not wanting, for from the time
of taking her departure from Entrance Island up to the moment of her striking the helmsman swears and Captain Bosworth in cross-examination is obliged to confess that, in
obedience to the captain's order, he steered the Thrasher after the Etta White instead of
the old Beaver and this strange order was not communicated to either of the tugs, though 20
the Beaver seems to have always had her head more off the land than either of the three
vessels. It was not necessary to add to these influences the effect of an ebb tide and as
some witnesses aver an unusual current setting over from Fraser River a mass of fresh
water which was said to go up and down the gulf on top of the tides and setting them on
to the land, fully to account for the ship finding herself at last on "The Thrasher
Rock."
I do not think from the evidence that the set of the current was so strong to leeward
all the way as where it first caught the attention of the witnesses, at the place of the
catastrophe. The probabilities I think are that at that spot where we hear of a kind of
channel there was a sort of 'race.' Neither must we expect that the land marks by which 30
seafaring men would under ordinary circumstances be guided would be anything like as
plainly visible at night, however clear, as in the day. The mist from the water near the
shore even.on a clear night would make the view precarious or as one of the witnesses
said "deceiving."
The master of the Etta White swears that he could not ascertain his  position from
comparing the land marks as he could not see enough of them for the purpose.    It is not
because a safer course than the one adopted could be pointed out; for that may probably
be done in every case, but that the one taken was to  be considered wrong; but the question is whether the course actually or practically adopted as originally laid was a reasonable and ordinary one under the circumstances of the case, and of that the evidence of all 40
the witnesses I think sufficiently assures us, no matter which of them the tow or the tug
is responsible in point of law under ordinary circumstances for the course.    This course,
however, was not kept except by compass and at about half past nine the Thrasher was '
aground in eleven feet of water.    Some one was to blame for this, who was it ?   What
was the "causa causans"? and who is to blame for the loss?    The tow "says the tugs.
The tugs say the.tow and among other defences reply  "inevitable accident."    We may as
well therefore dispose of that at once.  KMi
Inevitable accident is defined to be the act of nature or some event which could not
possibly be prevented by the exercise of ordinary care, skill or forethought. Here the
Thrasher rock is proved to have been within the course marked out as safe within the
Admiralty "sailing directions" and was, for all practical purposes, an unknown rock. It
is true that one witness of great respectability avers that he stood on it once some twenty
years ago, but then, though a seafaring man, he never reported it to the Admiralty or
other public authority to get the sailing directions corrected or had seen it since, so it is
no disrespect to him to think the fair probability is that he mistook it for another of
several rocks knoAvn to be somewhere around in the vicinity of the reef proper which are
partly bare at low tide. The jury found it to be a rock not generally known But in any 10
case it does not appear to me that it was by any means or in any sense inevitable, that
the tow and tugs should have been so far out of the course they had at first between them
adopted as to have got so close to well knoAvn dangerous reefs although within the authorised sailing limits. It was night when, however clear, distances especially on the water
are deceptive and land marks by no means well defined. The ship was heavily laden,
drawing 23 feet 4^ inches of water. There was plenty of sea room and had they kept the
magnetic E. course until they caught sight of the Fraser River Sandheads Light they
would not have incurred the slightest risk, so, although the finding of the jury negatives
the hypothesis that they were running into danger, still I take leave to think the defendants have not proved inevitable accident. 20
Turning next to some of the leading cases to ascertain the law governing the contract
of towage attention is drawn to that of the "Julia," 14 Moore P. C. 286, 287, which was
much quoted. That though not a case in point was a case of collision between tow and
tug, the tug suing the tow for damages. There it was determined that each party in a
contract of towage contracts with the other to use proper skill and diligence and that it
will not by neglect or mismanagement create unnecessary risk to the other or increase
any risk which might be incidental to the service undertaken. If the wrongful act of
either occasioned any damage to the other, such wrongful act would create a responsibility on the party committing it if the sufferer had not by any misconduct or unskilfulness on her part contributed to the accident. The Robert Dixon, L. R. 5 Prob. Div. was 30
quoted by plaintiff's counsel as supporting his case to shew that the tug has command of
the course, and that it was her duty to have deviated from the correct course, and not doing so was contributory negligence which disentitled her to the damages she sought.
But that was a case of salvage and in fact it is a case for the defendants, for the tug having steam power and in that sense having command of the course had no right to go inside
the lightship, to run direct into a known danger: that was a violation of the course of maritime law laid doAvn In the "Julia" and would have condemned the tugs in the present
case if they had attempted to justify running inside the light ship and beacon buoys off
the Sandheads of Fraser RiArer.
"The Christina," Vol. Ill Parti, Robinson's reports shews that steam tugs employed 40
on all ordinary towage service are bound to be subservient to the pilot on board the tow.
The master of the tug must implicitly obey the orders of such pilot except in the case of
wilful misconduct or gross mismanagement on the part of the pilot. The master of a
steam tug having brought the tow into a collision by disobedience of the pilot's orders,
the court pronounced against the claim of the owners of the tug for towage remuneration.
Here in this Thrasher case the master of the toAv became his own pilot with all the legal
authority of such in his ship.  TJ"
"The Lady Flora Hastings," same report, page 33. There the learned judge Dr. Lush-
ington says: "I am well aware that mischiefs may in some instances arise from pilots
having the entire control over steam tugs, and giving directions contrary to the judgment
and experience of the masters of steam tugs, conversant as they are with every part of the
waters in which they are employed, at the same time I feel that still greater difficulties
would be occasioned by two conflicting and independant authorities being exercised in
one and the same vessel.
In this Thrasher case there could not be two concurrent authorities each responsible
for the course, the pilotage and the navigation. In fact the pilotage law makes it penal
for any unlicensed pilot for those waters to act for hire as a pilot there, and this would 10
especially apply here when the master of the tow has already refused one, to bring a ship
from the port to her destination. The master of a ship has no more right to expect the
master of a steam tug who happens to possess pilotage knowledge on board to use that
knowledge to pilot his ship for him and be responsible for it than he has a right to command the services gratis of a medical man who happened to be a passenger on board his
ship as to prescribe for a case of sickness on board and make him responsible for his
advice.
"The Carrier Dove," Moore P. C. Vol. 2, N. S. 260, 1863, 1865, was a case of collision. There was a licensed pilot on board whose acts were called in question by the
owners as being to. blame for the collision. The appeal court said there can be no pre- 20
sumption made in favor of the owners because they can only exonerate themselves from
liability by proving that the act which occasioned the injury was the sole act of the
pilot.
The "Schwalbe," 14 Moore's P. C. cases 241, shows that the "onus probandi" in these
cases lies on the owners of the tow ships. The necessity of proving this where there was
a pilot in order to claim a statutory exemption shews the state of the law where such exemption cannot be claimed by reason of having no pilot on board on whom it is possible
to throw the blame of a collision, and here there was none in the Thrasher. The captain
had all the pilotage responsibility of tug and tow on his own shoulders, and consequently
full command of the tug. 30
Smith and St. Lawrence Tow Boat Company, L. R. 5 P. 0. 308. This was a
case of damages sought for the loss of a ship, "The Silver Cloud," in a fog. There the
tug was not responsible, the tow was the dominant power and the tug subservient to it
and the tow did not give orders to the tug to stop and therefore consented to proceed in
a fog though aware it was dangerous. It therefore and not the tug was responsible for
the accident.
Spaight vs. Tedcastle, L. R. 6 App. Ca. 217.    The tug towed a ship on a bank by disobeying the  order from the tow-    The case was argued as  one of a ship responsible
throughout for the action of the tug.    The original and graver error there was disobedience to the orders of the tow which had the right to command and therefore the duty of 40
directing the course and navigation.
The case of the "Energy" L. R. 3 Adm. 48, shewed that the tug was bound to obey
the orders of the pilot on the tow (the pilotage, viz.: direction of course and navigation
is from the tow) where the pilot generally is as more convenient for watching the navigation, and the pilot (here the master of the Thrasher) is bound to give the orders.  In that case a collision could perhaps have been avoided by the pilot, so the tow
could not recover from the tug as the pilot did not give the orders. The injured tug
sued the tow and recoved damages.
The case of the "Ticonderoga," 1 Swab, rep., shews the tug has to obey the tow. It
is contrary to common sense that the steamer has charge of the tow.
In the "Mary," 5 Prob. Div., we learn that tug and tow have to be under the same
authority. I have gone into the American cases, the "Margaret," the "Lady Pike" and
others. The principle there when closely looked into is the same as in the English ones,
where a steamer is in her OAvn port, going under her own bridges and the like her local
knowledge is sufficient and she is expected to have it. But no Avhere, except by a con- 10
strained and unnatural construction, can I find that a towage contract from port to port
involves also a contract for local knowledge, nothing of the kind is mentioned in the
pleadings here, especially such a local knowledge, as would imply actual pilotage knowledge and that of such a coast navigation as that from Nanaimo to Victoria. It appears
to me so dangerous a proposition to advance that it has only to be stated to condemn
itself.
The case of the "Iona," L. R. 1 App. Ca. 430, was one of collision and negligence;
there there was compulsory pilotage to exempt from liability, it was necessary to prove
damage occasioned exclusively by default of pilot. In that case the boatswain was stationed as the lookout on the forecastle and remained there but did not keep a "vigilant 20
lookout." So the ship and owners were made liable for damage by collision and here a
"fortiori" could not recover any damage so that in order to get the benefit of exemption
in Merchant Shipping Act, Sec. 388, the owner must shew there was no default on the
part of master and crew which might in any degree have been conducive to the damage.
That shews the duty of the pilot is to attend to the navigation of the ship, and that nevertheless the master and crew have to keep a good lookout, and where there is no pilot it
equally follows that the duty of attending to the navigation of the ship and the tug falls
on the master and crew of the tow, here on the captain of the Thrasher where also there
was no lookout whatever. Had there been a good lookout the accident probably could
not have happened. 30
In the case of the "Sinquasi," L. R, Prob. Div., the tug, the mistake which caused
the collision with, and consequent damage done by the ship (Sinquasi) to the pier was
not done under the orders of the pilot and he had no time to counteract the wrong manoeuvre. Sir Robert Phillimore decided that "when the tug suddenly ported without the
order of the pilot (the wrong manoeuvre in question) the 'Sinquasi' had no option but to
follow him. The tug was the servant of the 'Sinquasi,' and the 'Sinquasi' is responsible
for what the tug did." In the opinion of the court the "Sinquasi" is to blame for the collision which was not caused by any default of the pilot. In the "Thrasher" case there
was not even a pilot to intervene between the tow and her liability for the servant tug.
The case of the "Robert Dixon," L. It. 5, Prob. Div. 54, decided that where a tug runs a tow 40
into a clearly known danger, such as inside a buoy or an inshore pilot boat placed to warn against a
danger, she cannot claim  salvage for having ultimately rescued her tow from the danger her own
want of skill and prudence occasioned.
When the pilot left the ship she was left in command of the captain and the command remained
in the captain during the whole of the transaction. The tug (the Judge considered) was bound to
obey the orders of the captain.    He had directed the original course of the tug, and that, most prob-  y1
ably (the Judge said) the right one, and of course outside the inshore pilot boat placed especially to
warn her of danger. And then the learned Judge says : Assuming that no further order was given
by the captain, it was the duty of the tug to use reasonable care and skill, and unless she was ordered
to the contrary she had the command of the course ; i. e. the course which had been ordered, and
should have kept it. It was not night; it was daylight. She could see that the ship sagged ; she
should therefore have altered her course and kept more off shore so as to avert the manifest danger.
That was uegligence enough to bar a claim for salvage.
Jn the Thrasher case it was night. The captain gave no course. He accepted that of the tugs
as his own, and should have watched it, as pilot of his own ship, to see it was properly kept until
thev got fairlv out into open water. This is not a case of a towage contract turned into salvage ; 10
but this principle applies here, that he who seeks damages for the injury complained of must show
that he did not contribute actively or practically to create or accelerate the danger which caused the
damage. This in the Thrasher case the captain did among other faults by directing the helmsman to
steer after the Etta White, and not after the Beaver.
In Spraight v. Tedcastle, which I have cited, the case was one of alleged contributory negligence
between tug and tow. There there was compulsory pilotage. The tug had attempted to tow the ship
across a sand bank instead of going r@und it. The ship struck on the bank and received damage.
The ship owners sued the owners of the tug for the amount. The pilot had signalled the tug to
change her course. On the disobedience of the tug the ship did not cast off tow rope. There the
pilot was even considered supine, negligent and inactive (the Judge said) on the principle of ccmsa 20
proximo,, not remota spectatur. When the direct and immediate cause of the damage is clearly proved
to be the fault of the plaintiff contributorv negligence by the defendant cannot be established merely
by saying that if those in charge of the ship had in some earlier stage of the navigation taken a course
or exercised a control over the course, which they did not actually take and exercise, in which the
same danger might not have occurred, that such an omission is contributory negligence if, in the
circumstances which happened, it might have been unattended with the damage which followed, or if
it had no proper connection with the damage which followed as its effect.
The question is not whether it would have been wiser for the master of the ship (the Ruby) to
prevent the tug from taking such a course in the direction of the South Buoy as might bring her so
near as she actually came to the bank. The immediate cause must be regarded. That incidentally 30
shows that those in charge of the ship had the power to prevent the tug from taking a particular
course ; or in other words, the tug is the servant of the tow. Here it is not a question whether it
would have been wiser for the tugs, having ample power at command, to have taken a course still
further north than they did, or even for the captain of the tow (Thrasher) to have adopted one, but
whether the captain of the tow is not altogether responsible for the course of the tugs and their
making it good, and whether the captain of the ship actually contributed by his own active interference, negligence, as a causa proximo, to the damage which occurred. Here he actually, by his orders
for steering, directed the ship into danger. It must be borne in mind throughout that to none of the
parties was the rock known ; to no one but the probably mistaken apprehension or memory of a single
ship master who locked it for over twenty years in his own breast, nor was it in the " Sailing Direc- 40
tions." Now, in considering these cases, and especially the " Robert Dixon," it appears to me the
words " the command of the course " have been much misunderstood in citing them. The fact is, the
legal construction of the relative duty and authority of tug and tow varies a good deal, according to
the nature of the object of the suit in each case in which this relation comes up, and according to the
side on which the onus probandi lies.
A tug which seeks for damages in a case of collision, with her tow, or when a contract of ordinary
towage is sought to be converted into a salvage service, is in a different position as to the degree of
proof required and the points of law arising either in support or rebuttal of a claim from a tug which
is seeking payment of or being sued for a breach of a plain contract of ordinary towage.    The cases  appear to have been decided more with reference to the particular circumstances under which each
suit is brought or defended than from being included in any uniform general category of marine service and subject to a uniform canon of construction applicable do all such cases alike: How could it
be otherwise1? On so unstable an element as the sea the circumstances are as incessantly changing
and varying as the element on which they occur. The facts of no two cases are alike. Bnt if the
cases I have cited be right, underneath them all lie one or two clear principles, viz.: that the tug is
the servant of the tow, and whether a pilot is taken or not, is bound to obey and look to the tow for
the course to laid down, the lookout to be kept, the orders from time to time to be given in the voyage, the general course to steer, and, in short, what is generally understood as implied in the words,
the navigation of a vessel.
The tugs are bound to find proper motive power, machinery, men and materials to carry out the
towage service they undertake effectively ; to use all reasonable means and due diligence for accelerating the arrival of the tow at her destination, avoiding all ground which they know to be dangerous
on the wav, and to use ail due diligence towards the tow in carrying out her contract.
10
The tow, on her side, as in " the Julia," has her relative duty to perform towards the tug
She
has, like the tug, (in" Lord Kingsdown's words), " to use proper skill and diligence in completing the
" contract of towage. Neither must she (any more than the tug) by neglect or misconduct create
" unnecessary risk'to the tug or increase any risk which might be incidental to the service under-
" taken. If the wrongful act of either tug or tow occasioned any damage to the other such wrongfnl act
I would create a responsibility on the party committing it, if the sufferer had not by any misconduct 20
| or unskillfulness on the part of the vessel damaged contributed to the accident." If it had of
course it coull not claim damages.
Another general principle underlies all these cases, and that is exactly in accord with the evidence in the present case, that the responsibility and consequent liability of the master of the tow,
pilot or no pilot, never ceases, although it may vary in degree, until she is in her owner's port again.
Now, applying these principles to this case, upon a consideration of all the authorities cited, I think
the owners of the tow have no claim against the owners of the tugs on account of the loss of the
Thrasher. Even assuming that the contract of towage did imply a contract for reasonable bkill and
diligence, it was only for the towage service itself, aud did not include pilotage or navigation, or the
necessity for any unusual or extraordinary precaution beyond avoiding any manifest dangers. The 30
power was admittedly ample and the tackle and machinery and boats sufficiently good to have towed
the vessel safely under ordinary circumstances in the course actually taken—the usual towing course
there—nearly magnetic east \ north from a point of departure half to three-quarters of a mile north
of Entrance Island, and such as to meet all ordinary setting towards the land from current or ebb
oide, which were the only two on-shore forces on a calm night whose action they might reasonably
expect to fear.
Nay, further, that if in the exercise of a towage duty calling for ordinary skill and caution the
master of the Beaver was actually guilty of negligence in going to bed after leaving a good man at
the wheel with instructions to keep the course, and seeing, as he thought, everything safe and a safe
course set, with the captain of the tow on deck, and the master of the Etta White on the alert; or, 40
if there was negligence in the master of the Etta White in not ascertaining about this usual (or even
unusual) current from Fraser River, or the exa&t position of the whole moving mass of vessels sufficiently long, instead of only ten minutes before the course was changed to the southward of east, and
suppposing the tugs responsible, then in any, or all of those cases I do not think the tugs were
the causae, causantes of the catastrophe. The evidence of Jagers, the mate, as to all the towage ; of
Madigan, the engineer, as to every half hour of it, and of all that occurred at the moment of stranding, as well as of the masters of the tugs themselves, proved most distinctly that the Thrasher, by
her steering inshore for over " an hour " before the accident, and after the Etta White, on the star-  tf
board bow of the Beaver, increased the sagging of the mass to leeward to a dangerous extent up to
the actual catastrophe. But for this, my opinion, from the evidence is, that the ships would have
cleared all danger, even including what I must call the unknown danger of the Thrasher Rock ; for
it is not reasonable to think that in an hour and a half to two hours of such steerii g (it began off
Entrance Island) the sagging to leeward occasioned by that active cause alone did not exceed the 50
or even 100 yards north of the rock which would, from the evidence, have taken the Thrasher
entirely clear of rock, reef, and everything in the shape of danger. As it was, she was considerably
beyond the line of danger prescribed by the chart" and directions as the limits of approach, and in
daylight would have had a right to consider herself safe. The master of the Etta White swears that
the night, though generally clear, did not enable him to see enough of the usual landmarks to enable 10
him to judge with approximate certainty of the position of the vessels when he began to change the
east course to one a little south of east, and he was obliged to go into his room to look at the chart
to ascertain more of their exact position when the Thrasher struck.
The tug might have done more, but was not bound to do so, and under the definitions "Campbell
on Negligence" gives to negligence, there was none here to affect the tow ; negligence in several respects
perhaps, but nothing wilful or against knowledge, and they suspected no danger. Had they been themselves lost on the rock perhaps there would have been negligence enough to have prevented them from
recovering against the tow for dragging them to destruction, bnt certainly not such as to make them
liable to the tow for the loss of the Thrasher from want of ordinary skill and caution.
On the other hand, however, I do consider, from the authorities and the evidence, that the tug 20
is the servant of the tow , that Captain Bosworth, by paying half pilotage to get rid of a pilot, thereby
became in law his own pilot at Nanaimo, and by his orders at the wharf became so in fact; that he
should then have laid the course properly before starting and given it to the tugs to follow at their
peril ; that having been on the poop until ^ to 9 and having seen the course of the tugs, which I
consider to have been sufficiently indicated by the sailing directions and chart to have been a usual
and safe course, even for a sailing ship without steam, he must be taken to have adopted this as his
own course and be responsible for it. It was then his duty to have exercised vigilance to have seen
that course was kept good all the way until thoroughly clear of all possibility of danger. His it was
to watch currents, sagging and deflection out of the course, and to have corrected them by drawing
more and more to the northward until Cowichan Gap was well opened, or, if too dark for that, till 30
he could get a cross bearing from the Fraser River light. He had ample men and means at command
for the purpose, but instead of that, forgetful that a master's responsibility never ceases, as the evidence concurring with the law declares, until his ship is in the owner's port and he in his own home,
he goes to bed, and acts as though he had no concern whatever in the matter; a course in which he is
imitated by his subordinate officer, and not content with this leaves the fatal legacy behind him of a
constant direction, which he does not communicate to the other vessels, to turn the ships head constantly inshore of the Beaver, and after the Etta White, an active contribution towards the fatal result, which coupled with the other faults of omission constitute such contributory negligence on the
part of the ship, as in my opinion is the " culpa lata equipiranda dolo " and disentitles the tow from
making any claim for the damage laid against the tugs even had blamable negligence been proven 40
against them, or that which was proven against them he considered as blamable. It was not a question as to which would be the wisest, which the most prudent course for a heavy ship, twenty-four feet
in the water to take; that was for Captain Bosworth to settle, and he did settle it when he gave the
orders of a pilot to cast off, and go ahead. He chose or adopted what was, if kept with vigilance, a
safe and prudent course, from Entrance Island and is entitled to the benefit of that fact. His faults
were that he did not watch and see that it was kept good, until safety was beyond a peradventure,
and secondly, that he did give the steering directions to follow the Etta White which actively contributed to the accident. Even with a pilot mere ordinary watchfulness is not enough, master and
men have to be even on the alert to carry out his directions and watch against danger. The case of the
"Iona" is strong on that point, for there even when a watch was set and at his post, the ship was con- 50  demned, because he was not sufficiently vigilant in his watch. To attempt to throw the legal responsibility of the tow on the tugs is to create a far greater danger to the ship owner than to enforce a salutary rule, which has been the result of long years of practical marine experience. The immediate effect
of creating such a divided responsibility by taking the responsibility from the tow, and casting it
on the steamers would be (in the words of Dr. Lushington in the case of the '' Duke of Sussex "\ to
•'create a conflect of authorities which would lead to inextricable confusion and be highly prejudicial
to the owners of vessels." All the master of a tow would have to do, if the principle contended for by
the plaintiffs in this case were true, if a contract of towage were, however indirectly to imply such a
knowledge and practice as would avoid dangers such as here incurred, would be to enter into a contract of towage, dispense with both pilotage, and to some extent even with insurance, and certainly (so 10
far as dangers of a course were concerned) with any anxiety as to navigation. If a pilot was necessary
for a stranger, in strange waters, it was necessary here, and if necessary when going up light, drawing
onlv twelve feet, a "fortiori" was it indispensible for a vessel drawing twenty four feet with a valuable cargo: ship freight and cargo worth '$100,000 and outward bound. The navigation about
Gabriola Island was not the navigation of a home port with every inch of which the master of a tug
hailing from thence might be supposed and required to be familiar, but a route requiring special nautical skill, and that unremitting attention to factors likely to disturb the course, which only the full resources and equipments of a square rigged vessel could satisfactorily afford.
Although therefore 1 do not agree with some of the premises of the learned judge, who tried
the case, e. g., in his doubt as to the course, practically laid down by the sailing directions, yet the law 20
of negligence as laid down by the learned judge, the principles of construction submitted to the jury,
are I think borne out by the numerous authorities referred to.
I have already dealt with the question of inevitable accident, I have not laid stress on the existence of kelp in the neighborhood of the rock, even assuming the night to have been clear enough to
see it, and the people of the tug able to leave their towing to look after it. The case could not turn
on that, for every channel and line of traffic along the inland channels and waters of British Columbia is full of kelp, frequently of very great length, 50, 70, 100.or more feet long; and although a
neighbour whose acquaintance ships would avoid does not necessarily, of itself, imply danger. If that
of itself were to be a danger which ships and tugs were bound at their peril to avoid, navigation along
our inland coast (if I may use the phrase) would be impracticable. Moreover the case does not de- 30
pend upon it. It could not be here a " causa causans" or affect the relations between tug and
tow.
In conclusion I may say that looking at all the law and evidence of the case I am of opinion that
in this case the contract was one of towage, that the principle applies to it, that the tugs were the
servants of the tow, hired by the tow, paid by tow, discharged by the tow ; that while it was the duty
of the tugs to find sufficient towing power, men, materials, and skill for carrying out the towage contract effectively ; and they were under obligation to use due diligence and care in so doing, and to avoid
all known dangers (of which the Thrasher rock was not one) they were not responsible for the navigation of the.tow, or of the course generally. That it was the duty of the tow (the Thrasher) and it
did actually, commence to pilot the vessels, and attend to the navigation generally, and the tow was 40
responsible for the course, was in fact master of the course. That as a general rule there cannot be
two dominant authorities over the course in the same towage except where separated by emergency,
danger, inevitable accident, or the like.
I think there was a certain amount of negligence in the tugs, in not asking for a course before
starting, and in not looking more (although not responsible therefor) to see, whether they were generally keeping the course, but that such negligence, though blamable, was not the " culpa lata " of
Campbell. In case of accident to themselves, this might, however, have told against them. I consider the course which was commenced and which was adopted by the tow (East quarter North) was
a reasonable and proper one for steamers of ample power, and  on a clear calm night, if kept with  urn**
vigilance. I am of opinion also that the master of a tow never ceases to be more or less responsible
(pilot or no pilot) so long as he is afloat in the ship under his command. That when be declines to
take a pilot in pilotage waters, especially in a strange coast, he takes the risk of pilotage on himself.
That it would be fraught with constant danger to ship owners to recognize a divided authority in towage, beyond the necessary reciprocal duties of the tug and tow to each other, e. g., to avoid collision and
the like. That if tugs are to become responsible beyond the mere towage contract, and such reciprocal obligations, it should be so declared by statute, and the masters obHged to become, be registered,
and act as pilots, and carry sufficient officers aud men for such additional service, and the fact be
proclaimed to the world. That in this case the tow by the steering order to follow the Etta White
who was inshore and neglect the Beaver, on her port bow, did actively contribute to setting the whole 10
towing mass towards the shore, and as part of the " causa causans," to the subsequent disaster; anc
that by neglecting to take a pilot or to give the course, and see it kept, and by the lack of vigilance
of the tow in watching currents, and tides, and guarding against deflections from the course, the tow
was guilty of the " culpa lata" equivalent to " dolus," culpable contributory negligence, which would
have prevented the owners from recovering even if the tugs had been otherwise legally responsible.
I also am of opinion that the findings of the jury, and the judgment of the Chief Justice, were
substantially correct, and must be affirmed , and I give judgment accordingly.  BEGBLE, 0. J.—I think I cannot adhere to the judgment of the 18th July. On that
occasion I appear to have been misinformed on two points as to the Admiralty sailing
directions. 1st. There is no express compass course given for vessels leaving Nanaimo
to get into the Gulf of Georgia, but only for vessels entering Nanaimo from the gulf, and
so in leaving, the master of a ship has to consider how he can retrace his steps. But
there appears to be no difficulty about doing that. 2nd. The neighborhood of Gabriola
reef stigmatized in the sailing directions as "broken ground" lies not as I supposed,to
the eastward where the stranding occurred, but to the westward of the reef. Nothing is
said in the "directions" as to the east side of the reef. In other respects my opinion of
the facts is not altered. Nor do these variations seem important to charge the defend- 10
ants; rather, perhaps, the other way. It still remains, that any intelligent school boy put
in charge that night could have safely directed the ships course by looking at the compass, at Entrance Island light, and at the chart and sailing directions.
It still remains that the tugs were not bound to have knowledge of that rock, of whose
existence in my opinion and in that of the jury, nobody was aware. It still remains that
the unusual and improper orders of the captain of the tow, not communicated to the tugs,
(viz.: to steer all away, and to the southward of the course laid by the tugs) at once forced
them aside into the scene of shipwreck 'for this mis-steering was probably the most effective cause of the deflection from the course laid) and lulled them into a false security
by intimating in the commonly recognized way that Captain Bosworth thought they were 20
giving the reef an unnecessarily wide berth. It is to be remarked that this part of the
gulf, to the eastward of Gabriola reef, seems to be avoided by cautious mariners, not because it is known to be dangerous, but because it is not known to be safe, and in fact one
part of the sailing directions indicates a course two or three miles further to the eastward than is now known to be absolutely necessary for safety. But the absolutely dangerous reef seems to extend perhaps a mile beyond what is marked on the chart as the
limit of danger, viz.: enclosed in a dotted line; and to.fall short by a mile and a half of
tbe limits of safety as mentioned in the sailing directions, this additional part (not laid
down in the chart) consisting of pointed rocks, with gaps between, which accounts for
the impunity of some ships there, but all one reef, probably, as the Alps are one chain of 30
mountains, with high peaks and passes separating them.
I still remain of the opinion expressed by me at the trial that it is the tow alone, as
between tow and tug, who has to direct the course, that if the directing mind on board
the tow (whether pilot or captain is quite immaterial) choose to abstain from giving orders, and acquiesce without contradiction in the course taken by the tug, the tow alone is
responsible. The St. Lawrence Towing Company's case, 5 L. R. P. C. 308 as the tug
would be, so far as her right to towage is concerned, if she ventured to disregard an order,
even a wrong order, from the tow. (The "Christina," 1 W. Rob. 29, 33.) Every reported
case to which we have access is quite inconsistent with any other conclusion, and the tugs
in this case cannot be charged unless it was their duty to select and direct the course. 40
They were far out of any harbor, far from any visible or known danger, far from Victoria,
their home port, nor were they disobeying any order from the tow; at least if they were
disobeying, it was in the direction of safety. They declined to go so much to the southward as was signalled by Captain Bosworth. So that this is exactly the reverse of
Spaight vs. Tedcastle in every point, where the tug was in her home port, was disobeying
the orders of the tow, and ran upon a well known shoal. If indeed the orders of the tow
had been driving the whole mass upon evident destruction, if the tow had been hanging
so wide on the Beaver's starboard quarter as to be sending her, in full view,   on to the  TXT
Gabriola beacon ("a terror to mariners") the tugs would have been justified in disregarding her employer's pertinacious misdirections, and in reversing their course, and towing
him even against his will into safety. But the onus of justifying such disobedience of
orders would have been on the tugs, and their services would then probably have been no
longer towage, but salvage services, entitling the tugs to a reward proportioned to the responsibility undertaken by them in such disobedience, (Spaight vs. Tedcastle and the
Christina) and in acting as unlicensed pilots, and proportioned to the skill and judgment
they had displayed, and the loss they had adverted.
It seems idle to say that it was the motive power which dragged the ship on to the
rock.    This is a mere truism.    It is of course perfectly clear that without motive power 10
of some kind she could not have got there; she could never have left Nanaimo at all.    But
suppose the captain had by any means,  secured some other motive power, say,  a fair
wind, that he saw his ship heading from Entrance Island into an apparently open gulf at
four knots an hour, and then went below and  let her drive.    In an hour more he is
aground, could he be heard to say, the wind drove him ashore ?   There is a  vast difference, says the plaintiff.    The wind is an unintelligent motive power; the tug is supposed
to be directed by a common seaman's local knowledge.    That is quite true, and that is all
that the tow has here bargained for.    What that is, is shown in the "Robert Dixon," and
in Spaight vs. Tedcastle.    The persons handling the tug are bound to know the meaning
of local beacons, and of signals from the tow,  and to conform to these last reasonably. 20
They are bound to avoid running inside a visible moored pilot boat, even in adherence,
but an unreasonable adherence to the tow's last directions.    They are bound to know the
shoals in their own harbor so far as to be responsible if they run on a well known shoal
there in disobedience to orders from the tow.    But I nowhere find it laid down that they
are bound to be acquainted with all the unmarked (in this case unknown) dangers in the .
120 miles over which their contract of towage extended.    But then it is said that Christensen the master of the Beaver had a pilot's knowledge; that he had formerly  been a
pilot for these very waters, and instead of seeing to the safety of the tow, he too, like
Captain Bosworth, had gone below, and was in bed.    The answers to this are manifold.
Christensen had ceased to be licensed as a pilot for these waters for many years.    He 30
had not contracted to act as pilot, nor to give the tow the benefit of his pilot's knowledge
(if any), he dared not have done so, he would have been criminally punishable if he had.
Captain Bosworth knew that he had" not contracted with Christensen as a pilot, i. e. for
a pilot's skill and care, for he had paid half pilotage to another man before leaving Nanaimo.    This he never would have done if he had thought that Christensen, whom he
had then engaged, could p