Supreme Court
Action No. 2 of 1982
8th June, 1983
Alcantara, J.

Mr. George Brown, Solicitor General, for the Attorney General
Mr. Dean Barrow for the Owners of the Ship "Stephanie"

Admiralty - Collision of "The Stephanie" with ferry - Damages to ferry totalled $18,007. 63 (BZ) - Whether "the Stephanie" did in fact cause the damage to the ferry - Burden and Standard of Proof - Proof in civil cases to be on a balance of probabilities - Burden rests on party alleging - Burden of proof on Plaintiff - Burden not discharged - Action against Defendants dismissed with costs - Judgment for Defendants.

J U D G M E N T

On the New River between Progresso and San Estevan at the junction of Orange Walk Town there is a ferry, owned by the Government. This ferry enables traffic, including vehicular traffic, to proceed from one bank of the river to the other.

There is also water-borne traffic along part of the New River. Relevant to this action are the tugs towing barges going up to Tower Hill Sugar Factory and coming down to Belize City laden with sugar or molasses. To get to Tower Hill from Belize City you have to pass the ferry. Similarly from Tower Hill to Belize City. Evidence has been given that the ferry is about two hours sailing distance to Tower Hill. To enable the tugs and barges to pass the ferry, the ferry has to be tied securely alongside one of the banks as the river is not sufficiently wide. Evidence has also been given that the normal procedure for the tugs is to hoot asking or warning the ferryman that it is approaching and enabling him to secure the ferry alongside the bank. The traffic from bank to bank then comes to a stop. The passage of tugs and barges occurs at frequent intervals.

At 6:00 p.m. on the 3rd day of September, 1981 the ferry was in good condition. At 6:00 a.m. on the 4th day of September, 1981 it had been damaged. The damage was considerable as Government had to spend $18,007.63 to have it repaired and made serviceable again.

This is an Admiralty Action brought by the Attorney General on behalf of Government claiming from the owners of the vessel "Stephanie" the amount spent on repairing the ferry. The Plaintiff alleges that the damage was caused by the bad navigation of the "Stephanie." It is said that the "Stephanie" was towing three barges along the river and that the first barge collided with the ferry, which was properly tied alongside the Orange Walk bank.

The Defence is that whatever damage was caused it was not due to the "Stephanie" or any of its barges. In fact, the "Stephanie" was not in the vicinity of the ferry at the time or date when the collision is said to have taken place.

There is no dispute as to the damage caused or the money spent in repairing the ferry. What is in dispute is who is responsible for the damage.

The main witness for the Plaintiff and only eye-witness of the collision is Marcos Cruz, the ferryman on duty from 6:00 p.m. on the 3rd September, 1981 to 6:00 a.m. the 4th September. 1981.

His evidence is that it was a dark night. Because of a strike there was no electricity. He was on duty in the ferry and had a flashlight. He heard the sound of a tug and saw lights. The tug on this occasion did not hoot to warn its approach. It was coming from the direction of Tower Hill. He took immediate action by himself alone to secure the ferry alongside the Orange Walk bank. As the tug passed the ferry the first barge came into collision with the ferry and caused the damage. This happened at 12:15 a.m. on the 4th September, 1981. He is positive about the time. The tug did not stop. He flashed his torch towards the tug. He says he was able to see two men on board but could not identify them as it was too dark. His actual words are "I had a flashlight so that I could not see at a distance." He said on oath that the tug was the "Stephanie." In cross examination he said:
"I flashed light at back. Whilst it was coming. I flashed. I saw name, only with use of flashlight did I see name. The name was behind, on stern."

After the accident he did a very significant thing according to him. He made an entry in an exercise book he keeps as a record. In his own words- "I know the date because I noted it on an exercise book."

"The only boat that passed was "Stephanie." Whatever incident a barge does or vehicle I put in exercise book. I wrote incident in exercise book. The exercise book is at home. I did not bring it. I made note on exercise book."

"I gave exercise book to Chief of Public Works. They put information on bit of paper. They do not have exercise book. I presented exercise book. They copied it. I have exercise book at home. The exercise book I keep for my own record."

This evidence only came out in the course of cross examination and the question which arises is, does the exercise book exist and if it does, why has it not been exhibited by the Plaintiff?

There is another part of the evidence of the ferryman to which I should allude. He said that after the accident laden vehicles could not cross on the ferry, but unladen vehicles could. In fact, at 5:00 a.m. on the 4th, vehicles did cross. This evidence does not accord with the evidence of two other witnesses called by the Plaintiff, the other ferryman and the Works Superintendent of the Orange Walk District. They both testified that because of the damage nothing could cross on the ferry until it was repaired. It was in fact out of operation until the 9th January, 1982.

The main witness for the Defence is Charles Grant, the marine mechanical engineer on board the "Stephanie" at the time. His evidence is that at the time of the alleged accident the "Stephanie" was waiting at Tower Hill for a load and only departed from Tower Hill to come down to Belize at 9:40 a.m. on the 4th September, 1981. In support of his evidence he has produced the Engine Log Book. I am not impressed with this Log Book as the main purpose of it is to record lube pressure, water temperature and the oil change of the engine of the "Stephanie." True, it gives time of departure and arrival at Tower Hill. Contrary to his evidence, the log book shows that the time of arrival at Tower Hill was 9:40 a.m. on the 4th September, 1981 and the departure date the 5th September, 1981. However, it appears to confirm that in any case the "Stephanie" was not proceeding in the direction the ferryman says it was on the night of the 3rd/4th September, 1981.

Although civil cases are decided on the balance of probabilities, the burden of proving the case rests on the party who alleges. At the end of the case for the Plaintiff, I was of the opinion that the burden had not been discharged. I felt that I could not rely on the evidence of the ferryman Marcos Cruz either as to how the accident took place or on his identification of the "Stephanie." His performance as a witness was such that not much reliance could be placed on his evidence. In view of the denial of engineer on board the "Stephanie" that no accident took place plus his log book, I am satisfied that the Plaintiff have has to prove his case. I therefore find for the Defendants.

Action dismissed with costs.

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