T-3465-74
Canadian General Electric Company Limited, A.
E. Hickman Company Limited (Plaintiffs)
v.
Les Armateurs du St-Laurent Inc., Gordon For-
warders Limited, Harvey Terminals, a Division of
A. Harvey & Company Limited (Defendants)
Trial Division, Dubé J.—Toronto, May 3; Ottawa,
May 10, 1976.
Maritime law—Plaintiff claiming damages from defendants
in respect of goods shipped from Barrie and received at St.
John's in damaged condition—Defendant shipowners alleging
no contractual link with plaintiffs—Defendant cargo forward-
ers claiming it was a contractual term between plaintiffs and
themselves that risk during carriage would be plaintiffs'—
Whether document a bill of lading—Federal Court Rule
474—Carriage of Goods by Water Act, R.S.C. 1970, c. C-15,
ss. 2, 5—Hague Rules, art. V1—Bills of Lading Act, R.S.C.
1970, c. B-6, s. 4.
Goods were shipped from Barrie, Ontario and received at St.
John's, Newfoundland, in a damaged state. Plaintiffs claimed
damages from the shipowners, cargo forwarders and terminal
operators. Defendant shipowners alleged that there was no
contractual link between themselves and plaintiffs, the ship
having been time chartered to the forwarders. And defendant
forwarders stated that it was a term of their contract with
plaintiffs that risk to goods during carriage would be that of
plaintiffs. Plaintiffs applied under Rule 474 to determine
whether the document in question was a bill of lading. Plain
tiffs alleged that the forwarders did not take advantage of
Article VI of the Hague Rules, but instead issued a negotiable
instrument, the alleged bill.
Held, the document is not a bill of lading. A bill of lading, it
is generally accepted, serves three purposes: it is a receipt for
the goods, a representation of the contract of carriage, and a
document of title. The document in question is unsigned, and,
while neither the Carriage of Goods by Water Act or the Rules
specifically so require, it appears from section 4 of the Bills of
Lading Act that signing is at least an important evidentiary
element. The negotiability aspect of the document is of the
utmost importance in determining whether or not it is a bill of
lading under the Carriage of Goods by Water Act and Rules,
because the very purpose of the proviso in Article VI is to
protect other parties, to whom the document might be
endorsed, from the limited responsibility of the carrier. In view
of the role and essence of a bill of lading as described in all the
authoritative works quoted, it is difficult to see how the
unsigned document here can be described as a negotiable bill of
lading; it would be better described as an non-negotiable
receipt. The document is not entitled "bill of lading", nor is
there anything to indicate that the carrier intended it to be
such. In fact, the carrier denied issuing a bill of lading.
Harland & Wolff, Ltd. v. Burns & Laird Lines, Ltd.
(1931) 40 LI.L.R. 286 and The "Marlborough Hill" v.
Alex. Cowan and Sons, Ltd. [1921] 1 A.C. 444, applied.
Montreal Trust Company v. Canadian Surety Co. (1939)
67 K.B. (Que.) 218; Gosse Millerd, Limited v. Canadian
Government Merchant Marine, Limited [1929] A.C. 223;
"The Ardennes" [1951] 1 K.B. 55 and Hugh Mack & Co.
Ltd. v. Burns & Laird Lines, Ltd. (1943-44) 77 LI.L.R.
377, agreed with.
APPLICATION.
COUNSEL:
G. R. Strathy for plaintiffs.
N. H. Frawley for defendant Gordon For-
warders Limited.
G. Vaillancourt for defendant Les Armateurs
du St-Laurent Inc.
SOLICITORS:
McTaggart, Potts, Stone & Herridge,
Toronto, for plaintiffs.
McMillan, Binch, Toronto, for defendant
Gordon Forwarders Limited.
Langlois, Drouin & Laflamme, Quebec City,
for defendant Les Armateurs du St-Laurent
Inc.
The following are the reasons for judgment
rendered in English by
DUBE J.: This application on behalf of the plain
tiffs is to determine the following question of law
raised by the pleadings:
Is the document referred to in paragraph 2(b) of the State
ment of Claim and paragraph 5 of the Statement of Defence of
the Defendant, Gordon Forwarders Limited, a Bill of Lading
within the meaning of the Carriage of Goods By Water Act,
R.S.C. 1970, c. 15 [sic'?
The relevant paragraphs of the pleadings read as
follows:
2. (b) The Defendant, Gordon Forwarders Limited is a corpo
ration incorporated pursuant to the laws of Ontario and is
carrying on business in Hamilton, Ontario and at all material
times herein it was engaged as cargo forwarders and otherwise
engaged in the movement of goods and were the issuers of an
unnumbered Bill of Lading respecting the carriage of goods
aboard the ship dated September 28, 1973. Additionally, this
Defendant made all of the arrangements for the transportation
of the goods from the premises of the Plaintiff, Canadian
General Electric Company Limited at Barrie, Ontario to St.
John's, Newfoundland and in that connection arranged for road
transportation to Montreal and water transportation from
Montreal to St. John's.
5. As to paragraph 6 of the Statement of Claim the Defendant
herein denies that it had any responsibility under The Carriage
of Goods By Water Act, R.S.C. 1970 Chap. C-15 and further
denies it was in negligent breach of any duty of care. The
Defendant herein denies that it ever issued a bill of lading in
connection with the carriage of thelgoods herein nor was the
issuance of one ever intended.
The application is made under Rule 474 of the
Federal Court:
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
(2) Upon application, the Court may give directions as to
the case upon which a question to be decided under paragraph
(1) shall be argued.
Counsel for defendant Les Armateurs du
St-Laurent Inc. filed representations in writing
without appearance under Rule 325 submitting
that the answer to the question of law should be in
the negative.
Counsel for defendant Gordon Forwarders Lim
ited appeared and objected to the determination as
being premature, and alleged in the alternative
that if the question of law were to be determined
before the trial itself, it should be determined in
the negative. Learned counsel claimed it was
undesirable to determine the question of law now
as some of the facts material to the determination
were in dispute.
I felt however there were sufficient material
facts alleged in the affidavit, in the document itself
annexed to the affidavit, and admitted in the
pleadings to support a determination of the narrow
issue referred to the Court. Being of the view that
it would be expedient to make such a determina
tion, I ruled accordingly.
The document in question, annexed to the
affidavit in support of the motion, bears reproduc
ing in its entirety:
GORDON FORWARDERS LIMITED
260 GAGE AVENUE SOUTH
HAMILTON, ONTARIO
Phone 4I6-547-4505 Telex No. 012-742
SEPTEMBER 23, 1973
SHIPPED, in apparent good order and condition, by Canadian
General Electric Co. Ltd., Barrie, Ontario on board the good
steamship or motor vessel, called the M.V. Maurice Desgagnes,
Trip No. 9-East now lying in the Port of Montreal, Quebec and
bound for St. John's Newfoundland.
For: Canadian General Electric Co. Ltd. and A. E.
Hickman Co. Ltd., St. John's, Newfoundland
distribution load.
Being marked and numbered as herein, and to be delivered in
like good order and condition at the aforesaid Port of St.
John's, Nfld.
2181 pcs. misc electrical appliances,
20,854 lbs
Freight prepaid
QUANTITY, DESCRIPTION AND STOWAGE FREIGHT PREPAID
SHIP LOST OR NOT LOST
INSURANCE ALL RISKS FOR ACCOUNT OF OWNERS OF
MERCHANDISE.
TO: BE DISCHARGED AT A. HARVEY & CO. LTD. PIER
RATED TO DOCK ST. JOHN'S ONLY.
DISTRIBUTION CHARGES TO FOLLOW
1210 pcs. for A. E. Hickman St. John's
121 pcs. for A. E. Hickan Fortune, Nfld.
109 pcs. for A. E. Hicman, Grand Falls, Nfld.
741 pcs. for C.G.E., St. John's, Nfld.
Received ex Smith Transport Ltd.
Pro 3128593
Shippers No. 48470-77, 155
48479-80, 48486-511
Declared valuation $104,270.00
THIS COPY TO BE PRESENTED AT PIER PRIOR TO RELEASE OF
GOODS.
In their statement of claim plaintiffs claim that
pieces of electrical appliances were shipped in good
order and condition from Barrie, Ontario, and
were received at St. John's, Newfoundland, in a
damaged condition. They claim damages from the
shipowners, defendant Les Armateurs du St-Lau-
rent, the cargo forwarders, defendant Gordon For-
warders Limited, and also the terminal operators,
defendant Harvey Terminals. Defendant shipown-
ers allege there was no contractual link between
themselves and the plaintiffs, the ship Maurice
Desgagnes being at all material times time-char
tered to the cargo forwarders. The latter state that
it was a term of the contract between plaintiffs
and themselves that the risk in the goods during
their carriage would be that of the plaintiffs. Thus
the importance of determining whether or not the
document in question was a bill of lading. If the
question is answered in the affirmative, plaintiffs
will claim that defendants may not contract out of
their liability, under Article VI of the Hague
Rules annexed to the Carriage of Goods by Water
Act' which reads:
Article VI
Special Conditions
Notwithstanding the provisions of the preceding Articles, a
carrier, master or agent of the carrier, and a shipper shall in
regard to any particular goods be at liberty to enter into any
agreement in any terms as to the responsibility and liability of
the carrier for such goods, and as to the rights and immunities
of the carrier in respect of such goods, or his obligation as to
seaworthiness, so far as this stipulation is not contrary to public
policy, or the care or diligence of his servants or agents in
regard to the loading, handling, stowage, carriage, custody,
care, and discharge of the goods carried by water, provided that
in this case no bill of lading has been or shall be issued and that
the terms agreed shall be embodied in a receipt which shall be a
non-negotiable document and shall be marked as such.
Any agreement so entered into shall have full legal effect.
Provided that this Article shall not apply to ordinary com
mercial shipments made in the ordinary course of trade, but
only to other shipments where the character or condition of the
property to be carried or the circumstances, terms and condi
tions under which the carriage is to be performed, are such as
reasonably to justify a special agreement. [The underlining is
mine.] 2
Section 2 of the Carriage of Goods by Water
Act stipulates that the Hague Rules relating to
bills of lading have effect in relation to the car
riage of goods by water from any port in Canada.
The document in question refers to goods on board
the vessel Maurice Desgagnes lying in the Port of
Montreal and bound for St. John's, Newfound-
land.
Article I of the Rules defines the following
expressions:
Article I
Definitions
In these Rules the following expressions have the meanings
hereby assigned to them respectively, that is to say,
(a) "carrier" includes the owner or the charterer who enters
into a contract of carriage with a shipper;
' R.S.C. 1970, c. C-15.
2 The underlining is mine throughout.
(b) "contract of carriage" applies only to contracts of car
riage covered by a bill of lading or any similar document of
title, •in so far as such document relates to the carriage of
goods by water, including any bill of lading or any similar
document as aforesaid issued under or pursuant to a charter-
party from the moment at which such bill of lading or similar
document of title regulates the relations between a carrier
and a holder of the same;
(c) "goods" includes goods, wares, merchandise, and articles
of every kind whatsoever, except live animals and cargo
which by the contract of carriage is stated as being carried
on deck and is so carried;
(d) "ship" means any vessel used for the carriage of goods
by water;
(e) "carriage of goods" covers the period from the time
when the goods are loaded on to the time when they are
discharged from the ship.
The purpose of the Carriage of Goods by Water
Act and the annexed Rules was to replace the
conventional contract by which the carrier
attempted to relieve himself of liability, by a legis
lative umbrella under which the carrier could limit
his responsibility by way of the Article VI excep
tion, provided that no bill of lading was issued.
(See Gosse Millerd, Limited v. Canadian Govern
ment Merchant Marine, Limited [1929] A.C. 223
at page 236.) The proviso against the issuance of a
negotiable bill of lading is to protect innocent third
parties against the limited liabilities of the carrier.
Plaintiffs rightly allege that defendant Gordon
Forwarders Limited could have availed itself of
Article VI as allowed by section 5 of the Act:
5. Article VI of the Rules, in relation to the carriage of
goods by water in ships carrying goods from any port or place
in Canada to any other port or place in Canada, has effect as
though that Article referred to goods of any class instead of to
particular goods and as though the proviso to the second
paragraph of the said Article were omitted.
It is plaintiffs' contention that said defendant
did not take advantage of Article VI, but issued
instead a negotiable instrument, the alleged bill of
lading.
Neither the Act nor the Rules provide a defini
tion of "bill of lading". It is generally accepted
that a bill of lading serves three purposes: it is a
receipt for the goods, it represents the contract of
carriage and it is a document of title (See Poor on
Charterparties and Ocean Bills of Lading, page
134). The Bills of Lading Act 3 does not define bill
of lading but section 4 describes what it represents:
4. Every bill of lading in the hands of a consignee or
endorsee for valuable consideration, representing goods to have
been shipped on board a vessel or train, is conclusive evidence
of such shipment as against the master or other person signing
the bill of lading, notwithstanding that such goods or some part
thereof may not have been so shipped, unless such holder of the
bill of lading has actual notice, at the time of receiving it, that
the goods had not in fact been laden on board, or unless such
bill of lading has a stipulation to the contrary; but the master or
other person so signing may exonerate himself in respect of
such misrepresentation by showing that it was caused without
any default on his part, and wholly by the fault of the shipper
or of the holder, or of some person under whom the holder
claims.
The document before me is not signed.
Neither the Carriage of Goods by Water Act
nor the Rules specifically require that a bill of
lading be signed, but it appears from the above
section that signing is at least an important eviden-
tiary element. A review of textbook authorities on
the essential elements of a bill of lading sheds
some light on the matter.
In volume 13 of British Shipping Laws, Singh
and Colinvaux, the essential facts in a bill of
lading are detailed as follows at page 297 et seq.:
a) the name of the shipper, b) the name of the
consignee, c) the port of loading, d) the name of
the ship, e) the port of discharge, f) the description
of the goods, g) the date, h) the number of signed
negotiable copies. The complete paragraph h)
reads:
(h) The number of signed negotiable copies. The bill of
lading must state how many negotiable copies have been
signed. Two or three such copies are most usual, but sometimes
there are more or even only one, according to the requirements
of the shipper rather than of the shipping company.
Bill of lading is defined in volume 5 of British
Shipping Laws, Sassoon, (2nd ed.) at paragraph
72:
A bill of lading is a document which is signed by the
shipowner or his agent acknowledging that goods have been
shipped on board a particular vessel which is bound for a
particular destination and stating the terms on which the goods
so received are to be carried.
3 R.S.C. 1970, c. B-6.
Lord Goddard is quoted further down the page
from his decision in "The Ardennes" 4 case:
It is, I think, well settled that a bill of lading is not in itself
the contract between the shipowner and the shipper of goods,
though it has been said to be excellent evidence of its terms:
Sewell v. Burdick, per Lord Bramwell and Crooks v. Allan.
The contract has come into existence before the bill of lading is
signed; the latter is signed by one party only, and handed by
him to the shipper usually after the goods have been put on
board. No doubt if the shipper finds that the bill contains terms
with which he is not content, or does not contain some term for
which he has stipulated, he might, if there were time, demand
his goods back; but he is not, in my opinion, for that reason,
prevented from giving evidence that there was in fact a contract
entered into before the bill of lading was signed different from
that which is found in the bill of lading or containing some
additional term. He is no party to the preparation of the bill of
lading; nor does he sign it.
Thompson, G. H. M., in Bills of Lading, Ste-
vens and Sons Ltd., London, 1925, defines the
document at page 14:
A bill of lading is a document signed by the shipowner or the
master of the ship or other agent of the shipowner.
at page 15, he adds:
Upon its being signed the bill of lading is handed to the
shipper, who may either retain it or transfer it to another
person.
Purchase, H. G., in Documents of Title to
Goods, Sweet & Maxwell Limited, 1931, provides
his definition at page 22:
The bill of lading is a document of title to goods in its most
complete form. When the merchant has entered into a contract
for shipment with the shipowner and the goods have been
accepted by the ship, a bill of lading is signed by the shipowner
or his agent, usually the master of the ship, and handed over to
the shipper.
at page 25:
According to Lord Blackburn in his book on Sale, it is "A
writing signed on behalf of the owners of the ship in which the
goods are embarked, acknowledging the receipt of the goods
and undertaking to deliver them at the end of the voyage,
subject to such conditions as may be mentioned in the bill of
lading." Another definition is "an acknowledgment under the
hand of the captain that he has received such goods (loaded on
board his ship) which he undertakes to deliver to the person
named in that bill of lading".
at page 28:
4 [1951] 1 K.B. 55 at pages 59-60.
The shipper uses the printed form of bill of lading, which he
procures from the shipowner's printers, and he fills in the
shipping details which are checked by the shipowner or his
agent or broker and the bill of lading is then signed.
Scrutton on Charterparties and Bills of Lading,
18th ed., Sweet & Maxwell, London, 1974 at page
52 under the head "Issue of the Bill of Lading",
writes:
AFTER the shipment of goods under a contract of affreight-
ment, the bill of lading is signed by the carrier or his agent and
delivered to the shipper, in exchange for the mate's receipt,
where one exists.
Where the Carriage of Goods by Sea Act 1924 applies, the
shipper may demand a bill of lading immediately the goods are
received into the charge of the carrier.
Where it is the shipper's duty to present bills of lading, he
must do so within a reasonable time after the cargo is loaded,
although the ship is lost before he presents them. And when the
cargo is loaded he must present the bill of lading in a reason
able time, even though the lay-days have not expired. The
master, in his turn, is bound to sign bills of lading in respect of
each parcel shipped within a reasonable time of presentation
and is not entitled to delay signing until all the cargo has been
shipped.
The three functions of a bill of lading are
outlined by Bes, J., in Chartering and Shipping
Terms, vol. 1, 9th ed., Barker & Howard Ltd.,
London, 1975 at page 110:
A Bill of Lading has the following functions:
1. It is a receipt for goods, signed by the master or other duly
authorized person on behalf of the carriers.
2. It is a document of title to the goods described therein.
3. It serves as evidence of the terms and conditions of carriage
agreed upon between the two parties.
Halsbury's Laws of England' describes bill of
lading in paragraph 470, and deals with the "Sig-
nature of the Bill of Lading" in a special section
under that heading from which paragraphs 485
and 486 are worthy of note:
470. Description. A bill of lading is a document signed by
the shipowner, or by the master, or other agent of the shipown-
er, which states that certain specified goods have been shipped
in a particular ship, and which purports to set out the terms on
which the goods have been delivered to and received by the
ship. After signature it is handed to the shipper, who may
either retain it or transfer it to a third person. This person may
be named in the bill of lading as the person to whom delivery of
the goods is to be made on arrival at their destination, in which
case he is known as the consignee; if he is not named in the bill
of lading, he is usually known as the holder or endorsee of the
bill of lading. A bill of lading issued by the shipowner's agent in
the absence of any contract of carriage is a nullity. The effect
5 3rd ed., vol. 35.
of a bill of lading depends upon the circumstances of the
particular case, of which the most important are the position of
the shipper and of the holder. There is no stamp duty on a bill
of lading.
485. By whom signed. The bill of lading is usually signed,
not by the shipowner personally, but by the master or other
agent acting on the shipowner's behalf. If the shipowner signs it
himself, no difficulty arises. Where, however, the signature is
that of an agent, the shipowner's liability depends upon the
extent of the agent's authority, and the general principles of
agency apply.
486. Effect of master's signature. The shipowner is bound
by his master's signature to a bill of lading, provided that the
master, in signing the bill of lading, did not exceed the author
ity which the shipper knew or ought to have known that the
master possessed. Where the bill of lading in question is one
which the master was expressly authorised to sign, the shipown-
er's liability is clear. His liability does not, however, depend
upon the existence of an express authority; he is equally liable
where the master is acting within the scope of his apparent
authority as such.
It was held in Hugh Mack & Co., Ltd. v. Burns
& Laird Lines, Ltd. 6 that the operation of the
Rules was confined to the carriage of goods under
a bill of lading or similar document of title and did
not apply to the coasting trade in so far as such
trade was carried on with non-negotiable receipts
instead of bills of lading. It also held that Article
VI afforded the shipowners complete protection -in
that the "special conditions" were embodied in a
receipt marked "non-negotiable". The negotiabili-
ty aspect of the document is of the utmost impor
tance in determining whether or not it is a bill of
lading under the Carriage of Goods by Water Act
and the Rules, because the very purpose of the
proviso in Article VI is to protect other parties, to
whom the document might be endorsed, from the
limited responsibility of the carrier. In view of the
role and essence of a bill of lading as defined in all
the authoritative textbooks quoted above, it is
difficult to see how the unsigned document before
me can be described as a negotiable bill of lading
as envisaged by the Act and the Rules annexed
thereto. Perhaps the document would better be
described as a non-negotiable receipt.
Lord Chief Justice Andrews in his judgment in
the Hugh Mack case (supra), referring to the
document before him (which was duly signed),
6 (1943-44) 77 L1.L.R. 377.
held that even if it could properly be described as a
"document of title", it was not "similar to" a bill
of lading. After describing the characteristics it
lacked, he concluded (at page 383):
... above all, it is not a negotiable instrument, the indorsement
and delivery of which may affect the property in the goods
shipped.
Attempting to define the words "other docu
ment of title", he continued:
I shall not purport to give an exhaustive definition; but the term
doubtless includes what is known as a "received for shipment"
bill of lading—a document issued before shipment as distin
guished from a bill of lading properly so called which is not
signed or delivered until after shipment has taken place. Suffice
it, however, for me to say that in my opinion the phrase does
not include a mere receipt such as was given by the shipowner
to the shipper in this case.
The document before the Court is not titled "bill
of lading" and there is nothing to indicate that the
carrier intended it to be a bill of lading. In fact,
the defendant carrier in his defence alleges it did
not issue a bill of lading. The document has to be
considered as a mere receipt given by the forward
er to the shipper, and not a negotiable bill of
lading issued by the shipowner and signed by the
master or other agent in authority.
Lord Blackburn in Harland & Wolff Ltd. v.
Burns & Laird Lines, Ltd.' looked not only at the
signature of an alleged bill of lading but also at the
time of the signature. He said at page 289:
The argument for the pursuers in so far as it depended upon the
document dated Dec. 23, 1929, being treated as a bill of lading
appears to me to be quite untenable. The document was
apparently not signed till 10 days after the date it bears, but
even at that date the ship and its cargo were at the bottom of
the sea. It is quite apparent that the sole purpose for which it
was signed was to verify the amount and value of the cargo
which had been lost, and that it was in no sense intended to
satisfy the purpose of a bill of lading. That appears to me to
end the case ... .
The House of Lords examined a document in all
its details and pronounced it to be a bill of lading
in The `Marlborough Hill" v. Alex. Cowan and
Sons, Ltd.' The judgment was delivered by Lord
Phillimore who said at page 453:
' (1931) 40 LI.L.R. 286.
8 [1921] 1 A.C. 444.
No doubt it appears from the margin that it is the form in
use by the Commonwealth and Dominion Line, Ld., Cunard
Line, Australasian service, trading from New York to Australia
and New Zealand, with Funch, Edye & Co. Incorporated, as
the American agents; and it may be said that it is not signed by
the master, but by that firm as agents for the master. It is,
however, well known that in general ships the master does not
usually sign. The bills of lading are signed in the agents' office
by the agents. It should perhaps be added that it is evidently
contemplated by the document that the shipper will assign his
rights and that the assignee or holder of the bill of lading will
present the document at the port of delivery, and that his
receipt and not that of the shipper will be the discharge to the
shipowner.
In Montreal Trust Company v. Canadian
Surety Co. 9 a question arose as to the applicability
of the Water Carriage of Goods Act (1927) and a
document was produced purporting to be a bill of
lading. Dealing with the document, Bond J. point
ed out that while there were cases in which a bill
of lading was signed after the ship had sailed, it
appeared in this case that the document might not
even have been signed. He said at page 220:
A good deal can be said, and has been said, for the conten
tion that the document in question is not a bill of lading, strictly
so-called. To begin with it is apparently not signed—at least as
appears from the copy fyled [sic] by the appellants, and the
original is not produced. Again, while headed "bill of lading", it
has the appearance rather of a "shipping order"—as it appears
on respondent's exhibit D-4—or, as it is often referred to by
writers on the subject, a "received for shipment bill of lading".
It is doubtful if the latter is strictly a bill of lading at all.
(Temperley, Carriage of Goods by Sea Act, 1924, 3rd ed. 1927,
p. 7.)
I am of the view therefore that the unsigned
document referred to in this application is not a
bill of lading within the meaning of the Carriage
of Goods by Water Act.
Costs in the cause.
9 (1939) 67 K.B. (Que.) 218.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.