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A-713-75
Montreal Shipping Co. Ltd. (Appellant) (Defendant)
v.
The Queen (Respondent) (Plaintiff)
Court of Appeal, Pratte and Le Dain JJ. and Marquis D.J.—Quebec, June 27, 1977.
Maritime law — Newsprint stored in National Harbours Board warehouse — Crown claiming storage charges Appellant claiming Crown lacks power to levy charges and that free time period applies to goods stored in sheds — Appeal allowed — National Harbours Board Act, R.S.C. 1970, c. N-8, ss. 14, 16(1) and By-law B-3, ss. 2(d),(e), 5(1), 7, 8, 11, 12, Sched., Part III.
APPEAL. COUNSEL:
Raynold Langlois for appellant. Y. J. A. Brisson for respondent.
SOLICITORS:
Langlois, Drouin, Roy, Fréchette & Gau- dreau, Quebec, for appellant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: This is an appeal from a decision by the Trial Division' ordering appellant to pay respondent the sum of $4,687.36 claimed by her as charges for storing goods in a shed at the harbour of Quebec City.
At the hearing respondent claimed that the money in question was owing to her as demurrage under By-law B-3 adopted in accordance with section 14 of the National Harbours Board Act 2 ; alternatively, she argued that the sum was owing to her under a contract that she had concluded with appellant or, in the absence of a contract, in accordance with the doctrine of unjust enrichment.
' [1976] 1 F.C. 625.
2 R.S.C. 1970, c. N-8.
The Trial Judge allowed the action solely on the basis of the By-laws cited by respondent. At the beginning of his pleading on appeal, counsel for the respondent acknowledged that these By-laws were the only possible basis for his action, which consequently should be dismissed if the Court found that there was no obligation under these By-laws to pay the amount claimed.
By-law B-3, on which respondent bases her claim, imposes two types of charges: demurrage and wharfage. It is established that there is no question here of a claim for wharfage charges. The only issue, therefore, is whether the money claimed is owing as demurrage. The goods whose storage gave rise to respondent's claim had been placed in a shed at the harbour of Quebec City, while waiting to be loaded onto a vessel. Stated more precisely, therefore, the issue in this case is wheth er By-law B-3 imposes demurrage on goods stored before loading onto a vessel as well as on goods stored after unloading from one.
Section 2(d) of the By-law defines "demurrage" as follows:
"demurrage" means a charge payable on goods in transit remaining on Board property after the expiration of free time;
The expression "free time" is defined as follows in section 2(e):
"free time" means, in respect of any goods, the period within which the goods must be removed from Board property after unloading from a vessel with no demurrage charge being incurred in respect of such period;
If these two definitions are considered together it is clear, in my opinion, that demurrage is incurred only on goods that remain on Board property after unloading from a vessel and not on goods that have not yet been loaded. This conclu sion is, I think, confirmed by the wording of section 12 of the By-law and Part III of the Schedule.
Section 12 is headed "LIST OF GOODS SUBJECT TO DEMURRAGE", and as I read it the first subsec tion assumes that goods subject to demurrage are
goods that have been unloaded from a vessel. This first subsection reads as follows:
12. (1) Where goods have become subject to demurrage, the owner of the vessel shall ensure the receipt by the Board at its office at the harbour at which the goods were unloaded, before noon on the day following expiry of the free time prescribed in respect of the goods, of a list of the goods, in duplicate, on a form supplied by the Board.
Part III of the Schedule to the By-law sets the rates for demurrage, and its preliminary sentence also implies that only goods unloaded from a vessel are subject to demurrage. This sentence reads as follows:
On goods remaining on Board property after the expiration of free time, demurrage shall be assessed as follows:
I conclude from all of this that the money claimed was not owing as demurrage under By-law B-3, since the goods that were stored by respond ent were stored before loading onto a vessel and not after unloading.
For these reasons I would allow the appeal, set aside the decision of the Trial Division and dismiss respondent's action with costs.
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LE DAIN J. concurred.
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MARQUIS D.J. concurred.
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