A-369-76
Canadian General Electric Company Limited and
A. E. Hickman Company Limited (Appellants)
v.
Les Armateurs du St-Laurent Inc., Gordon For-
warders Limited and Harvey Terminals, a division
of A. Harvey & Company Limited (Respondents)
Court of Appeal, Urie J., MacKay and Kelly
D.JJ.—Toronto, March 29, 1977.
Maritime law — Practice — Bill of lading— Whether Trial
Judge erred in making preliminary determination of question
of law without agreed statement of facts — Federal Court
Rule 474.
Goods were shipped from Barrie, Ontario and received at St.
John's, Newfoundland, in a damaged state. At trial, appellants
claimed damages from the shipowners, cargo forwarders and
terminal operators. Respondent shipowners alleged that there
was no contractual link between themselves and plaintiffs, the
ship having been time chartered to the forwarders. Respondent
forwarders stated that it was a term of their contract with
appellants that the latter would assume risk to goods during
carriage. Appellants applied to the Trial Division under Rule
474 to determine whether the document in question was a bill
of lading. They alleged that the forwarders did not take advan
tage of Article VI of the Hague Rules, but instead issued a
negotiable instrument, the alleged bill. The Trial Judge held
that the unsigned document was not a bill of lading, but, at
best, a non-negotiable receipt.
Held, the appeal is allowed and the judgment of the Trial
Judge is set aside. The Trial Judge erred in making a prelim
inary determination of a question of law on the basis of the only
material before him, namely, the pleadings, without the benefit
of an agreed statement of facts. Since the very existence of the
document, as a bill of lading, was in issue, the learned Judge
ought not to have answered the question submitted without
such agreed statement of facts.
Anglophoto Ltd. v. The "Ikaros" [1974] 1 F.C. 327 and
K. J. Preiswerck Ltd. v. The "Allunga" [1977] 1 F.C. 259,
followed.
APPEAL.
COUNSEL:
George R. Strathy for appellants.
N. H. Frawley for respondent Gordon For-
warders Limited.
Guy Vaillancourt for respondent Les Arma-
teurs du St-Laurent Inc.
SOLICITORS:
McTaggart, Potts, Stone & Herridge,
Toronto, for appellants.
McMillan, Binch, Toronto, for respondent
Gordon Forwarders Limited.
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for respondent Les Armateurs
du St-Laurent Inc.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: Without expressing any opinion as to
whether or not the learned motion Judge correctly
determined' that the document which was the
subject matter of the question put to him as a
preliminary determination of a question of law,
was not a bill of lading, we are all of the opinion
that he was wrong in making such determination
on the basis of the only material before him,
namely, the pleadings, without the benefit of an
agreed statement of facts.
The appellants alleged in their statement of
claim that the respondent Gordon Forwarders
Limited was the issuer of an unnumbered bill of
lading. Gordon put that question in issue by deny
ing that it had ever issued a bill of lading or that it
ever had intended to do so. In fact, it alleged that
it had entered into an oral agreement with the
plaintiff Canadian General Electric Company
Limited.
The respondent Les Armateurs du St-Laurent
Inc. alleged that the ship was on a time charter to
the respondent Gordon and that the purported bill
of lading was an unsigned document to which it
was not a party.
The question of the very existence, as a bill of
lading, of the document referred to in the question
before the motion Judge, had, thus, been put in
issue, and, for the proper determination of that
issue, evidence of such matters as the intention of
the parties, the authority of the master to issue and
the circumstances surrounding the delivery of the
document, to mention only three of possibly a
number of material matters, ought to have been
before the learned Judge. Normally that evidence,
1 [1977] 1 F.C. 215.
on a preliminary motion, would be contained in an
agreed statement of facts, but here there was no
such agreement and it is doubtful if there ever
could have been one in view of the allegations in
the respective pleadings of the parties. In our view,
therefore, the question submitted to the learned
motion Judge ought not to have been answered by
him because of the lack of agreed facts upon which
to make such determination. Without it he could
not make any proper determination of the question
propounded.
Support for this view is found in Anglophoto
Ltd. v. The "Ikaros" [ 1974] 1 F.C. 327, a decision
of this Court. In K. J. Preiswerck Ltd. v. The
"Allunga" [1977] 1 F.C. 259 (a judgment of the
Trial Division) at page 262 is set forth the kind of
agreement as to facts which should be before a
motion Judge before he makes a preliminary
determination of a question of law.
The appeal will, therefore, be allowed. The judg
ment answering the question will be set aside and
the motion for determining the question of law will
be dismissed. For reasons which should be obvious
to counsel there will be no costs to any of the
parties on the appeal. The respondents who
appeared on the motion in the Trial Division will
be entitled to their taxed costs on the motion, in
any event of the cause.
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.