Ex. C.R. EXCHEQUER COURT OF CANADA [1964] 213 BETWEEN: 1963 .--.-. Apr. 23 SEPT ILES EXPRESS INC. (Plaintiff) . . APPELLANT; Jun. l8 AND CLEMENT TREMBLAY (Defendant) . . RESPONDENT. Shipping—Water carriage of goods Act, R.S.C. 1952, c. 19.1, Art. IV(5)— "Package or unit"—Responsibility of shipper—Truck transported by respondent's vessel lost overboard—Limitation of liability of carrier— Failure to comply with requirement of Act to declare value of shipment—Appeal from District Judge in Admiralty dismissed. Appellant sued respondent on a bill of lading to recover the sum of $19,788, the price it paid for a new truck which was lost, while being transported as deck cargo on respondent's vessel, due to high winds and heavy seas causing the truck to break away from its cable fastenings and was washed overboard and never recovered. The bill of lading did not contain a declaration by the appellant of the value of the lost vehicle. The trial judge held that inasmuch as there was a non-valued bill of lading, the damages recoverable from the carrier could not exceed $500 as the defendant was entitled to invoke the immunity or limitation referred to in the Water Carriage of Goods Act R.S.C. 1952, c. 291, Art. IV(5). On appeal to this Court the appellant contended that the word "unit" as used in the Act meant a unit of weight or customary freight unit and not the unit actually shipped as contended by respondent. The appeal was heard on the question of damages only. Held: That the appeal must be dismissed. 2. That the definition of the word unit as contended by respondent is more in keeping with its natural and usual meaning especially as the word formed part of the phrase Package or Unit. 3. That the responsibility of seeing that the value of the thing shipped is declared and inserted on the bill of lading is on the shipper. 4. That any consequential hardships due to failure to comply with the requirement of the Act are to be charged against the shipper's own failure to do so. 5. That there was nothing in the evidence to absolve the appellant from the consequence of its omission to cause evaluation of the truck to be inserted in the bill of lading. APPEAL from the decision of the District Judge in Admiralty for the Quebec Admiralty District. The appeal was heard before the Honourable Mr. Justice Kearney at Montreal. Peter Walsh for appellant. T. H. Bishop for respondent. 90132—la
214 R C de l'É COUR DE L'ÉCHIQUIER DU CANADA [19641 1963 The facts and questions of law raised are stated in the SEPT ILEs reasons for judgment. EXPRESS INC. KEARNEY J. now (June 18, 1963) delivered the following CLE v M . E NT judgment: TREMBLAY By judgment rendered by the Honourable Mr. Justice Smith of the Admiralty District of Quebec on November 6, 1962, the (Defendant) Respondent was condemned to pay damages to the (Plaintiff) Appellant to the extent of $500, together with interest and costs. The (Plaintiff) Appellant being dissatisfied with the amount of damages thus awarded instituted the present appeal. At the opening of the case counsel for the parties stated that they had already exchanged written submissions on the matter in issue and made a request, which was granted, to file them in lieu of oral argument. The (Plaintiff) Appellant (sometimes referred to as "the shipper") sued on a bill of lading (Ex. Pl) to recover the sum of $19,788, being the price which it paid for a new White Motor Company truck which was lost, on or about January 14, 1959, while being transported from Quebec City to Sept Iles by the (Defendant) Respondent (sometimes referred to as "the carrier"), as deck cargo, aboard carrier's M/V Savoy. The evidence shows that when at a point in the St. Lawrence River, about midway between Trinity Bay and Cariboo Islands, the vessel ran into high winds and heavy seas, and the vehicle, which weighed 14,000 lb., broke away from its cable fastenings, was washed overboard and never recovered. It is not disputed that the respective rights of the parties are governed by the bill of lading the original of which. was issued to the shipper or its agent by the vessel and that it did not contain a declaration by the shipper of the value of the lost motor vehicle. The learned trial judge, after dismissing as unfounded certain defences of non-responsibility which can be ignored since no counter-appeal has been filed, maintained an alternative defence, namely, that since the case concerns a non-valued bill of lading, the damages recoverable from the carrier cannot exceed five hundred dollars as he was entitled to, invoke the immunity or limitation referred to in Art. IV(5) of the Water Carriage of Goods Act which reads as follows: - 5. Neither the carrier nor the ship shall m any event be or become liable for any loss or damage to or in connection with goods in an amount
Ex C R EXCHEQUER COURT OF CANADA [1964] 215 exceeding five hundred dollars per package or unit, or the equivalent of 1963 that sum in other currency, unless the nature and value of such goods `— J̀ have been declared by the shipper before shipment and inserted in the EP X T PRESS bill of lading (emphasis added). INc. v. This declaration if embodied in the bill of lading shall be prima facie C LEMENT evidence but shall not be binding or conclusive on the carrier. TREMBLAY Kearney J. The judgment made no comment in respect of a further — alternative defence whereby the carrier sought to limit its liability to $38.92 per ton under s. 657 (1) of the Canada Shipping Act, 1952 R.S.C., c. 29. The issue in the case is a narrow one and concerns the meaning to be attributed to the word "unit" supra. It is submitted on behalf of the appellant that it means a unit of weight, or customary freight unit, and not the unit actually shipped as alleged by the respondent and as found by the learned trial judge. The reasons given by the learned trial judge for reaching the above-mentioned finding appear at pages 10 and 11 of the said judgment and read as follows: In the present instance, although the nature of the said cargo was apparent, no declaration of the value of the car was inserted in the Bill of Lading which document does not indicate, and there is no evidence to show what freight was charged or whether freight was charged at a flat rate or was based on the tonnage of said vehicle. All that is shown is a description of the cargo and an indication that its weight was 14,000 lbs. (Emphasis added.) This being the case the question of whether or not the Defendant is entitled to limit his liability in accordance with the provisions above-quoted appears to be settled by the judgment of the Supreme Court of Canada in the case of Anticosti, Shipping Co. v. St -Amand, [1959] S C R. 372 That case concerned the loss of a truck which was being transported under a contract of carriage by water evidenced by a Bill of Lading which contained no statement of the value of the vehicle. It was held that the said vehicle was a "unit" within the meaning of Art. IV, Par. 5, of the Water Carriage of Goods Act and therefore the carrier's liability for the loss was limited to $500. Counsel for the appellant submits that the findings underlined in paragraph 1 supra were reached because the learned trial judge inadvertently omitted to take into account the evidence of witness Jean-Pierre Simard (pp. 78, 79 and 80 of the transcript) and Exhibits P 4 and P5 which furnished specific proof that the freight charge amounted to $396.72 and was based in the manner described in the 90132-1;a
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216 R.C. de 1'É. COUR DE L'ÉCHIQUIER DU CANADA [1964] 1963 plaintiff's statement of claim and referred to at page 4 of SEPTILES the judgment in the following terms: EXPRESS INC. ... It is alleged moreover that freight for carriage of the auto-car v was based on a rate of $2.82 per unit of 100 lbs and that the said auto- CLEMENT Tarn car weighed 14,000 lbs, so that the limitation of Section 5 of Article IV of the rules contained in the Water Carriage of Goods Act would be $500 Kearney J. as multiplied by 14,000, a total of $70,000. It is also claimed for the appellant that the Anticosti easel is not directly in point and, moreover, it is as favourable to the appellant's claim as to that of the respondent. Counsel for the respondent stressed the fact that the bill of lading itself contained no reference to freight charges, and while conceding that the learned trial judge overlooked the other evidence above-referred to concerning these charges, such oversight in no way affected the validity of his judgment and he was, nonetheless, justified in following the findings in the Anticosti case. I think the definition given by the respondent to the word "unit" is more in keeping with its natural and usual meaning than the one advocated by the appellant, especially since the word forms part of the phrase "package" or "unit". Although it is etymologically possible to give a different generic meaning to the two words, I think there is insufficient law or fact in the circumstances to warrant doing so. It cannot be disputed that s. 5 of Art. IV was designed for the protection of carriers, and, if the appellant's interpretation of "unit" were accepted, it would, in my opinion, for reasons hereinafter mentioned, serve to defeat the purpose of the legislation and render the immunity or limitation meaningless. Furthermore, to allow the appellant's omission to make a declaration of value to prevail would not be unlike allowing the shipper to invoke his own omission to penalize the carrier by substituting $70,000 instead of $500 as the latter's limit of liability. Perhaps this word "omission" is not the appropriate term because there is no evidence that the failure of the shipper or its agent to cause a valuation to be inserted in the bill of lading was due to inadvertency. Indeed, if the appellant anticipated that the meaning it now seeks to attribute to the word "unit" would prevail, doubtless it would have been careful to refrain from making any declaration of value. 1 [1959] S.C.R. 372.
Ex. C.R. EXCHEQUER COURT OF CANADA [19641 217 It is well recognized that in fixing freight rates, whether 1963 on land or sea, there are more than a dozen factors which SEPT ILES are taken into consideration: see Freight Traffic Red Book, ENC.ss I N C. 1955, published in the United States. In my opinion, the LEv. most important of these are the value, bulk, weight and TREMSLAY risk of handling the article. I place value first since it is an Kearney J. ever-present factor which accounts for the rate differential — applicable to the carriage of two articles of the same size and weight but where the value of one greatly exceeds the value of the other. But this is not the only reason why great importance is attached by the carrier to the shipper's valuation of the object to be shipped. True, such declared valuation, insofar as the carrier is concerned, is only prima facie evidence of the actual value of the article shipped, and is not binding on him, but as I read the Act it is not open to the shipper to claim any damages in excess of the amount of his declared valuation. Counsel for the shipper pointed out that acceptance of the definition given by the respondent leads to an anomaly in as much as it permits a carrier who, as in the present case, has been found negligent for failure to properly stow a new motor vehicle, which could be readily seen to be worth far more than $500 and for which, as subsequent evidence shows, the shipper had paid approximately $20,000, to argue that his liability be restricted to $500. In the Anticosti case, in the court of first instance the learned trial judge relied on such an anomaly, particularly since the truck in question was not boxed and the carrier could easily see that its value far exceeded $500, and condemned the defendant to pay $4,222. On appeal that reasoning in the Court of Queen's Bench was not accepted by Owen J., but he affirmed the said judgment on other grounds, namely, that no bill of lading (or similar document) existed and that in consequence Art. IV(5) was inapplicable. It is interesting to note that Owen J., who delivered the said judgment, observed that, in his opinion, the reasons given by the trial judge were untenable. Rand J. in rendering the judgment of the Supreme Court agreed with Owen J. in this latter respect, but found, contrary to the judgment of the Court of Appeal, that a bill of lading had been filled out but mislaid, that Art. IV(5) was applicable
218 R C de 1'É COUR DE L'ÉCHIQUIER DU CANADA [1964] 1963 and that the amount of damages must be limited to $500, SEPT ILES and he maintained accordingly the appeal. EXPRESS INC. It is important to note that the so-called anomaly referred CLEM v. E NT to by counsel for the appellant could have been eliminated TREMBLAY and would never have arisen if the shipper had inserted Kearney J. the valuation which he attached to the motor vehicle in question; and if he had inserted its valuation at approximately $20,000, which is a large sum, this would have permitted the carrier to charge more freight or take special precautions in protecting the unit from loss or damage. Counsel for the shipper pointed out that in the United States the word "unit", as contained in our Act and the corresponding British Act, was replaced with the phrase "customary freight unit". (See Carver—Carriage of Goods by Sea, 9th ed., at pp. 1102 and 1108.) Although it is said that this alteration "would appear to have been made to clarify the meaning of unit rather than change it", I am not satisfied that such is the case. Mr. Justice Goddard, in the case of Studebaker Distributors Ltd. v. Charlton Steam Shipping Co. Ltd.' wherein a bill of lading contained a clause by which it was agreed that the value of each "package" did not exceed $250, expressed the opinion that both the terms "package" or "unit", as found in The Hague Rules, referred to an individual piece of cargo, as appears from the following extract found at page 467 of his judgment: ... The goods are expressly stated to be unboxed, and the case was argued before me by both parties, who doubtless want a decision on what are known to be the actual facts, on the footing that the cars were put on board without any covering, or, to state it in another way, just as they came from the works. I confess I do not see how I can hold that there is any package to which the clause can refer "Package" must indicate something packed It is obvious that this clause cannot refer to all cargoes that may be shipped under the bill of lading; for instance, on a shipment of grain it could apply to grain shipped in sacks, but could not, in my opinion, possibly apply to a shipment in bulk If the shipowners desire that it should refer to any individual piece of cargo, it would not be difficult to use appropriate words, as, for instance, "package or unit", to use the language of The Hague Rules The preceding case concerned damage to uncrated automobiles shipped under a bill of lading not subject to Rule IV(5) of the British Carriage of Goods by Sea Act, which is similar to the same rule in the Canadian Act and both of which are in conformity with The Hague Rules. 1 [1938] 1 K B. 459
Ex C.R. EXCHEQUER COURT OF CANADA [19641 219 In the case of Pendle and Rivet, Ltd. v. Ellerman Lines, 1963 Ltd.1, the plaintiff sent shipping instructions to the defend- SEPT ILEs ant by a document addressed to the Western Laurence Line, ERCEss Ltd. in regard to a case of wool and silk the contents of C v LEMENT which was stolen in transit. The document stated, inter alia, TREMRI that the value of the goods was £256 8s. id. However, when Kearney J. the bill of lading was issued it did not include anything — about the value of the goods. Mackinnon J. held that Rule 5 of Art. IV of the British Carriage of Goods by Sea Act, and which conforms to The Hague Rules and from which the Canadian Art. IV, Rule 5, was taken, applied and that the amount of damages recoverable was limited to £100. I made mention earlier of the carrier's other alternative plea of immunity based on s. 657 of the Canada Shipping Act. The evidence discloses that during the storm on the voyage in question another vehicle was lost and other automobiles were somewhat damaged. These factors together with the tonnage of the ship would require consideration insofar as the application of s. 657 is concerned, but because I am of the opinion that Art. IV(5) is applicable I do not think it necessary to deal with the aforesaid supplementary defence. The following is an extract from the judgment in the Anticosti case, at page 337: The responsibility of seeing that the value of the thing shipped is declared and inserted on the bill is on the shipper and any consequential hardships must be charged against his own failure to respect that requirement. In my opinion, notwithstanding that the factors in the present case differ from those in the Anticosti case to the extent previously indicated, I think the above-mentioned finding is applicable and I propose to follow it. Regrettable as it may appear for the shipper, I do not consider that there is anything in the evidence before me which absolves it from the consequence of its omission (if omission it was) to cause a valuation of its motor vehicle to be inserted in the bill of lading. On the other hand, notwithstanding the inadvertent mis-statement of fact contained in the judgment a quo and the evidence contained in Exhibit P4, I think the respondent is entitled to the 1 [19271 33 Comm Cas 70 at 78.
220 R.C. de PÉ. COUR DE L'ÉCHIQUIER DU CANADA [1964] 1963 immunity as found in the judgment of the learned trial sEPT ILEs judge and, for the above reasons, I would affirm the said EXPRESS INC. judgment and dismiss the appeal with costs. V. CLEMENT Judgment accordingly. TREMBLAY Kearney J. Reasons for judgment of A. I. of lading; alleges that it was a con- Smith, D.J.A.:— dition of said bill of lading that in The plaintiff sues to recover the accepting same the shipper, owner value of a White Motor Company and consignee of the goods and the Auto-car which was, lost at sea while holder of the bill of lading agreed being transported on board M/V to be bound by all the stipulations Savoy from Quebec City to Sept and conditions thereof which were Iles on or about January 14, 1959. to be read with the provisions of It is alleged that the said motor- the Water Carriage of Goods Act, car was delivered by The White 1957 R.S.C. ch. 291, which bill of Motor Company of Canada Lim- lading with its conditions were ited, acting on behalf of plaintiff, accepted by plaintiff. to the defendant in good order and The defendant alleges that in condition and was placed on board view of the provisions of the Water said vessel for carriage and delivery Carriage of Goods Act and par-to Sept Iles in accordance with the ticularly the definition of the term terms and conditions of a bill of "goods" contained therein, the de-lading issued by the defendant of fendant was free to impose what- January 14, 1959. (Exhibit P.1.) ever conditions he chose with regard The plaintiff alleges that it was to his liability for loss or damage the owner of the said motorcar in to cargo carried on deck and that virtue of a Conditional Sale Con- plaintiff's said auto-car was to the tract between The White Motor knowledge of plaintiff carried on Company and the plaintiff, dated deck and by reason of its size and January 12, 1959, and moreover is the size of the vessel could not have responsible for the said motorcar in been carried otherwise. virtue of the said contract and is The defendant invokes all the the consignee of the aforesaid ship- provisions of the bill of lading and ment and vested with all right, particularly the so-called condition title and interest in and under the of non-responsibility for deck cargo said bill of lading. which appears therein, in virtue of It is alleged that in breach of its which it is alleged that the defend-undertaking and in dereliction of its ant is not liable for the loss of duty, the defendant failed to deliver said car. the said motorcar, the whole to the Under reserve of the foregoing, prejudice of plaintiff who, as a the defendant invokes the excep-consequence, has sustained loss and tions from liability afforded by the damage representing the value of Water Carriage of Goods Act. the said motorcar, amounting to It is alleged that the M/V Savoy $19,788.00. was tight, staunch and strong and By way of defence to plaintiff's well and sufficiently manned, pro-action, the defendant admits having visioned, equipped and furnished received the said motorcar from with all things needful and neces-The White Motor Company, at sary and in every way fit and proper Quebec City, for carriage to Sept to perform the voyage safely and Iles in accordance with the said bill the said cargo was properly ar-
Ex. C.R. EXCHEQUER COURT OF CANADA [1964] 221 rspged and in every respect prop- there is no express statement in the 1963 erly stowed on deck . . . the bill of lading that the motorcar was s defendant alleges that during the to be carried on deck as is required ExpR voyage and especially on January by Article 1 of the rules relating to INC. 16, 1960, at 1600 hours when the bills of lading contained in the V. CLEMENT vessel was abeam Trinity Bay, sud- schedule of the Water Carriage of TREMBLAY denly an easterly wind of hurricane Goods Act and to the extent that force started blowing, accompanied it purports to limit or exclude the Smith D.JA. by extremely rough seas, snow and liability of the defendant, is con- rain; that the engines of the vessel trary to Article (2) of the said rules were put at half speed ahead and and is of no force or effect. course set for Egg Island for shelter. The plaintiff alleges also that the The very rough and heavy weather defendant is not entitled in any encountered caused the loss of some event to raise the defence of "perils deck cargo, including the said auto- of the sea" by reason of its failure car, which was washed overboard, its to discharge its obligation to prop-loss being due to perils of the sea erly load, stow and secure cargo in and or force majeure or cas fortuit. a safe place having regard to the The defendant alleges moreover conditions which should have been that in any event and without anticipated. It is alleged moreover prejudice to or waiver of the fore- that freight for carriage of the auto-going he is not responsible for the car was based on a rate of $282 per loss of said auto-car by reason of unit of 100 lbs. and that the said the clause of non-responsibility con- auto-car weighed 14,000 lbs., so that tained in the bill of lading and the limitation of Section 5 of Article again without prejudice to or waiver IV of the rules contained in the of the foregoing, the defendant Water Carriage of Goods Act would alleges that he is entitled to limit be 500 as multiplied by 14,000, a his liability in accordance with the total of 70,000. clauses contained in the bill of lad-The proof shows that the M/V ing and Water Carriage of Goods Savoy sailed from Quebec City on Act and subsidiarily and without or about the 14th of January, 1959 prejudice, the defendant pleads his for Sept Iles and that when at right to limit his liability in accord- a point approximately abeam of ance with the provisions of the Trinity bay, at 1600 hours, on the Canada Shipping Act. 16th day of January, she encoun- By way of reply to defendant's tered wind and gales of force 4 and statement of defence, plaintiff prays heavy seas accompanied by rain and acte of the defendant's admission snow. It appears to have been re-that it received the said auto-car at ported to the captain that plain-Quebec for carriage to Sept Iles, as tiff's auto-car, which had been well as his admission that said stowed crosswise on the ship's deck auto-car was lost en route; alleges over No. 1 hold, was moving back-that the said bill of lading, as well wards and forwards indicating slack-as the Water Carriage of Goods Act ness in the cables with which it was and Canada Shipping Act speak for secured to the deck and the First themselves and otherwise denies the Mate and a sailor attempted to defendant's statement of defence. tighten these cables. The prevailing Plaintiff alleges moreover that the conditions however made it difficult bill of lading does not contain any and dangerous for them to accom-statement that the motorcar was to plish this and they were warned by be carried on deck; alleges that the the Master of this danger. Approxi-defendant had carried an identical mately 1 hour later, the plaintiff's motorcar on the same vessel in auto-car and another truck, which January 1959; plaintiff alleges that had been stowed alongside of it,
222 R C de l'É COUR DE L'ÉCHIQUIER DU CANADA [1964] 1963 broke from their moorings and were "cargo which by the said contract SEPT ILEs seen to disappear into the sea. of carriage is stated as being carried The first ground of defence raised on deck and is so carried". Ixc. is that by reason of the so-called In point of fact the contract of y non-responsibility clause which is carriage, that is the bill of lading CLEMENT contained in the bill of lading, the which was delivered to the shipper TREMBLAY defendant cannot be held liable for at the time of shipment, does not Smith D.J.A. the loss of the said auto-car This contain statement that the said clause reads as follows:— cargo was to be carried on deck and Les marchandises couvertes par there is no proof that the plaintiff connaissement peuvent être arrimées was aware that it was to be so car-sur ou sous le pont à la discrétion voiturier; ried It is true that what otherwise du et lorsqu'elles sont chargées en pontée elles sont, en purports to be a copy of this bill vertu de cette disposition, censées of lading (Exhibit D-2) bears on its être déclarées comme étant ainsi face the following inscription in chargées en pontée et cela même si small print apparently imprinted by aucune mention spécifique à cet means of a rubber stamp "chargée effet n'appert à la face de ce con- en pontée sans aucune responsa-naissement Relativement aux mar- bilité, perte ou dommage quelle chandises chargées en pontée ou qu'en soit la cause." déclarées comme étant ainsi char- gées à la face de ce connaisse- Counsel for defendant attempted ment, le voiturier n'assume aucune to get around the difficulty arising responsabilité quant aux pertes, from the fact that the bill of ladmg avaries ou au retard se produisant which was signed by and given to en n'importe quel moment et the shipper (Exhibit P.1) bears no résultant de toutes causes que ce such inscription by invoking the soit, y compris la négligence ou le statement contained in the non -mauvais état de navigabilité du responsibility clause above-quoted navire au départ ou à n'importe qu N el o m tw o i m th e s n t t a n d d u i v n o g y t a h g e e f . to the effect that if cargo is in fact act that the stowed on deck, it is deemed to be bill of lading expressly stipulated declared to be so stated even that the contract of carriage which though no statement appears on the it evidences is subject to all of the bill of lading. terms and conditions of the Watei This however is a proposition Carriage of Goods Act, it is sub- which this court is unable to accept. matted on behalf of the defendant As above noted, the bill of lading that the Water Carriage of Goods is expressly stated to be subject to Act, does not apply in the circum- the terms, conditions and disposi-stances of the present case, because taons of the Water Carriage of the plaintiff's auto-car was not Goods Act and therefore subject to "goods" within the meaning of that Article 1, para. C of the rules rela-term as it is defined in paragraph ting to bills of lading (c) of Article 1 of the Water Car- In the opinion of the undersigned, nage of Goods Act 1952 R S C c. 291 to wit: the bill of lading does not contain "goods" includes goods, wares, mer-a statement that the said auto-car chandise, and articles of every kind was to be carried on deck and there-whatsoever, except live animals and fore the so-called clause of non-cargo which by the contract of car- responsibility contained in the bill riage is stated as being carried on of lading and above-quoted, inso-deck and is so carried; The defendant takes the position far as it purports to limit the liabil-that the said auto-car was not ity of the defendant, is contrary to within the meaning of the said Articles 1 and 2 of the said rules definition because it was in fact and is of no force and effect.
Ex C R EXCHEQUER COURT OF CANADA [19641 223 Svenska Traktor Aktiebolaget v. cargo in this manner without the 1963 Maritime Agencies (Southampton) knowledge or authorization of the SEPT ILES Ltd.1 shipper and contrary to their obliga-ExPEEss Under reserve of the abovemen- tons under the contract of carriage INC. tioned defence, it is pleaded that and it may equally well be that had V. even if the Water Carriage of such cargo been lost or damaged CLEMENT T BEMBLAY Goods Act is held to apply and the the shipowner would have been non-responsibility clause in the bill ' liable to the owner of the goods. Smith D.J.A of lading is without effect insofar as In any event, since no custom of it purports to exclude or limit ha- trade has been allowed no evidence bility on the part of the defendant, relating to one can be considered. the latter nevertheless is not liable Therefore, were it not for the for the damages claimed since he is first part of the so-called non-entitled to avail himself of the responsibility clause above-quoted, immunity provided by the Water the effect of which is to grant Carriage of Goods Act. These ex- liberty to the shipowner to carry on ceptions however can only avail as deck, this Court would be obliged a defence, if the ship-owner either to find that the defendant had, by stowed said cargo on deck with the reason of his failure to establish express agreement of the shipper or such a custom of trade or to prove in doing so acted in accordance with any agreement or authorization for a clearly established custom. such stowage, deprived himself of Scrutton, 15th Edit , p 157: any protection the exceptions of the The goods are to be loaded in the Water Carriage of Goods Act might usual places The shipowner or otherwise have afforded. master will only be authorized to stow goods on deck (1) by a custom However in view of the liberty binding on the trade, or port of to carry on deck which was granted loading, to stow on deck goods of in the bill of lading, the defendant that class on such a voyage; or was free to carry the said cargo on (2) by express agreement with the deck subject however to his obliga-shipper, of the particular goods to tion to comply with the require- so stow them; ments of Art III, rule 2 of the The effect of stowage not as Water Carriage of Goods Act to authorized will be to set aside the properly and carefully load, handle, exceptions of the charter or bill of lading and to render the shipowner stow, carry, keep, care for and dis-liable under the contract of carriage charge the goods carried. (Svenska for damages. Traktor case (supra)) In the present case, although some The burden of proving that the evidence was brought with a view said auto-car had been properly and to estabhshing the existence of a carefully loaded, handled, stowed, custom of trade, no such custom carried, kept and cared for rested was alleged, and, in the opinion of upon the defendant the undersigned, none was proved. Carvers Carriage of Goods By I am unable to find in the evi- Sea, 9th Edit , page 185:— dence proof of a general custom of . if the goods owner proves that the trade that cargo of that kind, the goods shipped have not been weight and dimensions was carried delivered, or have been damaged on deck in the case of vessels of the after shipment, the carrier is liable size, type and tonnage of the M/V unless he can prove affirmatively Savoy on voyages from Quebec to (I) that he has taken reasonable Sept Iles during the winter months care of the goods while they were It may well be that some vessels in his custody; and (II) that the did make it a practice to stow such loss or damage falls within one of 1 [19537 2 Q B 295
224 R.C. de l'É. COUR DE L'ÉCHIQUIER DU CANADA 1963 the immunities specified in Article mentary precaution of placing IV r. 2. SEPT ILEB EXxP RESS Scrutton, 15th Edit., p. 215; INC. Svenska Traktor case (supra) v p. 303; CLEMENT TREMBLAY In the present case the auto-car, gear. — a very heavy and bulky vehicle, was Smith D.JA, stowed crosswise on the deck above the testimony of the First Mate it hold No. 1 (slightly forward of mid- would appear that no particular ship) and was secured to the deck attention was directed to the lash-by means of four cables. On the 2nd Ings with which the auto-car was day after leaving Quebec and while secured until about half an hour the vessel was proceeding through prior to the accident at which time heavy seas with winds of gale pro- it was impossible to take any effec-portion, it was observed that the tive action owing to the boisterous cables, some at least of which had seas and high winds. previously shown signs of slackness, were sufficiently loose to permit the said auto-car forward and backward movement and the Captain ordered the First Mate and sailor to tighten the cables. This however was ex- ceedingly difficult and dangerous to accomplish under the circumstances and it is doubtful if in fact anything effective was done in this connec- tion. About half-hour later said auto-car and another truck came loose from their moorings and were lost overboard. In the opinion of the undersigned, the evidence as to the cause of the loss is at least consistent with neg- ligence on the part of the defendant or his servants and the presumption that there was negligence in respect and at p. 47: of the loading, handling, stowing, carrying and keeping said cargo has not been rebutted. Although those in charge of the M/V Savoy should have anticipated the possibility that the vessel at that time of the year and in those- waters would encounter winds of prevailed at the time and place of gale proportion and rough seas, it the accident were not abnormal for does not appear that any special that season and in those waters and attention was given to the stowing the circumstances were such that and securing of the auto-car. Cap- ordinary care and prudence required tain Dery testified that he left these that special precautions be taken to matters to the First Mate although stow and secure cargo of the weight, before leaving Quebec he himself size and description of plaintiff's inspected the lashings in a general motor-vehicle, which was being car-way and found them to be "comme on fait toujours" and "normal". There is no evidence that tÉe ele- of the rolling of the ship and the [1964] chocks before and behind the wheels of the vehicle was taken and there is evidence to at least suggest that the auto-car was not even left in From the following excerpt from Page 28: Q. Vérifiez-vous vous-même l'ar- rimage du vaisseau avant de partir de Québec? R. Aux alentours d'une demi- heure, avant l'accident, le capi- taire m'a envoyé avec un matelôt aller vérifier les «wires» et nous avons fait notre possible, nous avons pris un peu de «slack», comment je disais bien ça? Vous savez, ce que je veux dire et puis là le capitaine nous a lâché un cri en disant «Faites attention à vous autres, la mer est haute, vous allez vous faire emporter » Nous avons fait tout notre possible pour ex- empter l'accident, Q. Est-ce que vous n'auriez pas pu à ae moment-là renforcer l'arrimage? R. Non, monsieur, parce que la mer était trop grosse, c'était dangereux de nous faire em- porter. The weather conditions which ried on open deck in a manner which exposed it to the full effect
Ex. C R. EXCHEQUER COURT OF CANADA force of waves breaking on the that is shown is a description of the deck, cargo and an indication that its The undersigned is forced to con- weight was 14,000 lbs. elude that it has not been estab-This being the case the question lished that all reasonable care was of whether or not the defendant is taken in respect of the loading, entitled to limit his liability in stowing and safe-guarding of said accordance with the provisions auto-car, the loss of which was above-quoted appears to be settled Smith D.J.A brought about by the failure of by the judgment of the Supreme defendant and his servants to coin- Court of Canada in the case ply with Art. III, para. 2 of the of Anticosti Shipping Co. v. St. Water Carriage of Goods Act ,and Amand'. that therefore the defendant must loss of a truck which was being be held responsible for the loss of transported under a contract of car- said cargo. riage by water evidenced by a bill It remains to deal with the ques- of lading which contained no state-tion of whether or not the defend- ment of the value of the vehicle. It ant is entitled to limit his liability was held that the said vehicle was in virtue of Art. IV, para. 5, of the a "unit" within the meaning of Water Carriage of Goods Act, which Art. IV, reads as follows: riage of Goods Act 5. Neither the carrier nor the ship the carrier's liability for the loss shall in any event be or become was limited to $500. liable for any loss or damage to or In the opinion of the undersigned in connection with goods in an amount exceeding five hundred dol-flee defendant in the present case is lam per package or unit, or the for the same reason entitled to equivalent of that sum in other invoke the limitation of liability currency, unless the nature and afforded by the statute. value of such goods have been CONSIDERING that in the cir- declared by the shipper before ship- cumstances disclosed by the proof ment and inserted in the bill of the defendant must be held re- lad I i n n t g h . e present instance, although ponsible for the loss of plaintiff's the nature of the said cargo was auto-car, but he is entitled to limit apparent, no declaration of the his liability in respect of said loss at the sum of $500. value of the car was inserted in the bill of lading which document does ac D tio not indicate, and there is no evi the defendant to pay to the plaintiff dence to show that freight was the said sum of $500, with interest charged or whether freight was and costs. charged at a flat rate or was based on the tonnage of said vehicle. All 1 [1959] B.C.R. 372. [1964] 225 1963 SEPT IL ES EXPRESS Irrc. V. CLEMENT TREMRLAY — That case concerned the para. 5, of the Water Car- and therefore O n T A H N M D A D I O N T T H A I C N O p N la D in E t M iff N 's Judgment accordingly.
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.