Patterson SS Ltd. v. Aluminum Co. of Can.

birds which were flushed did not come out of the clump of trees where Lewis was, but flew up from the ground about twenty feet distant from the trees.

k J

The cause of action pleaded against both defendants was k Jfor damages alleged to have been caused:- The learned trial judge in charging the jury explained to them that the claim was founded in negligence and that the burden of proof lay upon the plaintiff. Having said that negligence was the absence of reasonable care under all the circumstances, he specifically directed their attention to the question as to whether it was negligent under the circumstances then existing to fire into a thicket or clump of trees without first making sure that there was no one there, having in mind that there were a great many people shooting on the opening day, and that Cook at least knew that Fitzgerald was somewhere amongst the trees.

Questions were submitted to the jury and were answered as follows:- Wood, J. then dismissed the jury and after argument on the following day dismissed the action against both of the defendants.

In the Court of Appeal it was contended for the plaintiff that in the circumstances disclosed in the evidence Cook and Akenhead were each liable for the negligence of the other, apparently on the theory that they were joint tortfeasors or joint adventurers and reliance was placed on an American decision of Summers v. Tice (1), but this contention was not sustained. Sidney Smith, J.A. however, who delivered the judgment of the Court, considered that having held that one of the defendants shot the plaintiff the jury acted perversely in finding that neither was negligent and that the plaintiff was entitled to a new trial. While Cook's evidence was that he heard three shots fired and Wagstaff said that he had heard three or four before the injured man cried out and Cook and Akenhead each fired but once, it is apparently common ground that Wagstaff did not shoot and there is no evidence of either Fitzgerald or Jack Lewis firing, or of there having been any other hunters nearby who might have shot and injured the respondent. None of the witnesses for the respondent saw the direction in which Cook and Akenhead fired and both of the latter swore that they had fired in a direction which would have rendered it impossible for the shot to strike Lewis. The jury clearly did not accept the statement of one or other of the defendants on this aspect of the matter, since they found that the plaintiff had been shot by one of them. The task faced by the jury in this case was a difficult one. They had been informed by the learned trial judge that the plaintiff alleging negligence the burden was on him "to prove his case and to prove that on a preponderance of evidence. It is not the same as in a criminal case, where the Crown must prove its case beyond a reasonable doubt."

In Cottingham v. Longman (1), Duff, J. (as he then was), said that the burden resting upon the plaintiff is to establish facts from which the jury may reasonably draw the inferences necessary to sustain the plaintiff's case and referred to what had been said as to nature of proof upon which a jury is entitled to act in civil cases was fully discussed. That the jury understood the matter in this way is, I think, clear from their answer to the first question where in the face of the denials of the parties they drew the inference from the proven facts that one or other of them had injured the plaintiff. On the argument before us, it was contended for the respondent that in the circumstances there was a presumption of fault against the defendants and that the onus was on them to prove by affirmative evidence that they had exercised due care, but clearly this contention cannot be supported.

There were here no circumstpnces which could, in my opinion, raise any such presumption.

The answers to Questions 2 and 3 are decisive that upon the evidence the jury could not find which one of the defendants had fired the shot which caused the damage. The claim against Cook was, therefore, left in this position that either he or Akenhead had fired the shot which injured the unfortunate plaintiff, and upon such a finding it was clearly impossible to enter a verdict against him unless he was liable for the act of Akenhead, whether the claim pleaded sounded in negligence or in trespass. As I understand the contention of the respondent, it is that since Cook and Akenhead were hunting together, using the same dog, under an arrangement whereby the bag would be divided equally between them, each was liable for the negligence of the other. Thus, if but one of them had fired, both would be liable. As pointed out in Clerk and Lindsell on Torts, 10th Ed. p. 100, an agent who commits a tort on behalf of his principal and the principal are joint tortfeasors, as are the servant who commits a tort in the course of his employment and his master, and an independent contractor and his employer in those cases in which the law holds the employer absolutely liable. The learned author further says that so are persons whose respective shares in the commission of a tort are done in furtherance of a common design, but that mere similarity of design on the part of independent actors causing independent damage is not enough. There must be concerted action towards a common end. A similar passage in the seventh edition of Clerk and Lindsell, it may be noted, was quoted with approval by Sargant, L.J. in The Koursk (1).

The facts in the present matter do not, however, in my opinion, support a claim upon this basis. Cook and Akenhead were merely hunting in each other's company: there was no common design in the sense that that expression is used in the passage quoted:

they were rather each pursuing their own design of shooting grouse, as they were lawfully entitled to do. I am unable to understand how the fact that, like most hunters, they at the end of the day divided up the bag, the more fortunate sharing his luck with the other, can be a basis for any legal liability. There was here no joint venture but rather individual ventures carried on by these hunters in each other's company and I see no ground upon which one could be held responsible for the negligence of the other. I agree with the conclusion of Sidney Smith, J.A. on this aspect of the matter.

In my opinion, this is decisive of the present appeal since, in the absence of a finding that the respondent was shot by Cook and since the latter is not liable if the damage was caused by the act of Akenhead, the action was properly dismissed. In the judgment appealed from, however, a new trial has been ordered on the ground that the jury's answer to the fourth question was perverse, in view of the finding that it was one or other of the defendants who fired the shots causing the damage. With great respect, it appears to me that in view of the failure of the plaintiff to obtain a finding from the jury as to which fired the shot, this question did not arise. A finding that one or other of the defendants was negligent would clearly not have furthered the matter in view of the answer to the third question. If it were necessary to decide the matter I would, however, come to a different conclusion than that reached by the Court of Appeal. In my opinion, it cannot be said that the answer made to the fourth question was so unreasonable and unjust as to justify an appellate court in concluding that the jury could not have been acting judicially (C.N.R. v. Muller (1): Duff, C.J.C. at p. 769; Lamont, J. at pp. 772-3).

The respondent's case is that Cook is liable, even though it was not his act but that of Akenhead which caused the damage. As to the latter his evidence, which the jury may well have accepted, was to the effect that he had not heard Fitzgerald call out to Cook and did not know when he fired that there was anyone in the clump of trees. The jury may have believed these statements and since the learned trial judge had expressly directed their attention to the question as to whether to fire into a clump of trees without first making certain that no person was there was in itself a negligent act, I am quite unable to understand how it could be said that a finding that even if Akenhead did fire in to the trees he was not negligent, could be set aside as perverse. As to Cook he had sworn, as had Aken- C00 head, that he did not fire in to the trees where Lewis was, LEVIS but off to the right where no damage could result and it appears to me that if the jury accepted this statement it LockeJ.

could not properly be said that a finding that he was not negligent was perverse.

This appeal should be allowed with costs here and in the Court of Appeal and the judgment at the trial restored. The motion to quash the appeal made on behalf of the respondent should be dismissed with costs.

APPELLANT; (DEPPELLANT)

*May 9,

(DEFENDANT)

...

*Oct.

AND

ALUMINUM CO. OF CANADA

RESPONDENT. (PLAINTIFF)

. .. .. . ... .. . .. ..

. . ....

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Shipping-Ship time-chartered-Whether owner of ship lost at sea liable for cargo-Bill of lading-Consignee of goods-Whether lien de droit between owner of ship and owner of goods-Bills of Lading Act, R.S.C. 1927, c. 17, s. 2.

The appellant company, a ship owner and operator, granted a time charter of the SS. Hamildoc to Saguenay Terminals Limited. Demarara Bauxite Company Limited shipped a cargo of bauxite upon the vessel from a port in British Guiana for delivery to a port in Trinidad, for reforwarding to the plaintiff at Arvida, P.Q. The bill of lading was signed by an agent of Saguenay Terminals Ltd. at Georgetown on behalf of the master.

The cargo was lost at sea, owing to the unseaworthiness of the vessel, and the holder of the bill of lading claiming as the owner and consignee of the goods sought to recover its value from the appellant. The appellant contended that it was not bound by the contract evidenced by the bill of lading and that there was no privity of contract as between the parties. The action was maintained by the Superior Court and by the Court of Appeal for Quebec.

Rinfret CJ. and Taschereau, Rand, Estey, Locke, Cartwright and Fauteux JJ.

Bench, appeal side, province of Quebec (1), maintaining the action of the consignee of a cargo against the owner of a ship lost at sea.

J.:-This action was brought by the owner of goods against the owner of the ship Hamildoc for the loss of the goods through the unseaworthiness of the vessel. This ground of liability, although strongly resisted in the courts below, was abandoned before us; and the only question now in the appeal is one of parties: whether the appellant is liable directly to the respondent for the loss. The contention that that is not so arises from the fact that the vessel was under a time charter party to the Saguenay Terminals Limited of Montreal. The charter was executed at Montreal on September 16, 1941 and by its terms the use of the vessel was to be enjoyed by the charterers for "about" six months.

The special purpose in mind, although the charter was not limited to it, was to carry bauxite from South American points to Trinidad for furtherance to Canadian and United States points. The usual provisions of such a charter were stipulated. The owner was to be paid a specified sum monthly; the captain was to prosecute the voyages with despatch: although appointed by the owner, he was to be under the orders and direction of the charterers as regards employment and agency; and the latter were to load, stow and trim the cargo at their expense under the supervision of the captain who was to sign bills of lading for cargo as presented in conformity with notes or tally clerk's receipts. The owner was to pay for all provisions and the wages of captain and crew; and maintain the vessel in her class and efficiency. By clause 26 nothing in the charter was to be construed as a demise of the vessel and the owner was to remain responsible for the navigation of the vessel, insurance, crew and all other matters, the same as when trading j. for its own account.

Under such a charter, and in the absence of an under-) taking on the part of the charterer, the owner remains the carrier for the shipper, and in issuing bills of lading the captain acts as his agent. In this case, the bill of lading was signed for the captain by the agents appointed by the charterers certainly for themselves and probably for the vessel also and that fact raises the first of the only two points deserving consideration.

It is, I think, too late in the day to call in question the relation of the time charterer or his or the ship's agent towards cargo. The charterer has purchased the benefit of the carrying space of the ship; he is the only person interested in furnishing cargo; and the captain is bound to sign the bills of lading as presented, assuming them not to be in conflict with the terms of the charter party. The practical necessities involved in that situation were long ago appreciated by the courts and the authority of the charterer to sign for the captain confirmed.

For the purpose of committing cargo to carriage, the captain, the charterer and the ship's agent are all agents of the owner, acting in the name of the captain; and where the charterer has the authority, as here, to sign for the captain, that he may appoint and act by an agent would seem to me to be unquestionable. To hold him to a personal performance would, under modern conditions of traffic, be an intolerable restriction.

In Wehner v. Dene (1), the bill of lading was signed by the captain but the question was, on whose behalf, the owner's or charterer's, and Channel J. held it to be the former.

In Kuntsford v. Filmanns (2), both the Court of Appeal and the House of Lords affirmed the holding of Channel J., that under the clause obligating the captain to sign bills of lading as presented, the charterer could sign for him as representing the owner. It was pointed out that the question of the person undertaking the carriage of the goods for the shipper was one of fact: but that in the normal practice under a time charter, that undertaking was by the captain for the owner. The same view was taken by the Court of Appeal in Limerick v. Coker (1).

Here, the charterers had their own steamship line and used one of their own bill of lading forms; but they had signed them on behalf of the captain.

In Urleston v. Weir (2), the charterers had signed the bills of lading and contended that they were the parties to the contract; but the court held against them. A similar ruling was made in SS. Iristo, Middleton v. Ocean

Dom. S.S. Co. (3).

In Baumwall v. Furness (4), the remarks of Lord Herschell at pp. 17 and 18 are to the same effect.

Finally, in Larrinaja v. The King (5), Lord Wright, at pp. 254-5, deals with the words "employment and agency"

which appear in the present charterparty, and which he treats as referring to the ship: "'Employment' means employment of the ship to carry out the purposes for which the charterers wish to use her"; "'Agency' deals with another aspect of the ship's affairs. The shipowner is entitled in the ordinary course to decide to what firm or person in each port the ship in the course of the charterparty is to be consigned as agent. The selection is here left to the charterers. This is an important matter, because of the multifarious duties and responsibilities which may fall to be discharged according to the mercantile law by the ship's agents."

That Sproston's Limited were authorized by the charterers to act as they did in signing the bills of lading is not seriously to be questioned. The argument against their authority is .really that neither the owner nor the captain had anything to do with their appointment; but that contention overlooks the point that the owner has authorized the charterers to sign and that they in turn can do so by agents.

The remaining question is whether the respondent is a consignee named in the bill of lading.

That document acknowledges the shipment by Demerara Bauxite Company Ltd. on board the Hamildoc of the cargo "to be o o delivered in like order and condition at the port of Chaguaramas, Trinidad, B.W.I. or so near thereto as she may safely get, always afloat, unto For re-forwarding to S- Aluminum Co. of Canada, Arvida, P.Q., Canada, (or to his or their assigns) on payment of freight and charges thereon in cash without deduction, credit or discount, unless prepaid."

The form used was printed and the space for the name of the consignee was filled out in typewriting. From such language I cannot see how any doubt can arise that the Aluminum Company is the named consignee. Transshipment was involved and as the ship undertook only to deliver at the first port, the necessary implication is that the acceptance and forwarding there would be made by some person with responsibility for seeing that the transit was continued to Arvida. The Aluminum Company is named as the ultimate consignee, and it is impliedly so at the intermediate port. In the absence of any contrary indication, the ultimate consignee is the consignee at every stage of the transit; each section of the carriage is directed towards furthering 'the goods to him; and the intermediate agencies are his, serving the same end and purpose.

The respondent is therefore the named consignee; and that title to the bauxite passed to it on the consignment is equally clear. It is mere trifling with the facts to suggest anything else. "Consigning" goods is delivering them to a carrier who accepts them as initiating his obligation to carry and deliver. The bill of lading is to evidence the terms of the undertaking and to operate as a document of title. Whether it is issued five seconds or five hours after the last pound has been stowed is immaterial; in either case it takes effect as from the moment of the commencement of the duty of the carrier as such. The title passes to the purchaser when the goods have been committed to the vessel for the journey; that is, it has passed on the "consignment" and the requirement of the Bills of Lading Act has been satisfied.

The appeal must therefore be dismissed with costs.

J.:-This is an appeal from a judgment of the Lo. Court of King's Bench for Quebec (Appeal Side) (1), dismissing an appeal by the present appellant from a judg- Co- or ment delivered in the Superior Court by Salvas J., whereby the appellant was found liable to the respondent for the value of a cargo lost in the sinking of the SS. Hamildoc off the coast of Venezuela in January, 1943.

The respondent's claim as pleaded is that by a bill of lading dated at Georgetown, British Guiana, on December 22, 1942, the appellant acknowledged that there had been shipped in apparent good order and condition on board the SS. Hamildoc by Demerara Bauxite Company Limited 3,033 long tons of Demerara Bauxite for carriage to and delivery at the Port of Chaguaramas, Trinidad, for reforwarding to the plaintiff at Arvida, P.Q.: that the plaintiff was the holder of the bill of lading and at all material times the owner and consignee of the goods and that: "in breach of the contract evidenced by the said bill of lading and/or of its duty in the premises implied by law the defendant failed to carry the said goods safely to the said Port of Chaguaramas or to deliver them there in good order or at all."

By the statement of defence, among other matters to be hereinafter referred to, the appellant pleaded that the loss of the Hamildoc was due to perils, dangers and accidents of the sea and that the defendant was not liable under the terms of the bill of lading. By way of answer the respondent alleged that the loss arose from the fact that the ship was unseaworthy at the time the voyage was undertaken. Upon this issue the learned trial judge found that the loss of the cargo was due to the unseaworthiness of the vessel and, further, that the appellant had failed to prove that it had exercised due diligence to make her seaworthy before her last voyage, and these findings were upheld on appeal. There being concurrent findings on this question of fact the question was not argued before us. In so far as they are relevant to the other questions to be decided upon this appeal, the facts are as follows: the appellant company is a ship owner and operator, and by a charterparty dated September 16, 1941, chartered the Hamildoc to Saguenay Terminals Limited for a term of six months, with an option to continue the charter for a further period. The instrument was a time charter and not a demise of the vessel and provided, inter alia, that the owners should have a lien upon all cargoes and all subfreights for any amounts due under the charter, including general average contributions. By clause 8 it was provided: It was further stipulated that all bills of lading should include a Both-to-Blame Collision Clause which would impose certain obligations towards the ship owner upon the owner of cargo carried, in the event of collision with another -ship as the result of negligent navigation of both ships, and an Amended Jason Clause imposing liability in certain circumstances on the cargo owner to contribute with the ship owner in general average. At the time the shipment in question was made in British Guiana, the Hamildoc was being operated under the terms of this charter by Saguenay Terminals Limited, a subsidiary of the respondent company.

The lost shipment was part of a large quantity of bauxite purchased by the respondent company from Demerara Bauxite Company Limited, (a company organized in the Colony of British Guiana) by a contract dated May 1, 1942.

By the terms of that agreement, wherein the vendor was referred to as Demerara and the purchaser Alcan, the respondent agreed to purchase its requirements of bauxite for the balance of the year 1942 on defined conditions, including the following:

The cargo in question was delivered by the Demerara

Company on board the Hamildoc at Mackenzie. The bill of lading issued was upon a form bearing the heading "Saguenay Terminals Limited" and the name of the respondent company did not appear.

It acknowledged, ACu.mum as alleged in the declaration, the receipt of the shipment, the place of its destination and in the blank space left

LockeJ. for the insertion of the name of the consignee there appeared the words:

For reforwarding to Aluminum Company of Canada, Arvida, P.Q.

Canada (or to his or their assigns).

As stipulated in the charterparty the bill of lading contained, inter alia, the Both-to-Blame Collision Clause and the Amended Jason Clause. A further term provided that:

It is hereby understood and agreed that if Saguenay Terminals

Limited are not the owners of the vessel named herein, the shippers, consignees and other persons interested in the goods landed hereby will make and enforce all claims arising under this contract of purchase, whether or not based upon a breach of warranty or seaworthiness, solely against the vessel named herein and/or her owners.

In the clause reserved for the signature the following appeared:

In witness whereof, the Master, or agent on behalf of the Master of the said vessel has affirmed to 2 Bills of Lading, all of this tenor and date, one of which accomplished, the others stand void.

Sprostons Limited

Bruce Brebner,

Master, or Agents.

By its statement of defence the appellant alleged, inter alia, that the bill of lading "was not issued by, nor is it a contract to which the defendant is a party" (para. 5), and again:

That there is no lien de droit between the Plaintiff and Defendant and the Plaintiff is an entire stranger to any and all rights in, to and under the said time charter.

(para. 6).

It was not suggested by the respondent that it was a party to or claimed any rights under the charterparty, its claim being as shown by the complaint founded upon the contract evidenced by the bill of lading and of the "duty in the premises implied by law", which latter phrase was apparently intended as a claim in tort for injury occasioned to the respondent's goods by the carrier's negligence. While denying that there was any contract between itself and

83864-31

S.C.R.]

the cargo owners, the appellant had, in answer to the claim that the loss was occasioned by the ship being unseaworthy, pleaded that the bill of lading was to be construed in accordance with the provisions of the Carriage of Goods A"""um by Sea Act of British Guiana and that the appellant had exercised due diligence to make the ship in all respects seaworthy, and further that the loss had been occasioned by perils of the sea, an exception to the owner's liability provided by that statute. These pleas were raised in the alternative and, as has been stated, failed.

As to the liability of the appellant upon the contract evidenced by the bill of lading: the charterparty was a time charter and not a demise of the vessel and provided, inter alia, that the owner was to remain responsible for the navigation of the vessel as when trading for its own account.

The Both-to-Blame Collision Clause, which it was stipulated should be included in any bill of lading issued, provided that:

would indemnify the ship owner in a certain manner, recognizing, in my opinion, the obligation of the owner towards cargo owners for the seaworthiness and proper manning and equipment of the ship. The provision that this clause and the Amended Jason Clause should be included in the bills of lading shows that it was contemplated that there should be a contractual relationship established as between the ship and the cargo owners under the contracts of carriage to be issued. The terms of the charterparty, that cargoes would be taken on or discharged at any place as the charterers or their agents might direct and that the Captain should sign bills of lading for cargo as presented, make it clear that it was intended that the charterers would prepare and issue the bills of lading.

While the charterer was thus empowered to decide on the manner of the employment of the ship and to appoint agents for the ship at points of call, possession of the vessel remained in the appellant through the Captain. The rule applicable is stated by Channell J. in Wehner v. Dene Steam Shipping Company (1), as being that in ordinary cases, where the charterparty does not amount to a demise of the ship and possession remains with the owner, the contract is made not with the charterer but with the owner. o or In Carver, 9th Ed. p. 250, the following passage appears: This appears to me to be an accurate statement of the law relating to a charterparty such as this.

As -to the signature upon the present bill of lading, apart from any question as to whether by virtue of the terms of clause 8, Sprostons Limited as the agents designated by the respondent were not authorized to sign on behalf of the master, a practice was established that this should be done if the evidence of the witness Farrar, the Traffic Superintendent of Sprostons Limited, is to be accepted. McEwen, the manager of the appellant company, gave evidence that the Hamildoc was but one of sixteen ships owned by the appellant which were chartered to Saguenay Terminals Limited, for use in what was called the shuttle trade between British Guiana and Trinidad and other ports to which bauxite was consigned. The bauxite was loaded at Mackenzie and the information required for the preparation of the shipping documents was cabled from that place to Sprostons at Georgetown.

According to this witness, Sprostons Limited signed the bills of lading for the masters of the ships of the appellant from the time they started carrying bauxite towards the end of 1941 until they ceased to do so at the end of 1943 or early in 1944.

When a particular vessel carrying this cargo arrived at Georgetown from Mackenzie, one of the clerks from Sprostons Shipping Department would go aboard the vessel, taking with him the bill of lading theretofore prepared, and after checking this with the particulars shown on the dead weight survey and loading scale, which he would receive from the captain, he would hand the latter a copy -of the bill of lading, the manifest, the dead weight survey and the ship's loading scale. This was done throughout this period without objection.

According to Farrar, W. McElroy, a superintendent of the appellant who was in Georgetown as the representative of the appellant, was aware of this practice. McElroy, however, denied this and McEwen also said that he was unaware that the bills of lading were being signed in this manner. Both of these witnesses in fact said that the Naval Control Headquarters at Georgetown enforced secrecy in regard to shipments from that port and forbade the issue of bills of lading. The learned trial judge made no finding upon the question of credibility as betwen these witnesses but found that, under the terms of the charterparty, Sprostons Limited were lawfully fulfilling an obligation imposed upon the master in signing the bills of lading, and that the latter was binding upon the appellant and evidenced the contract of carriage between the parties. Bissonnette J. apparently considered that the evidence of Farrar had not been met by the contrary evidence tendered on behalf of the defendant, a conclusion with which I agree. Hyde J., considering that by virtue of the terms of the charterparty, Sprostons Limited as the agents appointed by the charterers were entitled to sign for the master and thus bind the appellant, did not deal with the question. While the two named officers of the appellant said that they were unaware that this was being done, this may merely indicate that they were not giving close attention to what was transpiring as the various vessels called at Georgetown over this period of years. Without any more assistance than is to be obtained from an examination of the evidence and the perusal of the reasons for judgment which have been given, I think Farrar's evidence on the point is to be accepted.

In my opinion, the appellant was the carrier of the goods under the terms of a contract evidenced by the bill of lading. The respondent was the holder of the bill of lading but, so far as appears from the evidence, that document was not endorsed to it by the shipper Demerara Bauxite Company Limited. Clearly, under the contract for the purchase of bauxite between the Demerara Company and the respondent, title to the shipment of ore passed when delivery was made on the Hamildoc at Mackenzie.

By reason of this fact the appellant contends that there is no right of action in the respondent in respect of these goods, in view of the oF decision of this Court in The Insurance Company of North America v. Colonial Steamships Limited (1). That decision involved the interpretation of section 2 of the Bills of Lading Act. c. 17, R.S.C. 1927, which reads as follows: No evidence was given as to the law of British Guiana where the contract of carriage was made, so that it must be assumed that it is the same as in the Province of Quebec.

The decision in the Colonial Steamships Case followed the decision of the House of Lords in Sewell v. Burdick (2), and in each of these cases the claims advanced were by persons claiming as endorsees of the bill of lading. It appears unnecessary to consider the other facts which differentiate these dedisions from the present matter, since here the respondent does not claim as endorsee of the contract but as the consignee named in the contract and as the owner of the goods.

While the language of the bill of lading is in this respect unusual, I agree with Hyde J. that it should be interpreted as naming the respondent company as the consignee of the shipment and thus entitled to sue upon the contract. In the view I take of the matter, it is unnecessary to consider the claim based upon the appellant's negligence. The learned trial judge found that, even if the bill of lading was not binding upon the appellant, the action should succeed since, in the absence of proof to the contrary, it was to be assumed that the common law of British Guiana was to the same effect as Article 1675 of the Civil Code which, in declaring the liability of carriers, says that they are liable:

The learned judges of the Court of Appeal did not consider it necessary to deal with this aspect of the matter. The appeal, in my opinion, fails and should be dis- Ayuufu missed. with costs.

J.:-The respondent, Aluminum Company of J. Canada Limited, brings this action as consignee under a bill of lading dated Georgetown, British Guiana, December 22, 1942, claiming damages for the loss of a cargo of bauxite shipped on the steamship Hamildoc which, on January 1, 1943, foundered at sea while en route to its port of discharge, Chaguaramas, Trinidad, B.W.I. The entire cargo was lost.

The Hamildoc was loaded at Mackenzie (70 miles up the Demerara River from Georgetown, British Guiana).

The Court of King's Bench, Appeal Side (1), for the Province of Quebec affirmed the learned trial judge's finding that the loss was due to the unseaworthy condition of the Hamildoc when it sailed on its final voyage. It was, upon the hearing of this appeal, not contended that this concurrent finding of fact should be set aside.

The main issues in this Court concern the validity of the bill of lading, the appellant contending that it was in no way a party thereto; that Sprostons Limited, in signing the bill of lading, was not its agent and was not requested by the master of the vessel or by any other person on its behalf to do so; that never, at any time prior to these proceedings, did it have any knowledge thereof and, moreover, even if Sprostons Limited did act as agent, that the respondent, as consignee therein, cannot recover by virtue of the provisions of sec. 2 of the Bills of Lading Act (R.S.C. 1927, c. 17); and finally that if the bill of lading was issued it was in contravention of the prohibition issued by the Naval Control authorities.

The respondent, a producer of aluminum, entered into a contract with the Demerara Bauxite Company Ltd. (hereinafter referred to as Demerara), at Mackenzie, British Guiana, on the 8th day of June, 1942, whereby it agreed to purchase from that company all its requirements of bauxite for the year 1942. The bauxite was to be shipped as ordered and para. 5 of this contract reads as follows: STEAMSHIPS Demerara shall deliver the bauxite trimmed in ship's hold, at Mackenzie, B.G.

Transportation of the herein described bauxite shall be effected by* Alcan, who will however retain Saguenay Terminals Ltd. as "Forwarding Agents."

All ocean freight, marine insurance, and other Co. OF charges related to transportation of the bauxite after it is delivered, trimmed in ship's hold, at Mackenzie, British Guiana, shall be borne by Estey J. Alcan.

The word "Demerara" in the foregoing paragraph refers to the Demerara Bauxite Company Ltd. and the word "Alcan" to the respondent.

The respondent entered into a verbal contract with the Saguenay Terminals Limited to transport the bauxite from Mackenzie to Trinidad and from Trinidad to Arvida, Quebec. Saguenay Terminals Limited had vessels of their own, but chartered others, including the Hamildoc, from the appellant. This charterparty is dated September 16, 1941. It is a time charterparty and cl. 8 thereof reads, in part, as follows:

Moreover, cl. 26 provided:

Not only is the issue of bills of lading provided for as in cl. 8, but a War Risks Clause, New Jason Clause, Both-to- Blame Collision Clause, U.S.A. Clause Paramount and Canadian Clause Paramount were incorporated in the charterparty. These provided that all bills of lading shall include the Both-to-Blame Collision Clause which provided that the owners of the cargo would, in certain circumstances, indemnify the shipowner; that the New Jason Clause should also be included in all bills of lading which, in certain circumstances, provided that the shippers, consignees or owners of the cargo "shall contribute with the shipowner in general average."

The Clause Paramount provided that the bill of lading should have effect, subject to the Water Carriage of Goods Act 1936 (S. of C. 1936, The War Risks Clause was with respect to nonissue of bills of lading to blockaded ports, etc., and the of the ship to comply with orders given by the Estey J. government of the Nation under whose flag the vessel was sailing.

It is conceded that this was a time charterparty under which the captain and his crew, as servants of the owner, remain in charge of the ship which, therefore, remains in the possession of the owner while the charterers direct the use thereof.

The foregoing cl. 8 is a well-known provision in charterparties and the sentence "The captain (although appointed by the owners), shall be under the orders and directions of the charterers as regards employment and agency; is similar to that construed by the House of Lords in Larrinaga Steamship Company, Limited v. The King (1), where, at p. 254, Lord Wright stated:

Under this cl. 8 the parties provided that the captain "is to sign bills of lading for cargo as presented, in conformity with mate's or tally clerk's receipts."

It is not suggested throughout the record that the parties to the charterparty ever agreed to the deletion or the variation of this provision. Moreover, apart from the charterparty, the Carriage of Goods by Sea Act of British Guiana, which is the same as The Water Carriage of Goods Act 1936 (S. of C. 1936, c. 49), expressly contemplates the issue of bills of lading.

The bill of lading covering this particular shipment contained the aforementioned War Risks Clause, New Jason Clause, Both-to-Blame Collison Clause and U.S.A. Clause Paramount and, in part, it read as follows:

and is signed:

While not signed by the master or captain personally, this bill of lading does purport to be signed by appellant's agents, Sprostons Limited.

The plant and dock superintendent of Demerara deposed that as the bauxite was loaded into the Hamildoc it was checked "either by the captain or one of his officers" and that seven copies of a document styled a "Dead Weight Survey," showing the tonnage of the bauxite on board, were prepared and signed by himself.

Two of these were retained by the company at Mackenqe "and the remaining five copies were forwarded to Sprostods Limited in Georgetown in a closed envelope in care of the captain."

The traffic superintendent of Sprostons Limited deposed that Sprostons Limited was agent for Paterson Steamships Limited and that, as agents, it signed bills of lading for the Paterson steamships engaged in the same service as the Hamildoc, both before and after its sailing on December 22, 1942.

He pointed out that when the Hamildoc was loaded at Mackenzie the information necessary for the preparation of the bill of lading was radioed to Sprostons Limited; that as agents for Demerara they prepared the bill of lading and when the ship docked at Georgetown an employee went aboard with the bill of lading and received "from the captain an envelope containing copies of Dead Weight Survey and Loading Scale, which envelope had been handed to the master on his departure from Mackenzie."

He checked the figures in these documents with the bill of lading as it had been prepared and when his