Anticosti Shipping Co. v. St. Amand

that in the second paragraph they decided that if the statement were improperly admitted then, within the meaning of s. 592 (1) (b) of the Code, there was no substantial wrong or miscarriage of justice. There is no doubt as to the rule referred to by counsel for the appellant that the onus rests on the Crown to satisfy the Court that the verdict would necessarily have been the same if a charge to a jury had been correct or if no evidence had been improperly admitted: Schmidt v. The King". On this branch of the case the judgment of the majority resulted from an examination of the evidence while the dissenting judgment was as to the sufficiency of the evidence for a conviction which is a question of fact. There was no dissent on any ground of law dealt with by the dissenting judge and upon which there was a disagreement in the Appellate Division and therefore this Court is

RAND J.:-The main question in this appeal is whether a contract for the carriage by water of a motor truck from Port Menier, on the island of Anticosti, to Rimouski, Quebec, was or was not "covered" by a bill of lading within the meaning of art. I definition (b) of the Rules relating to bills of lading contained in the schedule to the Water Carriage of Goods Act, R.S.C. 1952, c. 291. The circumstances of the shipment were those now stated.

1 [19581 Que. Q.B. 371.

S.C.R.

The respondent, then on the mainland, who had previously been working his truck on the island, sent a sCo.da message to one Riddell at Port Menier, to have the truck shipped back to Rimouski by a vessel of the appellant company plying between Anticosti and various mainland ports along the St. Lawrence river, and arrangements were made accordingly. Riddell was an operating foreman of a paper company of which the appellant is a subsidiary and was generally familiar with the latter's customary mode of undertaking transportation.

Following that practice, the shipping clerk filled out a bill of lading, using the standard printed form of the company, no original or copy of which was apparently given to Riddell. The evidence is most sketchy on the details, but it is clear that once having informed the shipping clerk of the shipper's name, of the article to be shipped, its make, weight and destination, and having otherwise arranged to have it loaded on the vessel, he paid no further attention to the matter. In the result, the original of the bill of lading, although completed as to its substantive matter, was not actually signed, and evidently remaining in the office of the company became mislaid. In the course of the transportation the truck was damaged through the fault of the company which paid all costs of repair amounting to more than $500; but for loss of use during the time the work was being done this action was brought.

As the judgment of the Court of Queen's Bench' states, the authority given Riddell was general and unrestricted, and the first inquiry is this: from the simple facts placed before us, which undoubtedly truly describe what happened, what is the proper inference to be drawn from them that the contract so arising was one for the carriage to be made under the terms of a bill of lading or on no terms beyond those implied by law? In this we are in as good a position as the Courts below; and on it I have no doubt. In the absence of evidence to the contrary the shipping clerk's authority was to accept articles for transportation on the basis only of the company's bill of lading, following which he proceeded to fill out the standard form with the required matter. His and the company's understanding was therefore beyond question. When Riddell requested the shipment to be made, what terms could he possibly have had in mind other than those on which invariably AxTicosTl goods were carried by the company? His bald request implies, carry this truck "according to your regular practice". How can we possibly say that anything else could be intended? It was an ordinary transaction, and if, as the respondent's agent, he did not see fit to demand a bill of lading-as by art. III rule (3) he had the right to do-it cannot affect what on both sides was contemplated.

In Pyrene v. Scindia Navigation Company', Devlin J.

says:

In my judgment whenever a contract of carriage is concluded, and it is contemplated that a bill of lading will, in due course, be issued in respect of it, that contract is from its creation "covered" by a bill of lading, and is therefore in its inception a contract of carriage within the meaning of the Rules and to which the Rules apply. There is no English decision on this point; but I accept and follow without hesitation the reasoning of Lord President Clyde in Harland and Wolff v. Burns and

Laird Lines.

With this view I respectfully agree.

But a further question arises out of the consequences of that contract. The appellant pleaded art. IV rule (5)

which provides:

This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier.

The trial court found the limitation inapplicable where the nature of the article shipped was known and where the company "peut . . . en appr~cier la valeur". On this the reasons in appeal stated,

I would not agree with this interpretation of Article IV of the Water

Carriage of Goods Act but it is unnecessary for me to deal with this point in detail in view of the fact that I have come to the conclusion that the contract of carriage in this case was not covered by a bill of lading . .

.

I share that expression of opinion.

1 [19541 2 Q.B. 402 at 419, 2 All E.R. 158.

Here no value of the truck was declared or inserted in the bill; it is not suggested that the rule does not dissom tribute all liability for damages, and the limit of $500 "per package or unit" must then be applied. The word "package" is clearly not appropriate to describe a truck in the condition of that here and may be disregarded; and this leaves our enquiry to the term "unit".

The limitation is clearly for the benefit of carriers by water, dictated by considerations of important policy. I see no ground for implying any duty on the part of the carrier to bring the fact of limitation to the notice of a shipper or in any other respect to concern himself with the requirement which the statute makes equally apparent to both parties. By s. 2 of the statute and that imperative is likewise binding on both of them. The word "unit" would, I think, normally apply only to a shipping unit, that is, a unit of goods; the word "package" and the context generally seem so to limit it. But there has been suggested and in some cases the rule specifies the unit of the charge for freight. Neither the bill of lading nor the evidence here throws any light on the freight rate unit. There seems to have been only a flat charge of $48 plus $3 wharfage fee; there is no indication, for example, of a rate based on tonnage or any other weight quantity.. The weight of the truck is shown, but to assume that the charge is calculated on a rate for 100 pounds would bring a fractional figure which is most unlikely to represent the actual basis. The sum of $500 would scarely be taken as a fair limitation of the value of the average 100 pounds weight of freight; in this case the amount would be the product of 102.16 units at $500 each or $51,000 which seems disproportionate to any policy estimate to be attributed to the rule. And the absence itself of any reasonable ground for extending the word to that type of measure, with the other considerations, excludes its application here. We are left, then, to take the unit as being that of the article. That this may produce anomalies is indisputable, but the rule does not seem to permit qualification. The responsibility for seeing that the value of the thing shipped 19* is declared and inserted on the bill is on the shipper and ANcosal SHIPPING any consequential hardship must be charged against his own failure to respect that requirement.

ST-AMAND An analogous case came before the United States Court Rand J. of Appeal, Second Circuit, in Isbrandtsen Company, Inc. v. United States of America'. There the provision of the rule was,

In case of any loss or damage to or in connection with goods, exceeding in actual value $500 lawful money of the United States, per package, or, in case of goods not shipped in packages, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the Carrier's liability, if any, shall be determined on the basis of a value of $500 per package or per customary freight unit, . . .

The shipping unit was a locomotive and tender which was likewise the unit for the freight charge in the flat sum of $10,000. There were 10 in all of these units. Augustus Hand, Ct. J., at p. 92 uses this language:

This interpretation may lead to a strange result, for freight on small locomotives under twenty-five tons is computed per ton and consequently would involve a larger liability than is imposed for the more expensive locomotives involved here. But the language of the limitation is controlling and applies to the locomotives and tenders here by its express terms. Our conclusion accordingly is that Isbrandtsen's liability is limited to $500 per unit of locomotive and tender, or $5,000 in all.

The application there was much more serious than that here and I see no warrant for any other conclusion than that the damage in this case must be limited to the same sum of $500.

I would, therefore, allow the appeal and direct that the action be dismissed with costs throughout.

1(1953), A.M.C. 86.

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