Paterson (N.M.) and Sons Ltd. v. Mannix Ltd.

1 [19651 2 Ex. C.R. 107.

S.C.R.

RITCHIE J.:-This is an appeal from a judgment of Mr. Justice Arthur I. Smith sitting as District Judge of the Exchequer Court' in and for the Admiralty District of Quebec, whereby he condemned the appellant in the sum of $60,925 being the agreed value of a mechanical shovel the property of the respondent which was lost at sea while being carried on board the appellant's vessel S.S. Wellandoc when that vessel encountered heavy, but not unseasonable, weather on a voyage between Baie Comeau and Bagotville on December 9, 1954.

It is not disputed that the shovel in question which was a heavy piece of equipment weighing approximately 87 tons was being carried pursuant to an agreement between the parties evidenced by a letter addressed by the appellant to the respondent in the following terms:

Mannix Limited,

November 30th, 1954. 660 St. Catherine St. W.,

Montreal, P.Q.

Attention Mr. G.

Dear Sirs:

As per our agreement the SS "WELLANDOC" will be provided to carry out a voyage on your behalf from Montreal 1, P.Q. to Mont Louis, P.Q., Baie Comeau, P.Q. and Bagotville, P.Q., and return to Montreal, P.Q., or Cornwall, Ont., if possible, under the following terms and conditions.

Yours very truly,

N. M. PATERSON & SONS LIMITED (sgd.) I.

Accepted:

Traffic Manager.

Mannix Limited.

1 [1965] 2 Ex. C.R. 107.

No bill of lading was issued with respect to this shipment and both parties agree that the provisions of the Water Carriage of Goods Act, R.S.C. 1952, c. 291, do not affect the matter.

A great deal of the evidence at trial was devoted to describing the way in which the shovel was loaded and secured on the vessel, but I do not find it necessary to examine this evidence in detail as I agree with the learned trial judge that:

The italics are my own.

It was contended on behalf of the appellant that the finding of the learned trial judge with respect to improper stowage was vitiated by the fact that he allowed himself to be influenced by the evidence of Mr. Eric Crocker who was called as an expert witness on behalf of the respondent and who, in the appellant's submission, could not be impartial as he represented cargo underwriters interested in the loss. The unanimous opinion of this Court, which was expressed at the hearing of the appeal, is that this circumstance can only affect the weight to be attached to Mr. Crocker's evidence which was essentially a matter to be determined by the learned trial judge.

The main argument advanced in support of the appeal was that the improper and negligent stowage of the cargo, to which the learned trial judge attributed the loss, was the work of the respondent's own servants and that the respondent was accordingly estopped from enforcing any claim based thereon.

I am satisfied on all the evidence that the respondent's employees under the direction of their foreman, Mr. Bellfontaine, did the major part of the work of lashing and securing this heavy cargo to the deck, but it is equally clear to me that the method which they employed was approved by the owner's agents aboard the vessel.

The master of the Wellandoc, Captain R. M. McCurdy, did not give evidence at the trial but a statement made by DJ him on the 21st of December, 1954, was admitted as part of the defendant's case and the circumstances under which the loading took place are accepted in the factum filed on behalf of the respondent as having "been carefully summariz ed" in the following excerpt from that statement:

n

Some question was raised in the Court below as to whether the law of Quebec or the law of England should be applied in the circumstances, but as the learned trial judge has pointed out, this question does not arise in the present case it having been conceded that the same rules apply under both systems of law. It follows that nothing herein contained is to be construed as deciding this question. Under both the law of Quebec and the law of England it appears to be established that the primary duty of stowing cargo in a ship lies on the owner of that ship and on the master as his representative unless there is an express agreement to the contrary or the circumstances give rise to an implication that such an agreement has been made. This is made plain by reference to art. 2424 of the Civil Code of Quebec and to the English authorities, the effect of which is in my view accurately summarized in the reasons for judgment of Lord Wright in Canadian Transport Co. v. Court Line Ld.' Article 2424 of the Civil Code reads as follows: In the case of Canadian Transport Co. v. Court Line Ld., supra, there was an express agreement incorporated in the charterparty that the charterers were "to load, stow and trim the cargo at their expense under the supervision of the captain . . ." and as there was no evidence of the extent if any of the captain's supervision or approval, the charterers were found liable for improper stowage, but in reviewing the law as to the respective duties of an owner and a charterer in relation to stowage of cargo, Lord Wright said at page 943:

that

The appellant's counsel cited a number of English cases in which the shipper was held responsible for damage resulting from faulty stowage but it will be found in each of these cases either that there was an express provision in the charterparty whereby the shipper undertook to stow the cargo or that he had participated or approved of a method of stowage, the defects in which were, or should have been, obvious to him having regard to his knowledge of the special properties of the goods which were being shipped. The most recent case of this type that I have been able to find is Upper Egypt Produce Exporters and others v. Santamana', a decision of Hill J. in the Admiralty Division in England which was strongly relied on by the appellant's counsel. In that case the cargo was a large shipment of onions a part of which had, with the assistance and approval of the shipper, been stacked in tiers 15 or 16 feet high with the result that the lower tiers were unable to withstand the pressure from above and were squashed and spoiled. The shipper of the cargo was in a much better position to know of the likelihood of it being damaged by this method of stowage than the ship owner or the master and it appears to me to be logical that in such a case a shipper who knows or ought to know the special characteristics of his own cargo and who approves of it being stowed in a manner which is obviously likely to expose it to damage cannot later hold the ship owner responsible for the damage which ensues. In the course of his reasons for judgment, after reviewing the relevant authorities, Hill J. went on to say:

The italics are my own.

The same considerations governed the case of Bozzo v. Mofiat et all upon which the appellant also relied. This was a case in which a shipment of wool had been stowed against the skin of the ship without sufficient dunnage to protect it from dampness with the result that it was damaged by water, and it was held that under the charterparty there in question whereby the shippers reserved the right to employ and did employ their own stevedores in loading the vessel, the owner was relieved of liability. The effect of this line of cases appears to me to be accurately and succinctly summarized in art. 51 of Scrutton on Charterparties, 17th ed., page 148, where he says:

The italics are my own.

In the present case it was not the condition of the cargo but the stability of the ship that was affected by the faulty stowage, and the loss was occasioned by the failure of the lashings which secured the shovel to withstand the strain to which they were subjected by reason of the shovel's movement in the heavy seas which were encountered. One of Mr. Crocker's main objections to the method of loading was that it was likely to increase the rapidity of the roll of the ship and his opinion that the shovel was not properly secured to the deck was predicated on the assumption that fairly rough weather would be encountered. These do not appear to me to be circumstances which should have been obvious to the respondent's employees as they were not in the same position as the master or his crew to know the extent to which the ship would roll or the seas which it would be likely to encounter.

It therefore appears to me that in the absence of any provision in the charterparty making the shippers responsible for stowage, the inspection made by the ship's officers of the way in which the shovel was placed and secured on the deck and their approval of it, is evidence negating any implied agreement to relieve the carrier of the obligation imposed upon it by law "to receive the goods and carefully arrange and stow -them in the ship."

It was further argued on behalf of the appellant that the second paragraph of the agreement governing this shipment carried with it the implication that the charterers were to be responsible for stowage. That paragraph merely provides for the "charterers to have full use of the ship's gear as on board" and I do not consider that these words can be treated as relieving the owner of any of its responsibility for stowing the cargo.

It was further contended on the appellant's behalf that the agreement governing this shipment was a contract for the letting of the ship as distinguished from a contract for her services, and that in so far as the crew of the vessel participated in the stowage of the cargo, they were to be regarded as servants of the charterer. This contention was based in great measure on the case of Thomas P. Beall where Wooley, Ct. Judge had occasion to say:

And the same judge later said:

This contention appears to me to be without merit because in my opinion the agreement here in question is a voyage charter and not a time charter and it is to be construed as a contract to carry the respondent's goods in the appellant's ship between the ports specified therein and not as a contract for the "letting of the ship" which could create the relationship of bailor and bailee between the parties.

Finally, appellants contended that the loss was occasioned by "dangers of navigation" and that the circumstances were accordingly governed by art. 2433 of the Civil Code which reads, in part, as follows:

COUR SUPRtME DU CANADA

2433. The owner of a sea-going ship is not liable for the loss or damage, occasioned to any goods, wares, merchandise and article of any kind on board any such vessel or delivered to him for conveyance therein, without SoNs his actual fault or privity or the fault or neglect of his agents, servants or employees:

By reason of fire or the dangers of navigation; . . . .

In this regard, I think that the phrase "dangers of naviga- Ritchie J. tion" is to be given the meaning attached to the words "perils of the sea" by Sir Lyman Duff in Canadian National Steamships v. Bayliss', where he said, speaking on behalf of this Court:

The issue raised by this defence (perils of the sea) was, of course, an issue of fact and it was incumbent upon the appellants to acquit themselves of the onus of showing that the weather encountered was the cause of the damage and that it was of such a nature that the danger of damage to the cargo arising from it could not have been foreseen or guarded against as one of the probable incidents of the voyage.

In my opinion the evidence discloses that the weather which was encountered by the Wellandoc on the 9th of December, although it was rough, was of a kind which an experienced master should have foreseen as a probable incident of such a voyage at that time of year. I am accordingly satisfied that the provisions of art. 2433 of the Civil Code could have no application to these circumstances.

It should perhaps be mentioned that although Mr. Crocker expressed the opinion that the ship was unseaworthy, there is no suggestion that the loss was occasioned by unseaworthiness and the question therefore does not arise.

For all these reasons I would dismiss this appeal with costs.

1 [19371 S.C.R. 261 at 263, 1 D.L.R. 545.