Lefolii et al. v. Gouzenko

mention these factors as moving me to concur with my LEFOLII et al. brother Hall to limiting the new trial to an assessment of GOUENIKO damages only. I also agree with my brother Hall's disposi- S c tion of costs.

:-I have had the benefit of reading the reasons for judgment of my brother Pigeon in which he has made an extensive analysis of a great deal of the evidence, but as I take a somewhat different approach to the problem involved and as I place a different interpretation on some of the facts, it is perhaps as well for me to 1 (1967), 60 W.W.R. 65, 62 D.L.R. (2d) 371.

[19691 state independently the issues as I see them. I will endeavour to refrain from repetition in so far as is consistent with making my opinion clear.

This appeal arises out of the capsizing of one of the respondent's scows while it was moored to the dock at the appellant's plant and in the last stages of being loaded with wood chips through the appellant's equipment.

In my view the respective obligations of the appellant and the respondent concerning the supplying of scows and the loading thereof with pulp chips at the appellant's plant, are fixed by the terms of the contract (hereinafter referred to as the agreement) entered into between the parties on April 26, 1962, Wherein it is recited that the carrier, i.e., Vancouver Tug Boat Company Limited, has agreed with the shipper, i.e., Tahsis Company Limited, to supply suitable tugs and scows to transport pulp chips from the shipper's plant to their destination. This is a contract to carry the appellant's goods in the respondent's scows between the Tahsis Company's plant and the St.

Regis Paper Mill and in my view it has the character of a charter party covering a succession of voyages by these scows from the point of loading to the destination specified.

By clause 10 of the charter agreement it is provided that all shipments

I mention this clause because the learned trial judge took the view that the provisions of the "Rules Relating to

Bills of Lading" which are a schedule to the Water Carriage of Goods Act, R.S.C. 1952, c. 291, governed the loading and carriage of the chips shipped under the agreement and as I disagree with this conclusion and consider the matter may be of some importance in determining the rights of the parties, it appears to me to be desirable to state at the outset the reasons for my disagreement.

In this regard it is to be observed that the rules in .TAHSIS question, with the exception of art. 6, only apply to "contracts of carriage" as defined in art. 1(b) of the schedule, and are therefore limited to:

Tuo contracts of carriage covered by a bill of lading or any similar document of title in so far as such document relates to the carriage of goods Ritchie J. by sea, including any' bill of lading or any similar document as aforesaid issued under or pursuant to a charterparty from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same.

In the present case it was the shipper, i.e., Tahsis, who chartered the vessel directly from the owner as opposed to the common situation in which an owner has chartered his vessel and the charterer in turn contracts with the shipper. There is a long line of cases to the effect that where, as here, the shipper has chartered the vessel directly from the owner, the bill of lading in so far as it may differ from the terms of the charterparty, is to be treated as a mere receipt for the goods.

The effect of these cases is well summarized in the reasons for judgment of Lord Halsbury in Kruger & Co. Ltd. v. Moel Tryvan Ship Co. Ltd. where he said:

The bill of lading cannot control what has been agreed upon before between the shipowner and the merchant and what has been expressed in a written instrument which is the final and concluded agreement between the parties. It is in truth a bill of lading; it is somewhat inaccurately described as a contract in the Bills of Lading Act, but Bramwell LJ. said in Wagstaff v. Anderson, (1880), 5 C.P.D. that "to say it is a contract superseding, adding to or varying the former contract under the charterparty is a proposition of law to which I never can consent."

In Scrutton on Charterparties and Bills of Lading, 17th ed. at p. 397, the matter is dealt with in relation to the language used in the schedule to the Water Carriage of Goods Act. The learned author there says:'

For as between the charterer and the shipowner the operative document is the charterparty, the bill of lading being generally a mere receipt ....

and there is between them no "contract of carriage" within the meaning of Article 1(b) and, therefore, the shipowner is not within the meaning of Article 1(a) a "carrier" (i.e., a person who "enters into a contract of carriage") ...

I am accordingly of the opinion that it is the agreement and not the Water Carriage of Goods Act which controls the relationship between the parties.

[1907] A.C. 272 at 278.

,116

3(1) of the schedule to the Water Carriage of Goods Act.

Ritchie J. The word "seaworthy" is not defined in that Act or in the schedule thereto and it has been variously interpreted by the Courts having regard to the facts of the various cases before them, but the meaning of the word "seaworthy" as used in the agreement is fixed by the provisions of clause

1(b) thereof and the combined effect of that clause and clause 3(c) makes it clear that the obligation of Vancouver

Tug in this regard was limited to exercising due diligence to make and keep the scow "in a normal condition, safe to tow in. the trade for which" it was "being used and that the amount of water contained within the hull" did not

"exceed the equivalent of 4 inches depth over the entire bottom of any single main compartment of" the scow.

The agreement itself describes in some detail the carrier's obligation to supply scows and to arrange towing operations so as to provide efficient transportation and the shipper's obligation to load the chips on the scows. The following provisions appear to me to be most relevant to the present inquiry:

Clause 3(a)

Carrier shall provide sufficient tugs and scows all of which shall be approved by a representative of Marine Surveyors of Western Canada, or other competent surveyor, for the purposes of transporting not less than 60,000 units, nor more than 80,000 units, of pulp chips per annum.

Scows provided hereunder shall have a minimum aggregate carrying capacity of 3,000 units and a maximum aggregate carrying capacity of

4,500 units and shall be properly boxed and fitted for the transportation.

Clause 3(c)

Carrier shall in all cases exercise due diligence to make and keep all vessels used hereunder in good order and condition and in all respects seaworthy.

Clause 5(b)

Carriers shall deliver the scows to Shipper at loading places in good order and condition and in all respects ready to load.

Clause 5(e)

Shipper shall be responsible for all such scows from the time they are made fast to moorings as directed by Shipper until Carrier has placed a line aboard such scows with the intention of removing the same from the plant, whether loaded or empty.

S.C.R.