IDINGTON J.-The appellant by his accepting the first bill of lading given in Italy in order to secure a through rate, bound himself to accept such bill of lading (no matter how heavily laden with conditions or exceptions) as any intermediate carrier, for example a shipping company at London, in the course of through transportation contemplated, chose to impose. The contract which thus came to be made at London is no doubt most onerous and at first blush somewhat ambiguous.
It was clearly intended thereby, that the carrier should run no risk, and the unfortunate shipper should, if possible, bear all the risks, of every kind that the long experience of generations of carriers have discovered might be run by them in the course of their business.
It seems clear from reading this wonderful instrument that so soon as a new risk had been discovered, some new words were introduced into the form of bills of lading used by these carriers.
Thus there & had grown as quaint and complex a document as legal knowledge of decided cases and mariners' experience could suggest, well suited to entrap the unwary shipper tempted to accept a through rate and shut his eyes to all implied therein.
The courts have occasionally found some of suchlike bills of lading ambiguous, and been enabled thereby to do justice by holding the respective carriers using them liable.
For although these English carriers may contract themselves out of almost any liability, yet they are told by English courts of justice that the attempt to do so must be in such clear and explicit terms that those they contract with should, if they took care, be enabled to understand that they were doing so, or at least so far as the particular risks involved in the contract were in question.
The railway companies in this country and shipping carriers in the United States have been restrained by legislation from carrying the law of contract so far as the respondent's bill of lading now in question has attempted.
I think in this case now presented for our consideration the respondent carrier has accomplished its purpose and so framed its contract that it is not possible for me to hold that the language is, when closely studied and carefully weighed, so ambiguous that I am unable to give it the meaning respondent stoutly contends for. Moreover we must observe the following stipulations in the contract:- Why in the face of a contract, presumably under the circumstances made in London, and so expressly declared to be made in reference to British law we should have such profuse references to another law, I am not able to understand.
Doing so only confuses things.
Had the action arisen out of something happening on our railways then our Canadian legislation or Canadian law might perhaps have been instructive even if not directly binding the parties. As the case stands I see nothing for it but that the. * appeal should be dismissed with costs.
J.-The principal point made by counsel-for the appellant is that the two bills of lading, that dated the 9th December, 1910, and that dated January 2nd, 1911, must be read together and that the effect of clause ten in the earlier bill of lading is to qualify the terms of the second bill in such a way as to limit the operation of the exceptions set forth in the second paragraph of it to cases in which the causes to which injury to the shipments are ascribed could not have been counteracted by proper diligence on the part of the carriers.
This argument must, I think, be rejected because it appears to me to be very plain that paragraph 10 in the earlier bill of lading is a provision in favour of the owner and not of the shipper; and I think their full normal effect must be given to the words in the 2nd paragraph, and that these words must relieve the respondents from any liability which they might otherwise have & been subject to.
Some question was raised as to the law applicable. The second bill of lading contains a paragraph plainly indicating that the intention of the parties is that it is the law of England by which the construction and effect of this instrument are to be governed.
Such a stipulation is conclusive both under the law of England; Hamlyn & Co. v. Talisker Distillery(1); and under that of Quebec; Art. 8 C.C.; Savigny (Guthrie's translation, 2 ed.) secs. 369, 370, pages 194 and 197; sec. 372, page 221 (note A.), page 227; Royal Guardians v. Clark(2), at page 251; Lafleur's Conflict of Laws, at page 149.
J.-Assuming that it is fully established that the freezing of the appellant's shipment of lemons was due to negligence of the respondents' servants, liability for such negligence is, in my opinion, clearly excluded by an express provision of the bill of lading under which the respondents carried this cargo. It is conceded, and in view of the terms of the original bill of lading with The General Steam Navigation Company it could not well have been contended otherwise, that the latter company had authority to tranship the appellant's goods at London, and to accept on his behalf from the forwarding steamship company a bill of lading in its customary form.
It was in pursuance of this authority that the bill of lading in question was taken from the respondents and it is binding upon the appellant.
It is not suggested that it is not in the respondents' usual form or that its acceptance was procured by any imposition, misrepresentation or concealment.
The question presented is solely one of construction. There is no ambiguity or inconsistency whatever in the terms of the bill of lading. I am unable to agree with the appellant's contention that it incorporates the provisions of the bill of lading issued by the original shippers, The General Steam Navigation Company. The clause relied upon for that purpose, viz.:in my opinion, refers solely to conditions of any company or companies which might take over the goods from the respondents for the purpose of forwarding them to destination.
That this is the meaning of the clause invoked is, I think, sufficiently clear from its own terms.
But if not, it is made so by the fact that it immediately follows another clause which stipulates that:that
No sufficient ground has been advanced for relieving the appellant from the clear and explicit provision of the bill of lading taken on his behalf.
For the foregoing reasons as well as those assigned by Mr. Justice Cross in the Court of King's Bench I am of the opinion that under the special terms of their bill of lading the respondents were exempt from liability for injury to the appellant's cargo due to climatic conditions although that injury was occasioned by negligence of the respondents' servants.
BRODEUR J.-The appellant claims damages for lemons which were frozen in transit between London and St. John, N.B., on a ship belonging to the respondents.
The respondents contend that they are not responsible for the condition of those goods because by the bill of lading they were exempted from liability for damages caused by frost.
Those goods were shipped from Italy to Montreal on a through bill of lading issued at Milazzo, Italy, by the General Steam Navigation Company.
It was provided in the bill of lading issued by the latter company that those goods could be transhipped in England.
When they reached England, the goods were handed over to the respondent company for the purpose of being transported to St. John, N.B. One of the conditions of the new bill of lading was that the respondent company should not be responsible for injurious effects of climate whether or not
It appears that when the ship came near Newfoundland they encountered a pretty severe frost and it is likely that the lemons got frozen at that time though the goods seem to have been stowed at the place where they should have been.
It is in evidence also that when the ship reached Halifax the hatches were open for the purpose of discharging the cargo and that the lemons might-then have got frozen.
However, the respondents claim that according to their contract they could not be held liable for negligence, default or error. Their bill of lading was accepted without any objection and became the contract determining the rights and obligations of the partie .
It was provided also by that bill of lading & that it would be interpreted according to the laws of England and it has been proved in the case that under the provisions of that law that bill of lading with such a clause was good and valid.
But it was contended on the part of the appellant that the new bill of lading issued in London by the respondent company was subject to the conditions and clauses of the original bill of lading.
It appears in the original bill of lading issued in Italy that the vessel owners undertook to exercise care and diligence in the carrying of goods and that the latter clause would then be contrary to the provisions of the second bill of lading issued by the respondent company. I am unable to find in the latter bill of lading any provisions by which all the conditions and obligations mentioned in the original bill of lading would affect the respondent company.
It was even stipulated in the original bill of lading that in the event of transhipment the clauses, conditions and restrictions of the ship or other conveyance by which the goods are forwarded to destination were included in the original bill of lading in addition to the conditions therein stipulated. The contract then could be modified by any new ship owner; and as in the present case the respondent company undertook to carry the goods but with the condition that it should not be responsible for the injurious effect of climate even if the loss arose from its own negligence or the negligence of its employees, it constituted a contract which unfortunately in the circumstances of the case would not give any relief to the appellant.
Those conditions might be very unjust; but they are the stipulations accepted by the parties and the courts are bound to give effect to them. Appeal dismissed with costs.