Anglophoto Limited (Plaintiff)
v.
The Ikaros, Pleione Maritime Corp. and Empire
Stevedoring Company Limited (Defendants)
Trial Division, Collier J.—Vancouver, B.C.,
February 22; Ottawa, May 8, 1973.
Maritime law—Jurisdiction—Short delivery of cargo—Bill
of lading for carriage by ship to Vancouver then by rail to
Toronto—Whether "through bill of lading"—Claim against
stevedores —Whether claim cognizable—Federal Court Act,
s. 22(2Xe),(f),(h),(i)•
The bill of lading for plaintiff's goods provided for car
riage by the Ikaros from Japan to Vancouver then by rail to
Toronto. The ship's record showed that the goods were
delivered in full to Empire Stevedoring Co. at Vancouver
but the latter's record showed short delivery. Plaintiff
brought action for damages against the ship, her owners and
Empire Stevedoring Co.
Held, the Court had no jurisdiction with respect to the
claim against the Empire Stevedoring Co. That claim was
not cognizable under section 22(2)(e),(O,(h) or (i) of the
Federal Court Act.
1. A claim for damage to or loss of cargo can only be
made under section 22(2)(e) where there is a claim for loss
of or damage to a ship.
2. Under the bill of lading the ship's owners were merely
agents to forward the goods from Vancouver to Toronto,
and the bill of lading was therefore not a "through bill of
lading" within the meaning of section 22(2)(1); but even if it
were a "through bill of lading" it imposed no contractual
liability on Empire Stevedoring Co. since the ship's owners
did not act as agents for Empire Stevedoring Co. when the
bill was issued.
3. If Empire Stevedoring Co. was liable for loss of plain
tiff's goods, the loss was not for "loss of ... goods carried
on a ship" as required by section 22(2)(h), but for a loss of
goods after they had left the ship. The Robert C. Norton
[1964] Ex.C.R. 498, followed.
4. There was no agreement between the plaintiff and
Empire Stevedoring Co. relating to the carriage of the goods
by the Ikaros, and hence section 22(2)(i) did not apply.
Held also, there is no principle of Canadian maritime law
that if a ship is properly before the Court, the Court also has
jurisdiction over any other person who may be involved in
the causation of the plaintiff's loss.
The Sparrows Point v. Greater Vancouver Water Dis
trict [1951] S.C.R. 396; MacMillan Bloedel Ltd. v.
Canadian Stevedoring Co. [1969] 2 Ex.C.R. 375; Robert
Simpson Montreal Ltd. v. Hamburg-Amerika Linie N.D.
[1973] F.C. 304; Elite Linens Ltd. v. Galya Komleva
(unreported, T-2892-72), distinguished.
MOTION.
COUNSEL:
David F. McEwen for plaintiff.
J. Jessiman for Pleione Maritime Corp.
Peter J. Gordon for Empire Stevedoring Co.
Ltd.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody and Rey-
nolds, Vancouver, for plaintiff.
MacRae, Montgomery, Hill and Cunning-
ham, Vancouver, for Pleione Maritime Corp.
P. J. Gordon, Vancouver, for Empire Steve-
doring Co. Ltd.
COLLIER J.—This is a motion under Rule 474
for the determination of a question of law. The
action was commenced in the Exchequer Court,
British Columbia Admiralty District, on April
20, 1970 and is a claim for damages for failure
to deliver the whole of a shipment of cartons of
cameras and ancillary equipment from Japan to
Toronto, Ontario. The defendants are the carry
ing vessel and her owners, and Empire Steve-
doring Company Limited (hereafter "Empire")
into whose possession some, if not all, of the
cartons were delivered. In the statement of
claim, the case against the defendants is pleaded
in this manner:
5. In breach of the contract contained in the aforesaid Bill
of Lading and/or negligently and/or in breach of its duty
in the premises as a carrier for reward the Defendant
Pleione Maritime Corp. and the ship "txaaos" did not
deliver the aforesaid cameras, and accessories in good
order and condition and in fact delivered to the Defendant
Empire Stevedoring Company Limited only part of the
shipment.
6. In the alternative the Defendant Empire Stevedoring
Company Limited negligently, or in breach of duty in the
premises as a bailee for reward did not deliver to the
Plaintiff or his agent the full quantity of cameras delivered
to them by the vessel.
The parties, through their counsel, have for the
purpose of this motion agreed on certain facts.
The statement of agreed facts includes the ques
tions of law which the parties wish the Court to
determine. I set out the document in full:
1. THAT thirteen cartons of cameras and accessories and
eight cases of advertising material belonging to the Plain
tiff were loaded on board the vessel "IKAROS" at Osaka,
Japan, on or about the 10th day of July, 1969, for carriage
to Vancouver pursuant to the attached bill of lading.
2. That the vessel "IKAROS" arrived in Vancouver on or
about the 25th of July, 1969, and discharged cargo into
the care, custody and control of the Defendant, Empire
Stevedoring Company Limited.
3. That Empire Stevedoring Company Limited is a com
pany duly incorporated under the laws of British
Columbia and, amongst other services, acts as a terminal
operator managing portions of Centennial Pier, in the City
of Vancouver, receiving cargo from marine vessels and
delivering it to inland carriers such as the railways, trucks
and similar conveyances.
4. That according to the discharge records made on behalf
of the Defendant, Pleione Maritime Corp., owners of the
vessel "IKAROS", all of the thirteen cartons of cameras
and accessories and eight cases of advertising material
were discharged in good order save and except one carton
No. 7022/82.
5. That according to the records of the Defendant, Empire
Stevedoring Company Limited, only eighteen cartons
were delivered by the Defendant, Pleione Maritime Corp.,
to the Defendant Empire Stevedoring Company Limited.
6. That the Plaintiff commenced its action in the Excheq
uer Court of Canada, British Columbia Admiralty District,
against the Defendant, Empire Stevedoring Company
Limited, this latter Defendant pleading in its Defence that
that Honourable Court had no jurisdiction to hear the case
against that Defendant.
7. That the issues which the parties request this Honour
able Court to decide are as follows:—
(a) Did the Exchequer Court of Canada, British
Columbia Admiralty District, have jurisdiction to hear a
case against the Defendant, Empire Stevedoring Com
pany Limited, and if not, what is the effect of the
enactment of the Federal Court Act with respect to the
status of the action, and
(b) Does this Honourable Court have jurisdiction to
hear a case against the Defendant, Empire Stevedoring
Company Limited.
As I see it, the real question to be determined
is: On the facts agreed to, and having regard to
the cause of action pleaded, does this Court
have jurisdiction over the defendant Empire?
This may involve some consideration of the
jurisdiction of the former Exchequer Court.
Counsel for the plaintiff contends jurisdiction
can be found within paragraphs (e),(f),(h) or (i)
of subsection 22(1) of the Federal Court Act,
R.S.C. 1970, c. 10 (2nd Supp.). I.shall set out
those paragraphs, but I think it necessary also to
set out the definition of Canadian maritime law
found in section 2 and subsections (1) and (2) of
section 22:
2. In this Act
"Canadian maritime law" means the law that was
administered by the Exchequer Court of Canada on its
Admiralty side by virtue of the Admiralty Act or any
other statute, or that would have been so administered
if that Court had had, on its Admiralty side, unlimited
jurisdiction in relation to maritime and admiralty mat
ters, as that law has been altered by this or any other
Act of the Parliament of Canada;
22. (1) The Trial Division has concurrent original juris
diction as well between subject and subject as otherwise, in
all cases in which a claim for relief is made or a remedy is
sought under or by virtue of Canadian maritime law or any
other law of Canada relating to any matter coming within
the class of subject of navigation and shipping, except to the
extent that jurisdiction has been otherwise specially
assigned.
(2) Without limiting the generality of subsection (1), it is
hereby declared for greater certainty that the Trial Division
has jurisdiction with respect to any claim or question arising
out of one or more of the following:
(e) any claim for damage sustained by, or for loss of, a
ship including, without restricting the generality of the
foregoing, damage to or loss of the cargo or equipment of
or any property in or on or being loaded on or off a ship;
(f) any claim arising out of an agreement relating to the
carriage of goods on a ship under a through bill of lading
or in respect of which a through bill of lading is intended
to be issued, for loss or damage to goods occurring at any
time or place during transit;
(h) any claim for loss of or damage to goods carried in or
on a ship including, without restricting the generality of
the foregoing, loss of or damage to passengers' baggage or
personal effects;
(i) any claim arising out of any agreement relating to the
carriage of goods in or on a ship or to the use or hire of a
ship whether by charter party or otherwise;
Paragraph (e). In my view, it is not applicable
to the facts before me. This paragraph appears
to be an extension or clarification of the former
jurisdiction under the Admiralty Act, R.S.C.
1970, c. A-1 which read "... any claim for
damage received by a ship ...." I take the
paragraph to mean that where there is a claim
against someone for loss of or damage to a ship,
there can be included a claim for loss of or
damage to, inter alia, its cargo. That is not the
situation here.
Paragraph (f). It was agreed by all counsel
that I could - decide, on the facts presently
before me, whether the bill of lading covering
the goods here was a through bill of lading.
Counsel for the plaintiff contended it was.
Counsel for Empire took the opposite view and
was supported by counsel for the owners of the
vessel. The bill of lading provided for the car
tons to be shipped from Nagoya, Japan to Van-
couver, B.C. by the Ikaros then "... by rail to
Toronto, Ontario." I have considered the vari
ous clauses of the bill referred to by counsel
and the cases and textbooks cited. In my opin
ion, this is not a through bill of lading. It seems
to me the vessel owners here (the initial carri
ers) were, under the bill, acting merely as agents
to forward goods from Vancouver to their ulti
mate destination.
Liability arising from a through bill of lading
is stated in Carver's Carriage by Sea (12th ed.
1971) as follows (paragraph 200):
When a contract for a through journey is made with a
carrier or contractor, he is answerable for its complete
performance, although it may be intended that some part of
the carrying shall be done by others, unless (as is usual) the
contract expressly limits his liability to his own part of the
journey.
Apart, then, from such a limitation, the first carrier with
whom the contract is made may be liable for a breach of it
after the goods have left his hands. But the carrier in whose
hands they were when the breach was committed is also
generally liable in contract, if the through contract was made
for his benefit, and with his authority; and, on the other
hand, he is entitled to the benefit of the exceptions of
liability which the contract may contain.
Even if this contract were a through bill of
lading, it would not impose any liability in con
tract on Empire because the vessel owners here
were not acting as agents of Empire (or of the
on-going land carrier) when the bill was issued. I
add that it is not alleged in the pleadings, nor
was it argued before me, that Empire could be
liable in contract to the plaintiff on this bill of
lading. The point sought to be made, as I under
stand it, is that if this is a through bill of lading,
then any person who had anything to do with
the goods in transit, and who might be liable for
their loss, can be sued in this Court, either in
contract or tort. I do not accept that interpreta
tion of paragraph (D. The claim over which
jurisdiction is asserted is for loss or damage to
goods (occurring during transit) arising out of an
agreement to carry under a through bill of
lading. The persons potentially liable to answer
for the loss or damage are, to my mind, the
parties to the agreement (in this case the initial
carrier, the owners of the vessel), or those
bound by it (in some cases, the on-carriers
where the initial carrier has acted as their
agent). It is those persons over whom this Court
has jurisdiction under paragraph (D. I do not
think Parliament intended to assert a potential
jurisdiction over every person who becomes
involved with goods, carried for some part of
their journey by a ship, merely because the
goods were shipped under a through bill of
lading. Walsh J. of this Court made a brief
reference to paragraph (f) in The Robert Simp-
son Montreal Ltd. v. Hamburg-Amerika Linie
Norddeutscher [1973] F.C. 304. In that case it
was suggested by counsel that Parliament had
intended, in the Federal Court Act, to extend
jurisdiction over warehousemen, stevedores and
terminal carriers in regard to claims for damage
to or loss of goods after discharge from a
vessel. Walsh J. seems to suggest there would
be jurisdiction if a through bill of lading had
been issued in respect of the goods. I point out
that in that case the bill of lading was not a
through bill of lading, and the question of what
jurisdiction is contemplated by paragraph (f)
was not really before the learned judge, nor I
feel, argued fully as was done before me.
Paragraph (h). It seems evident that if Empire
is to blame for the loss here, that loss was not of
goods carried in or on a ship. The goods had left
the vessel. The decision in Toronto Harbour
Com'rs v. The Robert C. Norton [1964] Ex.C.R.
498 is relevant. In that case, a vessel, which had
discharged a heavy cargo of scrap iron onto the
plaintiff's pier, was sued when the pier col
lapsed. The other parties were added as
co-defendants by the defendant ship. The vessel
then cross-claimed against those parties, alleg
ing they were responsible for placing the cargo
where it had been put. At that time, the statu
tory jurisdiction was contained in section 18 of
the Admiralty Act. The relevant portions were:
"any claim for damage done by a ship";
"any claim relating to the carriage of goods in
a ship"; and
"in tort in respect of goods carried in a ship".
Wells D.J.A. held there was no jurisdiction in
respect of any of the defendants. At page 504
he said:
The only other heading under which jurisdiction might be
claimed is found in section 22 of the Supreme Court of
Judicature (Consolidation) Act, 1925,—in s-s. 1(a)(xii) any
claim, (2) relating to the carriage of goods in a ship or (3) in
tort in respect of goods carried in a ship.
With respect to the problem before me it would appear to
relate to goods landed from rather than carried in a ship. As
to the tort in respect of goods carried in a ship, this would
be intended to cover, as it appears to me, any damage
received by the goods while they are in the ship, resulting
from some tortious act of those operating the vessel. I
would not deem it wide enough to cover the discharge off
goods from the ship to the land where no tortious act against
the goods occurred in the handling in such a way as to found
a claim within the jurisdiction of the Court. Here of course
none such is alleged. The tort was committed against the
plaintiffs not the owners of the cargo.
In my view, the same reasoning applies to para
graph (h). As I see it, Parliament did not intend
to extend jurisdiction over persons who came
into possession of goods discharged from
vessels.
Paragraph (i). There is no doubt the plaintiff's
claim in contract against the vessel and her
owners falls within this head of jurisdiction. I
equally have no doubt the claim advanced
against Empire does not fall within this head.
On the facts before me, there is no agreement
between the plaintiff and Empire relating to the
carriage of the goods in question in or on the
Ikaros.
I have finished dealing with the particular
paragraphs of section 22 which were relied on. I
cannot see they, per se, provide jurisdiction
over Empire in this case.
Counsel for the plaintiff made a further sub
mission. I refer back to the definition of Canadi-
an maritime law and subsection 22(1). It is said
that the law that was administered by the Ex
chequer Court must, of course, include the law
as pronounced by the courts in cases dealing
with the jurisdiction of the Exchequer Court.
Counsel then contends this principle exists in
Canadian maritime law: that where the wrong or
breach complained of was committed by one or
both of the parties, and the ship is properly
before this Court as a party, then there is juris
diction over the other party. Counsel did not put
the proposition in precisely those words, but
that was the effect of the submission. Reference
is made to several decisions: The Sparrows
Point v. Greater Vancouver Water District
[1951] S.C.R. 396; MacMillan Bloedel Limited
v. Canadian Stevedoring Co. [1969] 2 Ex.C.R.
375; Maag and Company Limited v. Eastern
Canada Stevedoring Limited (unreported, 1969,
Quebec Admiralty District No. 1601, Montreal);
The Robert Simpson Montreal Ltd. case (supra)
and Elite Linens Ltd. v. The Galya Komleva
(unreported, T-2892-72).' I point out that all
those cases are distinguishable on their facts
from the case here.
In The Sparrows Point case an action was
brought in the Exchequer Court by the Greater
Vancouver Water District against the vessel and
the National Harbours Board claiming for
damage to some of its water mains. The vessel
was intending to pass through the Second Nar
rows Bridge in Burrard Inlet. She whistled to
have the span opened. Those operating the
bridge showed her a red light, indicating they
had heard her signal and that the span was
closed. The custom was that the span was
opened shortly afterwards and a green light was
shown when the span was fully open. The
vessel continued ahead awaiting the green light
which, according to those on board, never
appeared. The vessel then dropped her anchor
to take off her way and damaged the water
mains. In fact, the span had been opened, but
the green light had not been displayed. In the
Supreme Court, both the vessel and the Nation
al Harbours Board were held at fault. There, for
the first time, objection was taken to the juris
diction of the' Exchequer Court on its Admiralty
side over the National Harbours Board. The
Supreme Court held there was jurisdiction. Kel-
lock J. (with whom the Chief Justice and Tas-
chereau J. concurred) said at pages 402-403:
The question was raised during the argument as to the
jurisdiction of the Admiralty Court to deal with the claim of
the Water District against the Harbours Board. It is clear, I
think, that the court has no jurisdiction beyond that con
ferred by the statute; c. 31 of the statutes of 1934; Bow
McLachlan and Co. v. The Ship "Camosun" ([1909] A.C.
597). The statute has been changed since that decision, but
the principle is still applicable. The answer to the question
raised depends upon the meaning of the words "damage by
any ship" in s. 22(1)(iv) of Schedule A to the statute of
1934, which reproduces s. 22 of the Supreme Court of
Judicature Consolidation Act (1925) c. 49, the language of
which is "any claim for damage done by a ship." There have
been a number of decisions since the enactment of the
original statute of 1861, 24 Vic. c. 10, s. 7.
In the "Uhla", ((1867) Asp. M.C. 148) and in the "Excel-
sior", ((1868) L.R. 2 A. & E. 268, jurisdiction was exercised
in the case of damage done by a ship to a dock, and in
Mayor of Colchester v. Brooke, ((1845) 7 Q.B. 339) jurisdic
tion was exercised in the case of damage to oyster beds.
In the case of the "Bien", ([1911] P. 40), the plaintiff,
lessee of an oyster bed, sued the conservators of the River
Medway and the owner of a ship for damage sustained to an
oyster bed caused by a ship when acting under orders of a
harbour master. That case was, of course, decided after the
Judicature Acts when the jurisdiction of the Admiralty
Division was no longer limited to that formerly exercised by
the Court of Admiralty. The circumstances in question in
the present proceedings are analogous. If the claim against
the Harbours Board cannot be entertained in the Admiralty
Court, the result is that the Water District ought to have
brought two actions, one on the Admiralty side of the
Exchequer Court against the ship, and the other elsewhere.
In my opinion, the statute, which prima facie confers
jurisdiction upon the Admiralty Court in a case of this kind,
should be construed so as to affirm the jurisdiction, at least
in a case where the ship is a party. There is no authority to
the contrary to which we have been referred or which I have
been able to find, and every consideration of convenience
requires a construction in favour of the existence of such a
jurisdiction.
And at page 404:
On the other hand, all claims arising out of the damage
occasioned by the ship should be disposed of in one action
so as to avoid the scandal of possible different results if
more than one action were tried separately. I therefore think
that the statute is to be construed as clothing the Exchequer
Court on its Admiralty side with the necessary jurisdiction.
The question before the Court was whether
the claim was one "... for damage done by a
ship", and the answer was in the affirmative. In
my view, the particular facts of the case must
be kept in mind. Those on board the vessel and
those on the bridge were, for practical purposes,
both participating in the manoeuvring of the
vessel, and in the course of those movements,
damage was caused by the ship.
Rand J. delivered separate reasons. At pages
409-411 he said:
... The actual navigation was thus the product of the joint
negligence of the persons operating the signals on the draw
bridge and of those in charge of the vessel: Brown v. B. & F.
Theatres ([1947] S.C.R. 484).
In its statutory assumption of the direction of navigation
through the drawbridge, the Commission has undertaken to
operate the signals with the customary care and skill where
interests are committed to reliance on the discharge of this
sort of duty by others. Since it had full knowledge of the
existence and the placement of the pipes, that responsibility
would extend to foreseeing that negligence in signalling
might in the ordinary course of things bring about emergen
cy action in the channel by which property of various kinds
might be affected. There was, thus, a direct obligation on the
Commission toward the Water District to avoid bringing that
situation about negligently: The "Mystery" ([1902] P. 115).
For the first time in the proceedings, the objection is
taken, on behalf of the Harbour Commission, that the Admi
ralty jurisdiction of the Court does not permit the joinder of
the Commission, and it calls for some consideration. It is
based on the fact that the claim is for damage to property on
land within the body of a county and is by and against a
person other than the owner of a ship. In The Queen v. Judge
of City of London Court ([1892] L.R. 1 Q.B. 273) it was
held by the Court of Appeal that the Admiralty Court had no
jurisdiction to entertain an action in personam against a pilot
in respect of a collision on the high seas caused by his
negligence. That decision limited the causes in personam
that could be brought under the statutory jurisdiction which
included damage done "by a ship". It followed the ruling of
Sir Robert Phillimore in The `Alexandria", ((1872) L.R. 3 A.
& E. 574) which, likewise, was a proceeding against a pilot
for damage done through his negligence on the Mersey. In
the course of his reasons, however, Sir Robert stated that if
the question had been res integra, he should have been of
opinion that under the provisions of sections 7 and 35 of 24
Vic. c. 10, the Court had jurisdiction. Section 7 imports
causes for damage done "by a ship" and 35 provides for
actions in personam as well as in rem. On the other hand, in
The "Zeta", ([1893] A.C. 468) the House of Lords seems to
have expressed the view that a ship is entitled to bring
action in Admiralty against a Dock Authority for damage
done "to a ship" through collision with a pier caused by the
negligence of the Authority; and in The "Swift", ([1901] P.
168) the owners of oyster beds were upheld in an action
against a ship for damage done their property by negligent
grounding. Whether a distinction between the jurisdiction in
cases of damage "by a ship" and "to a ship" can be drawn
from the statute remains, apparently, undecided.
As the jurisdiction of the Exchequer Court for this pur
pose is the Admiralty jurisdiction of the High Court in
England, if the action had been brought against the Harbour
Commission as for an individual tort, the point taken might
be formidable; but the cause of action alleged is, strictly,
one against joint tort feasors: The "Koursk"((1924) P. 140);
i.e. both the vessel and the Commission have concerted in
directing and controlling the movement of the vessel down
the harbour: it was a single act with joint participants. In
such a case, a judgment against one merges the cause of
action and would be an answer to an action brought against
the other in another court.
The Water Authority is entitled to assert a remedy in
Admiralty both against the vessel, in rem, and against the
ship owners, in personam; and the law administered would
be Admiralty law. The limitation of the scope of proceedings
so as to deny the joinder of the Harbour Commission would
deprive the Authority of one of those remedies if it desired
also to pursue its claim against the Commission. Every
consideration of convenience and justice would seem to
require that such a single cause of action be dealt with under
a single field of law and in a single proceeding in which the
claimant may prosecute all remedies to which he is entitled;
any other course would defeat, so far, the purpose of the
statute. The claim is for damage done "by a ship"; the
remedies in personam are against persons responsible for
the act of the ship; and I interpret the language of the statute
to permit a joinder in an action properly brought against one
party of other participants in the joint wrong.
In the MacMillan Bloedel Limited case, Jack-
ett P. (now Chief Justice) held there was juris
diction in the Exchequer Court to entertain a
claim against a person who was in charge of the
loading of a vessel. It was alleged that his load
ing procedure was faulty, and as a result the
vessel rolled causing damage to the plaintiff's
dock. The Court held the damage was caused by
a ship, and the person in charge of loading had
as much responsibility in ensuring the safety of
the loading procedure as the master or crew
members would have had if they had been in
charge. Again, the judgment must be considered
in the light of its particular facts 2 . I bear in mind
the words of the Earl of Halsbury L.C. in Quinn
v. Leathem [1901] A.C. 495 at p. 506:
... that every judgment must be read as applicable to the
particular facts proved, or assumed to be proved, since the
generality of the expressions which may be found there are
not intended to be expositions of the whole law, but gov
erned and qualified by the particular facts of the case in
which such expressions are to be found. The other is that a
case is only an authority for what it actually decides. I
entirely deny that it can be quoted for a proposition that
may seem to follow logically from it. Such a mode of
reasoning assumes that the law is necessarily a logical code,
whereas every lawyer must acknowledge that the law is not
always logical at all.
and of Viscount Haldane L.C. in Kreglinger v.
New Patagonia Meat & Cold Storage Co., Ltd.
[1914] A.C. 25 at p. 40:
... To look for anything except the principle established or
recognized by previous decisions is really to weaken and not
to strengthen the importance of precedent. The considera
tion of cases which turn on particular facts may often be
useful for edification, but it can rarely yield authoritative
guidance.
In my opinion, The Sparrows Point decision
and the MacMillan Bloedel Limited case are, as
I have earlier said, distinguishable on their facts
and, in any event, do not establish a general
principle of Canadian maritime law that if a ship
is properly before the Court, then there is juris
diction over any other party who may be
involved in the causation of the loss or damage
complained of by the plaintiff. I think the two
cases referred to only go so far as to hold that
under the old Admiralty Act there was jurisdic
tion in a claim involving damage done by a ship,
not only over the vessel but over others who
may have had a part in her operations or
movements.
I turn now to the Maag case. I have extracted
the Court file. The plaintiff was the owner of
goods and sued for the failure to deliver to it 73
out of 99 cartons at Montreal, where the cargo
of the vessel was discharged. Action was
brought against a number of defendants, and,
presumably, some were shipowners. The
defendant stevedoring company was also sued.
The statement of claim makes no distinction
among the various defendants as to how each of
them became involved with the goods. They
were all alleged to be owners or operators of the
carrying vessel, to be parties to the bills of
lading, and to be jointly and severally liable in
contract and tort for failure to deliver the goods.
The defendant stevedoring company sought to
be dismissed from the action on the grounds
there was no jurisdiction over it; that jurisdic-
tion did not extend to cover loss or damage to
goods occurring subsequent to discharge where
the loss or damage was not caused by a ship.
For the purposes of the motion, Walsh J.
assumed the allegations in the statement of
claim could be proved. He referred to the two
cases I have earlier discussed, but held they
were not directly applicable to the case before
him. His conclusion was:
In the present case it would appear that the facts giving
rise to the action against the defendant Eastern Canada
Stevedoring Limited are inextricably part of the facts giving
rise to the action against the other defendants. At this stage
of the proceedings it is impossible to say which of the
defendants is responsible for the loss of the cargo or if the
liability would be based on contract or on tort. The allega
tions in the statement of claim indicate the intention of
attempting to establish that defendant Eastern Canada
Stevedoring Limited and the other co-defendants are joint
tortfeasors. Under the circumstances it would seem to be
highly unrealistic and undesirable to force plaintiff to bring
proceedings against the ship owners in the Exchequer Court
sitting in Admiralty, and against the defendants Eastern
Canada Stevedoring Limited in the Superior Court for the
Province of Quebec. Such duplication of proceedings would
inevitably lead to problems as to which action should be
heard first and necessitate the duplication of testimony, and
as Kellock J. stated in the Sparrows Point case "the claim
should clearly be disposed of in. one action so as to avoid the
scandal of possible different results if more than one action
were tried separately". Since, unlike the MacMillan Bloedel
Limited and Canadian Stevedoring Co., Ltd., Ian Haughton
case we are not dealing here with two separate actions
arising out of the same facts I am not called upon to decide
whether the Court would have jurisdiction had the action
against defendant Eastern Canada Stevedoring Co. Ltd.,
been brought separately before this Court.
In my view, the Maag case is distinguishable
on its facts. There the allegations were that the
various defendants were joint tortfeasors 3 , and
on the pleadings alone I am of the view that
Walsh J. was correct in holding that the action
against the stevedoring company should not
have been dismissed at that stage. I do not
however subscribe to the view that possible
duplication of proceedings is a sound ground for
asserting jurisdiction, either under the former
Admiralty Act or the Federal Court Act. While
duplication of proceedings is undesirable, it may
be a fact of life in a federal system such as we
have in Canada with the division of legislative
powers as set out in the British North America
Act'. As I view it, jurisdiction, in a case such as
this, must be found in the provisions of the
Federal Court Act. Here, duplication of pro
ceedings does not necessarily arise. The plain
tiff could have brought one action in personam
in the Supreme Court of British Columbia
against the vessel owners and against Empire.
This would have required leave to serve the
owners out of the jurisdiction, but it seems to
me it would have been a proper case for leave
pursuant to Order 11, r. 1(g), B.C. Supreme
Court Rules 1971. Admittedly, an action in rem
could not be included, and the plaintiff there
fore could not have, in the provincial court, as it
would in this Court, the security of the res.
The final two decisions are again, in my view,
distinguishable on their facts. I agree with the
result reached by Walsh J. In the Robert Simp-
son and the Elite Linens Ltd. cases (supra), the
plaintiffs sued the vessels only claiming in
respect of loss of or damage to goods. In both
cases the defendant shipowners sought to add
as third parties the terminal operators into
whose possession the goods had been dis
charged by the particular vessels. Walsh J. held
that because the plaintiffs had chosen to confine
their claim to the vessel owners only, there was
no reason for the third party proceedings at that
stage and dismissed them. If the vessel owners
succeeded in having the plaintiffs' actions dis
missed on the basis the damage or loss was
caused by the terminal operators, then no ques
tion of indemnity by the third parties would
arise. On the other hand, if the plaintiffs at trial
proved liability on the vessel owners, then it
followed the third parties would necessarily be
exonerated.
Reliance is placed on the following words
found in the Robert Simpson case [pages
311-12]:
In the present case, if plaintiff had been unable to deter
mine when or how the loss occurred and had chosen to sue
not only the ship and owners but also the stevedores and
warehousemen, no doubt the Court would have accepted
jurisdiction over all parties as in the Maag case (supra).
and at page 2 of the reasons in the Elite Linens
Ltd. case:
... The Court has no jurisdiction over stevedores and
warehousemen except in a case where plaintiff has been
unable to determine where or how the loss occurred in
which event they might be joined as co-defendants in an
action taken against defendants in connection with a claim
over which the Court has jurisdiction.
In my view, the opinion expressed above is
obiter dictum and was not part of the ratios of
the two decisions'. Therefore no question arises
as to whether, as a matter of judicial comity, I
should follow the opinion expressed, but with
deference, I do not feel this Court has jurisdic
tion in the circumstances posed by the learned
judge.
I suggest a proper test to apply in approaching
the question of jurisdiction is to see whether
this Court would have jurisdiction if the claim
advanced against one particular defendant stood
alone and were not joined in an action against
other defendants over whom there properly was
jurisdiction. On that basis, if Empire were
alone sued in negligence or as a bailee for
reward, I can find no jurisdiction in this Court,
either set out in the specific paragraphs of sec
tion 22 or formerly found in the High Court of
Admiralty in England.
I therefore conclude this Court has no juris
diction over Empire in this case. The action
against it will therefore be stayed. Empire is
entitled to its costs of entering the conditional
appearance and of this motion. In the circum
stances, I think no order as to costs should be
made in favour of the other defendants.
' This is a decision of Walsh J. and is a companion case to
The Robert Simpson case. These two judgments were based
on the Federal Court Act and must be read together.
2 In the course of his judgment, Jackett P. dealt at some
length with the history of the High Court of Admiralty and
its jurisdiction. At page 384 he concluded that as the early
jurisdiction of the court extended to torts committed in an
ocean harbour (and so within the body of a county), the
Exchequer Court had jurisdiction over the supercargo. He
came to that conclusion "not without some hesitation", and
earlier in his reasons he stated at page 380:
Much has been said about the history of the High Court
of Admiralty and its jurisdiction. Most of it is controversi
al and there is little that can be said that is not debatable.
In what follows, therefore, while, for simplicity and con
ciseness, I will generally express my conclusions in
unqualified terms, it must be borne in mind that I am
aware that there is usually another view of any particular
aspect of the matter to which I refer and that I am merely
setting out, with regard to each aspect of the matter, the
view that seems to me, on the best consideration that I
can give the matter, to be the better one.
I am not questioning the correctness of the decision in the
MacMillan Bloedel Limited case: that the claim falls within
the phrase "... damage done by a ship". I do not think
however that, if a land warehouseman or stevedore commits
a tort in regard to goods which have left a vessel, the tort is
one which could have been litigated in the High Court of
Admiralty prior to the statutes passed in the reign of Rich-
ard II and Henry IV. In my view, the common law courts
alone would have had jurisdiction.
The basis of the reasoning of Rand J. in finding jurisdic
tion in The Sparrows Point case.
4 In this case, I asked counsel for Empire whether he was
going to take the point, that if the provisions of the Federal
Court Act did or were intended to assert jurisdiction, then
the relevant sections were beyond the powers of Parliament,
as encroaching on the field of property and civil rights.
Counsel said he did not intend to make the argument, but
suggested the Court could itself raise the point. In view of
the fact the position was not taken, and therefore no argu
ment pro and con was heard, I shall not express any
comment.
5 See as an illustration of this rule Samson v. M.N.R.
[1943] Ex.C.R. 17 at 23-24.
6 See Anglophoto Ltd. v. The "Ferncliff" [1972] F.C.
1337. In that case, I used the above test in regard to a claim
asserted against an American warehouseman for a tort com
mitted in the U.S. I set aside the service ex juris of the
statement of claim.
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