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T-2140-79
Dopplemayr Lifts Ltd. and Alpine-Lift A.G. and all those persons having an interest in the cargo laden on board the Vessel Alster Express (Plaintiffs)
v.
Hapag-Lloyd Aktiengesellschaft and the Owners and Charterers of the Vessel Alster Express and the Vessel Alster Express (Defendants)
and
Canadian National Railway Company (Third party)
Trial Division, Dubé J.—Montreal, February 10; Ottawa, March 11, 1982.
Maritime law — Contracts — Carriage by sea and rail — Goods loaded in container for carriage by sea, then transferred to railway for inland delivery — Cargo damaged in derailment — Rail bill of lading subject to Order No. R-13820 of Canadian Transport Commission respecting special terms and conditions for carriage of export/import containers by railways — Rail carrier's liability limited, under Order, to (I) value of contents of container at place and time of loading ($32,063.66); (2) $20,000; or (3) sum equal to liability of shipping company, under ocean bill of lading, whichever sum is the lesser — Pursuant to Hague Rules, carrier's liability limited during sea voyage to $600 per container — Issue turns on third party's liability under ocean bill of lading — Liability limited to $600, because of incorporation, by extension, of Hague Rules in bill of lading — Bill of lading stamped "House to House", and from shipper in Germany to consignee in Canada — Federal Court Rule 475.
Quebec Liquor Corporation v. The Owners and Charterers of the Vessel "Dart Europe", Federal Court, T-1465-75, judgment dated June 27, 1979, applied.
SPECIAL case for adjudication pursuant to Rule 475.
COUNSEL:
Marc Nadon for plaintiffs.
Peter W. Davidson for defendants.
Jacques Perron for third party.
SOLICITORS:
Martineau Walker, Montreal, for plaintiffs.
Brisset, Bishop, Davidson & Davis, Montreal,
for defendants.
Giard, Gagnon, Montreal, for third party.
The following is the English version of the reasons for judgment rendered by
DuBÉ J.: The parties are in agreement on the stated case and the question arising therein and submitted the matter to the Court for adjudication pursuant to the provisions of Rule 475 of the Federal Court.
It appears that in October 1977 plaintiff ("Dop- plemayr") bought from the co-plaintiff Alpine-Lift A.G. ("Alpine") of St. Margrethen, Switzerland, a mechanical chair-lift installation to be sent to Kelowna, British Columbia, by sea from Hamburg to Halifax and by rail from there to its destination. On November 14, 1977, while en route to Vancou- ver, the car carrying the container with the chair lift derailed, causing considerable damage to the container and the chair-lift.
The installation was loaded by the shipper Alpine on board the 40-foot container, and the latter taken to the port of Hamburg for shipment on the vessel Alster Express. On November 9, 1977 the container was transferred from the Hali- fax marine terminal to the third party ("CN"). CN admitted its liability for the accident and its obligation to compensate the principal defendants, subject to the terms and conditions of the contract of carriage. On the other hand, the principal defendants conceded that they should compensate the plaintiffs, but only to the extent of the third party's liability. All parties admitted that the dam ages amounted to $32,063.66.
The Hapag-Lloyd ocean bill of lading, issued in Hamburg, carries on its face the following data relevant to the matter. The cargo is described as follows: "1/40 foot Container—chair-lift installa tion dismantled". The bill of lading also bears the stamp: "House to House Traffic—Shipper's Load, Stowage and Count". The following conditions are also worth bearing in mind.
Under the heading "Definitions":
The word "goods" shall include containers and other pack ages said to contain goods and the goods themselves herein mentioned and described; the word "package" shall include containers.
In the paragraph headed "Responsibility and Jurisdiction", paragraph 2c) and subparagraphs 1), 5) and 7):
2....
c) If either the place of receipt or place of delivery or both as set forth herein are inland points (through-transportation), the responsibility of the carrier with respect to the transpor tation of the goods shall be as follows:
1) during sea-carriage according to the provisions of any legislation which incorporates the Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading dated Brussels August 1924 as set forth under a) above;
5) for inland-transportation in North America the carrier undertakes to procure as merchant's agent transportation by inland-carriers authorized by competent authority to engage in U.S. or Canadian inland-transportation and such transportations shall be subject to the inland-carriers' contracts of carriage and tariffs. The carrier guarantees the fulfilment of such inland-carriers' obligations under their contracts and tariffs.
7) If the goods have been lost or damaged during through- transportation and it cannot be established in whose cus tody the goods were when the damage or loss occured [sic], it shall be deemed to have occured [sic] during the carriage by sea and the carrier shall be responsible in the case of goods shipped to a U.S. port according to the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, and in the case of goods shipped to a Canadian port according to the Water Carriage of Goods Act of Canada, 1936.
The rail bill of lading between CN and Mon- treal Shipping Co. Ltd., the agent and representa tive of the ocean carrier, is subject to the terms and conditions of General Order T-5 of the Canadian Transport Commission, and of Order No. R-13820 respecting the special terms and conditions for the carriage of export/import con tainers by canadian railways.
The relevant provisions of the said Order R-13820 read as follows:
1. (A) The carrier (hereinafter called the "Carrier") of any container owned by other than rail or highway common carrier shall not be liable for any loss, damage or delay to any container or contents thereof except for loss or damage caused by, or resulting from negligence on the part of the Carrier, providing, however, that in no event shall the liability of the Carrier exceed the following amounts:
(ii) In respect of 40 foot containers and their contents
(aa) in respect of the container, the depreciated book value thereof, or the sum of $2,500, whichever is the lesser, and
(bb) in respect of the contents of any such contain er, (1) the value of such contents at the place and time that such contents were loaded into the container (including the freight charges if paid and the duty if paid or payable and not refunded or refundable), (2) the sum of $20,000.00, or (3) an amount equal to the liability of the steamship company pursuant to the Ocean Bill of Lading, whichever sum shall be the lesser.
The parties agreed that the liability of the ocean carrier under the Hague Convention, as applicable on departure from the German port of Hamburg in October 1977, was $600 per package or unit, and that if the loss had occurred at sea the ocean carrier's liability would have been for that amount for the entire container (including the installa tion). The parties therefore agreed that the liabili ty of CN under subparagraph 1(A)(ii)(bb) of Order R-13820 above should be the least of:
[TRANSLATION] 1) the value of the contents of the container at the place and time of loading, namely $32,063.66;
2) the sum of $20,000.00;
3) a sum equal to the liability of the shipping company, under the ocean bill of lading.
As the first two amounts are known, namely $32,063.66 and $20,000, the Court must deter mine CN's liability under the ocean bill of lading, and this is precisely the question raised by the parties following their stated case; it reads:
[TRANSLATION] QUESTION
In order to enable the parties to determine the least of the three (3) stated amounts, as the limit of the liability of the rail carrier under 1(A)(ii)(bb) of Order R-13820, what interpreta-
tion should be given to the phrase "A sum equal to the liability of the shipping company, under the ocean bill of lading"?
Thus, a double reference. While the ocean bill of lading defines liability for inland carriage as being subject to the contract of carriage and the rail tariff, the said tariff refers back to the bill of lading. References in perpetuity are repugnant to the law. The solution to the problem must there fore be sought in the bill of lading.
If the loss had taken place at sea, obviously, and as admitted by both parties, the Hague Rules would prevail. The Hague Rules, however, only apply at sea from tackle to tackle and would not normally extend their reach to inland transporta tion, unless by extension they have been incorpo rated in the bill of lading to cover the whole voyage.
The instant bill of lading, on its face, is from a shipper in Hamburg to a consignee in Vancouver, B.C. The port of loading is Hamburg and the place of delivery is Vancouver. The bill of lading is stamped "House to House". It addresses itself to the responsibility of both the sea carriage and the inland transportation. During the sea voyage, the Hague Rules limit the carrier's liability to $600 per container. As to the transportation overland, the liability is subject to contracts of carriage and tariffs. The tariffs extend to the land carrier under provision 1(A)(ii)(bb)(3), a liability equal to the liability of the steamship company pursuant to the ocean bill of lading: thus, in my view, its liability at sea of $600 per container.
Paragraph 2c)7) of the bill of lading is a further indication that the Hague Rules are not restricted to the sea voyage, but also apply where it cannot be established whether the cargo was lost at sea or on land. My conclusion, therefore, is that the Hague Rules have by extension been incorporated in the bill of lading and cover the whole voyage to its ultimate destination.
In Quebec Liquor Corporation v. The Owners and Charterers of the Vessel "Dart Europe"', I was called upon to place a construction on that same Order No. R-13820 and a similar clause in a bill of lading: I concluded that the amount equal to the liability of the steamship company pursuant to the ocean bill of lading was the per unit limitation of the Hague Rules which I deemed to have been incorporated by extension to the bill of lading so as to cover the whole voyage.
There is a presumption in law against redundan cy. If provision 1(A)(ii)(bb)(3) means an amount equal to the unlimited liability of a land carrier, as the plaintiffs allege, then it is nothing but a mere repetition of provision 1(A)(ii)(bb)(1), i.e. the full value of the loss. In other words, the liability of the steamship company pursuant to this ocean bill of lading is not equal to the unlimited liability of an overland carrier, but equal to the liability it has assumed by virtue of that document, i.e. the lim ited liability prescribed by the Hague Rules. After all, the purpose of provision (3) is to limit the liability of the land carrier, not to enlarge it.
Accordingly, in answer to the stated question, "A sum equal to the liability of the shipping company, under the ocean bill of lading" is the sum of $600. Under the circumstances, in accord ance with the written agreement between the par ties, this sum will bear interest at the rate of 12 per cent per annum from December 1, 1977, and the plaintiffs will pay the cost of the proceedings both for the principal defendant and the third party for a Class II action.
' Federal Court, T-1465-75, judgment dated June 27, 1979. The first three words of the second last paragraph of that judgment should read "The first amount" and not "The third amount".
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