T-5077-81
Carling O'Keefe Breweries of Canada Limited and
Norlab Ltd. (Plaintiffs)
v.
CN Marine Inc., The Labrador Shipping Co. Ltd.,
the vessel Newfoundland Coast and Roger Sirois
(Defendants)
INDEXED AS: CARLING O'KEEFE BREWERIES OF CANADA LTD.
v. CN MARINE INC.
Trial Division, Martin J.—Halifax, September 2,
3, 4, 5, 8 and 9; Ottawa, November 17, 1986 and
May 5, 1987.
Maritime law — Carriage of goods — Loss of cargo —
Improper stowage and inadequate securing of goods — On
facts, defendant CN "carrier" — Exclusion of liability provi
sion in bill of lading ineffective to relieve CN from liability as
null and void under Hague Rules — Liability not limited to
$500 per container as bill of lading indicating number of
packages shipped — Carriage of Goods by Water Act, R.S.C.
1970, c. C-15, Sch., Art. III(2),(3)(b),(8), IV(5) — Federal
Court Rules, C.R.C., c. 663, R. 337(2)(b).
The plaintiff's claim is for damages in respect of the loss at
sea of a cargo of beer being shipped from Newfoundland to
Labrador. The beer was packed by the plaintiff in three CN
containers (1,413 cases in each), and loaded on board a ship
chartered by defendant, CN Marine Inc. (CN), to provide its
CN Marine Coastal Service. Given CN's determination,
towards the end of the shipping season, to use every inch of
space available, it was decided, between CN and Captain
Roger Sirois, the master of the ship, that the containers should
be stowed on deck transversely, one end of the containers
protruding some two feet over the side of the vessel. The
containers were then secured with wire rope instead of other far
superior fittings then available.
During the crossing, heavy seas—not unusual for that area at
that time of year—hitting the underside of the containers
caused the wire ropes to break and the containers were lost at
sea.
CN seeks to escape liability on the grounds that it was not
the carrier but only its agent and that a clause of the bill of
lading provided that the agent "shall be under no personal
liability whatsoever". Or, failing this, CN seeks to limit its
liability to $500 per container on the basis of paragraph IV(5)
of the Hague Rules.
Held, the plaintiff's claim should be allowed in the amount of
$31,394.80.
The loss was caused by the improper stowage and inadequate
securing of the plaintiffs goods. Part of the responsibility lies
with Captain Sirois who, as master of the ship, was the
ultimate authority to determine how the cargo was to be
stowed. And since, on the facts of this case, CN was a "carrier"
under the contract of carriage, it was also, as such, along with
the actual carriers, the ship and its owners, responsible for the
stowage and securing of the goods. It cannot escape liability by
invoking the bill of lading clause excluding its liability because
such clauses are prohibited and rendered null and void by
paragraph III(8) of the Hague Rules.
CN cannot invoke paragraph IV(5) of the Hague Rules to
limit its liability at $500 per container since both the bill of
lading and its internal waybill indicated a total of 4,240
packages.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canficorp (Overseas Projects) Ltd. v. Cormorant Bulk-
Carriers Inc., judgment dated June 18, 1984, Federal
Court of Appeal, A-883-82, not reported; International
Factory Sales Service Ltd. v. The Alexandr Serafimo-
vich, [1976] 1 F.C. 35 (T.D.).
REFERRED TO:
Atlantic Traders Ltd. v. Saguenay Shipping Ltd. (1980),
38 N.S.R. (2d) 1 (N.S.S.C., T.D.); Paterson SS. Ltd. v.
Aluminum Co. of Can., [1951] S.C.R. 852; Maritime
Insurance Co. Ltd. (The) v. The Gretafield, [1973] F.C.
281 (T.D.); Aris Steamship Co. Inc. v. Associated
Metals & Minerals Corporation, [1980] 2 S.C.R. 322.
COUNSEL:
Kristine Arnet Connidis for plaintiffs.
James D. Youden for defendant CN Marine
Inc.
APPEARANCES:
Roger Sirois on his own behalf.
No one appearing on behalf of the defendants
The Labrador Shipping Co. Ltd. and the
Newfoundland Coast.
SOLICITORS:
Campbell, Godfrey & Lewtas, Toronto, for
plaintiffs.
CN Marine Law, Halifax, for defendant CN
Marine Inc.
Ryan & Ryan, North Sydney, Nova Scotia,
for defendant Roger Sirois.
With respect to representations made after the
initial reasons for judgment were filed:
COUNSEL:
D. Peter Mancini for defendant Roger Sirois.
SOLICITOR:
Nova Scotia Legal Aid, Sydney, Nova Scotia,
for defendant Roger Sirois.
The following are the reasons for judgment
rendered in English by
MARTIN J.: The plaintiff, Carling O'Keefe
Breweries of Canada Limited, claims damages of
thirty-one thousand three hundred and ninety-four
dollars and eighty cents ($31,394.80) against the
defendants as a result of the loss at sea of a cargo
of beer from the deck of the defendant ship New-
foundland Coast on November 15, 1980.
The plaintiff's action against the ship, its owner
the Labrador Shipping Co. Ltd., and its master
Roger Sirois is somewhat academic. The ship has
since been lost at sea, the owner company is
apparently without assets and Captain Sirois is in
no financial position to pay any judgment which
might be obtained against him.
Counsel for the plaintiff indicated that even if a
judgment was obtained against Captain Sirois
there would be no attempt made to recover. Practi
cally speaking, then, the plaintiff's only hope is to
obtain a judgment against the defendant CN
Marine Inc., the charterer of the ship.
CN Marine Inc., under contract with the federal
government, provides a passenger and freight ser
vice to the coasts of Newfoundland and Labrador.
This service is distinct from the service which links
Newfoundland to the mainland and is called the
CN Marine Coastal Service. The service is pro
vided by means of vessels which are either owned
by CN or chartered by it.
One of the routes on the coastal service is the St.
John's to Goose Bay run, a distance of some 650
miles. Because of ice conditions this run operates
only from June to about mid-November. In
November of 1980 it was served by the New-
foundland Coast and the Sir Robert Bond which
had been taken off another run to assist the New-
foundland Coast with the backlog of freight which
had built up, as is the custom, towards the end of
the shipping season. The Sir Robert Bond is a
CN-owned vessel and the Newfoundland Coast
was a time-chartered vessel.
In October 1980 the plaintiff notified CN that it
would be shipping some beer to Goose Bay. Frank
Walsh, the plaintiff's warehouse supervisor,
arranged the pickup of three 20 foot standard CN
containers from CN and had them packed, or
stuffed, with the beer at the plaintiff's premises.
On October 29, 1980 the three containers were
delivered to CN for carriage by sea to Goose Bay.
CN had provided the plaintiff with a supply of
CN bills of lading. Walsh completed a portion of
it, indicating the number of packages and the
weight and brought it to CN. There one of its
employees date stamped it, wrote in the freight
charges and signed it on behalf of CN's terminal
supervisor, David Mercer. Although there was a
space on the bill of lading to designate the name of
the vessel which would carry the freight it was not
filled in.
On the same day, October 29, 1980, CN pre
pared waybills for each container setting out the
freight charges, the fact that each container con
tained 1,413 cases of beer and that the containers
would be shipped on the Sir Robert Bond which
was due to depart that same day.
In fact the cargo was not shipped on that vessel
but instead was loaded on the defendant vessel on
November 15, 1980.
Walsh was not told what vessel would take the
cargo nor did he enquire. Captain William Emble-
ton, CN's coastal service operations manager, said
it was not CN's practice to give shippers the name
of the vessel taking the cargo unless there was a
specific request for the information. He also said
that CN did not inform the plaintiff and does not
inform shippers generally that their cargo will be
going on chartered as opposed to CN vessels.
The Newfoundland Coast was chartered for the
carriage of freight only. It was built in 1934 and,
although showing its age, it was without doubt fit
for service. It had a length of 230 feet, a beam of
approximately 35 feet and a weight of 888 gross
tons. As it was on a time charter the owner
supplied the crew. CN supplied a purser to attend
to the paper work relating to the freight.
As the Labrador shipping season was nearing its
end, there was a great deal of freight to be carried.
Not only was freight carried in the defendant
vessel's holds but she also carried standard 20-foot
containers on her decks even though she was not
specially fitted out to carry them. The containers
holding the plaintiffs cargo were carried on deck.
Although the master has the last word on where
the cargo will be placed on his vessel and how
much he will take, in practice, Captain Sirois
worked in conjunction with CN staff in planning
the amount and placement of the cargo on his
vessel. CN would, for example, designate which of
several containers it might want stowed below
deck. CN would determine how much freight the
vessel would take and Sirois would supervise its
loading by stevedores under contract with CN.
Between Sirois and CN it was decided that the
20-foot containers should be stowed athwartships
or transversely rather than longitudinally or fore
and aft. In fact, as CN was determined, towards
the end of the shipping season, to use every inch of
space available on the defendant ship, the master
had no alternative but to stow it that way.
Captain Embleton, who was an impressive and
knowledgeable witness, agreed it was well known
in the industry that it would be preferable to stow
the containers fore and aft but that they were
stowed athwartships so that more freight could be
carried. He said:
There is no doubt in anybody's mind that the best stowage
for a container is fore and aft. There's no doubt in that.
and later:
I would agree it is ideal, but you have to understand that you
have to make provisions to move all the freight that you're
given, and you have to utilize every inch of space that you have
available on the vessel.
The transverse stowage, admittedly more at risk
than the fore and aft stowage, created an addition
al risk in the case of the containers on the defend
ant vessel. The containers so stowed were stowed
on both the port and starboard side, end to end so
that, being 20 feet long each they occupied a total
length of 40 feet across the beam of the vessel. In
the result the ends of each container so stowed
protruded over the side of the vessel a distance of
approximately two feet.
Captain Embleton agreed that stowage in this
manner created a further risk in addition to trans
verse stowage but explained why that risk was
taken as follows:
It is more exposed to the elements, I will agree. But, as I
said, we had to utilize every inch of space that was possible in
order to get the supplies to the people in Labrador and that was
the reason why we did it. The ship had done this without any
problems whatsoever, and there was no reason to believe that it
was going to change. [The underlining is mine.]
Captain Embleton also described the "proper
fittings" for securing containers as being far supe
rior to the wire rope used to secure the containers
on the defendant ship. He also said that in his view
wires were still an efficient way of securing the
containers. It is significant that the proper fittings
were available in 1980, that under the terms of the
charter party it was CN's obligation to supply
cargo lashings, that CN supplied wire rope, and
that the CN supplied lashings broke.
It is also significant to note that the containers
were packed and stuffed by Carling and delivered
sealed to CN which then had them placed, still
sealed, on the defendant vessel without taking any
steps to ensure that the containers were properly
packed and the contents secured against movement
within the container. With the severe motions of
the ship which could be anticipated in the regular
November storms along the course from St. John's
to Goose Bay, loose cargo in a container, particu
larly one being carried athwartships, would not
only put the cargo and container at risk but also
the vessel.
There was a total of 12 containers loaded on the
ship's deck. The three containers with the plain
tiff's cargo were placed on the starboard side of
the ship with their inboard ends on the middle of
the top of the aft hatch. Their outboard ends
rested on the ship's rail and protruded about two
feet over the side of the vessel at a height of about
12 feet above the mean water line. There were
three other containers similarly placed on top of
the same hatch but on the port side.
The containers were loaded on board the ship by
stevedores under contract with CN. Although the
contract required the stevedoreing firm to secure
the cargo it was the practice in the port of St.
John's that the ship's crew did this under the
direction of the master. The containers were
secured by the crew of the Newfoundland Coast
with wire rope lashings supplied by CN. A great
deal of evidence was given with respect to the
precise method of securing the containers. It is
sufficient to note only that they were secured to
the master's satisfaction and in the manner which
throughout the season had proved satisfactory.
The ship departed St. John's at 3:00 a.m. for her
intended voyage to Goose Bay. The 3:00 a.m.
marine forecast for the marine area of the ship's
intended course was for northwesterly winds of
20-30 knots, a few showers, flurries and fog pat
ches. The master claims, that by 10:00 a.m. gale
warnings were issued by the Coast Guard radio
stations, the winds had picked up to 50 km per
hour and the barometer was falling rapidly. In fact
no gale warnings were issued for that area but
instead were issued for the west coast of New-
foundland. In any event Captain Sirois decided
that under the circumstances he would change his
course and seek shelter in East Port. His vessel was
about a mile and a half off Cape Bonavista when
the containers were lost. The master described the
actual loss in his sworn note of protest dated
November 23, 1980 as follows:
At 11:15 passing one and a half mile North of Cape Bonavis-
ta, there was heavey ground swell and tide rips. The confused
seas hit under the containers on the port side and broke the
wire lashings. With the roll of the ship, 3 containers slipped
over the side and floated away.
The reference to the port side is in error. The
containers lost were the three containers holding
the plaintiff's cargo which were stowed on the
starboard side.
For some period prior to the loss of the contain
ers the winds and waves had been directly on the
starboard side of the vessel and, with the conse
quent rolling of the ship, the waves were running
up the side and hitting the protruding bottoms of
the containers containing the plaintiff's cargo. At
the time of the loss, according to the master, the
waves were 15 to 18 feet high and breaking, the
seas were confused on account of tide rips and
shallow water in the Cape Bonavista area.
These conditions were not unusual for Captain
Sirois or for that area at that time of year. Indeed
on that voyage the ship had to take shelter on
three occasions due to weather conditions. In fact
the conditions at the time of the loss were precisely
what would be anticipated. Captain Sirois himself
said they were bad but that he had experienced
similar conditions on, he estimated, ten other
occasions.
The master attributed the loss to the heavy seas
hitting the underside of the containers and, he
speculated, to the possibility that, in combination
with the heavy seas causing the containers to lift
up, there might have been a cutting edge on one of
the containers which cut the wire rope.
Given the wind speed and consequent speed of
the waves combined with the rolling of the vessel
and the protruding containers I have no hesitation
in finding that the loss was brought about by the
fact that the containers were stowed so that their
ends protruded over the side of the vessel. By being
stowed in that way they formed a trap against
which the full force of onrushing waves, of even
moderate height, would rush up the sides of the
vessel and exert enormous upward pressure on the
bottoms of the containers. That at any given time
the force of the waves could be increased signifi
cantly as a result of breaking waves and by the
downward rolling motion of the ship only serves to
reinforce my view that the loss was the direct
result of the improper stowage of the containers.
CN seeks to escape liability on the grounds that
it was not the carrier but only the agent of the
carrier and points to the protection afforded it by
reason of the clause 18 in the bill of lading, the
demise clause, which provides that:
18. If the ship is not owned by or chartered by demise to the
ocean carrier by which the goods are intended to be carried
hereunder (as may be the case notwithstanding anything that
appears to the contrary), this bill of lading shall take effect only
as a contract with the owner or demise charterer, as the case
may be, as principal, made through the agency of Canadian
National Railways or the said ocean carrier which in either
case acts as agent only and which shall be under no personal
liability whatsoever in respect thereof.
Counsel for CN relies on Atlantic Traders Ltd.
v. Saguenay Shipping Ltd. (1980), 38 N.S.R. (2d)
1 (N.S.S.C., T.D.); Paterson SS. Ltd. v. Alumi
num Co. of Can., [1951] S.C.R. 852 and Maritime
Insurance Co. Ltd. (The) v. The Gretafield, [1973]
F.C. 281 (T.D.), Canadian decisions, in which the
respective courts gave effect to the demise clause
according to its terms.
Counsel for the plaintiff cited those cases as well
as a number of others and urged me to find that
CN was the carrier and thus not entitled, accord
ing to rule 8 of Article III of the Hague Rules
scheduled to the Carriage of Goods by Water Act,
R.S.C. 1970, c. C-15, to so limit its liability.
I have reviewed all of the cases cited by counsel
and I am satisfied that the present state of the law
is accurately set out in Canficorp (Overseas
Projects) Ltd. v. Cormorant Bulk-Carriers Inc.,
F.C.A. number A-883-82 by Mr. Justice Stone in
his June 18, 1984 decision. He referred to the
Supreme Court of Canada decisions in Paterson
SS. Ltd. v. Aluminum Co. of Can. (supra) and
Anis Steamship Co. Inc. v. Associated Metals &
Minerals Corporation, [1980] 2 S.C.R. 322 in
which decisions the Supreme Court held that the
contract of carriage was made between the shipper
and the shipowners who, as carriers, were liable
for cargo damage.
Mr. Justice Stone then went on to describe the
effect of those decisions in the following terms at
page 18:
Where the evidence clearly establishes that a contract of
carriage was made with shipowners, the responsibilities as
"carrier" for loss or damage to cargo falls upon the shipowners.
That, it seems to me, is the effect of the two cases relied upon
by the appellant. Where, as here, the evidence as a whole
established to the satisfaction of the Trial Judge that another
person, the respondent, "undertook to carry the goods" that
person is "carrier" under the contract of carriage. That is so, in
my view, though there be some evidence to the contrary, for
example, the language of the supersession clause in the booking
note and of Clause 17 of the bill of lading. The learned Trial
Judge found upon the evidence as a whole that the respondent
became "carrier" of the goods. I think his conclusion is amply
supported by the evidence. Whether the shipowners might also
be regarded as a "carrier" upon the principle of the cases
referred to above does not arise for decision in this case.
I have concluded that CN undertook to carry
the plaintiffs cargo and that CN is a "carrier"
under the contract of carriage. I have reached that
conclusion on the basis of the following facts:
1. The plaintiff dealt exclusively with CN. It was
provided with CN containers for its cargo, it
delivered the containers to the CN premises, it
was provided with CN bills of lading. The plain
tiff did not know the owner of the ship, the
master, or the ship in the transaction nor was
the plaintiff informed by CN that the cargo
would be sent on a time-chartered ship. The
only indication the plaintiff did have of the
vessel upon which its cargo had been shipped
was on the copy of the waybill which indicated
that it had been shipped on the CN-owned Sir
Robert Bond.
2. According to the terms of the written Time
Charter Party made between the owners of the
ship and CN on May 23, 1980 "Bills of Lading
shall be signed by the Master or the Purser"
(underlining added). Captain Sirois did not sign
the bill of lading. He said he had nothing to do
with it. Neither did the purser sign the bill of
lading even though CN had appointed a purser
for the defendant ship who, according to the
charter party, was deemed to be the agent of the
master for the purposes of signing all shipping
documents.
3. The bill of lading, on the contrary, was signed
by CN's terminal supervisor, or more accurate
ly, by his secretary on his behalf.
4. The bill of lading was a CN bill of lading filled
out and signed precisely in the same manner as
if the cargo were going to be taken on a
CN-owned ship. No where was it indicated on
the bill of lading that the CN employee who
signed it signed it on behalf of the master or the
owners of the ship but only on behalf of CN.
Under the place for signature the following is
printed:
Agent on behalf of the carriers severally and not jointly.
Immediately above the place for signature the
following is printed:
IN WITNESS WHEREOF, the Agent has signed this bill of
lading on behalf of the Canadian National Railway Com
pany and its connecting railway and steamship lines, several
ly and not jointly.
It seems to me that a fair reading of that portion
of the bill of lading alone would lead a shipper
to conclude that CN was holding itself out to be
the carrier and that the contract of carriage was
intended to be between the shipper and CN.
Furthermore clause 2 of part A of the bill of
lading conditions dealing with water carriage
specifically provides that the word "carrier" in
the bill of lading includes the time charterer.
Counsel for CN said this provision was included
in the bill of lading as a result of American
legislation. That may well be so but it is never
theless, to me at least, further evidence that even
if CN was a time charterer, it was holding itself
out to be the carrier, and that the contract of
carriage was, in such an event, to be between the
shipper and CN.
5. CN seeks to represent itself only as an agent
whose duty it was to find space for the plaintiff's
cargo on a vessel. That being so CN presumably
would be entitled to an agent's fee. In fact CN
billed and collected from the plaintiff freight
charges for its own account and not for the
account of the ship or its owners.
6. CN acted in part as carrier in the loading and
stowing of the cargo. It supplied the lashings for
the containers. It decided how much freight the
vessel would take. The master merely
acquiesced. It was CN's decision to use every
inch of available space on the ship including its
deck space. It was CN's decision to have the
vessel take the number of containers which it
did. The inevitable consequence of that decision
was that they would have to be stowed athwart-
ships, with their ends protruding over the side of
the vessel. It was CN's decision that the con
tainers, so stowed, be secured by wire rope
instead of by "proper fittings".
It is true that CN was under pressure to have
the cargo delivered before the close of the
Labrador shipping season but it is also true that
CN had a financial interest in loading additional
freight because it and not the owners were being
paid for that freight. CN was aware that there
was an increased risk to the cargo in stowing it
in the only way it could be stowed if every inch
of space on the ship was to be utilized, but it
elected to take that risk.
In my view everything in the relationship be
tween the plaintiff and CN points to a contract of
carriage between the plaintiff and CN with the
exception only of clause 18 of the bill of lading.
Having found that CN entered into a contract
of carriage with the plaintiff within the meaning of
the Rules it is deemed to be a carrier and subject
to the responsibilities and limitations set out in the
Rules.
Rule 2 of Article III provides that subject to
Article IV:
Article III
2.:.. the carrier shall properly and carefully load, handle,
stow, carry, keep, care for and discharge the goods carried.
Article IV sets out a number of exceptions under
which neither the carrier nor the ship will be
responsible for loss or damage. The loss was
caused, however, not by any of the exceptions set
out in Article IV but by reason of its being
improperly stowed and inadequately secured.
The demise clause, clause 18 of the bill of
lading, is pleaded in order to relieve CN from
liability for the loss resulting from CN's breach of
a carrier's obligation to properly stow the plain
tiff's cargo. However rule 8 of Artice III prohibits
such limiting clauses and provides that they are
null and void and of no effect.
Accordingly in the circumstances of this case I
find that clause 18 of the bill of lading is not
effective to relieve CN from liability for the dam
ages sustained by the plaintiff as the demise
clause, which seeks to accomplish that effect, is
null and void.
CN however is not the only carrier in this
matter. I find that the actual carrier in fact, the
ship and its owners, are also carriers within the
meaning of the Rules and, along with CN, share
the same obligations imposed on a carrier under
the provisions of rule 2 of Article III.
CN argues that even if it is found to be liable
for the loss sustained by the plaintiff, damages
should be limited to five hundred dollars ($500)
per container on the basis of rule 5 of Article IV
which provides, in part, as follows:
Article IV
5. Neither the carrier nor the ship shall in any event be or
become liable for any loss or damage to or in connection with
goods in an amount exceeding five hundred dollars per package
or unit, or the equivalent of that sum in other currency, unless
the nature and value of such goods have been declared by the
shipper before shipment and inserted in the bill of lading.
CN submits that each container is a unit and
that the total damage must therefore be limited to
one thousand five hundred dollars ($1,500).
Counsel for the plaintiff, on the other hand,
argues that each case of beer is a package and that
the damages should be fixed at the actual value of
the goods lost, that is to say approximately seven
dollars and fifty cents ($7.50) per case or package.
Counsel have cited a number of cases in support
of their respective positions. In International Fac
tory Sales Service Ltd. v. The Alexandr
Serafimovich, [1976] 1 F.C. 35 (T.D.) Mr. Justice
Smith reviewed the authorities and concluded at
page 49:
From all the cases referred to supra it is clear that the
decision whether a large container, a pallet, or a smaller,
wrapped parcel in or on a container or pallet, is a "package"
within the meaning of Rule 5 of Article IV depends on the facts
and circumstances of each case. In particular it depends upon
the intention of the parties as indicated by what is stated in the
shipping documents, things said by the parties and the course of
dealing between them.
The shipping documents in this matter are the
bill of lading and the waybills for each container.
The bill of lading, in the column indicating the
number of packages, specifically sets out that
there are a total of four thousand two hundred and
forty (4,240) packages.
The waybills for each container refer to the
container number and then that notation on each
waybill is followed by the following notation:
Containing 1,413 c/s beer
or
Cont. 1,413 c/s beer.
Under rule 3(b) of Article III of the Rules, if a
bill of lading is issued by the carrier it shall show
either the number of packages or pieces or the
quantity or weight as the case may be as furnished
by the shipper.
Here both the bill of lading and the waybill
showed the number of cases of beer or packages
accepted by CN. In addition to this evidence there
was also the evidence of the course of dealings
between the parties. The plaintiff had previously
placed many such shipments with CN. It is
common knowledge that beer is shipped in cases.
There is no doubt in my mind that CN was fully
aware, notwithstanding the fact that the containers
were delivered to it in a sealed condition, that it
had received approximately 4,000 cases of beer for
shipment to Goose Bay.
I see no merit in CN's argument that the
number of containers and not the number of pack
ages shown on the bill of lading and on its internal
waybill should determine and limit the extent of
CN's liability to $1,500. Accordingly, I will allow
the plaintiff's claim for damages against the
defendants CN, the ship and the owner for thirty-
one thousand three hundred and ninety-four dol
lars and eighty cents ($31,394.80) which is the
amount agreed upon by counsel for the plaintiff
and CN as the correct amount of damages.
The plaintiff asks for pre-judgment interest on
its claim from October 29, 1980 and post-judg
ment interest at the average prime rate. Counsel
for CN submits that in view of the long period
taken to bring the matter on for trial there should
be no pre-judgment interest allowed or in the
alternative, if it is to be allowed, that it should be
only for a limited period and at a nominal rate of 5
or 6 percent.
I agree with CN's submission that there was a
delay in bringing the matter on for trial but do not
intend to assess blame on one side or the other for
that delay. If counsel for the plaintiff was deter
mined to have an early trial I would expect that
two years should be an adequate period of time to
bring the matter on.
Accordingly, the plaintiff will be awarded pre
judgment interest at ten (10) percent for a period
of two (2) years and post-judgment interest at the
prime commercial rate from time to time prevail
ing from the date of judgment until payment.
The plaintiff is given leave to move for judgment
against the defendants CN, the ship and its owner
for damages of thirty-one thousand three hundred
and ninety-four dollars and eighty cents
($31,394.80), interest and costs, pursuant to para
graph 2(b) of Rule 337 of the Federal Court Rules
[C.R.C., c. 663].
As already mentioned counsel for the plaintiff
indicated that her client had little interest in pur
suing the action against the defendant Roger
Sirois who appeared on his own behalf at the trial.
To the best of my recollection she presented no
argument or submission that judgment should go
against him personally and the master, who was as
unfamiliar with the law as he was familiar with
the sea, was in no position to make any representa
tions on his own behalf.
Under the circumstances, I will make no finding
with respect to liability, if any, on the part of the
master but instead will give leave to any party,
including the master, to make representations in
that respect within a period of thirty (30) days
following the entry of a formal judgment. If no
representations are made within that period then
the claim against the master will be dismissed.
* * *
ADDENDUM TO REASONS FOR JUDGMENT
In the November 17, 1986 reasons for judgment
filed in this matter I made no finding with respect
to the liability of the defendant Roger Sirois, the
master of the Newfoundland Coast, but provided
that within a period of thirty (30) days following
the entry of a formal judgment any party to the
action would have leave to make representations.
Within the time limited, and extended to coun
sel representing the master, representations were
made. The last, on behalf of the master, was filed
with the Court on April 10, 1987.
Captain Sirois as master of the ship was the
ultimate authority to determine how the cargo to
be carried was stowed. Although he was pressured
by CN Marine Inc. to stow the containers in a
manner that both he and CN knew, or ought to
have known, would place them unnecessarily at
risk in the sea conditions which both he and CN
could reasonably anticipate at that time of year, he
elected to accommodate CN which had decided to
utilize every inch of space available on the ship.
The master must accept, jointly with CN, the
responsibility for this failure to properly stow the
containers. He had the authority to refuse to carry
the containers in the manner in which CN had, in
effect, directed and which unnecessarily exposed
them to risk. He also had a duty to exercise that
authority which he failed to do, as a result of
which failure the containers were improperly
stowed and swept off the ship by the force of the
waves.
Accordingly, in addition to the parties against
whom leave was given to the plaintiff to enter
judgment, leave is also given to the plaintiff to
enter judgment against the defendant Roger Sirois
for damages of thirty-one thousand three hundred
and ninety-four dollars and eighty cents
($31,394.80), interest and costs pursuant to para
graph 2(b) of Rule 337 of the Federal Court
Rules.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.