Doman Forest Products Ltd. v. Arctic Hooper (Ship), 2003 FCT 712

                                                    ADMIRALTY ACTION IN REM

Date: 20030613

Docket: T-1949-99

Citation: 2003 FCT 712

Ottawa, Ontario, this 13th day of June, 2003

BEFORE:        The Honourable Madam Justice Heneghan

BETWEEN:

                                                SEA-LINK MARINE SERVICES LTD.

                                                 UNION TUG AND BARGE LTD. and

                                       The owners and all others interested in the ships

                                       "ARCTIC HOOPER" & "SEA-LINK YARDER"

                                                                                                                          Plaintiffs by Counterclaim

                                                                                 and

                                             DOMAN FOREST PRODUCTS LIMITED

                                                                                                                     Defendant by Counterclaim

                                               REASONS FOR ORDER AND ORDER

HENEGHAN J.

INTRODUCTION

[1]                 In the early hours of November 14, 1998, the tug "ARCTIC HOOPER", together with the barge "SEA-LINK YARDER", departed Tahsis, British Columbia, enroute for Nanaimo. The barge was laden with approximately 1.9 million foot board measure ("FBM") of lumber in 1441 packages. Between 0200 and 0315 hours on November 15, 1998, the cargo shifted. A quantity of cargo was lost and damaged and damage resulted to the barge. This action relates only to the damage to the barge, that is, the counterclaim. A notice of discontinuance was filed on November 28, 2002, relative to the main action commenced by Doman.

FACTS

i) The Parties

[2]                 Sea-Link Marine Services Ltd. ("Sea-Link"), the Plaintiff by counterclaim, is a corporation carrying on business at New Westminster, British Columbia. At all material times, it was the owner and operator of the barge "SEA-LINK YARDER" and the charterer of the tug "ARCTIC HOOPER".

[3]                 The Plaintiff by counterclaim Union Tug and Barge Ltd. ("Union") is a corporation carrying on business at New Westminster, British Columbia and at all material times, was the owner of the "ARCTIC HOOPER".

[4]                 The "SEA-LINK YARDER" is a barge of 285.29 feet in length and 2390.099 gross tons. It is registered under the Canada Shipping Act, R.S.C. 1985, c. S-9, at the Port of Vancouver, official number 189999.

[5]                 The "ARCTIC HOOPER" is a tug of 102.1 feet in length and 394.489 gross tons. It is registered under the Canada Shipping Act, at the Port of Edmonton, official number 368382.

[6]                 The Defendant by counterclaim, Doman Forest Products Limited ("Doman") is a corporation carrying on business as a manufacturer and vendor of lumber products. Through an associated company it owns a lumber mill at Tahsis, British Columbia.

ii) Background

[7]                 In the summer and early fall of 1998, Doman and Sea-Link entered into discussions about the transportation of lumber products by Sea-Link from Tahsis to Nanaimo. These discussions resulted in an agreement between the parties, as set out in a facsimile letter dated October 29, 1998 from Sea-Link to Doman. Pursuant to that agreement, the first load carried by Sea-Link was loaded on board the barge "SEA-LINK YARDER" on November 5 and 6, 1998. That cargo was discharged at Tahsis on November 8 and 9, 1998, without incident. This first load consisted of 1.78 million FBM of lumber in 1440 packages.

[8]                 The second cargo, consisting of 1.9 million FBM in 1441 packages, was loaded at Tahsis on November 12 and 13, 1998. The cargo consisted of green hemlock and douglas fir. The tug and tow departed Tahsis at 0022 hours on the morning of November 14, 1998.

[9]                 The cargo shifted some time between 0200 and 0315 hours on November 15, 1998, and the barge was damaged. Following the cargo shift, the tug and tow put into Port Renfrew where the tipping tanks of the barge were flooded to correct the starboard list. The tug and tow then proceeded to Nanaimo, arriving at 0853 hours on November 16, 1998. A survey conducted after arrival found that approximately 130 packages of lumber had been lost.

[10]            The parties have agreed on the damages claimed by Sea-Link in the following amounts, in Canadian dollars:

a)          Employee expenses                                 $     5,809.87

b)         Materials and rentals                                    17,840.20

c)         Repairs                                        101,014.66

d)         Survey fees                                                     8,076.50

TOTAL                                                    $132,741.23

The parties have also agreed that pre-judgment interest should accrue at 4% per annum.

[11]            The parties have not agreed on the claim in the amount of $16,000.00 for loss of use of the barge while it was undergoing repairs.

iii) The Witnesses

[12]            Sea-Link called Captain Kenneth Hemeon, Master of the tug, Mr. Peter Brown, a principal in the Sea-Link Group of Companies that includes both Sea-Link Marine Services Ltd. and Union Tug and Barge and Mr. Paul Hilder, Operations Manager for Sea-Link. As well, Sea-Link adopted as part of its evidence, pursuant to the Federal Court Rules, 1998, SOR/98-106, certain questions and answers from the evidence of Mr. Chris Calverley and Mr. Orval Forgaard given at discovery examinations conducted on September 29, 2001 and June 27, 2001, respectively. Mr. Michael Fothergill, a Master Mariner and Mr. Jim Lindsay, Marine Surveyor, were called to provide expert opinion evidence as to the cause of the cargo loss and barge damage.

[13]            Doman, the Defendant by Counterclaim, adduced evidence from its employees Mr. Chris Calverley, Lumber and Shipping Coordinator and Mr. Orval Forgaard, Yard Foreman and Shiploading Supervisor, as well as expert opinion evidence from Captain Geoffrey Vale.

iv) The Evidence

[14]            Mr. Brown testified about the different tugs owned and operated by the Sea-Link Group of companies. The "SEA-LINK YARDER" was originally built as a self-unloading log barge. It was purchased by Sea-Link in 1992 and used for several years as a log barge. In late 1996, early 1997, he decided to use it as a general cargo barge and modifications were made.

[15]            Sidewalls were added in late 1997. These walls were heavy steel girders with very heavy flanges. These were well suited for the installation of pad eyes, made of steel, that were the lashing points. As well, the deck was paved with asphalt; that work was done in August-September 1998.

[16]            Mr. Brown testified that he did not receive any information about the stability of the barge when it was purchased. He expressed unperturbed about that, saying that frequently the stability booklets would be lost over the years, when barges changed hands. He did not engage a naval architect to perform stability testing after the barge was modified by the addition of the sidewalls and asphalt paving. He was satisfied that the barge was sufficiently stable and pointed out that it did not tip over during the trip in issue over the period of November 14 and 15, 1998.

[17]            The "SEA-LINK YARDER" was originally built as a log barge and was converted, by Sea-Link, to a multi-purpose barge with sidewalls and an asphalt covered deck. Mr. Brown testified generally about the different kinds of tugs owned and operated by the Sea-Link Group of Companies, as well as his own experience and background in the marine industry. He gave evidence about the "SEA-LINK YARDER" and the modifications that were made to this barge. The sidewalls were installed and finished in late 1997. The deck was paved in August - September 1998. The walls were very heavy steel girders with heavy flanges, wider than usual. They were well-suited for the installation of the pad-eyes that were made of steel.

[18]            Mr. Brown also gave evidence about the background to the agreement that was reached with Doman. By August 1998, Mr. Brown had met Mr. Chris Calverley of Doman who was looking into the possibility of changing its towing services for the carriage of lumber products, specifically hemlock and douglas fir. Mr. Calverley was aware of the capacity of the "SEA-LINK YARDER" and knew that it would "pull" 4600 to 4700 metric tons a range of 1.8 to 2 million board feet.

[19]            Mr. Brown said that the terms discussed required the towing company to provide lashing chains, according to Doman's specifications, within its rate. According to him, Doman wanted to operate in the same way it had with previous towing companies, that is with Doman looking after the loading and lashing of the cargo. Sea-Link was to provide the lashings according to Doman's specification and the lashings would be included in the rate but Sea-Link would not install the lashings.

[20]            Ultimately, there was an agreement reached between the parties and reduced to writing in a letter dated October 29, 1998, a copy of which is found at Exhibit 2. Mr. Brown signed that letter. This agreement provided, in part, the following:

Cargo                         -                 minimum 2.0 million fbm- lumber

Rate                           -                 Cdn $18.00 per mfbm

Rate includes            -                 lashing gear

-                 36 hr load time- over 36 hr- $175hr demurrage

-                 36 hr unload time- over 36 hr- $25/hr demurrage (barge only)

Rate does not include

-                 loading

-                 unloading

-                 lashing or unlashing

[21]            Mr. Brown testified that the letter was sent by facsimile to Doman. He understood that initially, only one page of the letter was sent. He later wondered, when he was away from the office and possibly attending a conference in South Africa, if the company's usual terms and conditions had been sent. Upon inquiry, he was told that they had not been sent, so he requested his office staff to retransmit the letter agreement, together with the terms and conditions. That was done but Mr. Brown did not say when. No evidence was produced either by way of a facsimile transmission report or a telephone bill, to show that the second page was sent. Mr. Calverley could not recall whether he, personally, had received page two of the letter dated October 29, 1998, containing certain terms and conditions of carriage, sent by Sea-Link.

[22]            Mr. Hilder, the Operations Manager with Sea-Link, who was involved with the Doman contract after it was negotiated, testified that his role was to find out what lashings would be required by Doman. He testified that Mr. Brown told him to contact Chris Calverley at Doman. He did so and said that Mr. Calverley discussed scheduling and matters such as the arrival of the barge. According to Mr. Hilder, Mr. Calverley was not familiar with the operational matters in Tahsis and referred Mr. Hilder to Mr. Forgaard, the loading supervisor for Doman, in Tahsis.

[23]            Mr. Hilder contacted Mr. Forgaard who inquired what kind of barge would be sent out. Mr. Hilder sent Mr. Forgaard, by facsimile, an outline of the barge together with its dimensions. Mr. Forgaard for Doman, then sent the specifications for the chains that would be required by facsimile, dated October 29, 1998. Mr. Forgaard admitted to having received the dimensions of the barge when he placed this order for the lashings.

[24]            Mr. Hilder said that he had never been involved with the loading of lumber before this contract with Doman. He relied on Mr. Forgaard to advise what would be required for lashings. He did not seek advice from anyone concerning loading or the configuration of the chains. However, Mr. Hilder advised Mr. Forgaard that the lashing points were at 10- foot intervals and explained that the "make up" on the sidewalls was for lashing.

[25]            Mr. Hilder said that he had many conversations with Mr. Forgaard. Mr. Forgaard provided him with a list of the required lashings and Mr. Hilder sent the specifications out to two main supply companies for quotations. Ultimately, Sea-Link rented the lashing chains from Obert Marine Supply. Sea-Link purchased corner caps to be placed on the chains to avoid damage to the cargo.

[26]            Mr. Hilder also testified about the ability to add extra pad-eyes, at lashing points, if they were required. It was a fairly simple matter to weld more pad-eyes, made of steel, to the tops of the sidewalls. Mr. Hilder said that the lashing gear was put on the barge and sent to Tahsis. At no time did Mr. Forgaard express dissatisfaction with the lashing gear or the pad-eyes. He had ordered what Mr. Forgaard requested. He did not provide any information about loading this barge and he did not receive any information, including a stow plan, from Mr. Forgaard.

[27]            Mr. Chris Calverley, Lumber and Shipping Coordinator for Doman, testified on behalf of Doman. His duties include negotiating contracts for coastal barging and the timely production of cargo for transportation to a location for distribution to Doman's customers.

[28]            Mr. Calverley's evidence mainly dealt with carrying out the contract, although he was not involved with the actual loading or any other operational aspects. It is clear from his evidence that negotiating the terms of the agreement followed an initial inquiry from Mr. Jim Lane, a former tug-master who was employed with Sea-Link both as a tug-master and when necessary, a liaison person to seek new business. Mr. Lane was looking for business and Mr. Calverley invited him to submit a quote. A proposal was sent by facsimile on August 20, 1998.

[29]            According to Mr. Calverley, Doman wanted to move approximately 2 million feet of board lumber at a time, to maximize loading time. That was the target in negotiating the contract with Sea-Link. A rate of $18 per thousand fbm was ultimately agreed and that rate was to include the cost of lashing materials. According to the proposal of August 20, 1998, this rate was to exclude loading, unloading, lashing and unlashing. Mr. Calverley testified that employees of Doman would load and unload the barges; this was the practice in relation to other barges hired by Doman. The same applied to lashing and unlashing. That work was done by Doman employees or in the case of Nanaimo, by longshoremen who would ultimately send a bill to Doman.

[30]            Mr. Calverley was not provided with any particular information about the "SEA-LINK YARDER". His knowledge about the barge was based on its description in the proposal sent by Sea-Link on August 20, 1998. He was familiar with Jim Lane and knew that he had many years' experience in the transportation of lumber. The issue of Sea-Link's experience in that business did not arise for Mr. Calverley. As far as he knew, no one from Doman inspected the "SEA-LINK YARDER" prior to the first shipment and there were no discussions about the suitability of the barge to perform the required services. Mr. Calverley was involved in the contractual arrangements for the voyage and not with the physical aspects of ensuring the loading and lashing of the cargo.

[31]            Mr. Calverley was questioned about a meeting with Mr. Brown in August 1998 and his telephone conversations with Mr. Hilder and Mr. Forgaard, about the contemplated voyages. However, he had a hazy recollection of the meeting and the conversations. He was able to say that he would have spoken with Mr. Forgaard and that he would have suggested that Mr. Forgaard speak with someone at Sea-Link. He said that he would have provided Mr. Forgaard with the dimensions of the barge. He testified that he may have asked Mr. Forgaard to provide Sea-Link with the cargo line-up at the same time. He said that the cargo line-up may not have been established prior to the departure of the barge. He said that a preliminary cargo line-up would be prepared by the main office in Vancouver and that would be used by the people planning the stow to reach a final line-up.

[32]            Although Mr. Calverley had been employed with Doman as the Lumber and Shipping Coordinator since 1993 and dealt with Mr. Forgaard from that time up to the incident in November 1998, he did not meet Mr. Forgaard until the time of the trial. He had no personal knowledge of Mr. Forgaard's background or experience.

[33]            Doman also called Mr. Orval Forgaard, a yard foreman and shiploading supervisor of Doman. He has been employed in those positions since 1997, and his duties involved the supervision of the loading of ships and barges for the transportation of lumber products from Tahsis. His training for this work was provided by former supervisors at the Tahsis operations. His employment with Doman began in 1992.

[34]            Mr. Forgaard had some prior experience in loading lumber products on barges, that is with Seaspan and Pacific Towing. The Seaspan barges had high sidewalls, to a height of some 15 to 18 feet. The Pacific Towing barge had short walls, measuring approximately 6 feet. That barge was similar to the "SEA-LINK YARDER".

[35]            Mr. Forgaard acknowledged receipt of a diagram with the dimensions of the barge, prior to the first trip in November 1998. He received it from either Joe Moric, his direct supervisor at the time, or from Chris Calverley. He required this in order to plan the load. Otherwise, he understood his job to be the loading of the barge. He did not make any inquiries about the load- line or stability features of the barge. He did speak, however, with Mr. Jim Lane of Sea-Link about loading. This conversation took place before he prepared the stow plan for the first trip. He asked Mr. Lane to attend for the loading for that trip because he had not loaded a barge like the "SEA-LINK YARDER" before.

[36]            Mr. Lane went to Tahsis after the barge arrived, but he did not give any advice. According to Mr. Forgaard, Mr. Lane had broken his leg and although he went to Tahsis he did not stay longer than an hour. During that time, he visited with the tug's crew. He did not help with the loading.

[37]            Mr. Forgaard had some discussions with Mr. Hilder of Sea-Link but was unable to recall the specifics of those conversations or to say whether they occurred before or after the arrival of the barge. He said that he had sent Mr. Lane the details of what he considered to be the necessary lashings, including shackles and turnbuckles. He said that no one at Sea-Link advised him of any restrictions as to what could be loaded on the barge.

[38]            Mr. Forgaard prepared an initial stow plan prior to the arrival of the barge. A copy of this stow plan was not available as evidence as Mr. Forgaard stated he had deleted it from his computer at some, unspecified time.   

[39]            Mr. Forgaard stated that he had to revise the plan after he saw the barge when he discovered that the interior width of the barge was less than he had anticipated, on the basis of the barge dimensions. In order to accommodate the reduced space, he revised the plan, as he was then required to use spacers. He said that he discussed his original stow plan with the tug crew. He also said that he discussed with them the changes that would be required in the stow plan. He said that he showed the crew members the stow plan. He identified one of the crew members as "Danny" and could not recall the name of the other crew member.

[40]            Mr. Forgaard recalled that this conversation took place after the first loading of cargo, that is in the first week of November. He said that after that first cargo was loaded, the tug crew members said that it was "light" and more could be carried on the next trip.

[41]            Mr. Forgaard went on to testify that when the barge returned for the second trip, he met again with the tug crew and showed them the stow plan he had prepared. He said that he was planning to go to a height of eight feet and otherwise, proceeded to load as he had done for the first trip. He described the reaction of the tug crew to his advice about the height as "happy". According to him, the crew said "you'll never sink this barge" and that in the summer he could load to nine feet.

[42]            Mr. Forgaard said that the loading for the second trip proceeded uneventfully. Members of the tug crew were present during the loading, normally two men. They pointed out things like broken straps and the Doman employees would replace those, as requested. When it was time to hook the chains, the tug crew fastened them on the sides. Mr. Forgaard said that if the tug crew wanted chains moved, his men would do so.

[43]            When asked about the use of the longitudinal chains, Mr. Forgaard said that he recommended that they would not be needed in view of the way the cargo was to be loaded, forward to aft, in a step-down position. He said that the crew members spoke to the Captain and came back to say that the Captain wanted the long chains put on. Mr. Forgaard said this was due to the "heavy seas" that would be encountered and that the Captain "was scared they may lose cargo off the back end".

[44]            Mr. Forgaard also testified that he spoke to the two crew members about the weather and said there was a forecast of gale force winds. He went on to say that the previous towing company, Seaspan, would not sail in such weather but wait it out, either at the dock or in Barclay Sound. According to Mr. Forgaard, the crew assured him that they had been towing log barges for many years on the west coast of Vancouver Island and "knew what they were doing".

[45]            Captain Hemeon gave evidence on behalf of Sea-Link about his experience in the marine industry, his involvement with the loading and stowage of the cargo, and the progress of the tow. Captain Hemeon has been employed with Sea-Link as a tug master since 1996. He has worked in the marine industry since 1969 and obtained his Master's ticket in 1982. He is familiar with the barge "SEA-LINK YARDER". He had worked on that barge when it was used to carry gravel.

[46]            Captain Hemeon said that neither he nor his crew were involved with the cargo on either the first or second trip. However, he had never been in command of the "SEA-LINK YARDER" to carry lumber until November 1998. The lashings required for the cargo were transported to Tahsis where employees of Doman loaded and stowed the cargo of lumber products. He was not given any instructions about loading nor advised to go below the loadlines. The barge carried loadlines for international, not domestic, trade and although Captain Hemeon was aware that different loadlines were used for lumber, than for other cargos, he did not know what they were. Further, Captain Hemeon had no knowledge about the stability characteristics of the barge. He was not provided with stability information by Sea-Link.

[47]            He said that he followed the instructions of the customer as to the amount of cargo to be carried. In this case, he was simply told that the barge and tug were proceeding to Tahsis to take delivery of a cargo of lumber that would be loaded and lashed by employees of Doman. He was not provided, for any trips, with a stow plan. That was done by Mr. Forgaard without any discussion with him.

[48]            Captain Hemeon said that he once saw the Doman people drawing out a plan on a piece of paper; however, that apparently occurred in preparation for the first trip, after the Doman people took the inside measurements of the sidewalls. He was unaware that the barge was overloaded until after the incident.

[49]            He was not involved with the loading and lashing, but he and the mate, Danny Peel, looked over the work done by the Doman employees. When he found something that he did not like, for example too much space between the packages, he instructed those employees to tighten up the stow. He said that although there was some "grumbling", the Doman employees did as he asked.

[50]            Captain Hemeon also said that he and the mate tested the tautness of the lashing lines by kicking and jumping on them. When he found loose chains, he required the Doman workers to tighten them. The tug crew also shackled the chains to the pad-eyes on the sidewalls because the Doman people were wary of doing so. He said that he insisted on the use of the longitudinal chains to go over the cargo and would not have sailed without them, in spite of the advice from Mr. Forgaard that they were unnecessary.

[51]            Captain Hemeon assured the Doman workers that more cargo could be loaded for the second November trip than was carried on the first voyage. He said once loading began on the bow, with "stepping" back to the stern, the Doman work crew was committed to its stow plan and the amount that would be loaded. He said that he could not remember if he had any discussion with Mr. Forgaard as to the amount that would be carried on the second trip but that Doman wanted to load more on this trip.

[52]            Prior to departure, Captain Hemeon was satisfied that the cargo was securely loaded and lashed. He described the tug and tow as "riding well". The barge was rolling but not unduly and in any event, everything rolls at sea. He had positioned the barge so that it was trimmed by the stern, with a 2 to 3 foot rake. He said this was optimal for towing.

[53]            Also prior to departing, Captain Hemeon was aware of the weather forecast and was satisfied that he could safely proceed. He described the forecast as "reasonable" for November. The Captain had access, on board the tug, to continuing forecasts. The latest weather forecast before his departure was on November 13, 1998 at 9:30 p.m.

[54]            That forecast was modified on Saturday, November 14, 1998 at 0400, after his departure at 0022 hrs. This early forecast called for rising winds "near noon". This was a change from the earlier forecast which called for rising winds in the afternoon. The seas were 3 - 4 metres and the Captain said these were not bad conditions for that time of year.

[55]            The voyage from Tahsis to the mouth of Nootka Sound, along the south coast of Vancouver Island, was in fairly sheltered waters. The coast is exposed after Nootka Sound. The Captain expected to be inside the Straits of Juan de Fuca by 4:00 a.m. on Sunday, November 15^th. However, at 2100 hours on Saturday he was at Cape Beale. The normal running time to the Straits would have been usually about three hours from that point, but on that night, it took five hours. The gale warning continued and the tow's progress was reduced.

[56]            The Captain altered course only once, that is, just off Barkley Sound, an area colloquially called the "Barkley bounce" because of certain currents and tides mixing in that area off the coast. He altered course there, around 1800 hrs, to make for a "better ride" while the crew was eating dinner.

[57]            Sometime between 1800-2100 hours, the brake on the towing drum slipped.    The Captain reduced speed and sent a deckhand to tighten it.

[58]            The Captain was roused from sleep at 0315 hours on November 15 by the mate. The mate had seen that the tow-line was leading off to starboard. That indicated a problem. The tow-line had to be shortened and the main engine was cut back to reduce power. This incident is recorded in the logbook at 0330. According to the Captain, he called Paul Hilder at Sea-Link. The tow proceeded to Port San Juan, the nearest port. The Captain could see that lumber was being washed off the barge.

[59]            In Port San Juan, the barge was anchored and the two tow lines shortened up. The barge was lying broad side to the swell and rolling back and forth. The Captain manoeuvred the tug and barge to bring the bow of the barge heading into the swell to reduce its roll and minimize the loss of lumber packages.

[60]            He then got permission from Sea-Link to flood the tipping tanks in the hull, in an attempt to correct the starboard list. That effort worked, and the tug, with the barge, proceeded to Nanaimo, arriving at 0853 on Monday, November 16, 1998.

[61]            Upon the arrival of the tug and barge in Nanaimo, various people attended to inspect the damage to both the cargo and the barge. Mr. James Lindsay and Captain Vale surveyed the damage and provided reports including opinions as to the cause of the damage. Captain Fothergill took photographs and provided his opinion about the loss.

[62]            The barge sustained damage. The sidewall on the starboard side was partially collapsed and bent outboard. The whole upper portion of the wall had to be replaced. The steel on the deck of the barge was also torn loose. According to Mr. Brown, the repairs were completed and the barge was ready for service by mid-January 1999.

[63]            Mr. Jim Lindsay is a professional marine surveyor with many years of experience in the marine industry. He was engaged to inspect the barge and cargo on behalf of Sea-Link's insurers and further, to provide technical assistance to its lawyers. He subsequently prepared an expert opinion and testified at trial.

[64]            Mr. Lindsay expressed the opinion that the accident was caused by improper loading and stowage of the lumber, and that the cargo had insufficient lashings on the outboard longitudinal packages. He did not refer to weather as a contributing factor.

[65]            Captain Fothergill is a Master Mariner. On November 16, 1998, he saw the barge and tug at port in Nanaimo. He observed damage to the barge and the condition of the cargo, including the lashings. Although he had not been retained by either party at the time, he prepared a preliminary report which was sent by facsimile on November 16, 1998 to Mr. Chris Calverley, at Doman. That letter, entered as Exhibit D-6, expressed the opinion that the loss was attributable to Sea-Link, but no particular aspect of negligence was identified and Captain Fothergill observed that the cause of the loss "is still to be determined".

[66]            Captain Fothergill was never engaged by Doman. In July 2002, he was engaged by Sea-Link to provide an expert opinion on its behalf. A statement of his proposed evidence was prepared for the purpose of his opinion evidence at trial. In his evidence, Captain Fothergill attributed the damage to defective stowage and insufficient lashing. He did not address the factor of weather as a cause of the damage.

[67]            Captain Vale, a Master Mariner and Marine Surveyor, wrote two expert reports, dated June 14, 1999 and October 22, 2002, on behalf of Doman. He also testified at trial. Captain Vale was of the opinion that the cargo shift was caused by too great a space between the lashing points, inappropriate stacking of the cargo because it was not interlocked, the weather conditions at the time the cargo shifted and the rolling period of the barge based on its high "GM" (Metacentric Height). On this last point, Captain Vale acknowledged in his first report that he had to rely on certain assumptions, as he did not have the SEA-LINK YARDER's stability information before him.   

[68]            In the second report, he commented upon the reports of Mr. Lindsay and Captain Fothergill. He concluded in his second report and testified at trial that if the cargo had been properly secured, through lashing points at five foot intervals and with the lumber packages loaded in an interlocked manner, then the cargo could have safely been loaded up to eight tiers. Captain Vale was also of the opinion that to load the desired volume of cargo onto the barge, a crane should have been used.    

v) The Loading of the Cargo

[69]            Captain Hemeon said that he was not provided with any particular or special instructions about the carriage of the lumber products from either his employer, Sea-Link, or from any employee of Doman. He was instructed to proceed to Tahsis where the cargo would be loaded by employees of Doman. The barge was supplied with lashing chains by Sea-Link according to particulars provided by Doman. He was not engaged in the loading and storage operations but conducted an overview. When he found spaces between the packages he required the Doman employees to tighten up the spaces, to reduce the potential for movement.

[70]            The cargo was loaded from forklift by Doman employees, in a forward to aft arrangement beginning with packages two tiers high, rising to 8 tiers. Packages were loaded fore and aft for two rows down each side and the athwartship in the remaining space. The packages were stacked on top of each other, rather than interlocked in a "bricklayed" fashion.

[71]            According to undated notes made by Mr. Forgaard, the athwartship stow was stepped up gradually from the forward end of the barge from two packages high progressively to eight high, then gradually down again to four high at the aft end. The forward stepped section had vertical 2" by 6" shoring pieces between each successive height to prevent the packages from tipping forward during heavy pitching. The forward and aft tiers were seven packs high against the sidewalls on the outer tier and eight high on the inner tier.

[72]            In his notes, Mr. Forgaard also remarked on the development of a sudden list to port when the barge was about two-thirds loaded. He attributed that to slack water in the barge. According to his evidence he mentioned this to a member of the tug crew. The list was offset by loading four rows with an 18" offset to starboard and by adding two packs to the height on the starboard side which brought the list back to 6".

[73]            The cargo was secured with twenty-two sets of lashing chains, ½ inch in diameter, placed at 10 foot intervals attached by shackles to pad eyes welded on top of the barge sidewalls. The chains passed over the top of the cargo meeting approximately on the centre line of the barge. One chain was shackled to one end of a turnbuckle, the other chain with a large oval link has the hooked end of the turnbuckle passed through it. This hook portion is then brought back against the standing part and an oval link slipped over the hook end.

[74]            The chains were shackled to the sidewalls by the tug crew since the Doman employees were wary of standing on the tops of the sidewalls of the barge. The cargo was further secured by the use of three longitudinal chains running from forward to aft. To make these three longitudinal chains, two chains were joined in the middle to make one long chain. They ran over the cargo and were attached to a chain running across the stern of the barge. There were no lashing points at the stern. Mr. Forgaard said it was a "bit of a spider's web".

SUBMISSIONS OF SEA-LINK

[75]            Sea-Link submits that the contract, although brief, is clear concerning the obligations of loading, unloading, lashing and unlashing. These responsibilities expressly rested with Doman and Doman received a reduced rate on this basis.

[76]            Sea-Link says that if the contractual wording is in doubt, then looking to the actions of Doman, as an expression of its understanding of the contract, supports a finding that Doman was indeed responsible for loading and stowing the cargo. Doman planned the load and stow, specified the lashing chains that were to be used and then loaded and lashed the cargo onto the barge without any real input from Sea-Link.

[77]            Sea-Link submits that the evidence of Mr. Brown and Mr. Hilder is more reliable than the evidence of Mr. Calverley and Mr. Forgaard, relative to the conversations that occurred leading up to performance of the contract.    Sea-Link points to the examination for discovery of Mr. Calverley, for Doman, where Calverley agreed that he knew that Doman would be the one to load, stow and put the lashing on the cargo. Mr. Brown testified that Mr. Calverley advised him that Mr. Forgaard would advise Sea-Link as to what lashing was required.

[78]            Sea-Link argues that Mr. Brown's testimony regarding these conversations should be preferred to the recollections of Mr. Calverley who admitted on cross-examination that his memory of these communications was "shaky at best". Furthermore, Sea-Link argues that the testimony of Mr. Hilder as to conversations he had with Mr. Forgaard should be preferred, as Mr. Forgaard could not recall such conversations.

[79]            Sea-Link submits that the master of the ship has a right, not a duty, to supervise the loading and lashing of cargo and the right, but not an obligation, to intervene, unless intervention is required to protect the cargo from damaging the structure of the ship or if the stowage was affecting the ship's stability. Further, the liability of the master will be limited to the extent of his intervention and only to the extent that such intervention actually causes the loss. To support these arguments, Sea-Link relies on the House of Lords case of Court Line Limited v. Canadian Transport Company Ltd. (1940), 67 Lloyd's L.R. 161 (H.L.) and Transocean Liners Reederei GmbH v. Euxine Shipping Co. Ltd. (The "Imvros"), [1999] 1 All E.R. 724 (Q.B. Comm.).

[80]            Sea-Link described its supervision and intervention in the loading and lashing process. Its crew put the shackles through the pad-eyes, as the stevedores for Doman did not want to climb the sidewalls. The Master pointed out gaps in the cargo, to ensure a more compact and tighter stow, and required the tightening of lashing chains and the use of three, fore and aft "longitudinal" chains over the cargo stretching the length of the ship.

[81]            Sea-Link argues that such interventions did not cause the loss and in all probability improved the situation. Sea-Link says that these interventions do not result in any shift of liability from Doman to Sea-Link. Further, if it is found that Mr. Forgaard did show his stow plan to Captain Hemeon, then this cannot be interpreted as "approval" of the stow plan.

[82]            Sea-Link says that the "SEA-LINK YARDER" was not overloaded.    Sea-Link refers to the evidence of Doman's expert, Mr. Vale, who confirmed that eight tiers of lumber could safely be loaded on the "SEA-LINK YARDER".

[83]            Sea-Link submits that Doman's arguments regarding alleged problems that make the barge unseaworthy should be rejected. It says that there is no evidence that general cargo barges should have lashing points at certain intervals and that Mr. Forgaard recognized that lashing points could have been easily manufactured and added to the barge on an ad hoc basis, if he or other persons at Doman thought it was necessary.

[84]            Since Doman was responsible for planning and executing the loading and lashing, Sea-Link says the experience of its master in such matters is not an issue in this action. The barge was not unstable when she was loaded and Captain Hemeon, in respect of stability, made no error. The Master cannot be faulted for not redesigning the stow planned by Doman, a company that had extensive experience in loading lumber cargo.

[85]            Sea-Link relies on Ismail v. Polish Oceans Lines (The "Ciechocinek"), [1976] 1 Q.B. 893 (C.A.), [1966] S.C.R. 180">N.M. Paterson and Sons Ltd. v. Mannix Ltd., [1966] S.C.R. 180 and Trident Freight v. Meyer's Sheet Metal Ltd., [2002] B.C.J. No. 1064 (B.C.S.C.), for the proposition that a shipper who takes an active interest in the stowage and insists that it be stowed in a particular manner, cannot later complain if the goods are damaged as a result of the manner in which they were stowed.

[86]            Sea-Link also relies on cases where carriers were not found liable for damaged cargo because the cargo was negligently packed by the shipper: D.M. Duncan Machinery Company Limited v. Canadian National Railway Company et al., [1951] O.R. 578 (High C.J.)and Guadano v. Hamburg Chicago Line, G.m.b.H, [1973] F.C. 726 (T.D.).

[87]            Further, Sea-Link submits that the Hague-Visby Rules (the "Rules") are applicable by virtue of the Marine Liability Act, S.C. 2001, c. 6 (the "MLA"). Article 4(2)(i) of the Rules applies to limit its liability.

SUBMISSIONS OF DOMAN

[88]            Doman's main argument is that Sea-Link is liable for the damage to its barge because it had a duty to ensure the seaworthiness of the ship, which includes "cargo-worthiness", and Sea-Link failed to discharge that duty. Doman submits that seaworthiness varies relative to the particular cargo that is subject to a contract of carriage and is also relative to the particular voyage contracted for. The barge in this case was not seaworthy for the particular cargo and voyage undertaken.

[89]            As a secondary argument, Doman submits that it was the negligence of the Master, Captain Hemeon, in not seeking shelter from the weather during the course of the tow which contributed to the loss.

[90]            Doman submits several alternative arguments concerning liability. First, Doman argues that if it had the contractual responsibility to stow and lash, then Sea-Link is not entitled to complain of the stowage and lashing since its crew took an active interest in the stowage and lashing, pointing out some defects and not others. In support of this argument, Doman relies on Upper Egypt Produce Importers et al. v. The "Santamana" (1923), 14 Lloyd's L.R. 159 and N.M. Paterson & Sons, supra.    Further, Doman notes that the mate, Danny Peel, was not called to testify and invites the Court to draw a negative inference from his absence.

[91]            Next, Doman submits the alternative argument that if it had the contractual responsibility to load and stow, then the damage to the barge was caused by the "intermeddling" of Sea-Link in relation to the height of the cargo. Doman argues that if this Court should find that the loading and stowing of the cargo here was a joint effort by both parties, leading to joint responsibility, then Sea-Link cannot recover damages since the damages are not severable. Here, Doman relies on Farr Inc. v. Tourloti Compania Naviera S.A., [1985] F.C.J. No. 602 (T.D.), affirmed, [1989] F.C.J. No. 462 (C.A.).

[92]            As for Sea-Link's loss of use claim, Doman submits that Sea-Link has not provided evidence regarding any amount of damages that it suffered as a result of loss of use of the barge. Alternatively, Doman submits the loss of use damages claim is overstated.

[93]            Doman submits that the principle of seaworthiness includes the following: (1) a competent and experienced master and crew, (2) adequate instructions from the master for loading, (3) a vessel that is adequately equipped to carry out the voyage, in this case, sufficient lashing points and sidewalls high enough for the contemplated cargo, (4) the ship will not take on cargo that exceeds her capacity and (5) proper stowage that does not imperil the safety of the ship.

[94]            Doman says that providing an experienced master and crew, as an aspect of the overall seaworthiness of the ship, is an implied legal responsibility of the carrier. Captain Hemeon's only experience with lumber cargo had been in fully enclosed barges and small barges on inside waters where no lashing had been required. Doman says that the master's lack of experience carrying this type of cargo on this type of voyage is relevant because the master has the overall and final responsibility to ensure that the ship, as loaded, is in a seaworthy condition for the voyage.

[95]            Doman claims that this responsibility is recognized in Sea-Link's Operations Manual which refers to height of cargo as something Master must check prior to departure in order to ensure seaworthiness.    Doman says that Captain Hemeon admitted that he had no understanding of the height of the cargo that could be stowed so as to not imperil the seaworthiness of the barge.

[96]            Doman asserts, relying on Standard Oil Company of New York v. Clan Line Steamers Ltd. (1923), 17 Lloyd's L.R. 120 (H.L.), that even where, by agreement, the responsibility for the proper stowage of the cargo is put upon someone other than the carrier, such an arrangement may relieve the master from attending to the actual loading of the cargo, but it by no means relieves him from "...the duty of accurately ascertaining what is the result of the completed work of stowage upon the stability of his ship, such as the relative weights of the portion of the cargo stowed in the hold and of that stowed between decks." (Standard Oil, supra, page 124)

[97]            Doman also relies on Papera Traders Co. Ltd. and others v. Hyundai Merchant Marine Co. Ltd. and another (The "Eurasian Dream"), [2002] 1 Lloyd's L.R. 719 (Q.B. Comm.), where the court held that a ship may be rendered unseaworthy due to the incompetence or inefficiency of the master or crew.    In order to show that it exercised the proper care in this regard, the carrier must show that it appointed a generally competent master and crew and that the master and crew had specific competence in relation to the vessel and voyage in question: Eurasian Dream, supra page 738.

[98]            Next, Doman says that Sea-Link had a duty to provide proper loading instructions and obtain proper documentation relating to stability. Doman argues that if a carrier fails to provide its master with proper documentation and instruction, then the vessel is unseaworthy.    Doman says Sea-Link failed in this duty.

[99]            Doman argues that Sea-Link performed modifications to the barge, that is sidewalls were added and the deck paved. Sea-Link then failed to obtain stability data for the modified barge and did not conduct tests to determine how the modified barge would respond when fully loaded with lumber cargo. Doman says that Sea-Link did not consult any experts regarding the loading and stowage of lumber and did not know the height to which lumber could safely be stowed on the barge. In support of the above argument, Doman relies on [1969] S.C.R. 12">Tahsis Company Ltd. v. Vancouver Tug Boat Co. Ltd., [1969] S.C.R. 12.

[100]        Doman argues that seaworthiness requires that the carrier provide a vessel that is adequately equipped to carry out the voyage. In this case, Doman says that Sea-Link provided insufficient lashing points. In support of this argument, Doman relies on Scrutton on Charterparties, 20^th ed. (1996), pages 97-9, where, referencing several old English cases, the author states that the concept of seaworthiness comprises a duty to make sure the ship is fit in all aspects to carry her cargo safely to its destination, having regard to the ordinary perils to which such a cargo would be exposed on such a voyage.

[101]        Doman maintains that all the experts in this case were of the opinion that lashing points at ten foot intervals were insufficient for the amount of Doman's cargo that Sea-Link had agreed to transport and the lashing points should have been at five foot intervals to make the cargo more secure.    Furthermore, Doman says that Sea-Link's suggestion that it could have added more pad-eyes to the barge by welding them on, is unreasonable and in any event, there is no legal basis for suggesting that a shipper has the obligation to rectify a defect in the ship.

[102]        Doman also says that the barge was unseaworthy due to the fact that her sidewalls were not of sufficient height and lacked steel stanchions. Doman says that if Mr. Lindsay's conclusions are accepted, that is, that even if there were lashings at five foot intervals, then this would not have effected the loss of cargo, then the barge was deficient in lacking such sidewalls and this contributed to the loss of the cargo and the damage to the barge.

[103]        Doman says that the contract between the parties was for the carriage of 2 million FBM of lumber and the barge provided by Sea-Link was not, in fact, capable of carrying this amount of cargo. 1, 779, 159 FBM of cargo was shipped on the first voyage that was completed without incident. 1, 938, 871 FBM was shipped on the second voyage, which is the subject of these proceedings. Since that time, the largest load ever carried by Sea-Link has been 1,647,974 FBM and Sea-Link has never carried 2 million FBM. Doman refers to the actual volumes shipped by the "SEA-LINK YARDER"in the exhibit entitled "Lumber Line-Ups". Further, Doman says that Captain Hemeon on cross-examination admitted that the barge was overloaded.

[104]        Finally, Doman submits that improper stowage can render a ship unseaworthy when the improper stowage imperils the safety of the ship and does not just affect the cargo itself. In this regard, Doman relies on Scrutton on Charterparties, 20^th ed. (1996), p. 98.    Doman states that the improper stowage for the cargo "obviously" endangered the safety of the ship and therefore it affected the ship's seaworthiness, for which Sea-Link was responsible. Doman argues that Mr. Fothergill admitted on cross-examination that the stowage not only affected the cargo but also that it endangered the barge as a whole.

[105]        Doman submits that the Rules apply to this situation pursuant to section 7(2)(b) of the Carriage of Goods by Water Act, S.C. 1993, c. 21 ("COGWA"). Article 3(1)(a) of the Rules impose on the carrier the obligation of exercising due diligence in making the ship seaworthy. Article. 3(2) of the Rules impose on the carrier the obligation to "properly and carefully" load, handle, stow, carry, keep, care for and discharge the goods carried, subject to Article 4.

[106]        Doman argues that the consequence of finding that the vessel was unseaworthy is that Sea-Link cannot rely on any of the exceptions in Article 4(2) of the Rules, because Sea-Link is in breach of its "overriding obligation" to provide a seaworthy ship under article 3(1): Maxine Footwear Co. Ltd. v. Canadian Government Merchant Marine Ltd., [1959] 2 Lloyd's L.R. 105 (P.C.) at 113.

ANALYSIS AND DISPOSITION

[107]        The primary issue arising in this action is who is responsible for the damage to the barge. This question involves interpretation of the contractual obligations arising from the agreement recorded in the letter dated October 29, 1998 and whether such contractual obligations are modified by any common law principle that a carrier has an obligation to provide a seaworthy vessel.

[108]        The agreement of October 29, 1998 relates to the carriage of goods on the barge "SEA-LINK YARDER" in the tow of the "ARCTIC HOOPER". The voyage at issue in this proceeding took place along the south coast of Vancouver Island, departing from Tahsis, British Colombia on November 14, 1998. As such, it was subject to the COGWA and the Hague-Visby Rules (the "Rules") which are attached as Schedule I to COGWA.

[109]        The parties advanced opposing arguments. Sea-Link argues that the damage resulted from shifting cargo and the responsibility for loading and lashing the cargo lay with Doman. Such responsibility arises from the specific terms of the agreement, in addition to the actions of Doman's employees, which demonstrate Doman's understanding of the agreement.

[110]        Doman submits that responsibility, at least in part, falls on Sea-Link which, as the carrier, bears an overriding, non-delegable duty to provide a seaworthy ship, including one that is fit for the voyage and capable of carrying the cargo in a safe manner without damage to the cargo or the barge. Further, Doman argues that this obligation includes the requirement to provide a competent master who is responsible for the ultimate decision to proceed, having regard to the proper loading of the cargo and prevailing weather conditions.

[111]        Alternatively, Doman argues that if its employees were responsible for the manner of loading the cargo, then Sea-Link is responsible for the decision of Captain Hemeon to embark in the face of imminent bad weather. In the event that joint liability is found, Doman takes the position that Sea-Link should recover no damages because it is impossible to sever the damages.

[112]        Evidence was heard from persons who were involved in negotiating the contract, as well as from those who were actually involved with the voyage in issue. As well, three expert witnesses provided reports and expert opinion evidence at trial. The only evidence taken under reserve was a portion of the expert report provided by Captain Vale. At the trial of this matter, counsel for Sea-Link objected to the admittance of certain parts of Vale's second report, dated October 22, 2002. I advised that I would hear the evidence and reserve judgment as to its admissibility.

[113]        Counsel for Sea-Link objected to two paragraphs of Mr. Vale's report in which Mr. Vale commented on the responsibilities of a master and crew in relation to the cargo. Counsel stated that Mr. Vale was making legal findings, related to the responsibility of each party pursuant to their agreement and that this is a matter for the Court. Further, counsel objected to Mr. Vale's ranking of his opinion as to the various causes of the accident. Counsel did not take issue with Mr. Vale finding multiple possible causes, but with his designation of them "in order of importance". Counsel argued that the expert was intruding upon the Court's role of weighing evidence.

[114]        I agree, in part, with this argument. Mr. Vale was not called as an expert in the law, but rather for his expert opinion, as a marine surveyor, concerning the cause of the barge damage. In these two, disputed paragraphs, he refers in an abstract sense, to the principle that a master and crew bear the responsibility to act in a particular manner in relation to the vessel and her cargo.    I will allow these paragraphs into evidence, but will accord them little weight. Mr. Vale does not explain the source of this information and these paragraphs carry the air of advocacy.

[115]        In Emil Anderson Construction Co. Ltd. et al. v. British Colombia Railway Company, [1987] 5 W.W.R. 523 (B.C.S.C.), submitted at trial by counsel for Sea-Link concerning this issue, the court held that an expert report that contained legal opinion which was inseparable from the properly admitted expert opinion should not be admitted. In Quintette Coal Limited v. Bow Valley Resource Services Ltd. (1988), 29 B.C.L.R. (2d) 127 (B.C.S.C.), also provided by counsel, the court rejected an expert report, authored by several experts, which was full of overt and implied legal conclusions.

[116]        In the present case, the two paragraphs dealing with the general duties of a master and crew can be separated from the body of the report. Consequently there is no concern that such legal opinion, if it is indeed that, taints the rest of the report.   

[117]        Counsel's second objection, that Mr. Vale's ranking of his opinion as to the causes of the cargo loss should not be admitted as it usurps my role as the ultimate trier of fact, cannot be sustained. This is the heartland of expert testimony. Experts are to provide their informed opinions, in their areas of expertise, as to why something occurred the way it did or what caused a particular result. Mr. Vale is qualified as an expert in marine surveying. The fact that he has listed the possible causes of the barge damage "in order of importance" does not limit, in any way, the role of this court.

[118]        The witnesses were largely credible, subject to my comments below about Captain Fothergill. However, while largely credible, the evidence was not entirely satisfactory. Mr. Calverley and Mr. Forgaard, employees of Doman, were handicapped by poor recollection of the events in issue. They delivered their evidence with an air of insouciance which casts doubt, in my opinion, on the degree of attention they gave to their respective roles in implementing the contract in question.

[119]        As for the expert witnesses, I am satisfied that Mr. Lindsay and Captain Vale provided credible evidence. I am not equally satisfied relative to Captain Fothergill who initially provided a "preliminary" opinion attributing responsibility for the damage to Sea-Link, in the expectation of being retained by Doman. Captain Fothergill subsequently changed course and appeared as a witness for Sea-Link, expressing a contrary view and finding fault with the actions of Doman. In doing so, Captain Fothergill compromised the value of his evidence. Furthermore, the way in which he became involved in this case, that is, through an admitted attempt to solicit work, is another way in which his evidence is diminished. I assign little, if any weight, to the evidence given by Captain Fothergill.

[120]        The evidence of Mr. Lindsay and Captain Vale is relevant on the issue of loading and lashing. It is also credible.    The cargo was secured with chains that passed athwartship, over the cargo, and were shackled to matching points on the top of the sidewalls. Twenty-four sets of chains were used in this fashion and three longitudinal chains were run from forward to aft, again over the top of the cargo. Mr. Lindsay and Captain Vale expressed the opinion that the lashing was insufficient, since it was employed at ten foot intervals, rather than at five foot intervals. Furthermore, Captain Vale expressed the opinion that if lashing points at ten foot intervals were to be used, a chain with a thicker diameter should have been used. Here, the chains had a diameter of a half inch and Captain Vale said that a chain with a three-quarter inch diameter should have been used in these circumstances.

[121]        The experts also agree that the cargo of lumber products was improperly stowed. It was loaded on board the barge by forklift in tiers rising from a level of two to eight in height. This method of loading was adopted because it was easier for the forklift operators to load in that manner. The cargo was not interlocked or "bricklayed" because that was more difficult for the forklift operators to do and would take a longer time to accomplish.

[122]        Mr. Lindsay concluded that an excessive number of tiers of lumber packages were loaded above the cargo wall and that this contributed to the cargo shifting. Captain Vale disagreed, and reported that if the cargo had been stowed in an interlocked manner and lashings had been secured at five foot intervals, then it would have been possible to safely load eight tiers of cargo.

[123]        Mr. Calverley and Mr. Forgaard, in their testimony, acknowledged that they understood Doman to have responsibility for the loading and unloading of the barge. Mr. Forgaard admitted that he prepared a stow plan, although this was inadvertently lost by him on his computer at some unspecified time

[124]        Sea-Link also cast doubt on the experience of Mr. Forgaard in planning and loading barges. When questioned about his experience in loading a barge similar to the "SEA-LINK YARDER", Mr. Forgaard could not provide any comparative details or even recall how many times he had been involved in such operations.

[125]        In my opinion, the wording of the October 29, 1998 agreement clearly shows that Doman was to undertake loading, unloading, lashing and unlashing. The agreement specifically states that the rate was not to include "loading, unloading, lashing or unlashing". The evidence of Mr. Forgaard and Mr. Calverley, concerning their understanding of the agreement, demonstrates that they knew these activities would be performed by Doman employees. The employees carried out that work, at least the loading and lashing at the beginning of the voyage.

[126]        Doman now argues that the Sea-Link crew "intermeddled" with the loading and lashing, and consequently, the liability for problems arising from those activities lies with Sea-Link. It argues that Sea-Link failed to call Mr. Peel as a witness and invites that an adverse inference be drawn.

[127]        I do not accept these submissions. First, the evidence shows that the Master and the mate did no more than look over the loading and lashing carried out by Doman. That was right and appropriate in the discharge of the duty to ensure the safety of the ship and the cargo. I accept Captain Hemeon's evidence that he did not actively engage in the loading and lashing, nor did he issue such instructions as to shift the legal responsibility for same.

[128]        Where there is conflict between the evidence of Captain Hemeon and Mr. Forgaard as to discussions between them concerning the loading, I prefer the evidence of Captain Hemeon. He testified that he did not discuss the load plan with Mr. Forgaard for any of the trips carried out for Doman. Mr. Forgaard "did that on his own". He recalled seeing some Doman employees working on some kind of paper plan for a stow only for the first trip.

[129]        On the other hand, Mr. Forgaard says that he discussed the stow plan with the barge crew before the second trip. However, he did not produce a stow plan. He testified that he had it on his computer, but it was not saved on a disk. He did not mention a "paper" plan. The material on the computer was "dumped" at some unspecified time prior to the discovery examination of Mr. Forgaard which was conducted on June 27, 2001. In the extract from that examination which was read into the record pursuant to the Federal Court Rules, 1998, the following exchange took place:

212 Q                        Okay. Would there be a copy of the stow plan you --

        A                       No, there is not. We looked for that.

213 Q                        Okay.

        A                       Like, we'd had it in a computer, and I -- I didn't run it with disc or anything. I just -- I had a file that's just called "barges" or "stow" -- "barges," and I would just transfer my stow plans over. So when you needed one, you just kind of went through them and picked out ones you had, and then we ended up with computer problems. Like, they said, "Oh, you're loaded up too hard. Your hard drive is loaded up," and they said, "Go through and dump everything you don't need." Well, we went through and dumped and dumped and dumped. It didn't make any difference.

214 Q                        But all that stuff was gone then?

       A                        It's all gone. Had to start all over again.

[130]        I conclude that the stow plan, if it ever existed, was destroyed some time between November 13, 1998 and June 27, 2001. Doman was aware of this accident at least by November 16, 1998, when a surveyor appointed on its behalf, Captain Vale, attended upon the barge in Nanaimo to inspect the damage to the cargo and barge. It is unlikely that the stow plan would have been discarded prior to the anticipated arrival of the cargo in Nanaimo, even if this accident had not occurred.

[131]        Furthermore, Mr. Forgaard testified about the time required to prepare a stow plan. It is unlikely that he would casually destroy this time-consuming piece of work.

[132]        As for the argument advanced about the absence of Mr. Peel as a witness, I observe that there is no property in a witness. If Doman wished to lead evidence from Mr. Peel, it could have issued a subpoena compelling his appearance. In any event, I question the value of calling Mr. Peel since Captain Hemeon was at least as well placed to give evidence on the role played by the tug crew in preparation for the voyage in issue. As the trier of fact, I decline to draw the adverse inference as requested by Doman.

[133]        On the basis of all the evidence, including that of two of the experts, Mr. Lindsay and Captain Vale, I conclude that the loading of the cargo by employees of Doman was inappropriate and was the cause of the barge damage. For the reasons that will follow, I find that Doman must be held partially responsible for the actions of its employees and the contractual agreement that it entered.

[134]        In Court Line Ltd., supra, the House of Lords held that on interpretation of a clause in a charterparty agreement between the shipper and carrier, which stated that the charterers (the shippers) were "to load, stow and trim the cargo at their expense under the supervision of the captain", the carrier was relieved of their liability for bad stowage which had been transferred, by contract, to the shipper. Lord Wright stated as follows at page 168:

It is, apart from special provisions or circumstances, part of the ship's duty to stow the goods properly, not only in the interests of the seaworthiness of the vessel, but in order to avoid damage to the goods, and also to avoid loss of space or dead freight owing to bad stowage. In modern times the work of stowage is generally deputed to stevedores, but that does not relieve the shipowners of their duty, even though the stevedores are under the charter-party to be appointed by the charterers, unless there are special provisions which either expressly or inferentially have that effect. But under Clause 8 of this charter-party the charterers are to load, stow, and trim the cargo at their expense. I think these words necessarily import that the charterers take into their hands the business of loading and stowing the cargo. It must follow that they not only relieve the ship of the duty of loading and stowing, but as between themselves and the shipowners relieve them of liability for bad stowage, except as qualified by the words "under the supervision of the captain,"...

[Emphasis added]

[135]        The clause at issue in that case was more detailed as to the parties' duties than the contractual provision at issue in the present case. The agreement in this case is much less detailed and says:

Rate does not include

-                 loading

-                 unloading                                   

-                 lashing or unlashing

[136]        Nonetheless, I find that this clause, in addition to the evidence presented by individuals from both Doman and Sea-Link, regarding their understanding of the contract, clearly indicates that the shipper, that is Doman, had the responsibility for loading and lashing the cargo. Furthermore, I find that the primary cause of the damage was the improper stowage of the cargo, including insufficient lashing and inappropriate planning of the load where the lumber packages were not loaded in an interlocked fashion.

[137]        In my opinion, when Doman assumed the responsibility for loading and lashing, it held itself out as having sufficient knowledge of how to perform these functions. Otherwise, its contractual undertaking to perform these operations would have been meaningless. In these circumstances, I find that Doman attracts the major portion of the liability for the damage to the barge which was caused by the cargo shifting.

[138]        In the case of N.M. Paterson & Sons, supra, there was a contract to provide transport of goods and the shipper's employees assisted with stowage. The Supreme Court of Canada found that the loss occurred due to a failure of the lashings and held that the primary duty of stowing cargo in a ship rests upon the shipowner and its master unless there is an express agreement to the contrary or the circumstances give rise to an implication that such an agreement has been made.

[139]        Ultimately, in N.M. Paterson & Sons, supra, the Supreme Court held that the agreement between the parties, did not contain any provision making the shipper liable for stowage and the officers of the ship had inspected and approved of the way in which the cargo had been placed and secured on the deck. The Court held that this was evidence negating any implied agreement between the parties which would have relieved the carrier from its obligation to carefully arrange and stow goods upon the ship.

[140]        The case of Trident Freight Logistics Ltd., supra, was relied on by Sea-Link. However, this case is clearly distinguished from the present case, as the impugned transaction was subject to British Columbia's Motor Vehicle Act, R.S.B.C., 1996, c. 318 and Regulations made thereunder which specified that a bill of lading had to contain any special agreement regarding liability. Here, the case concerns carriage of goods by ship. Furthermore, this decision has recently been reversed by the British Columbia Court of Appeal: see 2003 BCCA 342, [2003] B.C.J. No. 1316 (C.A.)(QL). The Court of Appeal held that even if the facts had supported an implied agreement which had shifted the liability for loading away from the carrier, then the Regulations required that such an agreement be endorsed in the bill of lading.

[141]        Court Line Ltd., supra, and N.M. Paterson & Sons, supra, remain authoritative for the principle that the responsibility of a carrier to load and stow cargo can be shifted to the shipper by express provision in a contract or by implication, given the surrounding circumstances.

[142]        Doman has submitted that if it is found partially at fault for the damage to the "SEA-LINK YARDER", then Sea-Link cannot recover damages as they are not severable. In this regard, it relies on the Federal Court case of Farr v. Tourloti, supra, which was affirmed by the Federal Court of Appeal, without substantive comment. In that case, Justice Pinard found both the carrier and shipper to be liable for the damages to the cargo, where the damage at issue was the result of two causes, one due to the insufficiency of packing by the shipper and the other due to the fact that cargo was not adequately secured to the vessel by the carrier. Justice Pinard held that because liability for the damages could not be separated, the carrier was to be held responsible for the entire loss.

[143]        In my opinion, Farr v. Tourloti, supra, must be interpreted in light of the more recent Supreme Court of Canada decision of Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, where the Supreme Court held that the common law bar to finding contributory negligence in maritime law should be removed in compliance with justice and fairness. I conclude that Farr v. Tourloti, supra, does not bar apportionment of liability for each party's varying degree of fault in this matter.                      

[144]        Alternatively, Doman submits that if damages are found to be severable, then Sea-Link should bear a greater amount of the loss, based on its negligence in continuing on course in bad weather and for embarking with stowage that was loaded too high for the barge. In my opinion, Doman has not demonstrated that Captain Hemeon's decision to continue on course in the weather was negligent or careless.

[145]        Captain Vale found the master's "disregard"of the weather to be a "significant" cause of the damage in his second report, dated October 22, 2002. However, on cross-examination, Mr. Vale stated that he, personally, would not have continued on route in the weather as forecasted during the time in question, and admitted that he could not comment on the industry practice or whether most masters would have continued on in such conditions.

[146]        In my opinion, in the absence of evidence based on an industry standard or the evidence of an expert in the towing industry in British Columbia, Doman has not demonstrated that the Captain's decision to continue in the weather conditions was negligent or that such decision was the real cause of the damage to the barge. Captain Hemeon testified that the weather forecast was reasonable for that time of year and that he had experienced such weather in the past on several occasions. He also testified that "numerous" other towing companies operate in similar conditions and that the conditions did not warrant seeking shelter.

[147]        The next issue to be addressed is whether the obligation of seaworthiness, as has been developed in admiralty law and referred to in the Hague-Visby Rules, includes the concept of "cargoworthiness" as well as various other components, as argued by Doman. Has Sea-Link breached its obligation to provide a seaworthy ship and if so, what liability arises?

[148]        The obligation of seaworthiness has been discussed from the earliest cases dealing with contractual relations in maritime matters. In Actis Co. Ltd. v. Sanko Steamship Co. Ltd. (The "Aquacharm"), [1982] 1 Lloyd's L.R. 7 (C.A.), Lord Denning stated the following at page 9:

...I think the word "seaworthy" in the Hague Rules is used in its ordinary meaning, and not in any extended or unnatural meaning. It means that the vessel- with her master and crew- is herself fit to encounter the perils of the voyage and also that she is fit to carry the cargo safely on that voyage: see Scrutton on Charterparties, 18^th ed. (1974), p. 83. ...

Seaworthiness has been interpreted as including "cargoworthiness"; see Carver's, Carriage by Sea, 13^th ed., vol. 1 (1982), p. 118, and Canadian Pacific Forest Products Ltd.-Tahsis Pacific Region v. Beltimber (The), [1999] 4 F.C. 320 (C.A.) at 334-5, leave to appeal to S.C.C. refused May 25, 2000, S.C.C. Bulletin, 2000, p. 969.

[149]        As stated in Carver's Carriage by Sea, 13^th ed., vol. 1 (1982), page 115:

But the duty to supply a seaworthy ship is not equivalent to a duty to provide one that is perfect, and such as cannot break down except under extraordinary peril. What is meant is that she must have the degree of fitness which an ordinary careful and prudent owner would require his vessel to have at the commencement of her voyage, having regard to all the probable circumstances of it.

[Italics in original]

[150]        In order to impose liability on the carrier, the cases are clear that unseaworthiness must have been a real, effective or actual cause of the loss in order for the carrier to be liable: see Smith Hogg & Co. v. Black Sea and Baltic General Insurance Co. (1940), 67 Lloyd's L.R. 253 at 259 and Maxine Footwear Co. Ltd., supra, at 113.

[151]        Doman has alleged that Sea-Link breached its common law duty to provide a seaworthy ship by failing to adequately equip the barge to carry out the voyage. It says that the lashing points on the barge at ten-foot intervals were inadequate for the cargo and the sidewalls were too low for the volume of cargo described in the agreement.

[152]        As for the alleged insufficiencies of the lashings and the impropriety of lashing points at intervals of ten feet, I accept the arguments of Sea-Link that Doman knew about this arrangement when it provided the lashing specifications to Sea-Link. Doman made a written request for a minimum of 48 chains. Two chains were connected together to pass over the cargo, making 24 sets of athwartship chains. This indicates that Mr. Forgaard had calculated the available and usable loading space on the barge to be approximately 240 feet, with 24 sets of chains at ten foot intervals.

[153]        Mr. Forgaard acknowledged that he had received the dimensions of the barge prior to preparing for the first trip, which stated that the main deck length of the barge was 245 feet. It makes sense that he would have deducted some space as being unusable. His request for a minimum of 48 chains supports an inference that he was aware that the lashing points were at ten-foot intervals, and I so find. Doman cannot now complain that this was unsuitable.

[154]        Similarly, the information on the barge's dimensions included the sidewall height of 6.33 feet. Doman had this information when preparing its stow plan and did not raise the issue of sidewall height at that time. Doman suggested that steel stanchions should have been added to the sidewalls by Sea-Link. However, Doman's expert, Captain Vale, noted in his first report that it was his experience that attaching steel uprights to the sidewalls result in such uprights being "snapped off like carrot sticks" at their point of attachment to a sidewall when the vessel is in a violent rolling motion. Vale also testified that the height of the cargo would not have been a problem if it had been stowed in an interlocked manner with lashings at shorter intervals.

[155]        Sea-Link's expert, Mr. Lindsay, testified that the cargo should not have been loaded as high as it was, above the sidewalls. Mr. Lindsay agreed on cross-examination that additional steel stanchions may have permitted the loading of the targeted amount of lumber for the journey in question.

[156]        I prefer the evidence of Captain Vale to that of Mr. Lindsay on this point. The cause of the damage was not attributable to the height of the sidewalls, but rather to the manner in which the cargo was stowed, that is, without any interlocking or "bricklaying" and inappropriately spaced lashings. Further, Doman knew, or ought to have known, the height of the sidewalls when it received the dimensions of the barge, as that fact was provided on this document. Mr. Forgaard has already acknowledged receipt of the dimensions prior to the arrival of the barge for the first voyage.

[157]        Seaworthiness has also been interpreted as including the provision of a competent master and crew: see Standard Oil, supra, page 125 and "Eurasian Dream" (The), supra, page 738. Here, Doman says that Sea-Link is liable for its Master's inexperience on the "SEA-LINK YARDER", which led to his decision to embark with the stowage as it was, despite the fact that the cargo was not adequately secured.

[158]        Lord Atkinson in Standard Oil, supra, held that a ship may be rendered unseaworthy by the incompetency or inefficiency of the master and crew. Lord Atkinson stated at page 125:

...There cannot be any difference in principle, I think, between disabling want of skill and a disabling want of knowledge. Each equally renders the master unfit and unqualified to command, and therefore makes the ship he commands unseaworthy. And the owner who withholds from the master the necessary information should, in all reason, be as responsible for the result of the master's ignorance as if he deprived the latter of the general skill and efficiency he presumably possessed.

[159]        The master in that case was found to have a "disabling want of knowledge" due to the fact that the shipowner withheld necessary information related to the ship's stability from him. Consequently, the shipowner was responsible for the damage. Further, in "Eurasian Dream" (The), supra, at page 738, Justice Cresswell held that a carrier will be held at fault for not providing a seaworthy ship if it has not appointed a master and crew who have specific competence in relation to the vessel and voyage in question.

[160]        A "test" to determine whether the incompetence or inefficiency of the master and crew has rendered a vessel unseaworthy was restated in the"Eurasian Dream" (The), supra, at page 737 as follows:

Would a reasonably prudent owner, knowing the relevant facts, have allowed this vessel to put to sea with this master and crew, with their state of knowledge, training and instruction?

[161]        Doman says that the "SEA-LINK YARDER" loaded cargo that exceeded her capacity and that the Master did not have the information before him to know that intervention was necessary to ensure the cargoworthiness of the barge. Doman also says that Captain Hemeon's lack of experience in carrying lumber on the "SEA-LINK YARDER" descended to the level of incompetence so as to render the ship unseaworthy.

[162]        Concerning the Master's level of experience and competence for the voyage in question, I find that his lack of experience in towing lumber with the "SEA-LINK YARDER" does not meet the "disabling" standard as described in Standard Oil, supra. The evidence does not support a finding that the Captain had either a disabling want of knowledge or skill in relation to the voyage. He obtained his Master's ticket in 1982. He has had much experience in towing barges with varied cargos, including gravel, logs and scrap. He has operated in all seasons, from the Mexican-American border in the south and as far north as southeast Alaska.

[163]        Captain Hemeon, on cross-examination, acknowledged that the barge appeared to be overloaded when confronted with load line information for the "SEA-LINK YARDER". He testified that he did not think that the barge was overloaded at the time of the voyage.

[164]        The burden of proving unseaworthiness rests on the party alleging it: see Carver's Carriage of Goods by Sea, 13^th Ed. (1982), vol. 1, p. 124. When dealing with the obligation of seaworthiness and each party's respective duties under the Rules, the burden of proof is slightly different, as will be discussed below.     

[165]        The 1969 Supreme Court of Canada decision in Tahsis, supra, in my opinion, does not further Doman's argument that Sea-Link failed to provide a seaworthy barge because Sea-Link did not provide adequate information or instructions to Captain Hemeon. This flows from the concurring judgement of Spence J. In Tahsis, supra, Pigeon J. wrote for himself and Martland J. Ritchie J. wrote a dissenting judgement, concurred in by Abbot J. Spence J., "the swing vote", wrote the third judgment and agreed in the result with Pigeon J.

[166]        Pigeon J. held, relying on Standard Oil, supra, that seaworthiness required that a carrier has a duty to give proper loading instructions, whether or not the shipper had this responsibility pursuant to an agreement. He stated the following at page 33:

... I find it clear that the provision for responsibility for the scows during loading, cannot have the effect of suppressing during that period the obligation of the carrier to use due diligence to make the ship seaworthy. It is well established that seaworthiness requires more than structural soundness; it also requires proper instructions: Standard Oil Co. of New York v. Clan Line Steamers Ltd., [1924] A.C. 100. Even if this was not a legal requirement, the contract between the parties would make it such because it provides for "loading and trimming" in accordance with loading instructions provided by carrier to shipper from time to time. The provision for responsibility of the shipper during loading certainly cannot have been intended to displace the obligation to exercise due diligence to make the ship seaworthy by issuing proper and adequate loading instructions without which the ship would not be seaworthy during loading. Respondent's contention would result in putting on appellant's shoulders the burden of issuing to the loaders of the barge the instructions for loading that it was its legal and contractual duty to provide.

[167]        Pigeon J. distinguished between an underlying legal obligation that seaworthiness includes the Standard Oil principle that a carrier has a duty to provide proper instructions relating to the completed stowage if it affects the stability of the ship, regardless of the agreement between the parties, and a contractual duty, that is, what the parties' agreement indicates regarding their respective responsibilities.

[168]        Spence J. purported to support Pigeon J.'s finding on the duty of the carrier to give instructions. However, in my opinion, a reading of his judgment shows that he based his reasoning on the actual, contractual clause of the shipping agreement made between the parties, and not on a general, non-delegable duty of the carrier to give instructions relative to the loading of cargo. At page 46, Spence J. stated:

..It would appear to me that the words of clause 7(b) of the agreement in this case "scows shall be loaded and trimmed in accordance with loading instructions provided by Carrier to Shipper from time to time" imply a duty on the carrier to give such instructions to the shipper and not a mere right to give such instructions...

[169]        In my view, Spence J. concurred with Pigeon J.'s result on the basis of the actual wording of the provision in the agreement between the carrier and the shipper, rather than on the basis of an overriding legal duty of a carrier to provide loading instructions to a shipper, regardless of their agreement. Furthermore, as noted by Sea-Link, the facts of Tahsis, supra, were regarded as being unique, in that the scows (shallow trays used for transporting cargo) were very "tender" during loading.

[170]        Therefore, Tahsis, supra is not determinative of Sea-Link's obligation to provide instructions to Doman regarding loading, when loading and lashing was to be the responsibility of Doman, pursuant to the written agreement.

[171]        Doman relies on the decision in Standard Oil, supra to argue that notwithstanding any agreement with Sea-Link, the carrier, concerning the loading of the cargo, Sea-Link remains responsible for assessing how that loading affects the stability of the barge. For its part, Sea-Link argues that Standard Oil, supra, is distinguishable on its facts. In Standard Oil, supra, the vessel in question was a unique ship with turrets. The information that was withheld from the master specifically dealt with the tendency of such a ship to capsize. There were unique stability features pertaining to such a ship.

[172]        In the present case, the ship in issue is not a specialized one. The "SEA-LINK YARDER" is a barge, used for the carriage of different types of products. There was no evidence that the barge was a "specialty ship", either before or after the modifications were carried out.

[173]        Doman relies on the decision in Standard Oil, supra, to support its argument that Sea-Link's failure to provide Captain Hemeon with proper loading instructions and information about the stability of the barge contributed to the unseaworthiness of the barge.

[174]        It is undeniable, on the basis of the evidence, that Mr. Brown did not provide Captain Hemeon with instructions about loading or the stability of the barge. Indeed, Mr. Brown took a casual attitude to the question of stability, apparently contenting himself with the observation that the barge did not tip over during the voyage in issue. However, in my view, the question is whether the lack of instructions and information handicapped Captain Hemeon in his command of the barge during the voyage of November 14, 1998.

[175]        In my opinion, this lack of instructions did not render the barge unseaworthy because that information was not so specialized that its unavailability rendered the Master incapable of understanding the basic stability features of barges and acting accordingly.

[176]        Furthermore, Doman's expert, Captain Vale, expressed the opinion that it would have been possible to safely load eight tiers of cargo in this situation if there had been a "good compact stow".    Captain Vale also stated that the volume of cargo in the agreement could have been safely carried if a crane had been used in loading. Doman did not use a crane.

[177]        In light of this evidence, I do not agree with Doman's proposition that Captain Hemeon's lack of knowledge regarding the volume of cargo that could be loaded on the barge resulted in the ship becoming unseaworthy. To obtain this result, this factor would have to be an actual cause of the barge damage. Instead, the evidence points to the conclusion that the real cause of the barge damage was improper loading and lashing of the cargo.    

[178]        I therefore conclude that the Master's unawareness, while undesirable, was not the effective cause of the cargo shift and Sea-Link cannot be found to have breached its duty to provide a seaworthy ship. Nonetheless, Doman has raised questions as to what Sea-Link could have done to avoid the barge damage that was ultimately caused by Doman's actions. For this, Sea-Link should bear partial responsibility for its loss.

[179]        My conclusion would be the same if based on the rights and obligations as set out in the Rules. Both Sea-Link and Doman refer to the Rules, each claiming that they support their respective positions regarding liability for improper or negligent loading and lashing of the cargo. Doman submits that the Rules are applicable to this situation by virtue of COGWA, whereas Sea-Link submits that they apply pursuant to the MLA.

[180]        COGWA was repealed, as of August 8, 2001 by S.C. 2001, c. 6, s. 130 and replaced with the MLA, which came into force, except for sections 45 and 129, on that same date. The damage occurred some time on November 15, 1998 and this action was commenced on November 5, 1999. Both dates are within the time when COGWA was still in force and prior to the coming into force of the MLA.

[181]        In Incremona-Salerno Marmi Affini Siciliani (I.S.M.A.S.) s.n.c. v. Castor (The) (2002), 297 N.R. 151 (F.C.A.), the Federal Court of Appeal held that a particular section of the MLA did not have retroactive effect and referred to the presumption against construing statutes to have retrospective application. In my opinion, the MLA does not apply to this proceeding, and in any event, it is not dispositive, as the Rules would be brought into Canadian law in either situation, that is, under COGWA or pursuant to the MLA.          

[182]        By virtue of section 7(2)(b) of COGWA, the Rules are applicable to contracts of the carriage of goods by ship from one place in Canada to any other place in Canada. Section 7(4) of COGWA does not apply to this situation.

[183]        Article 3(1)(a) of the Rules imposes on the carrier the obligation of exercising due diligence in making the ship seaworthy. Doman argues that a consequence of finding that the vessel was unseaworthy is that Sea-Link cannot rely on any of the exceptions in Article 4(2) of the Rules.

[184]        Article 3(2) of the Rules imposes on the carrier the obligation to "properly and carefully" load, handle, stow, carry, keep, care for and discharge the goods carried. The general liability of a carrier for the proper and careful loading, stowing and discharge of the goods carried can be avoided by one of the exceptions contained in Article 4(2).    Article 3(2) expressly states that it is "subject to the provisions of Article 4". Sea-Link relies on Article 4(2)(i) to limit its liability. Article 4(2)(i) states:

Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:

...

(i) act or omission of the shipper or owner of the goods, his agent or representative;

[185]        Unlike Article 3(2), Article 3(1) does not contain the wording that it is "subject to" the exceptions provided in Article 4 and it has been held in Maxine Footwear Co. Ltd., supra, at 113 and "Eurasian Dream" (The), supra, that Article 4(2) of the Rules may not be relied upon where the carrier is in breach of its "overriding obligation" to provide a seaworthy ship and such breach is causative of the damage.

[186]        Under the Rules, once a cargo owner establishes that the cargo was damaged, the burden shifts to the carrier to offer a defence. The carrier can then shift the burden of proof back to the shipper by establishing that the loss or damage is attributable to one of the exceptions set out in Article 4. Then the cargo owner must establish either the carrier's negligence or both that the ship was unseaworthy and that the loss was caused by the seaworthiness. If unseaworthiness is established, then the carrier can only escape liability by establishing due diligence was exercised in making the ship seaworthy: see Kruger Inc. v. Baltic Shipping Co., [1988] 1 F.C. 262 (T.D.), affirmed [1989] F.C.J. No. 229 (C.A.)(QL) and Nova Steel Ltd. v. Lithuanian Shipping Co. (2002), 216 F.T.R. 1.

[187]        In the present case, problems with the knowledge of the Master and his decision to depart with stowage that was not adequately secured, did not cause the ultimate damage to the barge. Doman, by agreement, assumed responsibility for loading and lashing, and the inadequacy of their work in this area caused the cargo to shift, resulting in barge damage. Other factors which may or may not have aided in avoiding this damage do not change this conclusion.    From this perspective, I find that Sea-Link is to be held partially responsible for the loss, but not on the basis that it provided an unseaworthy vessel.

[188]        The cause of the barge damage arose from "an act or omission of the shipper," namely, Doman's inadequate and improper loading of the cargo. The agreement stated that Doman was to be responsible for these activities.

[189]        Sea-Link has not breached its overriding obligation to provide a seaworthy ship, pursuant to common law principles or pursuant to the Hague-Visby Rules. The fitness of the "SEA-LINK YARDER" when commencing her voyage was that which an ordinary, prudent and careful owner would have required. The barge would have been capable of carrying her cargo, if it had been properly stowed. Pursuant to the agreement between the parties, the responsibility for planning the stowage and loading the cargo was on Doman.

[190]        Concerning the loss of use claim, Sea-Link has not provided any evidence to support this claim. It did not demonstrate lost opportunities or show what business it would usually conduct in December and January of a "normal" year. Mr. Brown, for Sea-Link, testified that the barge "SEA-LINK RIGGER" was available and unused during the period after December 8, 1998 and Sea-Link's barge "ARCTIC TUK" was available and unused the entire time. Further, Mr. Brown could not identify any business he had turned away because the "SEA-LINK YARDER" was out of service, being repaired.

[191]        I consider Sea-Link's claim for loss of use to be in the nature of a claim for special damages. Special damages must be strictly proven. In any event, a party seeking recovery of such damages must provide adequate proof and the Court cannot create a figure for those damages: see Pembina Resources Ltd. v. ULS International Inc., [1990] 1 F.C. 666 (T.D.) at 702-703. The submission on behalf of Sea-Link that it had "an expectation" of employment does not meet the evidentiary burden for recovery of damages under this heading.

[192]        In summary, the action is allowed in part. I find Doman to be 60% liable for the agreed damages, that is, 60% of $132,741.23, and Sea-Link is to bear 40% of the loss. Post-judgment interest was neither agreed to by the parties, nor was it addressed in argument. I invite brief submissions on that point, having regard to section 37(1) of the Federal Court Act, R.S.C. 1985, c. F-7, in the event that the parties do not reach agreement on that issue. In the exercise of my discretion pursuant to the Federal Court Rules, 1998, costs shall be apportioned between the parties in the same ratio as the apportionment of liability, such costs to be assessed on a party-and-party basis.

ORDER

The action is allowed in part and Sea-Link Marine Services Ltd., Union Tug and Barge Ltd. and the owners and all others interested in the ships "ARCTIC HOOPER" & "SEA-LINK YARDER", Plaintiffs by Counterclaim, are entitled to recover 60% of the damages as agreed, no recovery for loss of use, prejudgment interest at the rate of 4% per annum as agreed, submissions to be made on the question of post-judgment interest unless otherwise agreed between the parties, and the costs of this action shall be assessed in accordance with the Federal Court Rules, 1998, SOR/98-106, Tariff B on a party-and-party basis, such costs to be apportioned between the parties in the ratio of 60% to the Plaintiffs by Counterclaim, 40% to Doman Forest Products Limited, Defendant by Counterclaim.

                                                                                           "E. Heneghan"

                                                                                                      J.F.C.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-1949-99

STYLE OF CAUSE:              Doman Forest Products Limited v. The Ships "ARCTIC HOOPER" and "SEA-LINK YARDER"

PLACE OF HEARING:                      Vancouver, British Columbia

DATE OF HEARING:                        November 26, 27, 28 , 29 and December 3, 2002

REASONS FOR ORDER:              Heneghan, J.

DATED:                                                June 13, 2003

APPEARANCES:

Mr.Chris Giaschi                                     FOR DEFENDANT BY COUNTERCLAIM

Mr. Gary Wharton                                   FOR PLAINTIFFS BY COUNTERCLAIM

SOLICITORS OF RECORD:

GIASCHI MARGOLIS                         FOR DEFENDANT BY COUNTERCLAIM

Vancouver, British Columbia     

BERNARD & PARTNERS                   FOR PLAINTIFFS BY COUNTERCLAIM

Deputy Attorney General of Canada