Trainor v. The Black Diamond S.S. Co., (1889) 16 SCR 156

Supreme Court of Canada

Trainor v. The Black Diamond S.S. Co., (1889) 16 S.C.R. 156

Date: 1889-03-18

Patrick Trainor (Plaintiff) Appellant;

and

The Black Diamond Steamship Company of Montreal (Defendants) Respondents.

1888: October 10; 1889: March 18.

 Present:—Sir W. J. Ritchie C.J., and Strong, Fournier, Taschereau and Gwynne JJ.

on appeal from the supreme court of prince edward island.

Contract—Carriage of goods—Negligence—Bill of lading—Excep­tion from, liability under—Pleading.

A bill of lading acknowledged the receipt on board a steamer of the defendants, in good order and condition, of goods shipped by T. (fresh meat) and contracted to deliver the same in like good order and condition* * *loss or damage resulting from sweating * * * decay, stowage,* * * or from any of the following perils, whether arising from the negligence, default or error in judgment of the pilot, master, mariners or other persons in the service of the ship, or for whose acts the shipowner is liable (or otherwise howsoever) always excepted, namely (setting them out).

Held, affirming the judgment of the court below, Sir W. J. Ritchie C.J. and Fournier J. dissenting, that the clause "whether arising from the negligence, default or error in judgment of the master," &c., covered as well the preceding exceptions as those which followed, and was not limited in its application by the words "from any of the following perils," and the defendants were, therefore, not liable for damage to the goods shipped resulting from improper stowage, which was one of the excepted perils.

APPEAL from a decision of the Supreme Court of Prince Edward Island, setting aside a verdict for the plaintiffs and ordering a non-suit.

This was an action of damages against the defendant company for negligence in storing and carrying the

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plaintiffs goods, fresh beef and mutton, from Charlottetown to St. Johns, Newfoundland. The defence was that the injury to the goods arose from causes for which the defendants were exempt from liability under the bill of lading.

The exemptions in the bill of lading were amongst others, the following: " (The act of God, the Queen's enemies, pirates, robbers, thieves, vermin, barratry of master or mariners, restraint of princes and rulers, or people, or resulting from strikes or mob, loss or damage resulting from sweating, insufficiency of package, leakage, breakage, pilferage, wastage, rust, frost, decay, rain, spray, stowage, or contact with or smell or evaporation from any other goods, insufficiency of marks, numbers, address, or description of goods shipped, injury to wrappers, however caused, or from any of the following perils (whether arising from the negligence, default or error in judgment of the pilot, master mariners, engineers or other persons in the service of the ship, or for whose act the shipowner is liable..or otherwise howsoever) always excepted, namely, risk of craft or hulk, or transhipment, explosion, heat, fire at sea, in craft or hulk, or on shore, boiler, steam or machinery, or from the consequences of any damage or injury thereto, however such damage or injury may be caused."

One of the contentions of the defendants was that the words in the above exceptions, "whether arising from the negligence, default or error etc" covered what went before, as well as what came after them.

The negligence principally relied on by the plaintiffs Was in the manner of stowing the goods on the vessel, and as to this the learned judge who delivered the judgment of the full court, and who had also tried the case, says: " In my charge to the jury, I said that it appeared that during the time the meat was being

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packed it rained, the hatch was uncovered and that the meat packed under it must have been much wetted. That it also appeared that the men engaged in packing necessarily trod upon it with their boots on in this wet state, and that it was for the jury to say whether this was a proper mode o shipping and stowing the meat. That, in my opinion, a more improper manner of treating goods committed to a carrier could not be imagined, and I think so still." But he held that it was competent for the defendants to protect themselves against liability for any and all negligence, and that the bill of lading did so protect them in this case. He also found that the word "stowage," in the exceptions in the bill of lading, necessarily meant "improper stowage."

The plaintiffs claimed that even if the defendants were protected from liability on account of gross negligence, which they disputed, yet as they had only pleaded exemption on account of a portion of the exempted clauses, and the damage was occasioned by a clause not pleaded, namely, heating, they could not claim the benefit of such exceptions.

The Supreme Court, en banc, sustained the judgment of the trial judge in favor of the defendants. The plaintiff then appealed to this court.

Davies Q.C. and Morson for the appellant. It cannot be disputed that the defendants were guilty of negligence, and they must show that they are protected by the exceptions which they have pleaded. If they choose to rely, in their pleadings, on specified exceptions they cannot claim the benefit of others which are not pleaded.

The bill of lading does not relieve the owner from the necessity of providing a seaworthy ship and proper accommodation for stowing the cargo.

The following authorities were relied on. Steel v.

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The State Line S. S. Co. ([1]); Stanton v. Richardson ([2]); Tattersall v. The National Steamship Co. ([3]); Gillespie v. Thompson ([4]); Hutchinson on Carriers ([5]).

Peters for the respondents. The plaintiffs did not declare against us for not providing a seaworthy ship and cannot rely on it now.

In the bill of lading the exception for "stowage" must be taken to mean "negligent stowage," as there could be no damage for stowage not negligent.

SIR W. J. RITCHIE C.J.—I think it was the duty of the shipowners to provide: first, a suitable vessel; secondly, a suitable place in that, vessel having regard to the nature of the cargo shipped; and thirdly, to take it on board at a suitable time and in a suitable manner, that the shipowners are bound to provide a ship reasonably fit for the purpose of the carriage of the cargo, that is meat, in this case, which they contracted to carry and that the shipowners warrant the fitness of their ship when she sails, and that if the proviso in the bill of lading that the owners will not be responsible for the default of the master applies to this case it does not relieve them from the implied obligation to provide a vessel efficient and properly equipped for the service.

Then, did the shipowners make provision sufficient to enable them to fulfil their contract? I think they did not. If the meat could not be shipped under the hatchways without the hatchways being uncovered, and the meat exposed for an hour and a half to the pouring rain, and without the men trampling on it with their wet muddy boots, and spitting their tobacco juice on it, certainly the place was not, in my opinion, a fit and proper place, either as to the time of loading,

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during a pouring rain, or as to placing the meat there at all. It was, in my opinion, the duty of the shipowners to ship the cargo, having reference to its nature and liability to injury, at a time when it could, with reasonable and proper care, be safely shipped ; and the shipowners, having like reference, were, in my opinion, bound to ship the cargo in a proper place where it could be stowed without being so trampled or spit upon; in other words, having undertaken to carry fresh meat, the obligation was on them to furnish a vessel fit to carry, in a fit and proper place, that cargo, and it cannot be disputed that the place in which this meat was put was an improper place if the meat could not be shipped dry and without being trampled and spit upon; and it was, therefore, not a fit and proper place for the purpose. As was said by the Privy Council in "The Freedom" ([6]):

The simple truth is, that they did not make provisions sufficient to enable them to fulfil their contract.

And after stating that the shipowners ought to have known that without ventilation and without circulation of air, &c, a portion of the cargo shipped would be damaged, the judgment proceeds:

As they did not, in fact, provide sufficiently against such a natural, if not necessary, consequence, they imposed upon themselves the disability to fulfil the express contract into which they had entered under the bill of lading. In this view it is not material to the plaintiffs whether the defendants are or are not chargeable with neglect, default or improvidence. It is enough for the plaintiffs to have established that the defendants have not performed their contract and have not sustained either of the defences which they have pleaded as a legal excuse for non-performance.

I think it was not right or proper to remove the meat from the warehouse, as one of the witnesses says, in a pouring rain; and the judge says, "it rained during the whole time of the loading and there was no covering over the hatchway,” about 8 feet square;

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"(the mate explained that the lowering tackle could not work if there had been)."

I think they should have waited until the weather was suitable for shipping such a cargo.

The learned judge says:

In my charge to the jury I said that it appeared that during the time the meat was being packed it rained, the hatoh was uncovered; and that the meat packed under it must have been wetted ; that it also appeared that the men engaged in packing necessarily trod upon it with their boots on in this wet state ; and that it was for the jury to say whether this was a proper mode of shipping and stowing the meat; that, in my opinion, a more improper manner of treating goods committed to a carrier could not be imagined, and I think so still.

And the jury have so found it, and, in my opinion, loading meat at an improper time, on a rainy night with open hatches, and at a place where the men had to trample on the meat with muddy boots and to spit tobacco juice on it, are not within any of the exceptions of the bill of lading.

In my opinion, the loss was caused by the previous default of the shipowners. In the case of a bill of lading it is different from that of a policy of insurance, because there the contract is to carry with reasonable care, unless prevented by the excepted perils ; if the goods are not carried with reasonable care, and are consequently lost by perils of the seas, it becomes necessary to reconcile two parts of the instrument and this is done by holding that if the loss through perils of the seas is caused by the previous default of the shipowners He is liable for this breach of his covenant. Per Willes J. in Grill v. General Iron Screw Collier Co. ([7]), said to be the true view of Lord Herschell in Wilson v. Owners of Cargo per The Xantho ([8]).

The bill of lading acknowledges the articles to have been shipped in good order and well conditioned

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and they are to be delivered in like good order and well conditioned at the port of St. Johns with the following exceptions:

The act of God, the Queen's enemies, pirates, robers, thieves, vermin, barratry of master or mariners, restraint of princes and rulers; or people, or resulting from strikes, or mob, loss or damage resulting from sweating, insufficiency of package, breakage, pilferage, wastage, rust, frost, decay, rain, spray, stowage, or contract with or smell or evaporation from any other goods, insufficiency of marks, numbers, address, or descriptions of goods shipped, injury to wrappers however caused, or from any of the following perils, whether arising from the negligence, default or error in judgment of the pilot, master, mariners, engineers or other person in the service of the ship, or for whose acts the shipowners is liable, or otherwise howsoever) always excepted—namely, risk of craft or hulk, or transhipment, explosion, heat or fire at sea, in craft or hulk, or on shore boilers, steam or machinery, or from the consequences of any damage or injury thereto, however such damage or injury may be caused. Collision, stranding or peril of the seas, rivers, navigation of land transit of whatever nature or. kind soever, and howsoever caused, With liberty in the event of the steamer putting back or into any port, or otherwise being prevented from any cause from proceeding in the ordinary course of her voyage, to tranship the goods by any other steamer, and with liberty to sail with or without pilots, to call at any intermediate port or ports, and to tow and assist vessels in all situations.

As at present advised, I think the exception as to exemptions from negligence or default applies to the "following perils" and not to the antecedents named, namely, whether arising from the negligence, default or error in judgment of the pilot, master', mariners, engineers or other persons in the service of the ship, or for whose act the shipowner is liable, or otherwise howsoever, and so "whether arising from negligence" does not apply to all that has gone before, but only to the perils afterwards enumerated, and if so the exceptions in the bill of lading did not protect the shipowners. from negligence as to stowage, or any of the other matters named in the bill of lading anterior to the provision relating to negligence, &c., and therefore

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they did not contract themselves out of liability arising from negligent stowage.

I think to enable the shipowner to contract against the effect of his own, that is his servants' negligence, the contract should be so clear and unambiguous as not to be open to any reasonable doubt as to the intention of the parties; if not made so clear, the construction should be against the shipowner and in favour of the shipper.

Be this as it may, I think the terms of the bill of lading relate to the carriage of the goods on the voyage and not to anything before the commencement of the voyage.

In this case the bill of lading acknowledges the receipt of the goods in apparent good condition, to be delivered from the ship's deck in like good order and condition, and there is evidence to show that the meat was in good condition when received by the shipowners in their warehouse.

(His Lordship then read a portion of the evidence and proceeded):

Can there be any doubt that this meat left the warehouse in good condition and was landed at St. John's in a most dirty, filthy, disgraceful condition?

I think the evidence was quite sufficient to warrant the jury in arriving at the conclusion that the meat when received at the warehouse and when ready to be shipped was in good condition.

No doubt, as in the case of "The Freedom" ([9]), from the cramming of the ship so as to prevent any circulation of air and the closing of the hatches the atmosphere in the ship's hold became heated, damp and vitiated, without means of escape, and this atmosphere was the proximate cause of the damage to the meat, the subject of this suit; and this was

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aided and accelerated by reason of taking in the cargo at an improper time, in view of the heavy rain falling and in view of the treading on of the meat with the dirty boots of the packers, and the tobacco spitting on the meat by the stowers. The duty of defendant to carry and deliver these goods arises out of his contract, and his failure to do so is a breach of that contract. I am of the opinion in this case that, independent of and apart from any construction to be put on the bill of lading, the defendants have broken their contract, without any sufficient excuse or justification, and t ht this action is maintainable. Upon this point the law seems to be abundantly clear.

In Czech v. The General Steam Navigation Company ([10]) Bovill C. J. says:

The evidence in every case must vary according to its peculiar circumstances; but if the goods are damaged, and no reasonable explanation of the damage can be given, except the negligence of the defendants, a jury are justified in finding that such negligence is proved.

WILLES J:

I will, however, assume that it is so for the purpose of this case, but it does not, therefore, restrict the plaintiffs as to the nature of the evidence by which such negligence shall be proved. To explain this by an illustration: If a shipment of sugar took place under a bill of lading, such as the present one, and it was proved that the sugar was sound when put on board, and had become converted into syrup before the end of the voyage, if that was put as an abstract case I think the shipowner would not be liable, because there may have been storms which occasioned the injury, without any want of care on the part of the captain or crew ; the injury alone, therefore, would be no evidence of negligence on their part. But if it was proved that the sugar was damaged by fresh water then there would be a strong probability that the hatches had been negligently left open, and the rain had so come in and done the injury, and, though it would be possible that some one had wilfully poured fresh water down into the hold, this would be so improbable that a jury would be justified in finding that the injury had been occasioned by negligenoe in the management of the ship.

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In Phillips v. Clark ([11]) Cockburn C. J. says:—

The question arises upon these words in the margin of the bill of lading, "Not accountable for leakage or breakage." Admitting that a carrier may protect himself from liability for loss or damage to goods intrusted to him to carry, even if occasioned by negligence
on the part of himself or his servants, provided any one is willing to contract with him on such terms, yet it seems to me that we ought not to put such a construction upon the contract as is here contended for when it is susceptible of another and more reasonable
one.* * * *

But there is no reason why, because he is by the terms of the contract relieved from that liability, we should hold that the plaintiff intended also to exempt him from any of the consequences arising from his negligence. The contract being susceptible of two constructions, I think we are bound to put that construction upon it which is the more consonant to reason and common sense; and to hold that it was only intended to exempt him from his ordinary common law liability, and not from responsibility for damage resulting from negligence. I therefore think the plaintiff is entitled to judgment.

Crowder, J.:

It could hardly have been contemplated by the plaintiff that the defendant should be utterly absolved from the obligation of taking any care of the goods. The construction put upon the contract by my Lord is evidently the most just and reasonable, as absolving the defendant from liability for leakage and breakage, the result of mere accident, where no blame was imputable to the master, and for which, but for the stipulation in question, he would have been still liable. It clearly was not intended to relieve him from responsibility for leakage or breakage, the result of his negligence and want of care. The construction contended for on the part of the defendant would be giving the contract a sense not necessarily involved in the words as they stand.

In Taylor et al v. The Liverpool and Great Western Steam Company ([12]) it appears by the statement of the case that the following were the material parts of the bill of lading:

Received, in good order, &c., on board the steamship Nevada, one box, said to contain precious stones of the value of £250, to be

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delivered from the ship's deck (subject to the exceptions and restrictions in the following and undermentioned clause) at the port of New York; the act of God, the Queen's enemies, pirates, robbers, thieves, vermin, barratry of master and mariners, restraints of princes and rulers, or people, sweating, insufficiency of package, in size, strength, or otherwise, leakage, breakage, pilferage, wastage, rain, frost * * * and all damage, loss or injury arising from the perils or things above mentioned, and whether such perils or things arise from the negligence, default or error in judgment of the pilot, master, the mariners, engineers, stevedores, or other persons in the service of the shipowners, always excepted.

Lush J. says:

The first question is, does "thieves" include persons on board the ship, or is it to be limited, as has been held in cases as to policies of insurance, to persons outside the ship and not belonging to it. The word is ambiguous, and being of doubtful meaning it must receive such a construction as is most in favor of the shipper, and not such as is most in favor of the shipowner, for whose benefit the exceptions are framed; for if it was intended to give to it the larger meaning which is now contended for, the intention to give the shipowner that protection ought to have been expressed in clear and unambiguous language. It is not, I think, reasonable to suppose, when the language used is ambiguous, that it was intended that the shipowner should not be liable for thefts by one of the crew or persons on board. The shipowner must protect himself if he intends this by the use of unambiguous language.* * *

The case of Czech v. General Steam Navigation Co. ([13]) seems to me to have no direct bearing on this case. There it was stipulated in the bill of lading that the shipowner should not be liable for breakage, leakage or damage (which had been decided by previous cases not to include leakage, or breakage, or damage caused by the negligence of the shipowner or his servants).

The language of Lush J. is quoted in Hayn v. Culliford ([14]) and acted on by Denman, J. in delivering the judgment of the court.

In Grill v. General Iron Screw Colliery Co. ([15]), Kelly C. B. says:

With respect to the question whether a loss by the negligence of the defendant's servants is within the exception in the bill of lad-

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ing, I am of opinion that is concluded by authority. The cases of Phillips v. Clark ([16]) in the Common Pleas, and Lloyd v. General Iron Screw Collier Co. ([17]) in the Exchequer, are expressly in point; and we ought not to overrule those decisions, though sitting in a Court of Error, unless we think them to be opposed to some principle of law or to common sense. I agree with my brother Channell that, independently of all authority, the loss in this case is not within the exception. If shipowners wish to except losses resulting from the negligence of themselves or their servants they must do so by express language, though they may thereby make the bill of lading repugnant. To show how impossible it is to construe the exception in this bill of lading in the way contended for by the defendants, I need only refer to what Cresswell J. says in Phillips v. Clark (l).The question there arose upon a bill of lading which contained a stipulation that the owner was not to be accountable for leakage and breakage, and that learned judge says : "Ordinarily, the master undertakes to take due and proper care of goods intrusted to him for conveyance, and to stow them properly, and he is responsible for leakage and breakage. Here he expressly stipulates not to be accountable for leakage and breakage, leaving the rest as before. That is to say, the ordinary obligation of the owner to take due and proper care of the goods was left untouched by the exception. It appears to me, and I believe to the rest of the court, that the loss in question arising from negligence is not within the exception and that the liability of the owners is only to be excluded by express words.

With reference to the duty of the shipowners to provide a fit and proper ship, and proper accommodation for stowage of the goods, the law is also clear. On this point I refer to the following authorities:—

In Tattersall v. National Steamship Co. ([18]) the bill of lading contained the following exceptions and conditions:

These animals being in sole charge of shippers' servants, it is hereby expressly agreed that the National Steamship Company, Limited, or its agents or servants, are, as respects these animals, in no way responsible for either their escape from the steamer or for accidents, disease, or mortality, and that under no circumstances shall they be held liable for more than £5 for each of the animals;

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all dogs to be placed wherever the captain may appoint, but at the sole risk of the shipper and (or) owner, the act of God, the Queen's enemies, pirates, robbers, thieves by land or at sea, barratry of master or mariners, restraint of princes, rulers, or people; loss or damage resulting from heat, boilers, steam or steam machinery, including consequences of defect therein, or damage thereto, collision, stranding, or other perils of the sea, rivers, steam and steam navigation; and all damage, loss or injury arising from the perils or matters above mentioned, and whether such perils or matters arise from the negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, or other persons in the service of the shipowners.

Day J. says:—

I take it to have been clearly established, if not previously, at any rate since the case of Steel v. State Line Steamship Company (1[19]), that where there is a contract to carry goods in a ship there is, in the absence of any stipulation to the contrary, an implied engagement on the part of the person so undertaking to carry that the ship is reasonably fit for the purposes of such carriage. In this case it is clear that the ship was not reasonably fit for the carriage of these cattle. There is, therefore, a breach of their implied engagement by the defendants, and the plaintiff having sustained damage in consequence, must be entitled to recover the amount of such damage, unless the defendants are protected by any express stipulation.

I have considered the terms of the bill of lading, and as I construe it, its stipulations, which have been relied upon, all relate to the carriage of the goods on the voyage, and do not in any way affect the liability for not providing a ship fit for their reception.

They were damaged simply because the defendant's servants neglected their preliminary duty of seeing that the ship was in a proper condition to receive them, and received them into a ship that was not fit to receive them.

A. L. Smith. J. says:

It is admitted that the damage was occasioned by the negligence of the shipowner's servants before the voyage commenced, in not properly cleansing and disinfecting the ship. There is unquestionably a duty on the part of the shipowner to have the ship reasonably fit for the carriage of the goods. The case of Steel v. The State Line Steamship Company (1) conclusively so decides. Is there, then, anything in this bill of lading to exempt the defendants from what would primd facie be their liability in respect of the breach of this duty? I do not think there is. The terms of the bill of lading

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which have been alluded to appear to me to deal with the contract so far as it relates to the carriage of the goods upon the voyage; they do not, in my opinion, relate to anything before the commencement of the voyage.

 Bovill C. J. In Stanton v. Richardson ([20]):

The ship must be fit to receive any reasonable cargo of the nature that the shipowner undertook to carry.

In Carver's Carriage by Sea ([21]) the law is thus laid down:

A shipowner will not be exonorated from losses arising from any of these excepted causes when there has been any neglect on his part to take all reasonable steps to avoid them, or to guard against their possible effects; Siordet v. Hall ([22]), The Freedom ([23]), or to arrest their consequences. (See illustrations cited in Ang.Carr, ss. 160-164), Notara v. Henderson ([24]). And where these causes have followed upon a departure from the proper prosecution of the voyage, and would not have operated but for that, the shipowner is not excused; as where a tempest has been encountered after a deviation from the proper course; Scaramangav. Scamp ([25]), Davis v. Garrett ([26]). And see infra, ch. X., or where the cargo has deteriorated owing to improper delay on the voyage. Hawes v. S. E. Ry. Co. ([27]), but see Baldwin v. L.C. & D. Ry. Co. ([28]).

And further, the shipowner is always responsible for loss or damage to the goods, however caused, if the ship was not in a seaworthy condition when she commenced her voyage, and if the loss would not have arisen but for that unseaworthiness. This is so, although the shipowner may have taken all reasonable pains and precautions to make the ship seaworthy, if, in fact, he has failed to make her so. He undertakes absolutely that she shall be fit, on sailing upon the voyage, to carry the cargo which she has on board, and with it to encounter safely whatever perils a ship of that kind may fairly be expected to be exposed to in the course of that voyage at that season of the year. If her unfitness becomes a real cause of loss or damage to the cargo the shipowner is responsible, although other causes, from whose effects he is excused, either at common law or by express contract, have contributed to produce the loss. The Glenfruin ([29]), Steel v. State Line SS. Co. ([30]), Kopitoff v. Wilson ([31]), Lyon v. Mells ([32]).

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Lord Blackburn, in Steel v. State Line Steamship Co., ([33]), said: —

I take it, my Lords, to be quite clear, both in England and in Scotland, that where there is a contract to carry goods in a ship, whether that contract is in the shape of a bill of lading or any other form, there is a duty on the part of the person who furnishes or supplies that ship, or that ship's room, unless something be stipulated which should prevent it, that the ship shall be fit for its purpose. That is generally expressed by saying that it shall be seaworthy; and I think, also, in marine contracts—contracts for sea carriage—that is what is properly called a " warranty," not merely that they should do their best to make the ship fit, but that the ship should really be fit.

The conclusion, then, at which I have arrived, is that the defendants were guilty of a breach of duty in taking the meat on board at an improper time, in reference to the state of the weather, and also in the manner in which it was handled on being taken on board. If the majority of the court agree in this view, and with the construction I have put on the bill of lading, then the appeal should be allowed with costs, and the verdict restored. If, on the contrary, a majority cannot arrive at this conclusion, then, as the defendants were also guilty of a breach of duty in failing to provide a fit and proper ship, and a fit and proper place in that ship for the stowage of goods contracted to be carried; and as the plaintiffs can maintain an action for such breach of duty, but as the trial of this case seems to have turned rather on the terms of the bill of lading than on any breach of the implied obligation of the shipowners, the appeal should be allowed with costs and a new trial ordered, with leave to the plaintiff to amend his declaration as he may be advised and to the defendants to amend their pleas to meet such amended declaration.

STRONG J.—If the respondents' liability as carriers had been in no way restricted by contract there was

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ample evidence to warrant the verdict. The decision of the court below, in setting aside the verdict, can, therefore, only be supported by establishing that the terms of the bill of lading were such as to exonerate the respondents from liability for the negligence of their crew; and this is the only question which need be considered. The exception in the bill of lading is as follows:

The act of God, the Queen's enemies, pirates, robbers, thieves, vermin, barratry of master or mariners, restraint of princes and rulers, or people, or resulting from strikes or mob, loss or damage resulting from sweating, insufficiency of package, leakage, breakage, pilferage, wastage, rust, frost, decay, rain, spray, stowage, or contact with or smell or evaporation from any other goods, insufficiency of marks, numbers, address or description of goods shipped, injury to wrappers, however caused, or from any of the following perils, whether arising from the negligence, default or error in judgment of the pilot, master, mariners, engineers or other persons in the service of the ship, or for whose acts the shipowner is liable, or otherwise howsoever, always excepted—namely, risk of craft or hulk, or transhipment, explosion, heat or fire at sea, in craft or hulk, or on shore, boilers, steam or machinery, or from the consequences of any damage or injury thereto, however such damage or injury may be caused. Collision, stranding or other peril of the seas, rivers, navigation or land transit of whatever nature or kind soever, and howsoever caused, with liberty, in the event of the steamer putting back or into any port, or otherwise being prevented from any cause from proceeding in the ordinary course of her voyage, to tranship the goods by any other steamer, and with liberty to sail with or without pilots, to call at any intermediate port or ports, and to tow and assist vessels in all situations.

It appears to me that the construction of this exception is plain, and entitles the shipowners to the exemption which they claim. The obvious and grammatical reading of it is, that "loss or damage resulting from stowage" is an excepted peril "whether arising from the negligence, default, or error in judgment of the pilot, master, mariners, engineers, or other persons in the service of the ship, for whose acts the shipowner is liable, or otherwise howsoever.

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That this, and not that which would confine the exception of negligence to the perils immediately afterwards enumerated, is the proper construction is apparent when we consider that what is excepted is "loss or damage,'' which might result as well from perils antecedently specified as from those subsequently mentioned.

The bill of lading in Steel v. State Line Company ([34]) was similarly worded, but the House of Lords there did not pronounce any judgment on the question of construction, inasmuch as it was sufficient for the disposition of that case to hold that the shipowners were liable on the implied undertaking that the ship was seaworthy, of which it was held there had been a breach and from which there had been no dispensation from liability. That case is, therefore, not an authority here for either party.

As regards contracts for carriage of goods by sea, the Legislature has not interposed to control the contracts of the parties, stipulating for freedom from liability for negligence, as it has in England in the case of railway and canal companies, and here also to some extent in the case of railway carriers. In cases like the present the parties are free to enter into any contract they may think fit.

It is no doubt a well established and sound rule of construction that the exception of liability for the negligence of the crew and other persons for whose acts the owner is, by the general law, responsible, should be provided for in the most plain and unequivocal terms, and that all doubtful or ambiguous clauses should be strictly interpreted against the owner for whose benefit they are introduced into the contract. But giving the appellant the full benefit of this rule, I am unable to see that there can be the least doubt as to the meaning of the exception found in this bill of lading.

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Then, this being the proper construction of the instrument the onus was upon the respondents to bring themselves within it, and this I am of opinion they have done, since the evidence clearly established that the damage to the meat was caused by bad stowage, careless exposure to rain, and the negligent conduct of the crew. The verdict was therefore properly set aside. As I have said, it was for the respondents to bring themselves within the exception, and the plaintiff would have made a sufficient primâ facie case by merely proving that the meat reached its destination in a damaged condition. The plaintiffs did not, however, confine themselves to & primâ facie case of this kind, but by their own evidence established that the loss was occasioned by some of the excepted perils and the negligence of the crew, from which, on the construction of the exception already indicated, it resulted that the plaintiff by his own case established that there was no cause of action. The rule was therefore properly made absolute for a non-suit, and this appeal should be dismissed with costs.

FOURNIER J.—I entirely concur in the judgment prepared by the Chief Justice, and think the appeal should be allowed.

TASCHEREAU J.—I concur with my brother Strong, and for the reasons by him given I think that this appeal should be dismissed.

GWYNNE J.—There can be no doubt that these defendants might have by their contract with the plaintiff, if the latter had pleased to enter into such a contract, exempted themselves from all liability for any loss or damage which should happen to the carcasses of meat delivered to them to be carried, even though such damage or loss should in any respect result from a cause occurring before the vessel in which the meat

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was to be earned should proceed upon her voyage, and eyen though such cause should arise or be occasioned by the negligence of the defendants, or any of their servants, or of any person for whose acts, default or neglect they should be responsible.

The plaintiff's declaration in the present case contains five counts, the substantial allegations in each of which are, that the plaintiff delivered to the defendants certain goods of the plaintiff upon a certain contract made by the plaintiff with the defendants, whereby the latter agreed to use due and proper care in stowing the said goods on a ship of defendants, and carrying them from Prince Edward Island to St. Johns, Newfoundland, and there to deliver them to the plaintiff in as good condition as they were received by them (certain perils and causalties only excepted), and that the defendants, though not prevented by any of the perils or casualties excepted, did not use such due and proper care as aforesaid, and failed to carry the said goods safely and to deliver them to plaintiff in good condition as aforesaid, but so carelessly and negligently conducted themselves in the stowage of the said goods and otherwise in the premises, and took such bad care of the goods, that by reason thereof a great part of the said goods, became lost to the plaintiff, and much damaged and deteriorated in value.

To these counts the defendants pleaded several pleas, among others that the goods mentioned in the declaration were delivered to the defendants and were received by them to be carried under a bill of lading signed on behalf of the defendants and accepted by the plaintiff, and that except the contract contained in the bill of lading there was never any contract between the defendants or the plaintiff. They then set forth the bill of lading verbatim, which contained a clause exempting the defendants from any loss or damage which

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should occur to the goods (which consisted of carcasses of meat) from, among other causes, sweating, insufficiency of package, decay or stowage, and they averred in one plea that the loss and damage complained of arose from sweating, in another from insufficiency of package, in another from decay, and in another from stowage, all being excepted cases in the bill of lading. To these several pleas the plaintiff replied, that, although admitting that the said goods were delivered to and received by the defendants on the terms and conditions in the said bill of lading mentioned, yet the plaintiff alleged that the said several causes which the defendants in their said respective pleas alleged to have been excepted in the said bill of lading were occasioned by and arose through the negligence of the defendants, and were not, nor was either of them, within or covered by the several and respective exceptions in the said bill of lading as alleged. The substantial issue offered by these replications was simply this: Admitting the loss and damage to have arisen from sweating, from insufficiency of package, from decay, or from stowage, in whole or in part from some or one of those causes, were these several causes within the clause of exemption from liability contained in the bill of lading if they arose or were occasioned, as the replications alleged they were, by the negligence of the defendants? Now, as the bill of lading was set out verbatim in the pleas to which these replications were pleaded, the question of the defendants' liability could have been determined upon demurrer to the replications, which, admitting the only matter of fact alleged in them, namely, that the several causes of loss and damage pleaded were occasioned by the negligence of the defendants would have raised the single question of law upon the right determination of which the defendants' liability depends, namely, whether the

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bill of lading does or does not exempt the defendants from liability, assuming the causes of loss and damage as pleaded by the defendants to have been occasioned by the negligence of the defendants as alleged in the replications. Instead of demurring, the defendants, however, joined issue, which still left the question of the defendants liability to be determined as a matter of Jaw depending upon the construction of the contract contained in the bill of lading. At the trial the plaintiff went into evidence which proved that the immediate cause of the loss and damage proved was sweating and decay, which necessitated the condemnation and destruction of a great part of the meat as unfit for human food ; but it was alleged that this sweating and decay arose or was aggravated by improper stowage, and evidence was adduced on the part of the plaintiff, although contradicted by witnesses of the defendants, to show that the men employed in stowing the meat on the vessel trampled upon and otherwise ill-treated it, and this ill-usage of the meat in the stowing of it contributed, as was alleged by some of the witnesses, in some measure though not altogether, to the sweating and decay which were the immediate cause of the loss and damage. At the close of the plaintiff's case the defendants' counsel moved for a non-suit, upon the ground that by the contract in the bill of lading, the defendants were exempt from all liability, even though the causes of damage did arise by reason of the negligence of the defendants. Leave was renewed to the defendants to move the court above to enter a non-suit and the case was left to the jury, chiefly upon the point raised as to the mode in which the meat was stowed in the vessel, and with a charge which assumed the defendants not to be exempted from liability arising from such mode of stowing the meat and the jury rendered a verdict for the plaintiff with $600

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damages. Upon a motion made in the court above a rule nisi was obtained by the defendants to show cause why this verdict should not be set aside and a verdict entered for the defendants, or a non-suit entered, or a new trial granted on the following grounds:

1. That the learned judge misdirected the jury in charging them that the defendants were liable for damages caused by improper stowage that he should have charged that the defendants were exempted from such damages by the exemptions in the bill of lading.

2. That the learned judge refused to charge that the defendants were not liable for decay.

3. That the judge refused to charge that the defendants were not liable for sweating or heating.

4. That the damages were excessive.

5. That there should be a verdict entered for the defendants as to the counts alleging negligence in carrying, because there was no evidence of negligence in carrying.

6. That there should be a verdict for defendants on the tenth plea which was, that the plaintiff could have protected himself from the loss which occurred by insurance.

This rule the court, after argument, made absolute for entering a non-suit, from which judgment this appeal is taken, and thereby the case is brought back to the original and sole question upon which the plaintiff's right of action turns, namely, does or does not the contract in the bill of lading exempt the defendants from liability for loss or damage occurring from sweating, or from decay, or from stowage— assuming these causes to have been occasioned by the negligence of the defendants? The answer to this question depends simply upon the proper answer to be given to the subsidiary question, namely, upon the proper construction of the contract do the words inserted therein, namely,

Whether arising from the negligence, default or error in judgment of the pilot, master, mariners, engineers, or other persons in the service of the ship, or for whose acts the shipowner is liable, or otherwise, howsoever always excepted

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apply only to the points enumerated subsequently to this clause, or does the clause apply as well to the preceding causes of loss enumerated, or such of them as could arise from the negligence of the persons named, which included, among other causes, loss or damage resulting from "sweating," or from "decay," or from "stowage," as well as to loss or damage arising from any of the perils subsequently enumerated?

The whole sentence in which the clause of exemption occurs is not expressed with the most perfect grammatical precision, but the collocation of the part relating to negligence cannot have the effect of limiting the application of that part to the causes of loss subsequently enumerated; and in my opinion it applies equally to such of those previously enumerated as could be occasioned

 by the defendants or any other persons employed in the service of the ship, or for whose acts the shipowner is liable.

The rule, therefore, to enter a non-suit was, in my opinion, properly granted, and this appeal should be dismissed with costs. It was argued that under the first count the plaintiff was entitled to recover something for the want of due and proper care and skill of the defendants in stowing the goods, though there was no attempt made to distinguish the loss, if, indeed, it could be done, from the subsequent loss by sweating and decay ; but it is not pretended that there was, indeed it is concluded by the admissions on the pleadings, that there was not, any contract whatever between the defendants and the plaintiff in relation to the goods but that contained in the bill of lading, and the contract in the first count is stated as one promise to use proper skill in stowing, and to carry, &c., certain perils and casualties only excepted, which plainly applies to the one contract in the bill of lading; so that, apart from a breach of the contract in

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the bill of lading, it is apparent that the plaintiff has not alleged any cause of action in respect of which he could recover upon this record.

A technical point was also taken, namely, that the rule nisi for leave to enter a non-suit contains, as is contended, no grounds for a non-suit but only for a new trial; but there is nothing in this objection, even if it could be entertained on an appeal, for the objection to the rulings of the judge which are stated, namely, that the defendants were liable for damages caused by improper stowage—that he should have ruled that they were exempted from such damages by the exemptions in the bill of lading—that he refused to direct that the defendants were not liable for decay, or for sweating or heating—if these objections were well founded are sufficient reasons why the plaintiff should be non-suited, and the court below having made the rule absolute for a non-suit a court of appeal cannot take notice of such a technical objection; which, if there was anything in it, affected only a matter of procedure in the court below.

Appeal dismissed with costs.

Solicitor for appellant: Neil McLeod.

Solicitor for respondents: Arthur Peters.