Supreme Court of Canada
Inverness Railway & Coal Co. v. Jones et al., (1908) 40 S.C.R. 45
Date: 1908-03-23
The Inverness Railway and Coal Company (Plaintiffs) Appellant;
and
Sir Alfred Lewis Jones and William John Davey, Carrying on Business Under The Name and Style of Elder, Dempster & Co. (Defendants) Respondents.
1907: October 8; 1908: March 23.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Shipping—Material men—Supplies furnished for "last voyage"— Privilege of dernier équipeur—Round voyage—Charter-party— Personal debts of hirers—Seizure of ship—Arts. 2383, 2391 C.C. —Art. 931 C.P.Q.—Construction of statute—Ordonnances de la Marine, 1681.
A steamship lying at the port of Liverpool was chartered by the owners to P. for six months, for voyages between certain European ports and Canada, the hirers to hear all expenses of navigation and upkeep until she was returned to the owners. The ship was delivered to the hirers at Rotterdam where she took on cargo and sailed for Montreal. On arriving at Montreal she unloaded and re-loaded for a voyage to Rotterdam, with the intention of returning to Montreal, and obtained a supply of coal from the plaintiffs which was furnished on the order of the hirers' agent at Montreal. The ship sailed to Rotterdam and returned to Montreal in about one month, touching at Havre and Quebec, discharged her cargo and proceeded to re-load, obtaining another supply of coal from the plaintiffs in the same manner as the first supply had been furnished. Within a few days, the price of these supplies of coal being still owing and unpaid, the hirers became insolvent, and the plaintiffs arrested the ship at Montreal, claiming special privilege upon her as derniers équipeurs in furnishing the first supply of coal on her last round voyage, the right of attachment before judgment in respect of both supplies,
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and seizing her under the provisions of articles 2391 of the Civil Code and 931 of the Code of Civil Procedure. Held, per Fitzpatrick C.J. and Davies, Maclennan and Duff JJ., that the voyage from Montreal to Rotterdam and return was not the ship's "last voyage" within the meaning of article 2383 (5) of the Civil Code; that the voyage out from Montreal and that returning from Rotterdam did not constitute one round voyage but were separate and complete voyages, and that, consequently, there was no privilege upon the ship for the supply of coal furnished for her voyage from Montreal to Rotterdam. And also, that the provisions of article 2391 of the Civil Code did not render the ship liable to seizure for personal debts of the hirers, and, consequently, that she could not be attached therefor by saisie-arrêt.
Judgment appealed from (Q.R. 16 K.B. 16) affirmed, Girouard J. dissenting.
*Per Davies J.—The "last voyage" mentioned in art. 2383 C.C. refers only to a voyage ending in the Province of Quebec.
*Per Idington J.—As the terms of the charter-party expressly excluded authority in the hirers to bind the, ship for any expenses of supply and as nothing arose later that could by any implication of law confer any such authority on anyone and especially so in a port where the owners had their own agents any possible rights that might in a proper case arise under article 2383 of the Civil Code did not so arise here; and, therefore, though agreeing in the result he expressed no opinion on the meaning of the term "last voyage" therein. Lloyd v. Guibert (L.R. 1 Q.B. 115) should govern this case.
APPEAL from the judgment of the Court of King's Bench, appeal side, reversing the judgment of the Superior Court, District of Montreal, and dismissing the plaintiffs' action with costs.
The circumstances of the case are stated in the head-note and the judgments now reported.
T. Chase Casgrain K.C. for the appellants.
D. MacMaster K.C. and Hickson for the respondents.
T. Chase Casgrain K.C. for the appellants. We claim, as declared by Mr. Justice Dunlop, in the
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Superior Court, that, even if Elder, Dempster & Co. are not personally liable, there is a privileged claim upon the ship for both supplies of coal.
The ship sailed from Montreal for the last time, in July, 1904, when the first sale of coal was made, and was about to sail again with the second supply of coal, in September, 1904, when she was stopped by appellants' attachment. The voyage from Montreal to Rotterdam and back was the first of a series of round voyages, with an interchange of cargo, contemplated by the charterers of the ship, and it constituted a single voyage; The "Red Jacket"', per Stuart J., at page 306; McLea v. Holman; 1 Valroyer, Dr. Mar. n. 42, p. 125; DeCourcy, Maritime Law, pp. 15-16; Dalloz, 1872, 2. 34; 1 Hennebicq, Dr. Mar. n. 232, p. 268; 5 Ruben de Conder, Dr. Mar. vo. "Navire," n. 274; Boistel, Dr. Comm. n. 1139, p. 844; 1 Cresp, p. 113; Gazette des Trib. 1905, 3, 103, vo. "Navire," n. 24; Pand. Fr. Rec. 1898, 1, 331; The "Scarsdale", and in the same case on appeal, per Vaughan Williams L.J., at page 257, per Sterling L.J., at page 258, and in another report, per Vaughan Williams L.J., at page 33, referring to the "Sailors' Word Book." See also The "Martha"; The "Mary Adelaide Randall".
The attachment, under article 931 C.P.Q., could be validly effected and treated as an ordinary saisie-arrêt or a conservatory attachment, as the plain-
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tiffs were privileged creditors for the supplies of coal necessary to enable the steamship to sail; 1 Maud & Pollock, "Law Merchant" (4 ed.), p. 86; Abbott on Shipping, p. 186, sec. 4; 19 Am. & Eng. Encycl. of Law (2 ed.), vo. "Maritime Liens," pp. 1094-1111.
Our codifiers do not claim to have changed the French law on this particular point. The privilege of the dernier équipeur has always been recognized by our jurisprudence. Girard v. St. Louis, at page 57; Henn v. Kennedy.
The reasoning of the court below leads to strange consequences, when, in effect, it says: "So long as the ship is in the port, you have no privilege for necessaries supplied in that port, but as soon as the ship has reached another port, then your claim becomes privileged, and you may take all provisional measures which the law gives you to enforce it." This carries too far the rule that privileges must be strictly interpreted. Modern law-writers have all protested against such narrow interpretations. DeCourcy, Dr. Mar., page 94, T.I.; Hennebicq, Dr. Mar., page 268, no. 232. The French Commentators read the article as meaning the supplies "before the departure for the last voyage." 1 Valroger, page 139, no. 61. In fact, this privilege has existed from time immemorial in the jurisprudence and in popular parlance and is, moreover, essentially equitable.
If we have not, as dernier équipeur, a privilege or right of preference on the steamship in the sense of articles 1983, 1994, and 2383 CO., we have the extraordinary right conferred by article 931 C.P.Q., and the attachments before judgment and conserva-
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tory attachments may be taken together, and under one or the other of these names; Bourassa v. Lorigan. The latter rests on a privilege, but the former is given in the case of the dernier équipeur. The procedure on both attachments is the same.
D. MacMaster K.C. and Hickson for the respondents. The "round voyage" theory was not suggested in the plaintiffs' declaration, but adopted at the trial; the first theory was that the voyage in question was the last voyage from the port of Montreal. Such a qualification has no place in the law; it would unsettle it. "Last voyage," unless otherwise qualified, must mean the last complete transit from the shipping port to the port of delivery. We are not concerned with the convenience of the supplier, on credit, following the ship for the purpose of attaching her at the journey's end. Nor can an ensuing voyage be construed as a "last voyage."
The right of the plaintiffs to attach the ship must be determined by articles 6 and 2383 C.C., and article 931 C.P.Q., neither of which can authorize an attachment or privilege in respect of, goods supplied for an ensuing voyage. Article 931 C.P.Q. recognizes only the right to attach the property of the debtor. Here there is no personal debt due by the owners of the ship. We refer to Pickford v. Dart; Gracie v. Marine Insurance Go, of Baltimore. The dernier equipeur has no place in the laws of Quebec save under sub-section 5 of article 2383 CO., and that
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article gives him a privilege only in respect to "provisions" for the last voyage. See also, Sirey on article 191 Code de Commerce. The qualified ownership conferred by article 2391 CO., does not involve a lien or privilege on the ship; it occurs in another part of the Code dealing with "owners, masters and seamen" and not dealing with the questions of privilege or liens provided for in a previous chapter. Transfers of British ships can be effected only in conformity with the laws respecting shipping; Baumwoll Manufactur von Carl Scheibler v. Furness; The "David Wallace" v. Bain. See also Sirey, Code Ann., art. 191, para. 17, page 219; Valente v. Gibbs; The "Castlegate", at page 51; and DeNicols v. Curlier.
The Chief Justice concurred in the opinion stated by Maclennan J.
Girouard J. (dissenting).—The facts of this case are not in dispute. We are called upon to decide two questions of law. First: What is the meaning of the words "last voyage" used in paragraph 5 of art. 2383 of the Civil Code? And secondly: Who is the dernier équipeur within the meaning of arts. 931 and 983 of the Code of Civil Procedure? . Art. 2383 reads as follows:
There is a privilege upon vessels for the payment of the following debts:
*****
5. The sum due for repairing, and furnishing the ship on her last voyage,
"pour son dernier voyage," according to the French text.
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This article is borrowed from the Ordonnances de la Marine of 1681 and from the common law of France as it existed at that time. See art. 18, tit. XIV., liv. 1, as explained by Valin in his commentaries on this ordinance, pages 397 and following, édition Bécane.
The framers of the Quebec Code express some doubt as to that ordinance, and also the ordinance of commerce of 1673, having ever been in force in Canada for want of registration by the Superior Council, and it may be added that such has been the general impression among Quebec jurists for many years. This registration was a prerogative of the Parliaments of France, recognized by the Sovereign himself, so that his laws would receive some sort of popular sanction; Decl. 7th July, 1572, 14 Isambert, Anciennes lois françaises, p. 252; and the Judicial Committee of the Privy Council has declared on several occasions that it was extended to the Superior Council of Quebec. Hutchinson v. Gillepsie, in 1844; Symes v. Cuvillier, in 1879. In view of documents recently made public, more particularly Jugements et deliberations du Conseil Supérieur, published by the Government of Quebec in 1885-1891, that doubt cannot any longer be entertained. This collection, forming six immense volumes, is most valuable, but unfortunately it is without index and unfinished. I had to spend several days in perusing the two last ones to obtain the information I desired. These volumes were stopped at the year 1716, and it is impossible to ascertain the jurisprudence of the Council from that date till the Précédents of Perrault, commencing in 1727. I am convinced that, if this collection was completed at least to Perrault's Précédents and a proper index
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made, more important information would be of easy reach on the laws of Quebec generally under the French régime and more particularly on the subject before us.
It is true that the sheet or sheets of registration of said ordinances cannot be found, but it is a well-known fact that they are not the only ones missing. Too often they were not recorded in a bound register or book and were kept loose. To quote one or two instances, how is it that the commission of one of the judges in admiralty, le Sieur Boucault, "lieutenant-général de l'amirauté de Quebec," is not in the third volume of the revised edition of Edits et Ordonnances, published in 1854 by the Government of the late Province of Canada, which is supposed to contain all the commissions of the officers of justice. The commission of Couillard de l'Espinay, the first judge, is there, pages 94 and 95; likewise that of the last judge, le Sieur Guillemin; but that of his predecessor, Boucault, is missing. The archives of the Juridiction Royale of Montreal disclose a still more flagrant example of carelessness and looseness in the keeping of the archives of the Council. In the first report of the Provincial Secretary of Quebec for 1886-87, Division of the Registrar, page 54, the proof is made that an important règlement or statute of the Council of the 5th May, 1727, concerning the keeping of registers of civil status, in thirteen sheets and twelve articles, was passed for the whole government of Canada. It is on file in the greffe of the Royal Court of Montreal, but it is not to be found in the Edits et Ordonnances which are represented to contain all the règlements of the Council. Why? Simply because it had been mislaid, and this in violation of the arrêt of the 28th
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February, 1664, passed one year after the establishment of the Council, which provided for the keeping of a plumitif or register where the arrêts et ordonnances of the Council should be transcribed "et non en feuille volante" (2 Ed. et Ord. 15). It is remarkable that this regulation which no doubt applied to the acceptance or registration by the Council of the King's Edits et Ordonnances did not extend, at least expressly, to the transcription of the text of these statutes. Later on, a few years before the cession, the King and the Council made some enactments concerning the registration of said statutes, which will be found at pages 224 and 481, but nothing is said as to the manner of making the registration.
If the ordinances of 1673 and 1681 were not law in Canada, how can we explain the fact that all the courts including the Superior Council, followed them as law? We find in Perrault's Précédents du Conseil, p. 16, a decision relating to a bill of exchange, where undoubtedly the ordinance or Code of Commerce of 1673 is quoted as law. Perrault, an advocate and prothonotary of the King's Bench in Quebec for many years, and who had personally known many praticiens under the old French régime (he was born in 1753) observes in his Précédents de la Prévosté de Québec that that ordinance was one of the fundamental laws of the Canadian courts. (See also p. 26.) On the 19th September, 1712, and consequently before the creation of the Quebec admiralty court, at an extraordinary sitting of the Superior Council reported in the 6th volume of the Jugements et Délibérations, p. 504, reference is made to the Ordonnance de la Marine as being in force in La Nouvelle France, and also to the "Greffe d'Amirauté" which must have been a branch
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of the Prévosté or ordinary civil tribunal of the Town of Quebec.
Are not these declarations made not only by inferior courts but also by the very body who could declare whether these laws of national importance should be in force or not, equivalent to registration? I believe that it is the only conclusion we can arrive at.
But if any doubt be possible, it disappears in face of the King's règlement of the 12th January, 1717, registered the same year by the Superior Council, Edits et Ord., Vol. 1, p. 358. His Majesty does not complain that the ordinance was not registered. He supposes it had been, for he represents that the ordinance had not been put fully into operation, because admiralty courts had not been established in the colonies of America, and provides for the creation of such courts.
Article 1 says:
Il y aura à l'avenir dans tous les ports des isles et colonies . françoises, en quelque partie du monde qu'elles soient situées, des juges pour connoitre des causes maritimes, sous le nom d'officier d'amirauté, privativement à tous autres juges, et pour être par eux les dites causes jugées suivant l'ordonnance de 1681, et autres ordonnances et règlements touchant la marine.
This admiralty court was organized in Quebec in 1717 (see Edits et Ordonnances, Vol. 3, p. 94). I find in Perrault, Prévosté de Québec, p. 48, an arrêt of the 4th December, 1737, dismissing an action and ordering the parties to proceed elsewhere "attendu que le fait dont il s'agit est un fait maritime." But it must be observed that the ordinance of 1681, title 2, art. 1, and the règlement of 1717 quoted above, gave exclusive jurisdiction to admiralty courts in maritime cases. Likewise under the French Code de Commerce,
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arts. 631, 633, the jurisdiction of the tribunals of commerce, which have replaced admiralty courts, has been held to be exclusive, although the word is not used.
This digression is not only interesting from an historical point of view; it is not without practical importance in the determination of marine cases, for whenever the Civil Code of Quebec has no provision upon any maritime matter, recourse can be had to the ordinance of 1681 and other French laws in force in the Parliament of Paris at the time of the creation of the Superior Council in 1663, or registered by the Council if enacted after its creation. Art. 2613, C.C.
After the cession of the country to Great Britain the ordinance and the French law generally ceased to be enforced in the Quebec admiralty court and the English law was substituted for them as part of the public law of Great Britain. By his commission, the first admiralty judge in Quebec, appointed in 1764, was empowered to hold a vice-admiralty court like the High Court of Admiralty in England, and, of course, according to the English laws. The Civil Code of Quebec, art. 2383, recognized that rule in express. terms:
The provisions in this chapter (chapter 4th relating to privilege and maritime lien) do not apply in cases before the court of vice-admiralty.
Cases in that court are determined according to the civil and. maritime laws of England.
Finally, the Imperial statute, 53 & 54 Vict. ch. 27, passed in 1890, empowering the legislature of a British possession to create colonial courts of admiralty, declares that the jurisdiction of such courts shall be
as the admiralty jurisdiction of the High Court in England,.
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For many years, ever since the cession, until the organization of colonial courts of admiralty by virtue of the said Imperial statute and the Canadian statute in pursuance thereof, there was only one admiralty court in Lower Canada, and that was the Quebec vice-admiralty court, having jurisdiction only over tidal waters. Under the new statutes, admiralty courts have been established all over Canada and the navigable waters thereof, whether tidal or non-tidal, but it is remarkable that their jurisdiction is not exclusive, at least expressly. It may be so impliedly, a point we are not called upon to decide. In the United States it is now well settled, after some years of hesitation and uncertainty, that admiralty jurisdiction is exclusive, although some of the states, for instance, Louisiana, have special laws like those of Quebec, governing the subject matter, and this in spite of the following saving clause in the constitution:
saving to suitors in all cases the rights of a common law remedy where the common law. is competent to give it;
Berwin v. Steamship "Matdnzas".
Strong grounds of public policy may be advanced against the maintenance of concurrent jurisdiction. It may be said that it is of national importance to the British Empire that British ships, whether owned or registered in the British Isles or the colonies, carrying the same flag, shall be governed by the same laws. But Parliament alone can so decree either expressly or impliedly. Whatever may be the rule of law in this respect, concurrent jurisdiction of ordinary courts in maritime matters provided for by the French laws has been so long exercised and recognized by the juris-
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prudence of Quebec, from the cession to the present date, that I would hesitate to disturb it, especially as the point has not been taken either in the courts below or in this court. Therefore, in arriving at the conclusion I have reached upon the two points of law submitted for our decision, I have taken for granted that the case was properly before the courts below and this court, and is governed by Quebec law, a point which was, moreover, conceded by the respondent's counsel at the hearing before us.
What is therefore the meaning of the words "last voyage" within art. 2383, par. 5, of the Civil Code?
The trial judge, Dunlop J., who is also a judge in admiralty, after delivering a very elaborate opinion, gave judgment in favour of the appellants, and held that the "last voyage" means the round trip, or when the ship was last in the port of Montreal, as she intended to return to Montreal and did in fact return within about one month. In appeal, this judgment was reversed by all the judges who expressed the view that the "last voyage" means the return voyage only, or the voyage from Rotterdam to Montreal, and that the supplies having been furnished on the previous voyage, that is the voyage from Montreal to Rotterdam, the privilege existed no longer. It must be remarked that the case was not argued and was only submitted on the factums.
The respondents' counsel urged, both at the hearing before us and in his factum, that the appellants could only enforce their privilege by seizure of the coal before departure and of the ship at the port of destination in Europe. I must confess that I cannot conceive that that could be the intention of the legislature. That privilege was given not only to secure
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to our own people the payment of necessaries for a ship, but also to give the credit she may need. It would be illusory for a master to get supplies, if the latter be exposed to be revendicated before the voyage commenced. And is it not extraordinary to suppose that a merchant who has advanced necessaries, as in this case, to enable a ship to proceed to sea, cannot enforce any privilege he may have unless he enforces it either before departure or at the European port? In this case, that port was within easy reach. But suppose the port of destination was unknown or distant in Asia or Australia, can it be expected that this coal merchant will be obliged to follow the ship by cable, correspondence or otherwise to maintain his privilege upon her? Will that privilege be recognized in foreign courts? Will the local privileges be preferred? I think this situation is too absurd, to be well founded. The privilege upon the ship, it is obvious, has been created not only in favour of commerce and navigation, but also to protect our own merchants, and the "last voyage" must mean the last trip she made from the port of Montreal, as held by the trial judge. We are bound to give to our statutes—and the Quebec Code is a statute adopted by the late Province of Canada before confederation—such interpretation as will fulfil the intention of the legislature and will give them effect.
The words "last voyage," to be found in several paragraphs of art. 2383 C.C., have not always the same meaning, because the circumstances are not the same. A seaman, for instance, runs no risk, because he follows the ship and is always in a position to enforce his rights. Chief Justice Lacoste admits that the words have a different meaning, but he holds, and the whole court with him, that in this case the "last
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voyage" means the voyage from Rotterdam to Montreal.
It is perhaps impossible to lay down an absolute definition of what may be the last voyage. When a ship has no regular service to perform, a tramp, for instance, her last voyage may perhaps mean her last trip from the port of sailing, but when the ship belongs to a regular line, especially a Canadian line, as in this case, between Canadian ports and European ports and return, offering return passage, surely when that ship leaves the port of Montreal with a view of returning, and in fact returning regularly, it cannot be said that the voyage is only for one crossing and not also for the return crossing. It is not necessary to say more for the purposes of this case. Neither the Code nor the ordinance defines the last voyage. It is undoubtedly more a question of fact, or rather of intention, than of law. The very recent decision of the House of Lords in Board of Trade v. Baxter; The "Scarsdale", in July, 1907, supports this view:
It cannot be said that the jurisprudence of Quebec is well settled. I know only of two decisions, Henn v. Kennedy, decided by Mr. Justice Routhier, in 1890, and adopted by Chief Justice Lacoste, and the other one McLea v. Holman, decided by Mr. Justice Pagnuelo, in 1892, and reported in the Quebec Law Reports, and followed in this case by Mr. Justice Dunlop.
Mr. Justice Pagnuelo has examined very fully the authorities, and I cannot add anything to what he says on the subject. I refer, therefore, to his elabor-
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ate opinion and also to the authorities quoted by the appellants' counsel in his factum. For the moment I will content myself with quoting the following passage from Mr. Justice Pagnuelo, in which I concur:
Il faut en cette matière, comme en toute autre, rechercher l'esprit de la loi et l'interpréter de manière à lui donner effet, en protégeant, d'une manière efficace, ceux que la loi a voulu protéger.
Le maître d'un navire qui le fait réparer ou l'approvisionne à crédit avant de faire un voyage, n'agit ainsi que parce qu'il n'a pas l'argent pour payer. La loi accorde un privilège pour les réparations faites ou les provisions fournies pour le dernier voyage. Si la course que le vaisseau doit faire, disons de Montréal à Liverpool, doit être considérée comme constituant et complétant le dernier voyage à l'égard de celui qui a fait les réparations ou fourni les provisions à Montréal, il lui faudra suivre le vaisseau à Liverpool et Vy saisir sous peine de perdre son privilège, ou bien le saisir avant qu'il ne parte de Montréal. En effect du moment que le navire laisserait le port de Liverpool pour naviguer durant l'hiver entre les ports de l'Europe ou de l'Amérique, le créancier de Montréal perdrait son privilège sur le navire; il lui faudrait donc suivre le navire en Angleterre pour le faire saisir, ou le saisir à Montréal avant son départ. Ce sont deux alternatives que rendraient impossible au maître du navire de faire réparer son vaisseau, ou de le faire approvisioner, s'il lui faillait payer avant de partir ou si le vaisseau était saisi avant son départ.
Le législateur l'a entendu autrement; il a voulu que le navire put être réparé ou approvisionné à crédit lorsque le maître n'a pas d'argent pour payer et la loi accorde au fournisseur un privilège sur le navire pour ses avances. Exiger qu'il suive le vaisseau en pays étranger pour l'y faire saisir sous peine de perdre son privilège, c'est aller contre l'esprit de la loi et rendre impossible ce qu'elle a voulu favoriser.
Le mot voyage et dernier voyage sont employés plusieurs fois par notre code civil et par l'ordonnance de la marine. On se tromperait en leur donnant dans tous les cas la même portée, la même signification.
Lorsque le code parle du privilège pour les gages et loyers du maître et de l'équipage pour le dernier voyage (art. 2383; 4 Ord. de la Marine, liv. 1, titre XIV., art. 16) des sommes dues pour réparer le bâtiment et l'approvisionner pour son dernier voyage (id. 5) de la prime d'assurance sur le navire pour le dernier voyage (id. 7) du cas où navire n'a pas encore fait de voyage (id. 8) de la prescription pour les gages des matelots, qui ne commence à courir qu'après le parachèvement du voyage (art. 2406); et des prêts à la grosse, soit sur le bâtiment ou sur les merchandises, faits pour le dernier voyage, lesquels sont préférés à ceux faits pour le voyage
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prêcedent (art. 2605), il n'entend pas toujours la même chose par le mot voyage et dans chaque cas Ton doit interpréter la loi de manière à assurer à chacun le privilège qu'il a voulu conférer. C'est se tromper que de vouloir donner au mot voyage la même signification dans tous les cas comme il a été fait dans la cause de Henn v. Kennedy.
As to the other reasons advanced by Mr. Justice Bossé, Chief Justice Lacoste has answered them to the satisfaction of the majority of his court and to mine also. It is not necessary that the coal should have been ordered by a captain appointed by the real owners. The article of the Code makes no distinction whatever, whether the captain is the agent of the real owner or of the charterer, a British or a Quebec ship, navigating Quebec or interprovincial waters, the high seas or foreign waters. It is sufficient that the coal was put on board the steamer and used there; a legal privilege or lien is granted if the coal has been for the last voyage, and is enforced before another voyage is undertaken from the Quebec ports.
Under article 2391 of the Civil Code, the charterer in a case like this is supposed to be the owner for the time being, and to be responsible as such owner to third parties. Article 2397 C.C. does not apply. Here the coal was ordered by the gérant du bâtiment and the reputed owners, that is the charterers and their agent in Montreal having the sole control of the ship.
That is all I have to say about the first item of the claim of the appellants. They have a privilege for the payment of the same which they can enforce by a conservatory process as they have done under article 955 of the Code of Procedure. They might have had recourse to the saisie-arrêt of article 931 C.P.Q., if they had attached the steamer on her arrival in the port
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of Montreal; but instead of doing this, they delivered more coal and thereby became dernier équipeur for that last delivery, remaining privileged creditors for the first one, being merely entitled to be paid by preference, as long as another voyage is not commenced. It is a lien of temporary duration, unknown, I believe, to the English law, and under the Ordonnance de la Marine is subject to a prescription of one year. For the first supply they invoke the conservatory process of article 955. The trial judge found the procedure correct; no objection was taken against it. I believe none can be raised and judgment should go for plaintiffs to the extent of the first supply at least.
With regard to the second delivery of coal delivered after the return voyage to Montreal and before the departure of the "Lake Simcoe" on her next crossing, which the appellants claim à titre de dernier équipeur under articles 931 and 933 of the Code of Civil Procedure, I think they are likewise entitled to judgment in their favour.
One would naturally ask here, who is the dernier équipeur? No mention is made of him in any of the French ordinances, law dictionaries or books. He must have an exceptional position and a peculiar meaning, for whenever he appears in the statutes of Canada or Quebec, from the year 1787 to the present time, our legislative, even when using the English language, calls him by his French name only. Sir Alexander Lacoste C.J., looks upon him almost like a ghost conjured up to frighten navigators and craft owners:
Quel est (he asks) ce personnage mystérieux que Ton appelle le dernier équipeur, qui a traversé les siècles et que personne ne semble avoir décrit avec précision?
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Mr. Justice Stuart remarks in the case of Plante v. Clarke, that it has been thought by some that the words "dernier équipeur" means the person who formerly equipped voyageurs going to the Indian country. That is perfectly correct. The origin of the dernier équipeur is purely Canadian. For nearly 150, years he was a most important factor in the trade of Canada. He was no less a personage than the merchant who, in Montreal and elsewhere, had last outfitted on credit the canoes of the voyageurs, coureurs des bois and traiteurs dealing with the Indians of the far west. It was always understood that the suppliers would be paid out of the furs which these adventurers would take down in return for their goods. The voyageurs were not always scrupulous and not un-frequently disposed of their loads on the way down, especially at the posts on the lake of Two Mountains, at Carillon, Oka, Ile sur Tourtes, Ile Perrot, and Ste. Anne's, where a very large trade was illegally carried on at various times during the French régime. (6 Juge et Del. 456; Canadian Archives, Cor. Gén. XXII. 319.) In such emergency cases, the outfitter could resort to a saisie-arrêt before judgment, even in the hands of third parties. I recognize one of these cases in Perrault's Précédents of the Prévosté, p. 59, where one d'Ailleboust de Coulonge was allowed to be paid by privilege out of certain furs seized in the hands of a third party. There is another case reported in vol. 5 of the Jugements et Deliberations, pp.927, 930, where a similar provision was made by the Superior Council in favour of Trottier des Ruisseaux, also a merchant and seignior of Ile Perrot.
In vol. 3 of La Collection des Manuscrits, p. 171,
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special mention is made of certain regulations adopted by the Government of Canada against "les voyageurs et équipeurs de Montréal" to prevent them from purchasing in the New England colonies the goods that they require "pour faire leur traite et, leurs équipements."
On the 14th November, 1685, Governor de Denonville informs the minister in Paris that Berthé de Chailly, a notorious merchant of Ste. Anne's, had left the country for France, after having amassed a fortune of 40,000 livres, too often by means of various frauds and especially by intercepting part of the pelleteries of canoes which the voyageur "devait apporter toutes au marchand qui Va équipé" (Canadian Archives, Cor. Gén. VII. 666; VIII. 18).
These attachments before judgment were easily obtained. No affidavit was.required and it was sufficient for the plaintiff to mention his indebtedness. In the early days of the colony, it was not even necessary that the title upon which he relied should be authentic. It was sufficient that the debt was claire et liquide and exigible or that the debtor was insolvent. Pigeau, Procédure Civile, Vol. 1, pp. 121, 122, refers to a certain practice which, he says, was sanctioned par Vusage, and often made more easy, even in France, the recourse by saisie-arrêt before judgment, especially in cases of insolvency. Insolvency was almost the normal condition of these voyageurs.
In the year 1734, the Superior Council of Quebec put an end to attachments based only upon instruments under hand, and required authentic deeds or an order of the judge authorizing the seizure, "à peine de nullité." (Perrault, Conseil Supérieur, p. 22.)
This mode of procedure continued until 1787, when
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the legislature introduced the English practice by 27 Geo. III., ch. 4, sec. 10, and for the first time required the affidavit which has been de rigueur ever since, except in the case of dernier équipeur suivant l'usage du pays. The same enactments have been made by the legislature from time to time, first in the old Revised Statutes of Lower Canada of 1845, next in the Consolidated Statutes of 1860, then in the Code of Civil Procedure of 1867, and finally in the Revised Statutes of Quebec of 1888, and the new Code of Civil Procedure of 1897, which provides, by article 933, for an affidavit disclosing "the existence of the required indebtedness."
Thus it appears that, although the days of canoes and bateaux have gone long ago and new modes of transportation and commerce have been devised, the last équipeur is still in the mind of our legislature. Who is he under these recent statutes? He is the butcher, baker, grocer, coal merchant, and other suppliers of necessaries for the voyage. He is exactly what the word implies, what he always has been, that is the last outfitter of a vessel for the purposes of navigation in contemplation. "Equiper, Equipement, Equipeur" says Hartfield in his dictionary of the French language,
c'est pour voir une embarcation de tout ce qui est nécessaire pour la manœuvre et pour la subsistance des hommes embarqués.
In other words, the last équipeur is the last outfitter of the vessel, the one who has advanced last. He is not the supplier for the last voyage which he has allowed to terminate without taking any proceedings, he even making fresh advances.
Our law reports contain many precedents where the exceptional rights of the dernier équipeur have
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been considered. They will be found collected in Martineau’s Code of Procedure, art. 931, pars. 8, 9, 10; art. 955, pars. 6 and following. In this case the affidavit, required in all other cases that the defendant is about to secrete or abscond, etc., is not necessary, for it is sufficient to relate the existence of the required indebtedness, as prescribed by article 933.
The court of appeal rejected the contention of the respondents that, as they were not personally liable for the last delivery of coal, their ship' could not be attached in payment of the same under art. 931, C.P.Q. They held that the other defendants were personally liable, and that this was sufficient, as for the time being they were the reputed owners and under article 385, C.C., ships are movable. Chief Justice Lacoste said:
Nous avons ne dette personnelle contractée par le locataire, qui est défendeur; ceci satisfait aux exigences de l'article.
The only objection the learned judges had as to the issue of the writ of saisie-arrêt under article 931 was that the last équipeur has no privilege. With due respect I believe this is a misconception of his position. Whether he has a lien or not, article 931 gives him a remedy which he can exercise, whether finally he is paid his debt or not. He has a right to demand that the vessel or at least the coal be sold in satisfaction of his debt, of course after the payment of the hypothecs and privileged claims. The question of privilege will present itself after the sale, at the time of. the distribution of the moneys. Is he dernier équipeur? That is the whole question. Every privileged creditor on a vessel, even a sailor, is not entitled to a saisie-arrêt under article 931; he must be dernier équipeur, as was decided by several learned judges
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familiar with ancient practice. Delisle v. Lécuyer, decided by Berthelot, Mackay and Torrance JJ. and Dagenais v. Douglas, decided by Mondelet, Mackay and Caron, JJ.
But is it so clear that the dernier équipeur has no lien or privilege? He may have none under article 2383, C.C., although the point is not very clear in face of par. 3. But is it necessary to go that far? Is he not entitled to a privilege under the ordinance of 1881, liv. 1, tit. XIV., which was law before the Code?
Ceux qui auront prête pour radoub, victuailles et équipement avant le départ.
Can a privilege exist without express language? Can it be created by implication? Under articles 191 and 192 of the French Code of Commerce, the negative seems to be the prevailing doctrine. See Bédarride, 1 Dr. Mar. nn. 51, 52, 53. But are they not more restrictive than the ordinance liv. 1, tit. XIV., arts. 16 and 17, or the Quebec Code, articles 2383 to 2386? The latter article refers to
other privileged debts, according to the circumstances under which the claim has arisen and the usage of trade.
The old French jurisprudence was well settled that the ordinance was not exclusive and that the privileges of the common law continued to exist, when not inconsistent. Emérigon in his treatise Assurances et Contrats à la grosse, observes, p. 571:
L'ordonnance, art. 16, titre de la saisie, place au troisième rang ceux qui auront prêté pour radoub, victuailles ou équipement avant le départ.
En 1755, je fus consulté si le rang devait être accordé pour bois et cordages fournis au navire avant le départ. Je répondis qu'oui; car peu importe qu'on ait prete de l'argent ou qu'on ait fourni les matériaux, Le cas du fournisseur a même quelque chose de plus
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favorable, puisque les fournisseurs ne sont pas équivoques; au. lieu que Futile emploi des deniers est toujours susceptible de quelque doute. Cette interprétation non est extensiva, sed intellectiva. Telle est notre jurisprudence.
Valin, who wrote his commentaries in 1760, mentions (page 400) necessary equipments of the ship made before her departure on any voyage.
Les fournisseurs des bois, des planches et du fer qui y ont été employés; les fournisseurs de voiles et de cordages, et généralement de tout ce qui a servi à mettre le navire en état de faire le voyage,
At page 443, Valin goes as far as to lay down the principle that provisions and equipments ordered by the captain at the domicile of the owners, although prohibited without special authority, should be paid if they were necessary, quoting the maxim of the ordinance de Wisbuy, generally followed by all maritime nations, article 65, memo debet locupletari cum alterius jactura. Such is also the opinion of Boulay- Pâty, 2 Dr. Mar. 52. It must be so especially in the present case with regard to the second item of the supply of coal, as it profited the real owners who took possession of it and consumed the same.
Granting that the privileges upon ships are limited to the cases expressly provided for in article 2383 C.C., and I must confess that this contention has a great deal of force, is it indispensable for the appellants to rely upon it? Upon what ground can it be said that they have no privilege upon the very coal they sold and seized in this cause with the ship as one of her accessories? Mr. Macmaster K.C, for the respondents, admitted, as already observed, that they were entitled to revendicate the same. But if they can revendicate, surely they can be paid by privilege. As I read articles 1998, 1999 and 2000 of the Civil Code, the unpaid vendor has two privileged rights: (1) A right
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to revendicate; (2) A right of preference upon the price or the proceeds. Article 1994, par. 3, likewise provides for a privilege upon the article sold.
The appellants have, therefore, an ordinary privilege for the last delivery upon the coal which, I believe, they can enforce by saisie-arrêt under article 931 of the Code of Civil Procedure, as being derniers équipeurs. The debt is personal to the charterers, and I cannot understand why the appellants cannot proceed by attachment upon the coal under article 931, for they are derniers équipeurs and the coal seized in this case is the property of the personal debtor. In any event, they had a right to a saisie-conservatoire under article 955.
For all these reasons, I am satisfied that the judgment of the trial judge was the only one that could be rendered. I would, therefore, allow the appeal and maintain the saisie-arrêt and saisie-conservatoire and the action of the appellants with costs before all the courts.
Davies J.—This was an action begun by the appellant company in Montreal against three defend- ants: The Canadian Lines, Ltd.; William Peterson, Ltd.; and Elder, Dempster & Co., the respondents, to recover the price of certain quantities of coal delivered at different times aboard the SS. "Lake Simcoe" while in Montreal. The action was accompanied by a seizure of the steamship for the amount sued for on the grounds that with respect to $4,940 of the claim, article 2383 of the Civil Code created a privilege or lien upon the vessel for the payment of same as a sum due "for furnishing the ship on her last voyage" and with respect to $1,082.77, that the appellant was the dernier équipeur referred to in article
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931 C.C.P., and as such entitled to recover for this latter sum, although the coal supplied was not for the "last voyage" of the ship, but for her then ensuing voyage.
The Canadian Lines, Ltd., and Wm. Peterson, Ltd., entered no defence to the action, and judgment went against them by default. Elder, Dempster & Co., the owners of the ship, alone contested the action, and the Superior Court held that although they were not personally liable for the coal, the ship was liable and its seizure legal.
The Court of King's Bench unanimously reversed this judgment, holding that the first quantity of coal delivered to the ship was not for her "last voyage" within the meaning of that phrase in article 2383 C.C., and that for the second quantity delivered, it was avowedly for an ensuing and not a last voyage, and for coal so supplied there was no lien or privilege.
The facts necessary to be ascertained for the solution of the questions in dispute are few and about them there is no serious dispute, but there is much controversy as to the conclusions to be drawn from these facts.
The SS. "Lake Simcoe" is a British ship owned by the Elder, Dempster Co., and registered in England.
She was chartered by her owners to the defendants, Wm. Peterson, Ltd., of Newcastle-on-Tyne, on the 10th day of June, 1904,
for six months from the 16th of June, 1904, for voyages from and between Rotterdam, Havre or Dunkirk and Canadian ports, Quebec or Montreal,
and it was provided that under no circumstances should the steamer sail from or to or touch at any port in the United Kingdom or be employed in trading between any United Kingdom ports and Canada.
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Further it was provided that the hirers should bear all expenses in connection with the navigation and upkeep of the vessel and
provide coal stoves, emigrant outfits, and captain, officers and necessary crew, who should be their servants and bear all expenses in connection with the steamer from the time of delivery
until re-delivery to owners.
Part of the consideration payable by the hirers to the owners was to be
a sum equal to one-half of the profits accruing from the working of the vessel as provided in the charter-party.
It was argued in the courts below that this provision constituted the owners partners with the hirers, but the contention was, I think properly, not sustained, and it was not very strongly pressed before us.
The last clause provides that the contract "should be governed solely by the law of England," but this, of course, can have no application to the plaintiffs if their contentions with respect to the meaning and application of the articles of the Code are correct.
After the charter party was entered into the SS. "Lake Simcoe" was delivered to Peterson & Co., and proceeded from Birkenhead to Rotterdam, at which latter place, from which according to the charter party her voyages were to start, she loaded and sailed on her first voyage to Montreal, touching at Havre and Quebec. While at Montreal she unloaded and reloaded, and on the 29th July, 1904, took in a quantity of coal as supplies for her voyage from Montreal back to Rotterdam.
This coal was ordered by Thomas Harling, the agent in Montreal, of Wm. Peterson, Ltd., and the Canadian Lines, Ltd., which latter company was practically Peterson, Ltd., under another name.
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It is quite clear beyond any controversy that there is was no personal liability attaching to the defendants, Elder, Dempster & Co., with respect to this coal, and both courts below have so held.
The captain of the ship had nothing to do with the contract of purchase. The sale was made by the plaintiffs to the Canadian Lines, Ltd., acting by their agent in Montreal, Thomas Harling, to whom the plaintiffs in due course rendered its account for the coal; and a draft was drawn by the appellants at Harling's request for the amount of the account upon William Peterson, Ltd., for acceptance, and was duly accepted by that firm on 10th August following.
On the 20th September, William Peterson, Ltd., suspended payment, and on the 23rd September the draft was presented for payment and was refused. Two days afterwards the ship, still being under charter as stated before, was seized in Montreal, where at the time she happened to be loading for what the respondents call her fourth voyage, under an attachment for the price of the coal, $4,490, and also for the price of another lot of coal sold on the 6th September by the plaintiffs to Harling as agent of the Canadian Lines, Ltd., for the said SS. "Lake Simcoe," and about that day delivered aboard of such ship for her use, amounting to $1,082.77.
The facts with reference to the sale of the latter lot of coal were substantially the same as the former, with the exception that no draft was drawn upon Peterson & Co., Ltd., for the amount, and that it was not contended that the voyage for which it was supplied was the last voyage on the ship within article 2383 of the Code.
In each case the coal was sold by the plaintiffs to Harling as the agent of the Canadian Lines, Ltd., and
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Peterson, Ltd., without the intervention or knowledge of the captain, and there is no pretence of personal liability therefor on the part of the defendants, Elder, Dempster & Co., nor was their agent in Montreal ever communicated with on the subject of the sale and delivery of either lot of coal.
Immediately after the sale of the first lot of coal, in July, and its delivery aboard the SS. "Lake Simcoe," the steamer being re-loaded sailed for Rotterdam, calling at Quebec and Havre, on what the respondents call her second voyage.
At Rotterdam she again re-loaded and sailed back to Montreal on what is called by the respondents her third voyage, and it was while at the latter port on the 6th of September, 1904, and while outfitting and loading for what respondents call her fourth voyage that she took on the second quantity of coal, $1,082.77, which forms part of the amount sued for and for which the steamer was seized.
Peterson & Co. did not suspend payment until about a fortnight after the delivery aboard of this second lot of coal, namely, on the 20th September. The seizure was made on the 26th September.
There does not appear to be or to have been any pretence of a revendication of this latter lot of coal, and the only question as it seems to me which can arise upon the record as to this second lot is whether the Code in any of its articles provides in express terms for a privilege or lien upon the ship seized for the price of this lot of coal, and if not whether the seizure can be maintained as to it under the article 931 of the Code of Civil Procedure.
I fully concur in the judgment of the Court of King's Bench, that no such privilege or lien is given
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expressly. Article 2383 of the Civil Code on which the plaintiffs rely to sustain their seizure for the price of the first lot of coal delivered, $4,951.29, clearly and admittedly does not cover the second lot delivered in September, which was delivered not for the last voyage, but for a future and ensuing voyage, and article 931 of the Code of Civil Procedure only provides and is intended to provide a remedy for an existing right and not to create a right itself unless indeed in the . special contingencies and with respect to the special persons and properties specified in the article. It only applies to a case as expressed in the article
wherein the defendant is personally indebted to the plaintiff in a sum exceeding five dollars,
and then only where one or other of the several contingencies specified in the sections of the article have arisen, such as in the case of a dernier équipeur where a debtor absconds with intent to defraud creditors, etc., or secretes, or makes away with property with intent, etc., or being a trader, ceases to make payments and refuses an abandonment of property to creditors, etc.
The article could not, in my opinion, be successfully invoked in such a case as the present where there neither was any personal liability of the contesting debtor whose property has been seized, nor where any one of the contingencies which justify the invocation of the article by the dernier ëquipeur can be said to have existed.
The right of the plaintiff to attach the ship for the price of the first lot of coal supplied in July, $4,951.29, depends entirely upon the true construction of the words "last voyage" in sub-section 5 of article 2383 of the Civil Code of Quebec, and to succeed he must
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shew that the voyage for which such coal was supplied on the 29th July, 1904, from Montreal to Rotterdam. was the "last voyage" of the steamer within the meaning of that phrase in the 5th sub-section of the article. In my view in order to reach a proper conclusion as to the meaning of the much-disputed phrase "last voyage" the article must be read and construed as a whole, and therefore I find it necessary to set it out fully. It reads as follows:
2383. There is a privilege upon vessels for the payment of the following debts:—
1. The costs of seizure and sale, according to article 1995;
2. Pilotage, wharfage, and harbour dues, and penalties for the infraction of lawful regulations;
3. The expense of keeping the vessel and rigging, and of repairing the latter since the last voyage;
4. The wages of the master and crew for the last voyage;
5. The sums due for repairing and furnishing the ship on her last voyage, and for merchandise sold by the captain for the same purpose.
6. Hypothecations upon the ship, according to the rules declared in the third chapter of this title and in the title of Bottomry and Respondentia.
7. Premiums of insurance upon the ship for the last voyage;
8. Damages due to freighters for not delivering the goods shipped by them, and in reimbursement for injury caused to such goods by the fault of the master or crew;
If the ship sold have not yet made a voyage, the seller, the workman employed in building and completing her, and the persons by whom the materials have been furnished, are paid by reference to all creditors, except those for debts enumerated in paragraphs 1 and 2.
No contention has been made before us as to whether this article of the Code applies at all to British registered ships or to foreign ships in the Province of Quebec, nor is it necessary, in the view I take of the case, to express any opinion whatever upon the point. If it became necessary it is obvious that articles 2355 and 2374 C.C. would have to be carefully considered together and in conjunction with the power of
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the legislature which, enacted the Code, and I would not desire to be understood as expressing any opinion whatever upon the points.
The submission of the plaintiffs as I understand is that the SS. "Lake Simcoe" was engaged in making round voyages and that the starting point of such round voyages was Montreal. That the first round voyage was from Montreal to Rotterdam and back, touching both ways at Quebec and Havre, and that in this view the delivery of the lot of coal in Montreal in July was a delivery on a part of that round voyage, which would be the "last voyage" of the steamer within the meaning of the article in question before the seizure took place, the next and subsequent round voyage when the steamer was seized in Montreal in September being about to commence from that port at the time of seizure. This view has the inherent defect of entirely ignoring the first voyage of the steamer from Rotterdam to Montreal and the designation of the former port as the starting point of the steamer's voyages under her charter. The alternative view presented was that even if the round voyage be determined to have begun in Rotterdam in July, it meant a voyage from Rotterdam to Montreal and back to Rotterdam, and that the coal was delivered in Montreal during the course of and to complete that round voyage in July and August, and that this round voyage would therefore be the "last voyage" of the steamer before the seizure, within article 2383 CO., such seizure having been made during the progress of the second round voyage of the ship in September.
The defendants on the other hand contend that each trip of the steamer was a complete and separate adventure; that neither Rotterdam nor Montreal was the ship's home port, she being a British registered
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ship; that each trip the vessel made from Europe to Canada and Canada to Europe she discharged her cargo on arrival at her destined port and took a new cargo aboard for another voyage, and that each trip was complete in itself and constituted a voyage; that the coal supplied in July, in dispute, was for the steamer's second voyage, so that the second voyage could not be called in any sense, after she had completed her third voyage, the "last voyage" of the article of the Code.
They contended that the "last voyage" of the article unless otherwise defined, must mean the last complete transit of the ship from the shipping port to the port of delivery, and if the supplies were not paid for at the port of outfitting and furnishing, the supplier might follow the ship and attach her at her journey's end, and that with the argument as to convenience we have nothing to do. They also contended that the fact of the Canadian Lines, Ltd., having advertised in Montreal to carry passengers from Montreal to Havre and Rotterdam at certain specified fares and "return fare double above rates less 10%" was a mere incident which could not control or override the purpose and object of the hirers of the ship as evidenced by the broad facts to be drawn from the charter party and the actual sailings and loadings, ownership and chartering of the ship.
No evidence appears to have been given of the hiring of the crew whether for the single trip or voyage or the round trip or voyage, or for the time, six months, of the hiring of the ship under the charter party.
I attach little importance to the advertisement offering a holiday round trip from Montreal to Havre
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and Rotterdam and back as determining whether each trip was a voyage in itself or as transferring the starting point from Rotterdam to Montreal; nor do I think that there is any evidence in the case to justify us in holding that the round trip theory should prevail.
If one desired evidence of facts from which a conclusion might be drawn that the round trip theory was the correct one he would have to go outside of the record. Neither Rotterdam nor Montreal was her home port from which the steamer was sailing to a foreign port, and as I have said there was no evidence as to the hiring of the crew of the ship whether it was from Birkenhead where she was by the terms of the charter party received by Peterson, Ltd., from respondents, or from Rotterdam or from Montreal, or whether for a specified time or for a specified voyage. All we know is that the ship carried cargoes between each of the latter ports on each trip she made between them, and that there does not seem to have been any necessary relation between these trips as adventures. They were not the same kind of trips or voyages as are made by such of the regular transatlantic lines of steamers as sail from their home ports in either Europe or America across the Atlantic and back with crews hired for the round trip.
Applying as far as applicable the principles for the determination of the question of fact stated by the Lord Chancellor Lord Loreburn in the late ease in the House of Lords of Board of Trade v. Baxter; The "Scarsdale", at page 378, I have concluded that under the evidence in this case each trip of the steamer beginning at Rotterdam when and from which port she first started to Montreal, and from Montreal back
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again, constituted a voyage, and that in this view of the case the plaintiffs must fail because the trip or voyage for which the coal in dispute was supplied could not with reference to the seizure be in any sense the last voyage of the ship.
But if I am wrong in this conclusion of fact and the voyages of the ship are held to be round voyages, they must, in my opinion, be held to start from Rotterdam and end there, and in my judgment the last voyage contemplated in the article 2383 is a voyage ending in a port of the Province of Quebec. Whether the article must be construed as applying simply to home registered ships or not I pass by as not being argued and not necessary for decision.
I think each sub-section of the article in question shews that it is intended to refer to a voyage home to Quebec, to the ship's home port, either in the sense of registry there or ownership there or completing and ending her adventure there. I think when we find the same phrase used and repeated so often in the different sub-sections of the article we must ascribe to the legislature an intention of having the same meaning in each sub-section with reference to it, unless the context shews the contrary to be the case.
Now let us analyze the article a little closely. Its object is to give a preference upon vessels for the payment of certain specified debts; in other words, to create a new maritime lien. It provides that after the costs of seizure there shall be a privilege for the payment of pilotage, wharfage, harbour dues, etc., debts obviously of a local character, but without any limitations beyond that as to voyages or otherwise; (2) expenses of keeping the vessel and rigging and of repairing the latter since the last voyage. To my mind the
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subject matter dealt with and the language used in this sub-section shews that it was intended to relate to the close of an adventure in some Quebec port after a trip or trips abroad or to other Quebec ports. It covers unstripping the vessel, docking and. laying her up for repairs or otherwise, men in charge, machinery or rigging, repairs, etc., etc. I should conclude that the phrase "last voyage" as there used can only have one relation and that is to a voyage, whether round or single, ending in some port in Quebec province. So in sub-section 4 with regard to the wages of the master and crew, I draw the same conclusion. The voyage, the adventure, is over and ended, the ship is in the province and the wages of the men who brought her home is made a privileged debt. So I would agree it might reasonably be held with regard to premiums of insurance which are limited to those paid for the "last voyage" a reasonable and necessary expenditure to get the vessel to her home port and so privileged. So again with regard to hypothecations which it will be seen are to be according to the rules declared in the third chapter of that part of the Code relating to merchant shipping and do not contemplate registered British ships which; by article 2374 C.C. are to be governed in such matters by
the provisions contained in the Imperial law respecting merchant shipping.
And so I conclude the last voyage in the sub-section 5 means the voyage home to Quebec, and gives the material and necessaries man who repairs or supplies the ship with necessaries to complete her voyage, to close her adventure, whatever it may have been, by returning to her home port in Quebec a preference on the ship for such necessary repairs or supplies. The latter part of sub-section 5 strengthens this argument.
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It provides for the cases where the master has to sell part of his freight or merchandise to raise money to enable his ship to complete her last voyage which I conclude must mean her voyage to her home port in Quebec and the merchant or freighter whose goods are so sold for such a necessary purpose has the privilege created for their value because the sale was for the necessary purpose of bringing home the ship. I cannot place a different meaning on the same phrase the "last voyage" used in the several sub-sections. I think the meaning I suggest is the true one. The argument that the article is applicable only to Quebec registered ships has additional strength given to it by the latter part of sub-section 8, which has exclusive reference to ships built in the province, and which have not yet made a voyage.
The article was not enacted as was argued and assumed by appellants for the benefit of the material or necessaries man in the ports of Montreal or Quebec so as to give him a privilege or lien for supplies furnished to ships leaving those ports. I reason so not only because of its express limitations, but also because its main purport and object seems to have been to provide such security for the material and necessaries man in a foreign port as would induce him to furnish the supplies required by the ship to reach her home port in Quebec. To what extent this legislation, if it means what I think it does, may be beyond the legislative powers of the legislature that enacted it I do not stop to inquire. The question was not mooted or argued at bar, and its consideration is not necessary in the view I have taken of the facts.
Some suggestions were made as to the hardships such a construction as I suggest would make for the
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material and necessaries man in the Quebec ports. But apart from these suggested hardships which should not in any case be allowed to govern the construction of a statute, and which in my judgment are more figments of the imagination than business realir ties (because the material man is not obliged to give credit and in doing so to ship-owners or charterers does so on the same principles as he acts on in his general dealings, that is, gives credit when he thinks it safe to do so and withholds it when he does not), I do not think the construction of the language of the article justifies its application to ordinary trading ships leaving Quebec ports and the voyages of which could not in most cases be known to the supplier whether as last voyages or ensuing voyages or round voyages or single voyages.
The sole and only question is whether with reference to this British registered ship trading under such a charter-party as we have here from Rotterdam ta Montreal, supplies furnished in the latter city to the agent of the charterer or hirer of the ship for the uses and purposes of the ship, but for which the ship-owner was in no way personally responsible, can be held to be within sub-section 5 of article 2383 of the Civil Code, and create a preference upon the ship itself so as to enable the material man or supplier to seize and sell it for the cost or value of the supplies on the ground that they were "for the furnishing of the ship for the last voyage."
I would dismiss this appeal and confirm the judgment below on the grounds, first, that each trip of the steamer across the Atlantic in the circumstances of this case constituted a voyage in itself which view, if correct, of course disposes of plaintiffs' action; and,
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secondly, if I am wrong in that, and whether or not the article of the Code in question extends to ships other than those registered in the Province of Quebec, that it does not cover the particular voyage of this ship for which the coal delivered in July and sued for in this action was furnished, a voyage either round or single ending in Rotterdam.
Idington J.—This action was brought by appellants in the Superior Court of Quebec against the Canadian Lines, Ltd., William Peterson, Limited, and Sir Alfred Jones and William John Davey, to recover the price of coal sold to them, it is claimed, and delivered at the port of Montreal on the "Lake Simcoe" on two different occasions for use in navigating that ' vessel.
The first delivery was on the 29th July, 1904, and the price was $4,940. The second was on or about the 6th and 7th September, 1904, and the price was $1,082.77. The orders therefor in each case were given by one Harling, the agent, at said port, of the William Peterson, Limited.
The master of the ship had nothing to do with ordering any of the coal, or so far as I can see in any way relative to it, beyond receiving and certifying to the quantity received on each occasion.
The ship was registered at Liverpool and belonged to the firm called "The Elder, Dempster & Company," which was composed of defendants Jones & Davey.
By a time charter these owners let the ship to the defendants William Peterson, Limited, for the period of six months from the 10th of June, 1904,
for voyages from and between Rotterdam, Havre or Dunkirk and Canadian ports.
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The second clause of the charter party is as follows:
The hirers shall purchase any coal and consumable stores now on board at current rates and shall bear all expenses in connection with' the navigation and upkeep of the vessel and shall provide coal, stores, emigrant outfits and shall provide captain, officers and necessary crew who shall be the servants of the hirers and shall bear all expenses in connection with the steamer from the time of delivery until the re-delivery of the steamer to the owners as aforesaid.
Clauses 3 and 4 thereof provided that the hirers pay cost of insurance and seven per cent. per annum upon £40,000 from time of delivery to re-delivery or sale, in case they exercised the option given them to buy her.
Clause 5 provides that
the hirers, as further consideration for the hire of the steamer, shall pay to the owners a sum equal to one-half of the profits which shall accrue from the working of the vessel during each whole or part voyage during the time of hire,
and describes the charges to be considered in arriving at such profits.
Clause 7 provided if any voyage should result in a loss the owners should be under no liability in respect thereof.
Clause 11 provided that this contract should be governed solely by the law of England.
The appellants seek, notwithstanding the foregoing condition of things, to render the said sum of $ 4,940 a charge upon the vessel which was seized at the commencement of the action in the port of Montreal. Article 2383 of the Civil Code of Quebec province is invoked to maintain this claim.
Then the second claim of $1,082.77 is rested upon article 931 of the Code of Procedure.
The appellants also sought to rest their claims on the ground that by reason of the provision I have
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quoted for sharing profits there was a partnership between the owners and the charterers that rendered the former liable for the debts thus incurred by the latter.
I cannot find under the terms of this charter-party, when looked at as a whole, that such partnership existed. I will deal with other aspects of this profit sharing clause hereafter.
There may be cases to which the respective provisions of these articles in these several Codes above referred to will apply.
Wherever one has supplied coal to a ship pursuant to the order of the ship owner, or one authorized to bind him, such provision might properly so bind the owner and ship as to enable the court of a province where the coal was thus ordered and supplied to seize and, if need be, sell the ship so supplied to satisfy the demand for payment.
But what authority had any one Here concerned to bind the respondents, the ship owners?
The master in charge was not the owner nor in the employment of the owner at all. And, as already shewn, none of the orders were given by him and he only with the engineer certified to the weights being correct.
Then Mr. Harling, who gave the orders had no relation whatever to or with the owners. Clearly, I should infer every one knew at that port, where the orders were given, that he represented only William Peterson, Limited, or their creation, if I might say so, and ally, the Canadian Lines, Limited, but in no way the Elder, Dempster Co., who had in that very port their own offices and agents who never were, but should have been, asked or consulted if it ever had been intended to bind their company.
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Then, at the suggestion of Mr. Harling, a draft was drawn for the amount of the account arising from the first transaction upon William Peterson Co., Limited. I do not say this necessarily waived any right to charge the party properly chargeable with the price of the coal, but I do think it an important fact for consideration in relation to the question of knowledge that the ship was then under charter-party to the William Peterson Co., Limited.
With such knowledge of that fact on the part of appellants, of which evidence meets one at every turn, in considering the cardinal features of the case it would seem quite impossible to suppose that the appellants imagined they were selling on the credit of the owners of the ship or to any one at all authorized to bind the ship itself by any lien or charge.
The master, even if representing directly the owner, has no power to create such a lien. True, the owners being rendered liable in such a case, the court of admiralty may get possession of the ship, and enforce, by sale of the ship if need be, its judgment for the debt thus created.
This case is not within the range of operation of any such principle of law, or of any other principle of law, that would imply the right in any one concerned, in acting here, to bind, on these facts, the ship, or the owners thereof. The form of invoice gives the transaction no greater force.
All the rights springing from article 2383 of the Code in a proper case, have no foundation in fact to rest upon here.
I do not see, therefore, that I am called upon to interpret that article of the Code, so as to determine exactly what the phrase "last voyage" occurring therein may mean.
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To reach, by said article of the Code, such results as claimed here it seems to me necessary to refrain from looking at anything else in the case and hold that a ship owner may by virtue of said article lose his ship by acts not his own directly or indirectly, but of some one acting without his authority. Maritime liens may arise out of wholly unauthorized acts. This claim is not founded on one of such maritime liens. Nor does the article create a lien. Nor did the law on which it was founded contemplate doing so in that sense. Can it be said that the privilege could be enforced in an English court in Liverpool as a maritime lien could be? Article 1983 of the Code defines what is meant by it in using the word privilege.
The English law would probably have as the law of the flag of the ship governed the limits of authority. See Lloyd v. Guibert. But we are not left to guess at the intention of the parties in that regard.
It is by the clause 11 referred to above put beyond dispute, that only by the law of England are we to find the authority for binding this ship.
The fact that the owners had a right to a share of the profits in addition to the sum or percentage fixed for compensation has given me a good deal of concern. In some cases the owner's interest that the ship should sail and earn profits has been found a determining factor in implying an authority in the master to bind the owner.
But on the whole case and including all the terms of agreement, and especially seeing the master was not he who ordered, or was employed by the owner, I do not think that the matter of right to profits without any correlative obligation as to losses can out-
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weigh all else. I have not been able to find an exactly similar case.
Only one thing remains, and that is the extent of the rights, if any, of the dernier équipeur under article 931 of the Code of Procedure, and the features of that claim of the appellants which may distinguish it from all else I have said relative to facts common to both items claimed.
There is no right that can be claimed as of privilege or lien for such account, but there is a right given to stop the vessel and all therein when necessary to secure a debt properly incurred for equipment. It must, however, be a debt due from the defendant to the plaintiff.
That herein, not existing when the proceedings were taken, can any after ratification or adoption make it such a debt? A good deal may be said in favour of the proposition that the respondents, the Elder, Dempster Company, adopted this last order and liability thereon as theirs.
Can the owners come in and say as they did here, give us our vessel and we undertake to return it, if it be adjudged we are liable, and by that means carry away the coal just delivered and use it and profit by it and then repudiate all liability for it?
I fear these acts cannot in this action at all events The held to shew a ratification or adoption and in either case a relation back that would bind.
I regret to find a most righteous claim for the coal with which the vessel steamed away from port by virtue of the respondents' bail cannot, in this case, at least, be recovered from them.
I am compelled to hold the appeal should be dismissed with costs.
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Maclennan J.—The questions in this appeal relate to a steamship called the "Lake Simcoe," of British register, seized in the month of September, 1904, at the port of Montreal, under process for the enforcement of a privilege, claimed by the appellants upon the vessel, for coal supplied by them to the ship while lying in the port of Montreal.
The respondents, Sir Alfred Lewis Jones and William John Davey, carry on business as ship-owners in England and in Montreal, under the name and firm of Elder, Dempster & Co., and being the owners of the "Lake Simcoe," they on the 10th June, 1904, chartered her as she then lay at the port of Liverpool, to persons by the name of William Peterson, Limited, for six months from the sixteenth of June, 1904, for voyages from and between Rotterdam, Havre or Dunkirk and Canadian ports, Quebec and or, Montreal. But the ship was under no circumstances to sail from or to or touch at, any port in the United Kingdom, and not, directly or indirectly, to be used or employed in trading between any United Kingdom ports and Canada.
The ship commenced the voyages between the named European ports and Canada, which were contemplated by the charter-party; and on pr about the first day of August, 1904, was lying in the port of Montreal; and the charterers on that day obtained from the appellants a supply of coal for the use of the ship, amounting; to the sum of $ 4,951.29.
The ship afterwards sailed to Europe, and returned to Montreal; and on or about the 6th September, 1904, obtained a further supply of coal from the appellants of the value of $1,082.77. The charterers soon afterwards became insolvent, and default having
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been made in payment of both supplies of coal, and of the obligations given therefor, the ship was arrested by way of privilege for both supplies, and the question in the appeal is whether the arrest of the ship can be maintained against the owners for both or either of the supplies.
The learned trial judge upheld the claim of the plaintiffs against the ship for both supplies; but his judgment was reversed on appeal to the Court of King's Bench, so far as it maintained the seizure and directed a sale of the ship to satisfy the plaintiffs' claims.
The two claims are rested upon different articles of the Code, and I shall first consider the second supply.
This claim depends upon article 931 of the Code of Procedure, and article 2391 of the Civil Code.
Article 931 enables a creditor, in certain specified circumstances, to attach the goods of his debtor in any case wherein the defendant is personally indebted to the plaintiff in a sum exceeding five dollars. But there is nothing in the article which warrants the attachment of property, such as the ship in the present case, which is not the property of the debtor, or the attachment of one man's goods for another man's debt. Jones & Co. were not the plaintiffs' debtors, and they were the owners of the ship. Peterson & Co. alone were the debtors, and they were only the charterers of the ship, and not the owners.
But it was urged that article 2391, C.C., made, Peterson & Co. the owners for the purposes of the attachment, because it declares that a charterer such as they were, is held to be the owner,
with the rights and liabilities of an owner as respects third persons.
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But that is very far from declaring that the charterer may charge the ship with his debts or liabilities. It is the rights and liabilities of the charterer which this article is dealing with and defining, not those of the owner. I think this article means only that the charterer may not escape liability for his engagements with third parties, in the management of the ship under his charter, by saying that he is not the owner.
I also think that article 2397 CC., is a difficulty in the way of the appellants, for the owners of the ship were present at the port of Montreal, by agents who represented them, and it is not pretended that they authorized the purchase of the coal in question.
I am therefore clearly of opinion that the judgment is right with respect to the second supply of coal, and should be maintained.
The question of the first supply is one of greater difficulty.
Article 2383 C.C declares that there is a privilege upon vessels for payment of the following debts:
1 The costs of seizure and sale, according to article 1995;
2 Pilotage, wharfage and harbour dues, and penalties for the infraction of lawful harbour regulations;
3 The expenses of keeping the vessel and riging and of repairing the latter since the last voyage;
4 The wages of the master and crew for the last voyage;
5 The sums due for repairing and furnishing the ship on her last voyage, and for merchandise sold by the captain for the same purpose;
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7 Premiums of insurance upon the ship for the last voyage.
There are other two sub-sections (6) and (8), but they afford no assistance with reference, to the present claim. The important sub-section is No. 5, and the question is whether the first supply of coal was furnished to the ship, pour son dernier voyage, as expressed in the French version, or on her last voyage, as expressed in the English version.
The coal was supplied at the request of the charterers while the ship was lying in the port of Montreal, after which she proceeded to sea, sailed to a European port, and then returned to Montreal, when the seizure was effected.
The question to be decided is: Was the coal supplied on or for the ship's last voyage? In other words what is the meaning of the words last voyage, as used in sub-section 5?
The meaning of the word "voyage" when applied to a ship, depends, in any particular case, on the employment in which the ship is engaged. If a ship of war, or other ship, is sent on a particular expedition, her voyage would generally include her return home, as a voyage of convoy, or of exploration or discovery, such as the voyages of Columbus, Captain Cook, Jacques Cartier, and other famous explorers.
It is otherwise in the case of the great Atlantic passenger steamships. In their case I think speaking generally, each passage across the sea is a voyage; and I think the same is true of ships like that in question, for their business is similar to that of the great liners, namely, the carrying of passengers and cargoes across the sea, and loading and discharging on both sides.
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The ship in question was chartered in Liverpool, where she was then lying, expressly for voyages between certain named European ports and Canada; and she was to be delivered to her owners, when the charter expired, either at Liverpool, or in some continental port at the option of her owners.
The ship's first voyage began in Europe, and her last voyage was to end there, whether the voyages were to be regarded as round voyages, that is including the crossing of the ocean and return, or whether each passage across the ocean was a separate voyage. If they are to be regarded as round voyages, then the appellants ought to succeed, for in that view the first coal was supplied in the middle of a voyage, and the seizure was made in the middle of the next voyage, and while it was still incomplete.
The same conclusion follows if the voyages are to be regarded as round voyages, even if we suppose them to have commenced in the port of Montreal.
But if each passage across the ocean is to be regarded as a voyage, within the meaning of the subsection, then the coal was not supplied on or for the last voyage, for, on that construction, she would have made a complete voyage between that for which she received the coal and her seizure.
I am of opinion that the fair and obvious meaning of the word "voyage," as applied to this ship, having regard to her charter and her employment, and to the ordinary and common use and understanding of the word, is a single passage across the ocean; and that the ship having made two voyages across the sea between the supply of coal and the seizure, the sub-section 5 of the article is inapplicable, and the seizure cannot be maintained.
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I am further of opinion that the same conclusion follows from an attentive consideration of sub-section 5 itself.
It provides a remedy for supplies and repairs obtained for the ship in two ways, namely, first, on credit, and secondly, by the sale of cargo by the captain in case of necessity, as authorized by article 2399 of the Civil Code. The voyage referred to in the sub-section must be the same voyage with reference to both kinds of debt, that is the debt for supplies and repairs obtained on credit, and those obtained, by sale of cargo. The extreme act of selling merchandise for repairs or furnishings could not lawfully be resorted to by the captain either at the loading port, before sailing, or at the port of discharge after arrival. The sale which he is authorized to make must be one made in the course of his voyage, at some way port of call, between the time of loading and the time of unloading; and by reason of necessity, to enable him to complete his voyage. When, upon the arrival of the ship at the port of discharge, the owner or consignee of the cargo, or any part of it, goes to the ship for his goods, and finds that they have been sold by the captain, he has a privilege upon the ship by virtue of the sub-section. The conclusion is, therefore, plain that the word voyage, used in the subjection, means a voyage between the port where the ship has been loaded, and the port of discharge, that is, in the present case, each separate passage across the sea.
That being so, the seizure for the first supply of coal was too late, and was unauthorized, as the coal was not supplied either on or for the last voyage.
I am therefore of opinion that the appeal fails and ought to be dismissed with costs.
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Duff J.—The facts in evidence in this case do not, I think, afford any satisfactory reason for holding a passage of the respondents' ship from Rotterdam to Montreal or a passage from Montreal to Rotterdam to be other than that which in the ordinary sense of the words it would seem to be—a single complete voyage. Neither do I see anything in article 2383 of the Civil Code, which we are called upon to apply, justifying the view that a given voyage can be regarded as the "last voyage" within the meaning of the article if it be not the "last voyage" in fact.
It follows in the view I have indicated—since between the complete voyage from Montreal to Rotterdam and the proceedings to enforce the appellant's claim there intervened a complete voyage from Rotterdam to Montreal—that a debt incurred in respect of supplies furnished for the first of these voyages alone cannot be made a foundation for a valid claim of privilege under the paragraph 5 referred to; and that part of the appellants' claim which is based upon such a debt must consequently fail.
With respect to that part of the claim which is based upon the second supply of coal—upon that also I think the appellants fail, for the reasons given by my brother Maclennan.
Appeal dismissed with costs.
Solicitors for the appellants: McGibbon, Casgrain,Mitchell & Surveyer.
Solicitors for the respondents: MacMaster, Hickson & Campbell.
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