Parsons et al. v. Hart, (1900) 30 SCR 473

Supreme Court of Canada

Parsons v Hart, (1900) 30 SCR 473

Date: 1900-06-12

J. J. PARSONS AND OTHERS (DEFENDANTS)

Appellant;

And

FRANCIS J. HART (PLAINTIFF)

Respondent.

1900: May 11; 1900: June 12

PRESENT:—Sir Henry Strong O.J. and Taschereau, Gwynne, Sedgewick and Girouard JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA APPEAL SIDE.

Shipping—Bill of lading—Ship's agent — Mandate—Custom of port—Delivery—Carriers.

A trade custom, in order to be binding upon the public generally, must be shewn to be known to all persons whose interests required them to have knowledge of its existence and in any case, the terms of a bill of lading, inconsistent with and repugnant to the custom of a port, must prevail against such custom.

Judgment appealed from reversed, the Chief Justice dissenting.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada, appeal side, reversing the

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judgment of. the Court of Review, at Montreal, and restoring, in part, the judgment of the Superior Court, District of Montreal, in favour of the plaintiff with costs.

A. statement of the case and questions in issue upon this appeal will be found in the judgment of the majority of the court delivered by His Lordship Mr. Justice Sedgewick.

Atwater Q.C, and Duclos for the appellants. The consignee failed to take delivery in accordance with the specific terms of the bills of lading and was in default. Arts. 1067, 1069 C. C. When the goods were delivered over the rail from the ship's deck and placed upon the dock the ship was discharged under the bills of lading and the goods remained there at the risk of the consignee. R. S. C. chap. 90 ; art. 2430 C. C. There is no proof of a prevailing custom supported by the general practice of the port Cunningham v Fonbianque ([1]) ; Svendson v. Wallace ([2]). Custom cannot be read into the contract if it be inconsistent with or repugnant to the terms of the bills of lading. Humphrey v. Dale ([3]), remarks of Lord Campbell at page 141 ; Yates v. Pym. ([4]) ; Hutchinson v. Tatham ([5]) ; Tucker v. Linger ([6]) ; Perry v. Barnett ([7]). Here there is nothing doubtful as to the terms of the contract and it must prevail; Bowes v. Shand ([8]); Petrocochino v. Bolt ([9]) The ship delivered all the cargo called for by the bills of lading according to the terms and conditions thereof ; there is no evidence of shortage, loss or damage to that portion of the cargo which belonged to the plaintiff, and if he suffered it was through his

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own fault in his breach of the terms of the contract of carriage.

Macmaster Q.C. and F. S. Maclennan Q.C, for the respondent. The pleadings admit the shortages established by the evidence and correspondence filed; on this the courts below based their findings of fact which should not now be interfered with. Sénésac v.Central Vermont Railway Co ([10]) per Girouard J. at page 646; Montreal Gas Co. v St. Laurent ([11]); Gingras v. Desilets ([12]) George Matthews Co. v. Bouchard ([13]) Arpin v. The Queen ([14]); Bickford v. Hawkins ([15]); Grand Trunk Railway Co. v. Rainville ([16]).

The respondent was not notified to be ready to receive the goods from the ship's side, nor did the defendants expect or intend to make delivery from the ship's side on the wharf. They have not so pleaded, nor proved that they so notified plaintiff. Plaintiff was not bound to be ready to receive the goods nor: in default until after notice, and the provisions in the bill of lading authorizing entry at the Custom House, landing and warehousing at the risk of the consignee can not be invoked Bourne v Gatliffe ([17]) ; Golden v. Manning ([18]); Duff v: Budd ([19]) ; Garnett v. Willan ([20]); arts. 2429 2430 C. C. Juson v. Aylward ([21]); Richardson v. Goddard ([22]); The Eddy ([23]). Delivery according to the custom of the port was contemplated when the bills of lading were issued and must be implied though not expressed in terms. The stipulations as to mode of delivery

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must be construed as made with reference to the custom of the port of discharge and the usage governing the particular trade. Postlethwaite v. FreeIand ([24]) per Blackburn L. J. at p. 613; 1 Pritchard's Adm. Dig. (3 ed.) p. 477, no. 36 ; McLaughlin's Merchant Shipping; (3 ed.) p. 384; Meyerstein v. Barber ([25]). The manner of delivery and period at which the responsibility of the ship ceases depends upon the custom of particular places and the usage of particular trades. In Petrocochino v. Bott ([26]) deliveiy was not direct from the ship. See Cairns v. Robins ([27]) per Abinger, 0, B. at p. 262; Wright v. London & North Western Railway Co, ([28]) The bills of lading did not exempt from liability for deficiencies in the packages. We refer to arts. 1674 1675 1676 C. C. as to carriers' liability.

THE CHIEF JUSTICE (dissenting.)—I am unable to agree with the conclusion at which the other members of the court have arrived.

It appears to me that there is no error in the judgment of the Court of Queen's Bench and adhering to the reasons given in the judgment of Mr. Justice Blanchet, I am of opinion that this appeal should be dismissed with costs.

The judgment of the majority of the court was delivered by:

Sedgewick J. The appellants are the owners of

the steamship Phœnix. In April 1894, this vessel made a voyage from two Mediterranean ports Caténia and Messina, to Montreal, with a cargo of fruit. Bills of lading were issued in the regular course and the

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plaintiff was the holder of the great majority of them, representing 29,359 boxes of lemons and oranges.

The Phoenix arrived in Montreal on the 27th of April, 1894, and immediately commenced to discharge her cargo, by landing the fruit upon the wharf. These goods were not immediately taken away by the consignees but were allowed to remain upon the wharf or in sheds by Carbray, Routh & Co., the ship's agents, until they were sold on the 2nd of May following at public auction. The delivery to the auction purchasers occupied several days. After these auction purchasers had claimed their goods the respondent complained that there was a large shortage in the quantities to which he was entitled and that the ship-owners, their officers and servants, had allowed a large number of boxes while on the wharf or in the shed to be broken and their contents abstracted, and also that there was a failure to deliver certain other boxes according to their marks and numbers and this action was brought to recover the amount of these damages.

The only authority which Messrs. Carbray, Routh & Co. had to act as ship's agents upon the arrival of the Phœnix is contained in the following letter written by the appellants :

Dear Sirs,—We beg to advise you that our SS. Phoenix left Messina on the 31st ult. with a cargo of fruit for Montreal consigned to your address. The object of the present is to say, will you kindly render Captain Pick all necessary assistance he may require. We hope the cargo will be delivered in first class order and that no claim may arise. We rely upon your goodselves to keep down expenses to the lowest possible point in these very bad times, as well you know. We have about £1,166 balance of freight to receive, will you please therefore disburse the ship inward and outward of it and let us have the balance and accounts as early as you can.

The Phœnix is chartered with Messrs. Richard R. Dobell & Co. at Londnn, from Montreal to Dundee and, as we are quite free for stevedoring outward please get this done at the lowest current price consistent with good reliable stevedore Messrs Peter Ferns & Son

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have been named to us as good people in this department We trust the Phœnix will receive good despatch on both cargoes ; in the meantime we shall be pleased to hear from you.

We are, dear sirs, yours faithfully,

PARSONS & LINTON.

We are writing Captain Pick to your address.

Ninety-four bills of lading were given by the master all of which, were in the same terms. Among other stipulations therein were the following :

Shipped—(148) one hundred and forty-eight boxes lemons said to be marked and numbered as per margin and to be delivered from the ship's deck, where the ship's responsibility shall cease.

Simultaneously with the ship being ready to unload the above mentioned goods, or any part thereof, the consignee of the said goods is hereby bound to be ready to receive the same from the ship's side, either on the wharf or quay at which the ship may lie for discharge or into lighters provided with a sufficient number of men to receive and stow the said goods therein and in default thereof, the master or agent of the ship and the collector of the port of discharge are hereby authorised to enter the said goods at the Custom House and land, warehouse or place them in lighter without notice to and at the risk and expense of the said consignee of the goods after they leave the deck of the ship.

WILLIAM  A. PICK,

Master.

The declaration of the respondent contained the following statements :

4. The said steamer Phœnix during the said voyage had on board as part of her cargo 25,259 boxes of lemons and oranges and 4,100 half-boxes of oranges and lemons consigned to and the property of the said plaintiff which the master of the said steamer acknowledged to have received in food order and condition at Messina and Catania aforesaid and for which the said master issued bills of lading which were duly indorsed and delivered to the said plaintiff.

5. On the arrival of the said steamer Phœnix in Montreal the said cargo was discharged and unloaded from the steamer by the defendants and their agents in Montreal, Messrs. Carbray, Routh & Co., and placed upon the wharf and dock alongside the said steamer, and the defendants through their agents, took full charge and control of the said cargo during its discharge and after it had been placed upon the wharf as aforesaid

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It was proved at the trial that all the goods which had been taken on board the ship in the Mediterranean ports were delivered at the wharf at Montreal and I think, these two paragraphs of the declaration show that the claim is not for any loss occurring during the voyage, but for loss wholly occurring subsequent thereto, and the evidence was altogether with a view of proving that damage, and the principal question in issue, in this case is as to whether or not the ship-owners are liable therefor. I am opinion that they are not, for the following reasons :

Primâ facie, the responsibility of the owner to the consignee of the goods shipped depends upon the terms of the bill of lading. The bills of lading in this case provide that when the goods are delivered from the ship's deck the ship's responsibility shall cease, and further that, simultaneously with the ship being ready to unload, the consignee is bound to be ready to receive the same from the ship's side either on the wharf or quay at which the ship may lie for discharge.

These goods were delivered from the ship's deck. They were unloaded on the wharf and thereupon the consignees were bound to be ready to receive them. The shipper's responsibility wholly ceased ; they were from that moment at the risk wholly of the consignees. Any arrangements for the disposal or warehousing or holding of the cargo after delivery in order to bind the appellants, must be made either with them personally or with agents authorised by them specially for that purpose. The appellants themselves made no such arrangement and, as the power of the ship's agents was set out in the letter to Carbray Routh & Co; above set out and did not either directly or indirectly authorise them to constitute the ship-owners warehousemen on behalf of the consignees

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there was no authority anywhere on the part of the ship's agents to deviate in the slightest degree from the terms of the bills of lading. If they did make arrangements in regard to the custody of the goods after delivery on the wharf, they and not the ship-owners must be responsible for any loss subsequently occurring.

It was argued by counsel for the respondent that the parties here did not intend to make a delivery in accordance with the bills of lading, and that it was competent for them to adopt a delivery in accordance with an alleged custom prevailing at the port of Montreal in respect to fruit charges. There is no evidence to show that the ship-owners at least, had any intention of departing in the manner of delivery from the delivery mentioned in the bills of lading nor do I think that any custom was proved. It doubtless is true that in the case of a few vessels previously arriving in Montreal laden with fruit, the fruit was disposed of precisely as in the present case, but, for all we know, the course adopted in those cases may have been the result of special arrangements made in respect to each particular case. But there is no complete or satisfactory evidence that such a custom existed in such a manner as to be known to the trade generally and known to foreign ship-owners. The evidence must be such as to lead to the conviction that a custom in order to be binding upon the whole world, must be known, speaking largely, to all persons whose interest it would be to know of its existence.

But even supposing there was a custom, the terms of the bills of lading being inconsistent with and repugnant to the custom they must prevail against the custom. The contention of the respondent is that in order to know the full and complete contract between the parties there should be added to the bills

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of lading the following words, as suggested by the appellant's factum :

The ship agrees, after discharging the goods, to check and sort them upon the dock or wharf, to appoint a sufficient number of men day and night to care for them and to protect them from deterioration loss or theft until the consignee shall have been able to sell the said goods and then make delivery to the different purchasers upon the orders of the consignees after the said purchasers have had an opportunity of inspecting the said goods upon the wharf or quay.

I do not think it possible that such an agreement was ever contemplated by the parties. The very fact, as Mr. Justice Lynch in his judgment in the Superior Court suggests, that such a custom would be most unjust leads to the conclusion that it was no custom at all or at all events a custom not binding upon the world.

It is not necessary, taking this view of the case, that we should place liability anywhere. Our duty is done when we have determined that in the present case, it does not rest upon the owners of the ship

I am of opinion that the appeal should be allowed with costs and the action dismissed, the appellants having their costs in all the courts below.

Appeal allowed with costs.

Solicitors for the appellants Atwater & Duclos.

Solicitor for the respondent : Macmaster, Maclennan & Hichkson.