Des Brisay v. Canadian Government Merchant Marine Ltd., [1941] SCR 230

Supreme Court of Canada

Des Brisay v. Canadian Government Merchant Marine Ltd., [1941] S.C.R. 230

Date: 1941-02-04

M. Desbrisay and H. A. Bulwer, Carrying On Business Under The Firm Name and Style Of M. Des Brisay & Company, and The Said M.Desbrisay & Company (Plaintiffs) Appellants;

and

Canadian Government Merchant Marine Limited and Canadian National Steamship Company Limited (Defendatns) Respondents.

1940: October 4, 7, 8; 1941: February 4.

Present: Duff C.J. and Crocket, Davis, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Negligence—Fire—Loss of plaintiffs' goods, while awaiting shipment, on defendant's pier when pier destroyed by fire—Cause of fire unknown—Duty and liability of defendant—Question as to negligence, in origin of fire, and in failing to stop its spread.

Plaintiffs sued defendant companies, one hereinafter called the "Steamship Co." and the other the "Marine Co.", for damages for loss of plaintiffs' goods by a fire which destroyed the Steamship Co.'s pier at Vancouver on which the goods were. Plaintiffs had arranged with the Marine Co. (which was agent for a number of individual ships, each owned by a separate company) for carriage of the goods to Montreal by a certain steamer, then inbound, and were directed by the Marine Co. to send the goods to said pier, where said steamer would on its arrival load Vancouver cargo. A wharfage charge in respect to said goods was payable to the Steamship Co. The pier was in process of being enlarged, but at the time of the fire, which was on a Sunday afternoon, no construction work was going on; nor were there at the pier any ships or movement of freight or transaction of any passenger or other business; and on the day before, a weekly clean-up of the pier had been made; there were two watchmen on duty, stationed at the shore end of the pier, to prevent visiting by the public. The fire started at the other end of the pier from an unknown cause.

The trial judge, Manson J., dismissed the action, holding that plaintiffs' loss did not arise out of any act or omission of either of the defendants (53 B.C.R. 207). His decision was affirmed by the Court of Appeal for British Columbia ([1940] 2 W.W.R. 97; [1940] 4 D.L.R. 171). Plaintiffs appealed to this Court.

Held: Plaintiffs' appeal should be dismissed.

The trial judge's findings against negligence by defendants, as to origin of the fire, or its spreading so as to destroy plaintiffs' goods, were, on the evidence, agreed with or accepted in the reasons for judg-

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ment in this Court. (The question of onus of proof with respect to negligence was discussed to some extent, but, on the evidence and findings, decision thereon was unnecessary).

Per Crocket and Davis JJ.: Outbreak of fire in a structure where fire is not employed in its operation or use is a remote, not a probable, risk, and the trial judge found upon the evidence that the risk of fire was in fact remote. In view of the varying risks of fire in different classes of buildings, no rule can be laid down. "The degree of want of care which constitutes negligence must vary with the circumstances. What that degree is, is a question for the jury or the Court in lieu of a jury. ***" (Caswell v. Powell, [1940] A.C. 152, at 176). Whether there was negligence by the Steamship Co. in failing to stop the fire before it spread to plaintiffs' goods was a question of fact, and on the evidence the destruction of the goods was not caused by its negligence; and the same must apply to the carrier, the Marine Co., which at the time of the destruction had not taken delivery of the goods from the pier.

Per Kerwin J.: The Marine Co. could not be liable on any basis; even if it be treated as the owner of said steamer, the highest at which its arrangement with plaintiffs might be put was that the goods should be carried on the steamer to Montreal; and the goods were destroyed without ever having come into the Marine Co.'s possession in any capacity. The Steamship Co. was not the carrier but received and held the goods merely as warehouseman. (Discussion of onus of proof as to negligence in the fire's origin). On the evidence, the Steamship Co. fulfilled its full duty to exercise the same degree of care towards the preservation of plaintiffs' goods as "might reasonably be expected from a skilled storekeeper, acquainted with the risks to be apprehended either from the character of the storehouse itself or of its locality" (Brabant v. King, [1895] A.C. 632, at 640). As to precautions against spread of fire—The pier was in process of construction; it was impossible to do everything at once; and though certain standards may be set before prospective builders by insurance men as something desirable to be attained, a warehouseman cannot be held liable merely because he did not choose to spend as much money as the adoption of those standards would involve.

APPEAL by the plaintiffs from the judgment of the Court of Appeal for British Columbia[1] in so far as that judgment dismissed their appeal from the judgment of Manson J. at trial[2].

The action was brought to recover damages from the defendants in the sum of $13,406.10, as being the value of the plaintiffs' goods lost by a fire which destroyed the pier of the defendant Canadian National Steamship Co. Ltd. at Vancouver on August 10, 1930. At the time of the fire the goods were on the pier awaiting shipment on a certain vessel (owned by a separate company) of which the defendant Canadian Government Merchant Marine

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Ltd. was agent. The material facts and circumstances of the case (on findings made or accepted in this Court) are sufficiently stated in the reasons for judgment in this Court now reported.

The trial judge, Manson J., dismissed the action, holding that the loss sustained by the plaintiffs did not arise out of any act or omission of either of the defendants. His judgment in that respect was affirmed by the Court of Appeal (per Martin C.J.B.C. and Sloan J.A. O'Halloran J.A., dissenting in part, would have allowed the plaintiffs' appeal as against Canadian National Steamship Co. Ltd.).

Manson J., subsequent to delivering his reasons for judgment dismissing the action, gave a decision as to the tariff of costs applicable (a substituted tariff having come into force since his reasons for dismissing the action were delivered) and as to the scale of costs and as to the date which the judgment should bear. In respect of these matters the plaintiffs' appeal to the Court of Appeal was allowed; and this was the subject of a cross-appeal by the defendants to this Court.

The appeal and the cross-appeal to this Court were dismissed with costs.

R. L. Maitland K.C. and A. C. DesBrisay for the appellants.

A. Alexander for the respondents.

THE CHIEF JUSTICE—I concur in dismissing the appeal. The judgment of Crocket and Davis JJ. was delivered by

DAVIS J.—The appellants' goods, being 1,588 cases of canned salmon, were destroyed by fire while on the pier of the respondent, Canadian National Steamship Company Limited (hereinafter referred to as "the Steamship company"), at Vancouver awaiting shipment by water by the respondent Canadian Government Merchant Marine, Limited (hereinafter referred to as "the Marine company"). This action was brought against both companies for damages for the loss sustained; against the Steamship company, as a warehouseman, and against the Marine company, as a carrier, upon the basis that the carriage must

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be considered as having been commenced when the goods were left on the pier designated by the carrier as the place from which the goods would be picked up for carriage.

The pier was a large terminal pier in the port of Vancouver owned and operated by the Steamship company which engages in a freight and passenger trade on the Pacific coast. The Marine company did not own or operate any pier or dock terminals at Vancouver but had an office in the Canadian National Railway depot in Vancouver and carried on business as agent for a number of individual ships, each owned by a separate incorporated company. The pier in question was 1,000 feet long and 220 feet wide. The sub-structure consisted of creosoted piles driven in coarse sand and gravel fill. The piles were capped and upon the stringers laid thereon was a deck. Upon the deck was located a warehouse—a two-storey structure at the south end, the upper storey of which was divided into a passenger concourse and offices. Around the whole warehouse on the second storey there ran a promenade gallery for the use of friends of ships' passengers. Outside the warehouse the deck, which was referred to as an apron, was made of four-inch planks with a 3/8-inch space between them laid on the stringers. The apron was 12 feet wide.

The appellants in July, 1930, having agreed to sell 1,588 cases of canned salmon to a purchaser in Montreal, made arrangements for their shipment from Vancouver to Montreal via the Panama canal. The manager telephoned to the offices of the Marine company in Vancouver and "booked" space for their carriage on a then inbound steamer, the Canadian Miller. The manager was informed that the Miller would on her arrival load Vancouver cargo at the Steamship company's pier, and he was directed to send the goods there, which was done. The arrangement, if any, existing at the time of the fire between the Marine company and the Steamship company, and the terms, if any, upon which the Canadian Miller would have used the facilities upon arrival in Vancouver, and any arrangement there may have been between the two companies, were not the subject of any evidence at the trial.

As to part of the shipment, 388 cases, the appellants were given a receipt at the pier which purported to be from the pier owners, acknowledging receipt of the goods

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but stating that they would not be liable for loss unless loss was due to negligence on their part. The other portion of the shipment, 1,200 cases, was received at the pier but it came in by water and the master of the boat when he left these goods on the pier received a manifest which was a mere acknowledgment of receipt of the goods, and there was no limitation of liability on the document. In the view I take of the appeal, the question of onus does not, however, become of any consequence.

The distinction must be drawn, it seems to me, and it is a distinction vital to a case of this sort, between negligence in the origin of a fire and negligence in suffering a fire to spread. I did not understand it to be seriously contended by counsel for the appellants that the origin of the fire in question could be attributed to any negligence on the part of the respondents, or either of them, and in any case there are, I think, concurrent findings that there was no such negligence. That being so, the case is taken out of the line of authorities in which on the facts there was negligence which caused the fire, such, for instance, as a boiler in a factory being carelessly looked after, resulting in the commencement of a fire. On the basis that the fire did not originate through any negligence on the part of the respondents, the case must then be approached from the point of view whether or not there was negligence in suffering the fire to spread from the place of its origin to the place in the shed on the pier where the particular goods were stored at the time, and if so, then was that the direct cause of the loss of the goods?

The action was not brought to trial until nearly eight years after the date of the fire. The fire was on August 10th, 1930, and the case did not come to trial until June, 1938. That may well account for much lack of exactness in the evidence as to the place and circumstances of the origin of the fire, the location of the goods in the shed on the pier and the efforts actually made to prevent the spread of the fire. No satisfactory explanation was offered for the long delay in taking the case to trial.

The fire occurred on a Sunday afternoon, when the whole structure was destroyed. No ships lay at the pier, no freight was being moved, no passenger or other business was being transacted, and although operations then in progress for the enlargement of the pier were being carried

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on during the week-days, there were no workmen doing any work or present on the pier that day. There were two watchmen on duty at the pier for each eight-hour shift—one employed by the Steamship company and one by the contractors—but they were stationed at the time at the shore end of the long pier to prevent the public from visiting it. The only foreseeable risk that day was theft or fire that might be caused by trespassers coming on the pier. Consequently the watchmen were on duty at the shore end of the pier to keep people out. The fire broke out as a small flame at the extreme northwest corner of the pier (that is, the end of the pier far out in the water)—the evidence is not precise whether it originated below the deck (or apron) of the pier or upon it—at any rate the fire originated at a point which at least gives weight to the respondents' contention that it probably originated from sparks from some passing steamer becoming lodged in the wooden part of the structure at the extreme end of the pier. Whether the fire started under the deck or on top of it, it is clear that the fire was burning underneath the deck during its early stages. No one appears to have noticed the flame for some minutes until it had then become a substantial fire ready to spread itself over the pier and the storage shed upon the pier. There were some twenty or more hand chemical fire-extinguishers on the pier; one was placed in the dock office and three or four were placed along each side of the shed, about 100 yards apart. Some of the fire-extinguishers were loose and when men were working on week-days they would take them around with them so that in case of fire they had fire-extinguishers close to them. Measures were taken to keep the pier free of dirt and debris. A weekly clean-up had been carried out the day before the fire and the structure was clean from end to end on the day of the fire. In addition to the regular fire service provided by the Vancouver Fire Department, the respondent Steamship company had engaged the services of the British Columbia District Telegraph and Messenger Company which provided a special watchman and fire service. Five fire-alarm signal boxes were installed on the pier. The structure itself had fire-resisting features; a lower fire insurance rate had been fixed for this pier than for any of the other piers of the same class in Vancouver. The evidence goes to indi-

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cate that the fire at its inception could not adequately have been fought from the shore end and that the only way it could have been promptly handled was by means of fire-boats, which were lacking in Vancouver harbour.

Outbreak of fire in a structure where fire is not employed in its operation or use is a remote, not a probable, risk and the learned trial judge found upon the evidence that the risk of fire was in fact remote. It is not possible, of course, in view of the varying risks of fire in different classes of buildings, to lay down any rule. The learned trial judge expressly found that the watchman service was adequate. While twenty minutes may have elapsed between the commencement of the fire and the turning in of the fire alarm, the fire was for at least half of that time a very insignificant flame partly, if not wholly, under the apron of the northwest corner of the pier—a most unlikely place to suspect the outbreak of a fire and a most difficult place to detect in its early stages. As to water being available to extinguish the fire, the finding of the trial judge was that there were available four stand-pipes 200 feet apart, serviced by a six-inch water main carrying about 115 pounds pressure on fifty feet of hose attached to each outlet. There was complaint of what was said to be unnecessary delay in connecting up the sprinkler system, but the learned trial judge found that the installation of such a system was not necessary to satisfy the standard of care required of a bailee. In any event, the evidence does not establish unnecessary delay in this regard and it was not one of the several heads of negligence set forth in the statement of claim. As Lord Wright said in Caswell v. Powell[3]:

The degree of want of care which constitutes negligence must vary with the circumstances. What that degree is, is a question for the jury or the Court in lieu of a jury. It is not a matter of uniform standard. It may vary according to the circumstances from man to man, from place to place, from time to time.

It is a question of fact whether there was negligence on the part of the Steamship company in failing to stop the fire before it spread to the goods in question. I am satisfied on the evidence that the destruction of the goods was not caused by negligence on the part of the Steamship company. And the same, of course, must apply to

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the carrier, the Marine company, which at the time of the destruction of the goods had not taken delivery of them from the pier.

I would dismiss the appeal.

The cross-appeal as to costs should also, in my opinion, be dismissed for the reasons given in the Court below.

KERWIN J.—This is an action in the name of M. DesBrisay and H. A. Bulwer (carrying on business under the name of M. DesBrisay and Company) and the said M. DesBrisay and Company against Canadian National Steamship Company Limited, hereafter referred to as the Steamship company, and Canadian Government Merchant Marine Limited. The action arises out of the delivery to the Steamship company's dock, in Vancouver, of 1,588 cases of canned salmon and their loss when the dock was destroyed by fire on August 10th, 1930. The salmon was owned by M. DesBrisay and Company, who had insured themselves against loss by fire, and these proceedings are really brought by the Insurance company which paid the loss and was subrogated to the rights of the owner.

Sometime during the month of July, 1930, the plaintiff arranged, by telephone, with Canadian Government Merchant Marine Limited for the carriage of the salmon to Montreal by the S.S. Canadian Miller, and the plaintiff was directed to send the goods to the Steamship company's dock. Of the total number of cases of salmon, 1,200 came from Ewen's Cannery, Fraser River, British Columbia, by the S.S. Westham addressed to the order of B.C. Packers Limited, Vancouver, and were delivered to the dock on July 30th, 1930. C. B. Smith, the Steamship company's dock agent, merely acknowledged receipt of them by signing his name and the date at the foot of the Westham's manifest. On July 31st, B.C. Packers Limited signed a delivery order in favour of the Bank of Montreal, who, on August 8th, sent it to the Steamship company and directed the latter to release the goods to the plaintiff. The order and direction were received by the Steamship company on August 9th. In the meantime the plaintiff had employed an outside company to label the cases on the dock and this work was completed on August 7th.

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The remainder of the salmon, consisting of two lots of 338 and 50 cases respectively, were sent by the plaintiff from the Ballantyne Pier in Vancouver on August 8th and received at the Steamship company's dock on the same day. Their receipt was acknowledged on forms prepared for use by Vancouver Harbour Commissioners but there can be no dispute that they expressed the terms upon which the two lots were received and held by the Steamship company for the plaintiff. So read, they provide that the Steamship company received the goods as warehousemen and "are not to be liable for any loss or damage from whatever cause arising unless proved to have resulted from negligence of the [Company] or of their servants." In a note at the bottom, it is stated: "Shipper should exchange this Original Receipt for Steamship Lines usual Bill of Lading before sailing of the Steamer."

At the trial, the plaintiff put in as evidence parts of the examination for discovery of Mr. Keeley, the Manager of the Steamship company and General Manager of Canadian Government Merchant Marine Limited, which part included a statement by counsel for the defendants. This statement was taken as Mr. Keeley's answer to a question put to him. From this statement it appears that the S.S. Canadian Miller was owned by an incorporated company bearing the same name; that Canadian Government Merchant Marine Limited acted as agent for it and some other coastwise steamers; and that such ships used, in Vancouver, the dock owned by the defendant Steamship company. I have no hesitation in agreeing with all the judges below that Canadian Government Merchant Marine Limited is not liable in this action on any basis. Even if it be treated as the owner of the S.S. Canadian Miller, the highest at which the arrangement made between the plaintiff and it may be put, is that the salmon should be carried on the Canadian Miller to Montreal. The salmon was destroyed without ever having come into the possession of that defendant in any capacity.

So far as the defendant Steamship company is concerned, the 388 cases came into its possession by the clear terms of the receipt forms used, as warehousemen. The trial judge was of opinion that the 1,200 cases must be taken to have come into the Steamship company's possession upon the same terms as are expressed in these forms.

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I cannot agree that this is so, since the 1,200 cases were received some days before the other two lots; they were received from B.C. Packers Limited ex S.S. Westham and any alleged practice between the plaintiff and the defendants, or either of them, could not, as against the latter, apply to a consignment received from a third person and, so far as the evidence discloses, never owned by the plaintiff until the Bank of Montreal, on August 8th, directed the Steamship company to release the goods to the plaintiff or, at any rate, until the plaintiff authorized the labelling of the cases. However, on the first issue raised by the Steamship company, the result is the same, i.e., the Steamship company was not the carrier but received and held all the salmon merely as warehousemen.

There remains the question whether the Steamship company fulfilled its duty to the plaintiff as warehouseman of the salmon,—with respect to all of which a wharfage charge was payable. As to the 388 cases, the onus was plainly, by the terms of the receipts, upon the plaintiff to prove negligence. As to the 1,200 cases, the proceedings might have been differently framed but as a matter of fact, the action was treated as one for damages for the loss, by negligence, of the three lots of salmon. It was common knowledge, I think, that the salmon had been destroyed in the fire, and this is not a case where the return of the warehoused goods had been demanded by the plaintiff. The sole issue was negligence or no negligence. It is true that at the opening of the trial, counsel for the plaintiff stated:—

The goods were not returned to the plaintiff, and were not delivered to anyone else to their order, and the value of them was not paid. Our contention is that the onus in that respect is entirely upon the defendants. The goods have never been delivered, and their price has never been paid.

He immediately continued, however:—

We say that they were negligent in their duty in not properly caring for the goods when they were in their possession.

and examinations for discovery were put in on behalf of the plaintiff with a view of showing that the dock was not erected in accordance with certain recommendations that had been made, that a sprinkler system had been installed but had not been connected with the water supply at the

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time of the fire, and that waste from the spinning of oakum had been allowed to remain on the apron of the dock.

Assuming, however, that the ordinary responsibility of a warehouseman rested upon the Steamship company to explain its inability to return the 1,200 cases, the evidence discloses that explanation,—loss by fire. So much being shown, it is at least arguable that the onus was then on the plaintiff to prove that the fire was a negligent one and did not "accidentally begin" within the meaning of 14 Geo. III, c. 78, s. 86. Port Coquitlam v. Wilson[4]; McAuliffe v. Hubbell[5]; Beven on Negligence, 4th edition, page 624, where, referring to Filliter v. Phippard[6], it is stated:

The effect of this decision is to require the plaintiff affirmatively to show negligence before he can recover; unless, indeed, the facts are such as raise the inference of negligence.

Facts sufficient to raise the inference of negligence were present in United Motors Service Inc. v. Hutson[7] but not here.

In reality it is not necessary in the present case to rely upon any onus cast upon the plaintiff, because I agree, as did the majority of the Court of Appeal, with this statement of the trial judge:—

No evidence was led to even remotely suggest that the fire had its origin through any act or omission of the defendants, their servants or agents,

and with this definite finding made by him, which follows the statement just quoted:—

In my view it was satisfactorily shown that the fire was due to some extraneous circumstance over which the defendants, their servants or agents had no control.

I entirely agree with the trial judge and the majority of the Court of Appeal that there was nothing done or omitted by the Steamship company in connection with the building of the dock or the use of it which caused or contributed to the starting of the fire. The Steamship company fulfilled its full duty to exercise the same degree of care towards the preservation of the plaintiff's goods as "might reasonably be expected from a skilled storekeeper, acquainted with the risks to be apprehended either

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from the character of the storehouse itself or of its locality." (Brabant v. King[8]). The remainder of Lord Watson's sentence from which the above is taken has no relevancy to the present appeal.

It was next contended that the circumstances are such as impose liability upon the Steamship company for the spread of the fire. In this connection it must be remembered that the dock was in the process of being constructed. It was impossible to do everything at once and while it appears from the evidence that certain standards are set before prospective builders, by insurance men, as something desirable to be attained, a warehouseman cannot be held liable merely because he did not choose to spend as much money as the adoption of those standards would involve. As to the circumstance that the sprinkler system had been installed but not connected with the water supply, no fault can, I think, be found with the Steamship company because of the time that had elapsed. In fact, on these questions and also with respect to the other matters of complaint, I agree so thoroughly with the view of the learned trial judge that I am content to adopt his conclusions. I might add but one word as to Foot, who was a watchman for the company that had the contract to construct the dock and who was not called as a witness. It does not appear whether he was alive but, in view of all the evidence and of the fact that the trial was held eight years after the fire, one would not be surprised if he were not available or if he had nothing to add to the testimony of the Steamship company's watchman. As to the objection that various other superior officials of the Steamship company were not called, it is sufficient to point out that some of them were examined for discovery at length and there is nothing to indicate that they could have added to the knowledge obtained by the Court from the evidence before it.

A question as to the scale and quantum of costs payable to the defendants was raised before the Court of Appeal, all the members of which agreed in that respect with the plaintiff's contention and directed a variation of the judgment. The defendants gave notice of cross-appeal to this Court upon that question. Such a matter is more

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properly disposed of by the Judges in the Court of Appeal and I would not interfere with the conclusion at which they arrived.

The appeal and cross-appeal should be dismissed with costs.

HUDSON J.—I agree that this appeal and the cross-appeal should be dismissed with costs.

The learned trial judge found as a fact that the loss of the plaintiff's goods was not due to any negligence on the part of the defendants. This view was confirmed by the Court of Appeal and a review of the evidence does not lead me to any different conclusion. On the questions of law involved, I have nothing to add to what has been said by my brothers Davis and Kerwin.

Appeal and cross-appeal dismissed with costs.

Solicitors for the appellants: Bourne & DesBrisay.

Solicitor for the respondents: A. R. MacLeod.