Supreme Court of Canada
St-Siméon Navigation Inc. v. A. Couturier & Fils Limitée, [1974] S.C.R. 1176
Date: 1973-10-29
St-Siméon Navigation Inc. Appellant;
and
A. Couturier & Fils Limitée Respondent.
1973: October 10; 1973: October 29.
Present: Fauteux C.J. and Abbott, Ritchie, Pigeon and Dickson JJ.
ON APPEAL FROM THE EXCHEQUER COURT OF CANADA
Shipping—Carriage of goods—Loss of cargo—Ship unseaworthy—Stowage on deck not declared in bill of lading—Form supplied by transporter filled in by shipper—Clause excluding liability—Carriage of Goods by Water Act, R.S.C. 1970, c. C-15, s. 4—Rules, s. 1(e).
Appellant had on board its ship received from respondent a cargo of lumber, a large part of which was stowed on deck, for carriage from Marsoui to Sept-Îles, on the North Shore. A strong wind developed during the crossing, forcing the captain to turn about, and some bundles of lumber slid off into the water. Lumber piled too high on the deck made the ship unseaworthy in view of the possible weather conditions that might reasonably be anticipated. Appellant was condemned to pay damages to respondent. Hence the appeal to this Court, in which appellant relied on a clause excluding liability for goods stowed on deck, contained in the bill of landing.
Held: The appeal should be dismissed.
Respondent impliedly consented to stowage on deck, but the bill of lading did not state that the goods were stowed on deck. In accordance with s. 4 of the Carriage of Goods by Water Act, it included a principal clause stating that any provision inconsistent with that Act and the Rules contained in the Schedule thereto was null and void. Now, the definition of “goods” in s. 1(c) of the Rules clearly indicates that for articles in a cargo not to be “goods” within the meaning of the Rules, it must be stated in the contract of carriage that they are carried on deck. It is not sufficient that they are in fact so carried. A provision that goods stowed on deck shall be deemed to be stated as so stowed without any specific statement to this effect, is in violation of the Rules. Therefore, without the required statement an exclusion of liability for cargo stowed on deck is void.
[Page 1177]
Even if the bill of lading was written by respondent, appellant must be regarded as having drawn up the printed clause on which it relies because it has supplied the form used.
APPEAL from a judgment of Walsh J. of the Exchequer Court of Canada. Appeal dismissed.
R. Gaudreau, for the appellant.
W. David Angus, for the respondent.
The judgment of the Court was delivered by
PIGEON J.—This appeal is against a judgment of the Exchequer Court condemning appellant to pay $20,357.09 with interest and costs. Appellant had received on board its ship, the MIRON C, at Marsoui, a cargo of lumber, 60 per cent of which was stowed on deck. The whole cargo was to be delivered to Sept-Îles on the North Shore. The captain started to cross the river at a quarter to twelve on the night of November 30, 1968. A strong wind developed and shortly after 1 A.M., about fifteen bundles of lumber slid off into the water. The captain turned about to take refuge in Mont-Louis and everything remaining on the deck above the rails fell into the water. The sum claimed is the value of the portion of the cargo lost in this manner.
After considering the evidence the trial judge made the following findings of fact:
I find, therefore, that had the lumber not been stacked so high on deck, it is unlikely that any of it would have been lost, and that the ship was not seaworthy in this respect at the moment of departure from Marsoui, because it was not sufficiently stable to remain unaffected by the weather conditions which might be, and were in fact, encountered. This would seem to be the only reasonable explanation for the loss of the cargo.
…
In view of my conclusion of fact that the piling of the lumber too high on the deck in view of the possible weather conditions that might reasonably be anticipat-
[Page 1178]
ed, made the ship unseaworthy, and since this was the responsibility of Captain Taschereau, I find that defendant has not succeeded in proving the exercise of due diligence to make the ship seaworthy before and at the beginning of the voyage.
…
As I have concluded that, although it was the action of the wind and sea which caused the loss of the greater part of the deck cargo, this loss would not have taken place had this cargo not been loaded too high on deck for the foreseeable weather conditions to be encountered, I cannot find that the loss was due primarily to the perils of the sea or that defendant can avail itself of this exception.
Appellant was not able to show that these findings of fact were not supported by the evidence. In view of the provisions of the Carriage of Goods by Water Act (R.S.C. 1952, c. 291, now R.S.C. 1970, c. C-15), it follows that the condemnation is well founded.
Appellant, however, argues that, though the bill of lading did not indicate that the goods were stowed on deck, the shipper was aware of this. It argues that, in the circumstances, the following clause in the bill of lading must be given effect:
[TRANSLATION] CARGO ON DECK.—The goods covered by this bill of lading may be stowed on or under the deck at the discretion of the carrier; and when they are stowed on deck they shall, by virtue of this provision, be deemed to be declared as so stowed, without any specific statement to this effect on the face of the bill of lading. With respect to goods stowed on deck or stated on the face of the bill of lading to be so stowed, the carrier assumes no liability for any loss, damage or delay at any time or from any cause whatever, including negligence or unseaworthiness of the ship at departure or at any time during the voyage.
In accordance with s. 4 of the Carriage of Goods by Water Act, the bill of lading includes a principal clause stating that any provision inconsistent with the Act and the Rules contained in the Schedule thereto is null and void.
[Page 1179]
Now, goods are defined in para. (c) of art. 1 of the Rules as follows:
(c) “goods” includes goods, wares, merchandise, and articles of every kind whatsoever, except live animals and cargo which by the contract of carnage is stated as being carried on deck and is so carried.
This provision clearly indicates that for articles in a cargo not to be “goods” within the meaning of the Rules, it must be stated in the contract of carriage that they are carried on deck. It is not sufficient that they are in fact so carried. It is therefore clear that a provision that goods stowed on deck shall be deemed to be stated as so stowed, without any specific statement to this effect, is in violation of the Rules.
The principle underlying the legislation in question, and the purpose of the Rules annexed thereto, is to prevent shipowners from reducing their liability below the standard contemplated therein. It must be said, therefore, that without the required statement an exclusion of liability for cargo stowed on deck is void, as held by Pilcher J. in Svenska Traktor v. Maritime Agencies, and Jackett C.J. in Grace Plastics Ltd. v. The “Bernd Wesch II”.
It is of no consequence that respondent rather than appellant wrote the bill of lading, the more so when the statement contained in it, [TRANSLATION] “Bills of lading may be obtained from the Company in English and French”, shows that the printed form on which it is written is that of appellant. The latter must therefore be regarded as having drawn up the printed clause on which it relies.
There is no suggestion that a mistake occurred in making out the bill of lading, and there is accordingly no need to consider the text-books and authorities applicable in the event of mistake. Nor is there any need to consider whether the clause in question implies
[Page 1180]
consent to stowage on deck, even if invalid as an exclusion of liability. Respondent admits that it consented by implication to stowage on deck, and does not contend that this was a breach of the contract of carriage.
The appeal must therefore be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Langlois, Laflamme & Gaudreau, Quebec.
Solicitors for the respondent: Stikeman, Elliott, Tamaki, Mercier & Robb, Montreal.
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