Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 SCR 683

Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683

 

Chartwell Shipping Limited       Appellant

 

v.

 

Q.N.S. Paper Company Limited                                                                                      Respondent

 

indexed as:  q.n.s. paper co. v. chartwell shipping ltd.

 

File No.:  19595.

 

*1988:  March 24.

 

Present:  Beetz, Lamer, Le Dain, La Forest and L'Heureux-Dubé JJ.

 

**Re-hearing:  1989:  April 28; 1989:  September 28.

 

Present:  Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Cory and McLachlin JJ.

 

on appeal from the court of appeal for quebec

 

    Maritime law -- Agency -- Contract for stevedoring services entered into by agent in Quebec -- Agent of unnamed or partially disclosed principal --Agent indicating to other party that acting as agent only -- Whether agent contracted personally or solely in the capacity of agent -- Whether common law or civil law principles should be applied -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 , 22(2) (m).

 

    Q.N.S., a stevedore and local shipping agent, sued Chartwell in the Quebec Superior Court on a contract for stevedoring and other services.  Chartwell, a managing operator in Quebec for the charterers of two vessels, did not deny the existence of the contract or question the amount owing, but defended the action on the ground that it had consistently represented itself as acting as an agent only notwithstanding the fact that it had not identified its principal.  In its letters to Q.N.S., Chartwell identified itself as "Managing Operators for the Charterers" or as acting "On behalf of our principals", and consistently signed "as Managing Operators only".  The Superior Court dismissed the action.  The court applied the principles of the Quebec Civil Code respecting the liability of a mandatary to third persons with whom he contracts, specifically arts. 1715 and 1716 C.C.L.C., and concluded that because the letters from Chartwell to Q.N.S. clearly identified Chartwell as a mandatary, Chartwell fulfilled the requirements of art. 1715 and could not be held liable for the debt of its mandator.  The judgment was reversed on appeal.  The majority of the Court of Appeal held that to benefit from the exclusion of liability under art. 1715, it was not enough for Chartwell to disclose that it was acting as mandatary.  Under art. 1715, it was also required to disclose adequately the identity of its mandator.  Since Chartwell had failed to do so, it was liable to Q.N.S. under art. 1716 C.C.L.C.  This appeal is to determine whether under Canadian maritime law an agent of an unnamed or partially disclosed principal is personally liable on a contract entered into by the agent with another party when the agent expressly indicates to the other party that he is acting as an agent only.  Preliminary to this issue, however, is the determination of the applicable maritime law.

 

    Held:  The appeal should be allowed.

 

    Per Wilson, La Forest, Sopinka and Cory JJ.: The maritime law applicable in this case is to be found in the principles of the common law of contract and agency.  Section 22(2) (m) of the Federal Court Act  expressly identifies stevedoring services as part of "Canadian maritime law" which is defined, in s. 2 of the Act, as including not only "law formerly administered by the Exchequer Court on its admiralty side", but also the law "that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters".  The latter portion of the definition would include all claims dealing with maritime matters and was not frozen by pre-existing admiralty jurisdiction.  It incorporated as a uniform body of federal law the maritime law of England.  The common law principles of tort, contract, agency, and bailment are a part of Canadian maritime law as adopted from England.  There are, no doubt, issues specific to admiralty jurisdiction where reference may be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience.  But this is not such a case.  The common law principles have long been relied on to deal with precisely the type of situation in issue in this case.

 

    Canadian maritime law principles do not differ depending on whether it is applied in the Federal Court or provincial superior courts.  Canadian maritime law is a body of federal law which is uniform throughout the country and applicable whatever court may exercise jurisdiction in a particular case.

 

    Under the common law principles of contract and agency, the issue whether an agent contracted personally, or solely in the capacity of agent (in which case only the principal is bound), is a matter of construction of a particular contract.  Here, the relevant documents reveal that Chartwell clearly and consistently indicated to Q.N.S. that its sole responsibility was as an agent only.  Chartwell, therefore, was not personally liable.

 

    Per Lamer and McLachlin JJ.: The consideration of civil law principles should not be confined to situations where the English Admiralty Court had jurisdiction prior to 1934.  In the area of expanded jurisdiction conferred by s. 22(2) (m) of the Federal Court Act , the question of whether it might be appropriate to refer to principles other than those established by the common law should be left open.

 

    Per L'Heureux-Dubé J.: The Federal Court Act not only establishes the jurisdiction of the Federal Court in admiralty matters but also defines the content of Canadian maritime law.  The definition of "Canadian maritime law" in s. 2 of the Act creates operative law governing the exercise of admiralty jurisdiction both in the Federal Court and in provincial superior courts and other courts.  It therefore ousts the application of provincial private law by provincial superior courts exercising their concurrent jurisdiction over Canadian maritime law.

 

    "Canadian maritime law" includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may, from time to time, have been amended by the federal Parliament and as it has developed through judicial precedent to date.  This body of law encompasses not only common law principles but also civil law principles which were always a part of maritime law as applied by the English High Court of Admiralty.  Indeed, a review of the history of that court, especially when it was granted expanded jurisdiction, reveals that whenever it sought to find general principles underlying maritime law, its method was to look to a variety of sources, including the civil law and the common law.  That comparative method was in keeping with the nature of maritime law, which is, after all, international in character.  This method remains appropriate today.  Thus, (1) where Canadian maritime jurisdiction has expanded to include matters that would not have fallen within the jurisdiction of the High Court of Admiralty in 1934, as is true of the stevedoring contracts in the instant case, and (2) where the point in issue is not subject to a specific federal statutory regime, as is true of the agency problem in the instant case, the civil law remains an important aspect of the comparative analysis necessary to determine the state of Canadian maritime law on the question in issue.  An inquiry into civilian doctrine should begin with the Civil Code.  When interpreting Canadian maritime law, however, the Civil Code is not to be applied as governing private law.  Rather, it is to be used as a helpful comparative law source of those civilian principles which make up the composite body of Canadian maritime law.

 

    In determining the issue at bar, the general principle to be gleaned from the Civil Code, and specifically from arts. 1715 and 1716, is that, absent an exceptional regime to the contrary, no prescribed formality respecting contracts between a mandatary and a third party exists.  Whether the mandatary is acting "in his own name" or "in the name of the mandator" depends on the will of the parties as reflected in their contractual relationship.  Canadian common law cases confirm this general principle and allow for its more detailed application in the domain of maritime law.  A comparative examination of the law in other jurisdictions reveals that there is as yet no unified approach to this set of issues.  But the inquiry also makes clear that general principles of mandate and agency are increasingly subject to specific maritime rules, both international and domestic, which in some domains all but oust general civil law and common law principles.  Nevertheless, absent a specific derogation to the contrary, the general principles of mandate and agency are applicable in Canadian maritime law and are neutral as between the agent or mandatary and third party.  The rule under Canadian maritime law is that there is no prescribed formality for disclosure and that the responsibility of an agent or mandator to those with whom it contracts depends on the will of the contracting parties.

 

    Here, Chartwell contracted with Q.N.S. as a mandatary and was not personally liable under the contract.  The contract entered into by the parties made it clear that Chartwell was acting as "managing operators only" and "on behalf of our principals".  Q.N.S., through its course of conduct with Chartwell, always dealt with Chartwell on the basis that Chartwell was acting as agent.  There is no evidence that Chartwell resisted requests by Q.N.S. to have the name of its principals revealed or was otherwise acting in bad faith.  Q.N.S. could not, therefore, succeed in its claim against Chartwell.

 

Cases Cited

 

By La Forest J.

 

    Applied:  ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, aff'g in part [1982] 1 F.C. 406; referred to:  Mersey Docks Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468; Universal Steam Navigation Co. v. James McKelvie & Co., [1923] A.C. 492; N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478; Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5.

 

By McLachlin J.

 

    Referred to:  ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752.

 

By L'Heureux-Dubé J.

 

    Considered:  ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, aff'g in part [1982] 1 F.C. 406; referred to: R. v. Smith, [1987] 1 S.C.R. 1045; Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Joel v. Morison (1834), 6 Car. & P. 501, 172 E.R. 1338; Westcan Stevedoring Ltd. v. The ship Armar, [1973] F.C. 1232; Argosy Marine Co. v. SS "Jeannot D", [1970] Ex. C.R. 351; Robin Line Steamship Co. v. Canadian Stevedoring Co., [1928] S.C.R. 423; Tojo Maru (Owners) v. N.V. Bureau Wijsmuller (The Tojo Maru), [1972] A.C. 242; N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478; Trans Barwil Agencies (UK) Ltd. v. John S. Braid & Co., [1989] S.L.T. 73; Micosta S.A. v. Shetland Islands Council, [1986] S.L.T. 193; Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; Coggs v. Bernard (1703), 2 Ld. Raym. 909, 92 E.R. 107; The Sylph (1867), 2 L.R. 2 A. & E. 24; The Gas Float Whitton No. 2, [1896] P. 42; The "Renard" (1778), Hay & M. 222, 165 E.R. 51; The "Aquila" (1798), 1 C. Rob. 37, 165 E.R. 87; The "Neptune" (1834), 3 Hagg. 129, 166 E.R. 354 (H.C. Adm.), rev'd (1835), 3 Knapp. 94, 12 E.R. 584 (P.C.); The "Milford" (1858), Swab. 362, 166 E.R. 1167; The Riga (1872), L.R. 3 A. & E. 516; The Heinrich Bjorn (1885), 10 P.D. 44 (C.A.), aff'd (1886), 11 App. Cas. 270 (H.L.); The Ripon City, [1897] P. 226; The Beldis, [1936] P. 51; The "Goring", [1987] 2 Lloyd's Rep. 15 (C.A.), aff'd [1988] 1 Lloyd's Rep. 397 (H.L.); The "Sennar" (No. 2), [1984] 2 Lloyd's Rep. 142; Soya G.m.b.H. Kommanditgesellschaft v. White, [1982] 1 Lloyd's Rep. 136; Tehno-Impex v. Gebr van Weelde Scheepvartkantoor BV, [1981] 2 All E.R. 669; Bankers Trust International Ltd. v. Todd Shipyards Corp. (The Halcyon Isle), [1981] A.C. 221; De Lovio v. Boit, 7 F. Cas. 418 (1815); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 773 F.2d 1528 (1985); Grand Bahama Petroleum Co., Ltd. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (1978); The Ship "Terukawa Maru" v. Co-operated Dried Fruit Sales Pty. Ltd. (1972), 126 C.L.R. 170; Bow, McLachlan and Co. v. The Ship "Camosun" (1908), 40 S.C.R. 418, rev'd on other grounds [1909] A.C. 597; The Ship Pacifico v. Winslow Marine Railway and Shipbuilding Co., [1925] Ex. C.R. 32; Canadian General Electric Co. v. Pickford & Black Ltd., [1972] S.C.R. 52; Drew Brown Ltd. v. The Ship "Orient Trader", [1974] S.C.R. 1286; The Queen v. Canadian Vickers Ltd., [1978] 2 F.C. 675; Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd., [1974] S.C.R. 933; Gatewhite Ltd. v. Iberia Lineas Aereas de Espana SA, [1989] 1 All E.R. 944; Fairway Life & Marine Insurance Ltd. v. Susan Darlene (The), [1987] 2 F.C. 547; Inverness Railway and Coal Co. v. Jones (1908), 40 S.C.R. 45; St. Lawrence Metal and Marine Works Inc. v. Canadian Fairbanks-Morse Co., [1956] S.C.R. 717; Glengoil Steamship Co. v. Pilkington (1897), 28 S.C.R. 146; N. M. Paterson & Sons Ltd. v. Mannix Ltd., [1966] S.C.R. 180; Sabb Inc. v. Shipping Ltd., [1976] 2 F.C. 175 (T.D.), aff'd [1979] 1 F.C. 461 (C.A.); Farr Inc. v. Tourloti Compania Naviera S.A., [1985] 1 F.C. D-43; The Rebecca, 20 F. Cas. 373 (1831); The "Lanarkshire" (1855), 2 Sp. Ecc. & Ad. 189, 164 E.R. 380; The "Milan" (1861), Lush. 388, 167 E.R. 167; The Onward (1873), L.R. 4 A. & E. 38; Pearson v. Lighthall (1895), 7 C.S. 201; Conroy v. Peden (1921), 32 K.B. 476; Paterson Steamships Ltd. v. Aluminum Co. of Canada Ltd., [1951] S.C.R. 852; Aris Steamship Co. v. Associated Metals & Minerals Corp., [1980] 2 S.C.R. 322; Wolfe Stevedores (1968) Ltd. v. Joseph Salter's Sons Ltd. (1970), 2 N.S.R. (2d) 269; Holt Renfrew and Co. v. Henry Singer Ltd., [1982] 4 W.W.R. 481; Lubbock Feed Lots, Inc. v. Iowa Beef Processors Inc., 630 F.2d 250 (1980); Powers v. Coffeyville Livestock Sales Co., 665 F.2d 311 (1981); Evans Products Co. v. Interstate Commerce Commission, 729 F.2d 1107 (1984); Golten Marine Co. v. World Tide Shipping Corp., 1975 A.M.C. 160; Valkenburg, K.-G. v. The S.S.  Henry Denny, 295 F.2d 330 (1961); Instituto Cubano de Estabilizacion del Azucar v. The SS Theotokos, 155 F.Supp. 945 (1957).

 

Statutes and Regulations Cited

 

Administration of Justice Act, 1928 (U.K.), 18 & 19 Geo. 5, c. 26, s. 6.

 

Administration of Justice Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 46, s. 1(1)(m).

 

Admiralty Act, R.S.C. 1952, c. 1, s. 18(3)(b).

 

Civil Code of Lower Canada, arts. 1715, 1716, 1738, 2040, 2383, 2395.

 

Constitution Act, 1867 , s. 91(10) .

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 64(1).

 

Federal Court Act , R.S.C., 1985, c. F-7 , ss. 2  "Canadian maritime law", 20, 22(1), (2)(m).

 

Regulations affecting ocean freight forwarders, marine terminal operations and passenger vessels, 46 C.F.R. s. 510.23(a) (1985).

 

Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66.

 

Authors Cited

 

Abbott, Charles (later Lord Tenterden).  A Treatise of the Law Relative to Merchant Ships and Seamen, 14th ed.  By the late James Perronet Aspinall, Butler Aspinall and Hubert Stuart Moore.  London:  Butterworths, 1901.

 

Aubry et Rau, Droit civil français, 7^e éd., t. 6.  Sous la direction de Paul Esmein et André Ponsard.  Paris:  Librairies techniques, 1975.

 

Baudouin, Jean-Louis.  "L'interprétation du Code civil québécois par la Cour suprême du Canada" (1975), 53 Can. Bar Rev. 715.

 

Baudouin, Louis.  Le Droit civil de la Province de Québec:  Modèle vivant de Droit comparé.  Montréal:  Wilson & Lafleur, 1953.

 

Bowstead on Agency, 15th ed.  By F. M. B. Reynolds.  London:  Sweet & Maxwell, 1985.

 

Braën, André.  "Le droit maritime du Québec à l'aube de la codification" (1985), 16 R.G.D. 429.

 

Carver's Carriage by Sea, 13th ed., vol. 1.  By Raoul Colinvaux.  London:  Steven & Sons, 1982.

 

Chao, Andrée.  "Réflexions sur la "Identity of Carrier Clause" (1967), 19  D.M.F. 12.

 

Civil Code of Lower Canada:  Sixth and Seventh Reports and Supplementary Report.  Quebec:  George E. Desbarats, 1865.

 

Fridman, G. H. L.  The Law of Agency, 5th ed.  London:  Butterworths, 1983.

 

Glenn, H. Patrick.  "Maritime Law -- Federal Court Jurisdiction -- Canadian Maritime Law -- Relationship to Civil and Common Law:  Ito--International Terminal Operators Ltd. v. Miida Electronics Inc." (1987), 66 Can. Bar Rev. 360.

 

Gorton, Lars and Rolf Ihre and Arne Sandevärn.  Shipbroking and Chartering Practice, 2nd ed.  London:  Lloyd's of London Press Ltd., 1984.

 

Hill, D. J.  Freight Forwarders.  London:  Stevens & Sons, 1972.

 

Holdsworth, Sir William.  A History of English Law, 7th ed., vol. I.  Revised by A. L. Goodhart and H. G. Hanbury.  London:  Methuen & Co., 1956.

 

Holdsworth, Sir William.  A History of English Law, vol. XVI.  Edited by A. L. Goodhart and H. G. Hanbury.  London:  Methuen & Co. and Sweet & Maxwell, 1966.

 

Jones, Peter F. M.  "The Forwarder -- Principal or Agent, a Carrier or Not?".  In Meredith Memorial Lectures 1986, Current Problems in Maritime Law Canada/United States/International.  Faculty of Law, McGill University.  Don Mills, Ont.:  De Boo, 1987.

 

Mazeaud, Henri et Léon et Jean Mazeaud. Leçons de droit civil, t. 3, vol. 2, 5^e éd. Paris: Éditions Montchrestien, 1980.

 

Mignault, P.-B.  "Le Code Civil de la province de Québec et son interprétation" (1935), 1 U.T.L.J. 104.

 

Mignault, P.-B.  Le droit civil canadien, t. 8.  Montréal:  Wilson & Lafleur, 1909.

 

Moussa, Abdel Rafea A.  Le consignataire du navire en droit français et égyptien.  Paris:  L.G.D.J., 1983.

 

Müller-Freienfels, W.  "Comparative Aspects of Undisclosed Agency" (1955), 18 Mod. L. Rev. 33.

 

Pineau, Jean.  "La Législation maritime canadienne et le Code civil québécois" (1968), 14 McGill L. J. 26.

 

Restatement of the Law (Second):  Agency 2d, vol. 2.  Adopted and Promulgated by the American Law Institute.  St. Paul, Minn.:  American Law Institute Publishers, 1958.

 

Reynolds, F. M. B. "The Demise Clause (The Jalamohan)," [1988] Lloyd's Mar. & Com. L.Q. 285.

 

Rodière, René.  Traité général de droit maritime: affrètements & transports, t. 3.  Paris:  Librairie Dalloz, 1970.

 

Rodière, René. Traité général de droit maritime: introduction & armement. Paris: Dalloz, 1976.

 

Story, Joseph.  Commentaries on the Law of Agency, Boston:  Little, Brown. Co., 1839.

 

Tetley, William.  "Responsability of Freight Forwarders," [1987] Eur. Trans. L. 79.

 

Tetley, William.  Marine Cargo Claims, 2nd ed.  Toronto:  Butterworths, 1978.

 

Tetley, William.  Maritime Liens and Claims.  London:  Business Law Communications Ltd., 1985.

 

Traité de Droit civil du Québec, t. 13.  Par Hervé Roch et Rodolphe Paré. Montréal:  Wilson & Lafleur, 1952.

 

Walton, Frederick Parker.  The Scope and Interpretation of the Civil Code of Lower Canada.  Toronto:  Butterworths,  c<o 1907, 1980.

 

Wiswall, F. L.  The Development of Admiralty Jurisdiction and Practice Since 1800.  Cambridge:  University Press, 1970.

 

Zweigert, Konrad and Hein Kötz.  An Introduction to Comparative Law, t. 2. Translated from German by Tony Weir.  Amsterdam:  North-Holland Publishing Co., 1977.

 

    APPEAL from a judgment of the Quebec Court of Appeal, [1985] C.A. 413, setting aside a judgment of the Superior Court, [1979] C.S. 453.  Appeal allowed.

 

    David F. H. Marler and Mary C. Parker, for the appellant.

 

    Allan R. Hilton and Robert Metcalfe, for the respondent.

 

//McLachlin J.//

 

    The reasons of Lamer and McLachlin JJ. were delivered by

 

    MCLACHLIN J. -- I agree with the conclusions of La Forest and L'Heureux-Dubé JJ., subject to the following comments.

 

    I would not confine the consideration of civil law principles to situations where the English Admiralty Court had jurisdiction prior to 1934.  I would wish to leave open the question of whether, in the area of expanded jurisdiction conferred by s. 22(2) (m) of the Federal Court Act , R.S.C., 1985, c. F-7  (whereby Canadian courts must apply "the law that . . . would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters"), it might be appropriate to refer to principles other than those established by the common law.

 

    I base this conclusion on three propositions.

 

    First, maritime law in England, and consequently in Canada, has a long international tradition which draws, at least in part, on civil law.  As L'Heureux-Dubé J. points out, civil law concepts not only were at the heart of the original Admiralty jurisdiction, which sought to apply civil law rather than the common law but also continued to play a role, together with the common law, in Admiralty judgments in England up to 1934, when English admiralty law was adopted in Canada.  When, applying s. 22(2)(m), I ask myself what law would the Court of Admiralty have applied in areas of new jurisdiction, I cannot reply that it would have applied only common law principles.   Rather, the history and tradition of the Admiralty court suggests that in some cases, it might have had recourse to civilian traditions.

 

    Second, I view the international underpinning and orientation of maritime law as one not lightly to be eschewed.   Maritime law, to a large extent, is international law.  It is important for commercial reasons that the courts, in interpreting its principles, have regard where appropriate to the broader backdrop of international law.  For this reason, I would resist the suggestion that international and civilian traditions can have no role to play except in those areas where the English Court of Admiralty actually exercised jurisdiction prior to 1934.

 

    Finally, I do not read this Court's decision in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, as precluding the consideration of civil law principles in areas of Canadian maritime law where there is no precedent in the English Court of Admiralty prior to 1934.  At page 774, McIntyre J. emphasizes that Canadian maritime law cannot be regarded as having been frozen as of 1934.   He goes on to say:

 

On the contrary, the words `maritime' and `admiralty' should be interpreted within the modern context of commerce and shipping.

 

That context, I venture to suggest, is neither a common law context, nor a civilian context; it is an international context in which both traditions may play a part.

 

    At page 776, McIntyre J. points out that the English Admiralty Court applied common law principles of contract and tort in some situations, such as collisions on the high seas.   Nowhere, however, does he suggest that the Court did not also apply civil law principles -- a fact amply demonstrated by the reasons of L'Heureux-Dubé J. in this case.

 

    As I see it, the contest in this case is not between the Anglo-Canadian common law and the civil law (I agree with L'Heureux-Dubé J. that the result in this case would be the same under both systems), but between the American law and the Anglo-Canadian common law.   I see no basis, under s. 22(2) (m) of the Federal Court Act  or otherwise, for preferring American law to the Anglo-Canadian common law and civil law, in determining what rule should be adopted in Canadian admiralty law.

 

    I would allow the appeal with costs.

 

//La Forest J.//

 

    The judgment of Wilson, La Forest, Sopinka and Cory JJ. was delivered by

 

    LA FOREST J. -- At issue in this appeal is whether under Canadian maritime law an agent of an unnamed or partially disclosed principal is personally liable on a contract entered into by the agent with another party when the agent expressly indicates to the other party that he is acting as an agent only.  Before that issue can be addressed, however, a threshold issue of what law is applicable must be settled.

 

    The respondent Q.N.S., a stevedore and local ship agent, sued the appellant Chartwell, in the Quebec Superior Court, on a contract for stevedoring and other services.  Chartwell did not deny the existence of the contract or question the amount owing, but defended the action on the ground that, though it had not identified its principal, it had consistently represented itself as acting as an agent only.  The detailed facts and the judicial history of the appeal are set forth in the opinion of my colleague L'Heureux-Dubé J. and need not be repeated.  It suffices to say that the Superior Court absolved Chartwell of liability, [1979] C.S. 453, but the Quebec Court of Appeal held it liable, [1985] C.A. 413.  Both courts applied the principles of the Quebec Civil Code respecting the liability of a mandatory to third persons with whom he contracts, specifically arts. 1715 and 1716 of the Code.

 

    The decision of these courts was made before that of this Court in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, was rendered.  In that case, a marine carrier (Mitsui) contracted to carry electronic calculators from Japan to Montréal where the owner (Miida) was to take delivery.  On arrival at Montréal, the goods were picked up by ITO, a cargo-handling company which had agreed with the carrier to unload and store the goods until delivery to the owner.  While in storage in a terminal transit shed operated by ITO, a substantial number of the calculators were stolen.  The theft could in all probability have been prevented were it not for negligence in the operation of ITO's security system.  The owner sued both ITO and the carrier.  Only the action against ITO is relevant here, since it raised the issue of the applicable law.  Though all the members of the Court agreed in the result, they disagreed (4-3) on the issue of the applicable law.

 

    McIntyre J., speaking for a majority, had this to say, at p. 779:

 

    It is my view, as set out above, that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment.  I am also of the opinion that Canadian maritime law is uniform throughout Canada, a view also expressed by Le Dain J. in the Court of Appeal who applied the common law principles of bailment to resolve Miida's claim against ITO.  Canadian maritime law is that body of law defined in s. 2  of the Federal Court Act .  That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada.

 

The minority, however, stressed that the action against ITO was purely delictual.  It was simply an action in delict committed in Montréal, and it thus fell within the jurisdiction of the civil courts of Quebec, not that of the Federal Court.  From their perspective, it was not a question of maritime law at all.

 

    In the present case, there is no question that we are dealing with maritime law.  Section 22(2) (m) of the Federal Court Act , R.S.C., 1985, c. F-7 , expressly identifies stevedoring services as part of Canadian maritime law.  That provision reads:

 

    22. . . .

 

    (2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following:

 

                                                                          . . .

 

    (m) any claim in respect of goods, materials or services wherever supplied to a ship for the operation or maintenance of the ship, including, without restricting the generality of the foregoing, claims in respect of stevedoring and lighterage;

 

    There is no doubt that the development of English admiralty law, from which Canadian maritime law in considerable measure derives, owes much to the civilian tradition.  The common law in its early period was ill-equipped to deal with commercial and maritime matters and the courts of admiralty, when called upon to decide maritime disputes, applied principles developed on the continent.  Indeed, admiralty courts were presided over by civilians.  It must be kept in mind, however, that the admiralty courts, like other specialized courts in England, continually had to struggle to resist the growing strength of the common law courts, and their jurisdiction over ordinary civil matters became extremely narrowed and curtailed; in particular, they had no jurisdiction in these matters within the realm; see Mersey Docks Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468 (H.L.), at pp. 481 et seq.  These matters, though concerned with questions of a maritime nature, were largely dealt with by the common law courts.  With the rationalization of the English court system in the late 19th century, admiralty jurisdiction was transferred to the admiralty division of the High Court, but all divisions of that court may exercise jurisdiction over admiralty matters; see Administration of Justice Act, 1928 (U.K.), 18 & 19 Geo. 5, c. 26, s. 6.

 

    It is this amalgam that was incorporated into Canadian maritime law.  McIntyre J. in ITO has discussed in detail the process by which the Exchequer Court and later the Federal Court applied the common law principles of contract, tort and bailment in the resolution of admiralty matters (see in particular p. 776) as well as the jurisdiction now assigned to the Federal Court, and I do not propose to repeat it.  Suffice it to say that he particularly relied on s. 2  of the Federal Court Act , which defines "Canadian maritime law" as including not only law formerly administered by the Exchequer Court on its admiralty side, but also "the law that . . . would have been so administered if that court had had on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters" (p. 769).  The latter portion of the definition would include all claims dealing with maritime matters and was not frozen by pre-existing admiralty jurisdiction.  It incorporated as a uniform body of federal law the maritime law of England (p. 779).

 

    It was in the light of this examination that the majority of this Court in ITO concluded that Canadian maritime law encompassed the common law principles of tort, contract and bailment.  To these I would add, if indeed it is an addition, agency.  For nowhere does it become more obvious that the law is a seamless web than when one considers the interplay between contract, agency and tort, to say nothing of bailment.  In fact, the case here is an action in contract, the issue being whether the agent is bound by the contract.  Many of the cases cited by my colleague in elaborating the common law position regarding the specific problem that arises in the present case arose in maritime matters.  Scarcely surprising, because as mentioned these maritime matters have, for hundreds of years, come within the jurisdiction of the common law courts.  The laws elaborated in those cases have now become part of the uniform federal or Canadian maritime law.

 

    There are, no doubt, issues specific to admiralty jurisdiction where reference may fruitfully be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience.  I have no doubt of the utility in the course of this exercise of treating as of general import any relevant provision of the Quebec Civil Code, to adopt the words of Le Dain J. in the Federal Court of Appeal in ITO (Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd.), [1982] 1 F.C. 406, at p. 417.  But this is certainly not that kind of case.  As earlier mentioned, the common law principles have long been relied on to deal with precisely the type of situation in issue here.

 

    Counsel for the respondent sought, through another path, to lead us to apply the Quebec civil law.  Noting that McIntyre J. had observed in ITO, at p. 772, that s. 22  of the Federal Court Act , which confers concurrent original jurisdiction in claims arising under Canadian maritime law upon the Trial Division of the Federal Court, "does no more than grant jurisdiction, and . . . does not create operative law", he sought to persuade us that the principles of maritime law differed depending on whether it was applied in the Federal Court or a provincial court.  This argument seems to me to overlook the essentially federal nature of maritime law, falling as it does under the federal power over navigation and shipping.  In allowing concurrent jurisdiction over maritime law to provincially created courts, I cannot believe Parliament intended to delegate to those courts the authority to apply law different from that administered by the Federal Court.  Nor do I think it would intend any distinction between the law applied through judicial interpretation and any possible extended jurisdiction that might be derived from the clarification of the ambit of Canadian maritime law under s. 22(2)  of the Federal Court Act .  It is noteworthy that the opening words of s. 22(2)  do not purport to enact new law but to declare the law for greater certainty.  That declaration, falling as it does within Parliament's powers, must be respected.  Thus McIntyre J.'s statement that Canadian maritime law is a body of federal law encompassing certain common law principles and that this law is uniform throughout Canada applies whatever court may exercise jurisdiction in a particular case.

 

    Having determined that the applicable maritime law is to be found in the principles of the common law of contract and agency, I shall briefly turn to that issue.  As my colleague observes, in cases of this kind, the issue whether an agent contracted personally, or solely in the capacity of agent (in which case only the principal is bound), is a matter of construction of a particular contract.  I leave aside, of course, any custom that may exist at any particular port or in a particular trade.  In this case, the relevant documents reveal that Chartwell consistently attempted to bring home to Q.N.S. that its sole responsibility was as an agent.  In the body of its letters, it identified itself as "Managing Operators [i.e., as agents] for the Charterers" or as acting "On behalf of our principals", and it consistently signed "as Managing Operators only".  While the simple addition of the word "agent" or its equivalent following a signature can easily be read as a mere description of the signatory, that cannot be said of "as agent only".  Those words do more.  They are obviously directed to limiting or explaining a liability, and not merely to describing the person signing or his authority to do so; see Universal Steam Navigation Co. v. James McKelvie & Co., [1923] A.C. 492 (H.L.), and esp. at p. 500, per Lord Sumner.  What particularly impresses in the present case is Chartwell's insistent repetition in its correspondence that it is acting as an agent and its repeated signature "as agent only". (Emphasis added.)  As Brandon J. (citing Halsbury's Laws of England (3rd ed. 1952), vol. 1, at pp. 228-29, para. 517) put it in Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5, at p. 13, "if he [the agent] states in the contract, or indicates by an addition to his signature, that he is contracting as agent only on behalf of a principal, he is not liable, unless the rest of the contract clearly involves his personal liability, or unless he is shown to be the real principal".  The latter qualifications obviously have no application here.  Similar principles were applied in N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478, where the English Court of Appeal absolved an agent from liability in a case bearing considerable resemblance to the present.  Significantly, all the cases I have cited involve maritime matters, but the principle is, of course, more general.

 

    Counsel for the respondent drew our attention to para. 321 of the Restatement of the Law (Second):  Agency 2d (1958), vol. 2, at p. 70, which states that unless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract.  While the failure to reveal the identity of one's principal may give rise to an inference that the agent was intended to be a party, like my colleague I am unwilling to adopt any hard and fast rule regarding the intention of the parties.  Certainly, any inference such as I have described would be displaced by a contract evincing the clear intent of this one.

 

    I would allow the appeal, reverse the judgment of the Court of Appeal and restore the judgment of the trial judge, with costs throughout.

 

//L'Heureux-Dubé J.//

 

    The following are the reasons delivered by

 

    L'HEUREUX-DUBÉ J. -- This appeal raises two questions: what is the role of Quebec civil law in the interpretation of Canadian maritime law and what are the requirements under Canadian maritime law concerning the disclosure by an agent or mandatary that it is acting in the name of its principal or mandator?

 

I - The Facts

 

    Q.N.S. Paper Company Limited ("Q.N.S."), a stevedore and local "ship agent", sued Chartwell Shipping Limited ("Chartwell"), a managing operator in Quebec for the charterers of two vessels, claiming $50,388.91 on an unpaid bill.  Chartwell did not deny the amount was owing, but refused to pay, contending that it had disclosed to Q.N.S. that it was acting as mandatary only.  The evidence submitted at trial demonstrated unequivocally that Chartwell consistently represented itself as acting only in the capacity of a mandatary:

 

Exhibit P-1: Letter from Chartwell Shipping Ltd. to Quebec Northshore Paper Co. dated November 24th, 1972.

 

    Quebec Northshore Paper Co.

    Baie Comeau, Quebec

 

    Dear Sirs:

 

                                                             M.V. "APJ PRIYA"

 

    As Managing Operators for the charterers we are again pleased to appoint you as agents for the vessel's forthcoming call at Baie Comeau.

 

    At the time of writing this letter, the vessel is due to arrive at Baie Comeau on December 1/2 to lead the following cargoes:

 

                            600 MT newsprint Sourabaia

                            400 MT newsprint Sourabaia

                            400 MT newsprint Djakarta

                            500 MT newsprint Djakarta

                            600 MT newsprint Sourabaia

                            [handwritten:]

                            250 MT           Djakarta

 

    Our principals are taking delivery of the vessel taking inbound harbour pilot at Baie Comeau and thus we enclose a Delivery Certificate which we ask you kindly to fill in and have the Master sign on owners' behalf and yourself on charterers' behalf.  We will have an onhire and bunker survey carried out, however, we will revert on this matter later.

 

    From Baie Comeau the vessel will sail to Quebec where our agents are: Shipping Limited, 140 Dalhousie Street, Quebec 2, Quebec, Telephone: 418-692-0650, cable: "BULKO QUEBEC".

 

    We do not anticipate any owners items at Baie Comeau, however, if there are any owners' items, including cash to Master, this should be authorized by us first.

 

    Please cable us on arrival and departure, giving time and fuel on board.  Also please give us a daily progress report over the phone.

 

    After the vessel has sailed, please send us your disbursement account  in triplicate.

 

                                             Yours very truly,

                                             CHARTWELL SHIPPING LTD.

                                             as Managing Operators only

 

Exhibit P-2: Letter from Chartwell Shipping Ltd. to Quebec Northshore Paper Co. dated November 29th, 1972.

 

    Quebec Northshore Paper Co.

    Baie Comeau, P.Q.

 

    Att:  Mr. Don Horwood

 

Dear Sirs:

 

                                                      M.V. "LONDON CITIZEN"

 

    On behalf of our principals we are again pleased to appoint you as agents at Baie Comeau for the above mentioned vessel.

 

    Present ETA Baie Comeau is December 8/10, however, there is a possibility that this may change and that she could be in Baie Comeau as early as December 5/6 but we will keep you advised about any changes.  At Baie Comeau the vessel is loading the following cargo:

 

                            1000 MT newsprint for Bangkok

                             500 MT newsprint for Djakarta

                             250 MT newsprint for Djakarta

                            1000 MT newsprint for Bangkok

 

    Upon completion at Baie Comeau the vessel will sail to Saint John, N.B. where our agents are: Shipping Limited, 133 Prince William Street, Saint John, N.B., Telephone: 506-368-1771.

 

    The vessel has already delivered on timecharter and thus you need not concern yourself with any details in this respect.  Please keep owners' expenses at a minimum and any owners' items over $1000 should be authorized by this office.

 

    Upon completion of loading please forward three copies of Port Log and Statement of Fact and copies of Stowage Plan.

 

    Also please keep us daily advised when the vessel is in port and telex us arrival and departure time together with bunkers.

 

                                             Yours very truly,

                                             CHARTWELL SHIPPING LTD.

                                             as Managing Operators only  (Emphasis added.)

 

On January 11, 1973 Q.N.S sent Chartwell two accounts for stevedoring and other services rendered respecting each of the two ships mentioned in the letters.  On February 19, 1973, Chartwell forwarded these two accounts to its mandator, Trafficaid of Canada Limited (Trafficaid), agent for the charterer.  In its accompanying letter, a copy of which was sent to Q.N.S., Chartwell requested that Trafficaid settle the accounts directly with Q.N.S. Unfortunately for both parties, Trafficaid was now insolvent.  There is no dispute as to the existence of a stevedoring contract or as to the amount owed.  The parties differ only as to whether, in order to escape liability as mandatary, it was sufficient for Chartwell to indicate that it was acting as mandatary or whether Chartwell had to disclose the identity of its mandator at the time the contract was formed and if so, whether such identity was disclosed on the facts of this case.

 

II - The Judgments

 

A.  Quebec Superior Court

 

    At trial, both parties centred their arguments on the interpretation of arts. 1715 and 1716 of the Civil Code of Lower Canada, which provide:

 

    1715. The mandatary acting in the name of the mandator and within the bounds of the mandate is not personally liable to third persons with whom he contracts, except in the case of factors hereinafter specified in article 1738, and in the cases of contracts made by the master of a ship for her use.

 

    1716. A mandatary who acts in his own name is liable to the third party with whom he contracts, without prejudice to the rights of the latter against the mandator also.

 

Chartwell submitted that it had acted in the name of the mandator and thus that art. 1715 applied to the circumstances of the case.  Q.N.S. submitted that Chartwell had failed to name the mandator in the letters establishing the contract and thus that art. 1716 applied to the circumstances of the case.

 

    Desaulniers J. concluded that there was unquestionably a contract of mandate between Trafficaid and Chartwell: [1979] C.S. 453.   He also concluded that because the letters from Chartwell to Q.N.S. clearly identified Chartwell as a mandatary, Chartwell fulfilled the requirements of art. 1715 of the Civil Code and could not be held liable for the debt of its mandator.  He noted, as well, that by indicating the names of the relevant vessels, Chartwell had made it possible for Q.N.S. to find the names of the owners or charterers by consulting registers of shipping.  Q.N.S. was thus in a position to find the name of the mandator.  Desaulniers J. reviewed American, British and Quebec cases all to the effect that in order to avoid contractual liability, the mandatary must disclose that it is acting as mandatary but need not disclose the identity of the mandator.  He cited American case law for the proposition that disclosure of the name of the ship is adequate disclosure of the identity of the mandator.

 

B.  Quebec Court of Appeal

 

    Desaulniers J.'s decision was reversed on appeal, [1985] C.A. 413.  In a long and learned judgment, Nolan J.A. reviewed the authorities interpreting arts. 1715 and 1716 of the Civil Code and concluded that to benefit from the exclusion of liability under art. 1715, it was not enough for a mandatary to disclose that it was acting as mandatary.  The mandatary was also required to disclose adequately the identity of its mandator.  Nolan J.A. disagreed with Desaulniers J.'s conclusion that by disclosing the names of the ships, Chartwell had adequately disclosed the name of the mandator, noting that unlike the owner of a ship, the charterer is not of public record.  He concluded that Chartwell had failed to disclose adequately to Q.N.S. the name or identity of its mandator and was therefore liable to Q.N.S. under art. 1716 of the Civil Code.

 

    Bisson J.A. (as he then was) joined in the reasons of Nolan J.A. but did not express an opinion as to whether the mandatary is obliged to name the mandator in order to avoid personal liability.  He simply agreed with Nolan J.A.'s conclusion that Chartwell had not adequately disclosed the identity of its mandator.

 

    In a dissent as long and learned as the judgment of Nolan J.A., Owen J.A. concluded that in order to escape personal liability, a mandatary is only obliged to reveal that it is acting in its quality as mandatary and not in its personal quality.  He also held that even if a mandatary were obliged to adequately identify its mandator so as to avoid personal liability, Chartwell had done so.  In reviewing the cases, Owen J.A. noted that those in which dicta could be found to the effect that a mandatary was obliged to disclose adequately the identity of its mandator all concerned one of two situations: (a) the purported mandatary acted in its own name rather than in the name of the mandator; or (b) the purported disclosure of the mandator's identity was misleading.  He thus focussed on a textual interpretation of arts. 1715 and 1716, concluding (at p. 438):

 

    Article 1715 C.C. does not lay down any specific technical formal provisions as to whether the mandatary must declare or reveal, in addition to the fact of his mandate, other facts, such as the name or identity of his mandator, in order that he may enjoy the protection of the article and not be personally liable to the third person with whom he contracts.

 

    The Court of Appeal did not consider whether the matter at issue fell within the purview of Canadian maritime law and whether, as a consequence, the Superior Court should have rendered its decision pursuant to the same body of law applied by the Federal Court.

 

III - The Issues

 

    Before this Court, both parties made submissions respecting the applicability of ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 (the "Buenos Aires Maru"), a judgment rendered after the decision of the Court of Appeal in the instant case.  The issues therefore become as follows:

 

(1) Whether the Buenos Aires Maru should be considered at all given that the courts below did not discuss it.

 

(2) If the Buenos Aires Maru is to be considered, whether the same body of "Canadian maritime law" there discussed is administered both by the Federal Court and by the provincial superior courts.

 

(3) If the provincial superior courts apply the same body of "Canadian maritime law" as the Federal Court, whether under Canadian maritime law an agent or mandatary is required to name its principal or mandator in order to escape personal liability.

 

Because there is no statutory or case law source proper to Canadian maritime law in respect of the agency problem raised here, the last issue leads to the question whether English common law is the unique source supplementing Canadian maritime law in such cases, or whether both civil law and common law sources can be used to arrive at the single rule under Canadian maritime law.

 

IV - Arguments

 

    Chartwell submitted that the matter in issue, a contract for stevedoring services, fell within the purview of s. 22(2) (m) of the Federal Court Act , R.S.C., 1985, c. F-7 , and that following this Court's decision in Buenos Aires Maru, the principles of English common law should apply.  At common law, on Chartwell's submission, an agent is relieved from liability for the defaults of its principal if it disclosed that it was acting as agent.  It need not name or otherwise identify its principal.  In the alternative, Chartwell continued to submit that art. 1715 did not require it to name or otherwise identify Trafficaid as its mandator so as to avoid personal liability under the contract with Q.N.S.  Chartwell no longer contended, however, that by identifying the two relevant vessels, it had adequately identified its mandator.

 

    Q.N.S. submitted that despite the decision in Buenos Aires Maru, the proper law to apply to the circumstances of the case was the civil law of Quebec.  Q.N.S. noted that because Buenos Aires Maru was rendered after leave in this case had already been granted, the courts below had not discussed the  applicability of common law principles.  Relying on dicta of Lamer J. in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1060, and Wilson J. in Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at pp. 1159-60, Q.N.S. submitted that the Court should wait for a future case to decide whether Buenos Aires Maru applies not only to the Federal Court but also to Quebec courts.  In the event this Court deemed it appropriate to resolve that matter, Q.N.S. submitted that Buenos Aires Maru did not oust the jurisdiction of Quebec courts to apply the Civil Code in this case, arguing that the broad definition of "Canadian maritime law" identified in Buenos Aires Maru applied only to the Federal Court.  Q.N.S. continued to submit that where a mandatary has revealed that it is acting as mandatary but does not sufficiently identify or name its mandator, it is personally liable to third parties pursuant to art. 1716.  In the alternative, Q.N.S. submitted that the same rule applied at common law.

 

V - Analysis

 

A.  The Applicability of Buenos Aires Maru in this Case

 

    As a general matter, this Court is reluctant to entertain arguments that were not made in the lower courts: see Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 819; R. v. Smith, supra, at p. 1060; and Reference Re Bill 30, An Act to Amend the Education Act (Ont.), supra, at pp. 1159-60.  Where a court of appeal -- and preferably a number of courts of appeal -- has addressed an issue, this Court can better assess the range of possible solutions in order to settle the law effectively.  Without the benefit of prior judicial appreciation, often as illuminated by accompanying academic commentary, this Court risks, to borrow Baron Parke's famous phrase (Joel v. Morison (1834), 6 Car. & P. 501, 172 E.R. 1338, at p. 1339), "going on a frolic of his own."

 

    In this case, however, unlike in the three just cited, the new issue not argued before the lower courts was the applicability of a decision rendered by this Court.  Where the Court has elucidated a legal framework which can be applied to the case on appeal, the Court will not ignore that framework simply because it was not discussed in the lower courts.  The reasons of McIntyre J. in Buenos Aires Maru have a direct bearing on the instant case and must therefore be considered.

 

B.  Canadian Maritime Law and Provincial Superior Courts

 

    Section 22(1)  of the Federal Court Act  creates the following concurrent jurisdiction in the Federal Court Trial Division and provincial superior courts:

 

    22. (1) The Trial Division has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under or by virtue  of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned.

 

Section 2 of the Act defines "Canadian maritime law" as follows:

 

"Canadian maritime law" means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act . . . or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this Act or any other Act of Parliament;

 

    McIntyre J., who delivered the majority judgment of the Court in Buenos Aires Maru, reviewed these provisions of the Federal Court Act  as well as the case law applying those provisions, and concluded (at p. 769):

 

    Canadian maritime law, as defined in s. 2  of the Federal Court Act , can be separated into two categories.  It is the law that:

 

(1)was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act or any other statute, or

 

    (2)would have been so administered if that court had had on its Admiralty side unlimited jurisdiction in relation to maritime and admiralty matters.

 

To elucidate the first category, McIntyre J. analysed the provisions of the Admiralty Act as they evolved from 1890 to 1934 and concluded (at p. 771):

 

I would be of the opinion then that the term "Canadian maritime law" includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may, from time to time, have been amended by the federal Parliament and as it has developed through judicial precedent to date.

 

As concerns the second category, McIntyre J. noted the following (at p. 774):

 

In my view the second part of the s. 2 definition of Canadian maritime law was adopted for the purpose of assuring that Canadian maritime law would include an unlimited jurisdiction in relation to maritime and admiralty matters.  As such, it constitutes a statutory recognition of Canadian maritime law as a body of federal law dealing with all claims in respect of maritime and admiralty matters.  Those matters are not to be considered as having been frozen by The Admiralty Act, 1934.  On the contrary, the words "maritime" and "admiralty" should be interpreted within the modern context of commerce and shipping.  In reality, the ambit of Canadian maritime law is limited only by the constitutional division of powers in the Constitution Act, 1867 .

 

In the present case, unlike in Buenos Aires Maru, there is a specific provision in the Federal Court Act identifying the matter in issue, a claim for stevedoring services, as part of Canadian maritime law:

 

    22. . . .

 

    (2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following:

 

                                                                          . . .

 

(m) any claim in respect of goods, materials or services wherever supplied to a ship for the operation or maintenance of the ship, including, without restricting the generality of the foregoing, claims in respect of stevedoring and lighterage;

 

It is useful to note that s. 22(2)(m), which was enacted in 1970, represents an enlargement of jurisdiction over Canadian maritime law: see Westcan Stevedoring Ltd. v. The ship Armar, [1973] F.C. 1232.  The Admiralty Act, R.S.C. 1952, c. 1 (which was repealed by s. 64(1) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10), granted the Exchequer Court jurisdiction to hear and determine "any claim for necessaries supplied to a ship": s. 18(3)(b).  The term "necessaries" encompassed repairs done or items purchased for a ship that a prudent owner would have ordered: see Argosy Marine Co. v.  SS "Jeannot D", [1970] Ex. C.R. 351.  It certainly did not include the stevedoring services of loading and unloading of cargo from a vessel.  Thus, prior to 1970, a claim covering stevedoring services such as those in issue here would have been brought before the provincial superior courts: see, for example, Robin Line Steamship Co. v. Canadian Stevedoring Co., [1928] S.C.R. 423, a case which began in the Supreme Court of British Columbia and in which ordinary common law rules were applied.

 

    In England, a claim of this kind is not subject to admiralty juris-diction.  Section 1(1)(m) of the Administration of Justice Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 46, extends admiralty jurisdiction to "any claim in respect of goods or materials supplied to a ship for her operation or maintenance".  There is no reference to claims for stevedoring services as in s. 22(2) (m) of the Federal Court Act.  In England, such claims come within general common law jurisdiction.

 

    Not only is admiralty jurisdiction broader in Canada than in England, but the federal organization of courts in Canada means that the interrelation between admiralty law and the general private law works differently in this country.  In 1875, pursuant to the Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, the English Admiralty Court became a division of the High Court.  The Administration of Justice Act, 1928 (U.K.), 18 & 19 Geo. 5, c. 26, made clear that admiralty jurisdiction and general private law jurisdiction was shared by all divisions of the High Court.  This finally put to an end the centuries of jurisdictional conflict between the common law and admiralty courts.  Thus, in England, a unified private law and admiralty law are applied side by side in the same courts: see Tojo Maru (Owners) v. N.V. Bureau Wijsmuller (The Tojo Maru), [1972] A.C. 242 (H.L.)   For example, the English case principally relied upon by Chartwell, N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478 (C.A.), though it involves facts similar to those in the instant case, is a case which originated before the Queen's Bench Division exercising its general common law jurisdiction and is not a case which was brought before the Admiralty Court or in which admiralty jurisdiction was invoked.  English admiralty law jurisdiction remains relatively narrow, extending mainly to claims arising in relation to vessels.  In matters Canadian law would recognize as falling within maritime law, such as the stevedoring contracts at issue in the instant case, English admiralty law is supplemented by the common law.  I would note that in Scotland, it is Scots law, with its civilian origins, not common law, which would apply to claims involving shipping that do not fall within admiralty jurisdiction: see, for example, Trans Barwil Agencies (UK) Ltd. v. John S. Braid & Co., [1989] S.L.T. 73 (O.H.), and Micosta S.A. v. Shetland Islands Council, [1986] S.L.T. 193 (O.H.); see also the comparisons of Scots law and common law in Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5, at p. 13, and in The "Santa Carina", supra, at p. 483.

 

    By contrast with England, although Canadian maritime law is uniform, private law is not.  If Canadian admiralty law jurisdiction had remained as narrow as admiralty law jurisdiction in England, the federal system of private law would dictate that the stevedoring contract here in issue would be governed by the civil law of Quebec, whereas parallel contracts in other provinces would be governed by the common law.  However, the federal government has seen fit to expand admiralty jurisdiction pursuant to its power under s. 91(10)  of the Constitution Act, 1867 .  By enlarging admiralty jurisdiction, it has enlarged, relative to England, the sphere within which maritime law principles, rather than provincial private law principles, apply.  For this reason, the majority of the Court in Buenos Aires Maru proceeded from the premise (at p. 779) that "Canadian maritime law is uniform throughout Canada" and rejected the view (at p. 782) that "[s]ince the common law . . . may be incidentally applied in Admiralty cases, so also may the Civil Code be incidentally applied in cases arising in the Province of Quebec."

 

    The Federal Court Act not only establishes the jurisdiction of the Federal Court in admiralty matters but also defines the content of Canadian maritime law.  In Buenos Aires Maru, McIntyre J. concluded that the definition of "Canadian maritime law" in s. 2 of the Act went beyond granting jurisdiction and created "operative law" (p. 772).  This definition creates operative law governing the exercise of admiralty jurisdiction both in the Federal Court and in provincial superior courts and other courts: see Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206.  It therefore ousts the application of provincial private law by provincial superior courts exercising their concurrent jurisdiction over Canadian maritime law.  The effect of the Federal Court Act as concerns maritime law is analogous to its effect as concerns industrial property, over which provincial superior courts also exercise concurrent jurisdiction: see s. 20  of the Federal Court Act.

 

    Therefore, in exercising its concurrent jurisdiction over Canadian maritime law, it was not open to the court below simply to apply the Civil Code of Quebec.  Canadian maritime law, not provincial private law, governs this case.  Consequently, the question becomes, what is the applicable Canadian maritime law rule?

 

C.  The Sources of Canadian Maritime Law in the Absence of a Specific Rule

 

    Neither party raised any specific maritime law rule having its origin in statute or admiralty case law applicable to the instant case.  Instead, Chartwell submitted that English common law should be looked to as a supplementary source of Canadian maritime law.  Chartwell drew particularly on the following passage from McIntyre J.'s reasons in Buenos Aires Maru (at p. 779):

 

    It is my view, as set out above, that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment.  I am also of the opinion that Canadian maritime law is uniform throughout Canada, a view also expressed by Le Dain J. in the Court of Appeal who applied the common law principles of bailment to resolve Miida's claim against ITO.  Canadian maritime law is that body of law defined in s. 2  of the Federal Court Act.  That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada.

 

If this passage suggests that common law principles are the unique source of Canadian maritime law in cases, such as this one, where no specific admiralty rule exists, the passage requires clarification.  Canadian maritime law encompasses principles of tort, contract and bailment, but it also encompasses civil law principles which were always a part of maritime law as applied by the English High Court of Admiralty.  The reasons of Le Dain J. then of the Federal Court of Appeal (Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd., [1982] 1 F.C. 406), which were approved by McIntyre J., are helpful in this regard (at pp. 416-17):

 

If the liability of the terminal operator to the cargo owner should be regarded as a maritime matter within the definition of "Canadian maritime law" in section 2 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, because of the close practical relationship of the terminal operation to the performance of the contract of carriage, the law which governs it should be uniform throughout Canada.  Cf. National Gypsum Company Inc. v. Northern Sales Limited [1964] S.C.R. 144 at pages 153 and 163; Associated Metals & Minerals Corporation v. The "Evie W" [1978] 2 F.C. 710 at page 717.  I am reinforced in this view by the fact that the common law of bailment provides a more coherent and certain basis for the duties and liability of the terminal operator than does the civil law of delictual responsibility.  Such a result is in the interests of maritime commerce and it is certainly not against the general spirit of the Quebec civil law as indicated by article 2388 of the Civil Code, which appears to have been treated as of general import in the judgment of Girouard J. in Inverness Railway and Coal Company v. Jones (1908) 40 S.C.R. 45 at p. 55.

 

Neither Le Dain J. nor McIntyre J. concluded that Canadian maritime law, as uniformly applied, is composed uniquely of common law principles.  They simply concluded that the common law principles of bailment, which themselves developed from civil law principles (see Coggs v. Bernard (1703), 2 Ld. Raym. 909, 92 E.R. 107, per Holt C.J.), provided the most useful framework for reaching a uniform Canadian result as concerns the matter in issue in that case, viz. the interpretation of Himalaya clauses.  Common law principles are part of Canadian maritime law because in 1934, which is the date of reception of Canadian maritime law, the Admiralty Division of the High Court of Justice would sometimes look to common law principles in helping to resolve maritime matters: see Buenos Aires Maru, supra, at p. 776.  However, Le Dain J.'s reasons, in particular, make it clear that a comparative analysis of civil law principles is far from foreign to a determination of what constitutes the Canadian maritime law on any given issue.

 

    To repeat, "Canadian maritime law" includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may, from time to time have been amended by the federal Parliament and as it has developed through judicial precedent to date.  It is important to emphasize the special character of the law that was administered by the High Court on its Admiralty side and the extent to which that law was distinct from the general common law of England.  Indeed, a review of doctrinal writings as well as of the records and judgments of the High Court of Admiralty confirms that civil law sources and comparative law methodology have always played a significant role in the development of maritime law, and this even when admiralty jurisdiction expanded into new domains.

 

    (a) Doctrinal Writings

 

    In addressing the role of comparative law in the development and continued functioning of Canadian maritime law, I have found a most useful point of departure in an article by Professor H. Patrick Glenn which comments on the Buenos Aires Maru case ((1987), 66 Can. Bar Rev. 360).  Professor Glenn notes quite correctly that in Buenos Aires Maru, this Court adopted a broad concept of maritime jurisdiction with English admiralty law as its origin -- a jurisdiction which was not nourished by the application of provincial law, be it common law or civil law.  He goes on to make the following observation, which I quote at some length (at pp. 363-65):

 

    There remains however, the large question of the nature of English admiralty law and the extent to which common law principles have been adopted and applied in English admiralty practice.  In this regard it is difficult to escape contemporary concepts of the dominance of the common law and of the particular and fragmented character of law in fields such as admiralty.  Contemporary concepts cannot, however, alter historical evidence, and the historical evidence is to the effect that the English law of admiralty existed not as a fragmentary body of law which necessarily borrowed from the common law, but as an autonomous body of law the concepts of which did much to shape the common law as we know it today.  Administered by the English civilians, who in their monopoly of admiralty practice made exclusive use of maritime custom, the law merchant and the civil law (the persuasive ius commune of the continent), the law of admiralty thus presented the advantages of in rem proceedings, hypothecation of vessels and negotiable bills of exchange, to say nothing of broad civil law principles of contractual and delictual liability . . . .  The 1873 Court of Judicature Act explicitly preserved existing rules in force in Admiralty, and the principal conclusion of the most extensive study of the matter is that "only in relatively few respects has the procedure and substance of the common law intruded into Admiralty", and that this occurred because "the common lawyers, once the Court of Admiralty had passed into their hands, [have] shown an unexpected concern for the preservation and extension of the legal system bequeathed by the civilians".

 

    Incorporation by reference of English admiralty law and common law principles adopted and applied in English admiralty cases therefore accomplishes two useful purposes in Canadian maritime practice.  It provides a corpus of learning readily available in common law provinces for use in the extended maritime practice now possible in the Federal Court.  It also ensures the reception of those civilian principles administered by English civilians as part of the European ius commune, and thus ensures the continuing relevance of Quebec civil law and the Quebec Civil Code, not as provincial law, but as evidence of received civil law principle.  Quebec civilians may thus continue the civilian tradition in maritime matters.  This will provoke no more uncertainty than exists in English law and is a useful reminder, as Gilmore and Black have stated in the United States, that maritime law may be regarded "as a system not depending for its validation on any inferred national legislation".  [Emphasis added and footnotes omitted.]

 

A study quoted by Professor Glenn in this article, F. L. Wiswall's The Development of Admiralty Jurisdiction and Practice Since 1800 (1970), is a detailed analysis of the central place of civil law principles in the development of the English law of admiralty: see also W. Tetley, Maritime Liens and Claims (1985), at pp. 1-29.  These civil law principles emerged from the tradition of Roman law and were embodied in a series of doctrinal sources widely available in Europe: see C. Abbott (later Lord Tenterden, Chief Justice of England), A Treatise of the Law Relative to Merchant Ships and Seamen (14th ed. 1901), at pp. ix-xi.  Maritime law continues to blend a rich variety of sources, as Professor André Braën has emphasized in his study of "Le droit maritime du Québec à l'aube de la codification" (1985), 16 R.G.D. 429, at p. 430.

 

    (b) The High Court of Admiralty

 

    The composite character of maritime law is readily illustrated by reference to the records and dicta of the High Court of Admiralty itself.  The interpretive method of the Court, far from reposing in a straightforward application of common law principles, from earliest times relied greatly on continental civilian sources.  I propose to trace briefly the comparative methodology of the High Court of Admiralty up to 1934, the date at which, as McIntyre J. concluded in Buenos Aires Maru (at p. 771), the "body of law . . . administered in England by the High Court on its Admiralty side" was adopted as part of Canadian law.

 

    The first records of the Court of Admiralty were collected in the Black Book of the Admiralty, the origins of which "probably date from the period between 1332 and 1357" (W. Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 545).  Holdsworth notes (at p. 546) that "[t]he part of the Black Book dealing with the procedure and practice of the court (which dates from the fifteenth century) shows that it was being settled on the model of the civil law."  The Black Book was occasionally cited even as the modern scope of admiralty jurisdiction was being settled: see The Sylph (1867), 2 L.R. 2 A. & E. 24, at p. 26; and The Gas Float Whitton No. 2, [1896] P. 42 (C.A.), at p. 51.  An early explicit record of the intimate relationship between admiralty jurisdiction and the civil law is to be found in a letter of 1584 from Queen Elizabeth I to the Chief Justice of England, reproduced in Burrell 231-32, 167 E.R. 550, which required of the Chief Justice that "in all other like matters concerning the Admiraltie, that the same being triable by mere civill lawe be not admitted to triall before you at the common law".  Until 1892 only civilians sat as judges in Admiralty.

 

    Indeed, as late as 1733, consistent with its civilian tradition, the proceedings and records of the Admiralty Court were in Latin: see Burrell 231, 167 E.R. 549-50).  After 1733, the civilian tradition continued in the English language.  A few examples taken from the end of the 18th century through to the 1930s suffice to make the point.

 

    In The "Renard" (1778), Hay & M. 222, 165 E.R. 51, a case concerning the law of prize and salvage, the Court assembled statutes, civil law doctrine, common law doctrine, and the law of nations to find the admiralty law rule.  This amalgam of legal principles continued to play a central role during the thirty-year period from 1798 to 1827 during which Lord Stowell was the Admiralty Judge.  For example, in The "Aquila" (1798), 1 C. Rob. 37, 165 E.R. 87, one of his first decisions, Lord Stowell examined Selden, Loccenius, Valin, the Consolato del Mare, the laws of Rhodes, the Code of Antoninus, the commentaries of Vinnius upon the Institutes, Bodin, and "the excellent marine ordinances of Louis the XIVth" to find the English rule respecting cargo found derelict at sea.

 

    Despite the accumulation of admiralty case law and the intervention of statutory reform, the civilian tradition (which was called "the ancient law of the Admiralty") of the Court of Admiralty, with its emphasis on comparative law (or what were called "the general principles of law"), was preserved and developed by Lord Stowell's successors as Judge of the Admiralty Court, Sir Christopher Robinson (1828 to 1833), Sir John Nicholl (1833 to 1838), Dr. Stephen Lushington (1838 to 1867) and Sir Robert Phillimore (1867 to 1875; subsequently Judge of the Admiralty Division, High Court of Justice).  Indeed, it was precisely because the Court of Admiralty did not simply apply the common law that there was a history of jurisdictional dispute between it and the common law courts.

 

    The line of cases at the origin of the jurisdiction over claims respecting "necessaries" found in s. 22(2) (m) of the Federal Court Act, intertwined with statutory responses to those cases, provides a good illustration of this jurisdictional battle and shows the extent to which the Court of Admiralty struggled to preserve its comparative approach.  Especially noteworthy is that whenever the Court of Admiralty received an enlarged statutory grant of jurisdiction, it would apply the same comparative law methodology, including reference to civilian principles, to its new jurisdiction.  This suggests that comparative law methodology should be employed with regard to the expanded jurisdiction under s. 22(2)(m).

 

    In The "Neptune" (1834), 3 Hagg. 129, 166 E.R. 354, Sir John Nicholl dealt with the question whether "material men", who furnished ropes, sails and other necessaries for a ship, had a lien on the proceeds of a ship sold under decree of the Court of Admiralty.  Traditionally, the jurisdiction of the Court did not extend to contracts "arising within the body of any country", and the Court of King's Bench had already determined that material men did not have a lien on the ship itself.  But the learned Judge made reference to the civil law and the law of nations in an effort to bring at least a lien against proceeds within admiralty jurisdiction, arguing that the civil law applied unless the law of England had specifically derogated from it (Hagg., at pp. 135-36, 139 and 145-46; E.R. at pp. 356, 357 and 360).

 

    An appeal from this decision was instituted to the Privy Council under the style of cause Hodges v. Sims (The Neptune) (1835), 3 Knapp. 94, 12 E.R. 584.  In reversing the decision of the Court of Admiralty, Erskine J., for a unanimous Court, recognized that "the law of the Court of Admiralty is the civil and maritime law, except in those points in which it has been expressly controlled by the municipal law of England", and also recognized that the common law courts had no power to alter civilian doctrine (Knapp., at p. 116; E.R., at pp. 592-93).  Nevertheless, Erskine J. concluded that Sir John Nicholl had misconstrued the limit upon maritime jurisdiction.  It did not apply to contracts made in England.  However, his decision makes clear that had the jurisdiction of the Court of Admiralty extended to contracts made on land, that Court would have applied the civil law without interference from common law courts.  Wiswall, op. cit., at p. 58, notes that in the thirty-year period after the decision, Parliament passed first the Admiralty Court Act, 1840 and then the Admiralty Court Act, 1861, by which the Admiralty Court, now constituted as a court of record, was given expanded jurisdiction, including "[j]urisdiction  . . . in partial vindication of Nicholl's judgment in The Neptune, over all claims for necessaries supplied by materialmen to foreign ships, unless supplied in their home ports."  Once the new Acts were in place, the Court ultimately nourished its expanded jurisdiction with renewed reference to the civil law doctrine that originally had been applied by Sir John Nicholl.  As Holdsworth notes (op. cit., vol. XVI, at p. 141), commenting on the career of Dr. Lushington: "He so interpreted these statutes that he brought the new law to which these new pieces of jurisdiction gave rise into harmony with the old law of his court.  It was a task which required a thorough knowledge of the old principles, a capacity to adapt them to new uses": see, for example, The "Milford" (1858), Swab. 362, 166 E.R. 1167; see also The Riga (1872), L.R. 3 A. & E. 516, a decision of Sir Robert Phillimore.  When the Court benefitted from an expanded jurisdiction, it did not simply absorb and apply common law doctrine.

 

    Even after 1875, when the Judicature Acts had transformed the Court into the Admiralty Division of the High Court of Justice subject to a superintending power in the Court of Appeal, the role of civil law in interpreting expanded admiralty jurisdiction remained in evidence.  It was Fry L.J. of the Court of Appeal, rendering judgment in The Heinrich Bjorn (1885), 10 P.D. 44 (C.A.) (upheld, (1886), 11 App. Cas. 270 (H.L.)), who brought together the strands of civil law doctrine applicable to the claims of material men in admiralty.  Although he did not overturn the line of authority refusing to grant material men a lien against the ship, he did recognize that the new jurisdiction codified a civil law right in rem (at pp. 50-51 and 53-54).  The role of the civil law in this domain was again emphasized in The Ripon City, [1897] P. 226, a judgment of the first common lawyer to sit in Admiralty, Sir Gorell Barnes.

 

    Up until and even after 1934, when the Admiralty Act, 1934 adopted English admiralty jurisdiction and law as part of Canadian law, the Court of Appeal was still looking to civil law principles: see, for example, The Beldis, [1936] P. 51.  Indeed, English courts continue to look to civil law principles today: see, for example, The "Goring", [1987] 2 Lloyd's Rep. 15 (C.A.), aff'd [1988] 1 Lloyd's Rep. 397 (H.L.); The "Sennar" (No. 2), [1984] 2 Lloyd's Rep. 142 (C.A.); Soya G.m.b.H. Kommanditgesellschaft v. White, [1982] 1 Lloyd's Rep. 136 (C.A.); Tehno-Impex v. Gebr van Weelde Scheepvartkantoor BV, [1981] 2 All E.R. 669 (C.A.), and Bankers Trust International Ltd. v. Todd Shipyards Corp.  (The Halcyon Isle), [1981] A.C. 221 (P.C.)

 

    By virtue of s. 22(2) (m) of the Federal Court Act, Canadian maritime law jurisdiction "in respect of goods, materials or services . . . supplied to a ship" extends not only to claims respecting necessaries supplied to foreign ships, but includes all such claims.  Furthermore, the definition of "necessaries" has been extended to include all "claims in respect of stevedoring and lighterage".  In keeping with the tradition of Canadian maritime law, absent a specific maritime law rule, a comparative law method should be used to arrive at the position under Canadian maritime law.  This comparative law method suggests looking to both civil law and common law sources in order to find the maritime law rule.

 

    To summarize, as at 1934, which marks the last statutory reception into Canada of English admiralty law, English courts were still drawing upon, and indeed developing, the civilian tradition in maritime law.  Of course, Canadian maritime law did not freeze in 1934, and nor did the civilian tradition.  As McIntyre J. noted in Buenos Aires Maru (at p. 774), "[a]n historical approach may serve to enlighten but it must not be permitted to confine . . . [T]he words "maritime" and "admiralty" should be interpreted within the modern context of commerce and shipping."  Part of that modern context is contemporary civil law.

 

    (c)Comparative Law in the Maritime Law of the United States and Australia

 

    The comparative focus of maritime law is not limited to the English common law courts.  Perhaps the most famous statement of the role of civil law in the development and interpretation of admiralty law is that of the eminent American jurist, Story J., in De Lovio v. Boit, 7 F. Cas. 418 (C.C. Mass. 1815).  In identifying the scope of admiralty jurisdiction in the United States, Story J. undertook an exhaustive historical inquiry into the jurisdiction of the English High Court of Admiralty and its civilian forms of proceeding.  His judgment remains a remarkable and seminal study of the matter.  But in the United States, the civil law has not just been a subject of antiquarian interest.  As recently as 1985, in Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 773 F.2d 1528 (1985), the Eleventh Circuit invoked civil law to declare that the admiralty right of attachment (saisie conservatoire) of the colonial United States continues to exist today and can be employed in addition to current statutory rules of attachment (see also Grand Bahama Petroleum Co., Ltd. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978)).  The Court looked back to An Act to regulate Processes in the Courts of the United States (Act of Sept. 29. 1789, ch. 21, {SS} 2, 1 Stat. 93), which in its second section directs admiralty and maritime jurisdiction shall be exercised "according to the course of the civil law", and emphasized the composite origins of maritime law (at p. 1532, n. 13).

 

    Australia, like Canada, derived its maritime law from that of England.  In The Ship "Terukawa Maru" v. Co-operated Dried Fruit Sales Pty. Ltd. (1972), 126 C.L.R. 170, Menzies J. of the High Court commented (at p. 174) that Australian admiralty jurisdiction "harks back to the centuries old conflict between the civilians who were judges of the High Court of Admiralty and the common law judges".  The civil law tradition remains a living part of admiralty law in common law jurisdictions.  It is just as surely a living part of Canadian maritime law.

 

    (d) Admiralty Law in Canada

 

    Not surprisingly, the Canadian courts, including this Court, have continued the tradition of looking to civil law in admiralty matters.  In Bow, McLachlan and Co. v. The Ship "Camosun" (1908), 40 S.C.R. 418 (reversed on other grounds, [1909] A.C. 597 (P.C.)), the Supreme Court of Canada noted the civil law origins of the nature of the maritime lien (p. 428).  Similarly, in The Ship Pacifico v. Winslow Marine Railway and Shipbuilding Co., [1925] Ex. C.R. 32, Maclean J., sitting as President of the Exchequer Court, canvassed the civil law principles respecting damages applicable in admiralty cases (pp. 37-38).  His reasons in this regard were cited by Ritchie J., who delivered the judgment of this Court in Canadian General Electric Co. v. Pickford & Black Ltd., [1972] S.C.R. 52, and concluded (at p. 57) that the maritime law rule differed from that at common law.  Canadian General Electric was applied in Drew Brown Ltd. v. The Ship "Orient Trader", [1974] S.C.R. 1286, and both discussions of civil law just cited were reproduced in the judgment of Spence J. (at p. 1309), who dissented on unrelated grounds.

 

    In Buenos Aires Maru, supra, McIntyre J. canvassed thoroughly those instances in which Canadian and British courts have also drawn upon common law principles to resolve maritime law problems.  There is no need here to review those cases.  But in describing the body of law administered by the Admiralty Court of England and the incorporation of that law as part of Canadian maritime law, McIntyre J. relied largely on The Queen v. Canadian Vickers Ltd., [1978] 2 F.C. 675 (T.D.)   In that case, Thurlow A.C.J. drew a great deal upon Story J.'s decision in De Lovio v. Boit, supra, and cited a famous passage describing the variety of sources, including civil law, invoked by the High Court of Admiralty (Canadian Vickers, at p. 685; De Lovio, at p. 419).  In this regard, it is worth underlining McIntyre J.'s description of the composite character of Canadian maritime law (at p. 776):

 

Thus, the body of admiralty law, which was adopted from England as Canadian maritime law, encompassed both the specialized rules and principles of admiralty and the rules and principles adopted from the common law and applied in admiralty cases as these rules and principles have been, and continue to be, modified and expanded in Canadian jurisprudence.

 

It bears repeating that "the specialized rules and principles of admiralty" derive largely from civil law, and that civil law principles, like common law principles, have been and continue to be modified and expanded in Canadian jurisprudence.  Nor is there anything about its composite character which precludes the uniform application of Canadian maritime law.  What is required is a broad comparative approach worthy of the English civilians who sat in the High Court of Admiralty.  Courts should seek to illuminate those problems lacking specific statutory resolution by canvassing the wide range of common law and civil law sources.  As in Buenos Aires Maru, if either the common law or the civil law offers a "more coherent and certain basis" for resolving the matter at issue, the best solution should be chosen.

 

    Indeed, the increasing importance for maritime law of the Hague Rules and other international instruments should breathe new life into the old comparative approach of the High Court of Admiralty.  This Court has already favoured looking to continental sources to help interpret such instruments as applied in Canadian law: see, for example, Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd., [1974] S.C.R. 933, at p. 952.  While the new comparative approach most often entails inquiring into how the courts and commentators of different countries have dealt with the same international rules and does not therefore draw directly on civil law principles, it nevertheless continues a venerable tradition in maritime law: the search for a ius commune.  Rather than asking, "what is the civilian doctrine on a particular matter as compared with that of the common law?", the question often has become, "how do civilians, as compared with common lawyers, approach the interpretation of a particular internationally adopted rule?": see Gatewhite Ltd. v. Iberia Lineas Aereas de Espana SA, [1989] 1 All E.R. 944 (Q.B. Com. Ct.)  There are, however, some aspects of Canadian maritime law, such as the problem posed by the instant case, that are not contemplated by specific statutory provisions and therefore require a comparison of civil law and common law doctrine.

 

    As its application through the history of maritime law reveals, the comparative method aims at a harmony short of homogeneity.  It aims to shed light on legal problems common to both traditions by exploiting differences in doctrine and approach.  Above all, it seeks to multiply the range of sources for legal inquiry on the faith that clarity of judicial reasoning is served, not hindered, by viewing the same problems from many vantage points.  If the comparative method renders the lawyer's task somewhat more difficult, it repays those efforts with greater breadth of analysis.

 

(e)The Civil Code as a Useful Source of Civil Law for Canadian Maritime Law

 

    A review of the admiralty tradition, as developed both in England and in Canada, reveals that civil law has always played a central role in the interpretation of maritime law.  In Canada, of course, it is the Civil Code, in particular the Civil Code of Lower Canada which is our principal repository of the civilian tradition (on the Civil Code and maritime law, see J. Pineau, "La Législation maritime canadienne et le Code civil québécois" (1968), 14 McGill L. J. 26).  In Fairway Life & Marine Insurance Ltd. v. Susan Darlene (The), [1987] 2 F.C. 547, a recent decision of the Federal Court Trial Division concerning maritime insurance, Giles A.S.P. provided a most useful explanation as to how the Civil Code can be employed in maritime cases (at pp. 552-53):

 

The maritime law of Lower Canada was codified at the time that the other laws of Lower Canada were codified.  The Civil Code of 1866 contains an article which makes provisions respecting marine insurance.  While the Code enacted as law its various provisions, it is not for that reason that it should be referred to.  The Code should be referred to because it in fact is a statement of the pre-existing maritime law and possibly the most authoritative statement as to the maritime law at the time of the writing of the Civil Code.  The Judicial Committee of the Privy Council appears to have considered the Civil Code of Quebec or Lower Canada to have been definitive of the maritime law of marine insurance with regard to the matter of abandonment in 1874 when, it decided the case, Provincial Insurance Company v. Joel Léduc (1874), L.R. 6 P.C. 224.

 

When interpreting Canadian maritime law, the Civil Code is not to be applied as governing private law.  Rather, it is to be used as a helpful comparative law source of those civilian principles which make up the composite body of Canadian maritime law.  Thus, in the Susan Darlene, Giles A.S.P. went on to refer to art. 2383 of the Civil Code of Lower Canada, which sets out circumstances under which there is a privilege upon vessels for the payment of debts -- this in a case arising in Nova Scotia.  Unlike in Buenos Aires Maru, where this Court was urged to apply the Civil Code to maritime cases arising in Quebec and the common law to maritime cases arising outside Quebec, the interpretive method employed by Giles A.S.P. respects both the uniformity of maritime law in Canada and the place of civil law in Canadian maritime law.  As McIntyre J. noted in Buenos Aires Maru (at p. 778):

 

ITO advanced the argument that the Quebec Civil Code has been federally incorporated as part of the law of Canada and in admiralty cases in Quebec is applicable as Canadian maritime law.

 

This argument for the application of principles drawn from the Civil Code, and this argument alone, was rejected by McIntyre J.  His judgment aimed to exclude the possibility that maritime law in Quebec would differ from maritime law in the rest of Canada.  By contrast, there is nothing in McIntyre J.'s reasons which excludes drawing on the Civil Code to find those civil law principles which form part of unified Canadian maritime law.

 

    Indeed, this Court has in the past made such use of the Civil Code in maritime matters.  In the case of Inverness Railway and Coal Co. v. Jones (1908), 40 S.C.R. 45, the Court drew upon the same provision relied on by Giles A.S.P., art. 2383, to resolve the old question whether material men could claim a privilege upon a vessel.  This is the judgment Le Dain J. referred to in the passage I have already cited from Miida Electronics, Inc., saying that "the Civil Code . . . appears to have been treated as of general import."  And in St. Lawrence Metal and Marine Works Inc. v. Canadian Fairbanks-Morse Co., [1956] S.C.R. 717, this Court applied art. 2383 again.  Abbott J., for the majority, described that article as embodying civil law principles relevant to maritime law (p. 719).  An earlier decision, Glengoil Steamship Co. v. Pilkington (1897), 28 S.C.R. 146, illustrates that the Court was prepared to make reference to general provisions of the Code governing carriers (in that case, art. 1676) in a maritime case involving negligent damage to cargo.  Far from seeking a particular and separate jurisprudence for Quebec, the Court made use of the Code to confirm the uniformity of Canadian maritime law.  More recently, in N. M. Paterson & Sons Ltd. v. Mannix Ltd., [1966] S.C.R. 180, Ritchie J. had recourse both to art. 2424 of the Civil Code and to common law doctrine in determining liability for the loss of cargo.

 

    In fact, the Commissioners who drafted the Civil Code explicitly employed a comparative law methodology, especially when codifying those articles pertaining to maritime law, and that comparative methodology has characterized interpretation of the Code in maritime matters.  In the introduction to his treatise, Le Droit civil de la Province de Québec: Modèle vivant de Droit comparé (1953), Professor Louis Baudouin wrote (at p. xv) that [TRANSLATION] "[t]he Civil Code of the province of Quebec thus contains in embryo, in other words, contains the seeds of a basic comparative method."  In his seminal study, The Scope and Interpretation of the Civil Code of Lower Canada (1980), at pp. 124 and 126, Dean Walton describes in detail the maritime law sources which were relied upon by Quebec's civil law codifiers.  Indeed, the Commissioners themselves said of their proposed codification of maritime law that "[t]he articles of this book will be found to be sustained, with very few exceptions, by citations from the ancient law of France, from English, Scotch and American writers, and from the modern French law" (Seventh Report of the Commissioners on the Laws of Lower Canada in Civil Matters (1865), at p. 226).

 

    Inevitably, recourse to those provisions of the Civil Code which deal specifically with maritime law has been less frequent now that federal statutes occupy much of the field.  But if plenary admiralty jurisdiction in Canada today extends, for example, to contracts respecting certain terminal operations (as in Buenos Aires Maru, supra, at pp. 775-76), such jurisdiction extends well beyond the domain that was within the purview of the High Court of Admiralty when that court was at the height of its powers.  Consequently, in asking what law should be applied to extended admiralty jurisdiction, absent specific statutory rules, civil law doctrine as reflected in the Civil Code remains an important source for the comparative law method applied in maritime law.  Commenting on "L'interprétation du Code civil québécois par la Cour suprême du Canada" (1975), 53 Can. Bar Rev. 715, Professor Jean-Louis Baudouin expressed the hope that (at pp. 736-37):

 

[TRANSLATION] . . . in the future, intelligent comparative interpretation of the two systems and of the two reasoning processes will intensify.  In the modern world, in fact, all countries are faced with common problems, and so the solutions arrived at by courts in various jurisdictions are not substantially different.  This, indeed, is one of the great lessons to be learned from comparative law.  However, the reasoning technique and methodology differ.  We do not think it is presumptuous to say that the civil law system in return can make a great contribution to the common law system on these points.

 

The comparative law method has served maritime law well in the past, and its renewal, in part through the instrumentality of the Civil Code, will continue to do so.

 

    (f)  Conclusion

 

    An excursus into the origins and development of Canadian admiralty law makes clear that civil law has been an abiding feature of the amalgam that is maritime law.  It also illustrates that where admiralty jurisdiction expanded to apply to certain contracts concluded on land, the civil law was re-introduced to help develop the new domain.  Thus, (1) where Canadian maritime jurisdiction has expanded to include matters that would not have fallen within the jurisdiction of the High Court of Admiralty in 1934, as is true of the stevedoring contracts in the instant case, and (2) where the point in issue is not subject to a specific federal statutory regime, as is true of the agency problem in the instant case, the civil law remains an important aspect of the comparative analysis necessary to determine the state of Canadian maritime law on the question in issue.

 

    The obvious point of departure for an inquiry into civilian doctrine is the Civil Code.  The Civil Code is not just one example among many of civilian codification.  It is a precise reflection of the state of civil law doctrine at the time of Confederation, a body of doctrine which lay at the heart of the tradition applied by the English High Court of Admiralty.  However, the Civil Code did not simply freeze the evolution of civilian doctrine at a particular point in time.  Rather, it renders the inquiry into the civilian tradition manageable and systematic, producing what has been called the  [TRANSLATION] "conceptual scheme of the Code".  Just as the common law tradition has drawn on its origins and evolved through the insights produced by an accumulation of instances, so the interpretation of the Civil Code has evolved through the efforts of judges, publicists and reformers.  The result of that evolution, not some arbitrarily fixed past state of the law, is Canada's contribution to the civilian tradition.  This contemporary civil law, used comparatively with common law sources, is the most useful civilian source for Canadian maritime law.  It is our link to the ancient law of the admiralty, a link which ensures that the goal of an international ius commune in maritime law can unite the civil law and common law traditions.

 

D.  Mandate and Agency in Canadian Maritime Law

 

    In asking what is the Canadian maritime law rule respecting the disclosure by an agent of its principal, both civil law and common law sources can be used comparatively.  I propose to discuss, first, the civil law rule embodied in the Civil Code and, second, the rule at common law.  I will discuss these sources not in order to apply the Civil Code or the common law, but rather to discover which rule ought to be applied in Canadian maritime law.

 

    I note at the outset that the civil law doctrine of mandate has long co-existed with common law principles of agency in maritime law and indeed lies at the origins of much of the common law of agency.  It is revealing that the full title of Joseph Story's classic common law text on agency, which had a strong influence on the Anglo-American tradition, is Commentaries on the Law of Agency as a Branch of Commercial and Maritime Jurisprudence, with Occasional Illustrations from the Civil and Foreign Law (1839).  This text, in turn, became one of the sources upon which the Commissioners relied in their Sixth Report on the Laws of Lower Canada in Civil Matters (1865), at p. 85, when codifying what became arts. 1715 and 1716 of the Civil Code.

 

    Two recent cases of the Federal Court have made use of arts. 1715 and 1716 in order to interpret maritime contracts of mandate.  Sabb Inc. v. Shipping Ltd., [1976] 2 F.C. 175 (T.D.) (aff'd [1979] 1 F.C. 461 (C.A.)), involved facts bearing some striking similarities to the facts in the instant case.  A shipping agent and local stevedore entered into an oral arrangement to have certain stevedoring services performed for the agent's principal.  The principal was not specifically identified, although it was clear, in the context, that the shipping agent was not acting as principal.  After reviewing the common law of agency, Dubé J. also drew on arts. 1715 and 1716 of the Civil Code (pp. 190-91).  In Farr Inc. v. Tourloti Compania Naviera S.A., [1985] 1 F.C. D-43,  Pinard J. drew upon the Hague Rules and art. 1716 of the Civil Code to find both the owner and charterer liable in damages.

 

    An early and classic case illustrating the coexistence of mandate and agency principles in maritime law is The Rebecca, 20 F. Cas. 373 (D. Me. 1831).  The case concerned the liability of the master of a ship for the negligent loss of cargo and turned on the proper characterization of the master's relationship to the shipowner on the one hand and the consignee of the cargo on the other.  Ware J., traced the contract between shipowner and master back to the old "contract of commande", citing Frémery's Études de droit commercial, chap. 27.  Having set out its origins and purpose, Ware J. went on to compare the contract of commande with the agency relationship (at p. 379), noting that the principles underlying civil law mandate and common law agency were universal principles applied in all jurisdictions.  Nevertheless, those principles were not yet uniformly applied to the relationship between the master and the owner because of the particular history of the "contract of commande".  Not surprisingly, therefore, a large number of the maritime law cases involving questions of agency revolve around the proper characterization of the relationship between master and shipowner: see, for example, The "Lanarkshire" (1855), 2 Sp. Ecc. & Ad. 189, 164 E.R. 380 (a case which arose in Quebec); The "Milan" (1861), Lush. 388, 167 E.R. 167, and The Onward (1873), L.R. 4 A. & E. 38.

 

    It is therefore striking that one of the exceptions to the general regime of mandate provided in art. 1715 of the Civil Code arises in "cases of contracts made by the master of a ship for her use."  I will explore the nature of this exception with a view both to understanding the role played by principles of mandate and agency in Canadian maritime law, and to illuminating the scope of the general civil law rule by virtue of defining the exception to it.

 

    (a) Disclosure by a Mandatary of its Mandator Under the Civil Code

 

    For the sake of convenience, I reproduce arts. 1715, 1716 and 2395 of the Code:

 

    1715. The mandatary acting in the name of the mandator and within the bounds of the mandate is not personally liable to third persons with whom he contracts, except in the case of factors herein after specified in article 1738, and in the cases of contracts made by the master of a ship for her use.

 

    1716. A mandatary who acts in his own name is liable to the third party with whom he contracts, without prejudice to the rights of the latter against the mandator also.

 

    2395. The master is personally liable to third persons for all obligations contracted by him respecting the ship, unless by express terms the credit is given to the owners only.

 

    Subject to the exceptions in art. 1715, arts. 1715 and 1716 establish symmetrical and exhaustive rules of contractual liability.  A mandatary acting "in his own name" is not a mandatary "acting in the name of the mandator" and vice versa.  The source of the disagreement between the majority and the minority in the court below is that the Code does not specify whether a mandatary who has revealed its status as mandatary but not the name of the mandator acts "in its own name".  As Owen J.A. rightly observed (at pp. 438-39):

    A combination of Art. 1715 C.C. and Art. 1716 C.C. might have read:

 

The mandatary if he names or sufficiently identifies his mandator and acts within the bounds of his mandate is not personally liable toward the third person with whom he contracts but if he acts in his own name he is personally liable.

 

In fact, art. 1715 and Art. 1716 read otherwise.

 

To demonstrate that the Code did not mean what the majority claimed it did, the learned judge borrowed the interpretation of the phrase "acting in the name of the mandator" suggested by Nolan J.A. (e.g., at p. 420).  Owen J.A.'s point was that the Code did not specifically provide that the mandatary should be liable for failure to name or sufficiently identify the mandator.  He went on to suggest that the phrase "acting in the name of the mandator" was best interpreted to mean "acting in his quality as mandatary".  Of course, that language could just as readily have been substituted into the Code but was not.

 

    The difference between the majority and the minority therefore comes to this.  The majority interprets the phrase "acting in the name of the mandator" as creating a series of contractual formalities protecting the third party and thus interprets the phrase "in his own name" restrictively.  The minority interprets the phrase "in his own name" as creating the sole contractual formality through which the mandatary can be rendered liable and thus interprets the phrase "acting in the name of the mandator" restrictively.  Simply put, arts. 1715 and 1716 are ambiguous.  The task becomes to determine whether greater or lesser contractual formalism best serves the conceptual scheme of the Code.

 

    In case of ambiguity, the Code itself must be the first point of inquiry.  In his book setting out the principles for interpreting the Code, principles which remain, in the words of Professor Tancelin (Foreword to the 1980 edition, at p. iii) "every bit as valid today as they were in 1907", Dean  Frederick Walton discusses the proper approach to take in such a case (op. cit., at p. 100):

 

Rule Six.

 

    When the Code is ambiguous or uncertain it must be interpreted.

 

Rule Seven.

 

    For such interpretation the best guide will be the Code itself.

 

    By comparing other articles of the Code with the one of which the meaning is disputed the true sense of the doubtful article may be demonstrated.

 

These rules require one to seek a principled resolution of the ambiguity based on a coherent interpretation of the Code as a whole.  In the Traité de Droit civil du Québec (1952), t. 13, Roch and Paré make a useful observation comparing arts. 1715 and 2395 (at p. 66):

 

    [TRANSLATION] However, in this article the Code provides for two exceptions.  We ascribe the first to Art. 1738 C.C.  The other is part of maritime law and the question it raises is answered by Art. 2395 C.C.:  a ship's master is a mandatary of the owner;  his powers are by custom very wide and they are governed by the rules of mandate.  It is precisely because of his great freedom of action and the fact that he can easily trifle with third parties that the law is more strict with a ship's master and denies him the benefit of Art. 1715 C.C.

 

When one contrasts the rules in arts. 1715 and 2395, one sees that the two rules establish opposite presumptive liability rules, rules around which the parties must bargain.  But they do not establish public order formalities (such as, for example, the requirement that all hypothecs must be in notarial form: see art. 2040 C.C.L.C.) which limit the parties' freedom of contract (see art. 13 C.C.L.C.)  Articles 1715 and 2395 are designed to serve freedom of contract, not restrict it.  Thus, where a third party wishes to engage the personal responsibility of an ordinary mandatary acting "in the name of the mandator", that mandatary must agree to be bound by the contract.  On the other hand, where a master wishes to avoid personal liability, the third party must agree to an exclusion of responsibility.  So in the case of contracts which come under the terms of art. 1715, once informed that the agent is acting "in the name of the mandator", the onus is on the third party to procure the mandatary's agreement to be held personally liable.  The difference between these two presumptive rules does not turn on the identity of the mandator.  Rather, it turns on the characterization of the powers of the mandatary and the relative degree of control by the mandator.  In The Rebecca, supra, at p. 380, Ware J. described the old view of the ship's master as "the chief and the acting and responsible head of a maritime adventure"; that is, a mandatary with a great deal of power and subject to little control by the mandator.  Roch and Paré correctly note that the rationale for art. 2395 was the perceived [TRANSLATION] "great freedom of action" of the master.  While that may be less true of the modern-day ship's master, it nonetheless points to the crucial element underlying the difference between the liability regimes.

 

    In shifting the presumptive rule, the Code adds to the contractual formalities the mandatary must bargain for if it is to escape liability.  In a sense, the exception in art. 2395 is a precursor of the technique employed in consumer protection statutes.  Where a contracting party is judged to require particular protection, usually because of unequal bargaining positions, the law often has recourse to greater contractual formalism.  In the case of art. 2395, the third party dealing with the ship's master is judged to require additional protection because of the master's unusually large role in the success or failure of the contract.

 

    The other exception to art. 1715, art. 1738, also imposes greater contractual formalism for the benefit of third parties judged to need additional protection.  It provides:

 

    1738. A factor whose principal resides in another country is personally liable to third persons with whom he contracts, whether the name of the principal be known or not.  The principal is not liable on such contracts to the third parties, unless it is proven that the credit was given to both principal and factor, or to the principal alone.

 

As in the case of art. 2395, the mandatary in question, one who buys or sells goods for a mandator residing in another country, is judged to have an unusually large role in the success or failure of the contract. Interestingly enough, the contractual formality added by the Code is not that the whereabouts of the mandator must be identified specifically.  Rather, the Code forces the mandatary to bargain for exclusion of liability.  As Roch and Paré comment (at p. 120):

 

[TRANSLATION]  The provision is justified on the basis of the assumption that a third party, who has dealt with an agent he knows, has extended credit to the latter rather than to the foreign principal, whom he does not know and who is not subject to the laws nor compellable as a party in the courts where the contract was made. However it has been held that, although the agent is legally presumed to be liable when he acts for a foreign principal, he may escape such liability by the terms of the contract or the surrounding circumstances.

 

Mignault's comments are to the same effect (Le droit civil canadien (1909), t. 8, at p. 85).

 

    The difference between the presumptive liability rules in art. 1715 and the exceptions to it helps to identify the proper interpretation of the phrase "in the name of the mandator".  If the Code establishes exceptional rules adding contractual formalities where the third party is judged to need protection, the general rule should be interpreted to impose minimal formalism on the parties.  Under the general regime, parties are deemed to have equivalent bargaining power and to be able to protect themselves by negotiating for contractual safeguards.  Of course, the third party cannot negotiate for additional protection if it is unaware that it is dealing with a mandatary and not someone acting in their own name.  The minimal formality imposed by art. 1715, then, is that the third party be informed of this fact.  This is consonant with art. 1030 on the effect of contracts with regard to third parties, which provides:

 

    1030.  A person is deemed to have stipulated for himself, his heirs and legal representatives, unless the contrary is expressed or result from the nature of the contract.

 

Under the Civil Code, parties are generally free to stipulate that a contract is undertaken on behalf of another, but the presumption to the contrary must be rebutted.  The Code prescribes no formality as to the method by which the presumption is to be rebutted.  That is to be determined according to the will of the parties.

 

    If the rules created by arts. 1715 and 1716 are designed to facilitate the will of the mandatary and third party, two parties deemed to have equivalent bargaining power, and not so much designed to protect third parties deemed to be in a weaker bargaining position, Owen J.A.'s interpretation of the rules is the better one (at p. 438):

 

    There should not be read into the words «acting in the name of the mandator» a formal requirement that the mandatary must, without being asked, disclose the name or the identity of his mandator to the third person with whom he contracts in order to avoid personal liability toward such third person.

 

    If the mandatary is asked by the third party to name or identify his mandator and the mandatary is evasive or conceals the name or identity of his mandator the situation might be different.  Similarly if the mandatary names as his mandator one who is not his mandator the situation might be different.

 

    Once a mandatary has revealed, as in this case, that it is acting "on behalf of our principals" and "as managing operators only", both parties are in a position to bargain for the contractual protection they desire.  If both parties are prepared to contract on the basis that the existence of a mandator is disclosed but the specific mandator is left unidentified, they can do so.  This  may be useful to both parties for example, where the identity of the mandator changes from time to time because the mandatary is acting as intermediary on behalf of a number of mandators, or where the relations among the various intermediaries follow a well-defined custom of the trade: for a description of the function of "managing operators" like Chartwell, see L. Gorton, R. Ihre and A. Sandevärn, Shipbroking and Chartering Practice (2nd ed. 1984), at pp. 79-80 and 92-94; for a description of the function of local "ship's agents", such as Q.N.S., see D. J. Hill, Freight Forwarders (1972), at p. 49.  The Code does not stand in the way of such bargains.  To require that the mandatary be identified would make such bargains impossible or more cumbersome and thus thwart the will of the parties.  On the other hand, where the mandatary fails to reveal the existence of a mandator, causes the third party to believe that it is acting in its own name, misleads the third party as to the existence of the mandator, or does not make it possible for the third party to identify the mandator, the third party was not in a position to bargain for its own protection and the mandatary will be held personally liable (see, for example, Pearson v. Lighthall (1895), 7 C.S. 201 and  Conroy v. Peden (1921), 32 K.B. 476, as well as Owen J.A.'s discussion in the court below at pp. 441-49).  In short, the agreement must be examined as a whole to determine whether it was the will of the parties that the mandatary be bound in its own name or, rather, contract only as mandatary.

 

    Thus, the interpretation favoured by Owen J.A. in the court below accords best with the conceptual scheme of the Code.  It is unnecessary to review the case law and doctrine so ably discussed by the Court of Appeal.  Suffice it to say that a harmonious interpretation of the Code leads to the conclusion I have outlined, and I am not persuaded to take a contrary view by reasoning to the opposite effect found in certain doctrinal writings and judicial decisions.  Where, as here, a comparison of codal provisions provides a principled resolution of an ambiguity, one's inquiry into the Code is at an end (see Mignault, "Le Code civil de la province de Québec et son interprétation" (1935), 1 U.T.L.J. 104, and Walton, op. cit., at pp. 101 ff.)

 

    I would only add that I am reinforced in my conclusion by the position taken in other civilian jurisdictions.  Although the ambiguity with respect to acting "in one's own name" is reproduced in other Civil Codes (see K. Zweigert and H. Kötz, An Introduction to Comparative Law (1977), t. 2, at pp. 106 ff., and W. Müller-Freienfels, "Comparative Aspects of Undisclosed Agency" (1955), 18 Mod. L. Rev. 33), the general rule is that there is no [TRANSLATION] "legal relationship" between a mandatary and third parties (see Mazeaud and Mazeaud, Leçons de droit civil (5th ed. 1980), t. 3, at p. 872, and Aubry and Rau, Droit civil français (7th ed. 1975), t. 6, at p. 269).  Furthermore, [TRANSLATION] "fitting-out officers and merchant shipping assistants" are not treated as subject to any special formalities in contracting on behalf of their mandators (see R. Rodière, Traité général de droit maritime: affrètements & transports (1970), t. 3, at pp. 44 ff., and Traité général de droit maritime: introduction & armement (1976), at pp. 531 ff.)  Nevertheless, there has been some controversy in the doctrine as to whether certain maritime contracts signed simply "as agent" exclude liability of the mandatary (see A. Moussa, Le consignataire du navire en droit français et égyptien (1983), at pp. 318 ff., and A. Chao, "Réflexions sur la "Identity of Carrier Clause"" (1967), 19 D.M.F. 12).  This only serves to demonstrate that the problem remains a live one.

 

    (b)The Disclosure by an Agent of its Principal Under the Common Law

 

    In Paterson Steamships Ltd. v. Aluminum Co. of Canada Ltd., [1951] S.C.R. 852, this Court was confronted with a situation analogous to that in the instant case.  In the clause of a bill of lading reserved for the signature, the following appeared:

 

    In witness whereof, the Master, or agent on behalf of the Master of the said vessel has affirmed to 2 Bills of Lading, all of this tenor and date, one of which accomplished, the others stand void.

 

                                                    Sprostons Limited,

                                                    Bruce Brebner,

                                                    Master, or Agents.

 

When the cargo upon which the bill was issued did not arrive, the respondent company, the consignee and holder of the bill, sued the appellant shipowner and operator.  The appellant argued that it was not liable under the bill because there was no contractual link between it and the respondent.  There was nothing on the face of the bill to say that it was signed for the appellant.

 

    A unanimous Court rejected the appellant's submissions and dismissed the appeal.  Writing for the plurality, Rand J. noted (at pp. 854-55):

 

    It is, I think, too late in the day to call in question the relation of the time charterer or his or the ship's agent towards cargo.  The charterer has purchased the benefit of the carrying space of the ship; he is the only person interested in furnishing cargo; and the captain is bound to sign the bills of lading as presented, assuming them not to be in conflict with the terms of the charter party.  The practical necessities involved in that situation were long ago appreciated by the courts and the authority of the charterer to sign for the captain confirmed.

 

    For the purpose of committing cargo to carriage, the captain, the charterer and the ship's agent are all agents of the owner, acting in the name of the captain; and where the charterer has the authority, as here, to sign for the captain, that he may appoint and act by agent would seem to me to be unquestionable.  To hold him to personal performance would, under modern conditions of traffic, be an intolerable restriction.

 

                                                                          . . .

 

    That Sproston's Limited were authorized by the charterers to act as they did in signing the bills of lading is not seriously questioned.  The argument against their authority is really that neither the owner nor the captain had anything to do with their appointment; but that contention overlooks the point that the owner has authorized the charterers to sign and that they in turn can do so by agents.

 

Locke J., with whom Taschereau J. concurred, also found that the bill was signed for the shipowner, despite the fact that the shipowner was not specifically named as a party.  The necessary corollary of the Court's decision was that the signatory was only an agent and not the principal.  More recently, in Aris Steamship Co. v. Associated Metals & Minerals Corp., [1980] 2 S.C.R. 322, Ritchie J. noted (at p. 329) that "[t]he charter party considered in the Paterson case was indeed virtually identical with that which is at issue here" and went on simply to apply Paterson.

 

    In Wolfe Stevedores (1968) Ltd. v. Joseph Salter's Sons Ltd. (1970), 2 N.S.R. (2d) 269, by contrast, (a case cited extensively in Sabb, supra) the Appeal Division of the Nova Scotia Supreme Court, found an agent personally liable on a contract undertaken for a principal who subsequently went bankrupt.  That case, much like the instant case, involved a stevedore and a shipping agent.  However, unlike in the instant case, the contract between the stevedore and the shipping agent was entirely oral and no mention was ever made by the shipping agent that it was acting in that capacity and not as principal.  Indeed, the stevedore's accounts were paid directly out of freight, and freight was collected by the agent.  The Court reviewed the applicable principles from the law of agency to arrive at the rule that the question whether the agent contracted personally or solely in the capacity of agent depends on the intention of the parties and is to be deduced from the nature and terms of the particular contract and the surrounding circumstances, including any binding custom (see Bowstead on Agency (15th ed. 1985), at pp. 426 and 451; and Fridman, The Law of Agency (5th ed. 1983), at p. 211).  Cooper J.A., for a unanimous court, was unable to find that there was a custom of the port of Halifax according to which a ship's agent would enter into oral contracts on behalf of its principal without specifically informing the stevedore that it was acting as agent.  Cooper J.A. therefore concluded that the agent had acted in its own name and was personally liable.

 

    In the course of his reasons, Cooper J.A. relied heavily on the decision of Brandon J. in The "Swan", supra, at p. 12, a case that was also relied upon a great deal by Desaulniers J. when rendering the trial judgment in the instant case.  The case was also applied by Moir J.A., for the majority, in Holt Renfrew and Co. v. Henry Singer Ltd., [1982] 4 W.W.R. 481 (Alta. C.A.), at p. 511.  The following remarks of Brandon J. are particularly pertinent for the purposes of the instant case.  They rely in part on the distinction between a "named principal" and a "disclosed principal" (see Fridman, op. cit., at p. 187) --the latter term embracing a principal whose existence has been revealed, but whose exact identity remains unknown (at pp. 12-13):

 

    Where A contracts with B on behalf of a disclosed principal C, the question whether both A and C are liable on the contract or only C depends on the intention of the parties.  That intention is to be gathered from (1) the nature of the contract, (2) its terms and (3) the surrounding circumstances . . . .

 

    Where it is stated in the contract that a person makes it "as agent for", or "on account of", or "on behalf of", or simply "for", a principal, or where words of that kind are added after such person's signature, he is not personally liable: Gadd v. Houghton and Another, (1876) 1 Ex. D. 357; Universal Steam Navigation Company Ltd. v. James McKelvie & Co., [1923] A.C. 492; Kimber Coal Company Ltd. v. Stone and Rolfe, Ltd., [1926] A.C. 414; (1926) 24 Ll.L.Rep. 429

 

    Where such words are not used but the person is merely stated to be an agent, or the word "agent" is just added after his signature, the result is uncertain, because it is not clear whether the word is used as a qualification or merely as a description . . . .

 

Although too much emphasis should not be placed on the use of particular formulations deemed to exclude liability, nevertheless the terms chosen, interpreted in light of the contractual relationship as a whole, help to identify the roles the parties envisaged for themselves.  In the instant case, given the contractual context of a managing operator for the charterer contracting with a stevedore, the phrases "as Managing Operators only" and "on behalf of our principals" suggest that the parties intended to relieve Chartwell of personal liability on the contract.

 

    This conclusion is buttressed by the reasons of the Court of Appeal in The "Santa Carina", supra.  That case involved facts quite similar to the ones at hand.  In interpreting the intention of the parties, Lord Denning, M.R., distinguished between two kinds of situations (at p. 481):

 

It may be that the other contracting party knows that the man is only an agent, but, as he does not know who the principal is, it is to be inferred that he does not rely on the credit of the principal but looks to the agent.  That, I think, is the thought underlying the dictum of Mr. Justice Salter in Benton v. Campbell, Parker & Co. Ltd., [1925] 2 K.B. 410 at p. 414, and the American Restatement on Agency in the comment to par. 321.  But in other cases that may not be the proper inference.  There are cases where, although the man who supplied the goods knows that the other is an agent and does not know his principal, nevertheless he is content to look to the credit of that principal whoever he may be.

 

Lord Denning was prepared to conclude that the case before him fell into the second category because: (1) the agents in question were brokers who had filled that function before; (2) the accounts had always been paid by the principals either directly or through the brokers; and (3) in the circumstances, the suppliers would look to the charterers or the owners as the people to be relied upon.

 

    Lord Roskill, in his concurring judgment, cited the same dictum of Salter J. referred to by Lord Denning, M.R., but only to criticize it (at p. 484):

 

Where an agent purports to make a contract for a principal disclosing the fact that he is acting as an agent, but not naming his principal, the rule is that, unless a contrary intention appears, he makes himself personally liable on the authorized contract.

 

No other authorities have been cited in support of that wide proposition which that learned Judge there laid down . . . I think that it is out of line with the general tenor of the English authorities.  It is much too wide if it were intended to be of general application and it ought not to be relied upon . . . .

 

Lord Roskill's approach is the right one.  To add a burden of proof on the mandatary would blur the focus of analysis: the goal is to identify the intention of the parties (see Bowstead on Agency, op. cit., at pp. 432-35; Fridman, op. cit., at pp. 206-11; Carver's Carriage by Sea (13th ed. 1982), vol. 1, at pp. 429-35; however, for some important possible qualifications, see W. Tetley, Marine Cargo Claims (2nd ed. 1978), at pp. 88 ff.; and F. M. B. Reynolds, "The Demise Clause (The Jalamohan)," [1988] Lloyd's Mar. & Com. L.Q. 285).  If, for example, an examination of the contractual relationship reveals that the third party was relying on the credit of the agent, not its principal, this is as much as to say the third party intended to contract with the agent qua principal, not qua agent.

 

    Paragraph 321 of the Restatement of the Law (Second): Agency 2d (1958), vol. 2, at p. 70, to which Lord Denning, M.R., refers, together with par. 4(2) (vol. 1, at p. 17), provide as follows:

 

{SS} 4.Disclosed Principal; Partially Disclosed Principal; Undisclosed Principal

 

(2) If the other party has notice that the agent is or may be acting for a principal but has no notice of the principal's identity, the principal for whom the agent is acting is a partially disclosed principal.

 

{SS} 321. Principal Partially Disclosed

 

Unless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract.

 

This rule is framed on the assumption that where the principal is partially disclosed, the third party is in a weaker bargaining position than the agent, as the commentary following {SS} 321 makes clear (vol. 2, at p. 70):

 

The inference of an understanding that the agent is a party to the contract exists unless the agent gives such complete information concerning his principal's identity that he can be readily distinguished.  If the other party has no reasonable means of ascertaining the principal, the inference is almost irresistible and prevails in the absence of an agreement to the contrary.

 

The commentary fails to make clear why the third party is not in a position to bargain for whatever additional information it requires once it knows it is dealing with a mandatary.  Under this rule, a third party could even have an incentive not to seek additional information, because it potentially might hold both the agent and the principal liable, and could thus procure additional security.  The better understanding is that the contract relationship itself should be analysed to determine what degree of information the parties sought and were prepared to disclose.  It is true that fully informed parties can always bargain around the rule formulated in the Restatement.  They can add clauses specifying that the agent of the partially disclosed principal has the status of an agent for the purposes of the contract.  But uninformed parties risk having their intentions frustrated.

 

    Nevertheless, the Fifth, Seventh and Tenth Circuits have all recently applied the rule as formulated by the Restatement {SS} 321 (see Lubbock Feed Lots, Inc. v. Iowa Beef Processors Inc., 630 F.2d 250 (5th Cir. 1980), at p. 257; Powers v. Coffeyville Livestock Sales Co., 665 F.2d 311 (10th Cir. 1981), at p. 312; and Evans Products Co. v. Interstate Commerce Commission, 729 F.2d 1107 (7th Cir. 1984), at p. 1113).  However, there is an exception to the Restatement precisely in the area of maritime law.  Where the agent has identified the vessel and identified itself as the agent of the owner, it will be taken to have identified the owners sufficiently.  The third party will be able to find the name of the owner, if it so chooses, by those means used in the maritime industry, such as Lloyd's Shipping Index: see Golten Marine Co. v. World Tide Shipping Corp., 1975 A.M.C. 160 (N.Y. Civ. Ct.); Valkenburg, K.-G. v. The S.S. Henry Denny, 295 F.2d 330 (7th Cir. 1961); and Instituto Cubano de Estabilizacion del Azucar v. The SS Theotokos, 155 F. Supp. 945 (S.D.N.Y. 1957).  While it is perhaps odd that the third party is deemed able to gain information by consulting a register but not deemed able to request information from the agent, the effect of this exception is to render the Canadian and American rules not far different in practice at least as concerns maritime law.

 

    (c)Disclosure by an Agent of its Principal Under Canadian Maritime Law

 

    The foregoing analysis of the general principles governing disclosure under the law of mandate and agency was pursued in order to identify the rule applicable under Canadian maritime law.  This analysis was necessary because, as I have already observed, the High Court on its Admiralty side would not, in 1934, have had admiralty jurisdiction encompassing the stevedoring contract, and hence the agency relationship, at issue here.  The contract is in relation to services that were not necessaries for the ship and thus in England falls to be interpreted within the jurisdiction of the common law courts.  Furthermore, there is no Canadian admiralty statute governing the agency relationship in question.  Nevertheless, in Canada this contract, and the agency relationship central to its interpretation, fall within Canadian maritime law.  Under such circumstances, Buenos Aires Maru confirms that s. 2  of the Federal Court Act requires the following inquiry: what law would have been administered had the High Court on its Admiralty side had unlimited jurisdiction respecting this contract?  A review of the history of the High Court of Admiralty, especially when it was granted expanded jurisdiction, reveals that whenever that Court sought to find general principles underlying maritime law, its method was to look to a variety of sources, including the civil law and the common law.  That comparative method was in keeping with the nature of maritime law, which is, after all, international in character.  It is a method which remains appropriate today in those cases where courts have no specific body of rules to apply to a matter falling within Canadian maritime law.

 

    The general principle gleaned from the Civil Code is that, absent an exceptional regime to the contrary, there is no prescribed formality respecting contracts between a mandatary and a third party.  Whether the mandatary is acting "in his own name" or "in the name of the mandator" depends on the will of the parties as reflected in their contractual relationship.  Canadian common law cases confirm this general principle and allow for its more detailed application in the domain of maritime law.  A comparative examination of the law in other jurisdictions reveals that there is as yet no unified approach to this set of issues.  But the inquiry also makes clear that general principles of mandate and agency are increasingly subject to specific maritime rules, both international and domestic, which in some domains all but oust general civil law and common law principles (see W. Tetley, "Responsability of Freight Forwarders," [1987] Eur. Trans. L. 79; P. F. M. Jones, "The Forwarder -- Principal or Agent, a Carrier or Not?" in Meredith Memorial Lectures 1986 (1987); and, for example, 46 C.F.R. 510.23(a)(1985)).

 

    Nevertheless, absent a specific derogation to the contrary, the general principles of mandate and agency are applicable in Canadian maritime law and are, appropriately enough, neutral as between the mandatary and third party.  The Canadian maritime law rule is that there is no prescribed formality for disclosure and that the responsibility of an agent or mandator to those with whom it contracts depends on the will of the contracting parties.  A comparative analysis thus reveals the common principle incorporated into Canadian maritime law.

 

E.  The Application of Canadian Maritime Law to the Instant Case

 

    Applying this rule to the instant case, and given the facts previously outlined, I conclude that Chartwell contracted with Q.N.S. as a mandatary and was not personally liable under the contract.  The contract entered into by the parties made it clear that Chartwell was acting as "managing operators only" and "on behalf of our principals".  Q.N.S., through its course of conduct with Chartwell, always dealt with Chartwell on the basis that Chartwell was acting as agent.  If it did not want to deal with Chartwell on that basis, it could have bargained to put the relationship on a different footing.  There is no evidence here, for example, that Chartwell resisted requests by Q.N.S. to have the name of its principals revealed or was otherwise in bad faith.  Q.N.S. cannot, therefore, succeed in its claim against Chartwell.

 

VI - Disposition

 

    For the foregoing reasons, I would allow the appeal, quash the judgment of the Court of Appeal and reinstate the judgment of the Superior Court, the whole with costs throughout.

 

    Appeal allowed with costs.

 

    Solicitors for the appellant:  Marler, Sproule & Pilotte, Montréal.

 

    Solicitors for the respondent:  Clarkson, Tétrault, Montréal.