Lantic Sugar Ltd. v. Violetta ( The )
A-82-92
MacGuigan J.A.
28/10/93
11 pp.
Appeal in action for damages for loss resulting from salt water damage to cargo of raw bulk sugar -- Trial Judge dismissing action on ground defendant not carrier within meaning of Hague Rules, incorporated into Canadian law by Carriage of Goods by Water Act -- "Carrier" including owner or charterer entering contract of carriage with shipper -- Charterparty between Fednav and CSR Limited (marketing agent for owner of sugar) providing Fednav to nominate vessels of which either owner or disponent owner for shipping of sugar from Australia to Canada -- As disponent owner not owning ship, merely controlling commercial operation such as cargo and ports of call, but not navigation -- Acting as disponent owner herein -- Entering into time charter with owner of vessel -- Appellant purchasing sugar through intermediary broker -- Bills of lading reciting goods shipped by CSR by virtue of charterparty between CSR and Fednav and signed on behalf of master of vessel -- Incorporating clauses, conditions and exceptions contained in charter -- Trial Judge holding owner of vessel carrier -- No right of action against Fednav unless carrier vis-à-vis CSR -- Question of who is carrier question of fact depending upon documents, circumstances in each case -- Issues revolving around referential incorporation of terms of charterparty into bill of lading and responsibilities respondent undertaking by charterparty itself -- Trial Judge holding charterparty provision giving Fednav option to nominate either one of its vessels (in which case Fednav carrier), or vessel owned by others (in which case Fednav might or might not be carrier) putting CSR on notice Fednav's obligations for damages to cargo differing according to whether nominated one of its own vessels to carry cargo or nominated vessel which it had time chartered -- Charterparty itself not imposing obligation on respondent to perform contract of carriage -- Time charter providing owners to remain responsible for navigation, insurance and all other matters -- Trial Judge holding "all other matters" including cargo claims in matters for which owner, rather than charterer, remaining responsible -- Appellant arguing respondent carrier by virtue of charterparty or incorporation by reference thereof into bill of lading -- Appeal dismissed -- Trial Judge's construction of "all other matters" to cover cargo claims, given initial principle time charter not demise or lease of vessel whereby charterer becoming, in relation to third parties, temporary owner of ship not unreasonable -- No statement, representation or disclosure in bill of lading that respondent either owner of vessel or carrier -- Owner clearly carrier -- No evidence Master authorized by respondent to act as its agent or that it participated in any way in issuing bill of lading -- Stretching language of incorporation provision in bill of lading to hold respondent full party to bill of lading and ship owner to charterparty -- Leading to contradictory obligations, if only with regard to duration of two contracts -- Only those clauses germane to performance of contract of carriage should be incorporated -- If charterparty itself not constituting respondent carrier, incorporation into bill of lading not making it in that context what it was not on its own -- No error by Trial Judge, let alone palpable and overriding error -- Carriage of Goods by Water Act, R.S.C., 1985, c. C-27, Schedule, Art. 1 -- Bills of Lading Act, R.S.C., 1985, c. B-5, s. 2.