Canadian Pacific Forest Products Ltd.-Tahsis Pacific Region v. Beltimber ( The )
T-1861-92
Noël J.
23/4/96
45 pp.
Action to recover damages for loss of portion of cargo of Canadian Douglas Fir lumber carried on deck of vessel Beltimber from Nanaimo, British Columbia to Antwerp, Belgium-Captain of ship negligent-Exemption clauses on front and reverse side of Bills of Lading-Question whether clause in question broad enough to exclude carrier's liability for negligence even though not expressly containing word "negligence"-On authority of Canada Steamship Lines Ltd. v. The King, [1952] A.C. 192 (P.C.), if clause contains express exemption from negligence, must be given effect-If no express mention of negligence, must consider whether words used wide enough in ordinary meaning, to cover negligence-If wide enough, must then consider whether could possibly cover other head of damage than negligence-If so, must construe in favour of other head of damage and against negligence-Common carrier also different from bailee-Heavier onus on carrier to be clear in use of exclusionary wording as carrier liable at common law for negligence of itself and servants while bailee not-Although wording of clause in question very broad, word "negligence" twice referred to in other clauses as relevant head of liability-Absence of word from clause in question suggesting negligence not in contemplation of parties-Damages of $86,762.76 awarded with pre- and post-judgment interest at 7.35%.