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A-87-73
Anglophoto Ltd. (Appellant) v.
The ship Ikaros and Pleione Maritime Corp. and Empire Stevedoring Company Limited (Respond- ents)
Court of Appeal, Thurlow and Pratte JJ., Shep- pard D.J.—Vancouver, February 27, 28 and March 1, 1974.
Maritime law—Jurisdiction—Short delivery of cargo—Bill of lading for carriage by ship to Vancouver then by rail to Toronto—Whether "through bill of lading'-Claim against stevedores—Whether claim cognizable—Federal Court Act, s. 2 2( 2 Xe),(f),0),0)•
Appeal from the judgment of the Trial Division, ([1973] F.C. 483), which determined as a question of law that the Court does not have jurisdiction over the defendant, Empire Stevedoring Company Limited, and stayed the action as against that defendant.
The action was brought in the Admiralty Division of the Exchequer Court on April 20, 1970 for damages for loss of part of a shipment of cameras that had been loaded on the defendant ship in Japan for carriage by it to Vancouver then by rail to Toronto upon the terms of the bill of lading issued by the defendant, Pleione Maritime Corp., the owners of the defendant ship. The ship's record showed that the goods were delivered in full to the defendant Empire Stevedoring Co. at Vancouver but the latter's record showed short delivery.
Held, reversing Collier J., that the appeal is allowed. The questions as propounded for the Court were not questions of law: they depend on the facts and the facts agreed to were not adequate to enable the Court to reach the conclu sion that it did not have jurisdiction. The questions ought not to have been answered by the Trial Judge on the material before him, but should have been left for determi nation at the trial.
The Robert Simpson Montreal Limited v. Hamburg- Amerika Linie Norddeutscher [1973] F.C. 1356, followed.
APPEAL. COUNSEL:
D. F. McEwen for appellant.
J. L. Jessiman for the ship Ikaros and Ple- ione Maritime Corp.
Peter James Gordon for Empire Stevedor- ing Co. Ltd.
SOLICITORS:
Ray, Wolfe, Connell, Reynolds & Co., Van- couver, for appellant.
Macrae, Montgomery, Hill & Cunningham, Vancouver, for the ship Ikaros and Pleione Maritime Corp.
P. J. Gordon, Vancouver, for Empire Steve- doring Co. Ltd.
The judgment of the Court was delivered by
THURLOW J.—This appeal is from a judgment of the Trial Division which determined as a question of law that the Court does not have jurisdiction over the defendant, Empire Steve- doring Company Limited, and stayed the action as against that defendant.
The action was brought in the Admiralty Divi sion of the Exchequer Court of Canada on April 20th, 1970, for damages in respect of the loss of part of a shipment of cameras which had been loaded on the defendant ship in Japan for car riage by it to Vancouver and thence by rail to Toronto upon the terms of a bill of lading issued by the defendant, Pleione Maritime Corp., the owners of the defendant ship. The statement of claim and the defences of both defendants were filed before the coming into force of the Federal Court Act, one of the defences raised by the defendant, Empire Stevedoring Company Lim ited being that the statement of claim had failed to state a case against it within the jurisdiction of the Court.
What had been alleged as the basis of the action against both defendant's was contained in paragraphs 5 and 6 of the statement of claim which read as follows:
5. In breach of the contract contained in the aforesaid Bill of Lading and/or negligently and/or in breach of its duty in the premises as a carrier for reward the Defendant Pleione Maritime Corp. and the ship " KA1 os" did not deliver the aforesaid cameras, and accessories in good order and condi tion and in fact delivered to the Defendant Empire Steve- doring Company Limited only part of the shipment.
6. In the aternative the Defendant Empire Stevedoring Com pany Limited negligently, or in breach of duty in the prem ises as a bailee for reward did not deliver to the Plaintiff or
his agent the full quantity of cameras delivered to them by the vessel.
In February 1973 the plaintiff brought a motion for an order determining the questions set out in paragraph 7 of a statement of facts which had been agreed to by counsel for the several parties to the action, the body of which read as follows:
Statement of Facts Agreed Upon for the Purposes of the Application Herein
1. That thirteen cartons of cameras and accessories and eight cases of advertising material belonging to the Plaintiff were loaded on board the vessel " nxnxos" at Osaka, Japan, on or about the 10th day of July, 1969, for carriage to Vancouver pursuant to the attached bill of lading.
2. That the vessel "nxaxos" arrived in Vancouver on or about the 25th of July, 1969, and discharged cargo into the care, custody and control of the Defendant, Empire Steve- doring Company Limited.
3. That Empire Stevedoring Company Limited is a company duly incorporated under the laws of British Columbia and, amongst other services, acts as a terminal operator manag ing portions of Centennial Pier, in the City of Vancouver, receiving cargo from marine vessels and delivering it to inland carriers such as the railways, trucks and similar conveyances.
4. That according to the discharge records made on behalf of the Defendant, Pleione Maritime Corp., owners of the vessel "ixnxos", all of the thirteen cartons of cameras and accessories and eight cases of advertising material were discharged in good order save and except one carton No. 7022/82.
5. That according to the records of the Defendant, Empire Stevedoring . Company Limited, only eighteen cartons were delivered by the Defendant, Pleione Maritime Corp., to the Defendant Empire Stevedoring Company Limited.
6. That the Plaintiff commenced its action in the Exchequer Court of Canada, British Columbia Admiralty District, against the Defendant, Empire Stevedoring Company Lim ited, this latter Defendant pleading in its Defence that that Honourable Court had no jurisdiction to hear the case against that Defendant.
7. That the issues which the parties request this Honourable Court to decide are as follows:—
(a) Did the Exchequer Court of Canada, British Columbia Admiralty District, have jurisdiction to hear a case against the Defendant, Empire Stevedoring Company Limited, and if not, what is the effect of the enactment of the Federal Court Act have with respect to the status of the action, and
(b) Does this Honourable Court have jurisdiction to hear a case against the Defendant, Empire Stevedoring Company Limited.
In our opinion, the questions as propounded for the Court were not questions of law. They depend on the facts and the facts agreed to were not adequate to enable the Court to reach the conclusion that it did not have jurisdiction. Nor is there anything in the other parts of the record before us to which our attention was drawn by counsel which would serve to supplement the agreed facts to a sufficient extent to enable the Court to make such a determination.
In particular, the facts do not show whether the goods were at any time prior to their arrival in Toronto transferred by the shipowner into the custody of the consignee or an agent of his or, if so, when, or whether the defendant, Empire Stevedoring Company Limited when receiving the goods into its custody did so as agent for the shipowner or as agent for the consignee or whether the status of that defendant as such custodian remained the same throughout the period in which the goods were in its custody.
It seems clear that if that defendant received the goods and held them in its custody as agents of the shipowner, the present jurisdiction of the Court is broad enough to enable it to entertain the claim—see The Robert Simpson Montreal Limited v. Hamburg-Amerika Linie Nord- deutscher [1973] F.C. 1356, and on the same basis it is by no means clear that the Court did not have jurisdiction to entertain it under sec tion 18 of the Admiralty Act'. However, in the absence of information as to the actual facts the problems are academic and the questions so propounded should not have resulted in a deter mination that the Court does not have jurisdic tion. While the decision of this Court in the Robert Simpson case was not available to the learned trial judge, as that case had not yet been decided, in our view, the questions submitted to him ought not to have been answered on the material before him, but should have been left for determination so far as necessary by the judge presiding at the trial.
R.S.C. 1952, c. 1.
The appeal will therefore be allowed and the judgment answering the questions and staying the action as against the defendant Empire Stevedoring Company Limited will be set aside.
There will be no costs recoverable by any party in respect of the appeal or the motion in the Trial Division.
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