Judgments

Decision Information

Decision Content

T-4578-73
Barberlines A/S Barber Steamship Lines, Inc., Wilh. Wilhehnsen D/A A/S Den Norske Afrika- OG Australieline, Wilhelmsens Damp-Skibsak- tieselskap A/S Tonsberg, A/S Tankfart I A/S Tankfart VI (Plaintiffs)
v.
Ceres Stevedoring Company Ltd., Metropolitan Marine Terminals Ltd. (Defendants)
Trial Division, Mahoney J.—Montreal, February 18; Ottawa, February 22, 1974.
Maritime law—Discharge of cargo from vessel by steve dores to subcontractor for delivery—Claims by vessel owners for losses and liabilities arising from short or damaged conditions—Jurisdiction of Court—Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 22.
The plaintiff Barberlines, a shipping line owned by the other plaintiffs, entered into a contract with the defendant Ceres Stevedoring Company Ltd., for stevedoring services at Montreal. When a ship employed in the Barberlines service arrived in Montreal, its cargo was discharged by the defendant Ceres Stevedoring Company Ltd. into the cus tody of the defendant Marine Terminals Ltd., for delivery by the latter to various consignees, in fulfilment of the plaintiffs' obligations under the contracts of affreightment. Some of these goods were not delivered, or were delivered after excessive delays, or in a damaged and short condition.
Held, the carrying out of the carrier's obligation to dis charge, care for and deliver cargo to the persons entitled to it, was "as maritime a matter as is the contract for the carriage of the cargo by sea". The plaintiffs' claim, falling within the class of "navigation and shipping", was within the jurisdiction of the Court, under the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.), s. 22.
The Robert Simpson Montreal Limited v. Hamburg- Amerika Linie Norddeutscher [1973] F.C. 1356, revers ing [1973] F.C. 304, followed.
APPLICATION to determine points of law (Rule 474).
COUNSEL:
Sean Harrington for plaintiffs. David Wood for defendants.
SOLICITORS:
McMaster, Meighen & Co., Montreal, for plaintiffs.
Wood & Aaron, Montreal, for defendants.
MAHONEY J.—This is an application by the plaintiffs, under Rule 474, for a preliminary determination of a question of law, namely, whether or not this Court has jurisdiction over the subject-matter of this action. The defend ants did not, for the purposes of this applica tion, contest the truth of the facts alleged in the statement of claim.
The plaintiffs are owners, managers and agents of Barberlines, a shipping line operating, for hire, between the Far East and, inter alia, Montreal and of the M.V. Tai Ping, one of the ships employed in that service. The defendant Ceres Stevedoring Company Ltd. (hereinafter called "Ceres"), pursuant to a written contract with Barberlines serves as stevedore and termi nal operator for Barberlines at Montreal. The defendant Metropolitan Marine Terminals Ltd. is said to be a subcontractor of Ceres.
The Tai Ping arrived in Montreal, on or about November 9, 1971, with general cargo. Some of the cargo was discharged by Ceres into the defendants' care and custody for delivery by them to various consignees in fulfilment of the plaintiffs' obligations under the contracts of affreightment. Some of these goods were not delivered or were delivered after excessive delays or in a damaged and short condition.
The plaintiffs seek to recover the monies paid, pursuant to the contract, in connection with the particular occasion and general dam ages for breach of contract and in tort for injury to their reputation and business. They also seek, as subrogatees and assignees of the rights of the cargo owners, to recover the monies they have paid or expect to pay to such owners in settle-
ment of claims and actions resulting from their default under the contracts of affreightment.
I have used the term "cargo owners" to embrace not only owners of cargo but, as well, consignees, holders of bills of lading, others who are alleged to have suffered loss and their respective agents and assignees. I might note, parenthetically, that two similar actions have been commenced in this Court against the same defendants by different groups of the plaintiffs herein and other plaintiffs in respect of losses ensuing upon the discharge of cargo from M.V. Traviata and M.V. Fernbrook, employed in the same service, following their arrivals in Mont- real during October, 1971.
The Federal Court of Appeal in The Robert Simpson Montreal Limited v. Hamburg-Amerika Linie Norddeutscher' has, in my view, settled the question of law in issue here.
The essential facts of that case are set out in the head-note to the trial report. 2
Plaintiff brought action against a carrier and shipowner alleging that upon the ship's arrival at Montreal, plaintiff's cargo was found in a short and damaged condition. The carrier and shipowner denied liability and alleged that the damage occurred after the cargo was discharged into the custody of terminal operators, and by third party notices claimed indemnity from them.
It was held that this Court had no jurisdiction under section 22 of the Federal Court Act with respect to the third party claim and that decision was appealed by the carrier and shipowner.
In the Court of Appeal Thurlow J. [at page 1366] defined the question as:
' [1973] F.C. 1356. 2 [1973] F.C. 304.
... whether the Trial Division of this Court has jurisdiction to entertain a claim by an ocean carrier against terminal operators for indemnity in respect of a loss of or damage to cargo occurring in the course of performance by the termi nal operators, on behalf of the carrier, of the carrier's obligations, under the contract of carriage, to discharge, care for and deliver the cargo.
The Court of Appeal found, as a fact, that the carrying out of the carrier's obligation to dis charge, care for and deliver cargo to the persons entitled to it was "as maritime a matter as is the contract for the carriage of the cargo by sea". The Court of Appeal unanimously allowed the appeal on the basis that the third party claim by the carrier against the terminal operator was a claim for relief under or by virtue of both "Canadian maritime law" and of "any other law of Canada relating to any matter coming within the class of subject of navigation and shipping" and, hence, within the jurisdiction of the Trial Division by virtue of section 22(1) of the Feder al Court Act.
22. (1) The Trial Division has concurrent original juris diction as well between subject and subject 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.
I cannot see that the capacity in which the plaintiffs claim relief, be it personally or as assignees or subrogatees of the rights of others, or the nature of their claims, be they founded in tort or in contract, are material. The fact is that the remedy is sought under or by virtue of Canadian maritime law and the law of Canada relating to a matter coming within the class of subject of navigation and shipping and that is conclusive of the issue.
I accordingly find that this Court does, by virtue of section 22(1) of the Federal Court Act, have jurisdiction over the subject-matter of this action.
Costs were not asked for.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.