A-269-79
The Owners of the Vessel Ermua, the Charterers
of the Vessel Ermua, Naviera Vizcaina S.A.,
Intercast S.A., Cast Europe, N.V., Cast North
America Limited, Cast Transportation Limited,
Cast Shipping Limited, and Richmond Shipping
Limited (Appellants)
v.
Coutinho, Caro & Co. (Canada) Ltd. (Respond-
ent)
Court of Appeal, Pratte and Ryan JJ. and Hyde
D.J.—Montreal, February 10; Ottawa, March 23,
1981.
Maritime law — Contracts — Bill of lading described
number of lifts and number of pieces of steel in each lift, but
stamped indicating that goods were unchecked — Appeal from
Trial Judge's decision that the description of the goods in the
bill of lading was prima facie evidence that each one of the
lifts contained the number of pieces of steel mentioned in the
description — Appeal allowed — Carriage of Goods by Water
Act, R.S.C. 1970, c. C-15, Schedule, Article III, pars. 3, 4,
Article IV, par. 5.
This is an appeal from a decision of the Trial Division
ordering the appellants to compensate the respondent for the
loss of its steel. The respondent shipped steel in 19 lifts on the
appellant's vessel. The bill of lading described the goods by
stating the number of lifts and the number of pieces of steel in
each lift. It also contained a rubber-stamped clause which
provided that the goods were unchecked. Several pieces of steel
were missing from the lifts upon their arrival. The respondent
claimed compensation, relying on the description of the goods
in the bill of lading as proof of the amount of steel shipped. The
question is whether the Trial Judge erred in holding that the
bill of lading established, in the absence of direct evidence to
the contrary, that the lifts contained the number of pieces
mentioned.
Held, the appeal is allowed. Paragraph 4 of the Hague Rules
specifies that the bill shall be prima facie evidence of the
receipt of the goods; however, that probative value attaches
only to the description given in accordance with subparagraphs
3(a), (b) and (c), that is to say to the unqualified statement
that 19 lifts had been shipped. The paragraph does not regulate
the probative value of statements other than those required by
paragraph 3; nor does it prohibit that these additional state
ments be qualified by a "Weight, quantity, quality unknown"
type of clause.
Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd.
[1974] S.C.R. 933, referred to. New Chinese Antimony
Co., Ltd. v. Ocean Steamship Co., Ltd. [1917] 2 K.B. 664,
referred to. Craig Line Steamship Co., Ltd. v. The North
British Storage and Transit Co. [1921] S.C. 114, referred
to. Attorney-General of Ceylon v. Scindia Steam Naviga
tion Co., Ltd. [1961] 2 Lloyd's Rep. 173, referred to.
Pendle & Rivett, Ltd. v. Ellerman Lines, Ltd. 29 Ll. L.
Rep. 133, referred to. Oricon Waren-Handelsgesellschaft
M.B.H. v. Intergraan N.V. [1967] 2 Lloyd's Rep. 82,
referred to. "Patagonier" (Owners) v. Spear & Thorpe 47
LI. L. Rep. 59, referred to. Spanish American Skin Co. v.
MIS Ferngulf, Etc. 1957 A.M.C. 611, referred to.
APPEAL.
COUNSEL:
David Claford and Robert Cypihot for
appellants.
Marc de Man for respondent.
SOLICITORS:
Brisset, Bishop, Davidson & Davis, Montreal,
for appellants.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division [[1979] 2 F.C. 528] ordering
the appellants to pay the respondent, in addition to
the sum of $775 that they had already paid into
Court before the trial, a sum of $1,940.39, with
interest and costs, as compensation for the loss of
part of a shipment of steel.
The respondent is an importer and distributor of
steel products in Canada. In 1974, it purchased a
quantity of hot-rolled steel angles from its German
parent company. The steel angles were shipped to
Montreal from the Port of Antwerp on board the
appellant's vessel, the Ermua. They were delivered
to the ship strapped in 19 lifts. A bill of lading was
then issued describing the goods by stating not
only the number of lifts but also the number of
pieces of steel in each lift, the dimensions of these
pieces and the gross weight of each lift. A rubber-
stamped clause was superimposed on the bill of
lading above the part containing the description of
the goods; it read as follows:
TOTAL LIFTS contents unchecked but said to contain
19 indicated number of pieces, and said to be
of indicated dimensions and weights.
The Ermua arrived at Montreal on November
18 or 19, 1974, and was discharged of her cargo.
At the time of delivery of the respondent's steel, it
was found that one of the 19 lifts was missing and,
in addition, that a total of 12 pieces of steel were
missing from the other lifts, which, however, were
still properly strapped. The respondent sued the
appellants and claimed compensation for that loss.
True, the appellants had possibly not received
more steel at Antwerp than what was delivered at
Montreal, but the respondent relied on the descrip
tion of the goods in the bill of lading as proof to
the contrary.
The appellants, who probably considered them
selves estopped by the bill of lading from contend
ing that they had received only 18 lifts of steel,
admitted liability in respect of the missing lift. As
it was common ground that this carriage of goods
was governed by Rules identical to the Rules
enacted in Canada by the Carriage of Goods by
Water Act, R.S.C. 1970, c. C-15, the appellants
invoked Article IV(5) of those Rules concerning
the $500 per package limitation and, on the basis
that each lift was a package, they paid into Court
an amount of $775 representing the $500 limita
tion plus interest and costs.
The appellants, however, denied liability for the
loss of the 12 pieces of steel that were missing
from the other lifts. In their view, the description
of the goods in the bill of lading, when read with
the rubber-stamped clause, did not prove the
number of pieces of steel in each one of the lifts
that had been shipped on the Ermua. They con
tended, therefore, that the respondent had failed to
establish that the 12 missing pieces of steel had
been delivered to the ship at Antwerp.
Mr. Justice Walsh, before whom the action was
tried, dismissed that last contention of the appel
lants. He held that the description of the goods in
the bill of lading was prima facie evidence that
each one of the lifts shipped on the Ermua con
tained the number of pieces of steel mentioned in
that description. As there was no direct evidence
showing the inaccuracy of the description of the
bill of lading, he concluded that the respondent
was entitled to be compensated for the loss of
the 12 missing pieces which were valued at
$1,940.39. As to the missing lift, however, the
learned Judge held that it did indeed constitute a
"package", and that, as a consequence, the sum of
$775 which had been paid into Court by the
appellants was sufficient.
From this judgment there is both an appeal and
a cross-appeal.
First, I want to dispose of the cross-appeal. The
respondent's only attack against the judgment
relates to the finding that each one of the lifts
shipped on the Ermua was a "package". In the
respondent's submission, those lifts were not
"packages" because they were not wrapped. That
submission must, in my view, be dismissed. The
"package or unit" referred to in Article IV, para
graph 5, of the Hague Rules is the individual item
of cargo accepted by the carrier. Whether or not
such an item is wrapped or boxed is immaterial. It
appears clearly from the 'bill of lading in this case
that the items of cargo accepted by the carrier for
transportation to Montreal were the 19 lifts rather
than the pieces of steel that they were said to
contain. I would, for those reasons, dismiss the
cross-appeal.
The only question raised on the appeal is wheth
er the learned Trial Judge was right in holding
that the bill of lading established, in the absence of
direct evidence to the contrary, that the lifts
shipped on the Ermua contained the number of
pieces mentioned in the bill.
If the contract of carriage here in question were
not governed by the Hague Rules, I would have no
doubts as to the answer to be given to that ques-
' See: Falconbridge Nickel Mines Ltd. v. Chimo Shipping
Limited [1974] S.C.R. 933.
tion. It is now established, 2 I think, that when a
carrier issues a bill of lading specifying the weight,
quantity and quality of the goods but containing,
in addition, a statement "Weight, quantity, quality
unknown", the bill is not even prima facie evi
dence of the weight, quantity and quality shipped.
Now, the clause that was rubber-stamped on the
bill of lading in this case was the equivalent of
such a statement. Therefore, if the Hague Rules
had not been applicable, the clause would have
completely destroyed the evidentiary value of the
description of the contents of the lifts found in the
bill.
Must the conclusion be different because the
Hague Rules were applicable? I do not think so.
Paragraphs 3 and 4 of Article III of those Rules
read as follows:
3. After receiving the goods into his charge, the carrier, or
the master or agent of the carrier, shall, on demand of the
shipper, issue to the shipper a bill of lading showing among
other things,
(a) the leading marks necessary for identification of the
goods as the same are furnished in writing by the shipper
before the loading of such goods starts, provided such marks
are stamped or otherwise shown clearly upon the goods if
uncovered, or on the cases or coverings in which such goods
are contained, in such a manner as should ordinarily remain
legible until the end of the voyage;
(b) either the number of packages or pieces, or the quantity,
or weight, as the case may be, as furnished in writing by the
shipper;
(c) the apparent order and condition of the goods:
Provided that no carrier, master or agent of the carrier, shall
be bound to state or show in the bill of lading any marks,
number, quantity, or weight which he has reasonable ground
for suspecting not accurately to represent the goods actually
received or which he has had no reasonable means of checking.
4. Such a bill of lading shall be prima facie evidence of the
receipt by the carrier of the goods as therein described in
accordance with paragraph 3(a), (b) and (c).
The bill of lading on which the respondent relies
complies with the requirements of paragraph 3.
Under subparagraph (b) of that paragraph, the
2 See: New Chinese Antimony Co., Ltd. v. Ocean Steamship
Co., Ltd. [1917] 2 K.B. 664; The Craig Line Steamship Co.,
Ltd. v. The North British Storage and Transit Co. [1921] S.C.
114; Attorney-General of Ceylon v. Scindia Steam Navigation
Co., Ltd. [1961] 2 Lloyd's Rep. 173.
carrier need only state either the number of pack
ages, or the quantity or the weight. Here the bill
states the number of packages and, in addition,
contains a description of the contents of those
packages, which description is qualified and emp
tied of its meaning by the rubber-stamped clause.
I do not see in paragraphs 3 and 4 anything that
would invalidate such a bill of lading or modify its
normal legal effect. True, paragraph 4 specifies
that the bill shall be prima facie evidence of the
receipt of the goods; however, that probative value
attaches only to the description given in accord
ance with paragraph 3(a),(b) and (c), that is to
say, in this case, to the unqualified statement that
19 lifts had been shipped on the Ermua. The
paragraph, as I understand it, does not regulate
the probative value of statements other than those
required by paragraph 3; nor does it prohibit that
these additional statements be qualified by a
"Weight, quantity, quality unknown" type of
clause. 3
For those reasons, I would allow the appeal and
dismiss the cross-appeal. I would set aside the
judgment of the Trial Division, declare that the
sum of $775 that was paid into Court was suffi
cient to discharge the appellants' liability toward
the respondent; I would order the respondent to
pay the appellants' costs in this Court and, also,
their costs in the Trial Division after the date on
which the sum of $775 was paid into Court; the
respondent should be entitled to its costs in the
Trial Division up to the date of that payment.
* * *
' RYAN J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
HYDE D.J.: I agree with Mr. Justice Pratte. In
my view the authorities relied on by him on the
3 See: Attorney-General of Ceylon v. Scindia Steam Naviga
tion Co., Ltd. [supra]; Pendle & Rivett, Ltd. v. Ellerman Lines,
Ltd. 29 LI. L. Rep. 133; Oricon Waren-Handelsgesellschaft
M.B.H. v. Intergraan N.Y. [1967] 2 Lloyd's Rep. 82.
effect of the rubber-stamp endorsement on the bill
of lading are to be preferred to those cited by the
Trial Judge. 4 I would accordingly set aside the
judgment a quo and declare that the sum of $775
that was paid into Court was sufficient to dis
charge appellants' liability toward the respondent,
the whole with costs as ordered by my brother
Pratte.
4 "Patagonier" (Owners) v. Spear & Thorpe 47 LI. L. Rep.
59; Spanish American Skin Company v. MIS Ferngulf, Etc.
1957 A.M.C. 611.
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.