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T-9020-82
Sio Export Trading Co. (Maskinfabriken "Sio" A.S.), a body politic and corporate of Odense, Denmark, and A. Lakin and Sons Ltd., a body politic and corporate of Chicago, Illinois, U.S.A. (Plaintiffs)
v.
The Vessel Dart Europe and Armement Deppe S.A., a body politic and corporate of Antwerp, Belgium, and Dart Containerline (Canada) N.V., a body politic and corporate of Antwerp, Belgium, and Godin Transport Inc., a body politic and corporate of Pointe-Claire, Quebec, Canada (Defendants)
Trial Division, Dubé J.—Montreal, January 17; Ottawa, January 20, 1983.
Maritime law — Jurisdiction — Application for dismissal of action as against defendant Godin for want of jurisdiction
— During vessel's scheduled Montreal stopover, shipment conveyed from Port to inland shop for repacking — Shipment damaged during return in highway accident — Plaintiffs claiming Godin negligent — Godin's land transport not part and parcel of maritime activities essential to carriage by sea
— Truck trip not connecting vessel and harbour directly — Neither truck trip nor associated repairs contemplated by terms governing sea carriage — Truck transportation over highway within province not a traditional maritime activity — That returning to vessel not making trip navigation and ship ping matter — Claims against terminal operators and steve dores distinguished since their activities essential and closely, physically related to harbour facilities and sea — Desirable to keep as parties all those concerned with outcome and especial ly allegedly negligent party — But neither desirability nor expediency can confer jurisdiction — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 22 — The Admiralty Act, 1891, S.C. 1891, c. 29, s. 4.
Jurisdiction — Federal Court — Maritime law — Carriage by sea — Large machine in open container shipped from Denmark to Chicago via Montreal — Found in damaged condition at Montreal — Shipment removed inland for pack ing — Further damaged by collision in return to ship by highway transport — Negligence of land carrier alleged — Application to dismiss for want of jurisdiction — Indirect trip for repairs not contemplated in contract of carriage by sea — Trucking not traditional maritime activity — Desirability that land carrier be joined as party not clothing Court with juris diction — Application granted.
According to its bill of lading, the Dart Europe was to carry an open-top container from Denmark to Chicago via Montreal. The container held a hydraulic press. On the ship's arrival at Montreal, the defendant Dart Containerline noted that the shipment had been damaged, advised the plaintiffs, and sent the shipment to a company in Dorval, Quebec, where it was repacked. The defendant Godin, allegedly a common carrier by road, was to transport the shipment from Dorval back to the Port of Montreal. On the way, the protruding press sustained damage when it struck a railway overpass. The plaintiffs sued, claiming that Godin had been negligent. Godin applied for a dismissal of the action as against it, on the ground that the Federal Court lacked jurisdiction. The plaintiffs argued that the cause of action was sufficiently connected with the ship ment's carriage by sea to fall within the Court's maritime jurisdiction.
Held, the action against Godin should be dismissed. The land-transport operation was not so closely connected to the sea voyage as to be part and parcel of the maritime activities essential to the carriage of the container by sea. This case is distinguishable from those involving claims against terminal operators or stevedores. The activities engaged in by the latter two groups have a close practical relationship with the perform ance and completion of carriage by sea, and form an integral part of marine transport. Those activities not only are essential, but also are closely and physically related to the sea and to the harbour facilities. It is otherwise where, as in the instant case, a common carrier by road is travelling over a highway, from an inland repair shop to a port. The truck's journey did not serve to connect the vessel and the harbour directly. Instead, it was an indirect trip. Neither the land trip nor the repairs were contemplated by the terms governing the carriage of the con tainer by sea. Transportation by truck over a highway within a province is not a traditional maritime activity, and the mere fact that the truck was returning a container to a vessel does not make the truck's journey a matter connected with naviga tion and shipping.
While it is desirable to keep as parties to an action all those concerned with its outcome and it would be particularly desir able to have the overland carrier joined in this litigation, neither desirability nor expediency can clothe a court with a jurisdiction which it does not otherwise possess.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The Robert Simpson Montreal Ltd. v. Hamburg- Amerika Linie Norddeutscher, et al., [1973] F.C. 1356 (C.A.), reversing [1973] F.C. 304 (T.D.); Barberlines A/S Barber Steamship Lines, Inc., et al. v. Ceres Steve- doring Company Ltd. et al., [1974] 1 F.C. 332 (T.D.); Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. et al., [1982] 1 F.C. 406 (C.A.).
CONSIDERED:
Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, [1973] A.M.C. 1 (U.S.S.C.).
REFERRED TO:
Domestic Converters Corporation, et al. v. Arctic Steam ship Line, et al., [1984] 1 F.C. 211 (C.A.).
COUNSEL:
Peter J. Cullen for plaintiffs. Edouard Baudry for defendants.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiffs.
Lavery, O'Brien, Montreal, for defendants.
The following are the reasons for order ren dered in English by
DUBÉ J.: This application by the defendant Godin Transport Inc. ("Godin") is for the dismis sal of the action against it for want of jurisdiction of the Federal Court.
The statement of claim alleges that Godin, a common carrier by road for hire, carried the plain tiffs' shipment, an open-top container stuffed with an hydraulic curing press, from the premises of Pack-All Industries Limited at Dorval, P.Q. to the Port of Montreal. It is further alleged that during the carriage by truck over the highway the pro truding press struck a railway overpass causing considerable damage to the package. The plaintiffs claim that Godin was negligent and the action against it is in damages.
The container had arrived at the Port of Mon- treal on board the defendant vessel Dart Europe from which a bill of lading was issued on Decem- ber 11, 1981, at Arhus, Denmark. The through bill of lading provides for the container to be shipped from Denmark to Chicago, Illinois, U.S.A., by way of Antwerp, Belgium, and Montreal.
When the vessel arrived in Montreal the defend ant Dart Containerline (Canada) N.V. noted some damage to the shipment, notified the plaintiffs, caused surveys to be held, removed the shipment from alongside the vessel and sent it to the prem ises of Pack-All Industries Limited to have the shipment reskidded, packed and properly secured for the on-carriage to the plaintiff A. Lakin and Sons Ltd. in Chicago. After those operations were completed, Godin took the shipment back by truck to the Port of Montreal and the aforementioned
collision with the overpass occurred on January 21, 1982.
Godin argues that this Court has no jurisdiction to hear an action in tort (delict) for damages caused by a common carrier on a Quebec highway. On the other hand, the plaintiffs submit that the cause of action is sufficiently connected to the carriage by sea of the shipment to bring it under this Court's maritime jurisdiction.
In The Robert Simpson Montreal Ltd. v. Ham- burg-Amerika Linie Norddeutscher, et al.,' this Court held that the Federal Court has no jurisdic tion under section 22 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], to entertain a claim by a shipowner against the terminal opera tors. On appeal, 2 however, the Federal Court of Appeal reversed that decision and held that the removing of a shipment from a vessel, after com pletion of the ocean voyage and the delivery to a terminal operator, constituted activities "essential to the carriage of goods by sea" and therefore fell within the "navigation and shipping" provisions of subsection 22(1) 3 of the Act, without it being necessary to consider whether any of the branches of subsection 22(2) apply. Jackett C.J. said (at page 1363) that the activities were "part and parcel of the activities essential to the carriage of goods by sea" [citing Re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529, per Locke J. at page 578].
In Barberlines AIS Barber Steamship Lines, Inc., et al. v. Ceres Stevedoring Company Ltd. et al., 4 Mahoney J. followed that decision and held that this Court has jurisdiction to entertain an action in damages against a stevedore company
' [1973] F.C. 304 (T.D.).
2 [1973] F.C. 1356 (C.A.).
3 22. (1) The Trial Division has concurrent original jurisdic tion 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.
4 [1974] 1 F.C. 332 (T.D.).
with respect to damages to goods it had discharged from a vessel.
In Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. et al.,' the Federal Court of Appeal again dealt with terminal operators. Goods had been stolen from a transit shed. One of the ques tions was whether the Court had jurisdiction to hear the claim. The majority of the Court held that it had. Le Dain J. reversed his previous stand in the Domestic Converters 6 case and held [at page 417] that "because of the close practical relationship of the terminal operation to the performance of the contract of carriage, the law which governs it should be uniform throughout Canada". He adopted [at page 418] the following general observations of Mr. Justice Stewart of the U.S. Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland, Ohio' that "In sum, there has existed over the years a judicial, legisla tive, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a par ticular tort or class of torts, reliance on the rela tionship of the wrong to traditional maritime activ ity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test." For those reasons he held he was of the opinion that the claim of the cargo owner against the terminal operator was a maritime matter within the defini tion of "Canadian maritime law" under section 2 8 of the Federal Court Act. Lalande D.J. [at pages 430-431] was also of the opinion that the Federal Court had jurisdiction to entertain the claim against the terminal operator "because it is a matter `connected with' navigation and shipping in the words of section 4 of The Admiralty Act, 1891" [S.C. 1891, c. 29] .
5 [1982] 1 F.C. 406 (C.A.).
6 [Domestic Converters Corporation, et al. v. Arctic Steam ship Line, et al.] [1984] 1 F.C. 211 (C.A.).
[1973] A.M.C. 1 (U.S.S.C.) [at page 10].
8 2. ...
"Canadian maritime law" means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to mari time and admiralty matters, as that law has been altered by this or any other Act of the Parliament of Canada;
In my view, the land transport operation under taken by Godin from the Dorval repair shop to the Port of Montreal cannot be considered to be so "closely connected" to the voyage by sea as to be "part and parcel" of the maritime activities essen tial to the carriage of goods by sea.
I can very well see the close practical relation ship of marine-terminal operators and ship steve dores to the performance and completion of car riage by sea. All those activities form an integral part of marine transportation. Not only are they essential, they are also closely and physically relat ed to the sea and to the harbour facilities.
But such is not the situation with a highway common carrier, heading from a repair shop inland, over a highway towards a port. That route was not considered in the bill of lading. That was not a direct link connecting vessel and harbour, but an indirect voyage with respect to repairs not contemplated in the contract of carriage. Trucking over highways in a province has never been con sidered a "traditional maritime activity". The mere fact that the vehicle was returning a contain er to a vessel does not by itself constitute "a matter connected with navigation and shipping".
I am aware, of course, of the desirability of keeping all the parties concerned with the outcome of an action as parties to the action. But, however desirable it may be to have the land carrier joined with the cargo owner, the shipper, the ocean carri er, the vessel and the consignee, in the same action, especially where it is alleged that the land carrier is the negligent party, still desirability or expediency cannot clothe a court with a jurisdic tion it does not otherwise possess. Both the imagi nation of this Court and the Constitution of this country would have to be stretched to the breaking point in order to consider a collision on a highway within a province to be an admiralty matter coming under federal jurisdiction.
For all those reasons the action against Godin is dismissed for want of jurisdiction.
ORDER
Application granted. The action against the defendant Godin Transport Inc. is dismissed with costs.
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