T-5077-81 
Carling O'Keefe Breweries of Canada Limited and 
Norlab Ltd. (Plaintiffs) 
v. 
CN Marine Inc., The Labrador Shipping Co. Ltd., 
the vessel Newfoundland Coast and Roger Sirois 
(Defendants) 
INDEXED AS: CARLING O'KEEFE BREWERIES OF CANADA LTD. 
v. CN MARINE INC. 
Trial Division, Martin J.—Halifax, September 2, 
3, 4, 5, 8 and 9; Ottawa, November 17, 1986 and 
May 5, 1987. 
Maritime law — Carriage of goods — Loss of cargo — 
Improper stowage and inadequate securing of goods — On 
facts, defendant CN "carrier" — Exclusion of liability provi
sion in bill of lading ineffective to relieve CN from liability as 
null and void under Hague Rules — Liability not limited to 
$500 per container as bill of lading indicating number of 
packages shipped — Carriage of Goods by Water Act, R.S.C. 
1970, c. C-15, Sch., Art. III(2),(3)(b),(8), IV(5) — Federal 
Court Rules, C.R.C., c. 663, R. 337(2)(b). 
The plaintiff's claim is for damages in respect of the loss at 
sea of a cargo of beer being shipped from Newfoundland to 
Labrador. The beer was packed by the plaintiff in three CN 
containers (1,413 cases in each), and loaded on board a ship 
chartered by defendant, CN Marine Inc. (CN), to provide its 
CN Marine Coastal Service. Given CN's determination, 
towards the end of the shipping season, to use every inch of 
space available, it was decided, between CN and Captain 
Roger Sirois, the master of the ship, that the containers should 
be stowed on deck transversely, one end of the containers 
protruding some two feet over the side of the vessel. The 
containers were then secured with wire rope instead of other far 
superior fittings then available. 
During the crossing, heavy seas—not unusual for that area at 
that time of year—hitting the underside of the containers 
caused the wire ropes to break and the containers were lost at 
sea. 
CN seeks to escape liability on the grounds that it was not 
the carrier but only its agent and that a clause of the bill of 
lading provided that the agent "shall be under no personal 
liability whatsoever". Or, failing this, CN seeks to limit its 
liability to $500 per container on the basis of paragraph IV(5) 
of the Hague Rules. 
Held, the plaintiff's claim should be allowed in the amount of 
$31,394.80. 
The loss was caused by the improper stowage and inadequate 
securing of the plaintiffs goods. Part of the responsibility lies 
with Captain Sirois who, as master of the ship, was the 
ultimate authority to determine how the cargo was to be 
stowed. And since, on the facts of this case, CN was a "carrier" 
under the contract of carriage, it was also, as such, along with 
the actual carriers, the ship and its owners, responsible for the 
stowage and securing of the goods. It cannot escape liability by 
invoking the bill of lading clause excluding its liability because 
such clauses are prohibited and rendered null and void by 
paragraph III(8) of the Hague Rules. 
CN cannot invoke paragraph IV(5) of the Hague Rules to 
limit its liability at $500 per container since both the bill of 
lading and its internal waybill indicated a total of 4,240 
packages. 
CASES JUDICIALLY CONSIDERED 
APPLIED: 
Canficorp (Overseas Projects) Ltd. v. Cormorant Bulk-
Carriers Inc., judgment dated June 18, 1984, Federal 
Court of Appeal, A-883-82, not reported; International 
Factory Sales Service Ltd. v. The Alexandr Serafimo-
vich, [1976] 1 F.C. 35 (T.D.). 
REFERRED TO: 
Atlantic Traders Ltd. v. Saguenay Shipping Ltd. (1980), 
38 N.S.R. (2d) 1 (N.S.S.C., T.D.); Paterson SS. Ltd. v. 
Aluminum Co. of Can., [1951] S.C.R. 852; Maritime 
Insurance Co. Ltd. (The) v. The Gretafield, [1973] F.C. 
281 (T.D.); Aris Steamship Co. Inc. v. Associated 
Metals & Minerals Corporation, [1980] 2 S.C.R. 322. 
COUNSEL: 
Kristine Arnet Connidis for plaintiffs. 
James D. Youden for defendant CN Marine 
Inc. 
APPEARANCES: 
Roger Sirois on his own behalf. 
No one appearing on behalf of the defendants 
The Labrador Shipping Co. Ltd. and the 
Newfoundland Coast. 
SOLICITORS: 
Campbell, Godfrey & Lewtas, Toronto, for 
plaintiffs. 
CN Marine Law, Halifax, for defendant CN 
Marine Inc. 
Ryan & Ryan, North Sydney, Nova Scotia, 
for defendant Roger Sirois. 
With respect to representations made after the 
initial reasons for judgment were filed: 
COUNSEL: 
D. Peter Mancini for defendant Roger Sirois. 
SOLICITOR: 
Nova Scotia Legal Aid, Sydney, Nova Scotia, 
for defendant Roger Sirois. 
The following are the reasons for judgment 
rendered in English by 
MARTIN J.: The plaintiff, Carling O'Keefe 
Breweries of Canada Limited, claims damages of 
thirty-one thousand three hundred and ninety-four 
dollars and eighty cents ($31,394.80) against the 
defendants as a result of the loss at sea of a cargo 
of beer from the deck of the defendant ship New-
foundland Coast on November 15, 1980. 
The plaintiff's action against the ship, its owner 
the Labrador Shipping Co. Ltd., and its master 
Roger Sirois is somewhat academic. The ship has 
since been lost at sea, the owner company is 
apparently without assets and Captain Sirois is in 
no financial position to pay any judgment which 
might be obtained against him. 
Counsel for the plaintiff indicated that even if a 
judgment was obtained against Captain Sirois 
there would be no attempt made to recover. Practi
cally speaking, then, the plaintiff's only hope is to 
obtain a judgment against the defendant CN 
Marine Inc., the charterer of the ship. 
CN Marine Inc., under contract with the federal 
government, provides a passenger and freight ser
vice to the coasts of Newfoundland and Labrador. 
This service is distinct from the service which links 
Newfoundland to the mainland and is called the 
CN Marine Coastal Service. The service is pro
vided by means of vessels which are either owned 
by CN or chartered by it. 
One of the routes on the coastal service is the St. 
John's to Goose Bay run, a distance of some 650 
miles. Because of ice conditions this run operates 
only from June to about mid-November. In 
November of 1980 it was served by the New- 
foundland Coast and the Sir Robert Bond which 
had been taken off another run to assist the New-
foundland Coast with the backlog of freight which 
had built up, as is the custom, towards the end of 
the shipping season. The Sir Robert Bond is a 
CN-owned vessel and the Newfoundland Coast 
was a time-chartered vessel. 
In October 1980 the plaintiff notified CN that it 
would be shipping some beer to Goose Bay. Frank 
Walsh, the plaintiff's warehouse supervisor, 
arranged the pickup of three 20 foot standard CN 
containers from CN and had them packed, or 
stuffed, with the beer at the plaintiff's premises. 
On October 29, 1980 the three containers were 
delivered to CN for carriage by sea to Goose Bay. 
CN had provided the plaintiff with a supply of 
CN bills of lading. Walsh completed a portion of 
it, indicating the number of packages and the 
weight and brought it to CN. There one of its 
employees date stamped it, wrote in the freight 
charges and signed it on behalf of CN's terminal 
supervisor, David Mercer. Although there was a 
space on the bill of lading to designate the name of 
the vessel which would carry the freight it was not 
filled in. 
On the same day, October 29, 1980, CN pre
pared waybills for each container setting out the 
freight charges, the fact that each container con
tained 1,413 cases of beer and that the containers 
would be shipped on the Sir Robert Bond which 
was due to depart that same day. 
In fact the cargo was not shipped on that vessel 
but instead was loaded on the defendant vessel on 
November 15, 1980. 
Walsh was not told what vessel would take the 
cargo nor did he enquire. Captain William Emble-
ton, CN's coastal service operations manager, said 
it was not CN's practice to give shippers the name 
of the vessel taking the cargo unless there was a 
specific request for the information. He also said 
that CN did not inform the plaintiff and does not 
inform shippers generally that their cargo will be 
going on chartered as opposed to CN vessels. 
The Newfoundland Coast was chartered for the 
carriage of freight only. It was built in 1934 and, 
although showing its age, it was without doubt fit 
for service. It had a length of 230 feet, a beam of 
approximately 35 feet and a weight of 888 gross 
tons. As it was on a time charter the owner 
supplied the crew. CN supplied a purser to attend 
to the paper work relating to the freight. 
As the Labrador shipping season was nearing its 
end, there was a great deal of freight to be carried. 
Not only was freight carried in the defendant 
vessel's holds but she also carried standard 20-foot 
containers on her decks even though she was not 
specially fitted out to carry them. The containers 
holding the plaintiffs cargo were carried on deck. 
Although the master has the last word on where 
the cargo will be placed on his vessel and how 
much he will take, in practice, Captain Sirois 
worked in conjunction with CN staff in planning 
the amount and placement of the cargo on his 
vessel. CN would, for example, designate which of 
several containers it might want stowed below 
deck. CN would determine how much freight the 
vessel would take and Sirois would supervise its 
loading by stevedores under contract with CN. 
Between Sirois and CN it was decided that the 
20-foot containers should be stowed athwartships 
or transversely rather than longitudinally or fore 
and aft. In fact, as CN was determined, towards 
the end of the shipping season, to use every inch of 
space available on the defendant ship, the master 
had no alternative but to stow it that way. 
Captain Embleton, who was an impressive and 
knowledgeable witness, agreed it was well known 
in the industry that it would be preferable to stow 
the containers fore and aft but that they were 
stowed athwartships so that more freight could be 
carried. He said: 
There is no doubt in anybody's mind that the best stowage 
for a container is fore and aft. There's no doubt in that. 
and later: 
I would agree it is ideal, but you have to understand that you 
have to make provisions to move all the freight that you're 
given, and you have to utilize every inch of space that you have 
available on the vessel. 
The transverse stowage, admittedly more at risk 
than the fore and aft stowage, created an addition
al risk in the case of the containers on the defend
ant vessel. The containers so stowed were stowed 
on both the port and starboard side, end to end so 
that, being 20 feet long each they occupied a total 
length of 40 feet across the beam of the vessel. In 
the result the ends of each container so stowed 
protruded over the side of the vessel a distance of 
approximately two feet. 
Captain Embleton agreed that stowage in this 
manner created a further risk in addition to trans
verse stowage but explained why that risk was 
taken as follows: 
It is more exposed to the elements, I will agree. But, as I 
said, we had to utilize every inch of space that was possible in 
order to get the supplies to the people in Labrador and that was 
the reason why we did it. The ship had done this without any 
problems whatsoever, and there was no reason to believe that it 
was going to change. [The underlining is mine.] 
Captain Embleton also described the "proper 
fittings" for securing containers as being far supe
rior to the wire rope used to secure the containers 
on the defendant ship. He also said that in his view 
wires were still an efficient way of securing the 
containers. It is significant that the proper fittings 
were available in 1980, that under the terms of the 
charter party it was CN's obligation to supply 
cargo lashings, that CN supplied wire rope, and 
that the CN supplied lashings broke. 
It is also significant to note that the containers 
were packed and stuffed by Carling and delivered 
sealed to CN which then had them placed, still 
sealed, on the defendant vessel without taking any 
steps to ensure that the containers were properly 
packed and the contents secured against movement 
within the container. With the severe motions of 
the ship which could be anticipated in the regular 
November storms along the course from St. John's 
to Goose Bay, loose cargo in a container, particu
larly one being carried athwartships, would not 
only put the cargo and container at risk but also 
the vessel. 
There was a total of 12 containers loaded on the 
ship's deck. The three containers with the plain
tiff's cargo were placed on the starboard side of 
the ship with their inboard ends on the middle of 
the top of the aft hatch. Their outboard ends 
rested on the ship's rail and protruded about two 
feet over the side of the vessel at a height of about 
12 feet above the mean water line. There were 
three other containers similarly placed on top of 
the same hatch but on the port side. 
The containers were loaded on board the ship by 
stevedores under contract with CN. Although the 
contract required the stevedoreing firm to secure 
the cargo it was the practice in the port of St. 
John's that the ship's crew did this under the 
direction of the master. The containers were 
secured by the crew of the Newfoundland Coast 
with wire rope lashings supplied by CN. A great 
deal of evidence was given with respect to the 
precise method of securing the containers. It is 
sufficient to note only that they were secured to 
the master's satisfaction and in the manner which 
throughout the season had proved satisfactory. 
The ship departed St. John's at 3:00 a.m. for her 
intended voyage to Goose Bay. The 3:00 a.m. 
marine forecast for the marine area of the ship's 
intended course was for northwesterly winds of 
20-30 knots, a few showers, flurries and fog pat
ches. The master claims, that by 10:00 a.m. gale 
warnings were issued by the Coast Guard radio 
stations, the winds had picked up to 50 km per 
hour and the barometer was falling rapidly. In fact 
no gale warnings were issued for that area but 
instead were issued for the west coast of New-
foundland. In any event Captain Sirois decided 
that under the circumstances he would change his 
course and seek shelter in East Port. His vessel was 
about a mile and a half off Cape Bonavista when 
the containers were lost. The master described the 
actual loss in his sworn note of protest dated 
November 23, 1980 as follows: 
At 11:15 passing one and a half mile North of Cape Bonavis-
ta, there was heavey ground swell and tide rips. The confused 
seas hit under the containers on the port side and broke the 
wire lashings. With the roll of the ship, 3 containers slipped 
over the side and floated away. 
The reference to the port side is in error. The 
containers lost were the three containers holding 
the plaintiff's cargo which were stowed on the 
starboard side. 
For some period prior to the loss of the contain
ers the winds and waves had been directly on the 
starboard side of the vessel and, with the conse
quent rolling of the ship, the waves were running 
up the side and hitting the protruding bottoms of 
the containers containing the plaintiff's cargo. At 
the time of the loss, according to the master, the 
waves were 15 to 18 feet high and breaking, the 
seas were confused on account of tide rips and 
shallow water in the Cape Bonavista area. 
These conditions were not unusual for Captain 
Sirois or for that area at that time of year. Indeed 
on that voyage the ship had to take shelter on 
three occasions due to weather conditions. In fact 
the conditions at the time of the loss were precisely 
what would be anticipated. Captain Sirois himself 
said they were bad but that he had experienced 
similar conditions on, he estimated, ten other 
occasions. 
The master attributed the loss to the heavy seas 
hitting the underside of the containers and, he 
speculated, to the possibility that, in combination 
with the heavy seas causing the containers to lift 
up, there might have been a cutting edge on one of 
the containers which cut the wire rope. 
Given the wind speed and consequent speed of 
the waves combined with the rolling of the vessel 
and the protruding containers I have no hesitation 
in finding that the loss was brought about by the 
fact that the containers were stowed so that their 
ends protruded over the side of the vessel. By being 
stowed in that way they formed a trap against 
which the full force of onrushing waves, of even 
moderate height, would rush up the sides of the 
vessel and exert enormous upward pressure on the 
bottoms of the containers. That at any given time 
the force of the waves could be increased signifi
cantly as a result of breaking waves and by the 
downward rolling motion of the ship only serves to 
reinforce my view that the loss was the direct 
result of the improper stowage of the containers. 
CN seeks to escape liability on the grounds that 
it was not the carrier but only the agent of the 
carrier and points to the protection afforded it by 
reason of the clause 18 in the bill of lading, the 
demise clause, which provides that: 
18. If the ship is not owned by or chartered by demise to the 
ocean carrier by which the goods are intended to be carried 
hereunder (as may be the case notwithstanding anything that 
appears to the contrary), this bill of lading shall take effect only 
as a contract with the owner or demise charterer, as the case 
may be, as principal, made through the agency of Canadian 
National Railways or the said ocean carrier which in either 
case acts as agent only and which shall be under no personal 
liability whatsoever in respect thereof. 
Counsel for CN relies on Atlantic Traders Ltd. 
v. Saguenay Shipping Ltd. (1980), 38 N.S.R. (2d) 
1 (N.S.S.C., T.D.); Paterson SS. Ltd. v. Alumi
num Co. of Can., [1951] S.C.R. 852 and Maritime 
Insurance Co. Ltd. (The) v. The Gretafield, [1973] 
F.C. 281 (T.D.), Canadian decisions, in which the 
respective courts gave effect to the demise clause 
according to its terms. 
Counsel for the plaintiff cited those cases as well 
as a number of others and urged me to find that 
CN was the carrier and thus not entitled, accord
ing to rule 8 of Article III of the Hague Rules 
scheduled to the Carriage of Goods by Water Act, 
R.S.C. 1970, c. C-15, to so limit its liability. 
I have reviewed all of the cases cited by counsel 
and I am satisfied that the present state of the law 
is accurately set out in Canficorp (Overseas 
Projects) Ltd. v. Cormorant Bulk-Carriers Inc., 
F.C.A. number A-883-82 by Mr. Justice Stone in 
his June 18, 1984 decision. He referred to the 
Supreme Court of Canada decisions in Paterson 
SS. Ltd. v. Aluminum Co. of Can. (supra) and 
Anis Steamship Co. Inc. v. Associated Metals & 
Minerals Corporation, [1980] 2 S.C.R. 322 in 
which decisions the Supreme Court held that the 
contract of carriage was made between the shipper 
and the shipowners who, as carriers, were liable 
for cargo damage. 
Mr. Justice Stone then went on to describe the 
effect of those decisions in the following terms at 
page 18: 
Where the evidence clearly establishes that a contract of 
carriage was made with shipowners, the responsibilities as 
"carrier" for loss or damage to cargo falls upon the shipowners. 
That, it seems to me, is the effect of the two cases relied upon 
by the appellant. Where, as here, the evidence as a whole 
established to the satisfaction of the Trial Judge that another 
person, the respondent, "undertook to carry the goods" that 
person is "carrier" under the contract of carriage. That is so, in 
my view, though there be some evidence to the contrary, for 
example, the language of the supersession clause in the booking 
note and of Clause 17 of the bill of lading. The learned Trial 
Judge found upon the evidence as a whole that the respondent 
became "carrier" of the goods. I think his conclusion is amply 
supported by the evidence. Whether the shipowners might also 
be regarded as a "carrier" upon the principle of the cases 
referred to above does not arise for decision in this case. 
I have concluded that CN undertook to carry 
the plaintiffs cargo and that CN is a "carrier" 
under the contract of carriage. I have reached that 
conclusion on the basis of the following facts: 
1. The plaintiff dealt exclusively with CN. It was 
provided with CN containers for its cargo, it 
delivered the containers to the CN premises, it 
was provided with CN bills of lading. The plain
tiff did not know the owner of the ship, the 
master, or the ship in the transaction nor was 
the plaintiff informed by CN that the cargo 
would be sent on a time-chartered ship. The 
only indication the plaintiff did have of the 
vessel upon which its cargo had been shipped 
was on the copy of the waybill which indicated 
that it had been shipped on the CN-owned Sir 
Robert Bond. 
2. According to the terms of the written Time 
Charter Party made between the owners of the 
ship and CN on May 23, 1980 "Bills of Lading 
shall be signed by the Master or the Purser" 
(underlining added). Captain Sirois did not sign 
the bill of lading. He said he had nothing to do 
with it. Neither did the purser sign the bill of 
lading even though CN had appointed a purser 
for the defendant ship who, according to the 
charter party, was deemed to be the agent of the 
master for the purposes of signing all shipping 
documents. 
3. The bill of lading, on the contrary, was signed 
by CN's terminal supervisor, or more accurate
ly, by his secretary on his behalf. 
4. The bill of lading was a CN bill of lading filled 
out and signed precisely in the same manner as 
if the cargo were going to be taken on a 
CN-owned ship. No where was it indicated on 
the bill of lading that the CN employee who 
signed it signed it on behalf of the master or the 
owners of the ship but only on behalf of CN. 
Under the place for signature the following is 
printed: 
Agent on behalf of the carriers severally and not jointly. 
Immediately above the place for signature the 
following is printed: 
IN WITNESS WHEREOF, the Agent has signed this bill of 
lading on behalf of the Canadian National Railway Com
pany and its connecting railway and steamship lines, several
ly and not jointly. 
It seems to me that a fair reading of that portion 
of the bill of lading alone would lead a shipper 
to conclude that CN was holding itself out to be 
the carrier and that the contract of carriage was 
intended to be between the shipper and CN. 
Furthermore clause 2 of part A of the bill of 
lading conditions dealing with water carriage 
specifically provides that the word "carrier" in 
the bill of lading includes the time charterer. 
Counsel for CN said this provision was included 
in the bill of lading as a result of American 
legislation. That may well be so but it is never
theless, to me at least, further evidence that even 
if CN was a time charterer, it was holding itself 
out to be the carrier, and that the contract of 
carriage was, in such an event, to be between the 
shipper and CN. 
5. CN seeks to represent itself only as an agent 
whose duty it was to find space for the plaintiff's 
cargo on a vessel. That being so CN presumably 
would be entitled to an agent's fee. In fact CN 
billed and collected from the plaintiff freight 
charges for its own account and not for the 
account of the ship or its owners. 
6. CN acted in part as carrier in the loading and 
stowing of the cargo. It supplied the lashings for 
the containers. It decided how much freight the 
vessel would take. The master merely 
acquiesced. It was CN's decision to use every 
inch of available space on the ship including its 
deck space. It was CN's decision to have the 
vessel take the number of containers which it 
did. The inevitable consequence of that decision 
was that they would have to be stowed athwart-
ships, with their ends protruding over the side of 
the vessel. It was CN's decision that the con
tainers, so stowed, be secured by wire rope 
instead of by "proper fittings". 
It is true that CN was under pressure to have 
the cargo delivered before the close of the 
Labrador shipping season but it is also true that 
CN had a financial interest in loading additional 
freight because it and not the owners were being 
paid for that freight. CN was aware that there 
was an increased risk to the cargo in stowing it 
in the only way it could be stowed if every inch 
of space on the ship was to be utilized, but it 
elected to take that risk. 
In my view everything in the relationship be
tween the plaintiff and CN points to a contract of 
carriage between the plaintiff and CN with the 
exception only of clause 18 of the bill of lading. 
Having found that CN entered into a contract 
of carriage with the plaintiff within the meaning of 
the Rules it is deemed to be a carrier and subject 
to the responsibilities and limitations set out in the 
Rules. 
Rule 2 of Article III provides that subject to 
Article IV: 
Article III 
2.:.. the carrier shall properly and carefully load, handle, 
stow, carry, keep, care for and discharge the goods carried. 
Article IV sets out a number of exceptions under 
which neither the carrier nor the ship will be 
responsible for loss or damage. The loss was 
caused, however, not by any of the exceptions set 
out in Article IV but by reason of its being 
improperly stowed and inadequately secured. 
The demise clause, clause 18 of the bill of 
lading, is pleaded in order to relieve CN from 
liability for the loss resulting from CN's breach of 
a carrier's obligation to properly stow the plain
tiff's cargo. However rule 8 of Artice III prohibits 
such limiting clauses and provides that they are 
null and void and of no effect. 
Accordingly in the circumstances of this case I 
find that clause 18 of the bill of lading is not 
effective to relieve CN from liability for the dam
ages sustained by the plaintiff as the demise 
clause, which seeks to accomplish that effect, is 
null and void. 
CN however is not the only carrier in this 
matter. I find that the actual carrier in fact, the 
ship and its owners, are also carriers within the 
meaning of the Rules and, along with CN, share 
the same obligations imposed on a carrier under 
the provisions of rule 2 of Article III. 
CN argues that even if it is found to be liable 
for the loss sustained by the plaintiff, damages 
should be limited to five hundred dollars ($500) 
per container on the basis of rule 5 of Article IV 
which provides, in part, as follows: 
Article IV 
5. Neither the carrier nor the ship shall in any event be or 
become liable for any loss or damage to or in connection with 
goods in an amount exceeding five hundred dollars per package 
or unit, or the equivalent of that sum in other currency, unless 
the nature and value of such goods have been declared by the 
shipper before shipment and inserted in the bill of lading. 
CN submits that each container is a unit and 
that the total damage must therefore be limited to 
one thousand five hundred dollars ($1,500). 
Counsel for the plaintiff, on the other hand, 
argues that each case of beer is a package and that 
the damages should be fixed at the actual value of 
the goods lost, that is to say approximately seven 
dollars and fifty cents ($7.50) per case or package. 
Counsel have cited a number of cases in support 
of their respective positions. In International Fac
tory Sales Service Ltd. v. The Alexandr 
Serafimovich, [1976] 1 F.C. 35 (T.D.) Mr. Justice 
Smith reviewed the authorities and concluded at 
page 49: 
From all the cases referred to supra it is clear that the 
decision whether a large container, a pallet, or a smaller, 
wrapped parcel in or on a container or pallet, is a "package" 
within the meaning of Rule 5 of Article IV depends on the facts 
and circumstances of each case. In particular it depends upon 
the intention of the parties as indicated by what is stated in the 
shipping documents, things said by the parties and the course of 
dealing between them. 
The shipping documents in this matter are the 
bill of lading and the waybills for each container. 
The bill of lading, in the column indicating the 
number of packages, specifically sets out that 
there are a total of four thousand two hundred and 
forty (4,240) packages. 
The waybills for each container refer to the 
container number and then that notation on each 
waybill is followed by the following notation: 
Containing 1,413 c/s beer 
or 
Cont. 1,413 c/s beer. 
Under rule 3(b) of Article III of the Rules, if a 
bill of lading is issued by the carrier it shall show 
either the number of packages or pieces or the 
quantity or weight as the case may be as furnished 
by the shipper. 
Here both the bill of lading and the waybill 
showed the number of cases of beer or packages 
accepted by CN. In addition to this evidence there 
was also the evidence of the course of dealings 
between the parties. The plaintiff had previously 
placed many such shipments with CN. It is 
common knowledge that beer is shipped in cases. 
There is no doubt in my mind that CN was fully 
aware, notwithstanding the fact that the containers 
were delivered to it in a sealed condition, that it 
had received approximately 4,000 cases of beer for 
shipment to Goose Bay. 
I see no merit in CN's argument that the 
number of containers and not the number of pack
ages shown on the bill of lading and on its internal 
waybill should determine and limit the extent of 
CN's liability to $1,500. Accordingly, I will allow 
the plaintiff's claim for damages against the 
defendants CN, the ship and the owner for thirty-
one thousand three hundred and ninety-four dol
lars and eighty cents ($31,394.80) which is the 
amount agreed upon by counsel for the plaintiff 
and CN as the correct amount of damages. 
The plaintiff asks for pre-judgment interest on 
its claim from October 29, 1980 and post-judg
ment interest at the average prime rate. Counsel 
for CN submits that in view of the long period 
taken to bring the matter on for trial there should 
be no pre-judgment interest allowed or in the 
alternative, if it is to be allowed, that it should be 
only for a limited period and at a nominal rate of 5 
or 6 percent. 
I agree with CN's submission that there was a 
delay in bringing the matter on for trial but do not 
intend to assess blame on one side or the other for 
that delay. If counsel for the plaintiff was deter
mined to have an early trial I would expect that 
two years should be an adequate period of time to 
bring the matter on. 
Accordingly, the plaintiff will be awarded pre
judgment interest at ten (10) percent for a period 
of two (2) years and post-judgment interest at the 
prime commercial rate from time to time prevail
ing from the date of judgment until payment. 
The plaintiff is given leave to move for judgment 
against the defendants CN, the ship and its owner 
for damages of thirty-one thousand three hundred 
and ninety-four dollars and eighty cents 
($31,394.80), interest and costs, pursuant to para
graph 2(b) of Rule 337 of the Federal Court Rules 
[C.R.C., c. 663]. 
As already mentioned counsel for the plaintiff 
indicated that her client had little interest in pur
suing the action against the defendant Roger 
Sirois who appeared on his own behalf at the trial. 
To the best of my recollection she presented no 
argument or submission that judgment should go 
against him personally and the master, who was as 
unfamiliar with the law as he was familiar with 
the sea, was in no position to make any representa
tions on his own behalf. 
Under the circumstances, I will make no finding 
with respect to liability, if any, on the part of the 
master but instead will give leave to any party, 
including the master, to make representations in 
that respect within a period of thirty (30) days 
following the entry of a formal judgment. If no 
representations are made within that period then 
the claim against the master will be dismissed. 
* * * 
ADDENDUM TO REASONS FOR JUDGMENT 
In the November 17, 1986 reasons for judgment 
filed in this matter I made no finding with respect 
to the liability of the defendant Roger Sirois, the 
master of the Newfoundland Coast, but provided 
that within a period of thirty (30) days following 
the entry of a formal judgment any party to the 
action would have leave to make representations. 
Within the time limited, and extended to coun
sel representing the master, representations were 
made. The last, on behalf of the master, was filed 
with the Court on April 10, 1987. 
Captain Sirois as master of the ship was the 
ultimate authority to determine how the cargo to 
be carried was stowed. Although he was pressured 
by CN Marine Inc. to stow the containers in a 
manner that both he and CN knew, or ought to 
have known, would place them unnecessarily at 
risk in the sea conditions which both he and CN 
could reasonably anticipate at that time of year, he 
elected to accommodate CN which had decided to 
utilize every inch of space available on the ship. 
The master must accept, jointly with CN, the 
responsibility for this failure to properly stow the 
containers. He had the authority to refuse to carry 
the containers in the manner in which CN had, in 
effect, directed and which unnecessarily exposed 
them to risk. He also had a duty to exercise that 
authority which he failed to do, as a result of 
which failure the containers were improperly 
stowed and swept off the ship by the force of the 
waves. 
Accordingly, in addition to the parties against 
whom leave was given to the plaintiff to enter 
judgment, leave is also given to the plaintiff to 
enter judgment against the defendant Roger Sirois 
for damages of thirty-one thousand three hundred 
and ninety-four dollars and eighty cents 
($31,394.80), interest and costs pursuant to para
graph 2(b) of Rule 337 of the Federal Court 
Rules. 
 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.