Judgments

Decision Information

Decision Content

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.
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