Digests

Kanematsu GMBH v. Acadia Shipbrokers Ltd.

A-113-99

Linden J.A.

21/6/00

7 pp.

Appeal from Trial Division decision granting summary judgment to respondent Kanematsu with damages to be assessed by subsequent reference--Kanematsu had been seeking declaration appellants liable to it for having induced owners of ship Lark, Bulklark Shipping Co. to breach contractual and legal obligations toward Kanematsu by discharging and delivering cargo of steel to Nicco at Bangkok, without requiring presentation and surrender of originals of bill of lading issued by Bulklark in respect of carriage of cargo from Odessa to Bangkok--Cargo of steel originally owned by Ironimpex and later sold to Kanematsu shipped from Odessa to Bangkok in 1995 aboard Lark--Original bill of lading isued by Bulklark to Ironimpex and held ultimately by Kanematsu called for cargo to be discharged and delivered to Nicco Industry Co. at Bangkok--Bill of lading providing carrier in no case responsible for loss of or damages to cargo arising prior to loading and after discharging--Appellants held charter party agreements relative to Lark such that they had time-chartered vessel for voyage from Odessa to Thailand and India--Steamship agent pursuaded shipowner to allow discharge of cargo without normal surrender of bill of lading--Acadia did so, apparently without knowledge of existence of Kanematsu at time--To expedite discharge, without production of bill of lading to shipowner, appellants obtained letters of indemnity from Ironimpex and Nicco and then issued their own letters of indemnity to shipowner--Unknown to appellants, Nicco had paid for use of barges on which steel offloaded as well as necessary government import tax--Goods thus released to Nicco--Nicco now bankrupt and Kanematsu unpaid for cargo--Pleading containing allegations of fraud, conversion and inducing breach of contract by appellants in causing release of cargo without bill of lading by providing shipowner with letters of indemnity--Appeal allowed--Facts herein do not give rise to any triable issued based on distinction between "discharge" and "delivery" of cargo and consequences that flow from that distinction as it relates to clause 1 of bill of lading--Evidence clear barges supplied by Nicco--Discharge onto barges coincident with delivery to Nicco--Nevertheless, decision cannot stand--Trial Judge granted summary judgment simply on basis of English decisions to effect shipowner who delivers without production of bill of lading does so at own peril--Trial Judge did not consider at all fact appellants not ship's owners, merely charterers--Further, not appellants who offloaded cargo but employees of shipowners--Breach of contract, if any, with respect to contract between consignors or assignees and shipowner, i.e. bill of lading, to which appellants not parties--Claim against appellants not as owners, offloading to someone who does not possess bill of lading, but as tortfeasors who converted goods or who induced shipowners to breach their contract--Hence, authorities relied on by respondents not applicable to situation--To be successful in claim appellants induced shipowners to breach their contract under bill of lading by releasing goods without obtaining bill of lading, must be proven (1) defendants knew there was contract; (2) that they induced its breach; (3) this caused damage--As for (1), real doubt about whether defendants knew of any contract between Kanematsu and shipowners--As to (2), real doubt about state of mind of appellants--Further, if inducing breach of contract ground fails, "conversion" issues must be canvassed in trial to determine whether conduct of appellants can lead to liability--Therefore, case clearly not appropriate for summary judgment as serious factual and legal issues must be resolved in trial.