Canadian Klockner Ltd. (Plaintiff)
v.
D/S A/S Flint, Willy Kubon, and Federal Com
merce and Navigation Company Limited
(Defendants)
Trial Division, Heald J.—Toronto, September 4;
Ottawa, October 9, 1973.
Maritime law—Short delivery—Demise clause in bill of
lading—Charterer relieved of liability for short delivery—
Nullity of clause under Art. III, paragraph 8 of Hague Rules.
The bill of lading for a cargo of steel shipped to plaintiff
on the Mica, which was under charter to F, contained a
demise clause, exculpating the charterer from liability for
short delivery.
Held, plaintiff was entitled to damages for short delivery
against the charterer. The exculpatory clause in the bill of
lading was null and void in virtue of Art. III, paragraph 8 of
the Hague Rules.
Blanchard Lumber Co. v. S. S. Anthony II, 259 Federal
Supplement 857, followed.
ACTION for damages.
COUNSEL:
D. L. D. Beard, Q.C. for plaintiff.
P. F. M. Jones for Federal Commerce and
Navigation Co. Ltd.
P. G. Cathcart for Flint, Willy Kubon.
SOLICITORS:
Du Vernet, Carruthers & Co., Toronto, for
plaintiff.
McMillan and Binch, Toronto, for
defendants.
HEALD J.—The plaintiff is an Ontario cor
poration with head office at Toronto. It is a
subsidiary of a large German steel manufactur
ing corporation. The parent corporation also has
subsidiaries elsewhere than in Canada, notably
in Belgium. The plaintiff's business consists of
purchasing steel in Europe and then selling it to
"end-users" or "warehousers" in the Toronto
and Montreal areas. Plaintiff has no warehouses
of its own, its practice being to have its Canadi-
an customers pick up their particular shipment
at the dock.
In 1968, the plaintiff effected a sale of steel
to Staiman Steel Ltd. of Rexdale, Ontario.
Plaintiff ordered said steel from its German
parent who in turn arranged to supply said order
through its Belgian subsidiary. Said shipment
was shipped from Antwerp, Belgium on board
the vessel S.S. Mica as is evidenced by clean
bill of lading No. 1 (Exhibit P-1) dated at Ant-
werp on September 9, 1968. Said bill of lading
was issued by the defendant Federal Commerce
and Navigation Company Limited (hereafter
Federal Commerce) on behalf of the master of
the vessel. Lloyd's registry apparently indicated
that the S.S. Mica was owned by the defendant
D/S A/S Flint (hereafter Flint) a Norwegian
corporation and was managed by the defendant
Willy Kubon (hereafter Kubon). At all relevant
times, said vessel was under charter to the
defendant Federal Commerce although no
details of the nature of the charterparty were
tendered in evidence. The shipment was con
signed to the plaintiff at Toronto. The bill of
lading says that subject shipment carried the
following marks and numbers:
T 1755
Klockner
Size
Toronto
No. 1 and up
The significance of said marks and numbers was
explained in evidence by Mr. Klaus Frieling-
haus, who was employed by the plaintiff at all
relevant times. Frielinghaus testified that when
plaintiff purchased goods for customers, they
identified the goods with their customer's refer
ence number. In this case, the customer was
Staiman Steel Ltd. of Rexdale, Ontario and Stai-
man's reference number was T 1755. Thus "T
1755 Klockner" was placed on all of the bun
dles making up the entire shipment.
The Bill of Lading went on to describe the
shipment as containing:
(a) Nine bundles of angle bars of varying dimensions;
(b) 11 Bundles of Wide Flange Beams
(c) 82 pieces of Wide Flange Beams and finally
(d) 6 Bundles I-Beams 6" 40'.
108 packages
The customer's mark, as above described,
served as a means of identifying the goods in
question—without said mark, it would not be
possible to reconcile a particular shipment with
the production of that shipment. Thus, it would
not be possible to produce a mill certificate for
an unidentified shipment. The mill certificate
becomes important because it describes in detail
the various properties of the steel in question.
For example, it details the yield point p.s.i. (the
number of pounds pressure the steel can be
subjected to before giving way); the tensile
strength (the limit to which the steel can be
subjected in pulling) and the heat no. (steel is
produced in heats thus a particular item or items
can be identified by the heat number). Accord
ingly, it is absolutely essential that any one
purchasing steel must know its tensile strength,
its yield point, etc., in order to be confident that
it has the qualities necessary for the job it is
designed to do.
Frielinghaus said that during the period in
question he was- in the habit of personally
inspecting incoming shipments before delivery
was accepted by plaintiff's customers. He said
the system of tagging customarily used in ship
ments like subject shipment was to use metal
tags approximately 5" by 2" in size on which
tag would be the order number, the name of the
consignee, the bundle numbers and sometimes
the port of destination. He said that on bundles
of steel, there were usually three tags, one at
each end and one in the centre.
The invoices from plaintiff's parent company
(Exhibit P-2) and the Exporter's Declaration—
Certificate of Value (Exhibit P-4) both confirm
that subject shipment had the marks and num
bers set out above and contained the bundles
and pieces of steel as set out above.
The vessel left Antwerp for Toronto, made no
stops in between, and docked in Toronto on
September 22, 1968. Discharge of the cargo
commenced on September 23, 1968 and was
completed on September 27, 1968.
Frielinghaus, as was his custom, attended at
the Toronto docks during the off-loading to
inspect subject shipment. He found all of the
items set out in the bill of lading except item
(d)—the 6 bundles of I-Beams 6" 40'. The
balance of the shipment was all together in one
place on the pier at the time of his visit. He says
that initially he was not alarmed that a portion
of his shipment was missing because sometimes
the stevedores would unload different parts of
the same shipment in different places on the
dock. He discussed the situation with two
employees of the Toronto Harbour Commission
who said they would call him when the missing
6 bundles were located. Some time later, one of
the Harbour Commission employees did notify
him to the effect that the 6 missing bundles had
been found. He said that he went down to the
dock where he was shown 6 bundles of steel.
He says that the only markings on these bundles
were metal tags bearing the words "4055
Duluth". He said that on the basis only of these
markings, identification was impossible.
Accordingly, he sent a telex to the plaintiff's
parent company wherein he reported the loss of
the 6 bundles of 10 pieces each of 6 x 12.5
I-Beams and stating that, instead, 5 bundles of 8
pieces each and 1 bundle of 5 pieces had been
found with a label marked "4055 Duluth". He
asked the parent company to check into the
matter to see if said bundles were in fact the 6
missing bundles from subject shipment.
Because of the fact that none of the bundles
had 10 pieces, and none of them had proper
marks and numbers, Frielinghaus refused to
accept the said bundles as being the missing
bundles. He pointed out that their customer,
Staiman, would expect and require a mill certifi
cate which he could not provide because he
could not identify the steel which had been
found as the steel described in the bill of lading
and in the mill certificate which he had received
from the parent company.
Frielinghaus did not receive any information
from Germany to confirm the possibility that
the bundles marked "4055 Duluth" found on
the dock were in fact the 6 missing bundles.
Accordingly, on November 20, 1968, he
wrote to Federal Commerce asking for a certifi
cate to the effect that plaintiff's shipment was
short-landed to the extent of the said 6 bundles
of I-Beams, said short-landed certificate being
necessary to enable him to make the necessary
claim on plaintiff's insurance company. There
after, some correspondence between Frieling-
haus on behalf of the plaintiff and Federal Com
merce ensued, culminating in Federal
Commerce's letter of August 29, 1969 to the
plaintiff in which Federal Commerce denied lia
bility, taking the position that the 6 bundles of
I-Beams found on the dock were in fact the
missing I-Beams from plaintiff's shipment, that
they were wrongly marked by the shipper in
Europe and relying on that portion of clause
nine of the bill of lading under which the ship
per warrants that all packages shall be clearly
and durably stamped or marked in letters and
numbers together with the name of port of
discharge and that said markings shall corre
spond with the markings and numbers inserted
in the bill of lading.
Under date of September 10, 1969, Frieling-
haus, for the plaintiff, replied to said letter
repeating the plaintiff's position that the bundles
found on the dock were rejected by the plaintiff
because they could not be identified as belong
ing to the plaintiff and submitting that clause 9
of the bill of lading had no application because
the origin and destination of the cargo found on
the dock had never been established.
Thus, the issue was joined between the par
ties and this action was subsequently
commenced.
The two employees of the Toronto Harbour
Commission who dealt with Frielinghaus in
respect of the missing bundles were called as
witnesses by the defendant Federal Commerce.
They were Lawrence Green, "over and short
clerk", and his supervisor, Robert Butler. The
evidence of Green and Butler conflicts with the
evidence of Frielinghaus in one material particu
lar only, that is concerning the tags attached to
the bundles found on the dock. Green and
Butler both said that the wording on the tags
was "Klockner Duluth" whereas Frielinghaus
was positive that the wording was "4055
Duluth". There was also some discrepancy
between them as to whether the tags were metal
with a stencilled imprint into the metal or a
metal tag with white cardboard facing on which
the wording was imprinted by a black stencil.
After giving careful consideration to the tes
timony of all three witnesses on this issue, I
have concluded that I should accept the evi
dence of Frielinghaus where it conflicts with the
testimony of Green and Butler. Green and
Butler had responsibility in respect of all the
steel shipments on the S.S. Mica and most of
the S.S. Mica's cargo was steel, whereas Frie-
linghaus' sole concern was the plaintiff's ship
ment as set out in Exhibit P-1, the particular
shipment designated for Staiman Steel. Addi
tionally, his recollection now of the series of
events occurring in 1968 is corroborated by
what he did in 1968. I refer to his telegram of
October 24, 1968 in which he described the
bundles found on the dock as being marked
"4055 Duluth".
In contrast to the very precise and accurate
evidence of Frielinghaus, the evidence of Green
and Butler is somewhat vague and generalized.
Green conceded that he looked at only four of
the six bundles in question so he is not able to
say what tagging was on the other two bundles.
He said that he was not concerned with whether
the bundles found had the same number of
pieces in them as the invoice called for. His
approach to the situation was exemplified by his
statement that "we needed six bundles" and we
were "interested in settling the claim". Butler
admitted that he had refreshed his memory from
documentation prepared by Green at the time
and that when he testified as to the markings on
the tags, he was doing so based on Green's
documents. He did not count the pieces in each
bundle either. He did not check the dimensions
to see if they tallied with the dimensions in
plaintiff's bill of lading. As a matter of fact he
admitted in cross-examination that there was no
proof that the steel found on the dock even
came from the S.S. Mica.
I accordingly find as a fact, on the evidence
adduced before me that the six bundles of
I-Beams 6" 40' with the marks and numbers:
"T 1755 Klockner, Size, Toronto No. 1 and up"
as described in bill of lading No. 1 (Exhibit P-1)
were not delivered in Toronto by the vessel S.S.
Mica.
I think that Frielinghaus acted quite properly
in refusing to accept six other bundles of I-irons
which had been found on the dock as a substitu
tion for his missing cargo. In the first place, the
proposed substitution bundles contained only 45
pieces of I-irons rather than 60. Secondly, the
identification marks were different. There was
no way he could identify the shipment or guar
antee to his customer that the chemical proper
ties were the same other than by having a
chemical test carried out and I do not think
there was any obligation on the plaintiff to go to
this expense in the circumstances.
I agree with plaintiff's counsel when he says
that this is a simple case of non-delivery of a
portion of a ship's cargo. The question of liabili
ty is, however, not so simple.
The plaintiff instituted this action against the
owner of the vessel, its manager and the
charterer.
The defendants Flint and Kubon (owner and
manager) pleaded, inter alia, in their statement
of defence that any claim the plaintiff may have
had against them was time-barred since "no
action was instituted by the plaintiff within the
time prescribed by the Hague Rules which, pur
suant to paragraph 3 of the terms and conditions
of the said Bill of Lading are incorporated into
the contract of carriage evidenced by the said
Bill of Lading." (See paragraph 4—statement of
defence of Flint and Kubon.)
I agree that the Hague Rules apply in this
instance and that there is a limitation period of
one year from the date of delivery of the goods
or the date when the goods should have been
delivered (see Hague Rules—Article III para
graph 6). Since discharge of the ship's cargo
was completed on September 27, 1968, it seems
to me that the one year limitation period would
run from that date. The writ in this action was
issued on June 1, 1970, well beyond the one
year limitation period. That, however, is not an
end of the matter because the plaintiff replies
that the defendant, Federal Commerce, granted
to the plaintiff various suit time extensions up
to and including June 6, 1970 and that said
extensions granted by Federal Commerce were
given on behalf of all of the defendants herein.
The defendants deny this and say that any
extensions given by Federal Commerce were
given by it for and on behalf of itself only as
one of the defendants in the action.
In support of its position that the extensions
given by Federal Commerce were also given on
behalf of the other two defendants, the plaintiff
called Mr. Jack Potter to give evidence at the
trial. Mr. Potter is Vice-President and Toronto
manager of Hayes, Stuart & Co., Ltd., Marine
Survey and Average agents. This company was
engaged as plaintiff's agents to handle subject
cargo loss claim. Consequently, Potter entered
into correspondence with Federal Commerce
concerning plaintiff's claim. On August 20,
1969, Potter asked Federal Commerce by a
letter addressed to it in Montreal for an exten
sion of suit time for three months because the
negotiations between them were still continuing.
By letter dated September 15, 1969, and written
to Hayes, Stuart & Co., Ltd., Federal Com
merce granted a suit time extension to Decem-
ber 27, 1969. A copy of this letter was sent by
Federal Commerce to the defendant Kubon in
Norway. Since negotiations were still contin-
uing, Hayes, Stuart & Co., Ltd. by letter dated
December 11, 1969 to Federal Commerce asked
for a further suit time extension until March 27,
1970. By letter dated December 16, 1969 and
written to Hayes, Stuart & Co., Ltd., Federal
Commerce granted a further suit time extension
to March 27, 1970 (Exhibit P-27).
Exhibit P-27 has the following notation in the
bottom left hand corner:
C. C. Willy Kubon
Engen 32, Bergen, Norway
P.S. Kindly authorize similar extension on owners behalf
Letter negotiations continued between Federal
Commerce and Hayes, Stuart & Co., Ltd. By
letter dated March 4, 1970, because of the con
tinuing negotiations, Hayes, Stuart & Co., Ltd.
asked for still another extension to June 6,
1970. Federal Commerce, by letter to Hayes,
Stuart & Co., Ltd. dated March 16, 1970 grant
ed said extension to June 6, 1970 (Exhibit
P-30). Exhibit P-30 was signed by Federal Com
merce and no copies of said letter were sent to
anyone else.' Plaintiff then issued the writ on
June 1, 1970, within the last suit time extension
to June 6, 1970. On these facts, the plaintiff
asks me to find that the various suit time exten
sions granted by Federal Commerce were made
by Federal Commerce not only for itself but
also on behalf of the other two defendants
herein. Mr. Potter in his evidence said that he
was dealing at all times with Federal Commerce
and assumed that they had authority on behalf
of the owners.
The plaintiff is in reality arguing an agency by
estoppel which would arise if the defendants
Flint and Kubon had so acted as to lead the
plaintiff to believe that they had authorized
Federal Commerce to act on their behalf in the
matter of granting the suit time extensions. In
such a case the onus would be on the plaintiff to
prove either real or ostensible authority. Fur-
thermore, no representation made solely by the
agent as to the extent of his authority can
amount to a holding out by the principal (see
Halsbury's Laws of England, 4th ed. p. 434,
paragraph 72).
Thus, it would be necessary to show that the
defendants Flint and Kubon, by some affirma
tive conduct or representations, had given the
plaintiff the impression that Federal Commerce
had authority to grant suit time extensions on
their behalf.
On the facts of this case, the plaintiff clearly
fails in this submission. Potter never, at any
time, in any of his correspondence with Federal
Commerce, requested suit time extensions from
Flint and Kubon. When Federal Commerce did
grant the extensions, it is clear from the corre
spondence that it did so acting only on behalf of
itself as one of the defendants in the action. A
copy of two of the suit time extension letters
was sent to the defendant Kubon in Norway but
I attach little significance to this. The intent
here could have been to keep Kubon informed.
The letter of December 16, 1969 (Exhibit P-27)
contained a P.S.: "Kindly authorize similar
extension on owners behalf". Potter said he
interpreted this to mean that Federal Commerce
had authority on behalf of Kubon to grant the
extension. Counsel for the defendants Flint and
Kubon, on the other hand, submits that the P.S.
meant that Hayes, Stuart & Co., Ltd., were
being told to obtain authority from the owners
for the suit time extension. This submission is
made on the basis that Hayes, Stuart & Co.,
Ltd. knew who the owners were, knew that
there was a demise clause in the bill of lading
which could possibly relieve the charterers from
liability and that, in these circumstances, Hayes,
Stuart & Co., Ltd. did not act reasonably in
assuming the authority of Federal Commerce
without looking into the matter and taking steps
to protect the plaintiff's interest. I agree with
this submission of counsel for the defendants
Flint and Kubon. It was held in Colonial Bank
v. Cady (1890) 15 A.C. 267 that only where the
circumstances show unequivocally that a person
acting on the basis of the apparent authority of
an agent was reasonably justified in assuming
that such an agent could deal with the title to
shares, could the scope of the agent's apparent
authority cover the third party and estop the
real owner.
In the case at bar, I do not think Hayes,
Stuart & Co., Ltd. acted reasonably and took
reasonable steps to protect the plaintiff's inter
ests as against these parties in so far as suit time
extensions were concerned.
I therefore find that the suit time extensions
granted by Federal Commerce are binding only
on the said defendant Federal Commerce and
that, accordingly, plaintiff's cause of action
against the other two defendants, Flint and
Kubon, is time barred.
Plaintiff's action against the defendants Flint
and Kubon is accordingly dismissed with costs.
This leaves the question as to the liability of
Federal Commerce.
This defendant's first ground of defence is by
reference to clause 9 of the bill of lading and in
particular paragraphs 2 and 3 thereof wherein
the shipper warranted that the marking on the
articles shall correspond with the markings and
numbers on the bill of lading. This defence has
been disposed of by my finding that the I-beams
found on the dock had not been established as
being the missing portion of plaintiff's cargo.
Even if it were assumed that the I-irons found
on the dock were the plaintiff's missing cargo,
the bill of lading is prima facie evidence as to
the marks and numbers (see Hague Rules,
Article III, paragraph 4) on the cargo which
prima facie presumption has not been rebutted
by any contrary evidence in this case.
This defendant's second, and probably main
line of defence is the presence in the bill of
lading of clause 2 thereof which reads as
follows:
2. PARTIES TO THE CONTRACT.
The Contract evidenced by this Bill of Lading is between
the Merchant and the Owner of the vessel named herein (or
substitute) and it is therefore agreed that said Shipowner
alone shall be liable for any damage or loss due to any
breach or non-performance of any obligation arising out of
the contract of carriage, whether or not relating to the
vessel's seaworthiness. If, despite the foregoing, it is
adjudged that any other is the Carrier and/or bailee of the
goods shipped hereunder, all limitations of, and exonera-
tions from, liability provided for by law or by this Bill of
Lading shall be available to such other.
It is further understood and agreed that as the Company
or Agents who has executed the Bill of Lading for and on
behalf of the Master is not a principal in the transaction,
said Company or Agents shall not be under any liability
arising out of the contract of carriage, nor as Carrier nor
bailee of the goods.
This clause was referred to by counsel for the
plaintiff as a form of "demise clause". Counsel
for the defendant Federal Commerce described
said clause 2 as an "identity of parties clause".
It seems to me, however, that clause 2 goes
much further than merely dealing with the iden
tity of the parties.
By Article I of the Hague Rules, "carrier" is
defined to include a charterer who enters into a
contract of carriage with a shipper. On the facts
of this case, the defendant Federal Commerce
would certainly be included in that definition.
The bill of lading is clearly between said defend
ant and the shipper. By Article III, paragraph 2
of the Hague Rules, the carrier is under an
obligation to properly and carefully load,
handle, stow, carry, keep, care for and dis
charge the goods carried. By clause 3 of the bill
of lading, said bill of lading is made subject to
the Hague Rules. Thus, the position is, that but
for the existence of clause 2, the defendant
Federal Commerce would be liable for non-
delivery of a portion of plaintiff's cargo. As I
read clause 2, it is clearly an exculpatory clause,
which, if given effect to, would result, in this
case, in relieving the said defendant from liabili
ty in a case where it would otherwise be liable.
In my opinion, clause 2 of the bill of lading here
is clearly the kind of clause contemplated by
Article III, paragraph 8 of the Hague Rules
which reads as follows:
8. Any clause, covenant, or agreement in a contract of
carriage relieving the carrier or the ship from liability for
loss or damage to or in connection with goods arising from
negligence, fault or failure in the duties and obligations
provided in this Article or lessening such liability otherwise
than as provided in these Rules, shall be null and void and of
no effect.
A benefit of insurance or similar clause shall be deemed
to be a clause relieving the carrier from liability.
That s to say, clause 2 is a clause relieving
the carrier from liability for loss of goods aris
ing from a breach of duty as provided in Article
III of the Hague Rules and by said paragraph 8
of the said Rules, I have the view that clause 2
of the bill of lading is rendered null and void
and of no effect.
I was not referred by counsel to any Canadian
cases where the so-called demise clause was
struck down under Article III, paragraph 8 of
the Hague Rules but I was referred to a decision
of the United States District Court, the case of
Blanchard Lumber Company v. S. S. Anthony II
259 F. Supp. 857, wherein a demise clause,
similar in all material respects to clause 2 in this
bill of lading, was declared null and void as
being contrary to Section 1 of the Harter Act
which said Section 1 is similar to said Article
III, paragraph 8 of the Hague Rules.
It is also interesting to note that in Tetley's
Marine Cargo Claims at pages 52 to 54 thereof,
the author gives seven reasons why, in his view,
demise clauses similar to the one being here
considered are "misleading, anomalous and
invalid". Many of the comments therein apply
to the facts of this case'. I accordingly adopt the
reasoning of the author in the above noted ref
erence as my own.
For the above reasons, I have concluded that
clause 2 of subject bill of lading is invalid, thus
leaving the defendant Federal Commerce liable
for non-delivery of plaintiff's 6 bundles of
I-beams. At the trial, plaintiff proved that its
resulting loss amounted to $1,675.18 and is
accordingly entitled to judgment for that
amount together with its costs of the action
against the defendant Federal Commerce.
On the question of costs, plaintiff's counsel
has asked me to make what is commonly
referred to as a "Bullock Order". It is proper to
make such an order where, in the opinion of the
Court, it was reasonable, in all the circum
stances, for the plaintiff to sue all the parties
which it did sue, notwithstanding that, under the
judgment, he was successful against one
defendant and unsuccessful against the other
two defendants 2 .
After consideration of the circumstances in
this case, I have concluded that I should make
such an order. At the time of the issuance of the
writ, plaintiff was faced with the fact that the
bill of lading was issued by the defendant Fed
eral Commerce. And yet, said bill of lading
contained a demise clause, which, if given effect
to, might relieve Federal Commerce of all liabil
ity. Then, by reference to Lloyd's registry,
plaintiff knew that the other two defendants had
proprietary interests in the vessel in question.
There was nothing in the evidence before me to
indicate that plaintiff was ever apprised of the
contents of the charterparty nor of the relation
ship between the defendant Federal Commerce
and the other two defendants. Indeed, there was
no evidence of this relationship adduced at trial.
I think the plaintiff had every right to sue all
three defendants. There is the additional cir
cumstance that the counsel representing the
defendant Federal Commerce was a member of
the same firm as counsel representing the other
two defendants. Were I not to accede to plain
tiff's request for a Bullock Order, the net result
would be that the plaintiff would be deprived of
most, if not all, of his party and party costs and
in view of my belief that he acted reasonably in
suing all three parties, I think this result would
be unfair to the plaintiff.
Lest it be suggested that plaintiff acted unrea
sonably in proceeding to trial against the
defendants Flint and Kubon once they had filed
a defence on the basis that any claim against
them was time-barred, I should say that while I
felt that the plaintiff took too much for granted
in assuming that the defendant Federal Com
merce was acting for the other two defendants
in granting the suit time extensions, I believe
that this position was one which the plaintiff
was entitled to take at trial and to try to prove
by evidence at trial and that plaintiff should not
be penalized in costs because of its failure to
establish this position at trial.
In the result, I direct that the plaintiff be
allowed to add to its costs against the defendant
Federal Commerce, any and all costs which are
taxable against it by the defendants Flint and
Kubon. I further direct that the plaintiff be
allowed to include in its taxable disbursements,
the sum of $260.00, being the transportation
expenses of the witness Klaus Frielinghaus, a
resident of Essen Germany who was a most
necessary witness in proving the plaintiff's case.
Frielinghaus was able to come to Canada for the
trial on a charter flight, thus, his transportation
cost was considerably less than if he had paid a
normal airline fare. This disbursement is includ
ed under Tariff A, Rule 3(1) of the Federal
Court Rules as being reasonable and proper in
the circumstances.
' In this case for example, there was no evidence as to the
contents of the charterparty—whether it was a demise chart-
erparty or not.
2 English Supreme Court Practice 1970, vol. 1, p. 835. See
also: Holmested and Gale, Ontario Judicature Act and Rules
of Practice, vol. 1, pp. 342 and 343.
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.