T-2986-71
Sumitomo Shoji Canada Ltd. (Plaintiff)
v.
The Ship Juzan Maru and Shinwa Kauin Kaisha,
Ltd. and Johnston Terminals Limited (Defend-
ants)
Trial Division, Collier J.—Vancouver, August
27-30; September 11, 1974.
Jurisdiction—Shipment of pipe from Japan to Canada—
Discharge from ship to scow for transfer to defendant ware-
houseman—Action against ship discontinued—No jurisdic
tion over claim against defendant warehouseman—Federal
Court Act, ss. 2, 22—Canada Shipping Act, R.S.C. 1970, c.
S-9, s. 2—British North America Act, 1867, ss. 91(10),(29),
92(10)(aXb) —Canada Evidence Act, R.S.C. 1970, c. E-10, s.
30—Evidence Act, R.S.B.C. 1960, c. 134, s. 43A (en. 1968,
c. 16, s. S).
The plaintiff claimed for steel pipes or tubing shipped
from Japan on board the defendant ship, owned by the
defendant Shinwa Kauin Kaisha, Ltd., consigned to the
plaintiff company in British Columbia and taken from the
vessel there by the defendant Johnston Terminals Limited.
The pipe was discharged from the vessel to a scow brought
alongside the ship at the instance of the defendant Johnston
Terminals Limited, towed to the Johnston premises, tallied
and inspected, and ultimately sent to the plaintiff's custom
ers; for these services the defendant Johnston was paid by
the plaintiff. The action as against the defendant ship and its
owner for breach of duty as bailee for reward, in that the
pieces of tubing were delivered to the plaintiff "bent,
scratched and rusted", was discontinued. The action against
the defendant Johnston was continued on the ground that
4,775 pieces of pipe were stored in good condition aboard
the carrier, that the pipe came into the possession of the
defendant as a warehouseman or bailee and that 238 pieces
were subsequently found to be "bent, scratched and rust
ed". The defendant Johnston contended that jurisdiction lay
not in the Court but in the civil courts of British Columbia
and that the plaintiff had not, on the facts, established
responsibility against this defendant.
Held, the action should be dismissed for lack of jurisdic
tion qnd on the merits. The allegation that the pipe may have
been damaged during carriage on the scow or during dis
charge from the scow for removal to storage was not enough
to bring into play jurisdiction under the heads "navigation
and shipping" in section 22(1) of the Federal Court Act,
"carriage of goods in a ship" in section 22(2)(h), or a claim
arising out of an agreement relating to the carriage of goods
in a ship in section 22(2)(i); if the defendant was engaged in
shipping, it was provincial shipping only. The prime activi
ties of the defendant were those of a bailee-warehouseman,
not those of a company engaged in shipping. On the evi
dence of liability, the plaintiff had failed to show that the
pipe was received by the defendant Johnston without the
bending or distortion ultimately disclosed in 238 pieces. The
defendant had satisfied the onus of proving its care of the
pipe which a prudent owner would have exercised in respect
of his own pipe.
Robert Simpson Montreal Limited v. Hamburg-Amerika
Linie Norddeutscher [1973] F.C. 1356; The Stevedores'
case [1955] S.C.R. 529; Agence Maritime Inc. v.
Canada Labour Relations Board (1970) 12 D.L.R. (3d)
722; City of Montreal v. Montreal Harbour Commis
sioners [1926] A.C. 299; Underwater Gas Developers
Ltd. v. Ontario Labour Relations Board (1960) 24
D.L.R. (2d) 673; Lawson v. Interior Tree Fruit & Vege
table Committee [1931] S.C.R. 357; Sparrows Point
[1951] S.C.R. 396 and Anglophoto Limited v. The
Ikaros [1973] F.C. 483 (reversed, [1974] 1 F.C. 327),
considered.
ACTION.
COUNSEL:
S. H. Lipetz for plaintiff.
D. Rae for defendant Johnston Terminals
Limited.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reyn-
olds, Vancouver, for plaintiff.
Farris, Vaughan, Wills & Murphy, Vancou-
ver, for defendant Johnston Terminals
Limited.
The following are the reasons for judgment
delivered in English by
COLLIER J.: The plaintiff's claim is for
damage to steel pipe or tubing. It is alleged to
have been shipped from Osaka, Japan on board
the vessel Juzan Maru, consigned to the plain
tiff, a company carrying on business in British
Columbia. The damage, or a substantial portion
of it was discovered when the pipe was inspect
ed at the premises of the defendant Johnston
Terminals Ltd., (hereafter Johnston) in the
False Creek area at Vancouver, B.C.
The amended statement of claim refers to
4,775 pieces of tubing shipped pursuant to two
bills of lading numbered OV-2 and OV-4. It
alleges the bills of lading were issued 'by or on
behalf of Shinwa Kauin Kaisha, Ltd., the
owners of the vessel. The pleading asserts the
4,775 pieces were delivered by the carrier,
"bent, scratched and rusted".
As against the defendant Johnston, it is
alleged it received the 4,775 pieces from the
vessel and in breach of its duty as a bailee for
reward did not deliver to the plaintiff the 4,775
pieces in good order and condition but "bent,
scratched and rusted".
By amendment at trial the plaintiff's mone
tary claim was presented at $4,025.04. The
amending particulars alleged that out of the
shipment covered by bill of lading OV-2 there
were 105 pieces of pipe bent, and out of the
shipment covered by OV-4 there were 133
pieces bent. The action as against the vessel and
its owners was discontinued on January 24,
1974. In the amendment referred to the sum of
$1,400 is deducted from the amount of
$4,025.04 leaving a liability claimed against
Johnston of $2,625.04. The deduction is
described as "less contribution towards damage
by vessel owners".
The case against Johnston, as presented at
trial, is essentially that the 4,775 pieces of pipe
were shipped in good order and condition on
board the carrier, that the pipe came into the
possession of Johnston, as a warehouseman or
bailee, and that 238 pieces were subsequently
found to be bent.
Johnston contends there is no jurisdiction in
this Court in respect of the claim made against
it; the proper forum it is submitted, is in the
civil courts in the Province of British Columbia.
In any event, says Johnston, the plaintiff, on the
facts, has not established against it responsibili
ty for the damage. At the conclusion of evi
dence and argument I said I proposed to dismiss
the plaintiff's action but would give my reasons
in writing. I now dismiss the plaintiff's action on
both grounds put forward by Johnston.
I turn first to the question of jurisdiction. The
plaintiff is a Canadian company, and a subsidi
ary of a parent company in Japan. The plaintiff
imports from the parent company in Japan steel
products including tubing or pipe primarily for
resale in the Alberta oil industry. Actually, the
pipe is manufactured by another subsidiary
company in Japan. The pipe is usually carried
by vessel and delivered to Vancouver. It is first
sent from the Japanese manufacturing subsidi
ary to the port of loading, in this case, Osaka.
By a long standing arrangement between the
plaintiff and Johnston, shipments of pipe are
discharged from the vessel to a scow brought
alongside the ship. The scow is arranged for by
Johnston. The pipe is loaded onto the scow over
the side of the vessel by use of ship's tackle.
The discharging from the vessel is done by
persons other than the plaintiff and Johnston.
Neither Johnston nor the plaintiff have any con
trol over the discharge of the pipe onto the
scow. Neither the plaintiff nor Johnston make
any inspection of the pipe before it is dis
charged from the vessel, or at the time it is
loaded aboard the scow. Further, by this long
standing arrangement a tally of the pieces of
pipe and an inspection for damage to it is done
by Johnston, at the request of and on behalf of
the plaintiff, at the premises at False Creek.
Johnston arranges for the scow to be brought to
those premises. In this particular case the scow
was towed by McKenzie Barge & Derrick Co.
Ltd., (who were its owners) by tug from Centen
nial Pier in the inner harbour of Vancouver
under the Lions Gate Bridge and around to
False Creek. The scow was then tied up at
Granville Dolphins. From there it was towed by
McKenzie Barge & Derrick Co. Ltd., to the
Johnston premises immediately west of the
Cambie Bridge in False Creek, and berthed at
Johnston's dock.
The pipe was then unloaded from the scow.
Any pieces which were obviously bent, that is
by visual appearance and not discovered by
virtue of a testing method, were eventually set
aside. The remainder of the pipe was rolled on
dunnage in pipe racks at the Johnston premises.
The distances from the dock to the pipe racks
varied. The pipe was transported to them on
tractor-drawn dollies. Estimates of the distances
travelled were given in hundreds of yards. Any
pipe then discovered to be bent or distorted was
noted and segregated, and separately piled with
the obviously bent pipe (earlier described). The
so-called good pipe and the bent pipe were then
put in storage in Johnston's warehouse at the
same False Creek premises. From there the
satisfactory tubing was eventually shipped, by
Johnston, to various customers of the plaintiff,
pursuant to the plaintiff's instructions. These
shipments were by rail or truck or other trans
port. Some portion of a particular cargo of pipe
from Japan might remain in Johnston's ware
house for periods exceeding a year.
For all these services, that is, the provision of
a scow alongside the vessel, the removal of the
pipe to Johnston's premises, its tallying and
inspection there, its storage, and its ultimate
shipment to the customers of the plaintiff, John-
ston charged the plaintiff, and was paid. In
Johnston's charges, there was included the tariff
amounts for the tug and tow service provided
by McKenzie Barge & Derrick Co. Ltd. That
company had invoiced Johnston and been paid
by it.
The plaintiff submits that in the circum
stances recited, Johnston was the operator of a
ship, as that word is defined in section 2 of the
Federal Court Act, R.S.C. 1970, c. 10 (2nd
Supp.). Reference is also made to the definitions
of "ship" and "vessel" in the Canada Shipping
Act R.S.C. 1970, c. S-9. It is said that Johnston,
by engaging a barge and by transporting the pipe
from alongside the Juzan Maru through the
waters of Vancouver harbour to False Creek,
was engaged in navigation and shipping, or in
the operation of a ship; it is contended that
jurisdiction against Johnston, in those circum
stances, can be found under specific heads (h)
and (i) of subsection 22(2)' of the Federal Court
Act, if not under the general jurisdiction given
by subsection 22(1). The plaintiff asserts it is
open to this Court to find on the evidence that
' (h) any claim for loss of or damage to goods carried in or
on a ship including, without restricting the generality of the
foregoing, loss of or damage to passengers' baggage or
personal effects;
(i) any claim arising out of any agreement relating to the
carriage of goods in or on a ship or to the use or hire of a
ship whether by charter party or otherwise;
the pipe may have been damaged while l,eing
carried aboard the scow in which case para
graphs (h) and (i) can be invoked. If the damage,
however, occurred during discharge from the
scow and while the pipe was being moved from
the scow into storage then, the plaintiff further
argues, this Court has jurisdiction by virtue of
the decision in The Robert Simpson Montreal
Limited v. Hamburg—Amerika Linie Nord-
deutscher [1973] F.C. 1356. Reliance is placed
on the judgment of Jackett C.J. at page 1363
where he said:
In my opinion, the operation of removing goods from a
ship after completion of the ocean voyage and delivering
them to the consignee, either immediately or after holding
them during an incidental delay, whether carried out by the
carrier or by someone else under an arrangement with the
carrier, is "part and parcel of the activities essential to the
carriage of goods by sea" and "the performance of such acts
as are essential parts of `transportation by ship' fall within
the words `Navigation and Shipping' in section 91(10)." It
follows that the laws upon which the defendants as carriers
base themselves in their claim to be indemnified in respect
of a breach by the Third Parties of their contractual duty to
care for and deliver goods in good order to consignees are
laws that it would be "competent for the Parliament of
Canada to enact, modify or amend" and it also follows that
the subject matter of the Third Party proceedings is one
"legislation in regard to which is within the legislative
competence of the Dominion" because the subject matter
falls within the class "Navigation and Shipping".
I am unable to accede to the plaintiff's con
tention that jurisdiction can be found in para
graphs (h) or (i). The mere fact that the plaintiff
and Johnston, by one of the terms of their
contract in respect of the handling and storing
of pipe, agreed the tubing should be transported
by scow (a "ship" or "vessel") rather than by
truck or rail or some other means, of transporta
tion, does not necessarily or automatically bring
into play the two heads of jurisdiction relied on.
In my view, one must look at the essence of the
arrangement between the plaintiff and Johnston.
It was, as I see it, the delivery to the plaintiff
(through Johnston) of the pipe, after discharge
from the vessel (whether to a dock or to a
scow), and the taking of the pipe to Johnston's
premises for tallying, inspection, storage, and
eventual shipment to ultimate consumers. A
mere allegation in the pleadings or in argument
that damage might have occurred to the pipe
while it was being carried on a scow (or vessel)
or while being unloaded from it does not, to my
mind, give this Court jurisdiction. Nor if it is
proved that the damage happened in fact at
those particular times, can jurisdiction be
automatically invoked. Any damage allegedly
caused by Johnston arose primarily from its
contractual and legal obligations as bailee and
warehouseman, and not from its fortuitous and
incidental activities as the hirer of a tug and
tow. If Johnston had, in carrying out its agree
ment with the plaintiff, transported the goods by
truck from Centennial Pier to False Creek, there
seems little doubt this Court would not have had
jurisdiction over Johnston to entertain this claim
for damage.
In my view, The Robert Simpson case is dis
tinguishable. In that case it was held jurisdiction
might be exercised if the removal of goods from
the vessel and delivery to the consignee was
carried out by the carrier itself, or by someone
else (such as the stevedores) under an arrange
ment with the carrier. That is not the situation
here. There was no arrangement of any kind
between Johnston and the vessel owners or its
agents, in respect of the discharge and delivery
of the pipe to the plaintiff.
I am also of the opinion that Johnston's
activities in the circumstances of this case
cannot be said to fall within the class "Naviga-
tion and Shipping". 2 I am in general agreement
with the submission made on behalf of Johnston
that if it was, on the facts here, engaged in
shipping it was intra-provincial shipping only,
and not subject to any laws that it might be
competent for the Parliament of Canada to
enact in respect of navigation and shipping.
To my mind the business operations of John-
ston in this case cannot be said to be "intimately
connected" with the carriage of goods by sea or
the discharge of those goods from carriers. I
refer particularly to the judgment of Kerwin
C.J. in The Stevedores' case [1955] S.C.R. 529
at 534-537. Nor are Johnston's activities "so
closely connected" with the carriage of goods
by sea (and their discharge) that they must be
held to be within the meaning of the term "navi-
gation and shipping". (See the judgment of Tas-
chereau J. at page 543).
In Agence Maritime Inc. v. Canada Labour
Relations Board (1970) 12 D.L.R. (3d) 722, the
Supreme Court of Canada held in respect of the
application of the Industrial Relations and Dis
putes Investigations Act that the jurisdiction of
Parliament did not extend to maritime shipping
undertakings whose operations were carried on
entirely within the bounds of a single province.
It is true that the Supreme Court, in that case,
expressly referred to subsection 91(29) and sub
section 92(10)(a) and (b) of the British North
America Act. It was also pointed out that excep
tions, from what otherwise might be the legisla
tive jurisdiction of a province, are to be made,
particularly in those areas falling within the
realm of shipping. To my mind however, the
Supreme Court decision has, by analogy,
application here. The contractual undertaking
between the plaintiff and Johnston, in this case,
2 British North America Act, 1867, head 91(10).
if it involved shipping operations at all, was an
infra-provincial one.
Finally, when, as submitted on behalf of
Johnston, one looks at the essence of the
arrangement or contract between the plaintiff
and Johnston, and the particular facts of this
case, the maritime or shipping aspects of the
business arrangement between the parties were
miniscule and incidental. The dominant activity
of Johnston was the reception and storage of
the plaintiff's property. Its prime activities were
those of a bailee-warehouseman, not those of a
company engaged in shipping, giving that
expression its widest meaning.' The test of
dominant features and objects was one applied
by the Ontario Court of Appeal in Underwater
Gas Developers Ltd. v. Ontario Labor Relations
Board (1960) 24 D.L.R. (2d) 673. I quote from
the reasons of Aylesworth J.A. (rendering the
judgment of the Court) at pages 682 to 684.
My conclusion is that the appeal fails. I do not think that
even giving the phrase "navigation and shipping" a very
wide application as I think I must, the operations of the
appellant Company fall within that heading as contained in
s. 91, head 10 of the B.N.A. Act. The operations of the
appellant Company are not only purely local in nature but
they cannot fairly or sensibly be construed as operations of
navigation and shipping; there is some "navigation" and
some "shipping" in those operations between the shore and
the drilling sites but those activities are strictly incidental
and subordinate to a totally different activity and undertak
ing, namely the establishment and servicing of gas well sites;
the "dominant" features and objects of the undertaking are
features and objects wholly within provincial jurisdiction. It
is, in my view, completely unrealistic to hold that such an
undertaking as that of appellant is within the Dominion
jurisdiction and so to hold, I think, requires an unwarranted
and tortured extension of the meaning of the phrase in head
10, s. 91 from which the Dominion jurisdiction stems. If the
operations of the appellant Company were held to embrace
navigation and shipping so as to confer jurisdiction upon the
Dominion then it seems clear to me that the existence of one
small vessel operated by the appellant Company merely for
the purpose of carrying employees from the shore to the
well site and carrying food, clothing and bedding to those
employees from the shore to the well site, as incidental to
the carrying on of the Company's undertaking, also would
3 See City of Montreal v. Montreal Harbor Commissioners
[1926] A.C. 299.
suffice to confer Dominion jurisdiction. Doubtless many
other examples could be given as illustrative of the extent to
which the argument could be carried. Such an interpretation
would, I think, achieve precisely the opposite result to that
which the B.N.A. Act is devoted, namely an orderly division
of powers between the Dominion and the Provinces con
sistent with provincial autonomy in local affairs. To me the
reasoning of Duff J. (as he then was) relative to the jurisdic
tional heading "The Regulation of Trade and Commerce"
sec. 91 (2)) is directly applicable to "Navigation and Ship
ping". I quote from his judgment in Lawson v. Interior Tree
Fruit & Vegetable Committee, [1931], 2 D.L.R. 193 at p.
200, S.C.R. 357 at p. 366:
The scope which might be ascribed to s. 91(2) (if the
natural meaning of the words, divorced from their con
text, were alone to be considered), has necessarily been
limited, in order to preserve from serious curtailment, if
not from virtual extinction, the degree of autonomy
which, as appears from the scheme of the Act as a whole,
the Provinces were intended to possess.
For these reasons I am in agreement with the conclusion
reached by the learned trial Judge but I desire to refer
specifically to one of the reasons for that conclusion stated
by him as follows [p. 3501:
Transporting goods or persons over water of a purely
local or a limited character within a Province, in my
opinion, would not be classed as "navigation and
shipping" 4
I therefore hold the plaintiff's claim against
Johnston cannot be adjudicated in this Court.
Counsel for the plaintiff referred to the Spar
rows Point [1951] S.C.R. 396, and the remarks
of Kellock J. at the following pages:
at 402:
The question was raised during the argument as to the
jurisdiction of the Admiralty Court to deal with the claim of
the Water District against the Harbours Board. It is clear, I
think, that the court has no jurisdiction beyond that con
ferred by the statute; ...
at 402-403:
In my opinion, the statute, which prima facie confers
jurisdiction upon the Admiralty Court in a case of this kind,
should be construed so as to affirm the jurisdiction, at least
° In my view, the analysis by Aylesworth J.A., in his
judgment, of the Stevedores' case is most instructive.
in a case where the ship is a party. There is no authority to
the contrary to which we have been referred or which I have
been able to find, and every consideration of convenience
requires a construction in favour of the existence of such a
jurisdiction.
at 4u4:
On the other hand, all claims arising out of the damage
occasioned by the ship should be disposed of in one action
so as to avoid the scandal of possible different results if
more than one action were tried separately. I therefore think
that the statute is to be construed as clothing the Exchequer
Court on its Admiralty side with the necessary jurisdiction.
There is no doubt here, that in the plaintiff's
action as originally constituted, there was juris
diction in this Court in respect of the claim
advanced against the Juzan Maru and her
owners. That fact does not, to my mind, permit
jurisdiction to be taken over Johnston. While
duplication of proceedings is unfortunate and
undesirable, it may be a fact of life in a federal
system, such as we have in Canada, with a
division of legislative powers. 5
Duplication of proceedings may be a scandal
if one looks at the circumstances only from the
point of view of the plaintiff who has suffered
damage and who desires economic, monetary,
or some other form of relief against two or more
persons. I think, however, the position of a
defendant such as Johnston, must also be con
sidered. Johnston has carried on business, under
our federal system, in British Columbia for
many years. I think that is a fair inference to
draw from the limited evidence at trial. The
province in which it carries on a great deal of its
business has or might have certain laws affect
ing the operation of its busines, and has its own
courts for the adjudication of disputes arising
out of the operation of that body of law. While
Johnston is a tax-paying citizen of Canada, it is
also a tax-paying citizen of the province where
it chooses to carry on business, and it may well
be unjust to stretch unrealistically the facts of a
case such as this, to bring a subject such as
5 I attempted to distinguish the Sparrows Point case in
Anglophoto Limited v. The Ikaros [1973] F.C. 483. My
judgment was reversed on appeal ([1974] 1 F.C. 327) on the
grounds there were, at that stage of the action, insufficient
facts to decide the question of jurisdiction. I shall not repeat
here my discussion there of the Sparrows Point case.
Johnston within the jurisdiction of this Court. It
seems to me a defendant is entitled, even if it
means the scandal of duplication of proceed
ings, to have his rights determined by the Courts
of the province in which he carries on business
and by which laws the particular matters in suit
are generally regulated, rather than be subjected
to the adjudication of another Court, constituted
and given certain jurisdiction by another legisla
tive authority, where that other Court, by virtue
of other facts, has jurisdiction over some other
person who was in some way involved in the
general matter in dispute.
I turn now to the other grounds (assuming
jurisdiction) on which the plaintiff's action must
be dismissed. The plaintiff contends the Court
ought to find that the pipe in question was
received by Johnston as bailee, in good order
and condition. It was after the pipe came into
Johnston's possession, it is submitted, that the
238 pieces (or the majority of them) were bent
or distorted. The plaintiff says Johnston was a
bailee for reward; when goods or chattels in
good order and condition are entrusted to a
bailee and are subsequently lost, damaged or
destroyed, the onus of proof then falls on the
bailee to show that the loss or damage did not
happen in consequence of his neglect to use
such care as a prudent and careful man would
use in respect of his own property. Counsel for
the defendant agrees with this general statement
of the law. It is common ground between coun
sel, that if the bailee succeeds in meeting the
onus so described, he is not bound to show how
the damage or loss occurred.
The defendant's first point is that the plaintiff
has not shown, on a balance of probabilities,
that the 238 pieces of pipe were in fact shipped
aboard the Juzan Maru. In my view, there is
sufficient admissible and relevant evidence to
warrant the drawing of an inference that the
pipe in question was in fact shipped aboard the
vessel.
The plaintiff asserts and the defendant dis
putes that the evidence shows that the pipe was
received by Johnston in good order and condi
tion. The plaintiff relies primarily on the bills of
lading which indicate the pipe was received by
the shipper, and no damage noted. The bills of
lading may be evidence against the shipper but
they cannot, in my view, be evidence against
Johnston. Johnston was not a party to them.
Johnston had nothing to do with the shipping
arrangements in Japan, any pre-shipping inspec
tions, or with the loading or stowing on the
carrier. The plaintiff also relies on the evidence
of certain witnesses who, from time to time,
saw the pipe being discharged at Centennial Pier
from the Juzan Maru. Those witnesses saw, but
only at intermittent times and by cursory obser
vation, pipe being loaded aboard the scow
arranged for by Johnston. Tally slips, prepared
by persons engaged by the ships agents, were
admitted by me in evidence pursuant to section
43A [en. S.B.C. 1968, c. 16, s. 5] of the British
Columbia Evidence Act and section 30 of the
Canada Evidence Act, [R.S.C. 1970, c. E-10] as
records made in the usual course of business.
The tally slips did not disclose any notations of
damage in respect of pipe alleged to have been
shipped under bill of lading OV-2 or OV-4. I do
not attach any significant weight to these tally
slips. They cannot be related, on the basis of
any evidence admissible as against Johnston, to
the particular bills of lading. Nor can any
reasonable inference be drawn that the 238
pieces of pipe were in fact included in the tally
slips referred to. More important, however, is
the clear evidence in this case that bends or
distortions in pipe of the type in question in this
case cannot be discerned, except in the case of
very obvious bending or distortion, without the
assistance of some mechanical means of inspec
tion. According to the evidence before me the
usual and acceptable method of determining
whether pipe is distorted or bent is to roll each
piece on dunnage in a pipe rack.
In this case the plaintiff has not established
by any satisfactory evidence, far less a prepon
derance of evidence, that the pipe when it was
discharged over the side of the Juzan Maru to
the scow, was not bent or distorted, but in good
condition. A good deal of cross-examination of
defence witnesses was directed to try and estab
lish that the methods of handling the pipe by
Johnston when it unloaded the pieces from the
scow could have caused the damage ultimately
discovered when the majority of the pieces
were rolled on Johnston's pipe racks. In my
view, no such possibility or probability was
proved.
The evidence at trial satisfies me that the
methods used by Johnston in unloading from
the scow and transporting the pipe to the pipe
racks were acceptable methods and ones which
had been used by Johnston, with the knowledge
and apparent approval by the plaintiff, for many
years. Further, I find the methods adopted were
those in which reasonable care was used.
It was argued on behalf of the plaintiff that
the bending and distortion of the pipe might
have occurred after the pipe was loaded on to
the scow and before it was unloaded. There is
no evidence to support this contention, nor any
evidence from which any inference could rea
sonably be drawn. On the contrary, the evi
dence persuades me the trip by scow was une
ventful, and nothing occurred while the pipe
was aboard it which could have caused the
distortions ultimately discovered.
The plaintiff has in my view failed to estab
lish that the pipe was received by Johnston
without the bends and distortion ultimately dis
covered in the 238 pieces. Further, Johnston
has in my opinion satisfied the onus on it. The
evidence satisfies me, on a balance of probabili
ties, that Johnston used the care and diligence in
respect of the plaintiff's pipe which a prudent or
careful owner would have exercised in respect
of his own pipe.
The plaintiff's action as against Johnston is
therefore dismissed. The defendant Johnston is
entitled to its costs.
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.