T-3012-71
Anglophoto Limited (Plaintiff)
v.
The Ship Ikaros, Pleione Maritime Corp. and
Empire Stevedoring Company Limited (Defend-
ants)
Trial Division, Collier J.—Vancouver, September
11; Ottawa, October 27, 1975.
Jurisdiction—Maritime law—Short delivery of cargo—Bill
of lading for carriage by ship to Vancouver, then by rail to
Toronto—Packages missing after discharge into custody of
stevedores—Whether Court has jurisdiction over terminal
oper.ztors after goods discharged from vessels—Whether
jurisdiction over terminal operators generally where part of
activities connected with loading, regardless of arrange-
ments—Federal Court Act, ss. 22(2), 42, 61(2),(6), 63(1)—
Admiralty Act, R.S.C. 1970, c. A-1, s. 18.
The bill of lading for plaintiffs goods provided for carriage
by the Ikaros from Japan to Vancouver then by rail to Toronto.
The ship's record showed that the goods were delivered in full
to defendant Empire Stevedoring Co. at Vancouver, but the
latter's record showed short delivery. Plaintiffs action for
damages was dismissed for lack of jurisdiction. On appeal, it
was held that the jurisdictional questions should not, on the
material then before the Court, have been answered. Plaintiff
then brought this action for damages.
Held, the Court had jurisdiction in respect of the claim
against Empire Stevedoring Co. In its capacity as terminal
operator, Empire Stevedoring Co. had agreed with the carrier
to take delivery and custody from the vessel and load the
packages for transhipment to Toronto. In this respect, Empire
Stevedoring Co. participated in removing the goods, after com
pletion of the voyage, and delivering them to plaintiff. That
operation was part and parcel of activities essential to carriage
of goods by sea. The claim was made and relief sought by
virtue of a law of Canada within the class of navigation and
shipping. Though the action was commenced before the coming
into force of the Federal Court Act, the action need not have
been discontinued and recommenced in this Court; under sec
tion 18 of the Admiralty Act, the Exchequer Court had
jurisdiction.
Anglophoto Ltd. v. The `Ikaros" [1973] F.C. 483, [1974]
1 F.C. 327, discussed. The Robert Simpson Montreal
Limited v. Hamburg-Amerika Linie Norddeutscher
[1973] F.C. 1356, applied. The Toronto Harbour Com
missioners v. The "Robert C. Norton" [1964] Ex.C.R.
498, distinguished.
ACTION.
COUNSEL:
D. F. McEwen for plaintiff.
R. V. Burns for defendants The Ship Ikaros
and Pleione Maritime Corp.
P. J. Gordon for defendant Empire Stevedor-
ing Company Limited.
SOLICITORS:
Ray, Wolfe, Connell, Lightbody & Reynolds,
Vancouver, for plaintiff.
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for defendants The Ship
Ikaros and Pleione Maritime Corp.
Davis & Co., Vancouver, for defendant
Empire Stevedoring Company Limited.
The following are the reasons for judgment
rendered in English by
COLLIER J.: This suit is on its second trip
through the Federal Court system'. The monetary
amount at stake is, by today's inflationary stand
ards, small. One of the main issues, that of the
jurisdiction of this Court in respect of the claim
advanced against the defendant Empire Stevedor-
ing Company Limited, is, however, of importance
to the parties.
The action was commenced on April 20, 1970,
in the Admiralty Division of the Exchequer Court
of Canada. The plaintiff claims compensation for
the loss of certain cameras and equipment 2 . The
goods were loaded on the Ikaros in Japan, destined
to Vancouver and from there by rail to Toronto.
The defendant Pleione Maritime Corp. (hereafter
the "carrier", "owner", or "ship-owner") and the
defendant Empire Stevedoring Company Limited
(hereafter "Empire") each filed defences before
the coming into force of the Federal Court Acta.
Empire pleaded, inter alia, that the statement of
claim failed " ... to state a cause of action against
it within the jurisdiction of this Honourable Court
)f
Anglophoto Ltd. v. The "Ikaros" [1973] F.C. 483, 39
D.L.R. (3d) 446 (Trial Division); [1974] 1 F.C. 327, 50 D.L.R.
(3d) 539 (Appeal Division).
2 At this hearing, the parties agreed on the precise goods lost
or damaged, and their value.
3 June 1, 1971.
In February 1973 the parties agreed upon a
statement of facts in order to have a question of
law (the jurisdiction of this Court in respect of the
claim against Empire) determined. That motion
was heard by me. On the facts agreed upon, I held
this Court had no jurisdiction. The plaintiff
appealed. The Appeal Division held that the juris
dictional questions I decided should not, on the
material before the Court at that time, have been
answered. Thurlow J. said 4 :
In our opinion, the questions as propounded for the Court
were not questions of law. They depend on the facts and the
facts agreed to were not adequate to enable the Court to reach
the conclusion that. it did not have jurisdiction. Nor is there
anything in the other parts of the record before us to which our
attention was drawn by counsel which would serve to supple
ment the agreed facts to a sufficient extent to enable the Court
to make such a determination.
The action subsequently came on for trial on
September 11 and 12 of this year. Certain facts
were agreed upon. In addition, considerable oral
and documentary evidence were adduced, particu
larly as to the operations and activities of Empire
in respect of the discharge and handling of cargo
from the Ikaros. I think I need only say that this
whole body of evidence at trial demonstrated just
how inadequate, as stated by the Appeal Division,
were the facts before the Trial Court on the earlier
hearing on the "question of law" 5 .
I turn now to the evidence and facts at the trial.
The plaintiff was the owner of the cameras and
equipment. They were shipped on board the Ikaros
on July 10, 1969, to be delivered by the vessel to
Vancouver, B.C., for transhipment by rail to
Toronto, Ontario. The Ikaros did not call in at any
ports prior to its arrival in Vancouver. Arrange
ments were made by the ship-owner's agents in
Vancouver (Greer Shipping Ltd.) for the vessel to
berth at Centennial Pier. In 1969, Empire was the
4 [1974] 1 F.C. 327 at page 330.
5 I, of course, take the responsibility for that.
licensed operator from the National Harbours
Board of Berths 4, 5 and 6 at the terminal.
Empire, at that time, had two operating divisions
housed in the one legal corporate entity. One
division provided stevedoring services to discharge
cargo on behalf of vessel owners. The other divi
sion acted as a so-called terminal operator. Briefly
in that aspect it provided all wharf and terminal
services beyond ship's tackle. Empire did not have
an exclusive privilege in respect of stevedoring
unloading services at Centennial. Vessel owners
were free to engage others if they so decided.
Empire had, however, the sole licence in respect of
the other terminal services.
Arrangements were made by Greer Shipping
Ltd. for Empire to provide the stevedoring services
required to discharge the Ikaros' cargo. This was
part of an earlier ongoing contractual arrangement
in which the plaintiff had no part. The evidence is
clear the plaintiff had no voice, also, in this case,
as to where the Ikaros was berthed in Vancouver
nor as to how or by whom her cargo was
discharged.
The unloading of cargo was carried out by
Empire from July 25 to July 31 inclusive, with the
exception of July 27 which was a Sunday. Ship's
tackle was used to remove the cargo from the
various holds and to deposit it on the pier itself.
At trial it was agreed that 13 cartons of cameras
and accessories and 8 cases of advertising ma
terials had been loaded, in apparent good order
and condition, on the vessel in Japan. On the
evidence before me I think it a fair inference that
the 21 packages arrived in Vancouver on board the
vessel on July 25. I so find.
No count was made by anyone, representing
either the carrier or Empire, as the total cargo was
taken out of the holds nor as the individual items
were released from ship's tackle on the pier itself.
As the cargo landed on the pier it was sorted,
then moved, by Empire employees to various loca
tions in Shed 5. Neither the plaintiff nor the
carrier, or their representatives, were consulted or
had any say as to where various items of cargo
were temporarily or ultimately placed in the shed.
The ship-owners did employ checkers primarily
to verify the quantities, shown on the ship's mani
fest, that actually landed on the dock. In this case
the checker employed on behalf of the carrier or
its agent was James R. Bodner. Prior to the actual
commencement of unloading, Empire had pre
pared what were termed cargo books. The goods
listed in the ship's manifest were arranged in a
convenient order for general checking purposes.
Bodner had one of those books. He testified, using
his cargo book to refresh his memory and relying
on his usual checking system, that he visually
accounted for all 21 packages as having been
discharged from the vessel onto the pier.
In the usual course (according to the manager of
the pier), the cargo of a vessel does not come off in
the same order in which it was stowed, nor in a
necessarily orderly fashion. That was the case with
the Ikaros. Initially, as I have previously stated,
the cargo was taken from ship's tackle in the
centre area of Shed 5, sorted, and from there
moved by Empire to various berths in Shed 5.
Bodner, over a number of days, apparently went to
practically all berths or other areas such as the
"cage", once or several times, endeavouring to
account for the arrival on the pier of the various
items. As he located a certain number of packages
belonging to one particular shipment, he noted in
his cargo book the number found at that particular
location, for example, 4-5/33 (4 items, Shed 5,
berth 33). He might then find more packages at a
different berth in Shed 5. He would note that
down. If he located the remainder of the total
packages at a still further place, he would not
necessarily make a notation of that berth or area
because he had then satisfied himself the total
number of packages in fact had been landed into
the shed. He would then merely circle or "ring up"
the total number shown on the cargo book. For the
particular camera shipment in question, which was
made up of 21 packages, he recorded the
following:
8—cage
4-5/33
5-5/24
2—B/O (Bad Order)
The number 21 was then circled as shown. That
indicated he had accounted for all packages
although he had not noted down where he found
the remaining two, making up the total of 21. A
similar method was employed, for example, in his
checking of a consignment of 40 cartons of rubber
manufactured goods (Exhibit 7, V-69104) where
the following notations appear:
12-5/38
11-5/34
9-5/25
1—B/O
40
Again, as shown, the total number of packages is
circled indicating all had been accounted for,
although the location of the last 7 packages found
was not noted.
Attempts were made in cross-examination to
detract from this witness's testimony that he had
found no shortage in respect of the plaintiff's
shipment. It was pointed out there were a great
number of packages discharged from the Ikaros.
The manager of the pier testified there were prob
ably 43,826 packages comprising the 576 separate
cargo shipments on the Ikaros. In terms of car
tons, the figure given was just under 32,000. It was
also suggested that Bodner did not necessarily see,
with his own eyes, each and every package; that
other checkers, mostly in the employ of Empire,
would tell him where they had seen a certain
number of packages belonging to a certain ship
ment; or he might even have had access to their
records. Regardless of those attempts to cast
doubts on the accuracy of Mr. Bodner's testimony
that he had in fact accounted for all 21 Anglo-
photo packages, I am satisfied, after observing him
in the witness box, that his method, his experience
and his (to my mind) apparent competence estab
lished, on a balance of probabilities, that 21 pack
ages in fact were unloaded from the Ikaros' tackle
into the possession of Empire at Centennial Pier.
I conclude, therefore, that sometime after the 21
packages were discharged into the custody of
Empire three of them went missing. They were
never ultimately delivered to the plaintiff. Any
claim by the plaintiff against the carrier for the
loss of the three packages, on those findings, must
therefore fail. Additionally, for the purposes of this
action, it was agreed that by virtue of the bill of
lading the vessel's responsibility ceased once the
packages left her tackle.
The monetary liability of the carrier in the
particular circumstances here is $74.80. That was
the agreed value of accessories found to be missing
from one of the damaged packages among the 18
actually delivered in Toronto. It is common ground
that responsibility for that loss is on the
ship-owner.
I put aside for a moment the question of the
jurisdiction of this Court in respect of the plain
tiff's claim against Empire. There is no doubt, to
my mind, that Empire has not discharged the onus
on it in respect to the loss of the three cartons. No
evidence of any kind was led as to what care, if
any, Empire took of the 21 cartons once they left
ship's tackle. The next step in the factual narrative
is that 18 cartons only were loaded by Empire onto
a Canadian National Railway freight car. Those
cartons were ultimately delivered to the plaintiff in
Toronto. As I see it, there is a strong inference of
pilferage. The record is silent as to the precautions,
if any, taken by Empire in respect of that perenni
al water-front plague. Counsel for Empire, as I
understood him, conceded that, if it were found
that 21 packages had indeed come into Empire's
possession, then, assuming jurisdiction, there was
no defence to the claim.
I return to the jurisdictional question. It is
necessary first to set out some further facts. In
respect of goods shipped on the Ikaros which were
to be delivered to a consignee (or some other
person entitled to possession) in Vancouver, the
practice was for Empire to hand over the particu
lar cargo on surrender of the bill of lading and
payment by the consignee or his agent of charges.
Those charges included ocean freight, and wharf-
age and handling charges (if any). If Empire had
provided stevedore unloading services, that was, as
well, included in the account rendered. The carri-
er's agents then sent a statement to Empire for
what was owed to the vessel, normally just for the
ocean freight. There was a charge by , Empire for
collecting the latter. Cargo to be delivered to a
Vancouver consignee in Vancouver was allowed to
remain at the pier for five days free of storage
charges ("free time"). There was a charge
("demurrage") payable on goods in transit re
maining at the terminal after the expiration of free
time.
The tariff of wharf charges in effect at Centen
nial in 1969 provided that all charges (by which
was generally meant wharfage, handling, unload
ing and other charges payable to the National
Harbours Board) were payable by the owners of
the goods. National Harbours Board properties in
Vancouver were described in the evidence, then as
now, as a ship's tackle port. That is, charges
arising out of the use of the terminal facilities were
payable by the owner of the goods (in contradis
tinction to the carrier) as soon as the goods left
ship's tackle. Evidence, somewhat unsatisfactory,
was led to the effect there were, in 1969, other
terminal operations in Canada, such as National
Harbours Board properties in Montreal, where
certain terminal charges (at least) were the liabili
ty of the carrier. This type of operation or port was
termed a "place of rest" port. The evidence
seemed to indicate the carriers, not the owners of
the goods, were liable to the National Harbours
Board or the terminal operator for all charges up
to the point where the particular goods came to
rest in the terminal. I shall later refer to this
difference.
In respect of the goods in this case,- which were
to be transhipped by CNR from Vancouver to
Toronto, arrangements were made by Leimar For
warding Company Limited ("Leimar") with
Empire that the latter would, for a charge, load
the packages on to the CNR rail facilities. Leimar,
who acted at the same time for other consignees,
obtained permission from the carrier for the
release of the goods (then physically held by
Empire). In this case, neither the forwarder nor
the plaintiff were billed for Empire's terminal
operator services. Empire, in some fashion, billed
the CNR and the carrier. In due course, it was
paid by or through the railway or the vessel, or the
latter's agents.
To complete the facts, it was at this stage of
loading the packages on the CNR freight car that
Empire first ascertained there were only 18 rather
than 21 cartons. Empire, after taking the packages
from ship's tackle, sorting them, then moving them
to various berths in Shed 5 (and possibly relocat
ing them several times in the shed), never made an
actual quantitative count until the goods were
brought from their various locations to the freight
siding. During the course of loading the packages
were then counted by Empire's rail checker.
Counsel for Empire asserts that from the
moment the plaintiff's packages left ship's tackle
Empire was no longer participating in the carriage
of goods in or on a ship (including loading or
unloading) or in a business falling into the general
category of navigation and shipping. Up to the
point of leaving ship's tackle it is conceded this
Court would probably have had jurisdiction (if the
packages had been then lost or damaged) having
regard to the decision of the Appeal Division in
The Robert Simpson Montreal Limited v. Ham-
burg-Amerika Linie Norddeutscher 6 . Jackett
C.J., in that case, said at pages 1362-1363:
To summarize, section 22(1) would seem to confer jurisdic
tion on the Trial Division
(a) in an action or suit where a claim for relief is made or a
remedy is sought under or by virtue of the law that was
administered by the Exchequer Court on its Admiralty side
by virtue of the Admiralty Act or any other statute,
(b) in an action or suit where a claim for relief is made or a
remedy is sought under or by virtue of the law that would.
have been administered by the Exchequer Court on its
Admiralty side if the Court had had "unlimited jurisdiction
in relation to maritime and admiralty matters",
(c) in an action or suit where a claim for relief is made or a
remedy is sought under or by virtue of a statute of the
Parliament of Canada made in relation to a matter falling
within the class of subjects "Navigation and Shipping", and
6 [1973] F.C. 1356.
(d) in an action or suit where a claim for relief is made or a
remedy is sought under or by virtue of a law relating to a
matter falling within the class of subject "Navigation and
Shipping" that it would be "competent for the Parliament of
Canada to enact, modify or amend" or in an action or suit in
relation to some subject matter legislation in regard to which
is within the legislative competence of the Canadian Parlia
ment because that subject matter falls within the class
"Navigation and Shipping".
In the light of this analysis, it becomes relevant to examine
the nature of the Third Party proceedings that have been, in
effect, quashed by the judgment that is the subject of this
appeal. In effect, the cause of action relied on is a breach of a
contract whereby the Third Parties agreed to receive at the port
of destination from an ocean carrier goods being carried under
ocean bills of lading and to hold them safely for delivery to the
consignees in accordance with a practice whereby the con-
signees receive delivery of such goods in harbour transit sheds
rather than directly from the ship. _In other words, instead of
making delivery directly to consignees from the ship, the ocean
carrier carries out his obligation to deliver goods to consignees
at the port of destination by arranging with an independent
contractor to take the goods from the ship and hold them in a
transit shed for delivery to consignees.
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 proceed
ings is one "legislation in regard to which is within the legisla
tive competence of the Dominion" because the subject matter
falls within the class "Navigation and Shipping". That being
so, the Third Party proceedings are proceedings "in which a
claim for relief is made or a remedy is sought under or by
virtue of ... [a] law of Canada relating to any matter coming
within the class of subject of navigation and shipping" within
the meaning of those words in section 22(1) and the Trial
Division therefore has jurisdiction in the matter by virtue of
that provision.
It is argued, however, that Empire, once these
packages left ship's tackle, was then acting, not as
an unloading stevedore carrying out an arrange
ment with the carrier, but (by means of its other
division) as a terminal operator or warehouseman;,
in that capacity its dealings were in fact and in
legal result with the owner of the goods; any claim
for loss of or damage to them at that stage did not
fall within any of the general heads of jurisdiction
as summarized in The Robert Simpson case, nor
within any of the specific heads set out in subsec
tion 22(2) of the Federal Court Act 7 .
I was invited by counsel for Empire to go fur
ther and hold generally there was no jurisdiction in
this Court over terminal operators rendering ser
vices after discharge from vessels where all
charges for those terminal operator services
become the responsibility of the owner of the
goods. In this case reliance was placed on subsec
tion 4(3) of By-Law Vancouver B-4(a) "Tariff of
Wharf Charges" (Exhibit 15). It was submitted a
terminal operator in Montreal (such as one of the
third parties in The Robert Simpson case) was, on
the other hand, in a different position; all charges
up to the "place of rest" were there the responsi
bility of the carrier, not the cargo owner.
I was invited, as well, (to some extent) by
counsel for the plaintiff to hold that this Court had
jurisdiction over terminal operators generally
where a part at least of their activities was con
nected with the discharge, loading, custody or
transhipment of cargo carried in vessels, irrespec
tive of whether those arrangements were made
with the cargo owner himself, or with the carrier.
I decline to make any such general ex cathedra
pronouncements in respect of the jurisdiction of
this Court. I propose to confine my decision to the
facts of this particular case.
As I see it, Empire in its capacity as terminal
operator had here agreed with the carrier (as well
as the CNR) to take delivery and custody from the
vessel and subsequently to load these particular
packages for transhipment to Toronto. In that
respect Empire, by an arrangement with the carri
er, participated in the operation of removing the
goods from the vessel after completion of the
ocean voyage and delivering them to the plaintiff
after holding them during an incidental delay.
That operation was part and parcel of activities
essential to the carriage of goods by sea. The claim
against Empire was therefore made and the
remedy sought under or by virtue of a law of
7 R.S.C. 1970, c. 10 (2nd Supp.).
Canada coming within the class of subject of
navigation and shipping.
For those reasons, I am of the opinion this Court
has jurisdiction in respect of the claim against
Empire.
Counsel for Empire took a further point. This
claim arose and this action was commenced before
the coming into force of the Federal Court Act. It
is said that on the facts here the Exchequer Court
did not have jurisdiction in respect of this particu
lar claim against Empire and therefore this action
commenced in the Exchequer Court is a nullity; it
ought to have been discontinued and recommenced
in the Federal Court 8 . Counsel for Empire relied
on The Toronto Harbour Commissioners v. The
Ship `Robert C. Norton" 9 . In my view, the facts
of that case are clearly distinguishable. Moreover,
I am satisfied that under section 18 of the Admi
ralty Act 10 , the Exchequer Court had, on the
particular facts of this case, jurisdiction. I do not
find it necessary to enter into any discussion as to
the application or effect of sections 42, 61(2),
62(6) and 63(1) of the Federal Court Act.
The parties have agreed the value of the three
missing packages is $2430. There will be judgment
against Empire for that amount and against the
defendant Pleione for $74.80.
The question of costs may be spoken to.
s And then, I surmise, have been confronted with a limitation
defence.
9 [1964] Ex.C.R. 498.
�" R.S.C. 1970, c. A-1.
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.