T-9020-82
Sio Export Trading Co. (Maskinfabriken "Sio"
A.S.), a body politic and corporate of Odense,
Denmark, and A. Lakin and Sons Ltd., a body
politic and corporate of Chicago, Illinois, U.S.A.
(Plaintiffs)
v.
The Vessel Dart Europe and Armement Deppe
S.A., a body politic and corporate of Antwerp,
Belgium, and Dart Containerline (Canada) N.V., a
body politic and corporate of Antwerp, Belgium,
and Godin Transport Inc., a body politic and
corporate of Pointe-Claire, Quebec, Canada
(Defendants)
Trial Division, Dubé J.—Montreal, January 17;
Ottawa, January 20, 1983.
Maritime law — Jurisdiction — Application for dismissal
of action as against defendant Godin for want of jurisdiction
— During vessel's scheduled Montreal stopover, shipment
conveyed from Port to inland shop for repacking — Shipment
damaged during return in highway accident — Plaintiffs
claiming Godin negligent — Godin's land transport not part
and parcel of maritime activities essential to carriage by sea
— Truck trip not connecting vessel and harbour directly —
Neither truck trip nor associated repairs contemplated by
terms governing sea carriage — Truck transportation over
highway within province not a traditional maritime activity —
That returning to vessel not making trip navigation and ship
ping matter — Claims against terminal operators and steve
dores distinguished since their activities essential and closely,
physically related to harbour facilities and sea — Desirable to
keep as parties all those concerned with outcome and especial
ly allegedly negligent party — But neither desirability nor
expediency can confer jurisdiction — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 22 — The Admiralty
Act, 1891, S.C. 1891, c. 29, s. 4.
Jurisdiction — Federal Court — Maritime law — Carriage
by sea — Large machine in open container shipped from
Denmark to Chicago via Montreal — Found in damaged
condition at Montreal — Shipment removed inland for pack
ing — Further damaged by collision in return to ship by
highway transport — Negligence of land carrier alleged —
Application to dismiss for want of jurisdiction — Indirect trip
for repairs not contemplated in contract of carriage by sea —
Trucking not traditional maritime activity — Desirability that
land carrier be joined as party not clothing Court with juris
diction — Application granted.
According to its bill of lading, the Dart Europe was to carry
an open-top container from Denmark to Chicago via Montreal.
The container held a hydraulic press. On the ship's arrival at
Montreal, the defendant Dart Containerline noted that the
shipment had been damaged, advised the plaintiffs, and sent
the shipment to a company in Dorval, Quebec, where it was
repacked. The defendant Godin, allegedly a common carrier by
road, was to transport the shipment from Dorval back to the
Port of Montreal. On the way, the protruding press sustained
damage when it struck a railway overpass. The plaintiffs sued,
claiming that Godin had been negligent. Godin applied for a
dismissal of the action as against it, on the ground that the
Federal Court lacked jurisdiction. The plaintiffs argued that
the cause of action was sufficiently connected with the ship
ment's carriage by sea to fall within the Court's maritime
jurisdiction.
Held, the action against Godin should be dismissed. The
land-transport operation was not so closely connected to the sea
voyage as to be part and parcel of the maritime activities
essential to the carriage of the container by sea. This case is
distinguishable from those involving claims against terminal
operators or stevedores. The activities engaged in by the latter
two groups have a close practical relationship with the perform
ance and completion of carriage by sea, and form an integral
part of marine transport. Those activities not only are essential,
but also are closely and physically related to the sea and to the
harbour facilities. It is otherwise where, as in the instant case, a
common carrier by road is travelling over a highway, from an
inland repair shop to a port. The truck's journey did not serve
to connect the vessel and the harbour directly. Instead, it was
an indirect trip. Neither the land trip nor the repairs were
contemplated by the terms governing the carriage of the con
tainer by sea. Transportation by truck over a highway within a
province is not a traditional maritime activity, and the mere
fact that the truck was returning a container to a vessel does
not make the truck's journey a matter connected with naviga
tion and shipping.
While it is desirable to keep as parties to an action all those
concerned with its outcome and it would be particularly desir
able to have the overland carrier joined in this litigation,
neither desirability nor expediency can clothe a court with a
jurisdiction which it does not otherwise possess.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The Robert Simpson Montreal Ltd. v. Hamburg-
Amerika Linie Norddeutscher, et al., [1973] F.C. 1356
(C.A.), reversing [1973] F.C. 304 (T.D.); Barberlines
A/S Barber Steamship Lines, Inc., et al. v. Ceres Steve-
doring Company Ltd. et al., [1974] 1 F.C. 332 (T.D.);
Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. et al.,
[1982] 1 F.C. 406 (C.A.).
CONSIDERED:
Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,
[1973] A.M.C. 1 (U.S.S.C.).
REFERRED TO:
Domestic Converters Corporation, et al. v. Arctic Steam
ship Line, et al., [1984] 1 F.C. 211 (C.A.).
COUNSEL:
Peter J. Cullen for plaintiffs.
Edouard Baudry for defendants.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiffs.
Lavery, O'Brien, Montreal, for defendants.
The following are the reasons for order ren
dered in English by
DUBÉ J.: This application by the defendant
Godin Transport Inc. ("Godin") is for the dismis
sal of the action against it for want of jurisdiction
of the Federal Court.
The statement of claim alleges that Godin, a
common carrier by road for hire, carried the plain
tiffs' shipment, an open-top container stuffed with
an hydraulic curing press, from the premises of
Pack-All Industries Limited at Dorval, P.Q. to the
Port of Montreal. It is further alleged that during
the carriage by truck over the highway the pro
truding press struck a railway overpass causing
considerable damage to the package. The plaintiffs
claim that Godin was negligent and the action
against it is in damages.
The container had arrived at the Port of Mon-
treal on board the defendant vessel Dart Europe
from which a bill of lading was issued on Decem-
ber 11, 1981, at Arhus, Denmark. The through bill
of lading provides for the container to be shipped
from Denmark to Chicago, Illinois, U.S.A., by
way of Antwerp, Belgium, and Montreal.
When the vessel arrived in Montreal the defend
ant Dart Containerline (Canada) N.V. noted some
damage to the shipment, notified the plaintiffs,
caused surveys to be held, removed the shipment
from alongside the vessel and sent it to the prem
ises of Pack-All Industries Limited to have the
shipment reskidded, packed and properly secured
for the on-carriage to the plaintiff A. Lakin and
Sons Ltd. in Chicago. After those operations were
completed, Godin took the shipment back by truck
to the Port of Montreal and the aforementioned
collision with the overpass occurred on January 21,
1982.
Godin argues that this Court has no jurisdiction
to hear an action in tort (delict) for damages
caused by a common carrier on a Quebec highway.
On the other hand, the plaintiffs submit that the
cause of action is sufficiently connected to the
carriage by sea of the shipment to bring it under
this Court's maritime jurisdiction.
In The Robert Simpson Montreal Ltd. v. Ham-
burg-Amerika Linie Norddeutscher, et al.,' this
Court held that the Federal Court has no jurisdic
tion under section 22 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10], to entertain a
claim by a shipowner against the terminal opera
tors. On appeal, 2 however, the Federal Court of
Appeal reversed that decision and held that the
removing of a shipment from a vessel, after com
pletion of the ocean voyage and the delivery to a
terminal operator, constituted activities "essential
to the carriage of goods by sea" and therefore fell
within the "navigation and shipping" provisions of
subsection 22(1) 3 of the Act, without it being
necessary to consider whether any of the branches
of subsection 22(2) apply. Jackett C.J. said (at
page 1363) that the activities were "part and
parcel of the activities essential to the carriage of
goods by sea" [citing Re Industrial Relations and
Disputes Investigation Act, [1955] S.C.R. 529, per
Locke J. at page 578].
In Barberlines AIS Barber Steamship Lines,
Inc., et al. v. Ceres Stevedoring Company Ltd. et
al., 4 Mahoney J. followed that decision and held
that this Court has jurisdiction to entertain an
action in damages against a stevedore company
' [1973] F.C. 304 (T.D.).
2 [1973] F.C. 1356 (C.A.).
3 22. (1) The Trial Division has concurrent original jurisdic
tion as well between subject and subject as otherwise, in all
cases in which a claim for relief is made or a remedy is sought
under or by virtue of Canadian maritime law or any other law
of Canada relating to any matter coming within the class of
subject of navigation and shipping, except to the extent that
jurisdiction has been otherwise specially assigned.
4 [1974] 1 F.C. 332 (T.D.).
with respect to damages to goods it had discharged
from a vessel.
In Miida Electronics, Inc. v. Mitsui O.S.K.
Lines Ltd. et al.,' the Federal Court of Appeal
again dealt with terminal operators. Goods had
been stolen from a transit shed. One of the ques
tions was whether the Court had jurisdiction to
hear the claim. The majority of the Court held
that it had. Le Dain J. reversed his previous stand
in the Domestic Converters 6 case and held [at
page 417] that "because of the close practical
relationship of the terminal operation to the
performance of the contract of carriage, the law
which governs it should be uniform throughout
Canada". He adopted [at page 418] the following
general observations of Mr. Justice Stewart of the
U.S. Supreme Court in Executive Jet Aviation,
Inc. v. City of Cleveland, Ohio' that "In sum,
there has existed over the years a judicial, legisla
tive, and scholarly recognition that, in determining
whether there is admiralty jurisdiction over a par
ticular tort or class of torts, reliance on the rela
tionship of the wrong to traditional maritime activ
ity is often more sensible and more consonant with
the purposes of maritime law than is a purely
mechanical application of the locality test." For
those reasons he held he was of the opinion that
the claim of the cargo owner against the terminal
operator was a maritime matter within the defini
tion of "Canadian maritime law" under section 2 8
of the Federal Court Act. Lalande D.J. [at pages
430-431] was also of the opinion that the Federal
Court had jurisdiction to entertain the claim
against the terminal operator "because it is a
matter `connected with' navigation and shipping in
the words of section 4 of The Admiralty Act,
1891" [S.C. 1891, c. 29] .
5 [1982] 1 F.C. 406 (C.A.).
6 [Domestic Converters Corporation, et al. v. Arctic Steam
ship Line, et al.] [1984] 1 F.C. 211 (C.A.).
[1973] A.M.C. 1 (U.S.S.C.) [at page 10].
8 2. ...
"Canadian maritime law" means the law that was administered
by the Exchequer Court of Canada on its Admiralty side by
virtue of the Admiralty Act or any other statute, or that
would have been so administered if that Court had had, on
its Admiralty side, unlimited jurisdiction in relation to mari
time and admiralty matters, as that law has been altered by
this or any other Act of the Parliament of Canada;
In my view, the land transport operation under
taken by Godin from the Dorval repair shop to the
Port of Montreal cannot be considered to be so
"closely connected" to the voyage by sea as to be
"part and parcel" of the maritime activities essen
tial to the carriage of goods by sea.
I can very well see the close practical relation
ship of marine-terminal operators and ship steve
dores to the performance and completion of car
riage by sea. All those activities form an integral
part of marine transportation. Not only are they
essential, they are also closely and physically relat
ed to the sea and to the harbour facilities.
But such is not the situation with a highway
common carrier, heading from a repair shop
inland, over a highway towards a port. That route
was not considered in the bill of lading. That was
not a direct link connecting vessel and harbour,
but an indirect voyage with respect to repairs not
contemplated in the contract of carriage. Trucking
over highways in a province has never been con
sidered a "traditional maritime activity". The
mere fact that the vehicle was returning a contain
er to a vessel does not by itself constitute "a matter
connected with navigation and shipping".
I am aware, of course, of the desirability of
keeping all the parties concerned with the outcome
of an action as parties to the action. But, however
desirable it may be to have the land carrier joined
with the cargo owner, the shipper, the ocean carri
er, the vessel and the consignee, in the same
action, especially where it is alleged that the land
carrier is the negligent party, still desirability or
expediency cannot clothe a court with a jurisdic
tion it does not otherwise possess. Both the imagi
nation of this Court and the Constitution of this
country would have to be stretched to the breaking
point in order to consider a collision on a highway
within a province to be an admiralty matter
coming under federal jurisdiction.
For all those reasons the action against Godin is
dismissed for want of jurisdiction.
ORDER
Application granted. The action against the
defendant Godin Transport Inc. is dismissed with
costs.
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