A-87-73
Anglophoto Ltd. (Appellant)
v.
The ship Ikaros and Pleione Maritime Corp. and
Empire Stevedoring Company Limited (Respond-
ents)
Court of Appeal, Thurlow and Pratte JJ., Shep-
pard D.J.—Vancouver, February 27, 28 and
March 1, 1974.
Maritime law—Jurisdiction—Short delivery of cargo—Bill
of lading for carriage by ship to Vancouver then by rail to
Toronto—Whether "through bill of lading'-Claim against
stevedores—Whether claim cognizable—Federal Court Act,
s. 2 2( 2 Xe),(f),0),0)•
Appeal from the judgment of the Trial Division, ([1973]
F.C. 483), which determined as a question of law that the
Court does not have jurisdiction over the defendant, Empire
Stevedoring Company Limited, and stayed the action as
against that defendant.
The action was brought in the Admiralty Division of the
Exchequer Court on April 20, 1970 for damages for loss of
part of a shipment of cameras that had been loaded on the
defendant ship in Japan for carriage by it to Vancouver then
by rail to Toronto upon the terms of the bill of lading issued
by the defendant, Pleione Maritime Corp., the owners of the
defendant ship. The ship's record showed that the goods
were delivered in full to the defendant Empire Stevedoring
Co. at Vancouver but the latter's record showed short
delivery.
Held, reversing Collier J., that the appeal is allowed. 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 conclu
sion that it did not have jurisdiction. The questions ought
not to have been answered by the Trial Judge on the
material before him, but should have been left for determi
nation at the trial.
The Robert Simpson Montreal Limited v. Hamburg-
Amerika Linie Norddeutscher [1973] F.C. 1356,
followed.
APPEAL.
COUNSEL:
D. F. McEwen for appellant.
J. L. Jessiman for the ship Ikaros and Ple-
ione Maritime Corp.
Peter James Gordon for Empire Stevedor-
ing Co. Ltd.
SOLICITORS:
Ray, Wolfe, Connell, Reynolds & Co., Van-
couver, for appellant.
Macrae, Montgomery, Hill & Cunningham,
Vancouver, for the ship Ikaros and Pleione
Maritime Corp.
P. J. Gordon, Vancouver, for Empire Steve-
doring Co. Ltd.
The judgment of the Court was delivered by
THURLOW J.—This appeal is from a judgment
of the Trial Division which determined as a
question of law that the Court does not have
jurisdiction over the defendant, Empire Steve-
doring Company Limited, and stayed the action
as against that defendant.
The action was brought in the Admiralty Divi
sion of the Exchequer Court of Canada on April
20th, 1970, for damages in respect of the loss of
part of a shipment of cameras which had been
loaded on the defendant ship in Japan for car
riage by it to Vancouver and thence by rail to
Toronto upon the terms of a bill of lading issued
by the defendant, Pleione Maritime Corp., the
owners of the defendant ship. The statement of
claim and the defences of both defendants were
filed before the coming into force of the Federal
Court Act, one of the defences raised by the
defendant, Empire Stevedoring Company Lim
ited being that the statement of claim had failed
to state a case against it within the jurisdiction
of the Court.
What had been alleged as the basis of the
action against both defendant's was contained in
paragraphs 5 and 6 of the statement of claim
which read as follows:
5. In breach of the contract contained in the aforesaid Bill of
Lading and/or negligently and/or in breach of its duty in the
premises as a carrier for reward the Defendant Pleione
Maritime Corp. and the ship " KA1 os" did not deliver the
aforesaid cameras, and accessories in good order and condi
tion and in fact delivered to the Defendant Empire Steve-
doring Company Limited only part of the shipment.
6. In the aternative the Defendant Empire Stevedoring Com
pany Limited negligently, or in breach of duty in the prem
ises as a bailee for reward did not deliver to the Plaintiff or
his agent the full quantity of cameras delivered to them by
the vessel.
In February 1973 the plaintiff brought a
motion for an order determining the questions
set out in paragraph 7 of a statement of facts
which had been agreed to by counsel for the
several parties to the action, the body of which
read as follows:
Statement of Facts Agreed Upon for the Purposes of the
Application Herein
1. That thirteen cartons of cameras and accessories and
eight cases of advertising material belonging to the Plaintiff
were loaded on board the vessel " nxnxos" at Osaka, Japan,
on or about the 10th day of July, 1969, for carriage to
Vancouver pursuant to the attached bill of lading.
2. That the vessel "nxaxos" arrived in Vancouver on or
about the 25th of July, 1969, and discharged cargo into the
care, custody and control of the Defendant, Empire Steve-
doring Company Limited.
3. That Empire Stevedoring Company Limited is a company
duly incorporated under the laws of British Columbia and,
amongst other services, acts as a terminal operator manag
ing portions of Centennial Pier, in the City of Vancouver,
receiving cargo from marine vessels and delivering it to
inland carriers such as the railways, trucks and similar
conveyances.
4. That according to the discharge records made on behalf
of the Defendant, Pleione Maritime Corp., owners of the
vessel "ixnxos", all of the thirteen cartons of cameras and
accessories and eight cases of advertising material were
discharged in good order save and except one carton No.
7022/82.
5. That according to the records of the Defendant, Empire
Stevedoring . Company Limited, only eighteen cartons were
delivered by the Defendant, Pleione Maritime Corp., to the
Defendant Empire Stevedoring Company Limited.
6. That the Plaintiff commenced its action in the Exchequer
Court of Canada, British Columbia Admiralty District,
against the Defendant, Empire Stevedoring Company Lim
ited, this latter Defendant pleading in its Defence that that
Honourable Court had no jurisdiction to hear the case
against that Defendant.
7. That the issues which the parties request this Honourable
Court to decide are as follows:—
(a) Did the Exchequer Court of Canada, British Columbia
Admiralty District, have jurisdiction to hear a case against
the Defendant, Empire Stevedoring Company Limited,
and if not, what is the effect of the enactment of the
Federal Court Act have with respect to the status of the
action, and
(b) Does this Honourable Court have jurisdiction to hear a
case against the Defendant, Empire Stevedoring Company
Limited.
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 supplement the
agreed facts to a sufficient extent to enable the
Court to make such a determination.
In particular, the facts do not show whether
the goods were at any time prior to their arrival
in Toronto transferred by the shipowner into the
custody of the consignee or an agent of his or, if
so, when, or whether the defendant, Empire
Stevedoring Company Limited when receiving
the goods into its custody did so as agent for the
shipowner or as agent for the consignee or
whether the status of that defendant as such
custodian remained the same throughout the
period in which the goods were in its custody.
It seems clear that if that defendant received
the goods and held them in its custody as agents
of the shipowner, the present jurisdiction of the
Court is broad enough to enable it to entertain
the claim—see The Robert Simpson Montreal
Limited v. Hamburg-Amerika Linie Nord-
deutscher [1973] F.C. 1356, and on the same
basis it is by no means clear that the Court did
not have jurisdiction to entertain it under sec
tion 18 of the Admiralty Act'. However, in the
absence of information as to the actual facts the
problems are academic and the questions so
propounded should not have resulted in a deter
mination that the Court does not have jurisdic
tion. While the decision of this Court in the
Robert Simpson case was not available to the
learned trial judge, as that case had not yet been
decided, in our view, the questions submitted to
him ought not to have been answered on the
material before him, but should have been left
for determination so far as necessary by the
judge presiding at the trial.
R.S.C. 1952, c. 1.
The appeal will therefore be allowed and the
judgment answering the questions and staying
the action as against the defendant Empire
Stevedoring Company Limited will be set aside.
There will be no costs recoverable by any
party in respect of the appeal or the motion in
the Trial Division.
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.