T-4578-73
Barberlines A/S Barber Steamship Lines, Inc.,
Wilh. Wilhehnsen D/A A/S Den Norske Afrika-
OG Australieline, Wilhelmsens Damp-Skibsak-
tieselskap A/S Tonsberg, A/S Tankfart I A/S
Tankfart VI (Plaintiffs)
v.
Ceres Stevedoring Company Ltd., Metropolitan
Marine Terminals Ltd. (Defendants)
Trial Division, Mahoney J.—Montreal, February
18; Ottawa, February 22, 1974.
Maritime law—Discharge of cargo from vessel by steve
dores to subcontractor for delivery—Claims by vessel owners
for losses and liabilities arising from short or damaged
conditions—Jurisdiction of Court—Federal Court Act,
R.S.C. 1970, c. 10 (2nd Supp.), s. 22.
The plaintiff Barberlines, a shipping line owned by the
other plaintiffs, entered into a contract with the defendant
Ceres Stevedoring Company Ltd., for stevedoring services
at Montreal. When a ship employed in the Barberlines
service arrived in Montreal, its cargo was discharged by the
defendant Ceres Stevedoring Company Ltd. into the cus
tody of the defendant Marine Terminals Ltd., for delivery
by the latter to various consignees, in fulfilment of the
plaintiffs' obligations under the contracts of affreightment.
Some of these goods were not delivered, or were delivered
after excessive delays, or in a damaged and short condition.
Held, the carrying out of the carrier's obligation to dis
charge, care for and deliver cargo to the persons entitled to
it, was "as maritime a matter as is the contract for the
carriage of the cargo by sea". The plaintiffs' claim, falling
within the class of "navigation and shipping", was within the
jurisdiction of the Court, under the Federal Court Act,
R.S.C. 1970, c. 10 (2nd Supp.), s. 22.
The Robert Simpson Montreal Limited v. Hamburg-
Amerika Linie Norddeutscher [1973] F.C. 1356, revers
ing [1973] F.C. 304, followed.
APPLICATION to determine points of law (Rule
474).
COUNSEL:
Sean Harrington for plaintiffs.
David Wood for defendants.
SOLICITORS:
McMaster, Meighen & Co., Montreal, for
plaintiffs.
Wood & Aaron, Montreal, for defendants.
MAHONEY J.—This is an application by the
plaintiffs, under Rule 474, for a preliminary
determination of a question of law, namely,
whether or not this Court has jurisdiction over
the subject-matter of this action. The defend
ants did not, for the purposes of this applica
tion, contest the truth of the facts alleged in the
statement of claim.
The plaintiffs are owners, managers and
agents of Barberlines, a shipping line operating,
for hire, between the Far East and, inter alia,
Montreal and of the M.V. Tai Ping, one of the
ships employed in that service. The defendant
Ceres Stevedoring Company Ltd. (hereinafter
called "Ceres"), pursuant to a written contract
with Barberlines serves as stevedore and termi
nal operator for Barberlines at Montreal. The
defendant Metropolitan Marine Terminals Ltd.
is said to be a subcontractor of Ceres.
The Tai Ping arrived in Montreal, on or about
November 9, 1971, with general cargo. Some of
the cargo was discharged by Ceres into the
defendants' care and custody for delivery by
them to various consignees in fulfilment of the
plaintiffs' obligations under the contracts of
affreightment. Some of these goods were not
delivered or were delivered after excessive
delays or in a damaged and short condition.
The plaintiffs seek to recover the monies
paid, pursuant to the contract, in connection
with the particular occasion and general dam
ages for breach of contract and in tort for injury
to their reputation and business. They also seek,
as subrogatees and assignees of the rights of the
cargo owners, to recover the monies they have
paid or expect to pay to such owners in settle-
ment of claims and actions resulting from their
default under the contracts of affreightment.
I have used the term "cargo owners" to
embrace not only owners of cargo but, as well,
consignees, holders of bills of lading, others
who are alleged to have suffered loss and their
respective agents and assignees. I might note,
parenthetically, that two similar actions have
been commenced in this Court against the same
defendants by different groups of the plaintiffs
herein and other plaintiffs in respect of losses
ensuing upon the discharge of cargo from M.V.
Traviata and M.V. Fernbrook, employed in the
same service, following their arrivals in Mont-
real during October, 1971.
The Federal Court of Appeal in The Robert
Simpson Montreal Limited v. Hamburg-Amerika
Linie Norddeutscher' has, in my view, settled
the question of law in issue here.
The essential facts of that case are set out in
the head-note to the trial report. 2
Plaintiff brought action against a carrier and shipowner
alleging that upon the ship's arrival at Montreal, plaintiff's
cargo was found in a short and damaged condition. The
carrier and shipowner denied liability and alleged that the
damage occurred after the cargo was discharged into the
custody of terminal operators, and by third party notices
claimed indemnity from them.
It was held that this Court had no jurisdiction
under section 22 of the Federal Court Act with
respect to the third party claim and that decision
was appealed by the carrier and shipowner.
In the Court of Appeal Thurlow J. [at page
1366] defined the question as:
' [1973] F.C. 1356.
2 [1973] F.C. 304.
... whether the Trial Division of this Court has jurisdiction
to entertain a claim by an ocean carrier against terminal
operators for indemnity in respect of a loss of or damage to
cargo occurring in the course of performance by the termi
nal operators, on behalf of the carrier, of the carrier's
obligations, under the contract of carriage, to discharge, care
for and deliver the cargo.
The Court of Appeal found, as a fact, that the
carrying out of the carrier's obligation to dis
charge, care for and deliver cargo to the persons
entitled to it was "as maritime a matter as is the
contract for the carriage of the cargo by sea".
The Court of Appeal unanimously allowed the
appeal on the basis that the third party claim by
the carrier against the terminal operator was a
claim for relief under or by virtue of both
"Canadian maritime law" and of "any other law
of Canada relating to any matter coming within
the class of subject of navigation and shipping"
and, hence, within the jurisdiction of the Trial
Division by virtue of section 22(1) of the Feder
al Court Act.
22. (1) The Trial Division has concurrent original juris
diction 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.
I cannot see that the capacity in which the
plaintiffs claim relief, be it personally or as
assignees or subrogatees of the rights of others,
or the nature of their claims, be they founded in
tort or in contract, are material. The fact is that
the remedy is sought under or by virtue of
Canadian maritime law and the law of Canada
relating to a matter coming within the class of
subject of navigation and shipping and that is
conclusive of the issue.
I accordingly find that this Court does, by
virtue of section 22(1) of the Federal Court Act,
have jurisdiction over the subject-matter of this
action.
Costs were not asked for.
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.