A-713-75
Montreal Shipping Co. Ltd. (Appellant)
(Defendant)
v.
The Queen (Respondent) (Plaintiff)
Court of Appeal, Pratte and Le Dain JJ. and
Marquis D.J.—Quebec, June 27, 1977.
Maritime law — Newsprint stored in National Harbours
Board warehouse — Crown claiming storage charges
Appellant claiming Crown lacks power to levy charges and
that free time period applies to goods stored in sheds —
Appeal allowed — National Harbours Board Act, R.S.C.
1970, c. N-8, ss. 14, 16(1) and By-law B-3, ss. 2(d),(e), 5(1), 7,
8, 11, 12, Sched., Part III.
APPEAL.
COUNSEL:
Raynold Langlois for appellant.
Y. J. A. Brisson for respondent.
SOLICITORS:
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for appellant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: This is an appeal from a decision by
the Trial Division' ordering appellant to pay
respondent the sum of $4,687.36 claimed by her as
charges for storing goods in a shed at the harbour
of Quebec City.
At the hearing respondent claimed that the
money in question was owing to her as demurrage
under By-law B-3 adopted in accordance with
section 14 of the National Harbours Board Act 2 ;
alternatively, she argued that the sum was owing
to her under a contract that she had concluded
with appellant or, in the absence of a contract, in
accordance with the doctrine of unjust enrichment.
' [1976] 1 F.C. 625.
2 R.S.C. 1970, c. N-8.
The Trial Judge allowed the action solely on the
basis of the By-laws cited by respondent. At the
beginning of his pleading on appeal, counsel for
the respondent acknowledged that these By-laws
were the only possible basis for his action, which
consequently should be dismissed if the Court
found that there was no obligation under these
By-laws to pay the amount claimed.
By-law B-3, on which respondent bases her
claim, imposes two types of charges: demurrage
and wharfage. It is established that there is no
question here of a claim for wharfage charges. The
only issue, therefore, is whether the money claimed
is owing as demurrage. The goods whose storage
gave rise to respondent's claim had been placed in
a shed at the harbour of Quebec City, while
waiting to be loaded onto a vessel. Stated more
precisely, therefore, the issue in this case is wheth
er By-law B-3 imposes demurrage on goods stored
before loading onto a vessel as well as on goods
stored after unloading from one.
Section 2(d) of the By-law defines "demurrage"
as follows:
"demurrage" means a charge payable on goods in transit
remaining on Board property after the expiration of free time;
The expression "free time" is defined as follows in
section 2(e):
"free time" means, in respect of any goods, the period within
which the goods must be removed from Board property after
unloading from a vessel with no demurrage charge being
incurred in respect of such period;
If these two definitions are considered together
it is clear, in my opinion, that demurrage is
incurred only on goods that remain on Board
property after unloading from a vessel and not on
goods that have not yet been loaded. This conclu
sion is, I think, confirmed by the wording of
section 12 of the By-law and Part III of the
Schedule.
Section 12 is headed "LIST OF GOODS SUBJECT
TO DEMURRAGE", and as I read it the first subsec
tion assumes that goods subject to demurrage are
goods that have been unloaded from a vessel. This
first subsection reads as follows:
12. (1) Where goods have become subject to demurrage, the
owner of the vessel shall ensure the receipt by the Board at its
office at the harbour at which the goods were unloaded, before
noon on the day following expiry of the free time prescribed in
respect of the goods, of a list of the goods, in duplicate, on a
form supplied by the Board.
Part III of the Schedule to the By-law sets the
rates for demurrage, and its preliminary sentence
also implies that only goods unloaded from a vessel
are subject to demurrage. This sentence reads as
follows:
On goods remaining on Board property after the expiration of
free time, demurrage shall be assessed as follows:
I conclude from all of this that the money
claimed was not owing as demurrage under By-law
B-3, since the goods that were stored by respond
ent were stored before loading onto a vessel and
not after unloading.
For these reasons I would allow the appeal, set
aside the decision of the Trial Division and dismiss
respondent's action with costs.
* *
LE DAIN J. concurred.
* * *
MARQUIS D.J. concurred.
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.