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Newsletters 2011 > September 2011

In this issue:
1. Firm and Industry News
2. Charterparty Agreements and Assumption of Jurisdiction by Canadian Courts Under the Marine Liability Act.
3. Demurrage costs, who pays for that?
4. Freight Charges: Case Comment
5. Directors and officers of load brokers not automatically personally liable for their company's failure to pay performing carriers

 

1. Firm and Industry News

  • October 6th, 2011 New York: Association of Average Adjusters of the U.S. Annual Meeting and Dinner
  • October 12 -14 Las Vegas: Trucking Industry Defense Association Annual Meeting
  • November 4th Arlington Virginia: Transportation Law Institute
  • November 29th Toronto: Canadian Board of Marine Underwriters Annual Dinner
  • December 2nd, Montreal: Grunt Club Annual Dinner
  • December 3-7, Hawaii: Joint Meeting U.S. Maritime Law Association, Canadian Maritime Law Association, Maritime Law Association of Australia and New Zealand
  • January 13th, 2012, Toronto: Fernandes Hearn LLP Annual Maritime and Transportation Conference
  • January 14-15, 2012, New Orleans: Conference of Freight Counsel
  • January 20th, 2012, Chicago: Transportation Lawyers Association Chicago Regional Seminar
  • January 20th, 2012, Toronto: Marine Club Annual Dinner

    Rui Fernandes attended the IUMI meetings in Paris France in September. He gave a short speech on Canadian maritime law and loss prevention.

    Kim Stoll was the moderator on the Modal Update panel at the Canadian Transport Lawyers Association Annual Conference in Winnipeg, Manitoba. Martin Abadi presented on the modal update for Marine Law. Gordon Hearn presented a paper at the Conference on "Electronic Discovery" (e-Discovery) in Canada.

    Kim Stoll was invested as President of the Canadian Transport Lawyers Association. Her term will be until September 2012.

    Rui Fernandes attended the Annual Dinner in New York of the Association of Average Adjusters of the U.S. This was the last dinner of the Association. He was present at the inaugural meeting of the new Association of Average Adjusters of the U.S. and Canada.

 

2. Charter-party Agreements and Assumption of Jurisdiction by Canadian Courts Under the Marine Liability Act.

Justice Scott of the Federal Court recently decided T. Co. Metals LLC v. The Vessel "FEDERAL EMS", The Owners, Charterers and All Others Interested in the Vessel "FEDERAL EMS", Canada Moon Shipping Co. Ltd., and Fednav International Ltd. v. Companhia Siderugica Paulista-Cosipa, 2011 FC 1067. This appeal dealt with the particular issue of whether a charter-party agreement constituted a "contract for the carriage of goods by water" pursuant to section 46(1) of the Marine Liability Act providing for Canadian jurisdiction where, among other things, the Hamburg Rules do not apply.

Facts

The plaintiff T. Co. Metals LLC ("T. Co.") owned 806 steel coils that were allegedly damaged in transit between Brazil and Toronto while laden on board the M/V FEDERAL EMS, owned by Canada Moon Shipping Co. Ltd. ("Canada Moon"). Companhia Siderurgica Paulista ("CSP") manufactured and exported steel products, and used Fednav International Ltd. ("Fednav") to transport its products from Brazil to various North American destinations.
The steel coils were loaded on board the M/V FEDERAL EMS on November 16, 2004, and two bills of lading were issued. Each bill incorporated by reference a charter-party by stating the bills were "subject to all terms, conditions, clauses and exceptions as per charter party dated July 28, 2004 at Rio de Janeiro including arbitration clause". The charter-party agreement was signed by CSP as the voyage charterer and Fednav as the owner.

The charter-party agreement also included an arbitration clause stating that any dispute shall be governed by U.S. law and be referred to New York arbitration. The charter-party also included a clause relieving Fednav from liability, and imposed on CSP all risks and liabilities for all matters relating to the loading and good condition of the cargo.

CSP also sent a letter of indemnity, dated November 10, 2004 at Sao Paulo, Brazil, to Fednav. In that letter, CSP confirmed the cargo was loaded on the M/V FEDERAL EMS and covered with plastic sheets. It further provided that Fednav was to ensure that the M/V FEDERAL EMS' ventilation system was working properly throughout the voyage, with CSP holding Fednav harmless from any possible cargo damage from moisture condensation.

Fednav defended on the basis of the terms of the charter-party agreement and the letter of indemnity, and commenced a third party claim against CSP.

CSP brought a motion to stay Fednav's third party action against it on the basis that, according to the charter-party agreement, the parties should be arbitrating in New York. This motion was dismissed and CSP appealed.

Decision of Prothonotary Morneau

On the initial motion, Prothonotary Morneau held that the letter of indemnity sent by CSP to Fednav was an amendment to the charter-party agreement, because "it was drafted to reassure Fednav, that it was intended to resolve a difference of opinion that arose between the parties as to whether it was appropriate to pack the cargo of steel coils in plastic sheeting", and because the letter directly referenced the charter-party agreement.

Prothonotary Morneau also considered section 46(1) of the Marine Liability Act, which permits actions to be commenced in Canada where the port of loading or discharge is in Canada, the person against whom the claim is instituted has a place of business or branch or agency in Canada, or the contract of carriage was made in Canada, even though the contract of carriage provides for arbitration of claims in a place other than Canada (and provided the Hamburg Rules do not apply). Prothonotary Morneau held that, for this section to apply, it must be shown that:

a) there is:
i. a contract for the carriage of goods by water
ii. to which the Hamburg Rules do not apply, and
b) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada, or
c) the defendant has a place of business or an agency in Canada, or
d) the contract was concluded in Canada.

The main point of dispute between Fednav and CSP was whether the charter-party agreement constituted a "contract for the carriage of goods by water".

The Appeal Before Justice Scott

There were three issues under appeal before Justice Scott from Prothonotary Morneau's decision: (1) the standard of review; (2) whether the definition of "contract for the carriage of goods by water" encompasses a charter-party agreement; and (3) whether there was a more convenient forum to litigate than the Federal Court. The focus of this article is on the second issue, as the first and third issues have already been extensively reviewed in the jurisprudence.

Justice Scott agreed with Prothonotary Morneau's conclusion and held that the contract between Fednav and CSP was "found primarily in the charter party rather than in the bills of lading". The bills of lading "functioned only as receipts" because the cargo remained in CSP's possession and did not pass to a third party. In addition, Fednav stated that it, Fednav, was Canada Moon's agent, and admitted that the bills of lading incorporated the standard form charter-party agreement by reference.

Justice Scott also agreed with Prothonotary Morneau that the letter of indemnity was an amendment to the charter-party agreement. Justice Scott referenced the subject line of the letter, which stated "Re: … COSIPA/Fednav - C/P's dated July 22nd and September 21st, 2004". The letter of indemnity "clearly adds to the protection offered already" to Fednav by the clause in the charter-party agreement that CSP would be responsible for loading, stowing, and discharging the cargo, and would hold Fednav free from any liability and expense. It also added to clause 45E) that Fednav guaranteed that, where plastic covers are placed over the cargo, such covers would not be loaded until the port of discharge.

An email exchange between CSP and Fednav indicated that CSP "realized that it was liable for any moisture problems" and so the letter of indemnity was an "added benefit" to Fednav, stating "in clearer terms, and within the scope of the agreed upon charter party, the fact that [CSP] was responsible for the use of the plastic sheets".

Justice Scott then turned to the question of whether the phrase "contract for the carriage of goods by water" included a charter-party agreement. The Marine Liability Act does not define the phrase "contract for the carriage of goods by water", but the ordinary meaning of this phrase could support the interpretation that it includes charter-party agreements.

CSP relied on a comparison between section 46 of the MLA and article 21 of the Hamburg Rules, which are included as a schedule to the MLA, to support its argument that charter-parties were not included in the phrase "contract for the carriage of goods by water". Justice Scott held that a distinction should be made between "scheduled material which is part of the enactment, scheduled material not made part of the enactment, and scheduled material set out for convenience only". The Hague-Visby Rules are part of the first sort of scheduled material, and therefore have "the same force as the remainder of the legislation". However, the Hamburg Rules are not yet in force in Canada and so fall into the third sort of scheduled material which have no legal effect.

Both the Hague-Visby Rules and the Hamburg Rules exclude charter-parties, except where "bills of lading [are] issued to third parties pursuant to a charter party". Here, however, the bills of lading were simply receipts because the subject goods remained in the possession of CSP and were not given to a third party.

Justice Scott referred to Professor Tetley for the proposition that the Hamburg Rules "add little to the Hague/Visby Rules in respect of charter-parties". Section 46 of the MLA "includes contracts to which the Hamburg Rules do not apply, but the Hague-Visby Rules are not excluded", and Justice Scott concluded that the scheme of the MLA "strongly suggests that the expression 'contract for the carriage of goods' in section 46 is meant only to apply to charter parties where there is a… bill of lading or any similar document… issued under or pursuant to a charter-party". Here, the bills of lading "do not regulate the relations" between Fednav and Canada Moon and CSP; rather, the relationship between Fednav and CSP "is governed by the charter party" and therefore section 46 of the MLA is not applicable.

Justice Scott then considered the object of the MLA, which was noted as being "to consolidate existing marine liability regimes". In particular, the object of section 46 was to "confer Canadian jurisdiction in situations where a bill of lading stipulates that disputes must be submitted to foreign courts" given the fact that the "Hague-Visby Rules, unlike the Hamburg Rules, contain no jurisdiction clause". However, Justice Scott noted that in this instance "this is clearly not the case" because "the reference to a foreign forum [i.e. the U.S.] is found directly in the charter party, negotiated freely by the parties". Section 46 is a transitional provision which is applicable until the Hamburg Rules come into effect, and therefore Fednav's interpretation which would give it a "broader interpretation than the Rules that it will eventually replace" is illogical.

Parliament's intention in including section 46 in the MLA was to include a jurisdiction clause similar to that included in the Hamburg Rules. Justice Scott did not agree with Prothonotary Morneau's reasoning that, "if Parliament had wanted to clearly exclude charter parties from subsection 46(1), it would have, at some point in time, included in the MLA a provision similar to Article 2(3) of the Hamburg Rules, especially since these rules are still not in force in Canada". To the contrary, Parliament enacted section 46 with the clear intent "to act as a transitional provision" and there was "therefore, no need to enact a provision similar to article 2(3) to specifically exclude charter parties, because the intent was that they were excluded". The Hague-Visby Rules exclude charter-parties from the definition of contract of carriage, and it would therefore be "redundant" to add a provision similar to article 2(3) of the Hamburg Rules.

Justice Scott concluded that:

It is clear that the Hague-Visby Rules are part of the Act and in force in Canada and that they stipulate that charter-parties are excluded except in the specific circumstances discussed above. Moreover, the Hamburg Rules, which exclude charter parties, although not in force, were also in the minds of the drafters of Part V of the Act. An interpretation based on the ordinary meaning of the terms "contract for the carriage of goods" in section 46 leads to the exclusion of charter parties, primarily because they are excluded in the Hague-Visby Rules, which are incorporated into the Act and also because it is not logical to assign to a transitional disposition a broader and different interpretation than that given to the international convention that it will eventually replace, particularly when that convention is appended as a schedule to the Act. Finally, it has been recognized that the courts can turn to international treaties to interpret domestic legislation. The Court finds that the cumulative effect of these factors weighs in favour of an interpretation of "contract for carriage of goods" in section 46 of the Act that excludes charter parties.

Fednav therefore cannot rely on section 46(1) of the MLA, the appeal was allowed and Fednav's third party claims against CSP are stayed pending the conclusion of arbitration in New York in accordance with the charter-party agreement.

Parties should therefore take care when concluding charter-party agreements to ensure that the jurisdiction of the Canadian courts is not unwittingly set aside in favour of arbitration or litigation in foreign courts.

Kimberly Newton


3. Demurrage costs, who pays for that?

In a decision of last year, Justice Bond of the Court of Québec determined whether the entity handling and transshipping cargo could be held liable for the payment of demurrage costs to the railway company in the event of a delay in the unloading of the cargos. See Compagnie des Chemins de Fer Nationaux du Canada v. Compagnie d'Arrimage de Québec Ltée, 2010 QCCQ 942 (CanLII).

Compagnie des Chemins de Fer Nationaux du Canada ("CN"), a railroad company, claimed that some train wagons were not unloaded on time and that, pursuant the Canada Transport Act, Compagnie d'Arrimage de Québec Ltée ("Arrimage"), a company specialized in handling and transshipping of cargo and responsible for the unloading of the said cargo, was liable for the payment of $53,625.00 in demurrage costs. Arrimage denied owing any money to CN arguing that at no relevant time was it acting as consignee or shipper of the subject cargo and that it had no legal relationship with CN, as no contract had ever been signed between the parties regarding the payment of such demurrage costs. CN sued for the full amount of the demurrage costs.

The issue in this matter was whether the entity handling and transshipping cargo can be held liable for the payment of demurrage costs to the railway company in the event of a delay in the unloading of cargo.

The Court held that demurrage costs were included in the transportation cost of the cargo stating:

"[TRANSLATION] Thus, those costs are included in the transportation cost and billed as representing the price for the transportation of the goods.

[95] Demurrage is one of those rates or charges a railway company is entitled to exact from its customers because it relates to the movement of traffic.[…]

However, it seems admitted that those costs, of a compensatory nature, must not be charged when the delay is caused by the railway company as it was held by the Federal Court in Canadien Pacifique Limitée c. Canada (Office des Transports). […]

The Court then went on to decide that since the demurrage costs were included in the transportation cost of the cargo, they could only be claimed against the party having signed a transportation agreement with CN. Consequently, the Court had to decide whether Arrimage was a "shipper" pursuant the Canada Transport Act and ultimately agreed with Arrimage's position:

"[TRANSLATION] On that point, the Court adopts the conclusions of Justice Wedge in the Neptune case where she assessed the expression "shipper" in the English version of the Canada Transport Act.

[97] CN argues that Neptune, as the terminal receiving the shipments in question, was a shipper (one who sends or receives goods) as defined by s.6 of the TA. I cannot agree. In my view, a terminal engaged in the trans-loading of commodities is not, without more, a shipper (that is, one who "receives" goods) within the meaning of the CTA. A trans-loading facility that receives goods only to unload them for eventual shipment to their purchaser does not "receive" those goods within the meaning of the statute."

Having found against the potential status of Arrimage as a "shipper", pursuant to the Canada Transport Act, the Court then assessed whether Arrimage could be considered as a "consignee" pursuant to the same Act and reached the same conclusion:

"[TRANSLATION] In regards to the word "consignee", it is not defined in the Canada Transport Act. […] Arrimage did not sign any undertaking or contract. Consequently, it cannot be, as the party in charge for the unloading of the cargos, liable for the demurrage cost…"

For those reasons, the Court held that Arrimage was not liable for the payment of the demurrage costs to CN. The case was dismissed.

David Huard

 

4. Freight Charges - Case Comment

Cassidy's Transfer & Storage Limited v. 1443736 Ontario Inc. operating as Canada One Sourcing and the Attorney General of Canada 2011 ONSC 2871 (CanLII) Ontario Superior Court

Background

The plaintiff carrier transported several million dollars of socks from North Carolina to Canadian Forces bases in Montreal and Edmonton. Invoices for freight charges exceeding $50,000 went unpaid by the shipper, Canada One Sourcing ["Canada One"] which declared bankruptcy. Canada One had entered into a contract with the Canadian government to supply the socks and, in this capacity, it had procured the carriage services in question.

The freight costs were included in the price of the product, which was paid by the government after the various consignees confirmed the safe delivery of the product at destination. The majority of the bills of lading were marked 'freight prepaid'.

Issue

What was the effect of the 'freight prepaid' language? Did this amount to a waiver of some sort by the carrier preventing it from seeking payment from the consignees?

Decision and Result

S. 2 of the Canadian Bills of Lading Act provides:

Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned passes on or by reason of the consignment or endorsement, has and is vested with all rights of action and is subject to all liabilities in respect of those goods as if the contract contained in the bill of lading had been made with the consignee.

[Emphasis added]

The Court ruled that, on the facts, the 'freight prepaid' language did not amount to a waiver of the carrier's 'protection' in s. 2. The Court affirmed that this section provides a presumption that a consignee can be held liable to pay freight charges. This presumption, however, can be rebutted by the consignee proving both the existence of some arrangement by the carrier whereby the shipper alone would be held responsible for the charges and that the carrier had waived the protection of s.2. This waiver may be express or implied and may arise if, on the facts, a consignee reasonably interprets and relies on 'freight prepaid' language as meaning that the carrier had indeed been paid for the freight.

The Government of Canada was ordered to pay the unpaid freight charges.

Gordon Hearn

 

5. Directors and officers of load brokers not automatically
personally liable for their company's failure to pay performing carriers

In Ontario, a load broker who arranges for a carrier to transport goods is required to hold funds received for payment of freight charges in trust for the performing carrier. This could mean that, if the load broker was a corporation, the directors and officers could be held personally liable if the company failed to properly carry out its trust obligations. Prior to 2006, this obligation was contained in the Truck Transportation Act (*1) and thereafter in the Highway Traffic Act (*2).

In a recent decision, the Ontario Superior Court determined that, under the Truck Transportation Act regime, the directors and officers of a load broker corporation would not be personally liable merely on proof that the carrier was not paid. The court set out the test for what an unpaid carrier must demonstrate in order to satisfy the court that the directors and officers should be held liable.

Below is a summary of that recent case, Travelers Transportation v. 1415557 Ontario Inc. c.o.b. as Platinum Express Worldwide, 2011 ONSC 44, as well as a consideration of the effect upon the current regime under the Highway Traffic Act.

The facts of Travelers v. Platinum

The plaintiff, Travelers Transportation Inc. ("Travelers"), was a motor truck carrier. The defendants were a numbered company operating as a load broker under the name of Platinum Express Worldwide ("Platinum"), and a number of individuals who were, at least at one time during the relationship between Travelers and Platinum, directors and officers of Platinum.

Beginning in May 2004, Travelers and Platinum entered into a load brokerage agreement under which Travelers would provide motor truck carrier services to various shippers and consignees on behalf of Platinum. Travelers performed its carriage services in compliance with that agreement; however, the defendant failed to pay Travelers amounts owed. The total unpaid invoices totaled $57,425.00 plus costs and interest.

Platinum was apparently insolvent, although it never declared bankruptcy or placed under bankruptcy protection. Travelers obtained default judgment against Platinum but also maintained claims against various officers and directors. All of the directors and officers settled with Travelers, but one, Mr. Anthony Persaud, who disputed any liability on his part.

Travelers alleged that Mr. Persaud, as an officer and director, was personally liable for any breach by Platinum of the trust provisions imposed upon it in respect of money received in its capacity as a load broker. There was no issue that the $57,425.00 was owed by Platinum. The only issue was whether Mr. Persaud had any personal liability for Platinum's failure to pay Travelers.

The court's decision and reasons in Travelers v. Platinum

As the events in question occurred in the period prior to the enactment of the Highway Traffic Act, the court applied the law under the Truck Transportation Act. At that time, load brokers were regulated by statute and were required to be certified by the Province of Ontario. In this case, despite the fact that Platinum did not hold the necessary certificates, it was a load broker as defined by law; specifically, it was a "person who arranges, for compensation, for goods owned by one person to be carried by another person who is a carrier" (*3).

Pursuant to section 15 of the regulations of the Truck Transportation Act that governed load brokers (*4), load brokers were required to hold any monies they received from the party paying the freight bill in trust. These trust monies were then required to be provided to the motor carrier as soon as the motor carrier had completed its services.

Travelers relied on settled law in Canada that directors and officers can be personally liable for their company's failure to properly carry out trust obligations. Given that Mr. Persaud was a director and officer of Platinum and Platinum had failed to pay its outstanding invoices, Travelers argued that it followed that Mr. Persaud was personally liable.

The court disagreed with Traveler's position and found that Mr. Persaud was not liable. The court decided that the failure to pay alone does not establish a breach of trust. Following a decision by the Supreme Court of Canada in Air Canada v. M & L Travel Limited, the court held that there are three grounds under which a director and officer would be liable in the circumstances, and that none of these were established in this case. The three grounds are:

(1) Trustee de son tort;
(2) knowingly assisting in the breach of trust; and,
(3) knowingly receiving trust property.

The first ground was not discussed in the context of this case; this ground refers to the possibility of agents of the trustee, who are not trustees themselves, being treated as trustee in certain circumstances. This was not considered in this case, presumably because there were no issues raised with respect to an agent's management of the trust account.

With regard to the second ground, knowingly assisting in the breach of trust, Travelers needed to establish that (1) the director had actual knowledge of the underlying breach of trust or was reckless or willfully blind to that breach of trust; and (2) that the underlying breach was part of the trustee's fraudulent and dishonest design.

With regard to the third ground, knowingly receiving trust property, Travelers needed to establish that Mr. Persaud took trust funds for himself and knew or was reckless or willfully blind that he was taking trust funds.

However, Travelers could not establish its case under either of the two grounds. Traveler's claim was defeated by the fact that there was no evidence that Platinum had actually been paid. The court found that the trust obligation did not create a stand-alone obligation to pay outstanding invoices. The trust obligation merely created an obligation to keep separate any funds received as payment and to hold them in reserve for the motor carrier. Since there was no evidence that Platinum was ever paid, there could not be any finding that it breached the trust obligation.

Even leaving this aside, the court determined that there was insufficient evidence to determine that Platinum knowingly assisted in the breach or knowingly took trust funds. Travelers failed to adduce any evidence on these points and merely attempted to rely on the fact that the trust obligation existed and the fact that Mr. Persaud was a director as proof enough. The court stated this was unsatisfactory, particularly in light of the fact that there were a number of other directors and officers of Platinum throughout the relationship, making it impossible to presume that Mr. Persaud had awareness of the status of the disputed trust funds.

Application of this case to the current regime

These provisions have since been repealed and replaced with section 190 of the Highway Traffic Act; however, the obligation remains substantially similar.

Below is the language of the old regime (*5):

Trust Account
15. (1) Every load broker shall hold in trust, for the benefit of the carriers to whom the load broker is liable to pay carriage charges, all the money the load broker receives from consignors and consignees in respect of the carriage of goods by carriers except,

(a) money in excess of the carriage charges; and
(b) interest on money held by the load broker for less than thirty days.

(2) Every load broker shall,

(a) maintain an account designated as a trust account in a bank, trust corporation or credit union authorized to carry on business and located in Ontario;
(b) keep the money held by the load broker as a trustee under subsection (1) separate from money that belongs to the load broker;
(c) deposit the money held by the load broker as a trustee under subsection (1) in the trust account without delay after its receipt; and
(d) disburse the money held by the load broker as a trustee under subsection (1) only to persons for whom the money is held in trust and who are entitled to such payment.

Below is the language of the new regime:

Contracts of carriage
Money for contract of carriage held in trust
191.0.1. (3) A person who arranges with an operator to carry the goods of another person, for compensation and by commercial motor vehicle, shall hold any money received from the consignor or consignee of the goods in respect of the compensation owed to the operator in a trust account in trust for the operator until the money is paid to the operator.
Other rights unaffected
(4) Nothing in subsection (3) derogates from the contractual or other legal rights of the consignor, the consignee, the operator or the person who arranged for the carriage of the goods with respect to the money that is held in trust under that subsection.

In comparing the language of the two regimes, the obligations set out with specificity in section 15 of the old Load Brokers regulations are now stated more succinctly in sub-section 191.0.1.(3) of the new regime set out in the Highway Traffic Act. As a result, the result of Travelers v. Platinum is applicable to cases decided under the new regime.

The lesson to take from Travelers v. Platinum, for load brokers and motor carriers alike, is that, while these trust obligations provide some additional protection for payment by requiring load brokers to carefully and scrupulously manage freight monies, it does establish an "ironclad" guarantee that the motor carrier will be paid regardless of the circumstances.

Christopher Afonso

Endnotes:
1. R.S.O. 1990, c T.22.
2. R.S.O. 1990, c H.8.
3. Load Brokers, O. Reg. 556/92, a regulation to the Truck Transportation Act, R.S.O. 1990, c T.22.
4. see endnote 3.
5. Section 15 of the Load Brokers, O. Reg. 556/92, a regulation to the Truck Transportation Act, R.S.O. 1990, c T.22.






 

 


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