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
- October 12 -14 Las Vegas: Trucking Industry
Defense Association Annual Meeting
- November 4th Arlington Virginia: Transportation
- November 29th Toronto: Canadian Board of
Marine Underwriters Annual Dinner
- December 2nd, Montreal: Grunt Club Annual
- 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
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
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.
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.
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
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
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
bill of lading or any similar document
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.
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
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
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.
 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.
 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
"[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
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
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'.
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.
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
5. Directors and officers of load brokers not automatically
personally liable for their company's failure to pay performing
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.
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
(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):
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
(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
(c) deposit the money held by the load broker as a trustee under
subsection (1) in the trust account without delay after its
(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.
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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