In this issue:
- Firm and Industry News
- Sub-Contractors Limited When Collecting Freight
- Three Recent Important Cases
A. Limitation of Liability Avoided in Marine Case
B. Bill of Lading Needed to Trigger Hague-Visby Rules
C. Rules Governing Proof of Causation in Negligence Law Clarified.
- Regulatory Developments in Transportation South
of the Border: The
"Moving Ahead for Progress in the 21st Century Act"
1. Firm and Industry News
- Aug. 29th Richmond Hill Ontario - Fall Golf
Tournament Canadian Board of Marine Underwriters
- Sept. 15-19, San Diego - International Union
of Marine Insurers Annual Conference
- Sept. 26-29, Toronto - Canadian Transport
Lawyers Association Annual Conference
- Sept. 26-28, Dublin - International
Marine Claims Conference
Rui Fernandes will be participating in the
TIDA / OTA Cargo Claims Seminar on September 13th, 2010 in Toronto.
Rui Fernandes will be presenting a short report
at the IUMI Annual Conference in San Diego on September 18th titled
"Update on Canadian Developments Affecting Marine insurance".
Limited When Collecting Freight
The Ontario Divisional Court, an appellate level court
and second highest court in Ontario, recently reduced the scope
of the power granted to carriers under the Bills of Lading Act (*1) ("BLA") by disallowing sub-contracted carriers
from being able to rely on the BLA.
The BLA assists carriers to obtain payment
for their transportation services by (potentially) expanding the
group of potential payees of its invoices. Specifically, the BLA imposes a responsibility on consignees to pay the freight of the
goods they received as if they had been the party who had made the
contract with the carrier.
Right of consignee or endorsee
2. 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 himself.
The right of the carrier to look to the consignee
for payment is only triggered where the carriage from shipper to
consignee has the effect of transferring ownership of the goods
from shipper to consignee. In other words, the power to claim from
the consignee is triggered in a classic sale of goods scenario where
the shipper-vendor effects a sale by delivering the goods to the
This ability to "follow the sale" may be
very powerful. Where a shipper absconds, declares bankruptcy or
otherwise defaults on its payment, the subject carrier can always
look to the consignee for payment, who will, at a minimum, have
the value of the cargo itself to offer as payment. In other words,
the BLA provides that carriers' work is guaranteed up to
the value of the goods being moved, even if both shipper and consignee
are insolvent, since, at minimum, the cargo will have some value.
This provides the carrier some measure of guarantee even if its
customers would otherwise be a credit risk.
On the other hand, the power of the BLA is
not a "cure-all". The BLA is not triggered in scenarios
where property rights in the goods are not transferred. For instance,
a carrier may move goods from a manufacturing facility to a distribution
facility that may hold the goods on behalf of the manufacturer.
The distributor may, for instance, hold the goods as an agent to
facilitate an ultimate sale, but not actually acquire any rights
in the goods. In this scenario, the BLA would not be triggered.
There is a second type of scenario where the BLA might be triggered. The consignee, rather than the shipper, may
contract for transportation services to bring goods to its facility,
but the company hired by the consignee may sub-contract the work
to another carrier. Assuming this second carrier issues a bill of
lading, the BLA seems to permit the second carrier to look
to the consignee directly for payment. Since the BLA makes
"every consignee of goods named in a bill of lading subject
to all liabilities in respect of those goods as if the contract
contained in the bill of lading had been made with himself",
the BLA appears to be triggered as between the consignee
and the party who issued the bill of lading regardless of the underlying
It was this second scenario that was considered by
the Ontario Superior Court. In Liberty Line Linehaul Inc. v.
Cangro Foods Inc., 2011 ONSC 7242, the carrier appealed a Small
Claims Court decision where the trial judge refused to allow the
carrier to rely upon the BLA to claim payment from the consignee.
The trial judge determined that the BLA was
not meant to apply to this second scenario because the sub-contracting
in this case was unauthorized. The Ontario Divisional Court, the
appellate court, agreed that the BLA does not apply to sub-contracted
The basic facts:
- The defendant/respondent arranged for the transportation
of canned fruit from its supplier in the United States to its
facility in Canada;
- It hired a large load broker, C.H. Robinson, to
arrange the logistics of the move;
- C.H. Robinson retained a motor carrier on its list
of approved carriers, but that carrier, in contravention of its
agreement with C.H. Robinson, double-brokered the load to a second
carrier, who in turn triple-brokered the load to the plaintiff/appellant,
the performing carrier;
- The plaintiff/appellant completed the transportation
of the goods;
- The transportation effected the sale of the goods
from the supplier to the defendant/respondent (thus, ostensibly
triggering the BLA); and
- The defendant/respondent paid C.H. Robinson who,
in turn, paid the first carrier, the first carrier paid the second
carrier, the second carrier failed to pay the plaintiff/appellant.
The appellate judge reasoned that the plaintiff/appellant
lost its ability to rely on the BLA because it participated
in unauthorized and misleading sub-contracting to get the work.
In my view, the appellant has, by participating
as it did in the unauthorized subcontracting, disentitled itself
from relying on section 2 of the Act. It looked only to Nortown
for payment. (*2)
The BLA does not provide an exception for sub-contracting,
whether authorized or not. It simply allows carriers the right to
collect from consignees named on their bills of lading so long as
the carriage involved the transfer of property rights to the consignee;
however, in this case, the appellate court focused on what it perceived
to be the blameworthiness of the plaintiff.
On one hand, the court noted that the defendant/respondent
was blameless in causing the plaintiff/appellant not to be paid.
After all, the defendant/respondent had paid its original bill to
The respondent, whose conduct was beyond reproach,
was entitled to pay Robinson the amount that it owed, including
what was to be paid by Robinson to Three Star. There was no good
reason why the respondent should not have paid Robinson. Nor was
there any reason for the respondent to think that it might have
to pay someone else. (*3)
On the other hand, the court found the plaintiff/appellant
Throughout all of these related transactions,
Three Star, Nortown and the appellant, by their conduct, including
the preparation and use of misleading documentation, concealed
the unauthorized subcontracting from Robinson and the respondent. (*4)
Once framed in terms of "rightness" and
"wrongness", the court had no difficulty in laying the
loss at the feet of the plaintiff/appellant, whom it perceived to
be in the "wrong":
The appellant must now accept the consequences
that flow from the subcontracting. Its failure to obtain payment
from Nortown cannot be attributed in any way to any fault on the
part of the respondent or of Robinson and it would be manifestly
unjust to require the respondent to make any further payment to
the appellant. (*5)
While the court's logic does appeal to its perception
of fairness, there are reasons to doubt the correctness of the decision.
The appellate court did not specify what the plaintiff
did that misled the defendant/respondent and concealed the unauthorized
sub-contracting. The bill of lading would have listed the plaintiff/appellant
as the carrier when it delivered the goods into the defendants'
hands. Since the defendant/respondent would have provided the plaintiff/appellant
permission to deliver the goods to it, the plaintiff/appellant would
not have been a complete stranger to the defendant/respondent. The
court does not mention whether the defendant/respondent objected
to the plaintiff/ appellant's presence at the time of delivery.
In fact, even in the planning stages, the defendant
knew that C.H. Robinson intended to hire another carrier to make
the delivery. Therefore, it was always in the defendants' contemplation
that a carrier other than the party with whom it dealt with directly
would make the delivery.
Why the appellate court felt that the outcome was
changed by the fact that the ultimate performing carrier was retained
through multiple levels of sub-contracting, rather than only one
level, is unclear. At the end of the day, the defendant knew that
a sub-contractor of one sort or another would be completing the
work. If the sub-contracting had occurred only once, there appears
to be no question that the BLA would have been triggered
and the defendant would have been liable for freight charges. If
the defendant had no involvement in finding or selecting the sub-contractor,
why would the defendant escape liability where the sub-contracting
happened to be done twice? If the sub-contracting of the work was
always an unknown to the defendant, would it not receive a windfall
if it happened to learn that the sub-contracting was done twice?
To add to the confusion, while the appellate judge
focused on the unauthorized nature of the sub-contracting, the trial
judge would have gone farther and stated that BLA is never
meant to apply to anyone except the contracting carrier.
The purpose of the BLA is not to extend liability
to a subcontractor of the original contracted carrier. Such an
extension would be contrary to general contractual principles.
However, one must not lose sight of the fact
that the purpose of section 2 of the Act was to create liability
akin to contractual liability even in the absence of privity of
In other words, the "rightness" and "wrongness"
of the involved parties was irrelevant in the mind of the trial
judge because the BLA was limited in its application to contracting
carriers. The appellate judge did not comment on the trial judge's
Aside from the fact that the BLA contains no
limitation or exception for sub-contractors, there is a practical
reason to doubt the correctness of the reasons of both the trial
judge and the appellate judge. In this case, both courts seemed
to be impressed by the fact that, had the plaintiff been successful,
the defendant would have (1) paid the freight twice for the same
goods; and (2) been forced to pay an invoice of a party with whom
it had no knowledge or expectation of working. However, the courts
did not consider that consignees will always face these two apparently
unfair situations when a shipper makes the transportation arrangements
and then fails to pay. In that scenario, it is clear that the consignee
would be surprised to receive a bill from the carrier, when it had
already paid the freight as part of the sale price. If "surprise"
and "double-payment" are irrelevant to the operation of
the BLA in a situation where the shipper makes the initial
arrangements, why is it relevant when the consignee makes the initial
Therefore, this recent Ontario decision appears to
have been persuaded by unfairness, "double payment" and
"surprise" that arises in all scenarios where the carrier
is unpaid and the BLA might apply.
It will be interesting to see whether this case passes
further scrutiny; however, in the meantime, carriers ought to be
particularly cautious as it will take a ruling of the next level
appeal court, the Ontario Court of Appeal, to set aside this decision.
Until then, the law of Ontario is that the BLA is inapplicable
to sub-contracted carriers.
*1 R.S.C. 1985, c. B-5
*2 para. 10
*3 para. 10
*4 para. 7
*5 para. 11
*6 para. 13
3. Three Recent Important Cases
A. Limitation of Liability Avoided in Marine Case
Peracomo Inc. v. Societe Telus Communications  FCA 199: This is an appeal from the judgment of Justice
Harrington who found liability upon the operator of a vessel that
snagged one of the submarine cables belonging to the Telus company
while fishing. The operator had cut the cable with a saw believing
that it was not in use. A few days later, he snagged the cable a
second time and did the same thing. Justice Harrington held that
the sole cause of the loss was the intentional and deliberate act
of the operator of the vessel. To avoid the limitation of liability,
the plaintiff was required to prove a personal act or omission of
the defendant was committed either "with intent to cause such
loss" or "recklessly and with knowledge that such loss
would probably result". The trial Judge held, for the first
time in Canada, that this test had been met and the defendants were
not entitled to limit liability.
On Appeal, the Federal of Appeal agreed with the trial
Judge on the issue of liability finding, amongst other things, that
the defendants ought to have used up-to-date charts that disclosed
the existence of the cable. The Court also looked at a liability
issue raised on appeal that does not appear to have been raised
at trial. This issue was whether the individual defendant could
be jointly and severally liable with the corporate defendant. The
individual defendant argued that he should not be liable as his
acts were those of the corporation. However, the Federal Court of
Appeal held that employees, officers and directors will be held
personally liable for tortious conduct causing property damage even
when their actions are pursuant to their duties to the corporation.
Concerning the limitation issue, the Appeal Court also agreed with
the trial Judge finding that the defendants intended to physically
damage the cable and that it did not matter whether the defendants
were aware of the actual loss that would result.
The appeal also dealt with the insurance issue. Royal
and SunAlliance Insurance Company of Canada insured the vessel and
the operator for liability. Royal denied coverage on the basis of
section 53(2) of the Marine Insurance Act, S.C. 1993, which
provides that an insurer is not liable for any loss attributable
to willful misconduct. The trial Judge had found that the operator's
conduct was a "marked departure from the norm and thus misconduct".
The owner and operator lost their insurance coverage. The Federal
Court of Appeal was not persuaded that the trial Judge had made
an error and agreed that this misconduct was the proximate cause
of the loss.
The appeal was dismissed in total.
B. Bill of Lading Needed to Trigger Hague-Visby Rules
Cami Automotive, Inc. v. Westwood Shipping Lines
Inc., 2012 FCA 16: This is an appeal from the decision of
Justice Blanchard of the Federal Court of Canada. At trial, the
claimant sued the defendants for damage to cargo carried under a
through bill of lading. The cargo was damaged as a result of a train
derailment. The defendants were the charterer of the carrying vessel,
the owner of the carrying vessel and the rail carrier. The claimant
and the charterer of the vessel, Westwood Shipping Lines Inc., conducted
business under annual service contracts for the carriage of containers
from Japan to Toronto, pursuant to which a "Shipping Document"
was issued when containers were loaded for carriage.
The trial judge held that the "Shipping Document",
which was entitled "Waybill" was a waybill and not a bill
of lading. As such, the trial judge held that the Hague-Visby Rules
were not compulsorily applicable since a "bill of lading"
had not been issued.
On appeal, the Federal Court of Appeal dismissed the
appeal and very short reasons were given. The Court stated:
Turning now to the appeal, despite the numerous
arguments made by counsel for the appellants, we are all of the
view that this appeal cannot succeed
Given these arguments,
we need say no more than we have not been persuaded that the Federal
Court Judge committed errors of law or principle that warrant
our intervention. Nor have we been persuaded that the Federal
Court Judge committed palpable and overriding errors while making
his findings of fact.
C. Rules Governing Proof of Causation in Negligence Law Clarified.
Clements v. Clements, 2012 SCC 32: In
this June 2012 decision, the Supreme Court of Canada clarified the
rules governing proof of causation in the law of negligence and
endorsed a vigorous approach to establishing causation in Canada.
The Court affirmed the "but for" test. It
confirmed that the law requires a plaintiff to prove on a balance
of probabilities that the injury or loss would not have occurred "but for" the defendant's negligent act.
The trial judge is to take a robust and common sense approach in
determining whether a plaintiff has proved, as a matter of fact,
that the defendant's negligence caused the loss. Only in exceptional
circumstances can proof of factual causation be replaced by proof
of a material contribution to the risk that gave rise to the injury.
In Clements v. Clements, the plaintiff was
a passenger on her defendant husband's motorcycle. The motorcycle
was overloaded by approximately 100 pounds, and the defendant accelerated
in order to pass a car. The weather was wet. Mr. Clements was driving
the bike. A nail that had previously punctured the bike's rear tire
fell out, causing the rear tire to deflate suddenly during the passing
manoeuvre at 120 km/h in a 100 km/h zone. Mr. Clements was unable
to bring the bike under control and it crashed, ejecting Mrs. Clements.
Mrs. Clements suffered a severe traumatic brain injury. She sued
her husband, claiming that her injuries were caused by his negligence.
The defendant did not dispute his negligence in operating
the motorcycle too fast and overloaded; however, he took the position
that his negligence did not cause Mrs. Clements' injury. He called
expert evidence that the probable cause of the accident was the
tire puncture and deflation, such that a crash would have occurred
even without his negligent acts.
The Trial Decision
The trial judge found that the plaintiff was unable
to prove that she would not have been injured "but for"
the defendant's breaches, due to the limitations of the scientific
expert evidence in the case. The trial judge instead applied a "material
contribution" test and found the defendant liable on this basis.
The British Columbia Court of Appeal
On appeal, the Court of Appeal set aside the judgment
against Mr. Clements on the basis that the "but for" causation
had not been proved and the material contribution test did not apply.
The Supreme Court of Canada
The Supreme Court concluded that the trial judge erred
(i) requiring scientific proof as a necessary condition for finding
"but for" causation; and
(ii) applying the "material contribution to risk" test.
The majority of the Supreme Court ordered a new trial,
since the trial judge's errors of law were such that the Court could
not be certain what the trial judge would have decided had he applied
the law correctly.
The Supreme Court clarified that the law of negligence
by holding that the "but for" causation test must be applied
in a "robust common sense" fashion. There was no need
for scientific evidence of the precise contribution that the defendant's
negligence made to the injury.
Where "but for" causation is established
by inference only, it is open to the defendant to argue or call
evidence that the accident would have happened without the defendant's
negligence, i.e. that the negligence was not a necessary cause of
the injury, which was, in any event, inevitable.
As a general rule, the plaintiff must show that he
or she would not have suffered the loss "but for" the
negligent acts of the defendant.
Exceptionally, a plaintiff may succeed by showing
that the defendant's conduct materially contributed to risk of the
plaintiff's injury, where:
(a) the plaintiff has established that her loss would
not have occurred "but for" the negligence of two or more
tortfeasors, each possibly in fact responsible for the loss; and
(b) the plaintiff, through no fault of her own, is
unable to show that any one of the possible tortfeasors in fact
was the necessary or "but for" cause of her injury, because
each can point to one another as the possible "but for"
cause of the injury, defeating a finding of causation on a balance
of probabilities against any one.
The special conditions required to apply the "material
contribution" test were simply not present in the Clements
In the exceptional case described above, fairness
demands that the defendants cannot be permitted to escape liability
by pointing fingers at one another. The "material contribution"
approach is a policy-driven rule of law that meets the underlying
goals of the law of negligence. It applies if the plaintiff has
established the "but for" test globally, but cannot show
which of several negligent defendants actually launched the event
that led to the injury. In such cases, each defendant who contributed
to the risk of the injury can be faulted. The special conditions
required to apply the "material contribution" test were
simply not present in the Clements case.
The Court explicitly left open situations such as
a mass toxic tort involving multiple plaintiffs where statistical
evidence can establish that a defendant's acts induced an injury
to some members of the group, but it is impossible to know which
4. Regulatory Developments in Transportation South
of the Border: The "Moving Ahead for Progress in the 21st
Our newsletter does not usually feature reports or
comments on legislation enacted beyond our borders; however, the
above legislation (signed into law on July 6, 2012 by President
Obama) is worthy of note "north of the border". Some of
these initiatives will affect Canadian motor carriers, freight forwarders
and freight or load brokers who operate in the United States. Elements
of the new legislation, highlighted below, illustrate further attempts
to "harmonize" the regulation of motor carrier highway
safety in both countries while at the same time certain provisions
reflect a growing disparity in how the two countries regulate certain
practices - in particular, for the purposes of this article, freight
intermediary operations. In the United States, the 'noose' is tightened;
in Canada, there is no 'noose'.
First, a caveat: this article is only intended as
a notice of some of the significant initiatives soon to be implemented
south of the border. It is not purported to be legal advice or a
detailed analysis of the U.S. law.
The actual title of the legislation is descriptive
as to its wide reaching scope: "An act to provide an extension
of Federal - Aid highway, highway safety, motor carrier safety,
transit, and other programs funded out of the Highway Trust Fund
pending enactment of a multi-year law authorizing such programs,
and for other purposes". Commentators south of the border
describe the legislation as "wide sweeping" as the new
law calls for the creation of a national freight transportation
policy with an aim to speed up the construction of highway projects
and to increase financing leverage for private infrastructure work
by the funding of transportation programs through to September of
2014. The legislation goes far beyond infrastructure initiatives.
It adds "teeth" to the regulation of those involved in
the commercial surface transport of goods. Canadian motor carriers,
freight forwarders and freight brokers that carry on operations
in the United States need to take immediate note regarding what
will be required of them.
The Growing Disparity
1. The new legislation further refines the requirements
for the registration and licensing of motor carriers (when acting
as a broker or an intermediary), freight forwarders and freight
In contrast, Canada does not, generally speaking,
regulate motor carriers (when acting as intermediaries), freight
forwarders or freight brokers. While motor carriers are regulated
in terms of highway safety and accountability for their equipment
and their drivers employed and the like, in some provinces (Ontario,
for example) motor carrier operating authorities are not required.
Freight forwarders and freight brokers are not regulated in Canada
with one exception, it being understood that freight brokers are
required to be registered in the province of Quebec.
2. Effective October 1, 2012, motor carriers in
the United States will be prohibited from "brokering"
shipments to third parties unless they have registered as a freight
forwarder or a broker under the new law. The new legislation contemplates
that the United States Department of Transportation will issue
a distinctive registration number for each authority issued which
will include an indicator of the type of activity or service for
which the registration number is issued. Motor carriers may continue
to operate without this authority where they carry the cargo or
operate under a conventional "interline" arrangement
(i.e. where the carrier physically transports the cargo at some
point or for some leg of transit under the carriage mandate with
the shipper, and where that carrier retains liability for the
cargo for the whole duration of transport and for payment of the
Non-Vessel Operating Common Carriers ("NVOCC's"),
customs brokers and certain "indirect" air-carriers
will be exempt from the foregoing broker registration and licensing
requirements to the extent that they are already compliant with
and specifically licensed under U.S. law.
In contrast to the foregoing, Canada does not regulate
motor carriers in the brokering of shipments to third parties nor
does it regulate freight forwarders and load brokers either generally
on or their 'double-brokering' of shipments.
3. Also effective October 1, 2012 the surety bond
requirement for freight brokers in the United States will be dramatically
increased from $10,000 to $75,000. This surety may also be by
way of proof of trust fund or other financial security, or a combination
thereof. Freight forwarders will have to have the same surety
bond protection. The new $75,000 surety bond requirement will
also be imposed on motor carriers who broker out freight, who
as indicated above will have to be licensed as brokers.
Remarkably, by way of comparison, freight intermediaries
in Canada do not have to have surety bonds in place. By extension,
motor carriers who broker freight in Canada do not have to have
a surety bond.
The intention behind this increase in the U.S. surety
bond requirement is an attempt to eliminate fraudulent transactions
involving intermediaries in the United States. Motor carriers will
benefit to the extent that there will now be greater security behind
brokers who are responsible for the payment of their freight charges.
This initiative might also reduce the increasing spate of the "identity
theft" of cargo: a more rigid "profiling" of all
parties involved in the chain of transportation should make for
more accountability as to exactly who is being engaged each step
of the way. With this accountability, the unauthorized brokering
of freight should be reduced, with a more limited publication or
broadcast of cargo-related information that might otherwise bet
transmitted into the "wrong hands". The new regime may
also reduce the problem of the "phantom carrier" or the
practice of "rogue" entities posing as carriers and who
broker loads to legitimate third party carriers. The rogue sells
the account receivable owing from the initial shipper to a factoring
company, gets paid who then disappears...
There might also be the most important benefit in
terms of increased highway safety; that is, with the reduced (or
at least more "deliberate") brokering out of shipments,
a party tendering freight to the actual performing carrier may now
have increased confidence that they actually know who will be carrying
the freight. Greater transparency as to which carrier is actually
involved may provide for more carrier accountability.
A Few Steps Towards Harmonization
As mentioned there are some elements in the new law
that brings uniformity between Canada and the United States. The
new legislation features a provision concerning "Canadian
Safety Rating Reciprocity". If an authorized agency of
the Canadian federal government or a Canadian territorial or provincial
government determines in accordance with United States standards
that a Canadian carriage operation is unfit and prohibits the same
from operating a commercial motor vehicle in Canada or any Canadian
province, then the U.S. authorities may prohibit the same from operating
such vehicle in interstate commerce until the authorized Canadian
agency deems the carriage operator to be fit. The new legislation
will also require commercial motor vehicles to be equipped with
electronic logging devices so as to improve compliance by an operator
of a vehicle with hours of service regulations. Canadian based motor
carriers who will be operating in the United States will have to
take note regarding compliance in this regard. In Canada, provinces
such as Ontario, provide that a driver may make the required daily
log either in handwriting, by computer or by way of an electronic
or other type of recording device installed in the vehicle. This
latter option will enable compliance in both jurisdictions with
the use of the same technology.
The harmonization of laws makes things simpler in
terms of compliance for the motor carrier, forwarder or broker.
It is the disparity in the law that makes things more challenging.
This article has touched on only a few of the significant developments
reported from south of the border. Each carrier, forwarder and broker
involved in cross-border, inter-state or intra-state trade will
have to be proactive and careful in determining which regulatory
regime(s) their operations fall under. Consideration must be given
to questions such as: where is the brokering taking place? Which
law and, in turn, which regulations will govern? If the brokering
entity carries on business from a location in the United States,
the answer is perhaps not so difficult. But what, for example, of
an Ontario based entity that brokers out a load with a U.S. carrier
for carriage over a routing located in whole or in part in the United
States? This is an issue that must be taken into consideration in
the particular circumstances of each case, perhaps to be referred
to a qualified U.S. attorney to opine as to the "reach"
of the U.S. law.
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