2011 NBQB 16, 2011 NBQB 16

2011 NBQB 016 B/C/28/09 COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST PRO TRANSPORT LTD., Plaintiff, -and- DAY & ROSS INC., Defendant BEFORE: The Honorable Mr. Justice J. A. Réginald Léger HELD AT: Bathurst, NB DATE OF TRIAL: December 21 st , 2010 DATE OF DECISION: January 19 th , 2011 APPEARANCES: Terrence P. Lenihan, for the plaintiff Hélène Beaulieu, for the de fendant DECISION [ 1 ] On August 14 th , 2008, the plaintiff entered into a contract with the defendant carrier for the transportation of two pallets from Bathurst, New Brunswick to Edmonton, Alberta.

One pallet was received by the plaintiff, but the other pallet was never delivered to the plaintiff. The plaintiff, in this simplified procedure action under Rule 79, is claiming damages for the loss of a hydraulic pump and for the cost of rental of another pump.

The plaintiff is also seeking damages for extra expenses caused by the delay and non- delivery of the pump as well as for loss of profits due to the delay in contracts caused by the non-delivery of the hydraulic pump. [ 2 ] The defendant company has indicated from the outset it he is prepared to pay the plaintiff the sum of $5630, which is their maximum liability, as specified in the contract entered into with the plaintiff by way of a Bill of Lading.

The defendant, based on the terms and conditions of the limitation clause contained in a Bill of Lading is not prepared to pay the amount claimed by the plaintiff, which far exceeds the maximum liability provided by the contract between the parties. FACTUAL BACKGROUND [ 3 ] The factual background to this action is fairly simple. The plaintiff requested the defendant carrier to transport two pallets to Edmonton, Alberta from Bathurst, New Brunswick. On August 14 th , 2008, a Bill of Lading was signed by the plaintiff’s representative.

The Bill of Lading indicates that one pallet weighed 2251 lbs and the other pallet weighed 564 lbs. The bill of lading on the front page of the document indicates as follows: Maximum liability of $2.00/lb or $4.41/kg computed on the total actual weight unless declared valuation states otherwise. Please see additional terms and conditions on reverse. [ 4 ] In the instant case, no value was declared by the Plaintiff in the space reserved to indicate the value of the property on the Bill of Lading. It is also important to note the relevant terms and conditions on the reverse side of the Bill of Lading which reads as

follows: 1. UNIFORM TERMS OF CARRIAGE TO APPLY This contract for carriage of goods includes all uniform terms of carriage enacted for the carriage of general freight pursuant to any statute, regulation or by any lawful authority, which is in force and effect in the jurisdiction of origin of this contract at the time of shipment. […] 5. LIMITATION OF LIABILITY

(1) Unless the consignor has declared a value of the goods on the face of the Bill of Lading, the amount of any loss or damage for which the carrier is liable, whether or not the loss or damage results from negligence shall be the lesser of :

a) the value of the goods at the place and time of shipment, including freight and other charges if paid, and b) $4.41 per kilogram computed on the total weight of the shipment.

(2) The parties agree that the carrier cannot reasonably be aware of the consignor, consignee, owner or any other

part in the event of the loss of use of the goods due to the late, delayed or non-delivery of the goods, the whole partial destruction of all or any part of the goods however caused. Accordingly, the carrier is not liable for the indirect, consequential or incidental loss occurring to any party because of the loss of late, delayed or non-delivery or damage to the goods. [ 5 ] As mentioned, the defendant, based on the maximum liability provision of the contract, is prepared to pay $5630. The claim manager, Sean Kee, related in his affidavit the efforts that were made to locate the pump which was never found. Mr.

Kee, states that following his search and inquiries, he could not find any evidence that the pallet containing the plaintiff’s pump was ever received in Edmonton, Alberta. [ 6 ] More particularly, Mr. Kee states: I have also reviewed the Affidavit of Robert Landry dated August 15, 2009 which refers to an employee who would have allegedly informed him that the two pallets had been received at the terminal in Alberta. As a result, I have made inquiries as to which, if any, employee would have so indicated and have been unable to locate that person.

Based on my searches and inquiries, I have no information and no proof that the pallet weighing 2251 lbs was ever received in Edmonton, Alberta. […] Based on the above noted search and further inquiries, I verily believe that the pallet weighing 2251 lbs was lost in transit between Bathurst, New Brunswick and Edmonton, Alberta.

We are unable to determine at what point the goods were lost. [ 7 ] The plaintiff, in his affidavit, states that he had been advised by employees of the defendant carrier in Edmonton that the pallet had indeed been received but that it had been loaded by mistake on a truck belonging to another contractor. [ 8 ] In his affidavit, pursuant to Rule 79, Robert Landry related the following as to his conversation with the defendant’s employee: That when the two pallets arrived in Edmonton I did personally speak with the dispatcher on or about August 19, 2008 who informed me that the two pallets arrived, so I sent a company truck to pick the items up however when we arrived at the depot, only one pallet was located and the other couldn’t be found.

That I was in contact with the defendant every day because it was important that the pump be located because we were leaving Edmonton and going to another project in the N.W.T. and I needed the pump to carry out that job. We remained in Edmonton for three extra day hoping that the pump would be located. Finally, we had to leave and we rented a replacement pump but it was impossible to rent a pump with the same capacity as the one on the missing pallet. The invoice for the rental of a pump is attached hereto and marked as exhibit “B”.

That over the next few weeks, I was in regular contact with the defendant and their employees advised me that both pallets had definitely arrived and their arrival was confirmed by the documents of the defendant company, but the explanation given to me was that the missing pallet which contained the pump was loaded by mistake onto a truck belonging to another contractor as part of a shipment for the other contractor and that they would try to locate the missing pallet. [ 9 ] The defendant objected to some of the assertions of Robert A.

Landry contained in his affidavit arguing that some of the evidence is inadmissible. Rule 79.04 states:

In this rule, affidavit of witness means the affidavit of a person which contains the evidence that that person would give and be allowed to give orally. I find the evidence of Mr. Landry admissible. [ 10 ] On November 10 th , 2008, Robert A. Landry, on behalf of the plaintiff, executed a Standard Form for Presentation for Shortage and Damaged claims. The plaintiff in the form, claims $18 785 for the lost hydraulic pump. Interestingly, the detailed statement made by Mr.

Robert Landry showing how the claim amount is determined reads as follows: Replacement value of pump $18 785.10 High pressure hydraulic pump for moving heavy transformers. Half of the shipment went to destination but the other half (pump) had been lost or stolen while it was moved from Bathurst, NB to Edmonton, Alberta. I had to buy another pump to do my job. ISSUE [ 11 ] The only issue raised by the present action is the extent of the liability of the defendant carrier.

Is it limited to the amount provided by the limitation of liability clause contained in the Bill of Lading or as alleged by the plaintiff, the limitation of liability clause has no application in the present circumstances as the hydraulic pump was erroneously given to another customer.

ANALYSIS AND DECISION [ 12 ] The plaintiff agrees that if the evidence would clearly indicate that the pallet containing the hydraulic pump would have been lost in transit, then the limitation of liability clause contained in the Bill of Lading would apply and consequently, the defendant’s liability towards the defendant would be limited to $5630, that is the amount calculated on the declared weight on the Bill of Lading.

As I understand the plaintiff’s argument, the plaintiff takes the position that since the evidence indicates that the pallet weighing 2251 lbs made its way to Edmonton and that it was erroneously loaded onto the truck of another customer, then the limitation of liability contained in the Bill of Lading does not apply as the defendant was no longer acting as a carrier from that point on but rather as a warehouseman.

The plaintiff goes on to argue that given the defendant’s negligent actions, it should be held liable to the plaintiff for the damages as claimed. [ 13 ] On the whole of the evidence, I conclude that the limitation clause clearly applies. The plaintiff chose not to declare the value of the goods being transported from Bathurst to Edmonton, in the province of Alberta. According to the limitation clause, the defendant’s maximum liability is as set out in the Bill of Lading. In the instant case, it amounts to $5630 based on the declared weight of the item transported computed at $2 per pound.

It is also interesting to note that the Bill of Lading also provides that “the carrier is not liable for the indirect, consequential or incidental loss occurring to any party because of the loss of, late, delayed or non-delivery or damage to the goods.” In my view, the plaintiff’s argument that the defendant was no longer acting as a carrier once the pallet weighing 2285 lbs made it to the defendant’s place of business in Edmonton has no merit. Firstly, on a preponderance of the evidence, I have not been persuaded that the pallet was ever received in Edmonton.

The plaintiff’s assertion that he was told that the pallet was in fact received in Alberta and erroneously given to somebody else is not supported by the evidence of Sean Kee who verified the company’s records. It is also contrary to the assertion made by Robert A. Landry when he filed his claim form for shortage of shipment on November 10 th , 2008.

The whole of the evidence leads me to conclude that the hydraulic pump was more likely than not lost in transit. [ 14 ] The evidence satisfies me that the defendant was at all times, a carrier for transportation of the plaintiff’s property and cannot be considered under the present circumstances in a bailment situation as alleged. Clearly the defendant carrier is the present circumstances cannot be held liable for any loss other than the loss as provided by the limitation clause in the Bill of Lading. See also: Day & Ross v.

Beaulieu [2005] N.B.C.A. 25. [ 15 ] For those reasons, I find that the plaintiff’s claim is limited to the amount of $5630. Given the outcome of the action, the defendant is entitled to cost which I fix at $1000, together with all allowable disbursements. [ 16 ] In the event that I am wrong on the issue of liability, it is necessary to now address the question of damages as claimed by the plaintiff. By way of affidavit evidence, the plaintiff claims for the loss of its hydraulic pump at a value of $18 785. The plaintiff has introduced evidence establishing the cost of a new pump, namely $18 785.10.

Regrettably, there is absolutely no evidence about the

condition of the lost hydraulic pump or its value. Courts should not be asked to speculate as to specific damages. Given the obvious lack of evidence, I am unable to allow any amount for the loss of the plaintiff’s hydraulic pump. The plaintiff further claims for the cost of a rental pump in the amount of $1470, which I would allow. The evidence supports allowing the amount claimed for the rental of a pump. The cost of transportation is also claimed and allowed in the amount of $600. The plaintiff also claims $3360 as extra expenses while waiting for the new pump to arrive.

On the evidence, I would allow $3840 under this head of damages, including the extra cost of hotels and meals for the employees. Finally, the plaintiff is claiming the amount of $3000 for loss of profits. The evidence is insufficient to allow this portion of the plaintiff’s claim. A simple statement in an affidavit without supporting documents that the plaintiff’s company suffered a loss of profit of $3000 is clearly insufficient evidence to allow any amount for a loss of profit claim. [15] In

summary, the plaintiff is entitled to judgment against the defendant in the amount of $5630. I assess provisional damages in the amount of $5910. The defendants are entitled to cost in the action in the amount of $1000, together with all other allowable disbursements. January 19 th , 2011 ___________________________ Bathurst, NB J. A. Réginald Léger, J.C.Q.B.