2011 NBCA 104, 2011 NBCA 104

COURT OF APPEAL OF NEW BRUNSWICK 20-11-CA PRO TRANSPORT LTD. APPELLANT PRO TRANSPORT LTD. APPELANTE - and - - et - DAY & ROSS INC. RESPONDENT DAY & ROSS INC. INTIMÉE Pro Transport Ltd. v. Day & Ross Inc., 2011 NBCA104 Pro Transport Ltd. c.

Day & Ross Inc., 2011 NBCA104 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen'sBench: January 19, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 19 janvier 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 16 Décision frappée d’appel : 2011 NBQB 16 , 2011 NBBR 16 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: November 9, 2011 Appel entendu : Le 9 novembre 2011 Judgment rendered: November 9, 2011 Jugement rendu : Le 9 novembre 2011

Counsel at hearing: For the appellant: Terrence P. Lenihan For the respondent: Hélène L. Beaulieu, Q.C. Avocats à l’audience : Pour l’appelante : Terrence P. Lenihan Pour l’intimée : Hélène L. Beaulieu, c.r. THE COURT The appeal is dismissed with costs of $2,500. LA COUR Déboute l’appelante, qu’elle condamne à des dépens de 2 500 $. The judgment of the Court was delivered by THE COURT (Orally) [ 1 ] The trial judge held the amount for which the respondent carrier was liable, after losing the appellant’s hydraulic pump, was limited to the amount fixed in accordance with the bill of lading.

According to that document, the carrier’s liability for non-delivery was limited to $2/lb, unless the consignor declared the value of the goods on the face of the bill of lading. The appellant consignor failed to do so and, hence, the carrier insisted its liability was to be calculated by reference to the weight of the pump (2,815 lb) and not the value of a new replacement pump ($18,785) as claimed by the appellant.

The trial judge accepted the carrier’s argument and fixed the damages at $5,630, while provisionally assessing the appellant’s loss at $5,910, in the event the limitation of liability clause should be declared inapplicable. With respect to the applicability issue, the trial judge rejected the appellant’s contention that, in fact, the pump had arrived in Edmonton, Alberta, from Bathurst, New Brunswick and was mistakenly transferred or delivered to another consignor. On a balance of probabilities, the trial judge concluded the pump was lost in transit. This finding was central to the appellant’s bailment argument.

The appellant had argued that, once the goods had arrived in Edmonton, the contractual relationship between the parties was governed by the law of bailment and the Warehouse Receipts Act , R.S.N.B. 1973, c. W-3, (now R.S.N.B. 2011, c. 236 ), and, therefore, the respondent carrier could no longer rely on the limitation clause found in the bill of lading. [ 2 ] The appellant insists the trial judge made a palpable and overriding error in concluding, as a matter of fact, that the pump was lost in transit.

In our view, however, it makes no difference whether the pump was lost in transit or lost after it arrived in Edmonton. In either case the bill of lading prevails. There is no logical reason or legal support for the proposition that the contractual relationship between the parties was transformed from a contract for the carriage of goods to a bailment contract once the goods arrived in Edmonton. The reality is that the bill of lading placed an express limitation on the carrier’s liability with respect to the “non-delivery of the goods” to the consignor (the appellant).

The law of bailment simply has no application and nothing found in the provincial legislation alters this legal reality. Hence, this case comes squarely within the legal framework, governing bills of lading and limitation of liability clauses, outlined in Day & Ross v. Beaulieu , 2005 NBCA 25 , 280 N.B.R. (2d) 201. [ 3 ] For these reasons the appeal is dismissed with costs of $2,500. _________________________________________ WALLACE S. TURNBULL, J.A.

________________________________________ J.T. ROBERTSON, J.A. __________________________________________ BRADLEY V. GREEN, J.A.