Canadian National Ry. Co. v. Harris

Canadian National Ry. Co. v. Harris
Collection
Supreme Court Judgments
Date
1946-04-11
Report
[1946] SCR 352
Judges
Rinfret, Thibaudeau; Hudson, Albert Blellock; Taschereau, Robert; Kellock, Roy Lindsay; Estey, James Wilfred
On appeal from
Quebec
Subjects
Transportation
Decision Content
Supreme Court of Canada
Canadian National Ry. Co. v. Harris, [1946] S.C.R. 352
Date: 1946-04-11
Canadian National Railway Company (Defendant) Appellant;
and
Joseph Harris (Plaintiff) Respondent.
1945: October 30, 31; 1946: April 11.
Present: Rinfret C.J. and Hudson, Taschereau, Kellock and Estey JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Railway—Carrier—Contract—Negligence—Shipment of horses—Shorn of their tails when delivered at destination—Claim for damages by shipper—Live Stock Special Contract—Construction of its terms—Liability of railway company—Negligence of railway company or shipper—Exemption of railway company from liability—"Carrier's risk" or "Owner's risk"—Clause in contract that shipper should provide attendant—Whether failure to do so caused or contributed to damage—Burden of proof as to when, how and by whom mutilation took place—Whether onus is on the railway company or the shipper—Articles 1672, 1675 and 1681 C.C.—Railway Act, R.S.C., 1927, c. 170, ss. 312, 348.
The respondent, a horse dealer doing business in Montreal, shipped eighteen horses over the appellant railway from points in Saskatchewan, the shipment being consigned to the Bodnoff Horse Exchange at Montreal, under a contract with the appellant company, known as a "Live Stock Special Contract", approved by the Board of Transport Commissioners for Canada under section 348 of the Railway Act. At the time of shipment, the horses were in good condition, but when they reached their destination and were delivered to the respondent, sixteen of them were mutilated and disfigured by being shorn of their tails. The respondent claimed that delivery in such a condition did not constitute valid delivery under the terms of the contract and that the disfiguration had caused damages amounting to $886.79. The appellant railway contended that the shipment was carried in conformity with the conditions of the contract signed by the respondent both as shipper and as attendant in charge of the horses, that the loss did not arise directly from the performance by the appellant of its contract of carriage and that whatever damage was caused resulted from the respondent's failure to provide an attendant to accompany and care for the horses en route as required by section 5 of the contract. The trial judge maintained the respondent's action and assessed the damages at $200; the judgment was affirmed by the appellate court and the appellant railway appealed to this Court. Leave to appeal was granted by the appellate court.
Held, The Chief Justice and Taschereau J. dissenting, that this appeal should be dismissed and the respondent's action maintained.—It was not the intention of the contract that the shipper or his representative should at all times be present with the horses to act as a guard, but only at such times as it might be expected that the horses would require care and attention. It was common ground that neither the respondent, nor anyone on his behalf, accompanied the shipment. There is no liability, however, upon the respondent on that account, as there has been no evidence that failure to provide an attendant caused or contributed to the loss or damage suffered by the horses.—As a result of the terms of the contract and upon a proper construction of the relevant provisions of the freight classification referred to in the contract and of the tariff applicable to the shipment, the onus of establishing the cause of the loss or damage was upon the appellant railway and the latter has failed to adduce sufficient evidence to satisfy such onus.
Per The Chief Justice and Taschereau J. (dissenting)—The appellant railway should not be held responsible for the loss or damage suffered by the respondent. The Special Contract is valid and binding and its terms and conditions are determinative of the issue. One of its relevant provisions is that the live stock to be carried thereunder was received subject to the Classification and Tariffs in effect on the date of its issue, under which the rates and weights may be either at "carrier's risk", subject to the terms and conditions of the bill of lading issued by the originating carrier or at "owner's risk" subject to the terms and conditions of the Special Contract signed by the shipper or his agent. The shipper of live stock may thus choose how and to what extent he wishes to be protected by the carrier against loss or damage which may occur to his shipment in transit. In the present case, the respondent could have had the carriage performed at carrier's risk, through the terms and conditions of a standard bill of lading and by paying double the rate he paid, but he executed the Special Contract, whereby he agreed to ship at his own risk, upon whose terms and conditions the carrier's obligations and its liability were restricted and under which the rate applicable was lower. The shipment was thus carried at owner's risk and the carrier was relieved from liability for damage even if resulting from its negligence and that of its servants, such conclusion not being inconsistent with the terms and conditions of the Special Contract. Therefore, the respondent agreed to assume the risk of loss or damage to his horses during the journey, unless he could establish that such loss or damage was due to the non-fulfilment of the appellant's obligations under the contract. The respondent has failed to do so or to prove any negligence of the appellant railway, which was not even alleged. Moreover, the damage, in any event, was attributable to the respondent's failure to accompany, attend to and care for his shipment during the journey, as he was bound to do under the contract.—By force of article 1681 C.C., the special regulations made in accordance with the Railway Act must be recognized and applied in preference to article 1675 C.C., which is thereby superseded, and, therefore, the Special Contract in this case and the "owner's risk" clause forming part of it clearly eliminated the presumption created by article 1675 C.C.
Per Hudson J.:—The Special Contract itself does not contain any direct reference to the shipment being made at "owner's risk", as contended by the railway appellant; but it is expressed to be subject to the classification and tariff in effect on the date of the issue of the bill of lading. Upon a proper analysis of the provisions of the contract, the classification and the tariff, the shipper accepted the terms of the special live stock contract and nothing else. None of the causes of loss, other than failure to provide attendant, from which the carrier may be relieved from liability under section 6 of the contract, apply to the facts of this case, and the Railway Act does not give the appellant railway any immunity beyond that expressed in the contract, which was in a form approved of by the Board of Transport Commissioners.
Per Kellock J.:—The result of the various provisions of the contract, the classification and the tariff is that the shipment was carried "at owner's risk subject to the terms and conditions of the special live stock contract", under which the appellant railway agreed to carry the shipment to destination. The terms "owner's risk" cannot be construed here, as contended by the appellant railway, as throwing upon the respondent all risks including risk of loss or damage from negligence of the carrier, except wilful neglect or misconduct of the carrier. More particularly, section 6 of the contract presupposes that the appellant is liable as common carrier with some additional exceptions to that liability. Delivery of the horses in their mutilated condition was not a compliance with this underlying obligation resting upon the appellant, and it lay upon the latter, who contended that the loss fell within either one of two of those exceptions, namely "the act or default of the shipper" or "causes beyond the carrier's control", to adduce evidence bringing the case within the one or other of those exceptions. The appellant adduced no evidence to enable a finding to be made as to how the loss occurred, and it is insufficient to prove something equally consistent with the loss having been due to the respondent's default or to the default of the appellant railway.
Per Estey J.:—The provisions of the Special Contract were approved by the Board of Transport Commissioners pursuant to section 348 of the Railway Act. The phrase "its liability" as used in that section refers to the liability of the carrier at common law and under the Act, and, except as this liability may be impaired, restricted or limited under a contract, the liability of the carrier remains as determined by the common and statute law. In the determination of the rights of the parties under the present contract, the meaning to be ascribed to the phrase "owner's risk" is not that the entire risk is assumed by the shipper except only as that risk may be by the contract imposed upon the carrier. Such meaning would appear contrary to the plain intent of section 348 of the statute, and moreover, contrary to the form and phraseology of the subsequent sections of the contract itself. Sections 1, 4, 5, 6 and 9 of the contract deal with limitation of liability and liability for negligence on the part of the carrier, assumption of risk by the shipper and a list of specific causes from which if loss or damage result the carrier is liable. The "terms and conditions" of these sections are somewhat "impairing, restricting or limiting its (carrier's) liability" as contemplated by section 348, but they are not written on the basis that, if these conditions were not here, all the risk would be upon the shipper nor that the carrier is liable for only "wilful neglect or misconduct or unreasonable delay". A study of the contract, classification and the statute indicates that the Board of Transport Commissioners intended that the phrase "owner's risk" as used in the contract was, as expressed in rule 25 of the classification, "intended to cover risks necessarily incidental to transportation, but no such limitation * * * shall relieve the carrier from liability * * * from any negligence or omissions of the company, its agents or employees". The injury suffered in this case in no sense can be regarded as a risk "necessarily incidental to transportation." Such loss or damage was caused by the deliberate act of a third person and no evidence has been adduced on the part of the carrier to indicate that it was covered by the provisions of the contract nor to establish on behalf of the appellant that it comes within any of the exceptions from liability at common law.
APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec, affirming the judgment of the Superior Court, Tyndale J. and maintaining the respondent's action.—Damages awarded were for an amount of $200, but leave to appeal to this Court was granted by the appellate court.
Lionel Côté K.C. and C. Perrault for the appellant.
J. A. Mann K.C. and K. H. Brown for the respondent.
The judgment of the Chief Justice and of Taschereau J. (dissenting) was delivered by
The Chief Justice:—The respondent is a horse dealer at Montreal. On March 18, 1941, he shipped by rail from North Battleford and Maymont, Saskatchewan, 13 and 5 horses from each point respectively, the shipment being consigned to the Bodnoff Horse Exchange at Montreal under a contract with the appellant, approved by the Board of Transport Commissioners for Canada and known as a "Live Stock Special Contract".
At the time of shipment the horses were in good condition and of normal appearance, but when they reached their destination 16 of the 18 horses were mutilated and disfigured on account of the loss of their tails in transit. The respondent claimed that delivery in such a condition did not constitute valid delivery under the terms and conditions of the Special Contract and that the disfiguration had caused them damages amounting to $886.79.
To this action the appellant pleaded that the shipment was carried in conformity with the terms and conditions of the Live Stock Contract signed by the respondent, both as shipper and as attendant in charge of the horses, and that whatever damage was caused resulted from the respondent's failure and neglect to properly attend to and care for the horses en route and that the loss did not arise directly from the performance by the appellant of its contract of carriage.
The judgment of the Superior Court rejected the appellant's contention that the juridical basis of the relationship between the parties was to be found exclusively in the express terms of the Live Stock Contract as supplemented by the "Owner's risk" provision of both the Tariff and Classification incorporated therein by reference, and that this provision had the effect of placing the burden of proof upon the respondent who could not succeed without allegation and proof of negligence on the appellant's part.
Briefly the learned trial judge held that the respondent apparently had based his action upon article 1675 of the Civil Code, because he had not alleged negligence, but that he had invoked the Live Stock Contract and all the conditions therein contained and implied; that the terms of the Live Stock Contract alone governed the issue and nothing else, and that the "Owner's risk" clause of the Classification and Tariff was without effect. From some indirect evidence that was made and on the balance of probabilities, the learned trial judge inferred that the missing tails were removed from the horses while they were in the car and while the car was stationary at some undetermined point. He further inferred, as the most reasonably probable conclusion, that the removal of the tails was performed by some unauthorized person or persons who gained access to the car while the latter was in the appellant's care, and this because the slats of the car were sufficiently wide apart to allow the operation in question to be performed presumably from outside the car. Moreover, the learned judge exonerated the respondent from any liability for his failure to accompany and care for the shipment in transit and, having referred to the appellant's obligation to provide suitable equipment under sec. 4 (2) of the Live Stock Contract, he concluded from the above inferences that the loss was attributable to the appellant's failure to provide suitable equipment and to prevent the access of unauthorized persons to the car, which failure, he held, constituted a breach of the contract as invoked by the respondent.
The damages were assessed at $200.00 at the rate of $12.50 per horse for the 16 horses affected. The appellant does not dispute the quantum of the damages as fixed, its appeal being restricted to the question of liability.
On appeal to the Court of King's Bench (appeal side) the judgment of the Superior Court was affirmed with costs. Walsh and St. Jacques JJ. agreed with the finding of the learned trial judge that there was a breach of the contract as alleged by the respondent. Francoeur J. thought the presumption of article 1675 of the Civil Code governed and that the Live Stock Contract only restricted the liability as to the damages to be paid and he found that there was a breach of the contract. Marchand J. concurred with Bissonnette J. who rendered the judgment for the Court and gave very elaborate reasons on the case. Bissonnette J. disagreed with the inference made by the learned trial judge that the trimming of the tails was done while the horses were in the car by someone operating from outside the car, through the slats, because he thought the presumptions which would lead to that conclusion were not sufficiently weighty, precise and consistent to permit such an inference. He expressed the view that, under the provisions of the Railway Act, the appellant could restrict its liability contrary to article 1675 of the Civil Code, but he found that the provisions of the Live Stock Contract, as supplemented by the terms and conditions of the Classification and Tariff, have not destroyed the presumption created by that article of the Code and that the appellant had the burden of proof. He agreed that under the contract the shipper would have to bear the damage to his live stock resulting from his neglect to care for the shipment, but that, as to any other damage not related to the duties of the attendant on board the train, the carrier is presumed liable and he has the burden of showing that such damage did not result from his fault or that of his employees. Further, he said that the evidence was such that he could not draw any conclusion as to how and under what circumstances the damage to the respondent's horses was caused and that, in order to invoke its nonliability clause and destroy the presumption of liability created by article 1675 of the Civil Code, the appellant had to adduce sufficient evidence on that point, which it had failed to do, and, therefore, it had to bear the loss.
The appellant is subject, for the carriage of traffic, to the provisions of the Dominion Railway Act. Moreover, the Civil Code of the province of Quebec provides that:—
Art. 1681. The conveyance of persons and things by railway is subject to certain special rules provided in the Federal and Provincial Acts respecting railways.
In my view, to determine the liability in the present instance, consideration must be given to the special rules provided in the Federal Acts with respect to railways.
Under section 348 of the Railway Act, a contract impairing, restricting or limiting the liability of the railway company in respect of the carriage of any traffic must be authorized or approved by order or regulation of the Board of Transport. In this case the appellant had such authorization, or approval, for its Live Stock Special Contract. Under the circumstances, this contract was valid and binding in conformity with the decision of the Privy Council in the case of Grand Trunk Railway Co. v. Robinson[1]. (See also the decision of this Court in Ludditt v. Ginger Coote Airways, Ltd.[2].
I think that the terms and conditions of the Live Stock Special Contract executed by the parties are determinative of the issue. I may add, moreover, that under the Railway Act (sections 52 and 348) the Board is the sole and exclusive judge of the reasonableness of the terms and conditions contained in that contract. One of the relevant provisions of the contract is that the live stock to be carried thereunder is received subject to the Classification and Tariffs in effect on the date of its issue, except where inconsistent therewith.
Freight classification no. 19 in effect on the date of shipment of this carload of horses, March 18th, 1941, received the approval of the Board and the tariff applicable was Eastbound Tariff No. 116-A, which was then in full force and effect. By force of article 1681 of the Civil Code, the special regulations made in accordance with the Railway Act must be recognized and applied in preference to article 1675 of the Civil Code, which is thereby superseded.
In classification no. 19 the rating and regulations applicable are items 4 to 9 inclusive and, as we are dealing with a carload shipment in the present case, the rates and weights may be either at "carrier's risk", subject to the terms and conditions of the bill of lading issued by the originating carrier, or at "owner's risk", subject to the terms and conditions of the Live Stock Special Contract signed by the shipper or his agent.
The general rules (p. 163, item 3 (b)) provide that when the distance to be travelled by the shipment is in excess of 150 miles, the owner or his agent must accompany the shipment and, 3 (d), that the owner or his agent in such cases shall be carried free of charge.
The shipper of live stock may choose how and to what extent he wishes to be protected by the carrier against loss or damage which may occur to his shipment in transit.
In the present instance, if the respondent had wanted the protection afforded by the terms and conditions of a standard Bill of Lading under which the carriage is performed at Carrier's Risk, he could have had that protection by executing the straight Bill of Lading and paying double the rate he paid. Moreover, if he had wanted the additional protection of the carrier assuming liability for an amount in excess of $200.00 per horse, he could also have protected himself in that respect by paying the premium applicable in such a case, as determined by the provisions of item (1) (9), which deals with the transportation of high-priced animals. But in the present case the respondent executed the Live Stock Special Contract, as a result of which he agreed to ship at his own risk under the terms and conditions of that contract and the classification therein referred to, which restrict the carrier's obligations and its liability in many respects, apart from the limitation resulting from the agreed value. He agreed, on signing the contract, that the horses had a maximum value of $200.00 each and that they were to be carried at Owner's Risk, subject to the terms and conditions of the Live Stock Contract.
The difference as between a shipment at Carrier's Risk, under the straight Bill of Lading, and that at Owner's Risk, under the Live Stock Special Contract, are that the conditions of carriage vary according to the contract authorized in each case and that under the Live Stock Contract the rate applicable is lower.
As a result, the shipment in the present case was being carried at Owner's Risk, according to the acceptation of the term; the carrier was relieved from liability for damage resulting from its negligence and that of its servants, provided this was consistent with the terms and conditions of the Live Stock Special Contract. (See Rules and Conditions (2) and (3), at p. 21 of the Tariff.)
We may now turn to the Live Stock Contract and see whether there is in it any restriction limiting the "Owner's Risk" condition and which would, notwithstanding that condition, make the appellant liable in the case of loss or damage resulting from its negligence or that of its servants or employees.
The contract begins by stating that the appellant agreed to carry the carload of horses to its usual place of delivery at destination, and that it was mutually agreed that every service to be performed thereunder should be subject to all conditions therein contained; this was accepted for himself by the shipper, the respondent herein. The shipper agreed to pay all charges at a stated rate which is the
lower published tariff rate, and is based on the express condition that the carrier shall in no case be liable for loss or damage or injury to said live stock, in excess of the agreed valuation, upon which valuation the rate charged is based, and beyond which valuation neither the carrier nor any connecting carrier shall be liable in any event, whether the loss, injury or damage occurs through the negligence of the carrier or any connecting carrier, or their or either of their employees, or otherwise. (Sec. 1)
The shipper agreed to load, unload or reload the live stock at his own expense and risk; feed, water and attend the same at his own expense and risk, while in transit. Moreover, in case any of the employees of the carrier should load, unload, reload, feed, water or otherwise care for the said live stock, or assist in doing so, it was agreed that they should be treated as agents of the shipper for that purpose and not as the agents of the carrier. There is an exception to that stipulation—when these things are occasioned by some act or default of the carrier itself.
The carrier agreed to provide proper loading, unloading or reloading facilities and suitable equipment with secure car door fastenings for the transportation of said live stock.
The shipper agreed to properly and securely place all said stock in cars, and, except in case where the shipper or some person on his behalf accompanies the live stock, the carrier shall keep the doors securely locked or fastened until placed for unloading. (Sec. 4)
If the destination of the shipment of live stock is more than 150 miles from the point of shipment, the shipper or some person on his behalf (not an employee of the carrier) must, unless special arrangements are otherwise made in writing, accompany and care for the shipment throughout the journey. (Sec. 5)
The carrier shall not be liable for loss, damage, or delay to any of the live stock herein described caused by the Act of God, the King's or public enemies, riots, strikes, defects or inherent vice in the live stock, heat, cold, the authority of law, quarantine, the act or default of the shipper, or causes beyond the carrier's control, etc.
Except in case of the negligence of the carrier, (and the burden of proving freedom from such negligence shall be on the carrier) the carrier shall not be liable for loss, damage or delay occurring while the live stock is stopped and held in transit upon the request of the party entitled to make such request. (sec. 6)
In the contract the shipper acknowledged that he had the option of shipping the live stock at a higher rate of freight than that payable under the Live Stock Special Contract, and according to the classification and tariffs of the carrier, or connecting carriers, the effect of which the shipper stated he understood, would be to remove the limitation on the amount of damages for which the carrier or the connecting carriers might be liable,
and the shipper has voluntarily elected to accept the limitation of liability herein contained to enable him to obtain the reduced freight rate above mentioned. Then on the reverse side of the contract form we find a special contract for the attendant in charge of the live stock, which is also signed by the respondent:—
I agree to give the live stock included in this shipment all care and attention needed en route. If anything goes wrong in connection with the shipment, or if it needs any care or attention that requires the help or co-operation of the train crew, I will promptly notify the conductor in charge.
It is common ground that the destination between the shipping point and destination in the premises much exceeded 150 miles, the actual distance by rail being 1,926 miles.
Therefore, by accepting and signing the special contract, the respondent consented to the appellant's limitation of liability, but more particularly he agreed to assume the risk of loss or damage to his horses during the journey unless he could establish that such loss or damage was due to the non-fulfilment of the appellant's obligation under the contract.
This special contract, and the Owner's Risk clause forming part of it, clearly eliminated the presumption created by article 1675 of the Civil Code. The fact that under sections (1) and (9) of the Contract the liability of the carrier in no case was to exceed $200.00 per horse, whatever may have been the cause of the loss, carrier's negligence or otherwise, does not affect or destroy the special stipulations of the contract, the effect of which was to place the burden of proof upon the shipper. If the latter wished the carrier to be liable, he had the option of asking for a standard Bill of Lading and paying a higher rate. The fact that a shipment under the Live Stock Special Contract is declared to be at the Owner's Risk clearly establishes that there was no intention that the carrier should be presumed liable and that the burden of proof should be on it. Indeed the contract itself contains specific provisions to that effect whenever it was intended that the carrier should assume that burden.
Canadian jurisprudence has fairly well settled the meaning of the words "Owner's Risk" when used in a Carrier's Contract. (See Brown v. Dominion Express Co.[3], Court of Appeal in Ontario, where, at p. 332, Maclaren J.A., refers to a decision in the case of Dixon v. Richelieu Navigation Co.[4], which decision was affirmed by this Court[5] and the following cases: Mason & Risch Piano Co. v. Can. Pac. Ry. Co.[6], Hotte v. Grand Trunk Railway[7], Turner v. Can. Pac. Ry. Co.[8], (Alberta court of appeal); Bayne v. Canadian National Ry.[9] (Saskatchewan Court of Appeal); Benoit v. Can. Pac. Ry.[10] and McCawley v. Furness Rly. Co.[11].
In Elliott on Railroads, 3rd edit., vol. IV, no. 2338, at p. 837, the governing rule is stated as follows:—
The correct rule in such cases, therefore, is that the burden of proof is upon the plaintiff to show that a breach of duty upon the part of the carrier caused the injury or loss, and if the carrier is liable only for negligence, the burden is upon the plaintiff to show such negligence.
Now the first consideration, I repeat, is that the respondent here has failed to prove negligence and has not even alleged it. On that score, therefore, I fail to see how the exception contained in section 6 of the Special Contract can be taken into consideration for the decision of the present case and the question of negligence of the carrier does not come up for discussion at all. (Canadian National Steamships Co. Ltd. v. Watson[12])
But in addition to the above reason, it seems to me inescapable that the damage in any event was attributable to the respondent's failure to accompany, attend to and care for his shipment during the journey. Had the respondent accompanied the shipment, as he was bound to do under the contract, and guarded and protected against intrusions of "unauthorized persons", surely the damage would have been avoided.
Section (5) of the Special Contract provided specifically that, as the destination of the shipment was more than 150 miles from the point of shipping,
the shipper or some person on his behalf (not an employee of the carrier), must, unless special arrangements are otherwise made in writing, accompany and care for the shipment throughout the journey. There were no special arrangements in writing or otherwise and, therefore, the shipper completely failed to carry out his obligations under section (5) "to accompany and care for the shipment throughout the journey". It is not, as can be seen and as appears to have been assumed in the courts below, the mere obligation of accompanying the shipment, but the obligation to attend to and to "care for" it. It is evident that what happened to the horses is due to the lack of attention and of care and, as such care was the obligation of the shipper, the loss or damage is attributable to him. There is clearly a relation of cause and effect between the respondent's neglect and the loss he has suffered. (Chemin de fer du Midi v. Delcros Frères, Cour de Cassation in France,[13].)
The respondent's contention that the appellant waived that condition of the contract, by accepting the live stock while the respondent failed to accompany it or to put some of his employees in charge of it, cannot be accepted in view of the stipulations of the contract itself. The contract made it compulsory upon the respondent to load, unload or reload the live stock at his own expense and risk and to feed, water and attend the same, also at his own expense and risk, while in transit; and it also provided for the case where the respondent failed to carry out that obligation and it stated that if he failed to do so the employees of the carrier would do it and otherwise care for the live stock and under such circumstances
they shall be treated as agents of the shipper for that purpose and not as agents of the carrier.
It followed that there was no waiver on the part of the appellant since the contract itself provided for whatever had to be done in case the shipper elected not to accompany and care for the horses during the journey.
Then section (6) of the contract expressly stipulated that the carrier was not to be liable for the loss or damage caused by "the act or default of the shipper".
The consequence is that, on the whole, the appellant cannot be held responsible for the loss or damage suffered by the respondent in the present case. The appeal should, therefore, be allowed and the action dismissed with costs in the Superior Court and in the Court of King's Bench (appeal side). However, the appeal only came to this Court from that Court on the ground that the question to be decided was of general importance, and there is no question that it is so. On the other hand, it would not be just for the respondent personally to bear the costs incurred by reason of the fact that this important question was carried to this Court, and, for that special reason, I would think the respondent should not be called upon to pay the appellant his costs in this Court.
Hudson J.:—The respondent shipped eighteen horses over the defendant's railway from points in Saskatchewan, consigned to Montreal. In due course these horses arrived at Montreal but when delivered to the plaintiff sixteen of them had been shorn of their tails. Just when, how or by whom this mutilation took place was not clearly established in evidence by either party.
The plaintiff brought this action to recover for the loss sustained and at the trial before Mr. Justice Tyndale was awarded a verdict of $200.00. This was affirmed on appeal and the appellant now comes to this court by special leave.
The pleadings of both parties referred to the contract of shipment which is in a form approved of by the Board of Transport Commissioners and governs the case in so far as it applies.
The appellant seeks to avoid liability on two grounds:
In the first place, it is said that the respondent's loss was due to his failure to provide an attendant to accompany and care for the horses, as required by the contract of which section 5 provides:
If the destination of the shipment of said live stock is more than one hundred and fifty (150) miles from the point of shipment, the shipper or some person on his behalf (not an employee of the carrier), must, unless special arrangements are otherwise made in writing, accompany and care for the shipment throughout the journey.
Section 4 (1) provides:
The shipper agrees to load, unload or reload said live stock at his own expense and risk; feed, water and attend same at his own expense and risk while in transit, except as provided in subsection 5 of this Section. In case any of the employees of the carrier load, unload, reload, feed, water or otherwise care for the said live stock, or assist in doing so, they shall be treated as agents of the shipper for that purpose and not as the agents of the carrier; except when such loading, unloading, reloading, feeding or watering is occasioned by some act or default of the carrier.
It is admitted that the destination of the shipment was more than 150 miles from the point of shipment and that neither the respondent himself nor anyone on his behalf accompanied the shipment. Whatever care and attention the horses received on the journey was provided by the appellant's employees.
The contract does not contemplate the continuous presence of an attendant, but only at such times as it might be expected that the horses would require care and attention, that is, loading, unloading, feeding, illness, etc.
The attendant was not required to be a watchman; in fact his movements were considerably restricted by a special collateral contract relieving the company from liability in case of personal injuries. It is certain that there were long periods of time on the journey when the train was stationary, other than those during which the horses would be expected to receive personal attention.
No explanation is given on behalf of the appellant of how and when the horses' tails were removed. It is possible that this was done at a time when the respondent or his agent should have been in attendance, but there is no evidence to justify a presumption that such was the case. What is certain is that it was brought about by the wilful and deliberate act of some human agency while the animals were in the sole possession of the appellant and its employees. It seems very strange indeed that an operation of this sort could be carried on without the knowledge of some of them.
The second contention of the appellant is that the shipment was made at "owner's risk". The contract itself does not contain any direct reference to the term "owner's risk", but it is expressed to be subject to the classification and tariffs in effect on the date of the issue of the bill of lading "(except when inconsistent herewith)."
The Canadian Freight Classification approved of by the Board of Transport Commissioners, rule 25, sec. 1, provides:
Articles specified in this Classification to be carried under Owner's Risk conditions, shall, unless otherwise required by the shipper, be carried at Owner's Risk as so specified and defined, and special notation to that effect is not necessary on the bill of lading. These conditions are intended to cover risks necessarily incidental to transportation; but no such limitation, expressed or otherwise, shall relieve the carrier from liability for any loss or damage which may result from any negligence or omission of the company, its agents or employees.
But by section 4 of this rule it is provided:
This rule will not apply to live stock which will be carried only on the terms and conditions specified in the Classification.
In the detailed Classification under the heading "Live Stock" it is provided that live stock will be carried either (a) at carrier's risk, or (b) at owner's risk, as shipper may elect * * *
In carloads, at the undermentioned rates and weights:
(a) At carrier's risk:
Subject to terms and conditions of the bill of lading issued by the originating carrier.
(b) At owner's risk:
Subject to the terms and conditions of the special live stock contract signed by the shipper or his agent.
The tariff setting forth rates from different points applicable to this particular shipment is preceded by a number of rules and conditions, rule 2 being:
Rates named herein only apply when live stock is shipped at owner's risk, subject to the terms and conditions of the special live stock contract signed by the shipper or his agent.
The learned trial judge, after a careful analysis of the provisions of the contract and of the classification and tariff, came to the conclusion that the shipper accepted the terms of the special live stock contract and nothing else.
With this view I agree. Apart from statute, there is no generally accepted definition of the term "owner's risk". In the present case the only consideration for a limitation of the carrier's liability is a reduced freight rate and that consideration is exhausted by the limitations incorporated in the contract itself. This is made clear by the language used in sections 1 and 9. Section 1 provides that:
The shipper agrees to pay, if required, before delivery, all lawful and proper charges as well as freight thereon to the carrier at the rate of ….. per one hundred pounds, which is the lower published tariff rate, and is based on the express condition that the carrier shall in no case be liable for loss of or damage or injury to said live stock, in excess of the following agreed valuation, or a proportionate sum in any one case, upon which valuation the rate charged for the transportation of the said live stock is based, and beyond which valuation neither the carrier nor any connecting carrier shall be liable in any event, whether the loss, injury or damage occurs through the negligence of the carrier or any connecting carrier, or their or either of their employees, or otherwise, viz.—
Horses or mules * * * not exceeding $200.00 each.
Section 9:
The shipper her