Q.N.S. Paper Co. v. Chartwell Shipping Ltd.

Q.N.S. Paper Co. v. Chartwell Shipping Ltd.
Collection
Supreme Court Judgments
Date
1989-09-28
Report
[1989] 2 SCR 683
Case number
19595
Judges
Beetz, Jean; Lamer, Antonio; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Quebec
Subjects
Maritime law
Notes
SCC Case Information: 19595
Decision Content
Q.N.S. Paper Co. v. Chartwell Shipping Ltd., [1989] 2 S.C.R. 683
Chartwell Shipping Limited Appellant
v.
Q.N.S. Paper Company Limited Respondent
indexed as: q.n.s. paper co. v. chartwell shipping ltd.
File No.: 19595.
*1988: March 24.
Present: Beetz, Lamer, Le Dain, La Forest and L'Heureux-Dubé JJ.
**Re-hearing: 1989: April 28; 1989: September 28.
Present: Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Maritime law -- Agency -- Contract for stevedoring services entered into by agent in Quebec -- Agent of unnamed or partially disclosed principal --Agent indicating to other party that acting as agent only -- Whether agent contracted personally or solely in the capacity of agent -- Whether common law or civil law principles should be applied -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 , 22(2) (m).
Q.N.S., a stevedore and local shipping agent, sued Chartwell in the Quebec Superior Court on a contract for stevedoring and other services. Chartwell, a managing operator in Quebec for the charterers of two vessels, did not deny the existence of the contract or question the amount owing, but defended the action on the ground that it had consistently represented itself as acting as an agent only notwithstanding the fact that it had not identified its principal. In its letters to Q.N.S., Chartwell identified itself as "Managing Operators for the Charterers" or as acting "On behalf of our principals", and consistently signed "as Managing Operators only". The Superior Court dismissed the action. The court applied the principles of the Quebec Civil Code respecting the liability of a mandatary to third persons with whom he contracts, specifically arts. 1715 and 1716 C.C.L.C., and concluded that because the letters from Chartwell to Q.N.S. clearly identified Chartwell as a mandatary, Chartwell fulfilled the requirements of art. 1715 and could not be held liable for the debt of its mandator. The judgment was reversed on appeal. The majority of the Court of Appeal held that to benefit from the exclusion of liability under art. 1715, it was not enough for Chartwell to disclose that it was acting as mandatary. Under art. 1715, it was also required to disclose adequately the identity of its mandator. Since Chartwell had failed to do so, it was liable to Q.N.S. under art. 1716 C.C.L.C. This appeal is to determine whether under Canadian maritime law an agent of an unnamed or partially disclosed principal is personally liable on a contract entered into by the agent with another party when the agent expressly indicates to the other party that he is acting as an agent only. Preliminary to this issue, however, is the determination of the applicable maritime law.
Held: The appeal should be allowed.
Per Wilson, La Forest, Sopinka and Cory JJ.: The maritime law applicable in this case is to be found in the principles of the common law of contract and agency. Section 22(2) (m) of the Federal Court Act expressly identifies stevedoring services as part of "Canadian maritime law" which is defined, in s. 2 of the Act, as including not only "law formerly administered by the Exchequer Court on its admiralty side", but also the law "that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters". The latter portion of the definition would include all claims dealing with maritime matters and was not frozen by pre-existing admiralty jurisdiction. It incorporated as a uniform body of federal law the maritime law of England. The common law principles of tort, contract, agency, and bailment are a part of Canadian maritime law as adopted from England. There are, no doubt, issues specific to admiralty jurisdiction where reference may be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience. But this is not such a case. The common law principles have long been relied on to deal with precisely the type of situation in issue in this case.
Canadian maritime law principles do not differ depending on whether it is applied in the Federal Court or provincial superior courts. Canadian maritime law is a body of federal law which is uniform throughout the country and applicable whatever court may exercise jurisdiction in a particular case.
Under the common law principles of contract and agency, the issue whether an agent contracted personally, or solely in the capacity of agent (in which case only the principal is bound), is a matter of construction of a particular contract. Here, the relevant documents reveal that Chartwell clearly and consistently indicated to Q.N.S. that its sole responsibility was as an agent only. Chartwell, therefore, was not personally liable.
Per Lamer and McLachlin JJ.: The consideration of civil law principles should not be confined to situations where the English Admiralty Court had jurisdiction prior to 1934. In the area of expanded jurisdiction conferred by s. 22(2) (m) of the Federal Court Act , the question of whether it might be appropriate to refer to principles other than those established by the common law should be left open.
Per L'Heureux-Dubé J.: The Federal Court Act not only establishes the jurisdiction of the Federal Court in admiralty matters but also defines the content of Canadian maritime law. The definition of "Canadian maritime law" in s. 2 of the Act creates operative law governing the exercise of admiralty jurisdiction both in the Federal Court and in provincial superior courts and other courts. It therefore ousts the application of provincial private law by provincial superior courts exercising their concurrent jurisdiction over Canadian maritime law.
"Canadian maritime law" includes all that body of law which was administered in England by the High Court on its Admiralty side in 1934 as such law may, from time to time, have been amended by the federal Parliament and as it has developed through judicial precedent to date. This body of law encompasses not only common law principles but also civil law principles which were always a part of maritime law as applied by the English High Court of Admiralty. Indeed, a review of the history of that court, especially when it was granted expanded jurisdiction, reveals that whenever it sought to find general principles underlying maritime law, its method was to look to a variety of sources, including the civil law and the common law. That comparative method was in keeping with the nature of maritime law, which is, after all, international in character. This method remains appropriate today. Thus, (1) where Canadian maritime jurisdiction has expanded to include matters that would not have fallen within the jurisdiction of the High Court of Admiralty in 1934, as is true of the stevedoring contracts in the instant case, and (2) where the point in issue is not subject to a specific federal statutory regime, as is true of the agency problem in the instant case, the civil law remains an important aspect of the comparative analysis necessary to determine the state of Canadian maritime law on the question in issue. An inquiry into civilian doctrine should begin with the Civil Code. When interpreting Canadian maritime law, however, the Civil Code is not to be applied as governing private law. Rather, it is to be used as a helpful comparative law source of those civilian principles which make up the composite body of Canadian maritime law.
In determining the issue at bar, the general principle to be gleaned from the Civil Code, and specifically from arts. 1715 and 1716, is that, absent an exceptional regime to the contrary, no prescribed formality respecting contracts between a mandatary and a third party exists. Whether the mandatary is acting "in his own name" or "in the name of the mandator" depends on the will of the parties as reflected in their contractual relationship. Canadian common law cases confirm this general principle and allow for its more detailed application in the domain of maritime law. A comparative examination of the law in other jurisdictions reveals that there is as yet no unified approach to this set of issues. But the inquiry also makes clear that general principles of mandate and agency are increasingly subject to specific maritime rules, both international and domestic, which in some domains all but oust general civil law and common law principles. Nevertheless, absent a specific derogation to the contrary, the general principles of mandate and agency are applicable in Canadian maritime law and are neutral as between the agent or mandatary and third party. The rule under Canadian maritime law is that there is no prescribed formality for disclosure and that the responsibility of an agent or mandator to those with whom it contracts depends on the will of the contracting parties.
Here, Chartwell contracted with Q.N.S. as a mandatary and was not personally liable under the contract. The contract entered into by the parties made it clear that Chartwell was acting as "managing operators only" and "on behalf of our principals". Q.N.S., through its course of conduct with Chartwell, always dealt with Chartwell on the basis that Chartwell was acting as agent. There is no evidence that Chartwell resisted requests by Q.N.S. to have the name of its principals revealed or was otherwise acting in bad faith. Q.N.S. could not, therefore, succeed in its claim against Chartwell.
Cases Cited
By La Forest J.
Applied: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, aff'g in part [1982] 1 F.C. 406; referred to: Mersey Docks Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468; Universal Steam Navigation Co. v. James McKelvie & Co., [1923] A.C. 492; N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478; Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5.
By McLachlin J.
Referred to: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752.
By L'Heureux-Dubé J.
Considered: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, aff'g in part [1982] 1 F.C. 406; referred to: R. v. Smith, [1987] 1 S.C.R. 1045; Reference Re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; Joel v. Morison (1834), 6 Car. & P. 501, 172 E.R. 1338; Westcan Stevedoring Ltd. v. The ship Armar, [1973] F.C. 1232; Argosy Marine Co. v. SS "Jeannot D", [1970] Ex. C.R. 351; Robin Line Steamship Co. v. Canadian Stevedoring Co., [1928] S.C.R. 423; Tojo Maru (Owners) v. N.V. Bureau Wijsmuller (The Tojo Maru), [1972] A.C. 242; N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478; Trans Barwil Agencies (UK) Ltd. v. John S. Braid & Co., [1989] S.L.T. 73; Micosta S.A. v. Shetland Islands Council, [1986] S.L.T. 193; Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; Coggs v. Bernard (1703), 2 Ld. Raym. 909, 92 E.R. 107; The Sylph (1867), 2 L.R. 2 A. & E. 24; The Gas Float Whitton No. 2, [1896] P. 42; The "Renard" (1778), Hay & M. 222, 165 E.R. 51; The "Aquila" (1798), 1 C. Rob. 37, 165 E.R. 87; The "Neptune" (1834), 3 Hagg. 129, 166 E.R. 354 (H.C. Adm.), rev'd (1835), 3 Knapp. 94, 12 E.R. 584 (P.C.); The "Milford" (1858), Swab. 362, 166 E.R. 1167; The Riga (1872), L.R. 3 A. & E. 516; The Heinrich Bjorn (1885), 10 P.D. 44 (C.A.), aff'd (1886), 11 App. Cas. 270 (H.L.); The Ripon City, [1897] P. 226; The Beldis, [1936] P. 51; The "Goring", [1987] 2 Lloyd's Rep. 15 (C.A.), aff'd [1988] 1 Lloyd's Rep. 397 (H.L.); The "Sennar" (No. 2), [1984] 2 Lloyd's Rep. 142; Soya G.m.b.H. Kommanditgesellschaft v. White, [1982] 1 Lloyd's Rep. 136; Tehno-Impex v. Gebr van Weelde Scheepvartkantoor BV, [1981] 2 All E.R. 669; Bankers Trust International Ltd. v. Todd Shipyards Corp. (The Halcyon Isle), [1981] A.C. 221; De Lovio v. Boit, 7 F. Cas. 418 (1815); Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 773 F.2d 1528 (1985); Grand Bahama Petroleum Co., Ltd. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (1978); The Ship "Terukawa Maru" v. Co-operated Dried Fruit Sales Pty. Ltd. (1972), 126 C.L.R. 170; Bow, McLachlan and Co. v. The Ship "Camosun" (1908), 40 S.C.R. 418, rev'd on other grounds [1909] A.C. 597; The Ship Pacifico v. Winslow Marine Railway and Shipbuilding Co., [1925] Ex. C.R. 32; Canadian General Electric Co. v. Pickford & Black Ltd., [1972] S.C.R. 52; Drew Brown Ltd. v. The Ship "Orient Trader", [1974] S.C.R. 1286; The Queen v. Canadian Vickers Ltd., [1978] 2 F.C. 675; Falconbridge Nickel Mines Ltd. v. Chimo Shipping Ltd., [1974] S.C.R. 933; Gatewhite Ltd. v. Iberia Lineas Aereas de Espana SA, [1989] 1 All E.R. 944; Fairway Life & Marine Insurance Ltd. v. Susan Darlene (The), [1987] 2 F.C. 547; Inverness Railway and Coal Co. v. Jones (1908), 40 S.C.R. 45; St. Lawrence Metal and Marine Works Inc. v. Canadian Fairbanks-Morse Co., [1956] S.C.R. 717; Glengoil Steamship Co. v. Pilkington (1897), 28 S.C.R. 146; N. M. Paterson & Sons Ltd. v. Mannix Ltd., [1966] S.C.R. 180; Sabb Inc. v. Shipping Ltd., [1976] 2 F.C. 175 (T.D.), aff'd [1979] 1 F.C. 461 (C.A.); Farr Inc. v. Tourloti Compania Naviera S.A., [1985] 1 F.C. D-43; The Rebecca, 20 F. Cas. 373 (1831); The "Lanarkshire" (1855), 2 Sp. Ecc. & Ad. 189, 164 E.R. 380; The "Milan" (1861), Lush. 388, 167 E.R. 167; The Onward (1873), L.R. 4 A. & E. 38; Pearson v. Lighthall (1895), 7 C.S. 201; Conroy v. Peden (1921), 32 K.B. 476; Paterson Steamships Ltd. v. Aluminum Co. of Canada Ltd., [1951] S.C.R. 852; Aris Steamship Co. v. Associated Metals & Minerals Corp., [1980] 2 S.C.R. 322; Wolfe Stevedores (1968) Ltd. v. Joseph Salter's Sons Ltd. (1970), 2 N.S.R. (2d) 269; Holt Renfrew and Co. v. Henry Singer Ltd., [1982] 4 W.W.R. 481; Lubbock Feed Lots, Inc. v. Iowa Beef Processors Inc., 630 F.2d 250 (1980); Powers v. Coffeyville Livestock Sales Co., 665 F.2d 311 (1981); Evans Products Co. v. Interstate Commerce Commission, 729 F.2d 1107 (1984); Golten Marine Co. v. World Tide Shipping Corp., 1975 A.M.C. 160; Valkenburg, K.-G. v. The S.S. Henry Denny, 295 F.2d 330 (1961); Instituto Cubano de Estabilizacion del Azucar v. The SS Theotokos, 155 F.Supp. 945 (1957).
Statutes and Regulations Cited
Administration of Justice Act, 1928 (U.K.), 18 & 19 Geo. 5, c. 26, s. 6.
Administration of Justice Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 46, s. 1(1)(m).
Admiralty Act, R.S.C. 1952, c. 1, s. 18(3)(b).
Civil Code of Lower Canada, arts. 1715, 1716, 1738, 2040, 2383, 2395.
Constitution Act, 1867, s. 91(10) .
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 64(1).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 "Canadian maritime law", 20, 22(1), (2)(m).
Regulations affecting ocean freight forwarders, marine terminal operations and passenger vessels, 46 C.F.R. s. 510.23(a) (1985).
Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66.
Authors Cited
Abbott, Charles (later Lord Tenterden). A Treatise of the Law Relative to Merchant Ships and Seamen, 14th ed. By the late James Perronet Aspinall, Butler Aspinall and Hubert Stuart Moore. London: Butterworths, 1901.
Aubry et Rau, Droit civil français, 7e éd., t. 6. Sous la direction de Paul Esmein et André Ponsard. Paris: Librairies techniques, 1975.
Baudouin, Jean-Louis. "L'interprétation du Code civil québécois par la Cour suprême du Canada" (1975), 53 Can. Bar Rev. 715.
Baudouin, Louis. Le Droit civil de la Province de Québec: Modèle vivant de Droit comparé. Montréal: Wilson & Lafleur, 1953.
Bowstead on Agency, 15th ed. By F. M. B. Reynolds. London: Sweet & Maxwell, 1985.
Braën, André. "Le droit maritime du Québec à l'aube de la codification" (1985), 16 R.G.D. 429.
Carver's Carriage by Sea, 13th ed., vol. 1. By Raoul Colinvaux. London: Steven & Sons, 1982.
Chao, Andrée. "Réflexions sur la "Identity of Carrier Clause" (1967), 19 D.M.F. 12.
Civil Code of Lower Canada: Sixth and Seventh Reports and Supplementary Report. Quebec: George E. Desbarats, 1865.
Fridman, G. H. L. The Law of Agency, 5th ed. London: Butterworths, 1983.
Glenn, H. Patrick. "Maritime Law -- Federal Court Jurisdiction -- Canadian Maritime Law -- Relationship to Civil and Common Law: Ito--International Terminal Operators Ltd. v. Miida Electronics Inc." (1987), 66 Can. Bar Rev. 360.
Gorton, Lars and Rolf Ihre and Arne Sandevärn. Shipbroking and Chartering Practice, 2nd ed. London: Lloyd's of London Press Ltd., 1984.
Hill, D. J. Freight Forwarders. London: Stevens & Sons, 1972.
Holdsworth, Sir William. A History of English Law, 7th ed., vol. I. Revised by A. L. Goodhart and H. G. Hanbury. London: Methuen & Co., 1956.
Holdsworth, Sir William. A History of English Law, vol. XVI. Edited by A. L. Goodhart and H. G. Hanbury. London: Methuen & Co. and Sweet & Maxwell, 1966.
Jones, Peter F. M. "The Forwarder -- Principal or Agent, a Carrier or Not?". In Meredith Memorial Lectures 1986, Current Problems in Maritime Law Canada/United States/International. Faculty of Law, McGill University. Don Mills, Ont.: De Boo, 1987.
Mazeaud, Henri et Léon et Jean Mazeaud. Leçons de droit civil, t. 3, vol. 2, 5e éd. Paris: Éditions Montchrestien, 1980.
Mignault, P.-B. "Le Code Civil de la province de Québec et son interprétation" (1935), 1 U.T.L.J. 104.
Mignault, P.-B. Le droit civil canadien, t. 8. Montréal: Wilson & Lafleur, 1909.
Moussa, Abdel Rafea A. Le consignataire du navire en droit français et égyptien. Paris: L.G.D.J., 1983.
Müller-Freienfels, W. "Comparative Aspects of Undisclosed Agency" (1955), 18 Mod. L. Rev. 33.
Pineau, Jean. "La Législation maritime canadienne et le Code civil québécois" (1968), 14 McGill L. J. 26.
Restatement of the Law (Second): Agency 2d, vol. 2. Adopted and Promulgated by the American Law Institute. St. Paul, Minn.: American Law Institute Publishers, 1958.
Reynolds, F. M. B. "The Demise Clause (The Jalamohan)," [1988] Lloyd's Mar. & Com. L.Q. 285.
Rodière, René. Traité général de droit maritime: affrètements & transports, t. 3. Paris: Librairie Dalloz, 1970.
Rodière, René. Traité général de droit maritime: introduction & armement. Paris: Dalloz, 1976.
Story, Joseph. Commentaries on the Law of Agency, Boston: Little, Brown. Co., 1839.
Tetley, William. "Responsability of Freight Forwarders," [1987] Eur. Trans. L. 79.
Tetley, William. Marine Cargo Claims, 2nd ed. Toronto: Butterworths, 1978.
Tetley, William. Maritime Liens and Claims. London: Business Law Communications Ltd., 1985.
Traité de Droit civil du Québec, t. 13. Par Hervé Roch et Rodolphe Paré. Montréal: Wilson & Lafleur, 1952.
Walton, Frederick Parker. The Scope and Interpretation of the Civil Code of Lower Canada. Toronto: Butterworths, c<o 1907, 1980.
Wiswall, F. L. The Development of Admiralty Jurisdiction and Practice Since 1800. Cambridge: University Press, 1970.
Zweigert, Konrad and Hein Kötz. An Introduction to Comparative Law, t. 2. Translated from German by Tony Weir. Amsterdam: North-Holland Publishing Co., 1977.
APPEAL from a judgment of the Quebec Court of Appeal, [1985] C.A. 413, setting aside a judgment of the Superior Court, [1979] C.S. 453. Appeal allowed.
David F. H. Marler and Mary C. Parker, for the appellant.
Allan R. Hilton and Robert Metcalfe, for the respondent.
//McLachlin J.//
The reasons of Lamer and McLachlin JJ. were delivered by
MCLACHLIN J. -- I agree with the conclusions of La Forest and L'Heureux-Dubé JJ., subject to the following comments.
I would not confine the consideration of civil law principles to situations where the English Admiralty Court had jurisdiction prior to 1934. I would wish to leave open the question of whether, in the area of expanded jurisdiction conferred by s. 22(2) (m) of the Federal Court Act, R.S.C., 1985, c. F-7 (whereby Canadian courts must apply "the law that . . . would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters"), it might be appropriate to refer to principles other than those established by the common law.
I base this conclusion on three propositions.
First, maritime law in England, and consequently in Canada, has a long international tradition which draws, at least in part, on civil law. As L'Heureux-Dubé J. points out, civil law concepts not only were at the heart of the original Admiralty jurisdiction, which sought to apply civil law rather than the common law but also continued to play a role, together with the common law, in Admiralty judgments in England up to 1934, when English admiralty law was adopted in Canada. When, applying s. 22(2) (m), I ask myself what law would the Court of Admiralty have applied in areas of new jurisdiction, I cannot reply that it would have applied only common law principles. Rather, the history and tradition of the Admiralty court suggests that in some cases, it might have had recourse to civilian traditions.
Second, I view the international underpinning and orientation of maritime law as one not lightly to be eschewed. Maritime law, to a large extent, is international law. It is important for commercial reasons that the courts, in interpreting its principles, have regard where appropriate to the broader backdrop of international law. For this reason, I would resist the suggestion that international and civilian traditions can have no role to play except in those areas where the English Court of Admiralty actually exercised jurisdiction prior to 1934.
Finally, I do not read this Court's decision in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, as precluding the consideration of civil law principles in areas of Canadian maritime law where there is no precedent in the English Court of Admiralty prior to 1934. At page 774, McIntyre J. emphasizes that Canadian maritime law cannot be regarded as having been frozen as of 1934. He goes on to say:
On the contrary, the words `maritime' and `admiralty' should be interpreted within the modern context of commerce and shipping.
That context, I venture to suggest, is neither a common law context, nor a civilian context; it is an international context in which both traditions may play a part.
At page 776, McIntyre J. points out that the English Admiralty Court applied common law principles of contract and tort in some situations, such as collisions on the high seas. Nowhere, however, does he suggest that the Court did not also apply civil law principles -- a fact amply demonstrated by the reasons of L'Heureux-Dubé J. in this case.
As I see it, the contest in this case is not between the Anglo-Canadian common law and the civil law (I agree with L'Heureux-Dubé J. that the result in this case would be the same under both systems), but between the American law and the Anglo-Canadian common law. I see no basis, under s. 22(2) (m) of the Federal Court Act or otherwise, for preferring American law to the Anglo-Canadian common law and civil law, in determining what rule should be adopted in Canadian admiralty law.
I would allow the appeal with costs.
//La Forest J.//
The judgment of Wilson, La Forest, Sopinka and Cory JJ. was delivered by
LA FOREST J. -- At issue in this appeal is whether under Canadian maritime law an agent of an unnamed or partially disclosed principal is personally liable on a contract entered into by the agent with another party when the agent expressly indicates to the other party that he is acting as an agent only. Before that issue can be addressed, however, a threshold issue of what law is applicable must be settled.
The respondent Q.N.S., a stevedore and local ship agent, sued the appellant Chartwell, in the Quebec Superior Court, on a contract for stevedoring and other services. Chartwell did not deny the existence of the contract or question the amount owing, but defended the action on the ground that, though it had not identified its principal, it had consistently represented itself as acting as an agent only. The detailed facts and the judicial history of the appeal are set forth in the opinion of my colleague L'Heureux-Dubé J. and need not be repeated. It suffices to say that the Superior Court absolved Chartwell of liability, [1979] C.S. 453, but the Quebec Court of Appeal held it liable, [1985] C.A. 413. Both courts applied the principles of the Quebec Civil Code respecting the liability of a mandatory to third persons with whom he contracts, specifically arts. 1715 and 1716 of the Code.
The decision of these courts was made before that of this Court in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, was rendered. In that case, a marine carrier (Mitsui) contracted to carry electronic calculators from Japan to Montréal where the owner (Miida) was to take delivery. On arrival at Montréal, the goods were picked up by ITO, a cargo-handling company which had agreed with the carrier to unload and store the goods until delivery to the owner. While in storage in a terminal transit shed operated by ITO, a substantial number of the calculators were stolen. The theft could in all probability have been prevented were it not for negligence in the operation of ITO's security system. The owner sued both ITO and the carrier. Only the action against ITO is relevant here, since it raised the issue of the applicable law. Though all the members of the Court agreed in the result, they disagreed (4-3) on the issue of the applicable law.
McIntyre J., speaking for a majority, had this to say, at p. 779:
It is my view, as set out above, that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment. I am also of the opinion that Canadian maritime law is uniform throughout Canada, a view also expressed by Le Dain J. in the Court of Appeal who applied the common law principles of bailment to resolve Miida's claim against ITO. Canadian maritime law is that body of law defined in s. 2 of the Federal Court Act . That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada.
The minority, however, stressed that the action against ITO was purely delictual. It was simply an action in delict committed in Montréal, and it thus fell within the jurisdiction of the civil courts of Quebec, not that of the Federal Court. From their perspective, it was not a question of maritime law at all.
In the present case, there is no question that we are dealing with maritime law. Section 22(2) (m) of the Federal Court Act, R.S.C., 1985, c. F-7 , expressly identifies stevedoring services as part of Canadian maritime law. That provision reads:
22. . . .
(2) Without limiting the generality of subsection (1), it is hereby declared for greater certainty that the Trial Division has jurisdiction with respect to any one or more of the following:
. . .
(m) any claim in respect of goods, materials or services wherever supplied to a ship for the operation or maintenance of the ship, including, without restricting the generality of the foregoing, claims in respect of stevedoring and lighterage;
There is no doubt that the development of English admiralty law, from which Canadian maritime law in considerable measure derives, owes much to the civilian tradition. The common law in its early period was ill-equipped to deal with commercial and maritime matters and the courts of admiralty, when called upon to decide maritime disputes, applied principles developed on the continent. Indeed, admiralty courts were presided over by civilians. It must be kept in mind, however, that the admiralty courts, like other specialized courts in England, continually had to struggle to resist the growing strength of the common law courts, and their jurisdiction over ordinary civil matters became extremely narrowed and curtailed; in particular, they had no jurisdiction in these matters within the realm; see Mersey Docks Harbour Board v. Turner (The "Zeta"), [1893] A.C. 468 (H.L.), at pp. 481 et seq. These matters, though concerned with questions of a maritime nature, were largely dealt with by the common law courts. With the rationalization of the English court system in the late 19th century, admiralty jurisdiction was transferred to the admiralty division of the High Court, but all divisions of that court may exercise jurisdiction over admiralty matters; see Administration of Justice Act, 1928 (U.K.), 18 & 19 Geo. 5, c. 26, s. 6.
It is this amalgam that was incorporated into Canadian maritime law. McIntyre J. in ITO has discussed in detail the process by which the Exchequer Court and later the Federal Court applied the common law principles of contract, tort and bailment in the resolution of admiralty matters (see in particular p. 776) as well as the jurisdiction now assigned to the Federal Court, and I do not propose to repeat it. Suffice it to say that he particularly relied on s. 2 of the Federal Court Act , which defines "Canadian maritime law" as including not only law formerly administered by the Exchequer Court on its admiralty side, but also "the law that . . . would have been so administered if that court had had on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters" (p. 769). The latter portion of the definition would include all claims dealing with maritime matters and was not frozen by pre-existing admiralty jurisdiction. It incorporated as a uniform body of federal law the maritime law of England (p. 779).
It was in the light of this examination that the majority of this Court in ITO concluded that Canadian maritime law encompassed the common law principles of tort, contract and bailment. To these I would add, if indeed it is an addition, agency. For nowhere does it become more obvious that the law is a seamless web than when one considers the interplay between contract, agency and tort, to say nothing of bailment. In fact, the case here is an action in contract, the issue being whether the agent is bound by the contract. Many of the cases cited by my colleague in elaborating the common law position regarding the specific problem that arises in the present case arose in maritime matters. Scarcely surprising, because as mentioned these maritime matters have, for hundreds of years, come within the jurisdiction of the common law courts. The laws elaborated in those cases have now become part of the uniform federal or Canadian maritime law.
There are, no doubt, issues specific to admiralty jurisdiction where reference may fruitfully be made to the experience of other countries and specifically, because of the genesis of admiralty jurisdiction, to civilian experience. I have no doubt of the utility in the course of this exercise of treating as of general import any relevant provision of the Quebec Civil Code, to adopt the words of Le Dain J. in the Federal Court of Appeal in ITO (Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd.), [1982] 1 F.C. 406, at p. 417. But this is certainly not that kind of case. As earlier mentioned, the common law principles have long been relied on to deal with precisely the type of situation in issue here.
Counsel for the respondent sought, through another path, to lead us to apply the Quebec civil law. Noting that McIntyre J. had observed in ITO, at p. 772, that s. 22 of the Federal Court Act , which confers concurrent original jurisdiction in claims arising under Canadian maritime law upon the Trial Division of the Federal Court, "does no more than grant jurisdiction, and . . . does not create operative law", he sought to persuade us that the principles of maritime law differed depending on whether it was applied in the Federal Court or a provincial court. This argument seems to me to overlook the essentially federal nature of maritime law, falling as it does under the federal power over navigation and shipping. In allowing concurrent jurisdiction over maritime law to provincially created courts, I cannot believe Parliament intended to delegate to those courts the authority to apply law different from that administered by the Federal Court. Nor do I think it would intend any distinction between the law applied through judicial interpretation and any possible extended jurisdiction that might be derived from the clarification of the ambit of Canadian maritime law under s. 22(2) of the Federal Court Act . It is noteworthy that the opening words of s. 22(2) do not purport to enact new law but to declare the law for greater certainty. That declaration, falling as it does within Parliament's powers, must be respected. Thus McIntyre J.'s statement that Canadian maritime law is a body of federal law encompassing certain common law principles and that this law is uniform throughout Canada applies whatever court may exercise jurisdiction in a particular case.
Having determined that the applicable maritime law is to be found in the principles of the common law of contract and agency, I shall briefly turn to that issue. As my colleague observes, in cases of this kind, the issue whether an agent contracted personally, or solely in the capacity of agent (in which case only the principal is bound), is a matter of construction of a particular contract. I leave aside, of course, any custom that may exist at any particular port or in a particular trade. In this case, the relevant documents reveal that Chartwell consistently attempted to bring home to Q.N.S. that its sole responsibility was as an agent. In the body of its letters, it identified itself as "Managing Operators [i.e., as agents] for the Charterers" or as acting "On behalf of our principals", and it consistently signed "as Managing Operators only". While the simple addition of the word "agent" or its equivalent following a signature can easily be read as a mere description of the signatory, that cannot be said of "as agent only". Those words do more. They are obviously directed to limiting or explaining a liability, and not merely to describing the person signing or his authority to do so; see Universal Steam Navigation Co. v. James McKelvie & Co., [1923] A.C. 492 (H.L.), and esp. at p. 500, per Lord Sumner. What particularly impresses in the present case is Chartwell's insistent repetition in its correspondence that it is acting as an agent and its repeated signature "as agent only". (Emphasis added.) As Brandon J. (citing Halsbury's Laws of England (3rd ed. 1952), vol. 1, at pp. 228-29, para. 517) put it in Bridges & Salmon, Ltd. v. The "Swan", [1968] 1 Lloyd's Rep. 5, at p. 13, "if he [the agent] states in the contract, or indicates by an addition to his signature, that he is contracting as agent only on behalf of a principal, he is not liable, unless the rest of the contract clearly involves his personal liability, or unless he is shown to be the real principal". The latter qualifications obviously have no application here. Similar principles were applied in N. & J. Vlassopulos Ltd. v. Ney Shipping Ltd. (The "Santa Carina"), [1977] 1 Lloyd's Rep. 478, where the English Court of Appeal absolved an agent from liability in a case bearing considerable resemblance to the present. Significantly, all the cases I have cited involve maritime matters, but the principle is, of course, more general.
Counsel for the respondent drew our attention to para. 321 of the Restatement of the Law (Second): Agency 2d (1958), vol. 2, at p. 70, which states that unless otherwise agreed, a person purporting to make a contract with another for a partially disclosed principal is a party to the contract. While the failure to reveal the identity of one's principal may give rise to an inference that the agent was intended to be a party, like my colleague I am unwilling to adopt any hard and fast rule regarding the intention of the parties. Certainly, any inference such as I have described would be displaced by a contract evincing the clear intent of this one.
I would allow the appeal, reverse the judgment of the Court of Appeal and restore the judgment of the trial judge, with costs throughout.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'HEUREUX-DUBÉ J. -- This appeal raises two questions: what is the role of Quebec civil law in the interpretation of Canadian maritime law and what are the requirements under Canadian maritime law concerning the disclosure by an agent or mandatary that it is acting in the name of its principal or mandator?
I - The Facts
Q.N.S. Paper Company Limited ("Q.N.S."), a stevedore and local "ship agent", sued Chartwell Shipping Limited ("Chartwell"), a managing operator in Quebec for the charterers of two vessels, claiming $50,388.91 on an unpaid bill. Chartwell did not deny the amount was owing, but refused to pay, contending that it had disclosed to Q.N.S. that it was acting as mandatary only. The evidence submitted at trial demonstrated unequivocally that Chartwell consistently represented itself as acting only in the capacity of a mandatary:
Exhibit P-1: Letter from Chartwell Shipping Ltd. to Quebec Northshore Paper Co. dated November 24th, 1972.
Quebec Northshore Paper Co.
Baie Comeau, Quebec
Dear Sirs:
M.V. "APJ PRIYA"
As Managing Operators for the charterers we are again pleased to appoint you as agents for the vessel's forthcoming call at Baie Comeau.
At the time of writing this letter, the vessel is due to arrive at Baie Comeau on December 1/2 to lead the following cargoes:
600 MT newsprint Sourabaia
400 MT newsprint Sourabaia
400 MT newsprint Djakarta
500 MT newsprint Djakarta
600 MT newsprint Sourabaia
[handwritten:]
250 MT Djakarta
Our principals are taking delivery of the vessel taking inbound harbour pilot at Baie Comeau and thus we enclose a Delivery Certificate which we ask you kindly to fill in and have the Master sign on owners' behalf and yourself on charterers' behalf. We will have an onhire and bunker survey carried out, however, we will revert on this matter later.
From Baie Comeau the vessel will sail to Quebec where our agents are: Shipping Limited, 140 Dalhousie Street, Quebec 2, Quebec, Telephone: 418-692-0650, cable: "BULKO QUEBEC".
We do not anticipate any owners items at Baie Comeau, however, if there are any owners' items, including cash to Master, this should be authorized by us first.
Please cable us on arrival and departure, giving time and fuel on board. Also please give us a daily progress report over the phone.
After the vessel has sailed, please send us your disbursement account in triplicate.
Yours very truly,
CHARTWELL SHIPPING LTD.
as Managing Operators only
Exhibit P-2: Letter from Chartwell Shipping Ltd. to Quebec Northshore Paper Co. dated November 29th, 1972.
Quebec Northshore Paper Co.
Baie Comeau, P.Q.
Att: Mr. Don Horwood
Dear Sirs:
M.V. "LONDON CITIZEN"
On behalf of our principals we are again pleased to appoint you as agents at Baie Comeau for the above mentioned vessel.
Present ETA Baie Comeau is December 8/10, however, there is a possibility that this may change and that she could be in Baie Comeau as early as December 5/6 but we will keep you advised about any changes. At Baie Comeau the vessel is loading the following cargo:
1000 MT newsprint for Bangkok
500 MT newsprint for Djakarta
250 MT newsprint for Djakarta
1000 MT newsprint for Bangkok
Upon completion at Baie Comeau the vessel will sail to Saint John, N.B. where our agents are: Shipping Limited, 133 Prince William Str