December 10, 1909 (11th Parliament, 2nd Session)

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Hon. L. P.@

BRODEUR (Minister of Marine and Fisheries) moved second reading of Bill (No. 25) respecting the water carriage of goods. He said: The most important feature of the Bill is that concerning a clause which is to be found in many Bills of lading, providing that the ship owners will not be liable in cases of fault or negligence on their part. This contracting out of liability seems to me absolutely contrary to the principles of our laws. Some years ago we passed legislation preventing railway companies from doing this and declaring that any such clause would be considered illegal. I may say that similar legislation to the one we are now introducing has been passed in Australia and is also in force in the United .States, and the present Bill is taken mostly from the provisions of that passed by the Australian parliament. Some of its provisions are also in conformity with those of the Bill passed in the United States. True no such legislation exists in England, but the tendency at least in this country has been to disregard as much as possible the clauses in Bills of lading I have referred to. It ought not to be necessary for me to dwell at any length on the principle of the Bill. It is one which certainly ought to commend itself to the favourable consideration of this House. Let me draw attention to one of the clauses in the Bill of lading of a prominent shipping line:-
It is further expressly agreed that the goods named herein are shipped and carried at the sole risk of the shipper or owner thereof, and that the ship owner shall in no case be responsible for any loss or damage thereof, or in any wise relating thereto, whether such loss and damage arise, defects or insufficiency, either before or after shipment, in the hull of the said steamer, or in her machinery, or boilers or refrigerating chambers,- machinery or in any part of the refrigerating apparatus, or in any material, or the supply or use thereof used in the process of refrigeration, and whether such loss Mr. LEWIS.
or damage however arising, be caused by the negligence, default, error of judgment of the pilot, master, officers, engineers, mariners, refrigerating engineers, or other servants of the ship owner or persons for whom they are responsible or by negligence in stowage.
Here is another clause:-
Hook marks or injury from hooks, stowage or contact with or smell or evaporation from any other goods or from live stock or their excretion, however caused.
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In this case it is provided also that there shall be no liability. It is provided also that if the goods should be delivered to some , other person than the ones mentioned as being those to whose order the goods should be delivered, there will be no liability. I may say, however, to the credit of the ship owners as a rule that they do not take advantage of those extraordinary provisions. But possibly in some cases some companies, not quite so reputable, might not fail to take advantage of them. And it is possible that a company, who would be absolutely responsible in ordinary cases for the negligence of its officers and servants, might contract itself out of any liability arising from such negligence. Therefore it seems to me that we should provide that such clauses in a Bill of lading should be absolute illegal. This is the law which exists in Australia and the United States. I might add that in the province of Quebec, there is in its Civil Code a proviso almost similar to the one I am now introducing. That provision has been working satisfactorily and is in accord also with section 284 of the Railway Act. That section says:-
The company, shall, according to its powers:
(b) Furnish adequate and suitable accommodation for the carrying, unloading and delivering of such traffic.
And subsection 7 of the same section says:
Every person aggrieved by any neglect or refusal of the company to comply with the requirements of this section, shall, subject to this Act, have an action therefor against the company, from wrhich action the company shall not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the company or of its servants.
Current jurisprudence also tends to declare that the responsibility for accidents, not only when negligence is established against the shipowner or carrier, but in other cases also is upon the carrier. That is, the onus probandi in such cases rests upon the person against whom the action in damages is taken. The general principle of law is that one is not responsible unless it be proven that the accident or damage is due to his thought, fault or negligence. But, while this principle may

have been, not only sound but applicable before the present industrial development, yet, under present conditions, as shown by cases recently decided by the Supreme Court, the onus probandi rests upon the person using the appliances which are the cause of the accident. For it is extremely difficult in ordinary cases for the person aggrieved to prove that the accident is due to the negligence of the carrier. The courts have been giving to that disposition of the law the most liberal interpretation and have held the carrier responsible, not only when negligence has been proven, but when the presumption of negligence has been more or less well established. Thus the tendency of the law is more and more in favour of holding responsible the persons or companies to whose care goods are entrusted for transportation. But, in the case of shipowners, the carriers go so far as to contract themselves out of their liability even for damages due to their own negligence or fault. This is certainly a step contrary to the ordinary principles of the law, ot, at least, of the jurisprudence that is now being established in this country. It seems necessary to guard against such contracts and to enact a provision to make it impossible for these parties^ to contract themselves out of these liabilities, and for that purpose to declare such conditions of the contract to be illegal. That is the main object of this Bill. I may say that a measure on this subject was introduced in the Senate two years ago and was fully discussed there. An opportunity was given for interested parties, shipowners and others, to be heard. The result of the Senate's deliberations was a Bill which is almost word for word the one now before the House. Last year this Bill was passed again by the Senate, but, unfortunately, it reached this House too late to be considered. I believe it came to us just at the end of the session, and, as some objection was taken to it, it could not be passed. This year, I thought I would take charge of the Bill and submit it to the favourable consideration of this House. I entirely agree with the work done by the Senate, and I am very glad to say that the work is a good guide for us in this case, and we could not do better than follow the principles which they accepted last year, and which I am sure they will accent this year also. The other day we received in the department a letter from a shipowner who asked to be heard on the subject of this Bill. I think it is only fair that an opportunity for hearing should be afforded to those interested, and with that view, if the Bill passes its second reading, I intend to propose that it be referred to the Committee on Marine and Fisheries for that purpose.

Topic:   WATER CARRIAGE OF GOODS.
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