118787 Canada Ltd. v. Russell Steel, (1993) 108 Sask.R. 199 (ProvCt)

• Judge: Bell, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 06, 1993
• Jurisdiction: Saskatchewan
• Citations: (1993), 108 Sask.R. 199 (ProvCt)

118787 Can. Ltd. v. Russell Steel (1993), 108 Sask.R. 199 (ProvCt)

MLB headnote and full text

118787 Canada Limited, carrying on business under the trade name and style of Phoenix Transportation (plaintiff) v. Russell Steel, a division of Fedmet Inc. (defendant)

(SC 380/92)

Indexed As: 118787 Canada Ltd. v. Russell Steel

Saskatchewan Provincial Court

Bell, P.C.J.

February 4, 1993.

Summary:

The plaintiff carrier delivered 13 shipments of steel from the defendant steel supplier to Norfab. All shipments were shipped "COLL" or "COLLECT", which meant freight collect. The plaintiff did not collect the freight charges from Norfab when the merchandise was delivered, but instead billed Norfab. Norfab did not pay the freight charges. The plaintiff obtained a judgment against Norfab but was unable to realize on it. The plaintiff sued the defendant for the freight charges.

The Saskatchewan Provincial Court dis­missed the action.

Carriers - Topic 4551

Carriage of goods - Contract of carriage - Freight charges - [See Contracts - Topic 2084 ].

Contracts - Topic 2084

Terms - Implied terms - Trade custom - Circumstances when trade custom will be implied - The plaintiff carrier delivered 13 steel shipments from the defendant to Norfab - All shipments were shipped "COLL" or "COLLECT", which meant freight collect - The plaintiff did not collect the freight charges from Norfab upon delivery, but instead extended credit - Norfab did not pay the freight charges - The plaintiff obtained judgment against Norfab but was unable to realize on it and sued the defendant for the freight charges - The Saskatchewan Provincial Court dismissed the claim, holding that there was an implied term in the bill of lading aris­ing from industry custom that the carrier would not release the goods without pay­ment or further instructions from the de­fendant and that if it did so, it would be at its own peril.

Cases Noticed:

Moffatt v. MacKillop (1955), 35 M.P.R. 302 (N.S.C.A.), refd to. [para. 10].

Canadian Pacific Railway v. Watts, [1914] 7 W.W.R. 785 (Alta. C.A.), refd to. [para. 10].

Canadian National Railway Co. v. Butler Manufacturing Co. (Canada) Ltd., [1984] 3 W.W.R. 655; 52 A.R. 301 (Q.B.), refd to. [para. 10].

Great Western Railway Co. v. Bagge & Co. (1885), 15 Q.B.D. 625, refd to. [para. 10].

Con-Force Products et al. v. Luscar Ltd. and Kingsway Freightlines Ltd. et al. (1982), 27 Sask.R. 299 (Q.B.), refd to. [para. 11].

United Moving & Storage Ltd. v. Bales and Bales, [1983] 5 W.W.R. 471; 28 Sask.R. 42 (Q.B.), refd to. [para. 13].

Canadian Pacific Railway v. Forest City Paving (1909), 2 Sask. L.R. 413 (C.A.), refd to. [para. 14].

Western Canada Flour v. Canadian National Railway, [1927] 3 D.L.R. 569 (Man. C.A.), refd to. [para. 14].

Statutes Noticed:

Bills of Lading Act, 1855 (U.K.), sect. 1, sect. 2 [para. 7].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 35, paras. 683 et seq. [para. 10].

Halsbury's Laws of England (4th Ed.), vol. 5, para. 444, p. 231 [para. 14].

Law Reform Commission of Saskatchewan, The Status of English Law in Saskatchewan (1990), pp. 156-157 [para. 8].

Counsel:

J.D.L. Soper, for the plaintiff;

William D. Preston and Randal S. Van de Mosselaer, for the defendant.

This action was heard on January 6, 1993, before Bell, P.C.J., of the Saskatchewan Provincial Court, who delivered the follow­ing judgment on February 4, 1993.