Canada Packers Ltd. v. New Brunswick Cold Storage Co., (1981) 36 N.B.R.(2d) 541 (CA)

• Judge: Hughes, C.J.N.B., Limerick and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: August 18, 1981
• Jurisdiction: New Brunswick
• Citations: (1981), 36 N.B.R.(2d) 541 (CA)

Can. Packers v. N.B. Cold Storage (1981), 36 N.B.R.(2d) 541 (CA);

    36 R.N.-B.(2e) 541; 94 A.P.R. 541

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Canada Packers Ltd. v. New Brunswick Cold Storage Co. Ltd.

Indexed As: Canada Packers Ltd. v. New Brunswick Cold Storage Co.

Répertorié: Canada Packers Ltd. v. New Brunswick Cold Storage Co.

New Brunswick Court of Appeal

Hughes, C.J.N.B., Limerick and Ryan, JJ.A.

August 18, 1981.

Summary:

Résumé:

The plaintiff meat packer stored 281,000 pounds of meat in the defendant's warehouse. Three percent of the meat became contaminated.

The New Brunswick Supreme Court, Trial Division held that the defendant was negligent and liable to the meat packer. The Trial Division held that the warehouseman could not rely upon an exclusionary clause because the defendant fundamentally breached the contract of storage - see 29 N.B.R.(2d) 62; 66 A.P.R. 62. The warehouseman appealed to the New Brunswick Court of Appeal.

The New Brunswick Court of Appeal allowed the appeal in part. The Court of Appeal held that the limitation or exclusionary clause was valid (see paragraph 12).

Bailment - Topic 4240

Warehousing and storage - Validity of clause limiting liability of bailee - A meat packer stored 281,000 pounds of meat in the defendant's warehouse - 3% of the meat became contaminated due to the defendant's negligence - The warehouse receipt issued by the defendant limited its liability to 100 times 1 month's storage charge per unit - The New Brunswick Court of Appeal held that the limitation clause was valid (see paragraph 12).

Bailment - Topic 2348

Liability of bailee - Exclusionary clauses, impairment of duty of bailee - The New Brunswick Court of Appeal held valid an exclusionary clause which limited a warehouseman's liability for negligence in the performance of its duties (see paragraph 12).

Bailment - Topic 2347

Liability of bailee - Exclusionary clauses - Bars, fundamental breach - What constitutes a fundamental breach - Due to a warehouseman's negligence 3% of the plaintiff's meat (which was stored with the defendant) was contaminated - The New BrunswIck Court of Appeal held that in the circumstances the doctrine of fundamental breach was inapplicable (see paragraph 10).

Cases Noticed:

United Fresh Meat Co. Ltd. v. Charterhouse Cold Storage, [1974] 2 Lloyd's Law Reports 286, dist. [para. 9].

Photo Production Ltd. v. Securior Transport Ltd., [1980] 1 All E.R. 566 (H.L.), ref'd to. [para. 10].

Evans Products Co. Ltd. v. Crest Warehousing Co. Ltd. (1979), 28 N.R. 148, folld. [para. 13].

Statutes Noticed:

Warehouse Receipts Act, R.S.N.B. 1973, c. W-3, sect. 13 [para. 12].

Counsel:

John P. Barry, Q.C., and Paulette Nason, for the defendant appellant;

Donald Gillis, Q.C., and Rodney J. Gillis, for the plaintiff respondent.

This appeal was heard by HUGHES, C.J.N.B., LIMERICK and RYAN, JJ.A., of the New Brunswick Court of Appeal at Fredericton, N.B., on September 26, 1980.

The judgment of the Court of Appeal was delivered by RYAN, J.A., on August 18, 1981 - a French language translation is set out immediately following the English language judgment.