CNR v. Frozen Foods Ltd., (1972) 3 Nfld. & P.E.I.R. 327 (NFCA)

JudgeFurIong C.J., Puddester and Higgins, JJ.
CourtNewfoundland Court of Appeal
Case DateSeptember 14, 1972
JurisdictionNewfoundland and Labrador
Citations(1972), 3 Nfld. & P.E.I.R. 327 (NFCA)

CNR v. Frozen Foods Ltd. (1972), 3 Nfld. & P.E.I.R. 327 (NFCA)

MLB headnote and full text

Canadian National Railway Company v. Frozen Foods Limited

Indexed As: Canadian National Railway Co. v. Frozen Foods Ltd.

Newfoundland Supreme Court

On Appeal

FurIong C.J., Puddester and Higgins, JJ.

September 14, 1972.

Summary:

The appeal court dismissed the plaintiff's appeal and affirmed the judgment of the trial court. The trial court allowed the plaintiff's claim and the defendant's counterclaim with the result that the defendant was awarded $890.55. The plaintiff's claim was for unpaid freight charges and the defendant's counterclaim was for negligent loss and spoilage of frozen foods carried by the plaintiff.

The defendant ordered the frozen foods from the seller. The seller delivered the goods to the plaintiff carrier in Ontario to be shipped to Newfoundland. The goods were consigned by the seller to itself as consignee in the bill of lading.

The appeal court held that the defendant could not sue the carrier in contract on the bill of lading, since it was not a party to the bill of lading. The appeal court held, however, that the defendant as the owner of the goods had an action in negligence against the plaintiff carrier.

The appeal court held that the defendant became the owner of the goods when the seller delivered the goods to the carrier. The appeal court held that this delivery constituted an appropriation of the goods to the contract within the meaning of section 19, rule 5, of The Sale of Goods Act.

Carriers - Topic 4590

Carriage of goods - Bills of lading - Action on bill of lading - Contract - Carriers - Contract of carriage bill of lading - Newfoundland Court of Appeal held that under the Bills of Lading Act only parties to the bill of lading have a right of Action on the bill of lading - Paragraphs 5 and 18.

Carriers - Topic 6028

Liability for goods - Negligence - Action by owner, whether plaintiff an owner - Carriers - Ownership of goods prerequisite to action for negligent damage - Carrier negligently damaged goods - Buyer not party to a bill of lading and therefore had no action in contract - Newfoundland Court of Appeal held buyer became owner when seller appropriated the goods pursuant to the sales contract by delivery to the carrier - Appeal court held buyer as owner had action for negligence against carrier.

Sale of Goods - Topic 3047

Transfer of property in goods from seller to buyer - Delivery - To a carrier - Ownership - Passing of property carriers - Contract of carriage - Seller delivered goods for buyer to carrier - Seller consigned goods in bill of lading to itself as consignee - Newfoundland Court of Appeal held that the seller appropriated the goods to the contract by delivery to the carrier and that property or title passed to the buyer in accordance with section 19, rule 5, of the Sale of Goods Act.

Cases Noticed:

Sanders v. MacLean (1883), 11 Q.B.D. 327 (C.A.), refd to.

Coyle v. G.T.R., [1925] 4 D.L.R. 360, folld.

Forward v. Pittard, 99 E.R. 953, refd to.

L. & N.W.R. Co. v. R. Hudson & Sons Ltd., [1920] A.C. 324, appld.

Dyment v. Northern Ry. Co. (1886), 11 O.R. 343, refd to.

Statutes Noticed:

Bills of Lading Act, R.S.C. 1952, c. 16.

Rules of Court, Order 18, rule 11.

Rules of Court, Order 18, rule 13.

Rules of Court, Order 18, rule 15.

Rules of Court, Order 54, rule 1.

Sales of Goods Act, R.S. Nfld. 1952, c. 222, sect. 19, rule 5.

Counsel:

Philip J. Lewis, Q.C., for the plaintiff/appellant;

Nathaniel S. Noel, for the defendant/respondent.

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