Kuehne + Nagel Ltd. v. Agrimax Ltd., 2010 FC 1303

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: December 13, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 1303;(2010), 382 F.T.R. 47 (FC)

Kuehne + Nagel Ltd. v. Agrimax Ltd. (2010), 382 F.T.R. 47 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. DE.056

Kuehne + Nagel Ltd. (plaintiff) v. Agrimax Ltd. (defendant)

(T-1968-08; 2010 FC 1303)

Indexed As: Kuehne + Nagel Ltd. v. Agrimax Ltd.

Federal Court

Harrington, J.

December 17, 2010.

Summary:

The plaintiff was an international freight forwarder. Pursuant to its contract with Agrimax Ltd., the plaintiff arranged for the shipment of 22 containers of crude sulphur to be received at Irricana, Alberta, for pre-carriage by truck and rail to Vancouver where the cargo was to be loaded on board the OOCL Kuala Lumpur for carriage to Haldia, India. Agrimax requested that the bill of lading be altered to remove the date on which the cargo had been shipped on board the OOCL Kuala Lumpur. The plaintiff refused to alter the bill of lading. Agrimax took the position that the plaintiff was in breach of contract and it refused to pay the freight and demurrage charges which had been incurred. The plaintiff sued Agrimax for its freight and demurrage claims. The plaintiff moved for summary judgment.

The Federal Court allowed the motion and granted judgment in favour of the plaintiff in the amount of $212,310.15 plus costs of $10,159.40 and post-judgment interest.

Practice - Topic 5402

Judgments and orders - General - Currency of judgments (incl. conversion) - [See Shipping and Navigation - Topic 1948 ].

Shipping and Navigation - Topic 1948

Carriage of goods - Bills of lading - Alterations and amendments - The plaintiff was an international freight forwarder - Pursuant to its contract with Agrimax Ltd., the plaintiff arranged with Blue Anchor Line for the shipment of 22 containers of crude sulphur to be received at Irricana, Alberta (50 km northeast of Calgary), for pre-carriage by truck and rail to Vancouver where the cargo was to be loaded on board the OOCL Kuala Lumpur for carriage to Haldia, India - Agrimax called for a combined transport bill of lading consigned to the order of HDFC Bank Limited, Kolkata, India, its purchaser's bank - The purchaser was to pay for the shipment by means of a HDFC letter of credit - According to Agrimax, it was a requirement of the contract that an on board bill of lading be issued because the purchaser had concerns that the containers might be left for some time before loading at Vancouver - The bill of lading issued by the plaintiff, as agent for Blue Anchor Line, stated that it was dated at Calgary on August 25, 2008 - The cargo was said to have been "received for shipment in apparent good order and condition" at Irricana and shipped on board the OOCL Kuala Lumpur on September 4, 2008 - Those dates were correct - The Bank refused to take up the bill of lading and refused to honour the letter of credit on the grounds that the shipment was to have commenced by August 31, 2008 - Agrimax requested that the bill of lading be altered to remove the date on which the cargo had been shipped on board the OOCL Kuala Lumpur - The plaintiff refused on the grounds that such removal would be illegal - Agrimax took the position that the plaintiff was in breach of contract and it refused to pay the freight and demurrage charges which had been incurred - The plaintiff sued Agrimax for its freight and demurrage claims - The plaintiff moved for summary judgment - The Federal Court allowed the motion and granted judgment in favour of the plaintiff - The plaintiff was right in refusing to amend the bill of lading - If it had done so, it would have been a lie - The court applied the breach day rule to the conversion of foreign currency into Canadian dollars.

Cases Noticed:

United Baltic Corp. v. Dundee, Perth & London Shipping Co. (1928), 32 Lloyd's Rep. 272, refd to. [para. 15].

Brown, Jenkinson & Co. v. Percy Dalton (London) Ltd., [1957] 2 All E.R. 844; [1957] 2 Lloyd's Rep. 1 (C.A.), refd to. [para. 17].

Paulin (H.) & Co. v. A Plus Freight Forwarder Co. et al. (2009), 349 F.T.R. 192; 2009 FC 727, refd to. [para. 17].

Locher Evers International v. Canada Garlic Distribution Inc., [2008] F.T.R. Uned. 200; 2008 FC 319, refd to. [para. 18].

Aries Tanker Corp. v. Total Transport Ltd.; Ship Aries, Re, [1977] 1 All E.R. 398; [1977] 1 Lloyd's Rep. 334 (H.L.), refd to. [para. 18].

Ship Hasselt, Re - see Bocimar N.V. v. Century Insurance Co. of Canada.

Bocimar N.V. v. Century Insurance Co. of Canada (1984), 53 N.R. 383; 7 C.C.L.I. 165 (F.C.A.), revd. in part [1987] 1 S.C.R. 1247; 76 N.R. 212, folld. [para. 19].

Miliangos v. Frank (George) Textiles Ltd., [1976] A.C. 443 (H.L.), refd to. [para. 19].

Batavia Times Publishing Co. v. Davis (1978), 20 O.R.(2d) 437 (H.C.), refd to. [para. 19].

Gatineau Power Co. v. Crown Life Insurance Co., [1945] S.C.R. 655, refd to. [para. 20].

Ship Custodian v. Blucher - see National Bank fur Deutschland v. Blucher.

National Bank fur Deutschland v. Blucher, [1927] S.C.R. 420, refd to. [para. 20].

Ship Despina R, Re, [1979] 1 All E.R. 421 (H.L.), refd to. [para. 20].

Schweizerische Metallwerke Selve & Co. v. Atlantic Container Line Ltd. (1985), 63 N.R. 104 (F.C.A.), refd to. [para. 22].

Ship Mekhanik Tarasov, Re - see Kruger Inc. et al. v. Baltic Shipping Co.

Kruger Inc. et al. v. Baltic Shipping Co., [1988] 1 F.C. 262; 11 F.T.R. 80 (T.D.), affd. (1989), 57 D.L.R.(4th) 498 (F.C.A.), refd to. [para. 22].

Holt Cargo Systems Inc. v. ABC Containerline N.V. - see Holt Cargo Systems Inc. v. Ship Brussel.

Holt Cargo Systems Inc. v. Ship Brussel (2000), 185 F.T.R. 1 (T.D.), refd to. [para. 22].

Bell Telephone Co. of Canada v. Ship Mar-Tirenno, [1974] 1 F.C. 294 (T.D.), affd. [1976] 1 F.C. 539 (F.C.A.), refd to. [para. 24].

Authors and Works Noticed:

Pitch, Harvin D., and Snyder, Ronald M., Damages for Breach of Contract (1989) (Looseleaf), c. 13 [para. 19].

Waddams, Stephen M., The Law of Contracts (5th Ed. 2005), p. 515 [para. 19].

Counsel:

Gavin Magrath, for the plaintiff;

No one appearing, for the defendant.

Solicitors of Record:

Magrath O'Connor, LLP, Toronto, Ontario, for the plaintiff.

This motion was heard on December 13, 2010, at Toronto, Ontario, before Harrington, J., of the Federal Court, who delivered the following decision on December 17, 2010.