ga case in canada

8/6/2019 GA Case in Canada

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http://www.mcgill.ca/files/maritimelaw/ch18.pdfhttp://www.mcgill.ca/files/maritimelaw/ch18.pdf


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foresee the possibility of his own negligence and that of his servants.As I have indicated, I cannot subscribe to this proposition and itfollows that, in my opinion, the appellants have not shown that thedamage complained of was "the direct consequence of the generalaverage act".

As will be seen, I agree with the assessment made by the learnedtrial Judge of the negligence which he found to have been proved inthis case of which he said:

These acts of neglect, even if committed during the general averageprocedure cannot, in my view, be held as those of the plaintiff so asto prevent the latter from successfully recovering the damages to itscargo.

The amount of $107,621.26, representing the loss or damage to thecargo as determined at the time of discharge at Genoa, does notappear to have taken account of the minor damage which any suchcargo might have sustained in the course of enforced loading andunloading at Levis, even if there had been no negligence, but as noevidence was called by the appellants to indicate the extent of suchincidental damage, if any, and as there does not appear to be anydispute as to quantum, I do not think that this Court is in a positionto interfere with the award made by the learned trial Judge.

From time to time in the course of these reasons I have referred tothe responsibility of the "shipowners" and I should perhaps make itplain that this responsibility is shared by the time charterers and thatthe liability of the two appellants is joint and several.

For all these reasons I would dismiss this appeal with costs.

DISPOSITION:Appeal dismissed.

N.B.: The decision of the Supreme Court of

Israel in Zim Israel Navigation Ltd. v. The

Israeli Phoenix Assurance Company Ltd.

(The Zim Marseilles) [1999] ETL 535

(Casebook at pp. 240-247) is not reproducedhere.

The next decision (see page 241 below) is

Jules H. Bache v. Silver Line, Limited 1940

AMC 731 (2 Cir. 1940), which appears in the

Casebook at p. 248.

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JULES S. BACHE, Libellants-Appellants,

v.

SILVER LINE, LIMITED, Claimant.

1940 AMC 731

UNITED STATES CIRCUIT COURT OF APPEALS,SECOND CIRCUIT February 26, 1940

L. HAND, CHASE and PATTERSON, Ct. JJ.

CARGO DAMAGE -Rubber in Bales -. 124.. Stowage -.

BILLS OF LADING -193.. Inherent Vice -. Crude Rubber -. 194..Insufficient Package..

The custom of stowing crude rubber bales over rattans and withoutdunnage between the tiers of rubber held proper and reasonable (upto any height).

If bales of rubber are so twisted in stowage as to require more thanthe normal adjustment of the slicing machines in the factories thereis actionable damage.

A dilemma results from the propositions that (1) if customarystowage is likely to twist the bales the vessel must give stowage thatwill protect the bales, as for example, by fewer tiers, while (2) if thegoods as wrapped or cased are not fitted to endure ordinary hazardsof the voyage, the ship is not liable for resulting damage. When

these two doctrines clash, the trade must come to someaccommodation between ideal perfection of stowage and entiredisregard of the safety of the goods; the standards so arrived atbecome customary and go into the contract and are the measure ofthe carrier's liability. The burden of proof of unreasonableness ofcustomary stowage is on the cargo interests. Considering all thefactors, the demands of consignees of crude rubber bale cargo forsuch stowage as will prevent the small amount of twist whichsometimes occurs are unreasonable demands.

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