Federal Court of Appeal Decisions

Date: 20050415

Docket: A-436-03

Citation: 2005 FCA 139

CORAM:        RICHARD C.J.

DÉCARY J.A.

LÉTOURNEAU J.A.

BETWEEN:

                                           ELDERS GRAIN COMPANY LIMITED

                                                                           and

                          CARLING O'KEEFE BREWERIES OF CANADA LIMITED

                                                                                                                                          Appellants

                                                                           and

                        THE VESSEL M/V "RALPH MISENER" AND THE OWNERS

         AND ALL OTHERS INTERESTED IN THE VESSEL M/V "RALPH MISENER"

                                                                           and

                                                  MISENER HOLDING LIMITED

                                                                           and

                                                           MISENER SHIPPING

                                                                                                                                      Respondents

                                       Heard at Montréal, Quebec, on February 17, 2005.

                                  Judgment delivered at Ottawa, Ontario, on April 15, 2005.

REASONS FOR JUDGMENT BY:                                                                             RICHARD C.J.

CONCURRED IN BY:                                                                                                  DÉCARY J.A.

                                                                                                                           LÉTOURNEAU J.A.

Date: 20050415

Docket: A-436-03

Citation: 2005 FCA 139

CORAM:        RICHARD C.J.

DÉCARY J.A.

LÉTOURNEAU J.A.

BETWEEN:

                                           ELDERS GRAIN COMPANY LIMITED

                                                                           and

                          CARLING O'KEEFE BREWERIES OF CANADA LIMITED

                                                                                                                                          Appellants

                                                                           and

                        THE VESSEL M/V "RALPH MISENER" AND THE OWNERS

         AND ALL OTHERS INTERESTED IN THE VESSEL M/V "RALPH MISENER"

                                                                           and

                                                  MISENER HOLDING LIMITED

                                                                           and

                                                           MISENER SHIPPING

                                                                                                                                      Respondents

                                                    REASONS FOR JUDGMENT

RICHARD C.J.

[1]                This is an appeal from a judgment of Justice Nadon, then sitting as a judge of the Federal Court, dated July_7,_2003 (2003 FC 837) dismissing the appellants' action for damages due to the loss of their cargo and allowing the respondents' counterclaim.

[2]         On May 31, 1989, the appellants' cargo of alfalfa pellets was unloaded from the respondents' vessel, the M/V Ralph Misener, in Quebec City. During the unloading, it was discovered that the cargo was on fire. The fire department succeeded in extinguishing the fire with water and chemicals.

[3]         The appellants are claiming damages for their lost cargo and pointing to the clean bill of lading issued by the ship's captain as proof that the cargo was in good condition when it was loaded on the ship in Thunder Bay.

[4]         The appellants claim that the trial judge erred in his conclusion that the respondents successfully rebutted the prima facie presumption of good condition of the cargo established by the clean bill of lading. The appellants also argue that the trial judge erred in his conclusions regarding the cause of the fire, and the dangerous nature of the goods. Furthermore, the appellants assert that they were prejudiced when their expert was not permitted to testify in reply.

[5]         In their counter-claim, the respondents are claiming damages for their losses and maintain that the alfalfa pellets were "dangerous materials" that spontaneously self-ignited during unloading. The respondents argue that the appellants had a strict duty to warn them of the dangerous nature of the cargo. By failing to warn, the appellants are liable for the damage to the respondents' vessel.

Standard of Review

[6]         It is settled law that an appeal is not a trial de novo. The role of an appellate court is not to write a better judgment than the trial judge but to review his or her reasons in light of the arguments of the parties and the relevant evidence. Therefore, this Court must give consideration to the standard of review applicable to the various issues which arise on this appeal: Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[7]         In Housen, the Supreme Court of Canada set out the standards of review to be used by an appellate court in regards to the following types of questions: (1) questions of law; (2) questions of fact; (3) inferences of fact, and (4) questions of mixed fact and law.

[8]         The standard of review for pure questions of law is correctness and an appellate court is therefore free to replace the opinion of the trial judge with its own.

[9]         The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error".

[10]       Justice Bastarache in Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at paragraph 15 defined a palpable and overriding error as one "that gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion." In short, a palpable and overriding error is an obvious deficiency in the trial judge's findings of fact that affects the outcome of the trial.

[11]       Accordingly, this Court must review the trial judge's decision on a standard of correctness for pure questions of law. Regarding findings of fact and inferences of fact, this Court must exercise the utmost deference, disturbing the trial judge's decision only in the presence of palpable and overriding error.

[12]       A determination that involves the application of a legal test to a set of facts is a question of mixed fact and law. That determination is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the legal test or its application, in which case the error may amount to an error of law: Housen, supra at paragraph 37; R. v. Buhay, [2003] 1_S.C.R. 631 at paragraph 45.

[13]       The trial judge's decision regarding the procedure to be followed at trial was a discretionary one. An appellate court is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the trial judge. However, if the decision was based on an error of law or if the appellate court reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations or that the trial judge considered irrelevant factors or failed to consider relevant factors, then an appellate court is entitled to exercise its own discretion: R. v. Carosella, [1997] 1 S.C.R. 80 at paragraph 49. See also Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at paragraph 39; Reza v. Canada, [1994] 2 S.C.R. 394 at pages 404-405; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at pages 76-77.

[14]       The appellants maintain that the trial judge erred in his conclusions regarding (1) whether the respondents successfully rebutted the prima facie presumption of good condition of the cargo established by the clean bill of lading, (2) the cause of the loss, (3) the dangerous nature of the goods, and (4) the proper order of evidence at trial.

[15]       The cause of the fire can only be determined by weighing the evidence. It is thus a question of fact and may be disturbed only if a palpable and overriding error is discovered.

[16]       The question of whether the cargo was dangerous material requires applying the relevant law to the facts and is thus a question of mixed fact and law. So too is the question regarding the rebuttal of the prima facie presumption of good condition of the cargo Since the questions of law can be separated from the facts, the questions of law must be reviewed on a correctness standard, while the trial judge's findings of fact must be reviewed for palpable and overriding error.

[17]       The order of presentation of evidence at a trial is set out in the Federal Court Rules, 1998 and is subject to judicial discretion.

Relevant statutory provisions

The Hague Rules (incorporated into Canadian law as a schedule to the Carriage of Goods by Water Act, R.S.C. 1985 c._C-27 (now the Hague-Visby Rules, incorporated as Schedule 3 the Marine Liability Act, 2001, c. 6))

Article III, Rule 3

3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things (a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; (b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper; (c) the apparent order and condition of the goods: Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

3. Après avoir reçu et pris en charge les marchandises, le transporteur ou le capitaine ou agent du transporteur devra, sur demande du chargeur, délivrer au chargeur un connaissement portant, entre autres choses : a) les marques principales nécessaires à l'identification des marchandises telles qu'elles sont fournies par écrit par le chargeur avant que le chargement de ces marchandises ne commence, pourvu que ces marques soient imprimées ou apposées clairement de toute autre façon sur les marchandises non emballées ou sur les caisses ou emballages dans lesquels les marchandises sont contenues, de telle sorte qu'elles devraient normalement rester visibles jusqu'à la fin du voyage; b) ou le nombre de colis, ou de pièces, ou la quantité ou le poids, suivant les cas, tels qu'ils sont fournis par écrit par le chargeur; c) l'état et le conditionnement apparents des marchandises. Cependant, aucun transporteur, capitaine ou agent du transporteur ne sera tenu de déclarer ou de mentionner, dans le connaissement, des marques, un nombre, une quantité ou un poids dont il a une raison sérieuse de soupçonner qu'ils ne représentent pas exactement les marchandises actuellement reçues par lui, ou qu'il n'a pas eu des moyens raisonnables de vérifier.

Article III, Rule 4

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c)).

4. Un tel connaissement vaudra présomption, sauf preuve contraire, de la réception par le transporteur des marchandises telles qu'elles y sont décrites, conformément aux alinéas 3a), b) et c).

Article IV, Rule 2

2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from                                              ... (b) fire, unless caused by the actual fault or privity of the carrier;                                              ... (q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.

2. Ni le transporteur ni le navire ne seront responsables pour perte ou dommage résultant ou provenant :                                               ... b) d'un incendie, à moins qu'il ne soit causé par le fait ou la faute du transporteur;                                               ... q) de toute autre cause ne provenant pas du fait ou de la faute du transporteur ou du fait ou de la faute des agents ou préposés du transporteur, mais le fardeau de la preuve incombera à la personne réclamant le bénéfice de cette exception et il lui appartiendra de montrer que ni la faute personnelle ni le fait du transporteur n'ont contribué à la perte ou au dommage.

Article IV, Rule 3

3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants.

3. Le chargeur ne sera pas responsable des pertes ou dommages subis par le transporteur ou le navire et qui proviendraient ou résulteraient de toute cause quelconque sans qu'il y ait acte, faute ou négligence du chargeur, de ses agents ou préposés.

Article IV, Rule 6

6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.

6. Les marchandises de nature inflammable, explosive ou dangereuse, à l'embarquement desquelles le transporteur, le capitaine ou l'agent du transporteur n'auraient pas consenti, en connaissant la nature ou leur caractère, pourront à tout moment, avant déchargement, être débarquées à tout endroit ou détruites ou rendues inoffensives par le transporteur, sans indemnité, et le chargeur de ces marchandises sera responsable de tout dommage et dépenses provenant ou résultant directement ou indirectement de leur embarquement. Si quelqu'une de ces marchandises embarquées à la connaissance et avec le consentement du transporteur devenait un danger pour le navire ou la cargaison, elle pourrait de même façon être débarquée ou détruite ou rendue inoffensive par le transporteur, sans responsabilité de la part du transporteur, si ce n'est du chef d'avaries communes, s'il y a lieu.

Dangerous Bulk Materials Regulations, SOR/87-24

10. (1) Every master, owner or person in charge of a ship shall keep on board (a) a copy of (i) the IMO Code, or (ii) the 1984 edition of the Code of Safe Practice for Solid Bulk Cargoes, TP 5761, published by the Department of Transport; and (b) in an accessible place and available to all concerned, information giving the necessary data for the safe carriage of the dangerous materials being carried, which data shall include (i) a cargo stowage plan indicating the location of all cargo on board, and (ii) for every dangerous material carried, (A) the technical name and hazard class of the material as set out in Schedule I, (B) an outline of the action to be taken should the dangerous materials catch fire or become involved in a fire, including a list of the equipment carried on board the ship to be used by the people fighting the fire, and (C) a list of the precautions to be taken to avoid accidental personal injury. (2) Where the information necessary for the safe transportation of the dangerous materials is not available or where the Dangerous Materials Shipping Statement is not available, the master or owner of the ship or person in charge shall refuse to transport the dangerous materials.

10. (1) Le capitaine, le propriétaire ou la personne responsable du navire doit conserver à bord du navire : a) un exemplaire de l'un des codes suivants : (i) le Code OMI, (ii) le Code des règles pratiques pour la sécurité du transport des cargaisons solides en vrac, TP 5761, publié par le ministère des Transports, édition 1984; b) à un endroit facilement accessible et à la portée de tous les intéressés, les données nécessaires au transport en toute sécurité des matériaux dangereux à bord, y compris : (i) un plan d'arrimage qui indique l'emplacement de la cargaison complète, (ii) pour chacun des matériaux dangereux transportés : (A) l'appellation technique du matériau et la classification qui lui a été attribuée par rapport au risque qu'elle représente, selon l'annexe I, (B) les mesures à prendre ainsi que l'équipement se trouvant à bord et devant être utilisé si le matériau dangereux prend feu ou est menacé directement par un incendie, (C) les précautions à prendre pour que personne ne soit blessé accidentellement. (2) Le capitaine, le propriétaire ou la personne responsable du navire doit refuser de transporter des matériaux dangereux s'il ne dispose pas des données nécessaires pour assurer leur transport en toute sécurité ou ne peut obtenir la déclaration d'expédition de matériaux dangereux.

Federal Courts Act, R.S.C, 1985, c. F-7.

Section 4

Subsection 22(1)

Federal Court Rules, 1998, SOR/98-106 (now the Federal Courts Rules, SOR/2004-283)

Rule 274

Rule 275

Rule 279

Rule 281

Burden of proof regarding condition of cargo at time of loading

[18]       The appellants submitted that since the master of the vessel issued a clean bill of lading, there was a presumption that the alfalfa pellets had been received in good order and condition and that, consequently, the burden of explaining the loss fell on the respondents.

[19]       The trial judge rejected this submission. Based on the evidence, he found that "although the bill of lading is clean, it is clear that it was extremely difficult, if not impossible, for those on board the vessel to properly observe the condition of the alfalfa pellets as they were being loaded onto the vessel at Thunder Bay."

[20]      In coming to this conclusion, the trial judge had to consider a question of law, i.e., the presumption of good condition of cargo evidenced by the issuance of a clean bill of lading, and then apply the law to the facts in the case.

[21]       The law regarding bills of lading acting as prima facie proof of the apparent order and condition of the cargo is found in Article III, Rule 4 of the Hague Rules, which provides that a bill of lading issued in accordance with Article III, Rule 3 is prima facie evidence of receipt by the carrier of the goods as described on the bill of lading.

[22]       Accordingly, in maritime claims, the plaintiff discharges the initial burden of demonstrating that the goods were tendered for delivery in apparent good condition by adducing a clean bill of lading: Francosteel Corp. v. Fednav Ltd. (1990), 37 F.T.R. 184, [1990] F.C.J. No. 810 (F.C.T.D.) (QL).

[23]       Although a clean bill of lading is generally accepted as establishing prima facie proof of the apparently good condition of the cargo, it is a rebuttable presumption: Wirth Ltd. et al v. Belcan N.V. et al. (1996), 112 F.T.R. 81 (F.C.T.D.), [1996] F.C.J. No. 603 (QL) at paragraph 65.

[24]       Article III, Rule 3(c) requires the carrier to issue a bill of lading that shows only the apparent order and condition of the goods. In other words, the carrier is attesting that, upon a reasonable and practical examination of the cargo, no damage was visible: Wirth Ltd., supra.

[25]       Therefore, a clean bill of lading serves simply as rebuttable proof of the presence or absence of visible damage at the time of loading: American Risk Management Inc. v. APL Co. Pte. Ltd., 2002 FCT 1023 at paragraph 17.

[26]       In order to determine the apparent condition of the cargo, the carrier is expected to perform only such examination as is reasonable and practical under the circumstances. Therefore, when the apparent condition of the goods cannot be ascertained, such as when goods are shipped in packages that prevent any observation of the pre-shipment condition of the goods, a clean bill of lading will be insufficient to establish a prima facie case: Francosteel Corp, supra.

[27]       Furthermore, where the apparent condition of the cargo cannot be discerned because the damage is caused by a hidden condition, such as moisture, a clean bill of lading will not be enough to support the shipper's claim of the cargo's good condition: Produits Alimentaires Grandma Ltée v. Zim Israel Navigation Co. (1988), 86 NR 39, [1988] F.C.J. No. 24 (C.A.) (QL) at paragraph 3.

[28]       In the present case, both the Captain and the First Mate of the vessel testified that the cargo threw off a thick cloud of dust as it was being loaded into the vessel's No. 4 hold. They testified that although they could see the alfalfa pellets entering the hold, a thick cloud of dust obscured their vision.

[29]       The trial judge acknowledged that a clean bill of lading creates a rebuttable presumption that the carrier received the cargo in good order. However, after considering all the evidence, including the fact that the cargo was being loaded at a high speed, the trial judge held that, under the circumstances, the clean bill of lading did not constitute prima facie evidence that the cargo was loaded in good order and condition.

[30]       I can find no error in principle in the trial judge's interpretation and application of the law nor can I find any palpable and overriding error in his findings of fact on this issue. Accordingly, I cannot disturb his decision on this matter.

Cause of the loss

[31]       The trial judge then turned to the cause of loss, stating that in his view, "the evidence leads to one conclusion only, i.e. that spontaneous combustion of the alfalfa cargo is the true cause of the loss."

[32]       In his examination of the facts surrounding the origin of the fire, the trial judge considered the appellants' theory that a cigarette may have caused the loss. However, he discarded this theory in the face of the respondents' expert evidence that found, on the basis of laboratory experiments, that it was extremely unlikely that a discarded cigarette could have ignited the fire.

[33]       The trial judge preferred the respondents' expert evidence that pointed to spontaneous combustion as the probable cause of the fire, to that of the appellants' expert evidence, which rejected this possibility.

[34]       After considering the expert evidence of both parties, the trial judge came to the conclusion that "the evidence is overwhelmingly in support of the view that the probable cause of the fire is the spontaneous combustion of the alfalfa pellets."

[35]       I can discern no palpable and overriding error in the trial judge's finding of fact that the cause of the loss was the spontaneous combustion of the alfalfa pellets.

Dangerous nature of the goods

[36]       The trial judge next considered the question of whether the cargo of alfalfa pellets was a dangerous cargo. He came to the conclusion that "the cargo was indeed dangerous. If not properly stored, it could ignite and hence cause the loss of the ship and of other cargos."

[37]      Determining whether a cargo is dangerous is a mixed question of law and fact that requires finding the legal definition of "dangerous" and then applying it to the facts.

[38]       In arriving at the definition of "dangerous", the trial judge relied on the decision of the House of Lords in Effort Shipping Co. v. Linden Management S.A. (The Giannis NK), [1998] A.C. 605 (H.L.), [1998] 1 Lloyd's Rep. 337, in which it was held that the word "dangerous" as used in Article IV, Rule 6 of the Hague Rules was to be given a broad meaning and not to be restricted only to goods of an inflammable or explosive nature, or their like.

[39]       Upon applying this definition to the appellants' cargo, the trial judge found that alfalfa pellets were a dangerous cargo. Based on this finding, the trial judge concluded that the appellants were responsible for the loss which they suffered as a result of the fire because they had shipped goods of a dangerous nature without making the carrier aware of the goods' nature and character, contrary to Article IV, Rule 6 of the Hague Rules.

[40]       The trial judge concluded that the evidence was clear that "the plaintiffs failed to provide any instructions and/or information to the defendants with respect to their cargo and, more particularly, failed to inform the defendants of the inflammable nature of the alfalfa pellets. In these circumstances, I cannot but conclude that the plaintiffs are liable under Article IV, Rule 6."

[41]       Regarding the possibility that the cargo owner's liability under Article IV, Rule 6 was qualified by the provisions of Article IV, Rule 3, the trial judge relied on the House of Lords' decision in The Giannis NK.

[42]       In The Giannis NK, the House of Lords held that Article IV, Rule_6 imposes upon the cargo owner a strict liability. A cargo owner who ships dangerous cargo without warning the carrier will be held liable for any damage done to the carrier or the carrier's property, regardless of whether or not the cargo owner was at fault. The House of Lords held that Article IV, Rule 6 is a freestanding provision covering the specific matter of dangerous goods and not subject to the other rules.

[43]       This view of Article IV, Rule 6 has also been adopted by the United States Court of Appeal for the Second Circuit in Senator Linie GMBH & Co. KG v. Sunway Line, Inc., et al., 2002 AMC 1217 (2^nd Cir. 2002).

[44]       The trial judge held that the appellants were "in breach of Article_IV, Rule 6 of the Hague Rules for having shipped a dangerous cargo, the nature and character of which was unknown to the defendants. Consequently, the plaintiffs are liable for all damages and expenses caused to the vessel and her owners."

[45]       The appellants argue that the respondents would have consented to the transport of the cargo even if they had been aware of its true nature, because, once they did become aware of the dangerous nature of the alfalfa pellets, that is, after the fire, they nevertheless consented to transport the cargo to Prescott for off-loading.

[46]      However, this argument does not take into consideration the fact that once the respondents became aware of the dangerous nature of the cargo, they took the precautions necessary to prevent another fire. Therefore, rather than being evidence that the respondents would have accepted the cargo even if they had known of its dangerous nature, this is instead evidence that the carrier would have taken adequate precautions if only they had been warned by the appellants of the dangerous nature of the cargo at the time of loading.

[47]       The appellants also argue that the respondents ought to have been aware of the dangerous nature of the cargo. They claim that if the respondents had consulted the International Maritime Organisation Code of Safe Practice for Solid Bulk Cargoes (IMO Code) for the year 1987, they would have found that alfalfa pellets were classified as dangerous goods.

[48]       The respondents argue that at the time of the shipment, Rule 10(1) of the Dangerous Bulk Materials Regulations, SOR/87-24 required masters to have onboard either the IMO Code or the 1984 edition of the Code of Safe Practice for Solid Bulk Cargoes, TP 5761 published by the Department of Transport. It was this latter publication that was on board the respondents' vessel when it took on the load of alfalfa pellets in 1989.

[49]       While the IMO Code classified alfalfa pellets as dangerous material, the 1984 edition of the Code of Safe Practice for Solid Bulk Cargoes did not. The master of the vessel was under no obligation to have a copy of both the IMO Code and the Code of Safe Practice for Solid Bulk Cargoes on board. Consequently, relying only on the Code of Safe Practice for Solid Bulk Cargoes, the master of the vessel had no way of knowing of the dangerous nature of alfalfa pellets.

[50]       Therefore, the appellants' claim that they had no duty to warn the respondents because the respondents ought to have known of the dangerous character of the alfalfa pellets is without merit.

[51]      I can find no error in principle in the trial judge's interpretation and application of the law nor any palpable and overriding error in his findings of fact. Therefore, I cannot disturb his decision on this issue. Furthermore, adopting a construction of Article IV, Rule 6 that is congruent with that given to it by the United States Court of Appeal and the House of Lords promotes the important goal of maintaining international uniformity in maritime law.

Order of evidence at trial

[52]       Marine claims fall under the jurisdiction of the Federal Court by virtue of section 4 and subsection 22(1) of the Federal Courts Act, R.S.C., 1985, c. F-7. Like all proceedings before the Federal Court, marine claims are subject to the rules of procedure set out in the Federal Court Rules, 1998, SOR/98-106 (now the Federal Courts Rules, SOR/2004-283).

[53]       Rule 274(1) sets out the order in which the evidence of the parties is to be presented. First the plaintiff presents its case in its entirety, followed by the defendant. When the defendant's evidence is concluded, the plaintiff may, in appropriate circumstances, adduce reply evidence.

[54]       Rule 275 provides that the Court may give directions at trial concerning the method of proving a fact or of adducing evidence.

[55]       When a party intends to call an expert witness, Rule 279 requires that the expert's evidence must first have been reduced to a written statement and served on all other parties at least sixty days before the trial.

[56]      Rule 281 requires that rebuttal expert evidence must also be reduced to a written statement and served on all parties at least 30 days before trial.

[57]       Consequently, no expert testimony is admissible, be it in chief or in rebuttal, unless it has been reduced to writing and served on all parties in accordance with Rules 279 or 281, except with leave of the Court.

[58]       At trial, when counsel for the appellants indicated to the trial judge that he intended to rest his case without calling his expert, the trial judge indicated that he was of the opinion that counsel was required to present his case in its entirety, which included calling his expert, before resting. The trial judge stated that it was likely that the respondents' counsel would object if counsel for the appellants attempted to call his expert in reply. Counsel for the respondents indicated that he would indeed object, especially since counsel for the appellants had not filed a rebuttal report, as required by the Federal Court Rules, 1998.

[59]       Counsel for the appellants agreed to call his expert to testify in chief, but indicated that he reserved the right to call upon him later in reply.

[60]       Subsequently, counsel for the appellants did attempt to call his expert to testify in reply to the respondents' experts. The respondents objected, citing Rule 281 of the Federal Court Rules, 1998 in support of their contention that the appellants did not have the right to call their expert in reply because the appellants had not served a "rebuttal report" 30 days before trial as they were obliged to do.

[61]       The trial judge upheld the respondents' objection, stating that Rule 281 clearly provided that no expert evidence to rebut evidence would be admissible unless an affidavit, or a statement in writing setting out the rebuttal evidence, had been served on the other party at least 30 days before thetrial or with leave of the Court. Since the appellants had served no such statement, the trial judge ruled that expert testimony at this point in the proceeding was inadmissible.

[62]       The trial judge noted that the appellants' expert had had over three months to read the reports of the respondents' experts. There was ample time to prepare and file a rebuttal report that responded to any of the points raised by the respondents' experts.

[63]       Professor William Tetley, in "The Burden and Order of Proof in Marine Cargo Claims", online: http://upload.mcgill.ca/maritimelaw/burden.pdf at page 42, notes that neither party may delay adducing evidence on the grounds that it need only be proven at a later stage of the proceedings:

[i]n actually presenting their evidence in a common law court, however, the plaintiff and the defendant must abide by the rules of procedure governing pleading which apply in the court in which the trial is conducted. These court rules determine the order of proof in the litigation process (i.e. the manner and sequence in which each party to the lawsuit must adduce evidence in presenting their case). Common law court rules ordinarily require each party to a suit to set forth the whole of their case at once. First, the plaintiff adduces all of their evidence in support of his claim, after which the defendant adduces all of their evidence in support of their defence. Then the plaintiff may advance counterproof to contradict the carrier's defence. Neither party may therefore validly delay adducing certain evidence at trial, on the ground that according to the order of proof contemplated by the Hague or Hague/Visby Rules, such and such a fact or allegation is for the other party to prove or need only be proven at a later stage of the proceedings.

[64]       The trial judge considered and rejected the arguments of counsel for the appellants that their claim and the respondents' counter-claim should be treated as two separate proceedings within the same hearing. After weighing submissions from both parties, the trial judge also decided against granting leave to the appellants to submit their expert report in rebuttal.

[65]       It was within the trial judge's discretion to determine the order of evidence and to refuse to grant leave for the submission of rebuttal expert evidence at trial. Furthermore, it was in the interests of judicial economy to hear both the claim and the counterclaim at the same time, since there was a common body of evidence. It was always open to the appellants to apply for severance if they felt it was necessary to their case.

[66]       Based on the record, the trial judge judicially exercised his discretion. Therefore, there are no grounds on which to disturb his decision.

Conclusion

[67]       The appellants have not succeeded in establishing any grounds on which to reverse the judgment of the trial judge and accordingly, I would dismiss the appeal with costs.

                                                                                                                                          "J. Richard"                

                                                                                                                                         Chief Justice               

"I agree

Robert Décary J.A."

"I agree

Gilles Létourneau J.A."

                                                      FEDERAL COURT OF APPEAL

                                   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              A-436-03

(APPEAL FROM A JUDGMENT OF MR. JUSTICE NADON, THEN SITTING AS A JUDGE OF THE FEDERAL COURT, DATED JULY 7, 2003 (2003 FC 837)

STYLE OF CAUSE:                   ELDERS GRAIN COMPANY LIMITED et al. v. THE VESSEL M/V "RALPH MISENER" et al.

                                                                             

PLACE OF HEARING:              Montréal, QC

DATE OF HEARING:                February 17, 2005

REASONS FOR JUDGMENT:    RICHARD C.J.

CONCURRED IN BY:                DÉCARY J.A. AND LÉTOURNEAU J.A.

DATED:                                                April 15, 2005

APPEARANCES:

SOLICITORS OF RECORD: