CITATION: Alcoa, Inc. v. CP Ships (UK) Ltd., 2007 ONCA 686
DATE: 20071009
DOCKET: C46203
COURT OF APPEAL FOR ONTARIO
FELDMAN, ARMSTRONG and LANG JJ.A.
BETWEEN:
ALCOA, INC.
Appellant/plaintiff
and
CP SHIPS (UK) LTD.AND CAST TRANSPORT INC. AND CAST NORTH AMERICA (TRUCKING) LTD.
Respondents/defendants
J. Kenrick Sproule for the appellant
Yvan Houle for the respondent
Heard and endorsed October 2, 2007
On appeal from the judgment of Justice Denis Power of the Superior Court of Justice dated October 10, 2006.
APPEAL BOOK ENDORSEMENT
[1] The trial judge did not address the argument which we were told was raised before him and which was argued on the appeal, that within the terms of the bill of lading of CP Ships, s. 5(b)(3) is applicable rather than s. 5(b)(1). In our view, s. 5(b)(3) is the applicable provision in this case. Section 5(b)(1) relates to multi-modal transportation “from, to or within the U.S.”, while the underlying carrier has the goods, in which case liability is governed by COGSA.
[2] Section 5(b)(2) deals with multi-modal transportation outside the U.S. and Mexico where COGSA is not applicable.
[3] Section 5(b)(3) applies to the road and rail transport portion of multi-modal transport in Europe or within a State other than the U.S. In our view, Canada is such a state and s. 5(b)(3) applies specifically to the road portion of multi modal transport in Canada.
[4] One possible contrary reading of s. 5(b)(3) is that it only applies when s. 5(b)(1) does not. However, because s. 5(b)(3) refers to a State other than the United States, it appears that s. 5(b)(3) is intended to limit s. 5(b)(1) situations.
[5] The respondent says that Ontario cannot be a “State” within the meaning of s. 5(b)(3). It is unnecessary for us to decide that issue because if Canada is the State and no federal laws govern, then the default provision is s.5(b)(4) which applies because the respondent was found to be negligent in this case.
[6] In any of these events, the appellants succeed on this appeal.
[7] In the result, we would allow the appeal, set aside the judgment below and grant judgment in favour of the appellants against the respondents, CP Ships and Cast in the amount of $65,899.96. Costs of the appeal fixed at $20,000 to the appellants inclusive of G.S.T. and disbursements.