The main issue in this case was the liability of the carrier for damage to a cargo of clementines carried from South Africa to Montreal via New York. The container in which the cargo was stowed had been stowed and sealed by the shipper and the carrier argued that the plaintiff had not proven the goods were received by it in good order and condition. The Court rejected this argument relying on the export certificates which provided prima facie evidence of receipt by the carrier in good condition. The Court next considered whether the carrier was liable for failing to maintain the goods at the required temperature. The goods were to be at 4.5 degrees and the container was set at this temperature but the records disclosed periods during which the temperature was between 6 and 8 degrees. The carrier argued that the higher temperatures were not the cause of the damage relying on an expert witness that said the optimum temperature for carriage of clementines was between 5 and 8 degrees. The Court rejected the testimony of the carrier’s expert, in part because he confused the carrying temperature of mandarins and clementines. The Court then turned to the clauses of the bill of lading relied upon by the carrier to exonerate it from liability. One clause stipulated the carrier was not liable for breakdown of machinery unless caused by the carrier’s negligence. The other clause stipulated that fruits and vegetables were carried at shipper’s risk. The Court noted that both clauses would be invalid under the Hague-Visby Rules, however, because the relevant temperature fluctuations occurred after discharge, the Rules did not apply. Therefore, the Court had to interpret the clauses and held that neither clause excluded liability for negligence. The carrier appealed.
On appeal (2011 QCCA 2173) the Quebec Court of Appeal agreed with the trial Judge that the clause did not exclude liability for negligence. In result, the appeal was dismissed.