NOTES
The “Algoway”
Leonard H. Bierbrier *
Shipping – Negligence – Ship Grounded While Taking on Cargo –
Doctrine of Identification.
An interesting problem affecting common carriers and cargo-
owners has recently arisen. Suppose a vessel grounds alongside a wharf
because of the negligence of both the vessel and the wharf owner.
Can the owner of cargo laden on board the delinquent vessel recover
from the wharf owner? Wells, D.J.A., recently rejected such a claim I
and unhappily the Supreme Court of Canada, in finding the plaintiff
carrier fully at fault, did not review this statement of imputed negli-
gence.2
The action arose out of a grounding in the Lakehead Harbour
of the ship “Algoway”, owned by the plaintiff-carrier, while in the
process of loading grain belonging to the second plaintiff. At first
instance, Mr. Justice Wells dismissed the carrier’s claim against the
defendant elevator-owners because of contributory negligence. He
also held that the carrier’s contributory negligence bound the cargo-
owners 3 and in consequence the cargo-owner’s claim was defeated
as well. In the Supreme Court, Ritche, J., in rendering the unanimous
decision, held that the grounding arose from the sole negligence of
the carrier ;4 thus no review was made of the doctrine of identifica-
tion and Mr. Justice Wells’ decision remains uncontradicted.
Second Year Law Student, McGill University.
1 The Algoma Central and Hudson Bay Railway Company and Parrish and
Heimbecker Limited v. Manitoba Pool Elevators Limited and Lakehead Harbour
Commissioners (1964) Ex. C.R. 505.
21966 S.C.R. 359.
3 (1964) Ex. C.R. 505 at 519.
4 Implicit in such a disposition of the cargo owner’s case was a reversal of
the trial judge’s finding that the occupier of the wharf and water-lot premises
was in fact contributorily negligent, though of course in denying the appeal the
court accepted the trial judge’s findings of fact in every other respect.
No. 1]
THE “ALGO WAY”
The doctrine of identification had its first full-blown appearance
in common law in 1849 in Thorogood v. Bryan 5 when the negligence
of a driver of a vehicle was imputed to the passenger who thereby
lost his remedy against the equally negligent third party. This
decision which put passengers, for the purpose of taking the action,
in the same position as the driver of the vehicle they were in,6 re-
ceived much serious criticism 7 before it was finally swept away in
The “Bernina”.” Nevertheless, it was acknowledged that the actual
assumption of control (as did not exist between passenger and driver)
could be ground for identification. 9
Can such a degree of control be found in a contract for carriage
of goods by sea ? This finding is important in the present case for
Wells, D.J.A. could only support his identification of the cargo-owners
with the carrier’s negligence on this basis. Unhappily, he himself
gives no justification.10 It is submitted that the authorities are to
the contrary,” and that a cargo-owner cannot be identified with a
carrier’s fault.
G 8 C.B. 115.
G E.g., per Pollack P. in Armstrong v. Lancashire and Yorkshire Railway Co.
(1875) L.R. 10 Ex. 47 at 52; per Lord Esher M.R. in The “Bernina” (no. 2)
(1887) 12 P.D. 58 at 67.
7 The editors of Smith’s Leading Cases, Willes and Keating, strongly doubted
its soundness in a note to Ashby v. White, Sm. L.C. (Editor’s note), Vol. 1, 3rd
ed., p. 132a and this note was adopted by all subsequent editors; Parke, B., whose
casual dictum in Bridge v. Grand Junction Railway 3 M. & W. 244 was the basis
of Thorogood v. Bryan 8 C.B. 115, questioned the latter case (per Lord Esher,
M.R., in The “Bernina” (No. 2) (1887) 12 P.D. 58 at 71); Dr. Lushington refused
to apply this doctrine in admiralty in The “Milan” (1861-2) 5 L.T.R. 590; Luss.
388; Bramwell, B., while following it in Armstrong v. Lancashire and Yorkshire
Railway Co. (1875) L.R. 10 Ex. 47, justified it on a technical ground rather than
(1888) 13 A.C. 1 at 11; in the
on identification in The “Bernina” (No. 2)
American Supreme Court, it was rejected in Little v. Hackett, 9 Davis Supr. Ct.
U.S. 366.
8 (1888) 13 A.C. 1 followed in Canadian Pacific Railway Company v. Smith
(1921) 62 S.C.R. 134 at 137; 59 D.L.R. 373 at 375.
9 bid., p. 18, per Lord Watson.
10 Mr. Justice Wells’ brief reference to the problem (reported in part 5 of the
headnote) is to be found on p. 519, the complete text of which reads as follows:
‘It would therefore seem to me that because of the plaintiff’s contributory
negligence in this case, by which, in my opinion, the plaintiffs Parrish and
Heimbecker are also bound, insofar as the defendants are concerned, these
plaintiffs are not entitled to any recovery against the defendant elevator
company.”
11 A synopsis of the problem is to be found in The British Shipping Laws, 11th
ed., 1963, Vol. 3, pp. 1146-47.
McGILL LAW JOURNAL
[Vol. 13
The issue of identity of cargo-owners and carriers was decided
in 1861 in The “Milan’ 12 more than twenty-five years before the
rejection of the Thorogood v. Bryan doctrine. Dr. Lushington was
faced with the proposition that this doctrine should be extended
to identify cargo-owners with carriers. Anticipating it being over-
ruled, he doubted its validity, noted its obscurity and refused to
follow it. He indicated that the inexistence of control by the cargo-
owner over the carrier made identification impossible.
“The owner of a ship has the appointment of the master and other officers,
and the active control over them; if the law be violated by his agents, there
is no injustice in visiting the consequences on him, he alone can take pre-
cautions against the occurrence of negligent or erroneous navigation; whereas,
to visit the errors of the master and crew upon the owner of cargo is to
inflict a loss upon one who has no power, directly or indirectly, to prevent
the misconduct which occasioned the disaster.” 13
“I cannot conceive a responsibility for an act done where the individual has
not, either by himself or by his agent, any power of interference or control.” 14
Although this decision was followed in many instances, 1 it was
sometimes doubted whether Dr. Lushington had indeed rejected the
doctrine of identification 11 because he had awarded the same pro-
portion of damages to both carrier and cargo-owner. 17 This doubt
was finally cleared up in 1911 with Lord Atkinson succinctly holding
that The “Milan” had rejected the doctrine of identification as be-
tween carriers and cargo-owners.’,
Although The “Milan” rule as to apportionment of damages was
restricted to collision, 19 it is submitted that this never meant that
the rejection of imputed negligence was similarly restricted. Mr.
12Luss 388; (1861-2) 5 L.T.R. 590.
13 Ibid., 593.
14 Ibid., 594.
15 The “Eliza Keith’
(1877) 3 Que. L.R. 143 at 146-7; per Jessel, M.R.
in
Chapman v. Royal Netherlands Steam Navigation Co. (1883) 10 Q.B.D. 521 at
538, 545; per Butt, J. in The “Vera Cruz” (1884) 9 P.D. 88 (on appeal on another
point ibid., 96); per Jeune, P. in The “Harvest Home” (1904) P.D. 409 at 418
(on appeal on another point (1905) P.D. 177).
16Per Jeune, P. in The “Frankland” (1901) P.D. 161 at 167; per Lord Esher,
M. R. in The -“Bernina” (no. 2) (1887) 12 P.D. 58 at 83 (on appeal at (1888) 13
A.C. 1) quoted favourably by Sir Gorrel Barnes in The “Circe” (1906) P.D.
1 at 9-10; per Vaughn Williams, L.J. in The “Drumlanrig” (1910) P.D. 249 at 260.
‘TFollowing Hay v. Le Neve (1824) 2 Shaw’s Scot. App. Cases 395 (H.L.);
Maddox v. Fisher sub nom The “Independence” 14 Moo P.C.C. 103.
18 The “Drumlanrig” (1911) A.C. 16 at 23-24; approved in Morrison S.S. Co. V.
Greystoke Castle (1947) A.C. 265.
‘9 The “Devonshire” (1912) A.C. 634.
No. 1]
THE “ALGOWAY”
Justice Wells has, however allowed identification in a non-collision
case. This creates an anomolous situation. A cargo-owner could at
once be identified and at once not be identified with a delinquent
vessel which had been sunk as a result of the joint tortfeasance of
that vessel, of another vessel, and, for example, a lighthouse keeper.
Can it logically be argued that a cargo-owner can have, and not have,
control (the basis of identification) contemporaneously ? It does
seem clear that a cargo-owner is not to be identified with its negli-
gent carrier, whether the loss is occasioned by a collision or by some
other happening. At least, this was clear until the recent decision
of Wells, D.J.A.
It is submitted that it was unfortunate that the Supreme Court
did not see fit to correct the lower court and indicate that in such
a case the innocent cargo-owner could effect full recovery from the
elevator-owner. This accords with the principle that, when an Admi-
ralty case does not involve a collision between two or more ships,
in the absence of statutory relief, one looks to the common law
doctrine of complete recovery from either both or one of the joint
tortfeasors 20 as each of them has breached a separate duty of care
to the cargo-owner. Relief is to be in full because the apportionment
provisions of the Canada Shipping Act only apply to cases involving
collisions between vessels.21 Neither can statutory apportionment
come from provincial enactments, e.g., Ontario Negligence Act for
the Federal Government has occupied the field by the enactment of
The Canada Shipping Act.22
20 The “Zeta” (1893) A.C. 468; The “Devonshire” (1912) A.C. 634; The “Spar-
row’s Point” (1951) S.C.R. 396 at 404;Gartland Steamship Company v. The
Queen (1960) S.C.R. 315 at 326-7.
2 1 Per Judson, J. in Gartland Steamship Company v. The Queen (1960) S.C.R.
315 at 327.
22 R.S.C. 1952, Ch. 29; R. v. Nisbet Shipping (1953) 1 S.C.R. 480. It is note-
worthy that the Crown, in virtue of the prerogative, can take advantage of such
provincial enactment. See Gartland Steamship Company v. The Queen (1949)
S.C.R. 510 at 515, 520, 521.
