Date: 19981016
Docket: T-820-95
Between :
| ROBIN MARITIME INC., a body politic and corporate having its principal place of business at Montreal Trade Centre, 393 St. Jacques Street, Suite 364, Montreal, Quebec |
Plaintiff
- and -
| CHEMARKETING INDUSTRIES INC., a body politic and corporate having its principal place of business at 2155 Dunwin Drive, Unit 15, Mississauga, Ontario |
Defendant
REASONS FOR JUDGMENT
PINARD, J. :
[1] The plaintiff, Robin Maritime Inc. ("Robin"), is bringing an action against the defendant Chemarketing Industries Inc. ("Chemarketing") for the non-payment of wharfage dues that Robin claims it is owed.
[2] At all relevant times, Robin acted as agent for the owners of the vessel M/T FLAMENCO which arrived at Montreal during the month of October of 1993 with a shipment of caustic soda destined for Chemarketing. The latter was the consignee or endorsee under the relevant bill of lading, and/or owner of the said shipment of caustic soda, which was delivered to them following discharge from the vessel M/T FLAMENCO.1 Robin claims from Chemarketing the amount of $11,131.58 in wharfage charges which it paid to the Port of Montreal.
[3] The wharfage charges were paid pursuant to a Notice Respecting the Tariff of Wharfage Charges for Montreal Port Corporation Facilities (Notice N-2). Clause 5(4) of Notice N-2 states:
| 5. ACCRUAL AND PAYMENT OF CHARGES |
| (4) Prescribed charges on goods are due from the owner of the vessel who in turn may collect the said charges from the owner of the goods. |
The allegation contained in paragraph 10 of the affidavit of Hans Parik, Product Manager of Chemarketing, that Chemarketing never appointed Robin as its agent for any purpose nor authorized any person to make such an appointment on its behalf is uncontradicted. Indeed, at trial, Alan Brigden, President of Robin, admitted that Robin had made no written or verbal contract or agreement with Chemarketing with respect to the latter's cargo on the MT/ FLAMENCO and dues or charges thereon.
[4] In the appointment telex dated September 17, 1993, Robin was asked by the deponent owners of the M/T FLAMENCO, Scanchem Chartering Ag, to attend vessel agency on their behalf with respect to that vessel. The telex also includes the following clause:
| . . . Owners accept no liability for any duties performed for charterers. And invoices you incur in performing duties for charterers (including communications) must be arranged directly between charterers and yourselves. |
This clause confirms therefore that Robin is appointed as the agent for the owners of the vessel only, and not as joint agent for the latter and Chemarketing. It is also confirmed by Alan Brigden's admission at trial that no arrangements of any kind were ever made between Robin and Chemarketing pursuant to the above appointment telex.
[5] In the same telex, the deponent owners further advised that this fixture was on Asbatankvoy charter-party terms, Asbatankvoy being a standard form of charter-party. Clause 12 therein states that charterers shall pay all taxes, dues, and other charges on the cargo. However, it was also established that the fixture had been supplemented by amendment clauses in the form of a Charter Party Attachment dated November 1990. Clause 6 of the Charter Party Attachment requires vessel owners to submit all claims within ninety days of completion of discharge. Clause 6 states:
| 6) Any claim owners may have against Charterers under this Charter Party, including, but not limited to, Deadfreight, Demurrage, shall be presented to Charterers, with full supporting documents within Ninety (90) days of completion of Discharge, failing which, owners waive their rights to any such claims. Any undisputed sums to be paid within Ninety (90) days. |
In the case at bar, Robin presented Chemarketing with the invoice for wharfage charges more than six months after the discharge date.
[6] Based on all the above evidence, I find that Robin has failed to meet the burden of establishing its right to be reimbursed by Chemarketing for the wharfage charges in question. In my view, absent any agreement between the parties, the wharfage charges were paid to the Montreal Port Corporation by Robin, acting as agent for the deponent owners of the ship M/T FLAMENCO, in accordance with clause 5(4) of Notice N-2 concerning the Wharfage Charges Tariff. Therefore, Robin, as agent for the deponent owners of the ship, had the right to claim the reimbursement of the said wharfage charges from Chemarketing by virtue of clause 12 of the Asbatankvoy charter-party. However, clause 6 of the applicable November 1990 Charter Party Attachment provided that claims must be made within ninety days of completion of discharge of Chemarketing's cargo. Unfortunately for the plaintiff, the claim was made more than four and a half months too late.
[7] As for the parties' past experience with respect to wharfage charges, such experience, according to the evidence, is too limited and too inconsistent to create any obligation for the defendant.
[8] Finally, Robin cannot succeed on the basis of unjust enrichment given all the rights and obligations set out in the appointment telex, the charter-party and its attachment, and Notice N-2.
[9] Consequently, the plaintiff's action is dismissed.
[10] As agreed at trial by the parties, the successful defendant will serve and file written representations concerning costs within fifteen (15) days from the date of the judgment herein. The plaintiff will subsequently be allowed fifteen (15) days to serve and file written representations in response. Costs will then be adjudicated on the basis of those written representations, without the necessity of any further hearing.
JUDGE
OTTAWA, ONTARIO
October 16, 1998
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1 Paragraphs 1 and 2 of the Statement of Claim, which are admitted in paragraphs 1 and 2 of the Statement of Defence.