p.1 COUNTY COURT
Befor Judge Burrowes
The Case of The Recovery of Luggage From The Burning of The Steamer Kingston
Judgement In Favor of the Company
A legal decision of great importance to carriers and the public generally has lately been given at Kingston by Judge Burrowes, Judge of the County Court of Frontenac, in an action brought against the Canadian Navigation Company, to recover the value of a passenger's luggage, destroyed at the time of the burning of the steamer Kingston on the River St. Lawrence last summer. The company pleaded that as the steamer was destroyed by fire, they were protected by the statute of 26 Geo. 111, chapter 86, section 2, and therefore not responsible for the loss of the luggage. To this plea the plaintiffs demurred, contending: First - that although the statute applied to cases of fires occurring on the great inland lakes, it did not apply to the case of a fire occurring on the River St. Lawrence; and second - that the statute applied only to "goods and merchandize," and not to passengers' luggage. The following is the judgement which was in favor of the company:
Leslie Et Al vs Canadian Navigation Company - This is an action against the defendants as owners of the steamboat Kingston, brought by the plaintiffs W.L. and his wife M.L., who was a passenger on board the steamer, and lost her luggage by the fire which consumed that vessel while on her passage from Montreal to Kingston.
The first count in the declaration states that the defendants were carriers of passengers and their luggage, and in consideration that the plaintiff M.L. at defendant's request became a passenger to be carried with her luggage, her separate property, by the defendants on board one of their steam vessels from Kingston to Montreal and back to Kingston for hire; the defendants promised the plaintiff M.L. to carry her with her luggage, comprising wearing apparel, safely and securely from Kingston to Montreal, and back to Kingston, and there to deliver to her the said luggage within a reasonable time, and although such time elapsed defendants did not safely and securely carry the said luggage from Kingston to Montreal, and from Montreal to Kingston, and there deliver the same to the plaintiff, M.L., and in fact never did deliver or offer to deliver if whereby the luggage was lost.
To this count the defendants pleaded - that the plaintiff M.L. became a passenger carried with her luggage on board the defendant's vessel, called the Kingston; that within a reasonable time after she became such passenger, the steam vessel being in good order and condition, proceeded on her voyage from Montreal to Kingston with the plaintiff M.L., and her luggage, but that before sufficient time had elapsed for the delivery of her luggage at Kingston, and while the steamboat was on her way there, and upon the River St. Lawrence a fire happened on board the ship by accident, and without the wilful negligence or default of the defendants, or their servants, by which fire the said ship and luggage were destroyed without the negligence or default of the defendants or their servants.
This plea is demurred to on the ground that notwithstanding the facts pleaded the defendants are liable to pay for the luggage mentioned in the declaration.
On the argument it was admitted that the facts mentioned in the plea would afford no excuse for the defendant's breach of contract at Common Law, but they relied on the operation of the Statute, 26 Geo. 111, chapter 86, section 2, by which it is enacted that no owner of any ship or vessel shall be liable to answer for any loss or damage which may happen to any goods or merchandize whatever, which, after September 1st, 1786, shall be shipped, taken in, or put on board any such ship or vessel by means of any fire happening to or on board the said ship or vessel. On the contrary, the plaintiffs denied that this statute was in force in regard to ships navigating the River St. Lawrence, relying upon the case of Hunter vs McGowan 1 Bligh, which I have not seen, and which is said to show that the statute in question is not in force with regard to ships on the tidal waters of the River Clyde in Scotland, a river wholly within the territory of Great Britain. Respecting ships trading upon the great lakes the statute is clearly in force. This has been established by the case of Torrance vs. Smith 3, Upper Canada Common Pleas Reports page 411, and the reasons given by Sir James Macauley for his judgement in that case appear to me to apply with equal force to the navigation of Lake Ontario and the River St. Lawrence.
This great river is one hundred miles wide at its mouth. That part of it which runs between Kingston and the sea is six hundred miles long. It is nowhere less than two miles wide, except at one point, namely the city of Quebec, where it is nearly a mile wide. Its surface between Kingston and the sea measures 8,600 square miles, and is considerably greater than the surface of Lake Ontario. Ships of more than a thousand tons burthen, built at Kingston, have carried the British flag all over the world. The River St. Lawrence has borne the ships of war and commerce of many countries. It is the limit or boundary between Canada and the United States. It is, like the sea, the highway of nations, and carries a commerce which forms no inconsiderable part of the trade of Great Britain. The statute of 26 Geo. 111, chapter 86 appears to me to be in force on the River St. Lawrence as much as on the sea and on the Great Lakes.
It was contended that passengers' luggage not being specially mentioned in the statute is not included with these articles, in respect of which shipowners are protected from loss by fire. The words of the Act, "any goods or merchandize whatsoever which shall be shipped, taken in, or put on board any ship or vessel," seem amply sufficient to include moveable property of all kinds. There is no difference between luggage and merchandize, except that merchandize is goods for sale and luggage is goods not for sale, but for personal convenience.
For these reasons I consider that the defendants are entitled to judgement upon the demurer.
Messrs. B.M. Britton and J.M. Machar, counsel for plaintiffs; Mr. J.P. Gildersleeve, counsel for defendants.
Mr. J. Bawden, plaintiffs' attorney; Messrs. Gildersleeve and Walkem, defendants' attorneys