Name Case: TransX v. Canterra Stone Ltd. Between TransX Ltd. v. Canterra Stone Ltd. [2004] M.J. No. 120 2004 MBQB 76 See CI 01-01-22113. Manitoba Queen's Bench Court Winnipeg Centre J. Greenberg. March 25, 2004. 34 paras. Counsel: D. Ryall, plaintiff. S. For defendant, Scarfone. { 1 J. Greenberg. Mexican furniture and houschold accessories are imported by Canterra Stone Ltd. for Canadian market. It hired trucking company TransX Ltd. to bring a Truckload of Monterey, Mexico stone furniture and accessories to Calgary, Alberta. Damaged cargo arrived. Canterra sues for loss. FACTS 9 2 Wayne Babych runs Canterra Stone alone. His supplier is a family company. Fabricantes de Canterra, Monterrey. Two times before the incident that risked this lawsuit, Babych went to Mexico, bought products from Fabricantes, and had them shipped to Canada. 93 After these two instances, Babych decided he needed to supervise the inventory loading onto the truck for shipping back to Canada. He also discovered that filling the truck to capacity maximizes profit, considering freight costs. 1 4 In early 2000, he contacted trucking companies to arrange a third cargo to Canada. He hired TransX. He informed TransX staff. that he must be in Mexico for truck loading. Babych claims TransX staff promised he may get a truck in Mexico when needed. 15 Babych made two trips to Mexico for shipping. He visited Mexico in May 2000. Buy at Fabricantes. When he returned in July 2000 to supervise the loading of goods onto truck TransX charged him a fixed cost for the truck's trailer. He planned to buy extra on the second trip if the first trip didn't fill the trailer. He wanted the freight charge's full value.Canterra Stone Ltd. v. TransX Ltd. page 2 16 Babych says he told TransX staff three times before his July trip that he needed to be in Mexico when the truck came to load the trailer. His final call occurred on Friday, July 7, 2000. He called TransX that day to request a truck for the following week. 17 Monday, July 10, he flew to Monterey late at night with a return ticket for July 13, 2002. He called TransX from the Toronto airport to guarantee the truck would be in Mexico when he arrived. When the vehicle wasn't in Mexico on July 11, he called TransX again. 18 The truck was still missing when Babych left Monterrey early on July 13. On July 13, it arrived. Babych didn't cancel the truck when it didn't arrive. expected, nor did he tell Fabricantes what to do if the truck arrived without him. Fabricantes loaded the goods onto the vehicle, which arrived in Calgary damaged. 19 Babych snapped images of the products in Calgary. The photographs show considerable load damage. Although the trailer arrived in Calgary mostly empty, Some of Babych's Mexican purchases weren't loaded onto the truck. 1 10 The complainant seeks damages for both damaged and undelivered items. It also wants TransX freight expenses refunded and compensation for airfare for Babych's two Mexico travels to arrange cargo. Claims total little over $14,000. ISSUES 1 11 The plaintiff claims the defendant is liable for damages for two reasons. 1 12 First, it holds the defendant accountable for carriage contract breach. The cargo was fine. damaged when it arrived in Calgary from Mexico. Plaintiff claims defendant is liable for transit damage. 1 13 Or, the plaintiff relies on the defendant's collateral guarantee that the truck would be in Mexico when Babych was there to monitor loading. The complainant claims This collateral warranty breach caused the damage. 1 14 This raises the question of whether the plaintiff has shown its injury. Carriage contract $ 15 The goods was placed onto TransX's trailer intact and arrived damaged. So, the goods were destroyed in transportation. The carrier must prove that the damage was not caused by its fault [United Refrigerator Parts Co.]. In re Consolidated Fastfrate Ltd. (1974), 46 D.I.R. (3d) 290 (Man. C.A.). 16 The plaintiff's photos show the damage's cause. The cargo was made of huge clay pieces stacked haphazardly on top of each other with little protection from touch and no method to keep them from hitting one other. The things were mostly unboxed. No strapping, just foam wrap. \ 17 Plaintiff's counsel agreed that faulty packing caused the damage, and Babych's evidence shows that he wished to supervise packaging in Mexico. His previous package had been completely ruined in transit. $ 18 Craig Esquivel, a TransX employee, said that shippers prepare goods for shipping and load trailers. The law reflects this practice. McNcil, Motor Carrier Cargo Claims (4th ed.), pp. 141-142, explains the basics: Packing, loading, and securing In general, shippers must pack products to survive transit rigors. Proposition is clear from D. M. Duncan Machine Co. Ltd. v. CNR [1951] O.R. 578]. Unsecured crane counterbalances damaged the crane during transit. The Buyer's action against carrier was dismissed and shipper was held liable for careless cargo packing. After dismissing the action against the carrier, the trial judge noted that the carrier might use the defence of bad packing even if he knew its condition. That proposal is likely acceptable if the carrict is not negligent. The carrier usually won't second-guess the shipper's efforts to protect its shipment. Any reason the carrier is unemployed expertise in packing freight, but because he runs a mobile cargo facility. The idea that something exists Pacific Great Eastern Railway Co. v. Bridge River Power Co. denied the carrier's foremost obligation to ensure cargo condition. In its conclusion, the court seems to indicate that it is more a factual concern than a legal one, saying: The railway company did not supervise the crane's preparation for shipment or have any employees at the shipment site better suited to judge the crane's safety than the Power Company's. The Power Company sued the railway company for crane damages on the grounds that the railway company had a paramount duty to prepare the crane for shipment, ensure its safety, and carry it. Cannot accept that. contention. Rand J. ruled this case. expressed the view that it was the shipper's duty to prepare the goods to withstand theIt is the shipper's interest in his property that is primarily regarded, and, except in special circumstances, if the goods are insufficiently packed or secured, the shipper must bear the loss or damage. That's the start. 1 19 Fabricantes prepared and loaded the freight, according to the parties' agreed statement of facts. In testimony, Babych stated that faulty packing damaged the goods. He replied in cross-examination that the commodities were appropriately packed: Properly packed? If they'd been packed well, they wouldn't have broken: 120 TransX is not liable for freight damage due to faulty packaging by the shipper under the contract of carriage. COLLATERAL WARRANTY Alternately, the plaintiff claims collateral warranty. Babych claims Trans.X promised to to supervise trailer loading in Monterey using a truck. His breach of that agreement precluded him from supervising the loading, causing cargo damage. Craig Esquivel was TransX's customer care representative when the plaintiff ordered the package. He took customer orders and knew the Mexican shipping sector from working in it. Esquivel had three to four conversations with Babych about a Mexican trailer. He understood Babych's need to birth in Mexico. He advised Babych he wanted three or four days' notice of Babych's Mexico visit. He claims Babych never disclosed him his Mexico dates. Esquivel says Trans does it often. should receive written confirmation from a client before placing a vehicle order into their computer and that none came in this case. Esquivel also testified that he could not guarantee a truck's arrival date. He told Babych about Mexico. He may have told Babych that, but I think he assured him. Babych promised to deliver a truck within three or four days. importance to Babych of his being in Mexico for delivery, and Esquivel understood this, I do not believe Babych would have recruited the defendant without this promise. concerns if Babych informed Esquivel about his Mexico itinerary. Was he given three or four days' notice? Babych testified he repeatedly notified Esquivel when he would be in Mexico. He informed Esquivel on Friday, July 7, 2000, that he would be in Mexico from July 11th to 13th. Esquivel recalls this talk but maintains Babych never offered him dates. He claims that when Babych contacted Friday, he only said he would be in Mexico "next weck". Given that Esquivel indicated he needed three to four days to organize a Therefore, one wonders why he didn't take Babych's call as a notice and arrange for it right away. What did he think "next weck" meant? His excuse that Babych had not given him a definite date makes little sense given his claim that he could only arrange a vehicle for a range of dates. $ 25 Even if I accept Babych's testimony and find that there was a warranty to have a truck in Mexico between July 11 and 13, the truck arrived at Babych's supplier on July 13, 2000, so I don't need to determine whether Esquivel was told what dates Babych would be in Mexico. missed the truck. Unfortunately, Babych had planned to fly out of Monterrey in the morning. \ 26 Babych asked TransX whereabouts several times between July 10 and 12. of the truck. Esquivel was on vacation, therefore these were conversations with other TransX personnel. If a warranty existed, it was based on Esquivel's conversations with Babych before Babych arrived in Mexico, on July 7th or carlier. Babych claimed such chats. place trust. Babych says Esquivel was allotted July 11th to 13th. (Babych confirmed these dates to Esquivel in a letter to Trans on September 6, 2000, after the items were damaged.) Babych informed TransX of his participation. His flight left Monterey at 8:40 a.m. on July 13. that day and spent the night at the airport due to the rough trip. Truck TransX. He could not have met the Fabricantes group at the warehouse that day. \ 27 Trans did not break a warranty about when the truck will be in Mexico. DAMAGES {28 Even if the defendant was negligent or breached a warranty, I would have trouble calculating damages. The plaintiff's injury is only obvious in the freight claim. charge. Evidence cannot assess the value of damaged and undelivered products. Goods Value \ 29 The delivered things were severely damaged. There is no reliable information of what commodities arrived in Calgary damaged, what were left behind, and their costs. 30 Babych unloaded the products in Calgary and loaded them onto a truck he rented to store them, but he never inventoried them or identified any broken things. Babych used a series of photos he shot while the products were still in the fruck heaped on top of each other to verify what arrived damaged and what did not. While viewing the photos, he tried to identify the truck's contents and match them to his invoices to prove their value. Because the truck products were still piled up, this work was challenging. The invoices showed the buy some balls and cartons. Babych's proof of these Things arrived in Calgary: Q Some other stuff, one set of balls? Have you seen those in the photographs? Q I have not. Four boxesdid they arrive? One didn't see the four boxes. Maybe one box. Possibly a box. This makes identifying the things harder because Babych's judgment of his loss has varied during the process. Babych wrote to TransX on September 6 about the mifial claim. 2000-Esquivel. Babych wrote that 40 "chimineas" (fireplaces) and 40 vases were not stocked. truck in Mexico. However, the plaintiff's initial statement of claim claims 40 chimineas and 40 vascs were destroyed in transportation. The claim was updated to say these items were damaged or delivered. The plaintiff presented invoices for 27 chimineas, 5 sets of vases, and other ornaments at trial. After Babych's cross-examination, the chiminea claim was dropped. He could not say how many were delivered or if he had paid for those that were not. 32 The plaintiff provided Visa bills and invoices showing a total cost of $8,618, however the September 6, 2000 letter alleges the value of undelivered commodities was $3,160 and the damaged goods were $2,400, totaling $5,560. Babych could not explain his figures. 33 This case shows that the plaintiff lost. Problem, had I located the defendant accountable for that loss is calculating the loss. I understand the challenge of proving Damage does not excuse the perpetrator from contract breach damages [Wood v. Grand Valley R. Co. (1913), 16 D.L.R. 361 (S.C.C.)]. However, damages were not warranted. tough to assess. According to Bowen L.J. Ratcliffe v. Evans, 1892, 2 Q.B. C.A. 524, pages. 532-533: Both pleading and proof of harm must be as specific and particular as possible, taking into account the circumstances and nature of the acts that cause the damage. Requiring less would relax clear principles. To Pedantry to demand more is vain. CONCLUSION T 34 So, the plaintiff's claim is dismissed. Although counsel did not mention costs, the defendant had been successful, I would usually award tariff-based expenses. Counsel may argue that another disposition is appropriate, they can appear before me to argue. J. Greenberg. QL Update: 20040405 cp/e/nc/qw/gismw Search PRE D

ChatGPT You've mentioned Canterra Stone Ltd. v. TransX Ltd., a 2004 Manitoba Court of Queen's Bench case. Canterra Stone sued TransX for damages to Mexican imports to Calgary, Alberta.

TransX trucked Canterra Stone's Mexican stone furniture and accessories. Canterra Stone sued TransX for transit damage when the items landed in Calgary damaged.

The suit against TransX looks to be dismissed by the court. The verdict states that while the cargo was damaged during shipment, Canterra Stone, not TransX, was responsible for packing and securing it. The court held TransX not accountable for the damages since the shipper improperly packed, as Canterra Stone's owner, Wayne Babych, admitted.

TransX's breach of collateral warranty to ensure a truck's presence in Mexico for loading monitoring was also examined by the court. The court determined no breach of warranty by TransX because the truck arrived at the supplier's site within the agreed-upon dates, even though Babych missed it owing to travel plans.

The court struggled to evaluate Canterra Stone's damaged or undelivered items due to Babych's inconsistencies and lack of evidence. The court rejected the plaintiff's claim.

The verdict didn't address costs, so parties could address them later.

This case shows the necessity of good packing and the difficulties of calculating damages in transit-related legal disputes, especially when proof of losses is vague or inconsistent.

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