When goods are imported, it is not uncommon for customs officials to exercise some degree of control over them for the purpose of exacting excise duty. Fortunately, it is rare for such goods to be lost or stolen after that exercise of control. So far as is known, there is no English case-law dealing with the liability of the Crown in this situation. But Canadian courts have occasionally been obliged to pronounce upon this issue. The most recent decision, that of Strayer, J., in Zien v. The Queen,1 is of considerable interest.

The plaintiff returned by air to Canada after a visit to the Lebanon. She was carrying on her arrival a quantity of jewellery which her husband had, shortly before their marriage, purchased for her in the Lebanon. On disembarking at Mirabel airport, Quebec, the plaintiff drew the attention of a customs officer, a Mr D’Amour, to the jewellery and to certain other items, which included a rosary given to her by her husband’s family. He informed her that duty was payable on two rings and a bracelet. On being informed as to the amount payable, the plaintiff told the officer that she had insufficient cash with her and asked him to suggest an alternative to immediate payment. The evidence at this point became somewhat unclear, but Strayer, J., found as a fact that the officer led the plaintiff to believe that there was only one other approach to the problem. That consisted in the plaintiff’s sending the jewellery in bond by her own carrier to Calgary (her final destination) and paying the duty when she collected the goods there. The plaintiff agreed and locked the jewellery (along with a few other items which were not dutiable) in her make-up case. Before she locked it, the official put a copy of the customs form B-8 into the bag. He then requested an official of Air Canada, the airline on which the plaintiff was travelling, to make arrangements for the onward transmission of the bag. That official attached to the case a tag bearing the words “In Bond”. In reply to a request from the plaintiff, Mr D’Amour stated that a receipt for the bag was not available. She thereupon noted the number on the tag and left the bag with them, confidently expecting to collect it in due course at Calgary.

The normal procedure in this situation would have been for the carrier’s officials to segregate the bag on arrival from other luggage which was loaded on to the passengers’ collection carousel and retain it till the owner called to collect it. The carrier’s official would then accompany the owner to the customs area. Only on calculation and payment of duty, and delivery of the bag to the owner, would the responsibility of the carrier terminate.

Regrettably, the bag never arrived. The plaintiff at first took steps to issue a claim against Air Canada, but encountered difficulty because of the limitation provisions