MARITIME LAW |
Carriage of Goods |
Z.I. Pompey Industrie v. Canmar Fortune (The)
T-98-98
Blais J.
21/12/99
12 pp.
Plaintiffs claimed damages as result of rough and improper handling of defendants' cargo (2 crates containing 1 photoprocessor and 2 sub assemblies)--Motion for order setting aside Prothonotary's order ([1999] F.C.J. No. 1584, (T.D.) (QL)) denying defendants' motion for stay of proceedings in favour of litigation in Antwerp, and granting stay--Jurisdiction clause in bill of lading providing disputes to be determined by courts in Antwerp--Bill of lading indicating Antwerp port of loading and Seattle port of discharge--Carrier decided to unload in Montréal and transport cargo by rail from Montréal to Seattle Deviation--Delicate nature of cargo could not withstand transport by rail--Motion dismissed--Application of stay of proceedings test in The Eleftheria, [1969] 1 Lloyd's Rep. 237--Jurisdiction in Prothonotary to determine bill of lading contract came to end in Montréal, and jurisdiction clause could not apply anymore--Prothonotary properly considered question of fundamental breach or deviation--Decision to stay proceedings question of fact in each case and Prothonotary had discretion to render decision herein, based on facts before Court after addressing criteria established by The Eleftheria case--Trial Judge will have chance to assess parties' actions pursuant to existing bill of lading contract--Trial Judge retaining power to decide upon validity of contract, whether defendant became common carrier after discharge of cargo in Montréal.