MARITIME LAW |
Practice |
Stella-Jones Inc. v. Mariana (The)
T-1942-98
2001 FCT 1148, Hugessen J.
24/10/01
6 pp.
Motion brought by defendants, owners of ship Mariana, to stay present action, to refer claim to arbitration in London--Action itself brought by owners, shippers of large cargo of telegraph poles shipped from Bécancour, Pictou, Nova Scotia to Lattakia, Syria--Bill of lading containing on reverse "Centrocon" arbitration clause--Motion seeking to enforce terms of clause by staying action, referring it to arbitration in London--Cargo of poles duly shipped to Lattakia--Plaintiff's purchaser, government of Syria, not accepting certain quantity of poles, those being 12 meters long--Goods reloaded, ship sailed from Lattakia in search of further cargo found in Black Sea--On return voyage from Black Sea, fire occurred resulting in claim made by plaintiff for alleged damages, other forms of relief--Whether defendant, owner, could claim recourse to arbitration in London to exclusion of jurisdiction of Court--Issue resolved by reference to Commercial Arbitration Act, particularly Commercial Arbitration Code, given force of law by Act--Under Code, art. 8, where Court finds arbitration clause within meaning of Code, it has no discretion to exercise but must refer matter to arbitration in accordance with clause--Art. 7(2) of critical importance--No arbitration clause in writing printed on back of booking note--Terms printed on back of full booking note printed form those of standard "Conline" Bill of lading, not including arbitration clause--Defendant failing to prove arbitration clause entered into, in force, enforceable in accordance with terms of Commercial Arbitration Code--Outbound voyage not subject to "Centrocon" arbitration clause--Bill of lading issued for outbound voyage not in accordance with written agreement between parties--Defendant failing to prove written agreement to arbitrate--Motion dismissed--Commercial Arbitration Act, R.S.C., 1985 (2nd Supp.), c. 17--Commercial Arbitration Code, R.S.C., 1985 (2nd Supp.), c. 17, Sch. Art. 7(2), 8.