Itochu Canada Ltd. v. Fu Ning Hai ( The )
T-1102-98
Hargrave P.
17/8/99
18 pp.
Motion for stay of action for damages caused by corrosion to steel pipe, square steel tubing carried from Korea to Canada, in favour of litigation in Korea-Carriage of cargo governed by bills of lading containing contradictory choice of law clauses-One clause providing Korean law to apply except to extent contrary provided for in bill of lading; another providing Canadian Carriage of Goods by Water Act to apply-Inconsistency between application of Korean law, Canadian Carriage of Goods by Water Act-By incorporating Canadian Carriage of Goods by Water Act into bill of lading, Hyundai (charterer) making void anything in domestic Korean law contrary to or repugnant to Act, resulting in applicable law being Canadian Carriage of Goods by Water Act-Motion for stay served 6 1/2 months after service of statement of claim, and after obtaining extension to file statement of defence-Motion dismissed-Stay decided by considering factors involving appropriateness, convenience of given forum; factors going to secure proper justice-While generally jurisdiction clauses must be honoured as contractual undertakings, rule not absolute-Application of principles enumerated in The Eleftheria, [1969] 1 Lloyd's 237, for exercise of Court's discretion whether or not to grant stay-Upholding jurisdiction clause would result in split proceedings (present action, likelihood of second action in Korea), perhaps inconsistent decisions-As general principle, stay ought only to be granted where may be fully effective or where applies to all of parties-Possibility of conflicting decisions from two different courts substantial reason for denying stay herein-Convenience from aspect of other defendants' concern about presenting case in strange, different off-shore forum also consideration-Convenience strong reason against stay herein-Availability of documents, witnesses neutral point herein-As one-year time bar in Korea now expired, necessary to consider whether Hyundai truly wishing to litigate in Korea as opposed to merely seeking procedural advantage; whether plaintiff would be prejudiced by being forced to sue in Korea-Normally defendant seeking stay showing not seeking procedural advantage by specifically waiving time bar, but Hyundai not doing so-Plaintiff acted reasonably in not commencing backup action in Korea as lulled into believing Hyundai would or had attorned to Federal Court jurisdiction-Time bar, resulting prejudice sufficient ground for refusing stay-Differences in Korean law, compared to Canadian law, substantial point against allowing stay-That in rem security in Korea based on arrest or threat of arrest, illusion, particularly when compared to reasonable availability of arrest in Canada, might prejudice plaintiff, but given little weight herein-Hyundai's intransigence further strong reason to deny stay-Telephone calls, correspondence by which Hyundai seeking time extensions within which to file defence, and then after much delay, changing position to seek stay amounting to estoppel-Intransigence, attornment, estoppel going toward prejudice to plaintiff-Hyundai's request for, grant of, time extension within which to file defence constituting estoppel-Strong cause to deny stay-Plaintiff showing not only reasonable accommodation to Hyundai, but also proper desire, steps taken to get on with action (i.e. ongoing production of documents, yet accommodation to allow Hyundai time to file defence, proper balance which would permit action to proceed in timely way)-Hyundai's failure to bring on its objections to jurisdiction quickly, at early stage also strong reason to deny stay.