T-3545-74
N. J. Douek and Sons Ltd. et al. (Plaintiffs)
v.
The Vessel Banggai and Her Owners et al.
(Defendants)
Trial Division, Marceau J.—Montreal, March 1;
Ottawa, March 4, 1976.
Maritime law—Motion to set aside statement of claim—Bill
of lading for shipment from New Guinea to Montreal—Cargo
discharged at Rotterdam and transhipped on second vessel
Whether cause of action based on contract made outside
Canada—Whether through bill—Federal Court Rule 307.
Plaintiffs' shipment of coffee beans was received by defend
ants under a clean on board bill of lading at Lae, New Guinea
for carriage to Montreal. Instead, defendants discharged it at
Rotterdam where it was transhipped on co-defendants' vessel,
an additional bill of lading being issued. On arrival, some of the
cargo was missing, and plaintiffs claimed damages for breach
of contract and negligence. Defendants claimed that the cause
of action was based on a contract made outside of Canada,
according to the terms of which they could discharge the cargo
at any point and have it transhipped on a substituted vessel,
their responsibility being limited to the part of the transport
actually performed by them. They argued that they cannot be
held responsible under the bill of lading issued at Rotterdam,
that if any breach occurred, it was outside Canada, and, that
the contract permits them to elect for jurisdiction at
Rotterdam.
Held, defendants should remain parties. The Banggai bill of
lading is a through bill, even though providing for the possibili
ty of intermediary carriage. Defendants undertook to carry the
cargo to Montreal which was the final destination, and to
which point it had been prepaid. Loss was visible only on
arrival; plaintiffs cannot say where it occurred. And, the order
for service ex juris was properly made. The added information,
including the jurisdiction clause, does not warrant setting it
aside.
Dy Nokia Ab v. The "Martha Russ" [1974] 1 F.C. 410,
distinguished. Liquor Control Board (Ont.) v. The "Ben-
tainer" [1975] F.C. 238, applied.
MOTION.
COUNSEL:
M. de Man for plaintiffs.
S. Harrington for defendants.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for plaintiffs.
McMaster, Meighen, Minnion, Patch, Cor-
deau, Hyndman & Legge, Montreal, for
defendants.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The defendants, the owners of the
vessel Banggai and Koninklijke Nedlloyd B. V., by
this motion seek to set aside the service of the
statement of claim on them. An order authorizing
service out of the jurisdiction on these defendants
had been made by this Court, and a conditional
appearance has been entered on their behalf.
The facts which gave rise to this action, as they
are stated in the declaration, can be summarized
as follows. The plaintiffs were the owners of a
certain shipment of coffee beans which, under a
clean on board bill of lading issued at Lae, New
Guinea, was received by the defendants, on board
their vessel Banggai, at the Port of Lae, for car
riage and delivery at the Port of Montreal,
Quebec, Canada. Instead of discharging the cargo
at the Port of Montreal the said defendants dis
charged it at the Port of Rotterdam where it was
transhipped on board the vessel Manchester Con-
corde, owned and operated by co-defendant, Man-
chester Liners Limited, in connection with which
transhipment, an additional bill of lading was
issued. When the said vessel Manchester Concorde
arrived at Montreal, 20 bags of the said cargo
were missing. Having so stated the facts, the plain
tiffs claim from the defendants payment of the
damages suffered on the grounds: 1. that the
defendants are in breach of their contract, and 2.
that they were negligent, their liability being con
tractual as well as delictual.
Defendants-petitioners contend that the cause of
action against them is based on a contract of
carriage which was made elsewhere than in
Canada. According to the terms of such contract
they could discharge the cargo at any intermediary
port on its way to Montreal and have it tran-
shipped on board a substituted vessel, their respon-
sibility, in such an event, to be limited to the part
of the transport actually performed by them. They
cannot be held responsible under the bill of lading
issued at Rotterdam by defendant, Manchester
Liners Limited, under which the goods were car
ried on to Montreal. If any breach by them
occurred, it was committed elsewhere than in
Canada, and in any event, clause 28 of the con
tract permits them to elect for jurisdiction at
Rotterdam, which they do, this clause providing:
28. Jurisdiction. All actions under this contract of carriage
shall be brought before the Court at Amsterdam or Rotterdam
at the carrier's option and no other Court shall have jurisdic
tion with regard to any such action, unless the carrier appeals
to another jurisdiction.
I do not agree with these defendants' conten
tions. It appears to me that the contract entered
into by them, the Banggai bill of lading, is a
through bill of lading, even though the possibility
of intermediary carriers was provided for. The
defendants undertook to assure the carrying of
plaintiffs' cargo from Lae to Montreal. The final
destination was Montreal and the freight was pre
paid up to Montreal. It is only at the time of the
delivery that the loss was visible and plaintiffs say
they are not in a position to determine where it
occurred.
The facts in this case are different from those in
the case of Oy Nokia Ab v. The Ship `Martha
Russ"' on which defendants rely. On the one
hand, there were clearly, in that case, two separate
bills of lading, and on the other hand, it was
apparently possible to determine where the
damage had been sustained. On the contrary, the
facts in this case are similar to the ones which
Walsh J. had to deal with in the case of Liquor
Control Board (Ont.) v. The "Bentainer" 2 where
the motion to set aside was dismissed.
Rule 307 of the Federal Court Rules respecting
service ex juris leaves this to the discretion of the
Court and on the affidavit and facts before him at
the time, Dubé J. properly exercised his discretion
in making the order of September 29, 1975. On
the present motion to set this order aside, I find
that the additional information adduced by the
[1974] 1 F.C. 410.
2 [1975] F.C. 238.
supporting affidavit—including the information
relating to that jurisdiction clause hereabove
cited 3 —does not justify setting this service aside.
The defendants, the owners of the vessel Bang -
gai and Koninklijke Nedlloyd B. V., should remain
parties to the proceedings.
See on this point: Polito v. Gestioni Esercizio Novi Sicilia
Gens, [1960] Ex.C.R. 233; The Fehmarn [1957] 2 Lloyd's Rep.
551.
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