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T-1397-77
United Nations and Food and Agriculture Organi zation of the United Nations (Plaintiffs)
v.
Atlantic Seaways Corporation and Unimarine S.A. (Defendants)
Trial Division, Gibson J.—Toronto, December 19, 1977; Ottawa, January 18, 1978.
Jurisdiction — Motion for dismissal of action in personam against defendants in contract for damages to cargo — Juris dictional clause in bill of lading declaring only Canadian law and Federal Court jurisdiction applicable — Bill of lading for foreign trade between U.S. port and foreign port — Contract with no connection to Canada, and transportation routes not touching Canadian waters — Whether or not jurisdiction lies with the Federal Court.
APPLICATION. COUNSEL:
N. Frawley for plaintiff.
A. J. Stone, Q.C., for defendant Unimarine.
J. Morin for defendant Atlantic Seaways Corp.
SOLICITORS:
McMillan, Binch, Toronto, for plaintiff.
McTaggart, Potts, Stone & Herridge, Toronto, for defendant Unimarine.
Campbell, Godfrey & Lewtas, Toronto, for defendant Atlantic Seaways Corp.
The following are the reasons for judgment rendered in English by
GIBSON J.: This is a motion for dismissal of this action in personam against the defendants in con tract for damages to cargo of goods carried from the port of New Orleans, United States of Ameri- ca to the port of Hoderdah (on the Persian Gulf), Arab Republic.
The contractual bill of lading for the carriage of goods by its terms was for foreign trade between a
port of the United States and a port of a foreign country. The contract between the parties had no connection with Canada nor did the transportation of these goods touch Canadian waters. The only matter relating to Canada is the jurisdictional clause in the bill of lading hereinafter referred to.
The United States Carriage of Goods by Sea Act, 1936, would be applicable if the plaintiffs had sued in a United States Court. The difficulty, however, in this case is that if the plaintiffs did sue in the United States, the action would be out of time.
The bill of lading contains two conflicting provisions:
1. Clause Paramount. ... When issued for carriage of goods by sea to or from ports in the United States of America in foreign trade, this bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States approved April 16, 1936. During any time when the Carriage of Goods by Sea Act of the United States is not applicable by its own forms and the carrier has any responsibil ity by law, or otherwise with respect to cargo such responsibili ty shall be governed by, and limited to, that prescribed by Subsections (5), (6) and (7) of Section 3, Subsections (2), except (2)(q), and (5) and (6) of Section 4 and Section 7 of COGSA, which subsections and sections are incorporated herein by reference and made a part hereof. The carrier shall at all times have the benefit of all exemptions, privileges and limitations of liability provided in the U.S. Rev. Statutes, Section 4281 and 4287, inclusive, and amendments thereto, and of all statutes or laws creating or permitting exemptions from or limitations of a carrier's liability, which statutes are incorpo rated herein by reference and made a part hereof.
The provisions, exemptions and conditions of this bill of lading being separable, if any thereof is repugnant to any extent to any of the said Acts or legislation, such provision, exemption and condition shall be void to that extent but no further.
2. Governing law and Jurisdiction. The contract evidenced by this bill of lading shall be governed by Canadian law and disputes determined in Canada by the Federal Court of Canada to the exclusion of the jurisdiction of any other Courts.
As I understand the law of the United States in relation to a matter such as this, if the situation was that a motion such as this were made in a United States Court attempting to oust the juris diction of such United States Court because of such a jurisdictional clause, the United States Court would declare this jurisdictional clause null and void so its jurisdiction would not be ousted.
Similarly, if in 1910 in Canada an action such as this had been commenced on a bill of lading
which contained a provision like this purporting to give a United States admiralty court jurisdiction, such a jurisdictional clause in such bill of lading would have been held to be null and void by reason of section 5 of The Water-Carriage of Goods Act, S.C. 1910, c. 61, which reads as follows:
5. Every bill of lading, or similar document of title to goods, relating to the carriage of goods from any place in Canada to any place outside of Canada shall contain a clause to the effect that the shipment is subject to all the terms and provisions of, and all the exemptions from liability contained in, this Act; and any stipulation or agreement purporting to oust or lessen the jurisdiction of any court having jurisdiction at the port of loading in Canada in respect of the bill of lading or document, shall be illegal, null and void, and of no effect.
No provision similar to section 5 of the 1910 Act was carried over into the Canadian Act of 1936 [The Water Carriage of Goods Act, 1936, S.C. 1936, c. 49]. But probably a Canadian court today would still hold that such a clause was null and void in the circumstances stated.
In this particular action, the claim in fact is made and governed by the Carriage of Goods by Sea Act of the United States and therefore is not made under any "Canadian maritime law or other law of Canada". Consequently the existence and validity of any "Canadian maritime law or other law of Canada" is not in issue in this action.
Accordingly, the motion must be decided by applying the usual law in this case, namely, that the parties cannot by consent confer on a court jurisdiction which does not exist.
Therefore the motion is allowed and the action is dismissed with costs.
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